Sonke Gender Justice’s argument is aligned with the Commission for Gender Equality’s argument, save for Sonke Gender Justice arguing that both biological parents, parents in a same-sex relationship, commissioning parents and adoptive parents should be afforded the right to four months' leave each. Image: AI Lab
By Vanessa Jacklin-Levin and Layla Shah
On November 1, 2024, the Constitutional Court heard the case of CCT 308/23 Van Wyk and Others v Minister of Employment and Labour, as well as CCT 309/23 Commission for Gender Equality and Another v Minister of Employment and Labour and Others.
The Constitutional Court decided to reserve its judgment and will provide a written judgment at a later stage. The decision is expected to have a marked impact on working parents of all kinds in South Africa.
Background
On October 25, 2023, the Gauteng Division of the High Court of South Africa delivered a judgment in the matter between Van Wyk & Others v The Minister of Employment and Labour that may abolish maternity leave as provided for in the Basic Conditions of Employment Act (the BCEA).
The Court declared the provisions of certain sections of the BCEA and the corresponding provisions of the Unemployment Insurance Act (the UIA) to be invalid by reason of inconsistency with sections 9 and 10 of the Constitution, as they unfairly discriminate between mothers and fathers, and one set of parents and another, on the basis of whether their children were born of the mother, were conceived by surrogacy, or were adopted.
This declaration has been suspended for two years to afford Parliament an opportunity to remedy the defects. This declaration has no force and effect unless and until it is confirmed by the Constitutional Court.
The High Court has provided interim measures while Parliament remedies the defect, which subject to confirmation by the Constitutional Court, would allow parents to share the right to four months’ maternity leave between them, irrespective of gender or whether the child was born or adopted.
The interim measures provided by the High Court have since been challenged on the basis that they are not just and equitable since they would reduce the joint leave entitlement for a biological mother and her partner and fail to consider the best interests of the child. As such, on November 1, 2024, the Constitutional Court was asked to consider these pertinent issues around equality and inclusivity.
Constitutional Court hearing
The Constitutional Court on November 1, 2024 heard three interrelated applications. Firstly, the application for confirmation of the order made by the Gauteng Division of the High Court declaring the above-mentioned sections of the BCEA and corresponding sections of the UIA to be invalid. Secondly, an application for leave to appeal directly to the Constitutional Court against part of the High Court’s judgment and order by the Commission for Gender Equality. Thirdly, an application for cross-appeal against part of the High Court’s judgment and order by Sonke Gender Justice, represented by African law firm, Bowmans.
Sonke Gender Justice’s argument is aligned with the Commission for Gender Equality’s argument, save for Sonke Gender Justice arguing that both biological parents, parents in a same-sex relationship, commissioning parents and adoptive parents should be afforded the right to four months' leave each.
This proposal is termed the 4+4 proposal and recognises both parents’ rights to equality, dignity and freedom of trade, occupation and profession in that it does not place childcare responsibilities solely on the mother, thereby excluding them from the workplace. It was further argued that this proposal is in the best interests of the child, in terms of section 28(2) of the Constitution.
Concerns raised by the Constitutional Court
– If parents are granted the right to elect how the four months’ parental leave is shared, due to societal norms, would it not still inevitably be the mother who would be the primary care giver?
– In terms of section 25(3) of the BCEA, a mother is not permitted to return to work within six weeks after she gives birth. Would this six-week period be included in the shared leave?
– How would parental leave be coordinated in unstructured working environments?
– If the Constitutional Court grants interim relief, which is over and above the statutory entitlement, what would the impact be on the fiscus and what are the budgetary implications?
– Would the Unemployment Insurance Fund be able to sustain an increase in claims?
– How would one deal with circumstances where biological fathers are not involved in the child’s life?
– Would it be necessary to create a default position or a breaking mechanism for circumstances where parents are unable to reach agreement on how parental leave should be apportioned?
– In relation to adoption leave only being granted if the child is under two years of age, is the intended purpose of the legislation only to cater for the nurturing of the child, such that this category of leave is only needed in the early stages of a child’s life, or does it also encompass the need to bond with and form an attachment with the child, such that there should be no limit on the age?
– Due to how complex these issues are, instead of the Constitutional Court granting interim relief, is it not better for it to rather make a declaration of unconstitutionality, suspend its order, and allow the legislature time to decide how all the intricacies should be handled?
Employment considerations
If the High Court’s order is confirmed by the Constitutional Court, employers will need to amend their policies to ensure that provision is made for parental leave in line with the interim provisions, pending the relevant amendments by the legislature.
If the 4+4 proposal succeeds, there are numerous considerations that the legislature would need to take into account when amending the relevant BCEA provisions. Importantly, it will have to consider how to navigate balancing the potential consequences on employers and business needs on the one hand and the right to equality, dignity and freedom of trade on the other hand.
The 4+4 proposal may also create an opportunity for job creation, as more people may be offered fixed-term contracts to cover employees’ periods of parental leave.
Vanessa Jacklin-Levin, Partner and Layla Shah, Associate, Bowmans South Africa
BUSINESS REPORT