On 25 October 2023, the Gauteng High Court declared in Van Wyk and Others v Minister of Employment and Labour (2023) ZAGPJHC that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act, 1997 (BCEA) are invalid on the basis that they infringe the rights to equality and dignity in the Constitution of the Republic of South Africa insofar as they unfairly discriminate between mothers and fathers; and between one set of parents and another on the basis of whether the children were born of the mother; conceived by surrogacy; or adopted.

The corresponding sections 24, 26A, 27 and 29A of the Unemployment Insurance Fund Act, 2001 (UIF Act) were similarly found to be invalid. The declaration of invalidity is still required to be confirmed by the Constitutional Court. If it is confirmed then the declaration of invalidity will be suspended for a period of two years to allow Parliament time to cure the defects.

Until such time as remedial legislation has been enacted, we set out below some of the interim changes that have been ordered by the High Court (subject to confirmation from the Constitutional Court):

• Section 25(1) of the BCEA should be read in such a way that instead of an ‘employee’ being allowed to take at least four consecutive months’ maternity leave, the section must be read as allowing one or other parent to take the whole of the maternity leave period; or each parent taking a turn to take leave; and both employers of the parents shall be informed of the parents’ election in this regard. The effect of this is that either parent may elect to take statutory maternity leave and the parents may decide to split the period of joint maternity leave in the manner they wish.
• Throughout section 25 wherever the word ‘maternity’ is used it should be replaced with the word ‘parental’, where appropriate in the context.
• In section 25A(1) the sentence, “An employee, who is a parent of a child, is entitled to at least 10 consecutive days parental leave” should be deleted and replaced with the following sentence, “An employee who is a parent of a child is entitled to the leave stipulated in section 25A(1).” This means that there is no longer parental leave as both parents have to decide how to split up the maternity leave entitlement, which can now be shared. Therefore if one parent elects to take the full four months’ maternity leave the other parent will not be entitled to any parental leave.
• In terms of adoption leave the following sentence, “An employee, who is an adoptive parent of a child who is below the age of two, is … entitled to the parental leave in section 25A” should be deleted and replaced with, “An employee, who is an adoptive parent of a child who is below the age of two, is … entitled to the leave stipulated in section 25(1).” This means that a parent of an adopted child or a child who is born through surrogacy is also entitled to four months’ maternity leave as opposed to the 10 consecutive weeks’ leave that is provided for in the BCEA.

In terms of the BCEA, the abovementioned leave is unpaid but employees can claim unemployment benefits from the Unemployment Insurance Fund and hence the relevant corresponding sections in the UIF Act have also been declared invalid in order to allow employees to claim benefits in the circumstances contemplated above.

The following should be considered if the abovementioned changes are confirmed by the Constitutional Court:

• All employees (regardless of gender) would be able to take up to four months’ maternity leave provided that collectively both parents of the child do not use more than the four months’ maternity leave entitlement;
• Where a child under the age of two is adopted or the birth is through surrogacy the parents of such child would jointly be entitled to four months’ maternity leave (as opposed to 10 consecutive weeks’ leave) and they can decide how to divide that between the two of them;
• Where an employer has a policy whereby it pays female employees during maternity leave it would be at risk of unfair discrimination claims should it not pay its male employees who elect to take maternity leave;
• Similarly, where an employer pays employees who give birth to a child it would be at risk of unfair discrimination claims if employees who adopt a child under the age of two or have a child through surrogacy are not similarly paid.

Should the declaration of invalidity be confirmed by the Constitutional Court employers would need to review their maternity leave and parental leave policies to align with the interim provisions, pending the legislative amendments to the BCEA.