30 Oct 2023


by Chuma Vabaza, Partner, Durban,
Practice Area(s): Employment |

On 25 October 2023, in the case of Van Wyk and others v Minister of Employment and Labour, the High Court in Johannesburg handed down a groundbreaking judgment concerning the leave entitlements of new parents in the workplace.

Mr Van Wyk is a salaried employee, whilst Mrs Van Wyk is a business owner. Given their circumstances, when they had a new baby, they preferred that Mrs Van Wyk returned to trade as soon as possible because they feared the business might fail were she to take an extended period of leave from it. On the other hand, Mr Van Wyk would be the primary caregiver during the early infancy of their child.

What stood in the way though was that the Basic Conditions of Employment Act (“the BCEA”) only entitled Mr Van Wyk to take 10 days’ paternity leave compared to the 4 consecutive months that Mrs Van Wyk would be entitled to as a birth mother. To circumvent this, Mr Van Wyk took extended annual leave from his work, part of which was unpaid. Further, he was also not entitled to any UIF benefits. The Van Wyks, therefore, argued before the court that sections 25, 25A, 25B and 25C of the BCEA are unconstitutional insofar as they unfairly differentiate between a mother and a father in respect of maternity and paternity leave. An additional question that the court was faced with is whether the BCEA also unfairly discriminates against commissioning and adoptive mothers by only providing for a 10 – week leave period for them as opposed to the 16 weeks that birth mothers are entitled to.

Addressing the issue of paternity leave for fathers, the court reasoned that to accord them a paltry 10 days’ leave speaks to a mindset that regards the father involvement in early parenting as marginal. In this sense, the BCEA is offensive to the norms of the Constitution as it impairs a father’s dignity. The court further determined that a father who chooses to share in the gruelling yet rewarding experience of early child nurturing can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination.

On the question of commissioning and adoptive mothers, the court decided that no honourable explanation comes to mind in granting them 6 weeks less leave compared to birth mothers. The fact that they may not have experienced physical child birth is no acceptable justification for the discrimination.

Under the circumstances, it seemed inescapable that the court would declare, as it ultimately did, that sections 25, 25A, 25B and 25C of the BCEA, together with the corresponding provisions of the Unemployment Insurance Fund Act, are invalid as they are inconsistent with the provisions of sections 9 and 10 of the Constitution. Whilst this declaration of invalidity has been suspended for two years to allow Parliament to cure the defects, the court has ruled that in the interim, the groups of parents referred to in this article shall enjoy the same maternity and paternity leave benefits as their comparators. Absent any appeal from the Minister of Employment and Labour or the Constitutional Court disagreeing with the High Court judgment, a new dawn has been ushered in for new parents.