Monthly Legal Update – October 2023 – The High Court’s Judgement Regarding Maternity Leave in South Africa

Hello everyone!

We decided to start posting monthly legal updates to keep you informed on important information that might affect you or somebody that you know. Please read below our first official legal update.

The Gauteng Division of the High Court of South Africa recently delivered a judgement in the case of Van Wyk & Others v The Minister of Employment and Labour, which could potentially abolish maternity leave in terms of the Basic Conditions of Employment Act 75 of 1997. In this case, the court found that sections 25, 25A, 25B, and 25C of the BCEA are unconstitutional in that they contravene sections 9 and 10 of the Constitution.
(Section 25, 25A, 25B, and 25C of the BCEA relate to maternity leave, parental leave, adoption leave, and commissioning parental leave.)

One of the primary points dealt with in this matter revolves around whether the provisions of the BCEA relate to a birth mother’s physiological needs. The court held that the provisions of the BCEA focus primarily on the nurturing of the child and not solely addressing the physiological needs, physical demands of pregnancy and post-childbirth recovery for the birth mother. Consequently, the judgment affirms that both parents should have the right to provide comprehensive care and nurturing to the child.

The court further held that the provisions of the BCEA unfairly discriminate between mothers and fathers, and different groups of parents, on the basis of whether the child is born to the mother, conceived through surrogacy, or adopted.

The court’s finding implies that maternity leave provisions will no longer be in effect, pending confirmation by the Constitutional Court. Instead, all parents, regardless of gender or the circumstances of their child’s birth or adoption, will have the right to a minimum of four months of parental leave. In cases where there are two parents, the four months of parental leave can be divided between them as they choose.

(According to our constitutional law, the court’s findings of invalidity have no force and effect unless and until it is confirmed by the Constitutional Court. The court’s findings will be suspended for two years, granting Parliament an opportunity to rectify the defects.)

In the event that the Constitutional Court confirms this finding, employers will be required to revise their internal policies on parental leave and ensure that these policies are in line with the court order and relevant amendments by the legislature.

Please comment below with your thoughts on the judgement.

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