On 25 October 2023, Deputy Judge President Sutherland handed down the judgment of Van Wyk and Others v Minister of Employment and Labour  ZAGPJHC 1213. This judgment fundamentally changes how maternity and parental leave will be dealt with in the future.
The background to the matter:
The matter emanated from the Van Wyk family’s utilisation of maternity/parental leave, a picture that has become commonplace in modern society. Mr. Van Wyk is a salaried employee, and Mrs. Van Wyk operates for her account. The pair opted for Mrs Van Wyk to return to her trade as soon as possible after the birth of their child so as not to lose her business.
Because maternity leave was out of the question for Mrs Van Wyk, Mr Van Wyk was the only one eligible for any leave. Yet, he was not eligible for more than ten days’ paternity leave in the governing legislative framework. As such, Mr. Van Wyk took partly unpaid extended leave per an ad-hoc agreement with his employer, yet he was not entitled to UIF payouts.
The issue at hand:
The issue before the Court was whether the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act and the corresponding provisions of the Unemployment Insurance Fund Act, namely sections 24, 26A, 27, 29A, were invalid due to inconsistency with sections 9 and 10 of the Constitution.
The Court found that the above provisions were indeed invalid to the extent that these provisions unfairly discriminated between mothers and fathers and unfairly discriminated between one set of parents and another based on whether their children were born of the mother, conceived by surrogacy, or adopted by the parents.
The implications for employers:
Contrary to popular belief and media speculation, the order of the Court has not automatically invalidated the provisions regarding maternity and parental leave. In other words, employers and employees should not fend for themselves and determine their maternity/parental leave periods or stipulations.
In terms of the order, Parliament has been given two years to cure the defects within the legislation as far as it is inconsistent with the provisions of the Constitution. However, suspending the invalidity does not mean nothing has changed either. In the meantime, there are interim provisions in terms of which:
- Parents in natural birth agreements can decide between them who would take the allotted four-month parental leave period, or this period can be freely allocated between them;
- Parents who adopt a child younger than two years are now entitled to the same leave regime as parents to a natural birth;
- Parents in a commissioning parent arrangement are now entitled to the same leave regime as parents to a natural birth and
- All the above benefit equally from parental leave provisions and UIF benefits.
If you would like to find out more about how this recent ruling may affect your career and family leave or would like to discuss your legal rights then please do not hesitate to contact us.