South Africa: With Child, Without Pay

Last Updated: 24 November 2017
Article by Lizle Louw

Most Popular Article in South Africa, December 2017

In the Labour Court judgment, dated 7 November 2017, of Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd, a pregnant employee claimed she was unfairly discriminated against due to the application of the maternity leave policy of her employer, a gold mining company. In terms of the policy, pregnant employees who have to be removed from high-risk areas during pregnancy, for whom suitable alternative employment cannot be secured during the pregnancy, are placed on unpaid suspension pending their maternity leave, which is partially paid.


The policy provides for the following:

  • "risk work" is any work where there is exposure to physical, chemical or biological hazards and which is considered potentially dangerous to the health of the pregnant employee or the unborn child;
  • the company must provide risk-free, alternative suitable work for pregnant employees who perform risk work;
  • if the company is unable to offer risk-free, alternative, suitable work for the duration of an employee's pregnancy and six months after giving birth, the employee must go on extended unpaid maternity leave; and
  • the pregnant employee is entitled to four months' partially paid maternity leave.

The employee was (and still is) employed by the company as an electrician in the gold refining plant. Working in this environment presents a high risk to the health of pregnant employees and their unborn children as they would, inter alia, be exposed to cyanide and radiation. In 2014, the employee fell pregnant and, in accordance with the policy, the employer removed her from her position in the plant. After investigation, no suitable alternative positions could be found for the employee and she was placed on unpaid suspension, prior to her maternity leave commencing.


The Labour Court had to decide whether the policy is in contravention of the Basic Conditions of Employment Act, 1997, as amended (the "BCEA") and the Employment Equity Act, 1998, as amended (the "EEA").

Section 26 of the BCEA provides that:

  1. employers may not permit pregnant employees to perform hazardous work; and
  2. during the employee's pregnancy, and for a period of six months after the birth, the employer must provide the employee suitable, alternative work if the work poses a danger to her health and if it is practicable to do so.

The employee claimed that the policy contravened section 26(2) of the BCEA because that provision guaranteed her alternative employment on no less favourable terms. The employer claimed that it can only provide suitable alternative work if it is practicable to do so, and that it had not been practicable in this case.

The court found that various factors must be taken into account in deciding whether "suitable alternative employment" is available. These factors are, among others, whether the position is available, whether the position is a suitable alternative for that specific employee insofar as far as experience and qualifications are concerned and the terms and conditions associated with the alternative position. The court stated:

"In the end, a proper assessment needs to take into account that, what may be considered as an alternative, may not necessarily be suitable for that employee, and in the same vein, what might appear suitable might not necessarily be an alternative for the employee."

In this case, the employee averred that she could have been placed in four alternative positions. However, she was not qualified for the one position, she refused to take part in an interview process for the second position because the remuneration associated with that position was lower than her remuneration as an electrician and the other two positions did not exist in the employer's labour plan. Ultimately, there was therefore no suitable alternative employment available.

The employee further contended that the policy was in contravention of the EEA as she was being unfairly discriminated against on the grounds of her pregnancy, which is prohibited by section 6(1). This determination by the court involved a balancing of pregnant employees' rights not to be unfairly discriminated against and their employers' obligation to ensure a safe and healthy working environment for the employees and their foetuses. The court found that in light of the fact that the policy did not contravene the BCEA, it would be unfounded for the policy to contravene the EEA, especially since it was common cause that the policy was modelled on the BCEA. The court, however, specifically mentioned that the constitutionality of the BCEA and the EEA was not placed before it to decide on.

Further, the extended unpaid maternity leave was necessitated by the inherent requirements of the employee's duties; a valid defence in terms of section 6(2) of the EEA. Thus, as the employee is an electrician who undertakes hazardous work, once she disclosed her pregnancy, the policy, as well as the BCEA, required her to be removed from that work. This is a statutorily sanctioned and reasonable process arising from the fact that the employee no longer met the inherent requirement of her job as an electrician.


In the absence of a constitutional challenge to the provisions of the BCEA, this judgment establishes that maternity leave policies that require a period of unpaid maternity leave when suitable alternative employment cannot be found are in accordance with current legislation. The judgment also establishes that employers do not have to create positions for pregnant employees who have to be removed from high-risk areas and sets guidelines as to what constitutes suitable alternative employment in these circumstances.

ENSafrica represented the employer in this matter.

Dean-Michael Hoskins is a candidate attoreny in ENSafrica's employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions