A Claim For Equal Benefits For Parents Of Newborn Or Adopted Children.

What is good for the goose is good for the gander: a claim for equal benefits for parents of newborn or adopted children

Van Wyk and Others V Minister of Employment and Labour and Others (Centre for Human Rights, University of Pretoria and Others as Amici Curiae) [2024] 1 BLLR 93 (GJ)

The High Court handed down a judgment in the case of Van Wyk and others v Minister of Employment and Labour and othersscrutinising certain provisions of Chapter 3 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which deals with leave entitlements. The case arose from an application in terms of section 172 of the Constitution of the Republic of South Africa, seeking a declaration of unconstitutionality of these provisions.

• The application specifically challenged sections 25, 25A, 25B, and 25C of the BCEA, which regulate maternity and parental leave, arguing that they are unconstitutional due to unfair discrimination.
• The challenged provisions of the BCEA differentiate between three categories of children. First, children born to a mother, secondly, adopted children, and thirdly, children born through surrogacy.

Children Born to a Mother

• Pertaining to the first category, section 25(3) of the BCEA prevents a mother from attending work duties for six weeks after the date of birth unless a doctor or midwife approves thereof.
• Section 25(1) of the BCEA further entitles a birth mother to a total of four consecutive months' maternity leave, with an option of taking leave one month prior to the expected date of birth.
• In contrast, section 25A(1) and 25A(2)(a) grant the father only 10 days of leave from the date of the child birth.
• Section 26 of the BCEA further provides protection to birth mothers prior to and after giving birth, ensuring that the working conditions under which she works under are not hazardous to her health or that of a child.

Adopted Children

• The second category, adopted children, is encapsulated in section 25B of the BCEA which deals with adoption leave and stipulates that an adoptive parent of a child who is below the age of two years is entitled to 10 consecutive weeks' leave and/or a 10 day leave as provided for in section 25A.
• Notably, the period of 10 weeks' leave is six weeks less than that to which a birth mother is entitled, i.e. 16 weeks/four months.

Children Born Through Surrogacy

• The leave entitlements for parents of children born through surrogacy are identical to those provided for adoptive parents; i.e. 10 weeks or 10 days as provided for in s25C.

The Simplified Applicants' Claims

The court summarised the claims as follows:

1. "Section 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure provide so is unfair discrimination and violates the dignity of all parents.
2. The differentiation in the duration of prescribed leave available to each of the three classes of parents, ie a birth mother and father; adoptive parents and parents of a child born through surrogacy, constitutes unfair discrimination and violates the dignity of all parents. It is contended that all categories should enjoy an equal duration of leave.
3. Furthermore, the notion that the prescribed leave is available to adoptive parents only in respect of a child of less than two years of age is challenged as irrational and as unfair discrimination."¹

High Court Analysis

• The court considered various differences amongst all the categories of parenthood. It concluded that all mothers, regardless of whether they gave birth, adopted a child, or became parents through surrogacy, should be entitled to the same period of leave. The court emphasized that failure to do so would perpetuate inequality, violating section 9 of the Constitution.
• Regarding the differentiation between fathers and mothers, the court criticized the assumption that mothers should be the sole caregivers, reinforcing the idea that fathers should equally share the caregiving role. The court also noted that this unequal recognition of fathers' roles in childcare and denying them a free hand to choose for themselves the role they wish to play, impairs the dignity of both parents. The court found that the BCEA's failure to provide equal recognition to both parents constitutes unfair discrimination.
• On the issue of the two-year cap for adoptive parents, the court took the view that it did not trigger a cogent complaint of unfair discrimination.

Remedy

• In conclusion, the court declared that the provisions of sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act 63 of 2001 ("UIF Act"), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions unfairly discriminate between mothers and fathers and further unfairly discriminate between one set of parents and another on the basis of whether their children were born of the mother, were conceived by surrogacy and were adopted.
• The court further suspended the declaration of invalidity for two years from the date of this judgment in order to allow Parliament to cure the defects and further held that pending remedial legislation being enacted, the provisions shall be read as to eliminate discrimination between mothers and fathers, as well as between the three categories of mothers, namely biological mothers, adoptive mothers, and commissioning parents in surrogate agreements with regard to leave entitlements.

Concluding Remarks

• Section 167(5) of the Constitution stipulates that "the Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force."
• This essentially means that up until the Constitutional Court confirms the decision made by the High Court declaring sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the UIF Act (sections 24, 26A, 27, 29A) unconstitutional, such a decision has no legal force and the status qou remains as in for now.
• The matter was heard by the Constitutional Court late last year (2024) and its judgement is awaited.
• Given the reasoning in Deputy Judge President Sutherland's judgment in the High Court, it is likely that the Constitutional Court will uphold the High Court's decision, thus eliminating the current differentiation between categories of parents as outlined in Chapter 3 of the BCEA. This will not only help to end the alleged unfair discrimination but also better reflect the modern realities of family structures and parenting roles.

Footnote

1. Van Wyk and Others V Minister of Employment and Labour and Others (Centre for Human Rights, University of Pretoria and Others as Amici Curiae) [2024] 1 BLLR 93 (GJ) at para 13.

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.