CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 308/23
In the matter between:
WERNER VAN WYK First Applicant
IKA VAN WYK Second Applicant
SONKE GENDER JUSTICE Third Applicant
COMMISSION FOR GENDER EQUALITY Fourth Applicant
and
MINISTER OF EMPLOYMENT AND LABOUR Respondent
and
CENTRE FOR HUMAN RIGHTS,
UNIVERSITY OF PRETORIA First Amicus Curiae
SOLIDARITY CENTRE, SOUTH AFRICA Second Amicus Curiae
INTERNATIONAL LAWYERS ASSISTING
WORKERS NETWORK Third Amicus Curiae
LABOUR RESEARCH SERVICE Fourth Amicus Curiae
CENTRE FOR CHILD LAW Fifth Amicus Curiae
Case CCT 309/23
In the matter between:
2
COMMISSION FOR GENDER EQUALITY First Applicant
SONKE GENDER JUSTICE Second Applicant
and
MINISTER OF EMPLOYMENT AND LABOUR First Respondent
WERNER VAN WYK Second Respondent
IKA VAN WYK Third Respondent
and
CENTRE FOR HUMAN RIGHTS,
UNIVERSITY OF PRETORIA First Amicus Curiae
SOLIDARITY CENTRE, SOUTH AFRICA Second Amicus Curiae
INTERNATIONAL LAWYERS ASSISTING
WORKERS NETWORK Third Amicus Curiae
LABOUR RESEARCH SERVICE Fourth Amicus Curiae
CENTRE FOR CHILD LAW Fifth Amicus Curiae
Neutral citation: Van Wyk and Others v Minister of Employment and Labour ;
Commission for Gender Equality and Another v Minister of
Employment and Labour and Others [2025] ZACC 20
Coram: Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J, Rogers J,
Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J
Judgment: Tshiqi J (unanimous)
Heard on: 05 November 2024
Decided on: 03 October 2025
Summary: Basic Conditions of Employment Act 75 of 1997 – maternity leave
– parental leave – adoption leave – commissioning parental leave
– surrogacy – unfair discrimination – equality – human dignity –
Unemployment Insurance Act 63 of 2001 – benefits
3
ORDER
On application for confirmation of the order of constitutional invalidity by the
High Court of South Africa, Gauteng Division, Johannesburg and on application for
leave to appeal against part of the order of the said Court, the following order is made:
1. The Commission for Ge nder Equality is granted leave to appeal against
the High Court’s decision not to declare, as invalid and inconsistent with
the Constitution, the age limitation of two years in section 25B(1) of the
Basic Conditions of Employment Act 75 of 1997 (BCEA) and
section 27(1)(c) of the Unemployment Insurance Act 63 of 2001
(UIF Act).
2. The declaration made by the High Court, that sections 25, 25A, 25B and
25C of the BCEA dealing with maternity and parental leave, together with
the corresponding sections 24, 26A, 27 and 29A of the UIF Act , are
invalid and inconsistent with the Constitution to the extent that they
unfairly discriminate between different classes of parents as to the length
of parental leave available to parents and as to the unemployment benefits
to whi ch they are entitled, and the periods for which unemployment
benefits are paid, is confirmed.
3. It is declared that section 25B(1) of the BCEA and section 27(1)(c) of the
UIF Act are invalid and inconsistent with t he Constitution to the extent
that they limit parental leave and related benefits to the case where the
adopted child is below the age of two years.
4. The declarations of constitutional invalidity referred to in paragraphs 2
and 3 are suspended for a period of 36 months from the date of this order
to afford Parliament an opportunity to remedy the constitutional defects
giving rise to the constitutional invalidity.
4
5. Pending the coming into force of any remedial legislation as contemplated
in paragraph 4, the impugned provisions of the BCEA shall read as
follows, the changes being indicated by underlining:
(a) Section 25 of the BCEA shall read:
“25. Parental leave
(1) An employee who is—
(a) a single parent; or
(b) the only employed party in a parental relationship , is entitled
to at least four consecutive months’ parental leave.
(2) A female employee who is expecting the birth of a child may
commence parental leave—
(a) at any time from four weeks before the expected date of birth,
unless otherwise agreed; or
(b) on a date from which a medical practitioner or a midwife
certifies that it is necessary for the employee’s health or that
of her unborn child.
(2A) Where section 25(2) does not apply, an employee may commence
parental leave on—
(a) the day that the employee’s child is born; or
(b) where section 25B or section 25C is applicable, the date
mentioned in section 25B(2) or section 25C(2) as the case may
be.
(3) No female employee who has given birth to a child may work for six
weeks after the birth of her child, unles s a medical practitioner or
midwife certifies that she is fit to do so.
(4) An employee who has a miscarriage during the third trimester of
pregnancy or bears a stillborn child is entitled to parental leave for six
weeks after the miscarriage or stillbirth, whether or not the employee
had commenced parental leave at the time of the miscarriage or
stillbirth.
(4A) If both parties to a parental relationship are employed, the parties are
entitled in the aggregate to four months and ten days’ parental leave,
inclusive of any parental leave taken in terms of subsections (2) and
(3).
(4B) The remainder of the parental leave referred to in subsection (4A),
after deducting any parental leave taken in terms of subsections (2) and
5
(3), may be taken by the parties in such manner as they may agree,
including concurrently or consecutively, or partly concurrently and
partly consecutively, save that any such parental leave, inclusive of the
leave contemplated in subsec tions (2) and (3) must be taken by the
party concerned in a single sequence of consecutive days.
(4C) If the parties cannot agree on the manner in which the remainder of the
parental leave referred to in subsection (4B) is to be taken, such
remainder shall be apportioned between the parents in such a way that
each parent’s total parental leave is as close as possible to half of four
months and ten days, provided that such leave is completed within a
period of four months from the birth of the child or, where applicable,
from the date referred to in section 25B(2) or 25C(2).
(4D) For purposes of subsection (4A), a party shall be deemed to be a party
to a parental relationship if such a party has assumed parental rights
and responsibilities over the child as c ontemplated in the
Children’s Act, 2005 (Act No. 38 of 2005).
(5) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.
(6) Notification in terms of subsection (5) must be given—
(a) at least four weeks before the employee intends to commence
parental leave; or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(7) The payment of parental benefits will be determined by the Minister
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).”
(b) Section 25A of the BCEA shall be deleted.
(c) Section 25B of the BCEA shall read:
25B. Adoption leave
(1) An employee, who is an adoptive parent of a child who is below the
age of two, is subject to subsection (6), entitled to the parental leave
referred to in section 25(1).
(2) An employee may commence adoption leave on the date—
referred to in section 25(1).
(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
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(b) that a child is placed in the care of a prospective adoptive
parent by a competent court, pending the finalisation of an
adoption order in respect of that child,
whichever date occurs first.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to in subsection (2);
or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of adoption benefits will be determined by the Minister,
subject to the provisions of the Unemploymen t Insurance Act, 2001
(Act No. 63 of 2001).
(6) If an adoption order is made in respect of two adoptive parents, both
parties are entitled in the aggregate to four months and ten days’
adoption leave.
(6A) The adoption leave referred to in subsection (6), may be taken by the
parties in such manner as they may agree, including concurrently or
consecutively, or partly concurrently and partly consecutively.
(6B) If the parties cannot agree on the manner in which the adoption leave
referred to in subsection (6) is to be taken, such adoption leave shall
be apportioned between the parents in such a way that each parent’s
total adoption leave is as close as possible to half of four months and
ten days, provided that such balance is completed within a period of
four months from the adoption of the child.
(7) If a competent court orders that a child is placed in the care of two
prospective adoptive parents, pending the finalisation of an adoption
order in respect of that child, the two prospective adoptive parents are
entitled to leave in terms of subsection (6).
7
(d) Section 25C of the BCEA shall read:
25C. Commissioning parental leave
(1) An employee, who is a commissioning parent in a surrogate
motherhood agreement is, entitled to leave as stipulated in
section 25(1).
(2) An employee may commence commissioning parental leave on the
date a child is born as a result of a surrogate motherhood agreement.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before a child is expected to be born as a
result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of commissioning parental benefits will be determined
by the Minister, subject to the provisions of the Unemployment
Insurance Act, 2001 (Act No. 63 of 2001).
(6) Where there are two commissioning parents, they shall each be entitled
in the aggregate to four months and ten days’ commissioning parental
leave.
(6A) The commissioning parental leave referred to in subsection (6), may
be taken by the parties in such manner as they may agree, including
concurrently or consecutively, or partly concurrently and partly
consecutively.
(6B) If the parties cannot agree on the manner in which the commissioning
parental leave referred to in subsection (6) is to be taken, such
commissioning parental leave shall be apportioned between the
parents in such a way that each parent’s total commissioning parental
leave is as close as possible to half of four months and ten days ,
provided that such balance is completed within a period of four months
from the birth of the child.
(7) In this section, unless the context otherwise indicates—
‘commissioning parent’ has the meaning assigned to it in section 1 of
‘commissioning parent’ has the meaning assigned to it in section 1 of
the Children’s Act, 2005 (Act No. 38 of 2005); and
8
‘surrogate motherhood agreement’ has the meaning assigned to it in
section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).”
6. Not later than six months before the expiry of the 36 -month suspension
period, the Minister of Employment and Labour, (Minister) must furnish
a report to the Registrar, on notice to the parties, as to whether remedial
legislation in respect of the BCEA and UIF Act has been brought into
operation and, if such legislation has not been brought into operati on,
when it is expected to be brought into operation and the further processes
that need to be completed in order for such legislatio n to be brought into
operation.
7. Upon the furnishing of such report, or in the absence of such report, any
of the partie s ma y apply, insofar as it is necessary , for supplemen tary
relief to become operative upon the expiry of t he 36-month suspension
period. Such application shall be brought not later than four months
before the expiry of the suspension period, and its further c onduct shall
be regulated by directions issued by the Chief Justice.
8. The Minister must pay the applicants’ costs in this Court, including the
costs of two counsel where so employed.
JUDGMENT
TSHIQI J (Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J, Rogers J, Seegobin AJ,
Theron J and Tolmay AJ concurring):
Introduction
[1] The applicants in these two applications seek to c onfirm an order of the
High Court1 to the effect that sections 25, 25A, 25B and 25C of the Basic Conditions of
1 Van Wyk v Minister of Employment and Labour [2023] ZAGPJHC 1213; [2024] 1 BLLR 93 (GJ); (2024) 45 ILJ
194 (GJ) (High Court judgment).
TSHIQI J
9
Employment Act2 (BCEA), dealing with maternity and parental leave, together with the
corresponding sections 24, 26A, 27 and 29A of the Unemployme nt Insurance Act3
(UIF Act), are inconsistent with the Constitution.
For convenience, the two applications have been consolidated because they seek
similar orders.
In the first application, the first and second applicants are Mr Werner van Wyk
and Mrs Ika van Wyk, a married couple. The necessity for adequate paternity leave for
Mr van Wyk before and after the birth of the couple’s first child was a catalyst to the
present proceedings. The third applicant is Sonke Gender Justice (Sonke), a non-profit
organisation that advocates for gender equality. The fourth applicant is the Commission
for Gender Equality (Commission), an institution established under Chapter 9 of the
Constitution. The respondent is the Minister of Employment and Labour (Minister ),
cited in her official capacity as the cabinet minister responsible for the administration
of both the BCEA and the UIF Act.
In the second application, the Commission is the first applicant and Sonke is the
second applicant . The first respondent is the Minister. The second and third
respondents are Mr and Mrs van Wyk. The Minister has filed a notice to abide the
decision of this Court in both applications, but has filed written submissions to assist
this Court in its determination of the matters.
The Minister requests condonation for the late filing of her written submissions
and states that the previous Minister had initially not intended to file written
submissions. The Minister was later advised that as the custodian and administrator of
the impugned legislation, she has a duty to make submissions before this Court to assist
it in providing for the appropriate relief. Furthermore, the Minister appointed new
2 75 of 1997.
3 63 of 2001.
TSHIQI J
10
senior counsel who had to familiarise himself with the record. The explanation offered
by the Minister for the late filing of her written submissions is adequate. Consequently,
condonation for the late filing of the Minister’s written submissions is granted.
There are five entities who were admitted as amici curiae (friends of the court).
They are, the Centre for Human Right s of the University of Pretoria ,
Solidarity Centre, South Africa, the International Lawyers Assisting Workers Network,
the Labour Research Service and the Centre for Child Law . They advance arguments
in support of the app licants’ criticism of the BCEA and the corresponding sections of
the UIF Act. The Court is grateful to all the amici for their submissions.
The impugned provisions
Because of the similarities in the impugned provisions of the BCEA and the
UIF Act and to avoid duplication, I will not reproduce the relevant provisions of the
UIF Act but will simply summarise them. I will refer directly to the provisions of the
BCEA.
The BCEA
The challenged sections of the BCEA are in chapter 3 of the Act. This chapter
regulates the minimum leave that an employer must grant to employees in several
circumstances. Sections 25, 25A, 25B and 25C regulate the granting of leave for the
exercise of parental rights. The provisions are challenged on the basis that they
differentiate between categories of parents and children, namely: a child born by their
birth mother; a child born by surrogacy and an adopted child; between birth mothers
and all other parents including fathers, parents in same -sex relationships, adoptive and
commissioning parents. Section 25B is also challenged on the basis that it limits the
eligibility for parental leave to parents who adopt children who are two years and
younger.
TSHIQI J
11
As the challenge to section 25B is also aimed at the capping of the maximum age
of adopted children in order for the adoptive parents to be eligible for parental leave, I
will firstly deal with the differentiation pertaining to leave available to adoptive parents
and their children together with other categories and then deal with the differentiation
pertaining to the capping of the age of adopted children separately. The first challenge
is that the provisions are discriminatory regarding the availability of parental leave and
its duration between different categories of parents: birt h mothers, biological fathers,
adoptive parents and commissioning parents. The second challenge is directed solely
at the capping of the age of adopted children. I will start with the differentiation
between the broader categories.
Differentiation between different categories of parents
Section 25 deals with maternity leave and provides:
“(1) An employee is entitled to at least four consecutive months’ maternity
leave.
(2) An employee may commence maternity leave—
(a) at any time from four weeks before the expected date of birth,
unless otherwise agreed; or
(b) on a date from which a medical practitioner or a midwife
certifies that it is necessary for the employee’s health or that
of her unborn child.
(3) No employee may work for six weeks after the bir th of her child,
unless a medical practitioner or midwife certifies that she is fit to do
so.
(4) An employee who has a miscarriage during the third trimester of
pregnancy or bears a still-born child is entitled to maternity leave for
six weeks after the m iscarriage or still -birth, whether or not the
employee had commenced maternity leave at the time of the
miscarriage or still-birth.
(5) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence maternity leave; and
(b) return to work after maternity leave.
TSHIQI J
12
(6) Notification in terms of subsection (5) must be given—
(a) at least four weeks before the employee intends to commence
maternity leave; or
(b) if it is not reason ably practicable to do so, as soon as is
reasonably practicable.
(7) The payment of maternity benefits will be determined by the Minister
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).”
Section 25A is focused on a parent, other than the birth mother.4 It states:
“(1) An employee, who is a parent of a child, is entitled to at least ten
consecutive days parental leave.
(2) An employee may commence parental leave on—
(a) the date the employee’s child is born; or
(b) the date—
(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective
adoptive parent by a competent court, pending the
finalisation of an adoption order in respect of that
child, whichever date occurs first.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the—
(i) employee’s child is expected to be born; or
(ii) the date referred to in subsection 2(b); or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of parental benefits will be determined by the Minister,
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).”
4 It is safe to assume that it is aimed at biological fathers or other parents in same -sex relationships.
TSHIQI J
13
Section 25B deals with adoptive parents.5 It provides:
“(1) An employee, who is an adoptive parent of a child who is below the
age of two, is subject to subsection (6), entitled to—
(a) adoption leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.
(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) that a child is placed in the care of the prospective adoptive
parent by a competent court, pending the finalisation of an
adoption order in respect of that child, whichever date occurs
first.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to in subsection (2);
or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of adoption benefits will be determined by the Minister,
subject to the provisions of the Unemployment I nsurance Act, 2001
(Act No. 63 of 2001).
(6) If an adoption order is made in respect of two adoptive parents, one of
the adoptive parents may apply for adoption leave and the other
adoptive parent may apply for the parental leave referred to in
section 25A: Provided that the selection of choice must be exercised
at the option of the two adoptive parents.
(7) If a competent court orders that a child is placed in the care of two
prospective adoptive parents, pending the finalisation of an adoption
order in respect of that child, one of the prospective adoptive parents
may apply for adoption leave and the other prospective adoptive parent
5 As stated, the capping of the age of adopted children will be dealt with separately. At this stage of the analysis,
the focus is on the discrimination of leave available to birth mothers vis-a-vis other categories of parents.
TSHIQI J
14
may apply for the parental leave referred to in section 25A: Provided
that the selection of choice must be exercised at the option of the two
prospective adoptive parents.”
Section 25C deals with commissioning parents. It states:
“(1) An employee, who is a commissioning parent in a surrogate
motherhood agreement is, subject to subsection (6), entitled to—
(a) commissioning parental leave of at least ten weeks
consecutively; or
(b) the parental leave referred to in section 25A.
(2) An employee may commence commissioning parental leave on the
date a child is born as a result of a surrogate motherhood agreement.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before a child is expected to be born as a
result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of adoption benefits will be determined by the Minister,
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).
(6) If a surrogate motherhood agreement has two commissioning parents,
one of the commissioning parents ma y apply for commissioning
parental leave referred to in section 25A: Provided that the selection
of choice must be exercised at the option of the two commissioning
parents.
(7) In this section, unless the context otherwise indicates—
‘commissioning parent’ has the meaning assigned to it in section 1 of
the Children’s Act, 2005 (Act No. 38 of 2005); and
‘surrogate motherhood agreement’ has the meaning assigned to it in
section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).”
TSHIQI J
15
In relation to biological parents, these provisions may be summarised as follows:
section 25 provides for a total of four consecutive months’ maternity leave for a birth
mother, of which four weeks may be taken prior to the date of birth. In terms of
section 25A, another parent other than the birth mother is entitled to 10 days’ leave from
the date of birth of the child.
The effect of these provisions is that the employee is entitled to take time off
from work and has job security upon return. Employers are not obliged to remunerate
employees for their period of absence but it is commonplace for major employers to
contract with employees to do so. The employee may claim a financial benefit from the
Unemployment Insurance Fund (UIF) in such sums as determined by the Minister.
Section 25(3) forbids a mother from working for six weeks after the date of birth,
unless a doctor or midwife approves.
The challenged provisions of the UIF Act may be summarised as follows:
(a) Section 24 prescribes maternity leave benefits for birth -giving
mothers.
(b) Section 26A prescribes parental leave benefits for registered
biological fathers, adoptive parents to children under the age of
two years and commissioning parents in surrogacy agreements.
The latter two categories of parents are confined to those parents
who do not claim the benefits in section 27 and section 29A.
(c) Section 27 provides for adoption benefits for an adoptive parent of
a child below the age of two years.
(d) Section 29A confers commissioning parental benefits on
commissioning parents in surrogacy agreements.
Background facts
The unfairness and the unconstitutionality of the provisions came into focus
when Mr van Wyk, an employee, approached his employer seeking four months’
TSHIQI J
16
consecutive paternity leav e. Mrs van Wyk was, and still is, in business for her own
account. Mr and Mrs van Wyk agreed with each other, before the birth of their son, that
Mr van Wyk would assume primary responsibility for taking care of their son as soon
as possible after the bi rth since Mrs van Wyk had two businesses to run. When
Mr van Wyk approached his employer with the request for paternity leave, he was
informed that he was only eligible for 10 days’ parental leave.
Given the potential financial ramifications that Mrs van Wyk’s businesses would
suffer if she were to take four months’ maternity leave, Mr van Wyk opted to take
extended unpaid leave of six months from his employer. It is not in dispute that his
decision consequently affected the household finances, his work ing conditions and his
career prospects.
Litigation history
High Court
Unhappy with the scenario, Mr and Mrs van Wyk, along with Sonke, approached
the High Court for an order declaring section 25 of the BCEA to be invalid and
inconsistent with the Constit ution and for the declaration to be suspended for a period
of 24 months from the date of declaration to allow Parliament to correct the defects.
The constitutional challenge rested on three grounds, namely that:
(a) the differentiation between mothers and fathers in section 25 serves no
legitimate governmental purpose and is irrational;
(b) if it indeed serves any legitimate governmental purpose, it nevertheless
amounts to unfair discrimination with no justification; and
(c) section 25 is in any event offensive to the dignity of parents as it
prescribes the manner in which families may be legitimately structured
and it deprives parents of the fundamental choice of how they may nurture
their own children.
TSHIQI J
17
The Commission brought an application to intervene as a four th applicant,
challenging the provisions on similar grounds. An order joining the Commission was
duly granted.
The former Minister defended both applications. It was contended that the
BCEA had been previously amended through a process of consultation u nder the
auspices of the National Economic, Development and Labour Council Act6
(NEDLAC Act), which consequently implies that the policymakers in those
consultations had applied their minds in remedying the BCEA to reflect societal
consensus between law-makers and stakeholders.
In addition, the Minister submitted that the provision of benefits implicates
resource allocation and that decisions with the potential to affect such allocation is
generally reserved for Parliament and ought to be processed through the
National Economic, Development and Labour Council (NEDLAC) before a court is
approached. This is because such matters are rarely appropriate for judicial intervention
as judges do not govern the country.
The High Court found that it was evident tha t there was differentiation between
mothers and fathers, and between a birth mother and other mothers or parents in the
impugned provisions of the BCEA. The Court, relying on Harksen,7 determined
whether the differentiation bore a rational connection to a legitimate governmental
purpose, whether it amounted to unfair discrimination, and if unfair, whether the
provision could be justified under the limitation clause in the Constitution.8
The High Court found that the differentiation between fathers and mot hers
amounted to unfair discrimination, specifically regarding the duration of entitled leave.
That Court held that the case should not focus on delinquent fathers but should
6 35 of 1994.
7 Harsken v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) ( Harksen).
8 High Court judgment above n 1 at para 16.
TSHIQI J
18
determine whether fathers generally have an opportunity to participate in child -
nurturing in the early stages of childhood.
The High Court held that it is unfair for the mother to be deemed the primary
caregiver when the burden of child care should be equally shared with the father,
considering that parenting is sui generis (unique) in nature. That Court additionally
stated the following:
“A father who chooses to share in this experience for his own wellbeing, no less than
that of his children and of their mother, can indeed complain that the absence of equal
recognition in the BCEA is unfair discrimination. A mother can on the same premise
rightly complain that to assign her role as the primary caregiver who should bear the
rigours of parenthood single-handed, is a choice that she and the father should make,
not the Legislature, an d in denying the parents the right to choose for themselves
impairs her dignity.”9
With regard to the shorter leave period available to adoptive and commissioning
mothers in a surrogate agreement, the High Court found that there was no reasonable
explanation or legitimate governmental objective for a 10 -week period of leave rather
than the four-month period of leave provided for a birth mother.10 The Court found that
all mothers in all parenting categories should be entitled to the same period of leave if
inequality is to be avoided.
9 High Court judgment above n 1 at para 27. See also President of the Republic of South Africa v Hugo [1997]
ZACC 4; 1997 (1) SACR 567 (CC); [1998] JOL 1543 (CC) at para 37, where Goldstone J said:
“The reason given by the President for the special remission of sentence of mothers with small
children is that it will serve the interests of children. To support this, he relies upon the evidence
of Ms Starke that mothers are, generally speaking, primarily responsible for the care of small
of Ms Starke that mothers are, generally speaking, primarily responsible for the care of small
children in our society. Although no statistical or survey evidence was produced to establish
this fact, I see no reason to doubt the assertion th at mothers, as a matter of fact, bear more
responsibilities for child rearing in our society than do fathers. This statement, of course, is a
generalisation. There will, doubtless, be particular instances where fathers bear more
responsibilities than mothers for the care of children. In addition, there will also be many cases
where a natural mother is not the primary caregiver, but some other woman fulfils that role,
whether she be the grandmother, stepmother, sister, or aunt of the child concerned.”
10 High Court judgment above n 1 at para 24.
TSHIQI J
19
The Court then dealt with what the Minister advanced as a legitimate
governmental purpose and how the amendments to the impugned provisions in the
BCEA and the UIF Act would have an obvious financial impact on the UIF, as the
number of people eligible for UIF benefits and the extent of their benefits will multiply.
The High Court reasoned that such an outcome can be managed.11 It suggested that the
State could keep the same amount of funding budgeted for in the UIF and reduce the
amount payable as a benefit to stay within budget.12 Furthermore, the Court stated that
even if there was certainty that the State would bear greater costs to eliminate the unfair
discrimination and may have to impose additional UIF levies on employers , the
possibility of such a risk had not in the past been a reason to refrain from making
declarations of unconstitutionality. It therefore held that such a risk was not a reason to
do so in the circumstances of this case.13
The High Court held that the M inister had failed to articulate a legitimate
governmental purpose for the differentiation in the impugned provisions and to plead
material facts to show justification for the discrimination.14
The High Court thus made a declaration of constitutional invalidity with a
reading-in to safeguard the rights of parents and children during the two -year
suspension period. The High Court’s order reads thus:
“(1) It is declared that the provisions of sections 25, 25A, 25B and 25C of the Basic
Conditions of Employment Act No 75 of 1997 (BCEA), and the corresponding
provisions of the Unemployment Insurance Fund Act No 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—
(a) Unfairly discriminate between mothers and fathers;
11 Id at para 38.
12 Id at para 39.
13 Id.
14 Id at paras 39-40.
TSHIQI J
20
(b) Unfairly discriminate between one set of parents and another on the
basis of whether their children—
i. Were born of the mother.
ii. Were conceived by surrogacy.
iii. Were adopted.
(2) The declaration of invalidity is suspended for two years from the date of this
judgment to allow Parliament to cure the defects.
(3) Pending remedial legislation being enacted, the provisions shall be read as set
out below—
(4) In section 25(1), the provisions are deleted and substituted with:
‘An employee who is a single parent is entitled, and employees, who are a pair
of parents, are collectively entitled, to at least four months’ consecutive
months’ parental leave, which, in the case of a p air of parents, be taken in
accordance with their election, as follows:
(a) One or other parent shall take the whole of the period, or
(b) Each parent shall take turns at taking the leave.
(c) Both employers must be notified prior to the date of birth in writing of
the election and if a shared arrangement is chosen, the period or
periods to be taken by each of the parents must be stipulated.’
(5) In section 25(2) the word ‘employee’ shall be substituted with the word
‘pregnant mother’.
(6) In section 25, wherever the word ‘maternity’ appears it shall, where the context
requires, be read as ‘parental’.
(7) Section 25A(1) is deleted and substituted with:
‘An employee who is a parent of a child is entitled to the leave stipulated in
section 25(1)’.
(8) Section 25A(2)(a) is amplified by the addition after the word ‘born’: ‘subject
to the provisions of section 25(2)’.
(9) Section 25B(1)(b) is deleted and substituted with: ‘the leave stipulated in
section 25(1)’.
(10) Section 25B(6) is deleted and substituted with:
‘If an adoption order is made in respect of two adoptive parents, they shall each
be entitled to leave as stipulated in section 25(1)’.
(11) In Section 25C(1) the provisions are deleted and substituted with:
‘An employee who is a commissioning parent in a surrogate motherhood
‘An employee who is a commissioning parent in a surrogate motherhood
agreement is entitled to leave as stipulated in section 25(1)’.
(12) Section 25C(6) is deleted and substituted with:
TSHIQI J
21
‘Where there are two commissioning parents, they shall each be entitled to
leave as stipulated in section 25(1)’.
(13) The provisions of sections 25(7), 25A(5) and 25B(5) and 25C(5) and the
corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be
read to be consistent with changes effected by this order and, accordingly, each
parent who is a contributor, as defined in the UIF Act, shall be entitled to the
benefits as prescribed therein.”15
In this Court
As stated, the applicants seek to confirm the order that the relevant provisions
are inconsistent with the Constitution on the basis that they discrimi nate unfairly and
are in violation of the equality and human dignity rights as entrenched in sections 9 and
10 of the Constitution. Consequently, this matter engages this Court’s jurisdiction as
empowered by sections 167(5) and 172(2) of the Constitution, which mandates this
Court to consider orders of invalidity made by other courts.
Mr and Mrs van Wyk, Sonke and the Commission support the order of invalidity.
They argue that the current leave regime in the BCEA and the UIF Act provide greater
benefits to birth mothers than the other categories of parents.
The Minister accepts that there is a differentiation between birth mothers, other
parents and their children. This pertains to leave available to fathers after the birth of
their children, mothers who are unable to conceive and give birth to their own children,
parents who opt for adoption and those who opt for surrogacy. She concedes that the
differentiation is discriminatory on the basis of gender and human dignity.
Discrimination on the basis of gender is one of the grounds of discrimination specified
in section 9(3) of the Constitution.
The Minister also acknowledges that discrimination on a specified ground in
section 9(3) is automatically unfair and that there is no basis on which it can be justified
15 Id at para 49.
TSHIQI J
22
in terms of the justification analysis. The Minister accepts that the provisions are
inconsistent with the Constitution and further accepts that there is a need to reform the
parental leave regime contained in the BCEA. She states that her team i s presently
focusing on the necessary reforms to the legislation as expeditiously as possible, and
urges this Court, in any event, to give consideration to her submissions which, as stated,
are merely made to assist this Court to reach a just and equitable decision.
As a result of the Minister’s stance, it is unnecessary to engage in an analysis on
whether the provisions are discriminatory, whether the discrimination is unfair and
whether the provisions are invalid as they are inconsistent with the Constit ution. The
Minister has accepted that the provisions are defective in all these respects.
I now turn to the enquiry whether the discrimination also violates the right to
human dignity as envisaged in section 10. It has been conceded by the Minister that the
provisions also violate the right to human dignity of persons who are not birth mothers
and are therefore inconsistent with section 10. The Minister also conceded that the
discrimination is unfair and that it is unconstitutional.
The human dignity of such persons is violated because they are not afforded the
humane protection afforded to birth mothers. The protection of birth mothers to the
exclusion of other parents has the unfortunate consequence of perpetuating the
assumption that women are and should be the primary caregivers of children. The father
is marginalised and deprived of the opportunity to involve himself as a parent in the
upbringing of the baby during the early stages of life. The parents are also deprived of
the choice to structur e their child-nurturing responsibilities rather than being assigned
caregiving and parental responsibilities based on their gender. The provisions are also
caregiving and parental responsibilities based on their gender. The provisions are also
discriminatory to adoptive parents and parents in surrogate arrangements.
If, for instance, parents who opt for adoption or surrogacy have a new-born child,
their entitlement to leave is much less than that available to those who have a child
biologically. Of course, in respect of birth mothers, I accept that there are health
TSHIQI J
23
considerations during which the mother has to be confined before birth and afterwards
for recovery purposes, but it cannot be gainsaid that there is also a period for nurturing.
In respect of the other categories, there is an inadequate period set aside for the purposes
of nurturing.
The insufficient period of leave provided to adoptive and commissioning parents
reduces the role they can play in nurturing their child. By allocating a shorter period of
leave, the challenged provisions imply that these parents require less time wi th their
children and that their caregiving obligations are less onerous, which is unfounded. This
not only diminishes the time available for establishing secure attachment, but also
denies adoptive parents the flexibility to manage their caregiving dutie s in a manner
that reflects the unique needs of their family, thus compromising their dignity and equal
standing as parents.
The disparity and unequal treatment towards adoptive and commissioning
parents not only marginalises the role that commissioning and adoptive parents play in
the early life of their child but also reduces the recognition of their responsibilities as
compared to biological parents. The distinction drawn by the statutory regime treats
them as a lesser class of parents. Furthermore, t he shorter period of leave deprives
commissioning parents of the opportunity to structure their parental responsibilities
according to their personal circumstances, thereby intruding upon their private life and
undermining their dignity.
There are several reasons why certain couples opt for adoption or surrogacy.
They should not be penalised for this. There are also many reasons why partners decide
that the father should be the primary caregiver. The case of Mr and Mrs van Wyk has
shown that even in ins tances where the other partner is a birth mother, circumstances
may dictate that the father assumes the role of primary caregiver. Legislation that
may dictate that the father assumes the role of primary caregiver. Legislation that
prevents them, without any legitimate reason, from arranging their affairs according to
their personal circ umstances and preferences, intrudes upon their private space
unnecessarily and impacts their human dignity.
TSHIQI J
24
In Dawood,16 this Court highlighted the interconnectedness of the right to
equality with the right to human dignity, and why the right to human dign ity is
significant. It reasoned:
“Human dignity therefore informs constitutional adjudication and interpretation at a
range of levels. It is a value that informs the interpretation of many, possibly all, other
rights. This Court has already acknowledged the importance of the constitutional value
of dignity in interpreting rights such as the right to equality, the right not to be punished
in a cruel, inhumane or degrading way, and the right to life. Human dignity is also a
constitutional value that is o f central significance in the limitations analysis.
Section 10, however, makes it plain that dignity is not only a value fundamental to our
Constitution, it is a justiciable and enforceable right that must be respected and
protected. In many cases, however, where the value of human dignity is offended, the
primary constitutional breach occasioned may be of a more specific right such as the
right to bodily integrity, the right to equality or the right not to be subjected to slavery,
servitude or forced labour.”17 (Emphasis in original.)
In Harksen, this Court said:
“The prohibition of unfair discrimination in the Constitution provides a bulwark against
invasions which impair human dignity or whic h affect people adversely in a
comparably serious manner. However, as L’Heureux-Dubé J acknowledged in Egan v
Canada, ‘Dignity [is] a notoriously elusive concept . . . it is clear that [it] cannot, by
itself, bear the weight of section 15’s task on its sh oulders. It needs precision and
elaboration’. It is made clear in paragraph 43 of Hugo that this stage of the enquiry
focuses primarily on the experience of the ‘victim’ of discrimination. In the final
analysis, it is the impact of the discrimination on the complainant that is the determining
factor regarding the unfairness of the discrimination.”18
factor regarding the unfairness of the discrimination.”18
16 Dawood v Minister of Home Affairs ; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).
17 Id at para 35.
18 Harksen above n 7 at para 51.
TSHIQI J
25
During argument, the Minister urged this Court to exercise caution when
considering leave available to fathers and parents who opt for adoption and surrogacy .
The basis for this note of caution is that the decision to afford more generous leave to
birth mothers is justified by the need to protect the health and well-being of the mother
and child before birth and to allow the mother adequate time to recover fr om giving
birth. This entails nurturing as well. There is no doubt that birth mothers need more
time before and after birth – this is not disputed. The problem is, as already stated, that
there is no basis to deprive willing fathers an opportunity to nu rture their children and
to deprive parents in other categories of an adequate opportunity of nurturing.
As the High Court also stated:
“To accord a paltry 10 days’ leave to a father speaks to a mindset that regards the
father’s involvement in early-parenting as marginal. In my view this is per se offensive
to the norms of the Constitution in that it impairs a father’s dignity. Long -standing
cultural norms which exalt motherhood are not a legitimate platform for a cantilever to
distinguish mothers’ and fathers’ roles.
A major argument advanced to criticise this provision is that it is unfair on the mother
to be deemed and doomed to be the principal caregiver and the ‘burden’ of child care
should be equally shared with the father. Parenting is sui generis and undoubtedly
onerous, involving actual work, resilience in the face of exasperation, anxiety,
unrelenting close attention to the newborn, extreme exhaustion, sacrifice of sleep and
sacrifice of the pursuit of other interests. A father who chooses to share in this
experience for his own wellbeing, no less than that of his children and of their mother,
can indeed complain that the absence of equal recognition in the BCEA is unfair
discrimination. A mother can on the same premise rightly complain that to assign her
discrimination. A mother can on the same premise rightly complain that to assign her
role as the primary caregiver who should bear the rigours of parenthood single-handed
is a choice that she and the father should make, not the legislature, and in denying the
parents the right to choose for themselves impairs her dignity.”19 (Footnotes omitted.)
The High Court was also correct in rejecting, as illegitimate or irrelevant, the
argument that there would be financial implications for the UIF if there were equal
19 High Court judgment above n 1 at paras 26-7.
TSHIQI J
26
treatment of parents. The High Court reasoned that those implications could be
managed by the Minister within the existing laws. The Minister could, so said the
High Court, choose to keep the same amount of funding budgeted for the UIF and
reduce the benefits to stay within budget. However, whatever could be done by the
Minister, is an irrelevant consideration to the finding that the provisions are not
consistent with the Constitution.
It must thus follow that sections 25, 25A, 25B and 25C of the BCEA and the
corresponding sections 24, 26A, 27 and 29A of the UIF Act, which regulate the granting
of leave for the exercise of parental rights and the granting of related benefits from the
UIF, are not consistent with the Constitution. As stated, the parents of adopted children
are eligible to only 10 weeks’ adoption leave or t he parental leave of 10 consecutive
days’ parental leave as envisaged in section 25A. This, compared to the leave to which
the birth mother is entitled, is discriminatory, unfair and not justifiable. The Minister,
as already stated, did not argue otherwi se. Consequently, the order of
unconstitutionality should be confirmed. What remains to be considered, before turning
to remedy, are the provisions of sections 25B of the BCEA and 27 of the UIF Act to the
extent that they limit eligibility for adoption a nd parental leave to parents who adopt
children who are younger than two years. This feature was the subject of a
constitutional challenge by the Commission.
Capping of the age of children relating to leave available to adoptive parents
Leave for a paren t in this category is only available if the adopted child is
younger than two years. The Commission attacked these provisions on the basis that
section 25B differentiates between parents adopting children who are two years and
older and parents adopting children younger than two years; and that the section at the
same time differentiates between those two categories of adopted children.
same time differentiates between those two categories of adopted children.
The section recognises that both parents may be treated as adoptive parents. If
section 25B is read with section 25A, i t means that one parent is entitled to
10 consecutive weeks’ leave and the other to the 10 days leave alluded to in
TSHIQI J
27
section 25A. The parents exercise an election on which one takes the longer or the
shorter period. The provisions are gender-neutral and a pair of same-sex parents are not
treated differently from heterosexual parents.
The High Court found that the age capping in respect of adopted children is not
unconstitutional as it does not trigger a compelling complaint of unfair discrimination.
It considered the argument that the older the child is when adopted, the more likely a
bonding experience is essential but found that an employment benefit aimed at only the
nurturing of an adopted infant could not necessarily be considered to amount to unfair
discrimination. The High Court further provided that perhaps the BCEA is not the
appropriate statute to regulate bonding experiences. Such a matter should be addressed
and amended in other pieces of legislation such as the Children’s Act.20
In this Court, the Commission submits that adopted children of all ages require
consistent care on arrival and that such care does not diminish with age but heightens.
The basis for this is that older children require greater attention and support to ensure
effective bonding, integration within the new family and to prevent a breakdown in
placement. The Commission further submits that the lack of parental leave benefits for
parents of adopted children who are two years and older further decreases the likelihood
of su ch children being adopted. They further argue that there is no legitimate
governmental purpose for the differentiation between parents adopting children who are
two years and older, and other adoptive parents. Consequently, the Commission seeks
that the words “who is below the age of two” be deleted from the section.
Sonke supports the stance by the Commission and the proposed reading -down
of the section through the deletion of the words “who is below the age of two”.
20 38 of 2005.
TSHIQI J
28
The Minister contends that the age cap argument pertaining to adoption leave, as
pleaded by the Commission, falls flat because even though an adoption may take place
sometime after a child is born, it cannot be denied that parameters are necessary.
Is the capping of the age discriminatory?
It is trite that if section 9 is invoked to attack a legislative provision or executive
conduct on the ground that it differentiates between people or categories of people in a
manner that amounts to unequal treatment or unfair discrimination, the first e nquiry
must be directed to the question of whether the impugned provision does, in fact,
differentiate between people or categories of people. Here, the answer must be in the
affirmative. That the provisions differentiate between categories of adoptive p arents
and their children on the basis of age cannot be disputed . Indeed, adoptive parents of
children who are older than two years, and their children, are treated differently from
parents and children younger than two years.
The next enquiry is if the provision does so differentiate, then in order not to fall
foul of section 9(1) of the Constitution, there must be a rational connection between the
differentiation in question and the legitimate governmental purpose it is designed to
further or achieve. If it is justified in that way, then it does not amount to a breach of
section 9(1).
The Minister proffers that the governmental purpose for this differentiation is to
create an “equivalence” between parental leave for when a child is born and for an
adopted child when they are young. She additionally argues that the differentiation does
not occur in respect of children per se, but in respect of the financial benefit afforded to
their parents.
The Minister’s arguments in this regard do not hold water. The age cap set is in
respect of children under the age of two years and the maternity leave has such an effect
respect of children under the age of two years and the maternity leave has such an effect
that birth parents leave their children who are much younger than two years. Birth
mothers return to work whilst their children are three to four months old, unless they
TSHIQI J
29
make special arrangements with their employer. If the Minister is concerned about
equalising the two scenarios, it has not been argued why a four, six or 12 -month age
cap would be inappropriate. There is no explanation as to how two years was set as an
appropriate age cap and why it should be regarded as a reasonable cap. I fail to see the
creation of the “equivalence” alleged by the Minister.
I also reject the argume nt that the differentiation does not occur in respect of
children. Of course, there is a financial benefit resulting from the UIF claim, but the
adopted children older than two years are treated differently because they are not
afforded time to be with th eir employed parents when they join their new families and
there is no opportunity afforded for them to adjust to the new family at all. It also cannot
be gainsaid, as the Commission has argued, that the lack of parental leave benefits for
parents of adopted children who are two years and older further decreases the likelihood
of such children being adopted because there is absolutely no leave after such children
join their new family.
Therefore, there is a differentiation between adoptive parents, based on the age
of the children they adopt, and also a differentiation between adopted children
themselves, based on their age. Such differentiation amounts to discrimination as age
is one of the specified grounds of discrimination in section 9(3). I also con clude that
the discrimination is indeed unfair. The test of unfairness focuses primarily on the
impact of the discrimination on the complainant and others in their situation.21
In Harksen, it was held that once it has been established that the provision i s
unfair, the next enquiry is whether the provision can be justified under the limitation
clause.22 I now turn to this enquiry.
21 Harksen above n 7 at para 51.
22 Id at para 53.
TSHIQI J
30
The onus is on the Minister to show that the age cap is justifiable as envisaged
in section 36(1) of the Constitution. 23 This requires a proportionality enquiry. This
Court in Makwanyane24 held that the balancing of different interests forms an inherent
requirement of proportionality:
“In the balancing process, the relevant considerations will include the nature of the right
that is limited and its importance to an open and democratic society based on freedom
and equality; the purpose for which the right is limited and the importance of that
purpose to such a society; the extent of the limitation, its efficacy and particularly where
the limitation has to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right in question.”25
The right that is sought to be limited here is the right of adoptive parents who
adopt children who are two years or older, and the right of the adopted children
themselves. The extent of the limitation is that the parents are not afforded an
opportunity to be at home, away from the workplace for the same period as the parents
of the other children, and that their adopted children are not afforded the opportunity to
be with their adoptive parents after adoption. As stated above, I accept that the primary
focus of granting leave after a family has acquired a child, either through birth or other
means, is nurturing. However, adjustment to a new environment is also very important
and although it is not the primary focus of the legislation, it cannot be excluded.
23 Section 36(1) of the Constitution provides as follows:
“The rights in the Bill of Rights may be limited only in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors,
including—
(a) the nature of the right;
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
24 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
25 Id at para 104.
TSHIQI J
31
The extent of the limitation is such that there is no leave at all for adoptive parents
with adopted children who are two years or older. As stated above, the Minister submits
that the scheme attempts to create a kind of “equivalence” between parental leave for
when a child is born, and parental leave for a young adopted child. The consequence,
so argues the Minister, is that rather than discriminating against adoptive parents, the
age cap actually functions to afford similar benefits to different categories of parents.
This argument by the Minister is flawed, as already stated. It does not addr ess
the differentiation between adopted children below the age of two years and those above
it. It focuses on the parents. However, the focus cannot be on the parents alone to the
exclusion of the children, because the whole regime around maternity, pate rnity and
adoption leave centres around both the parents and the children, with the parents being
the givers of nurturing, and the children being the recipients or beneficiaries.
The Minister further argues that unlike the parents of a three or five -year-old,
adoptive parents of an infant are unlikely to be able to rely on day-care facilities because
the infant is entirely reliant on the care of its parents in a way a child who is 10 years
old is not.
The gist of this argument is that adopted children abo ve the two -year age cap,
may be sent to day-care facilities whilst a child younger than two years is unlikely to be
ready to be sent to such facilities. However, this argument raises this question: what is
the difference between a child who is just under the age of two years (say, 23 months),
and a child who is two years or just over that age (24 or 25 months)? Should we assume
that a 24 or 25 -month-old child would be able to adjust and is suited for a day care
facility whilst a 23-month-old child would not be, or is not so suited? Are these factors
facility whilst a 23-month-old child would not be, or is not so suited? Are these factors
not dependent on the facts of a matter, including the circumstances of both the adoptive
parents and the child?
Where the State seeks to limit constitutional rights in the Bill of Rights, it must
support this by providing clear and convincing reasons. The Minister submits that the
TSHIQI J
32
parental leave scheme, as currently structured, is designed to provide parents with leave
when the child is born. She argues that adoption may take place sometime after the
child is born and that there is a need to ensure that some parameters are set to ensure
that parental leave functions in a manner analogous to other parents.
I accept that there is a need for the child and the parents to be afforded an
opportunity to be together after a child has joined a family. This need arises for all
children, whether they join their families through birth or adoption or surrogacy. This
is not afforded to adoptive parents and their children who are above the age of two years.
The Minister does not address the fact t hat children adjust differently and that a child
who is two years and two months old, and excluded by the age cap, may be less stable
and need more time with the adoptive parents than the one under the age of two years
who is covered by the age cap. It has not been suggested that this is not possible.
I agree with the Minister that a parameter has to be set on adoptive leave. Except
for arguing that the parental leave for adoptive parents should be analogous to the one
afforded to other parents, there is no other justification proffered. I have rejected the
submission that the two-year age cap can be justified on this basis. The Minister does
not say why a parameter at two years of age is reasonable or that a different paramet er
would be ill-suited. Generally, birth mothers go back to work after four months. These
children are much younger than two years. The Minister does not explain how capping
the adoption at two years of age is analogous to when a mother goes back to wor k,
leaving a four-month-old child.
Furthermore, when analysing whether adoptive leave should mirror the leave
provided to other categories of parents, it is evident that the two are fundamentally
different. Whilst leave for new-borns is focused on suppor ting the immediate and
different. Whilst leave for new-borns is focused on suppor ting the immediate and
intensive needs of infancy, adoptive leave also addresses a broader spectrum of
challenges. Adoptive parents, particularly those caring for children over the age of two,
face the added complexities of facilitating the child’s integration into a new family and
navigating cultural and environmental shifts. This multifaceted responsibility, which
TSHIQI J
33
extends beyond mere physical care, calls for a tailored leave framework that recognises
the unique demands of adoption, rather than a one-size-fits-all approach.
Therefore, parental leave, irrespective of the child’s age, is not solely about
meeting the needs of the child, such as nurturing, but also to allow children of different
ages a period to integrate and adapt in the new family unit. I t cannot be disputed that
in certain instances adopted children may require additional care and support depending
on the circumstances they come from.
The historical origins and initial rationale of the legislative scheme holds limited
weight in light of the current contemporary family dynamics and evolving social norms,
and the imperatives of section 28 of the Constitution alongside the Children’s Act. It is
not clear to me what a reasonable cap should be. This is a matter best left for final
determination by the Legislature. As the unfair discrimination cannot be justified, an
order that the capping of the age at two years is unconstitutional must therefore follow.
Relief
Having held that sections 25, 25A, 25B and 25C of the BCEA and the
corresponding sections of the UIF Act are inconsistent with the Constitution, it is
appropriate for this Court to make an order affording Parliament an opportunity to cure
the defects.
The Minister has informed this Court that her department is in the process of
initiating amendments to the legislation. Although this Court cannot second-guess what
those amendments will be, it suffices to state that all the parties involved in the matter
have a common understanding of the deficiencies in the provisions – save for the
arguments on the age cap.
The appropriate relief, with respect to the age cap, would be for it to be left to
Parliament to decide on whether it is indeed necessary, what factors to take into account,
TSHIQI J
34
and at what age it is appropriate to cap it, in the event it finds that it is appropriate to do
so.
Regarding the discrimination relating to the duration of the leave period between
birth mothers and other categories of parents, an order for interim relief, whilst affording
Parliament an opportunity to cure the defects, is appropriate.
The parties have made different submissions on how an interim reading-in could
be made. The Van Wyks propose an interim relief that entitles both parents the benefit
of four months parental leave independently. The Commiss ion prays for an order that
affords both parents collectively the benefit of four months’ parental leave, to be shared
between them such that they take turns at taking leave. It is envisaged by the
Commission that each employer would be notified in advanc e, as soon as reasonably
possible, of the election if a shared arrangement is chosen and the periods to be taken
by each parent. Sonke seeks an order to the effect that each parent, as defined in the
BCEA, be entitled to four months’ parental leave. The effect of the order sought by
Sonke would be that the total period of leave which both parents are entitled to is eight
months.
Although the Minister agrees that the confirmation should be granted, she does
not support the stance that both parents ought to be granted four months’ leave each, for
budgetary considerations.
The Minister proposes the suspension of the declaration of invalidity as a
complete remedy.
At the hearing in this Court, it became evident that the reading -in contained in
the order of the High Court has certain fundamental difficulties. Although it orders a
sharing of four months of parental leave, the 10 days’ parental leave available to fathers
has been taken away. It is not clear how the four months would be shared by the
respective parents, and how the rights of the birth mother will be protected in order to
TSHIQI J
35
ensure that she obtains the leave necessary in preparation for and recovery after birth.
An appropriate order should also seek to avoid abuse of leave by absent fathers.
I hold that interim relief along the following lines would be appropriate: the
current allowance of four months (for biological mothers) should be retained. Leave
should not be restricted to mothers but should extend to fathers as well. Where only
one of the parents is employed, such parent should be entitled to the full parental leave.
In the case of a biological birth, the mother must have preference in respect of the time
currently allocated as preparation for and recovery from birth. Subject to this
qualification, the parents should be entitled to share the available days as they choose.
In the event of disagreement, the leave contemplated in the relevant section shall be
apportioned between the parents in such a way that each parent’s total parental leave is
as close as possible to half of four months and 10 days. There should be a requirement
that a father who wishes to avail himself for paternity leave qualifies as one who has
assumed parental rights and responsibilities over the child as contempl ated in the
Children’s Act. The additional 10 days contemplated in section 25A should also be
allowed, giving a total of four months and 10 days leave to be shared between the
parents.
Lastly, in respect to the remedying of the corresponding UIF provisions, I find it
inappropriate for this Court to provide an interim reading -in that has an effect before
the suspension period lapses, as the UIF Act is regulat ed differently from the BCEA.
This Court does not have sufficient information at its disposal rega rding how the
benefits in the corresponding provisions of the UIF are calculated. Furthermore, while
financial considerations may not be relevant in assessing the constitutionality of a
provision, they may dictate caution when it comes to an interim remedy, particularly
provision, they may dictate caution when it comes to an interim remedy, particularly
when there may be more than one consti tutionally compliant solution. In the present
case, interim amendments to the UIF Act corresponding to those we make in respect of
the BCEA could have subst antial financial implications. In the c urrent regime, only
biological mothers in employment receive lengthy UIF benefits, up to a maximum of
17.32 weeks (approximately four months). There must be many instances of couples
TSHIQI J
36
where the mother is unemploy ed but the father is employed. If the emplo yed father
were now to be granted 17.32 weeks’ UIF benefit, an enormous additional burden might
be imposed on the UIF. It is thus preferable for the law -maker to decide the extent of
UIF benefits to be conferred on employed parents in a non-discriminatory manner.
However, there is the possibility that, despite the generous suspension period of
36 months, remedial legislation may not be brought into force during that period. In
that event, the declaration of invalidity in respect of the impugned provision s of the
UIF Act would come into force and there would be no legislative provision at all for
UIF benefits in respect of biological, adoptive and commissioning parents. Clearly, that
is untenable. Although this Court could at this stage provide a reading -in that will
become operative after 36 months, the eventuality for which such a reading-in provides
may never come to pass. Given that a reading-in in respect of the impugned provisions
of the UIF Act is more complex than in the case of the BCEA, it seem s preferable to
defer the question of such a reading-in. The order shall thus include a direction that this
question be timeously brought to the Court’s notice for supplementary relief, in the
event of it appearing likely that there will be a need for a reading-in remedy. The same
will apply to the two-year age cap in section 25B(1) of the BCEA.
Costs
As stated above, the Minister has not opposed this application. However , the
applicants have had to approach this Court in order to obtain an order of declaration of
invalidity. Consequently, the Minister should pay the costs of the application.
I therefore make the following order:
1. The Commission for Gender Equality is granted leave to appeal against
the High Court’s decision not to declare, as invalid and inconsistent with
the Constitution, the age limitation of two years in section 25B(1) of the
the Constitution, the age limitation of two years in section 25B(1) of the
Basic Conditions of Employment Act 75 of 1997 and section 27(1)(c) of
the Unemployment Insurance Act 63 of 2001 (UIF Act).
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2. The declaration made by the High Court, that sections 25, 25A, 25B and
25C of the BCEA dealing with maternity and parental leave, together with
the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are
invalid and inconsistent with the Constitution to the extent that they
unfairly discriminate between different classes of parents as to the length
of parental leave available to parents and as to the unemployment benefits
to which they are entitled, and the periods for which unemployment
benefits are paid, is confirmed.
3. It is declared that section 25B(1) of the BCEA and section 27(1)(c) of the
UIF Act are invalid and inconsistent with t he Constitution to the extent
that they limit parental leave and related benefits to the case where the
adopted child is below the age of two years.
4. The declarations of constitutional invalidity referred to in paragraphs 2
and 3 are suspended for a period of 36 months from the date of this order
to afford Parliament an opportunity to remedy the constitutional defects
giving rise to the constitutional invalidity.
5. Pending the coming into force of any remedial legislation as contemplated
in paragraph 4, the impugned provisions of the BCEA shall read as
follows, the changes being indicated by underlining:
(a) Section 25 of the BCEA shall read:
“25. Parental leave
(1) An employee who is—
(a) a single parent; or
(b) the only employed party in a parental relationship , is entitled
to at least four consecutive months’ parental leave.
(2) A female employee who is expecting the birth of a child may
commence parental leave—
(a) at any time from four weeks before the expected date of birth,
unless otherwise agreed; or
(b) on a date from which a medical practitioner or a midwife
certifies that it is necessary for the employee’s health or that
of her unborn child.
TSHIQI J
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(2A) Where section 25(2) does not apply, an employee may commence
parental leave on—
(b) the day that the employee’s child is born; or
(b) where section 25B or section 25C is applicable, the date
mentioned in section 25B(2) or section 25C(2) as the case may
be.
(3) No female employee who has given birth to a child may work for six
weeks after the birth of her child, unless a medical practitioner or
midwife certifies that she is fit to do so.
(4) An employee who has a miscarriage during the third trimester of
pregnancy or bears a stillborn child is entitled to parental leave for six
weeks after the miscarriage or stillbirth, whether or not the employee
had commenced parental leave at the time of the miscarriage or
stillbirth.
(4A) If both parties to a parental relationship are employed, the parties are
entitled in the aggregate to four months and ten days’ parental leave,
inclusive of any parental leave taken in terms of subsections (2) and
(3).
(4B) The remainder of the parental leave referred to in subsection (4A),
after deducting any parental leave taken in terms of subsections (2) and
(3), may be taken by the parties in such manner as they may agree,
including concurrently or consecutively, or partly concurrently and
partly consecutively, save that any such parental leave, inclusive of the
leave contemplated in subsections (2) and (3) must be taken by the
party concerned in a single sequence of consecutive days.
(4C) If the parties cannot agree on the manner in which the remainder of the
parental leave referred to in subse ction (4B) is to be taken, such
remainder shall be apportioned between the parents in such a way that
each parent’s total parental leave is as close as possible to half of four
months and ten days, provided that such leave is completed within a
period of four months from the birth of the child or, where applicable,
from the date referred to in section 25B(2) or 25C(2).
(4D) For purposes of subsection (4A), a party shall be deemed to be a party
(4D) For purposes of subsection (4A), a party shall be deemed to be a party
to a parental relationship if such a party has assumed parental rights
and responsibilities over the child as contemplated in the
Children’s Act, 2005 (Act No. 38 of 2005).
TSHIQI J
39
(5) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.
(6) Notification in terms of subsection (5) must be given—
(a) at least four weeks before the employee intends to commence
parental leave; or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(7) The payment of parental benefits will be determined by the Minister
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).”
(b) Section 25A of the BCEA shall be deleted.
(c) Section 25B of the BCEA shall read:
25B. Adoption leave
(1) An employee, who is an adoptive parent of a child who is below the
age of two, is subject to subsection (6), entitled to the parental leave
referred to in section 25(1).
(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive
parent by a competent court, pending the finalisation of an
adoption order in respect of that child,
whichever date occurs first.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to in subsection (2);
or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of adoption benefits will be determined by the Minister,
subject to the provisions of the Unemployment Insurance Act, 2001
(Act No. 63 of 2001).
TSHIQI J
40
(6) If an adoption order is made in respect of two adoptive parents, both
parties are entitled in the aggregate to four months and ten days’
adoption leave.
(6A) The adoption leave referred to in subsection (6), may be taken by the
parties in such manner as they may agree, including concurrently or
consecutively, or partly concurrently and partly consecutively.
(6B) If the parties cannot agree on the manner in whic h the adoption leave
referred to in subsection (6) is to be taken, such adoption leave shall
be apportioned between the parents in such a way that each parent’s
total adoption leave is as close as possible to half of four months and
ten days, provided that such balance is completed within a period of
four months from the adoption of the child.
(7) If a competent court orders that a child is placed in the care of two
prospective adoptive parents, pending the finalisation of an adoption
order in respect of that child, the two prospective adoptive parents are
entitled to leave in terms of subsection (6).
(d) Section 25C of the BCEA shall read:
25C. Commissioning parental leave
(1) An employee, who is a commissioning parent in a surrogate
motherhood agreement is , entitled to leave as stipulated in
section 25(1).
(2) An employee may commence commissioning parental leave on the
date a child is born as a result of a surrogate motherhood agreement.
(3) An employee must notify an employer in writing, unless the employee
is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one mo nth before a child is expected to be born as a
result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is
reasonably practicable.
(5) The payment of commissioning parental benefits will be determined
reasonably practicable.
(5) The payment of commissioning parental benefits will be determined
by t he Minister, subject to the provisions of the Unemployment
Insurance Act, 2001 (Act No. 63 of 2001).
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41
(6) Where there are two commissioning parents, they shall each be entitled
in the aggregate to four months and ten days’ commissioning parental
leave.
(6A) The commissioning parental leave referred to in subsection (6), may
be taken by the parties in such manner as they may agree, including
concurrently or consecutively, or partly concurrently and partly
consecutively.
(6B) If the parties cannot agree on the manner in which the commissioning
parental leave referred to in subsection (6) is to be taken, such
commissioning parental leave shall be apportioned between the
parents in such a way that each parent’s total commissioning parental
leave is as close as po ssible to half of four months and ten days,
provided that such balance is completed within a period of four months
from the birth of the child.
(7) In this section, unless the context otherwise indicates—
‘commissioning parent’ has the meaning assigned to it in section 1 of
the Children’s Act, 2005 (Act No. 38 of 2005); and
‘surrogate motherhood agreement’ has the meaning assigned to it in
section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).”
6. Not later than six months bef ore the expiry of the 36 -month suspension
period, the Minister of Employment and Labour, (Minister) must furnish
a report to the Registrar, on notice to the parties, as to whether remedial
legislation in respect of the BCEA and UIF Act has been brought int o
operation and, if such legislation has not been brought into operation,
when it is expected to be brought into operation and the further processes
that need to be completed in order for such legislatio n to be brought into
operation.
7. Upon the furnishing of such report, or in the absence of such report, any
of the parties may apply, insofar as it is necessary, for supplementary
relief to become operative upon the expiry of t he 36-month suspension
period. Such application shall be brought not later than fou r months
period. Such application shall be brought not later than fou r months
before the expiry of the suspension period, and its further conduct shall
be regulated by directions issued by the Chief Justice.
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42
8. The Minister must pay the applicants’ costs in this Court, including the
costs of two counsel where so employed.
Case CCT 308/23 Van Wyk and Others v Minister of Employment and Labour:
For the First and Second Applicants: N Rajab-Budlender SC, L Minné and S
Mirzoyev instructed by Webber
Wentzel
For the Third Applicant: M Letzler instructed by Bowman
Gilfillan Incorporated
For the Fourth Applicant: H Barnes SC, M Rasivhetshele and K
Ramela instructed by Norton Ros e
Fulbright South Africa Incorporated
For the Respondent: F Boda SC and J Langa instructed by
Office of the State Attorney,
Johannesburg
For the Amici: J Bhima and T Thumbiran instructed by
Lawyers for Human Rights
Case CCT 309/23 Commission of Gender Equality and Another v Minister of
Employment and Labour and Others:
For the First Applicant: H Barnes SC, M Rasivhetshele and K
Ramela instructed by Norton Rose
Fulbright South Africa Incorporated
For the Second Applicant: M Letzler instructed by Bowman
Gilfillan Incorporated
For the First Respondent: F Boda SC and J Langa instructed by
Office of the State Attorney,
Johannesburg
For the Second and Third Respondents: N Rajab-Budlender SC, L Minné and S
Mirzoyev instructed by Webber
Wentzel
For the Amici: J Bhima and T Thumbiran instructed by
Lawyers for Human Right