The High Court has delivered a ground-breaking judgment declaring provisions of the Basic Conditions of Employment Act unconstitutional. The court declared sections of these acts unconstitutional for unfairly discriminating against mothers and fathers, surrogate and adopting parents when it comes to “maternity leave”.

It found that the provisions discriminate unfairly between mothers and fathers, and between birth-mothers and mothers through surrogacy and adoption, in relation to the amount of parental leave afforded to them. Read the judgement HERE

The application was launched by Werner van Wyk and his spouse, Ika van Wyk. During Mrs van Wyk’s pregnancy Mr van Wyk applied to his employer for the 4-month maternity leave benefit. The employer refused on the basis that its maternity leave policy did not provide for persons other than the birthing mother to receive the maternity leave benefit. The reason that Mr van Wyk applied for the maternity leave benefit was that his spouse was attending to the management of her two businesses and as a result, she was not able to take a 4-month leave period to provide the necessary nurturing for a newborn baby without unpredictable and potentially serious consequences for her businesses. Given his employer’s refusal of his application for the 4-month maternity leave benefit, Mr van Wyk negotiated an unpaid sabbatical period with his employer.  Mr van Wyk was not able to claim maternity benefits from the Unemployment Insurance Fund.

The Van Wyks’ scenario exposed the need, for which many have advocated, for the reform of labour law to reflect a gender egalitarian approach to parental leave benefits.

The Johannesburg High Court has given Parliament two years to “cure the defects” in the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act. In the meantime, all parents are entitled to four months “parental leave” collectively and, if they contribute, to UIF benefits. Surrogate mothers are also now entitled to four months’ maternity leave.

This leave entitlement also applies to both adoptive parents and surrogate mothers.

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