Cape Town - While a lot of noise has been made about the parental leave judgment recently handed down, it appears that in the immediate future nothing much will change as the matter still needs to go to the Constitutional Court.
Last month, The South Gauteng High Court handed down a judgment after a couple challenged the Basic Conditions of Employment Act (BCEA) relating to maternity, parental, adoption and the commissioning of parental leave.
Gauteng deputy Judge President Roland Sutherland declared that certain provisions of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act (UIF Act) were invalid as they were inconsistent with the Constitution.
He said the provisions unfairly discriminated between mothers and fathers.
Werner and Ika Van Wyk, who was represented by advocate Nasreen Rajab-Budlender SC, challenged the constitutionality of the act as it was out of kilter with how they wanted to run their family.
They launched a civil court action in November last year against the Employment and Labour Department, challenging sections of the BCEA related to its “unconstitutional” parental leave provisions.
The nuances of the case were explained by Rajab-Budlender in a webinar by Cliffe Dekker Hofmeyr last week, where she explained how the couple came to challenge the act.
“Mrs Van Wyk ran two businesses and Mr Van Wyk was employed. They both are highly skilled, educated individuals. Still, they were in the position that if Mrs Van Wyk took maternity leave, there was no one to run her businesses ‒ they are two small businesses.
“Mrs Van Wyk could not take maternity leave effectively or could not take more maternity leave than the minimum number of weeks. Otherwise, her businesses would have suffered.
“Mr Van Wyk decided that he would stay home and be the primary caregiver. So he went to his employer and indicated he wanted to take four months of parental leave. The employer, naturally, said: ”Our policies don’t provide for that, and our policies are largely in line with the Basic Conditions of Employment Act, and so you can have 10 days.“ But obviously, that would not have worked for them,” Rajab-Budlender explained.
“What happened for Mr Van Wyk is that he effectively had to take unpaid leave ‒ most of it was unpaid ‒ to stay home with his child.”
The Commission for Gender Equality joined as an applicant. Sonke Gender Justice was the third applicant, and then various amicus curiae joined.
Rajab-Budlender said, “I think the penultimate paragraph of the judgment summarises the position.
“In the final analysis, Judge Sutherland has gone further than our proposition and allowed parents to share the four months between them. As I read the judgment, there is a maximum of four months. It’s not that you can each take four months consecutively and ultimately get eight months. That is not the effect of the judgment.”
Labour law expert Jan du Toit from SA Labour Guide explained how the various sections of the BCEA worked.
“Section 25 of the act provides for four months' unpaid maternity leave for female employees. A pregnant employee may commence maternity leave at any time from four weeks before the expected date of birth unless otherwise agreed, or at any time a medical practitioner deems fit for health reasons of either the mother or baby.
“In terms of sections 25A of the Basic Conditions of Employment Act, an employee is entitled to 10 days parental leave upon the birth of the employee’s child. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent,” Du Toit said.
“Section 25B of the act deals with leave for adopting a child younger than two years. In terms of section 25B, one adoptive parent is entitled to 10 weeks adoption leave and the other to 10 days parental leave as per section 25A (depending on which one takes the 10 weeks leave).
“Section 25C provides for one of the commissioning parents in a surrogate motherhood agreement to take 10 weeks consecutive leave and the other, depending on who takes the 10 weeks leave, 10 days commissioning parental leave as per section 25A,” Du Toit added.
Rachel Ward Da Costa, 31, works for an NPO in Cape Town and is currently expecting her second child. Ward Da Costa felt that the Van Wyks were correct in pursuing their case.
“I hate using the primary parent and secondary parent term, but that's what it comes down to because I think the person giving birth automatically becomes the primary parent. You get three to six months of maternity leave depending where you work, which in most cases it’ll be the mother and you become the primary parent automatically, she says.
“You're spending all this time with this child, which is fantastic because you're recovering mentally and physically, but at the moment, the fathers or the other spouse get 10 days paternity leave, and by law that doesn't have to be paid.
“But when that person goes back to work, you are at home the whole day with this child for eight to nine hours, but then the other partner comes back home and they feel like spare parts ‒ like they're like on the sideline,” Ward Da Costa said.
“My partner once said to me: ‘I don't even feel like I know my child anymore’ because of how little time he got to spend with her, which was out of his control. When he got home from work and wanted to give me a break, it was like me telling him: ‘Oh no, she wants this or she wants that’ because of her different cries, and they feel left out, and that sucks.”
Ward Da Costa said that it would be great if the employers realised that they have a role to play.
“I still feel like the employers should somehow be forced to be on board with it, and especially when it comes to pay. My company's amazing, but the same can’t be said for everyone’s.”
Rajab-Budlender said while the judgment was a landmark one, nothing has changed as of now as the case will need to be heard in the Constitutional Court.
“The high court has now declared the statute unconstitutional and has suggested an interim reading in before the statute is amended. Still, our law requires that where you find a statute unconstitutional, it must be referred to the Constitutional Court for confirmation of that order of invalidity.
“The next step is that you have to move onto a confirmation proceeding in the Constitutional Court, so we’re in the process now of preparing that application. The minister will be entitled to answer and the other parties will answer, and then the Constitutional Court will set that down for hearing.
“In that process of hearing the confirmation of this judgment, the Constitutional Court effectively re-hears the matter. We will re-argue the matter before the Constitutional Court, they will be entitled to test any propositions with us, they will be entitled to test the relief granted by Judge Sutherland, and ultimately to decide to confirm the High Court order or decline to confirm it, and that the statute was actually constitutional,” Rajab-Budlender explained.
“There are various things that could still happen. The important takeaway from this is that the High Court judgment doesn’t change anything right now. The important thing here for employers is that it does not mean that men can come to you tomorrow and say: ‘I want four months’ leave’ and if it's contrary to your policy that you're required to do it because of this judgment.
“Employers are, of course, allowed to amend their policy at any point if they see the writing on the wall and they decide that they want to progressively work towards this. Then they are welcome to do so, but the act as it stood before the judgment currently still stands.”
The South African Parenting Programme Implementers Network (Sappin) said the verdict coincided with their Families Indaba that was held in Cape Town, and according to its director Wilmi Dippenaar, the news was received well.
“One of the most prominent questions discussed at the Indaba was how civil society, government and corporate can support the important role of fathers and increase positive father involvement.
“In countries where fathers receive parental leave, it has been shown that they are more involved with child-rearing throughout the child's life.
“Research also has shown that when fathers are more involved in their children’s lives in a positive way, children have better outcomes,” Dippenaar said.
“Sappin is therefore excited about the judgment and the opportunities it presents to improve the lives of children and families.”