On 25 October 2023, that Gauteng High Court per Sutherland DJP handed down judgment
declaring the provisions of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”)
relating to maternity-, parental-,adoption-and commissioning parental leave and the relevant
provisions of the Unemployment Insurance Act, 63 of 2001 (“UIA”) unconstitutional and invalid
for falling foul of the rights to equality and dignity in terms of Sections 9 and 10 of the
Constitution of the Republic of South Africa, 1996(“Constitution”).
The Van Wyk’s scenario exposed the need, for which may have advocated, for the reform of
labour law to reflect a gender egalitarian approach to parental leave benefits.
The court suspended the declaration of invalidity for two years in order for Parliament to affect
the required amendments to cure the unconstitutionality of the provisions of the BCEA and
UIA. In the interim, the court has ordered a reading of the legislation that affords all parents
4 consecutive month’s parental leave (parents of a qualifying child are in a position to share
the 4 months leave as they elect) until Parliament remedies the defect. In ordering interim
relief, the court held as follows: “In my view the appropriate immediate means by which the
remove inequality, in the interim period, is the proposal advanced by the Van Wyks; i.e., all
parents of whatever stripe, enjoy consecutive months’ parental leave, collectively. In other
words, each pair of parents of a qualifying child shall share the 4 months leave as they elect”