By Tania Broughton, GroundUp
Certain sections of the Basic Employment Act and the Unemployment Insurance Act have been declared unconstitutional because – when it comes to “maternity leave” – they unfairly discriminate against mothers and fathers, surrogate parents and those who adopt children.
In the Johannesburg High Court, Judge Roland Sutherland suspended the declaration of invalidity for two years to give parliament the opportunity to “rectify the defects”.
The judge ruled that in the meantime all parents are entitled to four months of parental leave, and if they contribute to the Unemployment Insurance Fund (UIF), also to all UIF benefits.
The Constitutional Court has yet to ratify the judgment and the minister of labor and employment may apply for leave to appeal against the judgment.
The case was brought before the court by a couple from Polokwane, Werner and Ika van Wyk, Sonke Gender Justice, as well as the commission for gender equality, with several other organizations that acted as friends of the court.
The minister of labor was the only respondent.
The disputed sections deal with the minimum leave that an employer must grant to workers who become parents. This provides for a total of four consecutive months of maternity leave for a birth mother and ten days of paternity leave for a father from the date of the child’s birth.
It also provides for “gender neutral” leave for parents who adopt children. One of the parents is entitled to a consecutive ten weeks’ leave and the other parent to ten days’ leave – with the parents themselves being able to decide who gets what.
Regarding children born through surrogacy, the legislation guarantees leave for the parent with whom there is a genetic relationship – but it is silent about the surrogate.
The legislation also does not require an employer to pay any compensation, but parents can claim from the WVF provided they make a contribution to the fund.
Sutherland says in his judgment that it is clear and uncontroversial that a difference has been made between mothers and fathers, and between a birth mother and other mothers or parents.
He says the applicants have argued that this is unconstitutional, amounts to unfair discrimination and violates the dignity of all parents.
“Proposals on how to achieve equality and dignity vary. The Van Wyks suggest that both parents share the four months, as they prefer to do so. The gender commission and Sonke Gender Justice suggest that both parents are entitled to leave equally and at the same time,” said the judge.
The minister argued that the existing collection of benefits compares favorably with other countries with similar socio-economic profiles and that the legislation does not violate any constitutional guarantees. The National Employment Association of SA – one of the friends of the court – also opposed the application because it is “bad for business” and should instead be left to parliament.
“The crux of the case is about the unequal treatment of people,” Sutherland found.
Everyone needs cuddle time
He says that apart from breastfeeding, both parents can give comprehensive care to their child and it does not make sense to argue that the legislation does not discriminate on the basis of gender.
The judge says that when looking at the legislation, it can be deduced that its drafters had a specific family structure in mind and that other models – which are no less legitimate – were excluded.
Although the legislation is not an instrument to regulate family life or prescribe norms according to which people must organize their lives, there must be application in a way that is consistent with the Children’s Act and the Constitution.
It is about more than just physical recovery after a child’s birth, the judge found; it is also about nurturing a baby or child.
The judge found that ten weeks leave for adoptive mothers – as opposed to 16 weeks for a birth mother – is irrational.
“Why is it reduced by six weeks because they have not experienced physical childbirth? What compelling rationale might lead to that distinction? No legitimate objective is clear. In my opinion, the discrimination is unfair.
“Mothers in all three categories should be entitled to the same period of leave for the purpose of nurturing their children.”
A “measly” ten-day paternity leave also indicates a mindset that considers the father’s involvement in early parenthood as marginal, said the judge.
He says one of the arguments in the case was that it is unfair to regard the mother as the primary carer and to require her to play that role and that the “burden” of child care must be shared equally with the father become
“A father who chooses to participate in this experience for his own well-being, not just that of his children and their mother, can rightly complain that the absence of recognition in the Fair Employment Act is unfair discrimination.”
The judge says the Van Wyk family is an example of this. Werner van Wyk earns a salary and Ika runs her own business. They would prefer if Ika could return to work as soon as possible and for her husband to be the primary carer. However, he was only entitled to ten days paternity leave and no WVF payment.
“The value of this example is to illustrate that the law does not provide for their family model and that there is no valid reason for the legislation not to do so.”
The judge also says that parliament must get to work to correct these inequalities.
Meanwhile, the Van Wyk couple’s proposal that “all parents” jointly receive four consecutive months of parental leave is appropriate, Sutherland ruled.
- This report was originally posted on GroundUp and is used with permission.