In a surprised outcome from the High Court in Gauteng on 25 October 2023, it was announced that ss25, 25A, 25B and 25C of the BCEA was unconstitutional and contravened ss 9 and 10 of the Constitution.
What this means is that a matter was raised by two parents in that Maternity Leave is 4 months for a mother, yet the father and / or partner are provided 10 weeks or 10 days (respectively), which is deemed unequal treatment based on either gender or association to the child.
The Court has issued its finding and stated that the remedial course would be that applicants are successful in their claim and that the Minister of Labour and Employment need to engage Parliament over a course of 2 years in order to amend the BCEA and re-establish fair and equal terms when it comes to Maternity, Parental, Adoption and Commission (surrogate) aspects and clauses.
The removal of the inequality clauses are implemented immediately to which the parents to a child can equally enjoy the 4-consecutive months parental leave collectively.
This does not mean that both parents are entitled to 4 consecutive months but that the period can be shared equally e.g. 2-months for the one parent and 2-months for the other parent.
This however leaves room for abuse and the control measures must be stipulated by the Minister in its amendment of the Act.
This is a landmark case for both employers and employees (parents). Arguments were made by the Ministry as well as NEASA that the employers will have a difficulty to adjust and the risks of misuse is high. These are all aspects that needs to be addressed however, the Constitutional right has prevailed.
What must a company now do?
Although the Court has effectively suspended the invalidity of the judgement in order to give the Minister and Parliament an opportunity to consider the changes and outcome, the effect and remedial legislation must be enacted in such a manner that it does not infringe on another person's constitutional rights.
In other words, amending of contracts and policies to include such wording as announced and offered by the Court:-
"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 pair 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."
