Landmark case in dispute of maternity leave in SA
Paternal time-off ‘unconstitutional’
A Gauteng couple has served the Department of Employment and Labour with a notice at the Joburg high court, challenging sections of the Basic Conditions of Employment Act as unconstitutional.
In a landmark case seeking to have paternal leave included as part of parental leave, with equal rights afforded to both parents of newborn children, the first applicant Werner van Wyk and second applicant, his wife Ika van Wyk, are seeking maternity leave changed to parental leave with equal rights to all parents.
The parties want the courts to declare the non-awarding of paternal leave to fathers of newborn children unconstitutional.
Their court application is supported by the Sonke Gender Justice as the third applicant, with the three parties arguing that sections 25 and 26 of the Basic Conditions of Employment Act No 75 of 1997 (BCEA) should be declared “unconstitutional in so far as they unfairly discriminate against fathers of newborn children by unjustifiably limiting the father’s rights to paternity leave in South Africa”.
The legal representatives for the applicants, Maud Letzler of Barter Mckellar Attorneys said the Van Wyks, whose child is now over a year old, initiated the case after Werner, a fulltime employee, was denied four months’ parental leave to look after his newborn child.
Letzler said Werner had to take a sabbatical so that his wife Ika, who is self-employed and runs two businesses, could return to work.
“Employees pay UIF [Unemployment Insurance Fund],” she said, adding that the awarding of paternity leave would not have financial implications on the employer.
In terms of Rule 16A, the notice filed in the Joburg high court, which Letzler has confirmed, was served to the department on Wednesday.
The applicants are seeking that section 25 and 26 of BCEA “be extended to ensure equal rights of all mother, fathers and same-sex parents of newborn children in South Africa; and that they:
• include circumstances where a father is the primary caregiver of the newborn child;
• allow for extended paternal and/parental leave in workplace leave policies;
• extend the definition of “maternity leave” to include “parental” and “care-giving” leave; and
• include the recognition of a new category of “peri-natal leave” for the pregnant, delivering and breastfeeding parents for a period of six weeks.
The BCEA and labour law amendments currently entitle an employee up to four months’ maternity leave and 10 consecutive days of parental leave to fathers.
“These prejudice the upbringing of the child, a child gravitates towards the mother because they have spent more time with her and the woman becomes the default parent,” said Werner. “We are asking for maternity leave to be changed to parental leave with equal rights to all parents.”
Co-executive director of Sonke Gender Justice Bafana Khumalo said its role in the case was part of a bigger campaign by the non-profit organisation and Men Care to advocate for the sharing of care in homes.
“We have been lobbying for years for the sharing of care in the home. Care work is carried out by women and has a negative impact on them. The sharing of care work improves the healthcare outcomes of women,” said Khumalo. “We have been pushing for parental leave, which takes into account samesex couples.”
Department of Employment and Labour spokesperson Teboho Thenjane declined to comment as the department is yet to study the document.
Ika owns and runs the Stella Group of companies as CEO and Werner was an actuary before giving up his job to look after their child.