The Constitutional court declares sections 25, 25A and 25C of the BCEA dealing with maternity and parental leave, together with corresponding sections 24, 26A, 27 and 29A of the UIF Act invalid and inconsistent with the Constitution.
This is a case of discrimination between mothers and fathers and between birth mothers, adoptive parents and commissioning parents in a surrogate agreement.
Background
The Constitutional Court confirmed an order made by the Polokwane High Court, which amongst other things declares section 25 of the BCEA unconstitutional and invalid. The consequences of the order being that birth mothers, fathers, adoptive parents and commissioning parents be afforded the same rights pertaining to parental leave.
The matter was brought to the Polokwane High Court by a couple that found it unfair that the father of the child was only granted 10 days of parental leave when the couple had agreed that the father would be the primary caregiver of the child, given that the mother runs businesses and could not afford to take 4 months off work. Pursuant to being denied more parental leave by his employer, the father resorted to taking unpaid leave for a period of 6 moths, which negatively affected the financial situation in their home.
Legal Position
The current position of the legislation can be summarized as follows:
S25 provides for a total of four consecutive months’ maternity leave for a birth mother, of which 4 weeks may be taken prior to the date of birth. In terms of section 25A, another parent other than the birth mother is entitled to 10 days’ leave from the date of birth of the child.
The Constitutional Court found that the above-mentioned sections are unconstitutional in that they discriminate against parents based on gender and how they became parents (through birth, adoption or surrogacy). The court also found that the current provisions violate the human dignity of persons who are not birth mothers because they are not afforded the humane protection given to birth mothers.
“The protection of mothers to the exclusion of other parents has the unfortunate consequence of perpetuating the assumption that women are and should be the primary caregivers of children. The father is marginalized and deprived of the opportunity to involve himself as a parent in the upbringing of the baby during the early stages of life. The parents are also deprived of the choice to structure the child-nurturing responsibilities rather than being assigned caregiving and parental responsibilities based on gender. The provisions are also discriminatory to adoptive parents and parents in surrogate arrangements.”
Judgment
On this matter the court made an order that:
In biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth. Parents to share 4 months and 10 days of leave as they choose. If they disagree the leave days to be apportioned between them that the leave is as close as possible to half of the available days. The father who wishes to avail himself for paternity leave qualifies as one who has assumed parental rights and responsibilities over the child.
The court also had a duty of deciding whether capping of age for eligibility of leave for adoptive parents is discriminatory. Section 25B of the BCEA currently states that adoptive parents of children who are 2 years and younger are entitled to 10 days of parental leave. This has the implication that adoptive parents of children who are 2 years and older are not entitled to any parental leave days. To this the court ruled that there is a differentiation based on the age of the children parents adopt, and also a differentiation between adopted children themselves, based on their age.
“The differentiation amounts to discrimination as age is one of the specified grounds of discrimination in section 9(3) (of the Constitution). I also conclude that the discrimination is indeed unfair.”
The court left the relief for this injustice to Parliament to decide whether the age cap is necessary, what factors to take into account, and at what age it is necessary to cap it, in the event that it is appropriate to do so.
The declarations of constitutional invalidity are suspended for a period of 36 months from the date of the order to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.
Read the case https://www.saflii.org/za/cases/ZACC/2025/20.html
