Van Wyk V Minister of Employment and Labour: Unconstitutionality of Maternity and Parental Leave Provisions

A judgment delivered on October 8, 2019 (with corrections on October 25, 2023) addresses an application concerning the alleged unconstitutionality of sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which regulate maternity and parental leave. The core issue is whether these provisions unfairly discriminate against individuals, violating sections 9 (equality) and 10 (dignity) of the Constitution. The BCEA, alongside other labor statutes, is influenced by constitutional provisions on employment (sections 13, 18, 22, and 23).

The applicants in this case are Werner and Ika Van Wyk (a married couple), Sonke Gender Justice (a public advocacy organization for gender equality), and the Commission for Gender Equality (a Chapter 9 institution). The sole respondent is the Minister of Labour, who oversees the BCEA. Six amici curiae also joined the case. Four of these (Centre for Human Rights of the University of Pretoria, Solidarity Centre South Africa, International Lawyers Assisting Workers Network, and Labour Research Service) supported the applicants' arguments. The National Employers Association of South Africa (NEASA) sided with the Minister, opposing the criticism of the BCEA. One amicus did not participate in the hearings.

The court declared sections 25, 25A, 25B, and 25C of the BCEA, along with the corresponding provisions (sections 24, 26A, 27, 29A) of the Unemployment Insurance Fund Act 63 of 2001 (UIF Act), invalid. This invalidity stems from their inconsistency with sections 9 and 10 of the Constitution. The declaration specifies that these provisions unfairly discriminate between mothers and fathers, and between different sets of parents based on whether their children were born of the mother, conceived by surrogacy, or adopted.