In a High Court judgment released on 25 October, the court found section 25 of the Basic Conditions of Employment Act (‘the BCEA’) that regulates maternity leave unconstitutional. While the validity finding has been suspended for two years to give Parliament time to amend the BCEA, the court introduced interim relief that comes down to a temporary amendment of the laws regulating maternity leave in South Africa.
The separation of powers is a vital democratic principle enshrined in our Constitution. It aims to ensure the independence of the different branches of government. The power of the state is divided among the executive (Cabinet), the legislature (Parliament), and the judiciary (Courts of law), which are three interdependent but distinct components. For this reason, we don’t often see courts materially changing the wording of legislation, preferring to leave that function to Parliament.
Amending laws is a complex process that can easily have far-reaching and unintended consequences. There is a good reason why Parliament follows a lengthy process, including green papers, white papers, comprehensive consultations, public participation and submissions from interest groups. Courts are poorly equipped to replicate this process effectively.
We can only speculate why the court decided to take this approach. Our best guess is that the courts are increasingly frustrated with Parliament’s slow pace in passing new and amended legislation.
Although the new maternity leave section in the BCEA is not crystal clear and has some discrepancies and contradictions, we still view it as a positive step in the right direction.
The Minister will probably challenge this judgment through an appeal, which will halt its execution.
So, instead of focusing on the technicalities, let’s look at how this judgement changes the parental leave scenario in South Africa.
Firstly, all the existing forms of related leave, maternity, paternal, adoption and commissioning parental, are merged into one, and it is now called parental leave.
The basic principle is that if you are an employee and become a parent, you are entitled to 4 months unpaid leave, irrespective of how you become a parent.
Where both parents are employees, the four months of parental leave may now be shared between the two parents as they see fit. Both employees may also claim UIF maternity benefits on a pro-rata basis.
The only condition hereto is that where one of the parents is also the birthing mother, she must take a portion of that leave (anywhere from four weeks before the birth of the child until six weeks after the birth). The remainder of the four months may then be shared as the parents see fit.
Where only one of the parents is an employee, in other words, where the one parent is self-employed or unemployed, the employee parent is entitled to the entire four months of parental leave.
Any employees taking parental leave must inform their employers of any leave-sharing arrangement and provide their parental leave’s start and end dates four weeks before its commencement.
Any existing leave policies, including paid leave policies, employers have in place will now regulate all employees who are entitled to parental leave. Employers are advised to seek the assistance of labour law experts to review their policies and procedures and align them with this new development.