- The Johannesburg High Court has given Parliament two years to “cure the defects” in the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act.
- The court declared sections of these acts unconstitutional for unfairly discriminating against mothers and fathers, surrogate and adopting parents when it comes to “maternity leave”.
- In the meantime, all parents are entitled to four months “parental leave” collectively and, if they contribute, to UIF benefits.
- The ruling has to be confirmed by the Constitutional Court, and the Minister may note an intention to apply for leave to appeal it.
Sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act acquire been declared unconstitutional because, when it comes to “maternity leave”, they unfairly discriminate against mothers and fathers, surrogate parents, and those who adopt children.
Johannesburg High Court Judge Roland Sutherland suspended the declaration of invalidity for two years to give Parliament time to “cure the defects”.
However, in the meantime, Judge Sutherland has ruled that all parents are entitled to four months “parental leave” and, if they contribute, to UIF benefits.
The ruling has to be confirmed by the Constitutional Court, and the Minister of Labour may note an intention to apply for leave to appeal it.
The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality, with several other organisations acting as amicus curiae.
The sole respondent was the Minister of Labour, the custodian of the BCEA.
The contested sections are in Chapter 3 of the Basic Conditions of Employment Act which regulates the minimum leave that an employer must grant to employees who become parents. It provides for a total of four consecutive months of maternity leave for a birth mother and ten days paternity leave for a father from the date the child is born.
It also provides for “gender neutral” leave for parents who adopt children. One of the parents is entitled to consecutive ten weeks and the other parent to ten days leave, with the election being left up to the individuals.
With regards to children born via surrogacy, the Act guarantees leave for the genetically linked parent, however it says nothing about the surrogate.
The Act does not require an employer to pay any remuneration, but parents can claim from the UIF if they contribute.
Judge Sutherland, in his ruling this week, said it was plain and uncontroversial that there was a differentiation made between mothers and fathers, and between a birth mother and other mothers or parents.
He said the applicants argued that this was unconstitutional in that it was unfair discrimination and violated the dignity of all parents.
“Suggestions as to how equality and dignity might be achieved varies. The Van Wyk’s suggest that both parents share the four months leave according to their election. The Gender Commission and Sonke Gender suggest both parents each believe an equal and contemporaneous leave entitlement,” he said.
The Minister argued that the present suite of benefits compared favourably with other countries with similar socio-economic profiles, that the Act did not violate any constitutional guarantees. The National Employment Association of South Africa (an amicus) also opposed the relief sought as being “bad for business” and best left to Parliament.
“The crux of the case is about unequal treatment of persons,” Judge Sutherland said.
He said, save for breastfeeding, both parents were able to provide comprehensive care to their child and it was not cogent to contend that the BCEA does not discriminate on the grounds of gender.
The judge said from a deconstruction of the policy choices made in the Act, it could be inferred that the framers had a particular perspective of a family and had excluded “other modalities” which were no less legitimate.
While the Act was not an instrument to regulate family life or prescribe norms by which people should organise their lives, it must find application in a way that is in conformity with the Children’s Act and the Constitution.
“Upon the premise that the leave entitlements and duration of leave are provided for the purpose of the nurture of a baby or toddler, not merely to allow a literal physiological recovery from giving birth, it seems plain that the distinctions made in the BCEA are at odds with the objectives of the Constitution and the norms inherent in the Childrens’ Act.”
The first irrationality, the judge said, was the provision of a ten-week period of leave for commissioning and adoptive “mothers”, rather than a 16-week period leave provided for a birth mother.
“Why dock off six weeks because they did not experience physical childbirth? What impelling rationale could inform the need for the distinction to be made … No legitimate governmental objective is discernible. In my view the discrimination is unfair. Mothers in all three categories ought to be entitled to the same period of leave for the purpose of child nurture.”
Judge Sutherland said, to agreement a “paltry” ten days leave to a father “speaks to a mindset that regards the father’s involvement in early parenting as marginal”.
He noted that a major argument advanced in the case was that it was unfair on the mother to be deemed and doomed to be the principal caregiver, and that the “burden” of childcare should be equally shared with the father.
“A father who chooses to share in this experience for his own well-being, no less than that of his children and their mother, can indeed complain that the absence of recognition in the BCEA is unfair discrimination.”
Judge Sutherland said the example of the Van Wyk family was an illustration of this very denial. Mr Van Wyk is a salaried employee. Mrs Van Wyk runs her own business. They preferred Mrs van Wyk to return to work as soon as possible and for her husband to be the primary caregiver, but he was only entitled to ten days paternity leave and no UIF.
“The value of this example is to illustrate that their family model is not catered for by the BCEA and no sound acumen exists for it not to enact so.”
He said Parliament must “get to work to eliminate these equalities”.
In the interim, the proposal advanced by the Van Wyk’s “that all parents of whatever stripe, be pleased four consecutive months of parental leave collectively” was appropriate, the judge ruled.
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Engine Eye
Diary of an Englishman after he moves to South Africa….
**August 1**: Just got transferred with work from London, UK to our new home in Phalaborwa, Limpopo, South Africa. Now this is a town that knows how to live! Beautiful, sunny days and warm, balmy evenings. I watched the sunset from a deckchair by our pool yesterday. It was beautiful. I’ve finally found my new home. I love it here.
**September 1:** Really heating up now. It got to 31 today. No problem though. Living in air-conditioned home, driving air-conditioned car. What a pleasure to see the sun every day like this. I’m turning into a sun-worshipper – no blasted rain like back in London! Had the back yard landscaped with tropical plants today. Lots of palms and rocks. No more mowing lawns for me! Another scorcher today, but I love it here. It’s Paradise !
**October 1:** The temperature hasn’t been below 35 all week. How do people get used to this kind of heat? At least today it’s windy though. Keeps the flies off a bit. Acclimatizing is taking longer than we expected. Fell asleep by the pool yesterday. Got third degree burns over 60% of my body. Missed three days off work. What a dumb thing to do. Got to respect the old sun in a climate like this!
**October 25:** This wind is a bastard. It feels like a giant fucking blow dryer. And it’s hot as hell! The home air conditioner is on the blink and the repair man charged R200 just to drive over and tell me he needs to order parts from @#$# Johannesburg. The wife & the kids are complaining.
**October 30:** The temperature’s up around 40 and the parts still haven’t arrived for the fucking air conditioner. House is an oven so we’ve all been sleeping outside by the pool for 3 nights now. Bleeding R4 million house and we can’t even go inside. Why the hell did I ever come here?
**November 4:** Finally got the fucking air-conditioner fixed. It cost R1,500 and gets the temperature down to around 35 degrees. Stupid repairman. Fucking thief. If one more smart bastard says ‘Hot enough for you today?’ I’m going to fucking throttle him. Fucking heat! By the time I get to work, the car radiator is boiling over, my fucking clothes are soaking fucking wet and I smell like baked cat. Fucking place is the end of the Earth.
**November 9:** Tried to run some errands after work, wore shorts, and sat on the black leather upholstery in my car. I thought my fucking backside was on fire. I lost 2 layers of flesh, all the hair on the backs of my legs and off my fucking behind. Now the car smells like burnt hair, fried bum and baked cat. The Weather report might as well be a fucking recording – hot and sunny. Hot and sunny, Hot and fucking sunny. It’s been too hot to do anything for 2 bleeding months and the weatherman says it might really warm up next week. Fuck!!
**November 15:** Doesn’t it ever rain in this darn place? Water restrictions will be next, so my R5,000 worth of palms might just dry up and blow into the fucking pool. The only things that thrive in this hell-hole are the fucking flies. You don’t dare open your mouth for fear of swallowing half a dozen of the little buzzards!
**November 20:** Welcome to HELL! It got to 45 degrees today. Now the air conditioner is gone in my car. The repair man came to fix it and said, ‘Hot enough for you today?’ I wanted to shove the car up his backside. Anyway, had to spend the R2,500 of the mortgage payment to bail me out of jail for assaulting the stupid fool. Fucking PHALABORWA! What kind of sick, demented idiot would want to live here!
**December 1:** WHAT!!!! The FIRST day of Summer!!!!
You are fucking kidding me, right?
Earl Of Arms
A British man on safari walks into a bar far out in the reaches of a game reserve in Southern Africa, he stays at the bar for a while shooting the shit with the bartender and drinking like a fish, he offer to buy the barkeep a round and since no one else is within 2km of their small oasis of liquor the barkeep obliges. The englishman goes off to the bathroom to have a good old go at the porcelain, he\’s back and ready for a few more whiskeys. He\’s just sat down when suddenly in the distance he hears a scream. He looks over his shoulder and dismisses it as nothing, he turns to the barkeep and orders a drink, takes a sip and hears the scream again. He looks at the barkeep who just shrugs it off. A minute or two later he and the barman hear it again and go outside to take a look. They see a lone figure running towards them screaming, he spots them and lets out a cry, RUN!!!!! HE\”S COMING!!!!!
The barkeep and the Englishman both look at the terrified bedraggled sight before them, and try to calm him down, but he\’s completely inconsolable. They give him water and finally manage to get a word out of him but he struggles free from their grasp and run away screaming.
A few minutes later the same thing happens with a whole group of men running in and screaming, he\’s coming, he\’s coming the barkeep grabs hold of one of the men as he tries to sprint past the bar and tries to get information out of him, again no response other than terrified gibberish.
The barkeep and his customer are starting to get worried, they start to pack up before another group of horrified natives run up to the bar most of them flee but one tries to hide behind the bar, the barkeep pulls out a shotgun and points it at the terrified man\’s face, finally managing to coax some words out of him. \”He\’s coming for us, Vernon Koekemoer is coming for us, we have to hide!!! We have to get out of here.\” He gets up and tries to run but the barkeep grabs him, feeling trapped in a panic he grabs the barkeeps shotgun and blows his own head off. The Englishman and the barkeep look at each other starting to really panic now.
They look out of the window and off in the distance they see a tornado coming towards the bar, at the bottom of the tornado they see the hugest beast of a man they have ever seen, as he gets closer they spot that he is riding a rhinocerous and using a crocodile as a riding whip, with each smack of the crocodile across the back of the rhino the louder is screams and the faster it runs, the tornado following it getting ever larger.
The 2 look at each other and start to fortify their position, they\’ve got a gun and they\’re waaay to drunk to run, so they start piling bar stool and tables and anything they can get their hands on to make sure they\’ll be safe when he arrives. They\’re not gonna make it, they can see the man slowing down his rhino, by now the crocodile is nothing but reptile paste on the bruised rump of the half dead rhino, the rhino drops down dead from exhaustion and crashes to the ground right outside the bar the tornado loses it\’s last breath in a cloud of dust as the huge man crashes his way through the make shift barricade and charges up towards the bar where the 2 men have taken shelter, he grabs a bottle of the hardest liquor on the shelf and down the entire litre in 1 gulp, he peers over the bar sobbing and sees the 2 defenders cowering down behind the crates of beer, they look up at the mans\’ face and he stares at them with a look of complete and utter hopelessness, he stares at them for a half second and half screams, half sobs, \”Oh my god what are you still doing here!!! WE HAVE TO GET OUT OF HERE NOW!!!! Vernon Koekemoer is coming!!!!\”