When Werner and Ika van Wyk discovered they were expecting a child three years ago, they decided that Werner should be the primary caregiver. It’s a decision that has led the couple to the Constitutional Court, which on Friday will hear arguments in a case about inequalities in parental leave sparked by the couple’s parenting plan.
“We’re very excited. We were hoping that this would get attention at the highest level,” Ika van Wyk told Daily Maverick.
In 2022 the couple brought a challenge to sections of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund Act (UIF Act), which currently differentiate between the kind of parental leave offered to mothers and fathers and to parents whose children are adopted or conceived through surrogacy.
After the birth of their son, James, the couple had wanted Werner to take parental leave of four months to be their son’s his primary caregiver. Ika, who runs a jewellery business from their home in Polokwane, planned to continue working during that time. Werner was denied paid leave and took four months off, unpaid, to care for their baby.
“For me, it just made sense. When we looked at it, if I could take paternity leave it would make a lot of financial sense,” said Werner.
When he tried to apply for leave, his then-employer informed him that the company policy and BCEA only made provision for fathers to take 10 days of paternity leave and anything beyond that would be unpaid.
In challenging the law in court, the Van Wyks noted that the BCEA and UIF Act discriminate unfairly among different categories of parents. The law provides four months of maternity leave to mothers who have given birth to their children, 10 weeks’ maternity leave to adoptive parents, 10 weeks to parents who conceive through surrogacy and 10 days for fathers.
Sonke Gender Justice and the Commission for Gender Equality, which were also parties in the case, argued that both parents should be entitled to an equal amount of parental leave, while the Van Wyks argued that parents should be allowed to split the allocated time as they saw fit. In the High Court ruling, Deputy Judge President Roland Sutherland ruled that the parental leave sections of the laws conflicted with sections 9 and 10 of the Constitution, which guarantee equality and human dignity.
“To accord a paltry 10 days’ leave to a father speaks to a mindset that regards the father’s involvement in early parenting as marginal. In my view, this is per se offensive to the norms of the Constitution in that it impairs a father’s dignity. Longstanding cultural norms that exalt motherhood are not a legitimate platform for a cantilever to distinguish mothers’ and fathers’ roles,” Sutherland wrote in his judgment.
He added that denying parents the right to decide how to take care of their small children impairs their dignity.
Sutherland ordered that Parliament should remedy the sections of law which conflict with the Constitution and in the interim, parents be allowed to split the four months of parental leave as they see fit.
Read more: Four months’ leave no longer restricted to new mothers only
Four plus four
In the case before the Concourt, Sonke wants the court to go further, arguing that it should extend the parental leave provisions to allow both parents to obtain four months of leave regardless of whether the child is as a result of natural birth, adoption or surrogacy.
Vanessa Jacklin-Levin, attorney for Sonke, says the High Court ruling “disrupts the family order”.
“It makes the incorrect assumption that one parent must work and the other must be at home. With respect, this suggests that a family must be divided in the comprehensive nurturing of a child and does not contemplate that a family comprised of both parents are able to simultaneously care for a child during parental leave,” Jacklin-Levin said.
“Having recognised that parental leave is in the best interest of a child, the High Court failed, in Sonke’s respected submission, to provide both biological parents with the opportunity to be at home with the child,” she said.
Sonke added that the court could also consider a four-month allocation in which both parents could choose to take two months off work simultaneously.
“Certainly, the manner in which both parents elect to utilise the allocation of four months, be it simultaneously or individually, would be dependent on both parents’ requirement and the best interest of the child,” Jacklin-Levin said.
Sonke argues that the leave regime afforded to biological parents should be provided to same-sex couples and those becoming parents through surrogacy.
Adoptive parent rights
The Commission for Gender Equity (CGE) is in agreement with most of the submissions made by the Van Wyks and Sonke, but has called on the court to pay more attention to the disparities in the rights of adoptive parents.
The BCEA currently allows 10 weeks leave for one adoptive parent, but only if the child adopted us under the age of two. The CGE argues that this distinction is arbitrary.
“Adoptive children of all ages require focused and consistent parental care on arrival in their new family in order for the adoption to be successful. The care and attention required by adopted children do not lessen with age. Rather, older children require more attention, care and time investment on arrival in an adoptive family in order to prevent a breakdown in placement and to ensure that healthy and effective bonding occurs,” the CGE says in papers before the court.
The commission adds that the difference in benefits for those adopting children over the age of two “is reducing the likelihood of children in South Africa being adopted”.
“The BCEA and UIF Act’s message to adopted children that they are less deserving or needing of parental care on account of their adoption unequivocally impacts on such child’s dignity,” the commission argues.
Labour concerns
The Department of Labour, the main respondent and custodian of the two laws in question, has chosen to abide by the Concourt ruling although it had opposed the High Court matter. In a written submission to the court, the department explained this about-turn, saying the minister chose to focus on “the work needed to inform the amendments to the BCEA and UIF Act”.
Labour Minister Nomakhosazana Meth, who took over the department under the Government of National Unity, added that due to several parties joining the case as amici, she felt it was necessary to explain some of the practical implications of the changes proposed by different parties. While the BCEA creates the parental leave regime, the UIF is the law that gives effect to some of its provisions, by allowing parents to claim UIF benefits where the company does not pay the full salary during the leave periods. Meth noted that changes to the law could impact the UIF’s ability to make such payments.
In the 2020/21 financial year, the UIF paid maternity and adoptive benefits amounting to R1,3-billion. In the same year, the UIF paid R14.9-billion in unemployment benefits. Meth noted that the scheme proposed by Sonke, in which each parent is entitled to four months of leave, would put immense financial strain on the fund.
“The UIF is already paying a substantial amount of money towards employees for maternity, adoption and parental leave. The UIF costs towards paying for unemployment benefits are growing with each quarter that unemployment rates increase and, in addition, the UIF is obliged to meet its obligations towards those applying to receive maternity, adoption and parental leave benefits … In a scenario where both parents would be entitled to claim for benefits for four months’ leave from the UIF (where they are eligible to do so), this would amount to a substantial amount that would overburden the UIF and ultimately make it impossible for the UIF to meet its obligations to those who contribute to the UIF,” Meth said in her court submission.
She added that having both parents out of work for four months would “create an untenable situation for employers, the UIF and the economy overall”.
Meth has also argued that when giving its final order, the court should be careful not to overstep into the domain of the legislature and allow lawmakers to amend the problematic sections of the BCEA and UIF Act.
Friends of the court
Five organisations have asked to enter as Amicus Curiae (Friends of the Court) to offer additional arguments and information to the court. They are the Centre for Human Rights at the University of Pretoria, Solidarity Centre of South Africa, International Lawyers Assisting the Workers Network, Labour Research Service and the Centre for Child Law.
In a joint submission, the organisations point out that the unequal care burden on women is “the most significant barrier to women’s success at work over the past century”.
“In what has been coined the ‘motherhood penalty’, a woman being employed during the first 10 years after the birth of her first child declines significantly due to child-rearing responsibilities. The statistics are telling: approximately 24% of women leave the labour force in the first year after the first birth of their first child, with 17% of women still being absent five years later,” the organisations say.
The organisations also provided the court with data collected by the International Labour Organisation of countries that offered parental leave to either parent. The list includes both developed and developing countries, with periods ranging from fourweeks to 156 weeks in some. Burkino Faso, Chad were two of the African countries on the list which both offered 52 weeks to either parent in 2013, when the list was drawn up.
Read more: South Africa leads the continent in offering more paternal leave to fathers. How to make sure both parents benefit
While the Van Wyk’s admit they don’t have all the answers on how the parental leave regime should play out, they believe South Africans are ready to start looking at it differently. Werner notes that during the global Covid-19 pandemic, many fathers were forced to work from home.
“There are a set of men who would have looked at it and said, I wish I could spend more time with my kids. If you look at it, across the world, birth rates are dropping. Part of the reason is probably that it is hard to have kids. This is a way that the law could be more sensitive to those who want to have kids,” he said.
Ika added that many women feel the pressure to “do it all” as a mother.
“I don’t believe it is truly possible to do it all. Having a husband who can take on some of that pressure has made me a more balanced and mentally healthy adult. I would have probably broken my heart, my spirit and my back trying to do it all,” she said.
Ika added that where husbands want to take on more childcare responsibilities, society should encourage, not hinder them.
“I have never been more in control from a mental health perspective. (Our choice) has given us a healthier family balance,” she said. DM