Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213; [2024] 1 BLLR 93 (GJ); (2024) 45 ILJ 194 (GJ); 2024 (1) SA 545 (GJ) (25 October 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION,

JOHANNESBURG

Case no: 2022-017842

REPORTABLE

OF INTEREST TO OTHER JUDGES

In the matter between:

WERNER VANWYK First Applicant IKAVANWYK Second Applicant SONKE GENDER JUSTICE Third Applicant COMMISSION FOR GENDER EQUALITY Fourth Applicant And MINISTER OF EMPLOYMENT AND LABOUR Respondent As Amici Curiae: CENTRE FOR HUMAN RIGHTS, UNIVERSITY OF PRETORIA First Amicus Curiae SOLIDARITY CENTER, SOUTH AFRICA Second Amicus Curiae INTERNATIONAL LAWYERS ASSISTING WORKERS NETWORK Third Amicus Curiae LABOUR RESEARCH SERVICE Fourth Amicus Curiae NATIONAL EMPLOYMENT' ASSOCIATION OF SOUTH AFRICA(NEASA) Fifth Amicus Curiae SIYASANGA NJAMBATWA Sixth Amicus Curiae

This judgment has been delivered by uploading to the digital database of the Gauteng Division 'of the High Court of South Africa on 25 October 2023 at 10h00 and by delivery by email to the parties.

ORDER

(1) It is declared that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001 (UIF Act), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions: -

(a) Unfairly discriminate between mothers and fathers;

(b) Unfairly discriminate between one set of parents and another on the basis of whether their children-

i. Were born of the mother.

ii. Were conceived by surrogacy.

iii. Were adopted.

(2) The declaration of invalidity is suspended for two years from the date of this judgment to allow Parliament to cure the defects.

(3) Pending remedial legislation being enacted, the provisions shall be read as set out below: -

(4) In section 25(1), the provisions are deleted and substituted with:

'An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months' consecutive months' parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:

(a) One or other parent shall take the whole of the period, or

(b) Each parent shall take turns at taking the leave.

(c) Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated'.

(5) In section 25(2) the word 'employee' shall be substituted with the word 'pregnant mother'

(6) In section 25, wherever the word 'maternity' appears it shall, where the context requires, be read as 'parental'.

(7) Section 25A (1) is deleted and substituted with:

'An employee who is a parent of a child is entitled to the leave stipulated in section 25(1)'.

(8) Section 25A (2)(a) is amplified by the addition after the word 'born': 'subject to the provisions of section 25(2)'

(9) Section 25B(1)(b) is deleted and substituted with: 'the leave stipulated in section 25(1)'.

(10) Section 25B (6) is deleted and substituted with:

'If an adoption order is made in respect of two adoptive parents, they shall each. be entitled to leave as stipulated in section 25(1)'.

(11) In Section 25C (1) the provisions are deleted and substituted with:

'An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).'

(12) Section 25C (6) is deleted and substituted with:

Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).

(13) The provisions of sections 25 (7), 25A (5) and 25B (5) and 25C (5) and the corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.

(14) The costs of the first, second, third and fourth applicants, including the costs of two counsel where so employed, shall in accordance with the Biowatch principle, be borne by the Minister of Labour.

JUDGMENT

Sutherland DJP:

Introduction

[1] This application is about allegations of unconstitutionality of sections 25, 25A, 258 and 25C in the Basic Conditions of Employment Act 75 of 1997 (BCEA) which deal with maternity and parental leave. [1] The BCEA is one of a suite of statutes that regulate employment and labour relations. The font of the value choices in these statutes

lies, in particular, in sections 13, 18, 22 and 23 of the Constitution which touch on employment. Section 9 of the Constitution

on the right to equality and section 10 of the Constitution on the right to dignity, of course, pervade every aspect of life.[2] The present controversy is about whether these particular provisions in the BCEA are unconstitutional because they unfairly discriminate

against persons in violation of section 9 or 10 of the constitution.

[2] There are three sets of applicants. The first and second applicants are Werner and lka Van Wyk, a married couple and parents of a child. The second applicant is Sanke Gender Justice whose role is public advocacy in support of gender equality. The Third applicant is the Commission for Gender Equality (CGE), a Chapter 9 institution. The sole respondent is the Minister of Labour who is the custodian of the BCEA.

[3] In addition, there are 6 entities who joined as amici curiae. Four of them, the Center for Human Rights of the University of Pretoria, Solidarity Center South Africa, International Lawyers Assisting Workers Network and the Labour Research Service advance a common argument in support of the applicants' criticism of the BCEA. A fifth amicus, is the National Employers Association of South Africa (NEASA), who makes common cause with the Minister of Labour in opposing the criticism of the BCEA. The 6th amicus did not participate in the hearing.

[4] The contested sections are in chapter 3 of the BCEA. This chapter regulates the minimum leave that an employer must grant to employees in respect of several circumstances. The policy norm informing the statutory regulation of leave is that employees should be entitled to time off work for a guaranteed minimum duration under specified circumstances, a right which does not exist in terms of the common law. As such, this is a quality-of-life-policy choice. Accordingly, the first basic benefit the BCEA creates is paid annual leave, stipulated in section 20 and 22. The second basic benefit, stipulated in section 22, is a minimum duration of paid leave to recover from illness. Third, in section 27, provision is made for three days paid family responsibility leave in every leave cycle; plainly intended to cater for a response to a family emergency.

[5] A fourth category of leave relates to the relationship of the employees qua parents to their children. This guaranteed period of leave dos not compel an employer to pay to employee. Sections 25, 25A, 25B, 25C, and 26 regulate the granting of such leave. The most recent amendments, ie, Sections 25A - 25C were introduced by Act 3 of 2018 and came into effect on 1 January 2020.

[6] The cited provisions of the BCEA differentiate three categories of child. A child born of a mother, a child born by surrogacy, and an adopted child.

[7] A birth-mother's circumstances are dealt with in section 25 and section 26. Section 26 addresses explicitly the physiological

dimension of pregnancy and of child nurture immediately post-birth. A mother shall not be permitted to perform work hazardous to her health or that of the child during pregnancy and for 6 months after birth. Section 25(3) forbids a mother working for 6 weeks after the date of birth unless a doctor or midwife approves thereof.

[8] Section 25 goes on to provide for a total of 4 consecutive months' maternity leave for a birth-mother, of which one month may be taken prior to the date of birth. In terms of section 25A (1) and 25A (2)(a) a father is entitled to 10 days leave from date of birth of the child.

[9] Section 258 deals with an adopted child. The recognition of leave for a parent in this category is limited to a child who is not more than two years old. The section recognises both adoptive parents. It must be read with section 25A. One parent is entitled to 10 consecutive weeks leave and the other to the 10 days leave alluded to in section 25A. The parents exercise this election. Obviously, no provision is made for physiological recovery. The provisions are gender neutral and a pair of same-sex parents is not distinguished from a heterosexual pair. The period of 10 weeks leave is 6 weeks less than that to which a birth-mother is entitled, i.e. 16 weeks/ 4months.

[10] The third category of child is one born via surrogacy. The leave is guaranteed for the genetically linked parents, called the 'commissioning parents' in the statute. The Section says nothing whatever about the surrogate herself. Section 25C regulates this category of leave. The entitlements are identical to that provided for adoptive parents; ergo, 10 weeks or 10 days.

[11] The guaranteed leave in Section 25A, 25B and 25C which is compulsory for an employer to grant, as alluded to above, does not require an employer to pay any remuneration. The effect of the BCEA is that the employee has the time off work and has job security upon return to work. In all three categories the employee on this type of leave may claim a financial benefit from the Unemployment Insurance Fund in such sums as are determined by the Minister of Labour.[3] It is commonplace for major employers to contract with employees to grant leave to cater for new-borns. That phenomenon does not bear on the jurisprudential issues at stake in this case.

[12] It is plain and uncontroversial that there is a differentiation made between mothers and fathers and between a birth-mother and other mothers or parents.

[13] The claims made and relief which is sought by the applicants, in simple terms can be described thus:

(1) Section 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure provide so is unfair discrimination and violates the dignity of all parents. Suggestions as to how equality and dignity might be achieved varies: the Van Wyks' suggest that both parents share the 4-months leave according to their election; the Gender Commission and Sonke Gender suggest both parents each have an equal and contemporaneous leave entitlement.

(2) The differentiation in the duration of prescribed leave available to each of the three classes of parents, i.e. a birth mother and father; adoptive parents and parents of a child born through surrogacy, constitutes unfair discrimination and violates the dignity of all parents. It is contended that all categories should enjoy an equal duration of leave.

(3) Furthermore, the notion that the prescribed leave is available to adoptive parents only in respect of a child of less than two years of age is challenged as irrational and as unfair discrimination.

[14] The Minister argues that the present suite of benefits in the BCEA compares favourably with other states' benefits more especially if appropriate jurisdictions are chosen to compare, that choice being directed by having regard to countries which have socio-economic

profiles similar to that of South Africa.

[15] Resistance by the Minister to the challenges to the BCEA is based on the proposition that what is in the statute does not violate any constitutional guarantees. This is, in a limited sense, technically true, because the true location of the criticism is what is not in the BCEA, but such distinction is unhelpful in conducting the analysis. Furthermore, the Minister contends that the controversy put before the court is not suitable for judicial adjudication because it is intrinsically a matter of social policy involving resource-allocation which is subject matter better left to Parliament to evaluate and make choices. NEASA also opposes the relief sought as supposedly bad for business and shares the Minister's view that the controversy should be left to Parliament to address. Their views are addressed discretely hereafter.

The approach to the adjudication of the challenge of unconstitutionality

[16] The crux of the case is about unequal treatment of persons. The approach to the resolution of a controversy about inequality is that set out in Harksen v Lane [1997] ZACC 12; 1998 (1) SA 300 (CC) at para [54] per Goldstone J:

[54] .... it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on s 8 of the interim Constitution [section 9 of the final Constitution] They are:

(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to

discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to 'discrimination'? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to 'discrimination', does it amount to 'unfair discrimination'? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution).'

(emphasis added)

Is there unfair discrimination in the provisions?

[17] That there is differentiation on grounds of gender requires no further explication. There is also differentiation between categories

of parenthood. The controversy is therefore engaged at the second stage of a Harksen enquiry: is there discrimination per se and if so, is it unfair.

[18] It seems to me that identifying the physiological aspect of a birth-mother's experience and treating a birth-mother discretely and differently is not discrimination as contemplated. The objective facts about pregnancy and child-birth are self-evident and that experience is not shared by anyone other than another birth-mother. However, that consideration is not truly significant in this case because the proper location of the controversial policy choices evident in the BCEA is in respect of child-nurture, not merely a birth-mother's experience of pregnancy and child-birth per se and her need for a physiological recovery period. In respect of nurture, save for breast-feeding, both parents are able to provide comprehensive nurture to their child, and in this regard it is not cogent to contend that the BCEA does not discriminate on grounds of gender.

[19] The logic intrinsic in the controversial provisions is that one parent is a primary caregiver and the other is an ancillary parent. Because the scheme of the BCEA is that birth-mother is par excellence the primary caregiver, she therefore gets 4 months' maternity leave. The ancillary father gets 10 days leave. The commissioning mother in respect of a surrogacy birth (ie the genetic mother) who experiences no physiological trauma, gets 10 weeks leave; 6 weeks less than a birth-mother. The rationale for this difference can only be a weighting for the absence of a need for a physiological recovery.[4] A similar mind-set informs the leave period for the adoptive parent - construed implicitly to be -typically- a 'mother', though the provisions do allow for a broader application to same-sex couples.

[20] By deconstructing the policy choices inherent in the scheme of the sections, it can be inferred that the framers perspective of the family is that the relationship between the parents and their respective relationships with their child are asymmetrical. It cannot be denied that such a dynamic is commonplace in society. However, such a modality, if applied to the exclusion of other

modalities, does not allow space for the other modalities, which are no less legitimate having regard to the egalitarian norms espoused in the Constitution. Thus, for a family in which an egalitarian dynamic prevails, and in which, therefore, both parents are, in equal measure, according to their abilities, comprehensively engaged in the work of nurturing their child, the statute affords no recognition and indeed facilitates a disruption to the social dynamic which prevails in that family.[5]

[21] True enough, it must indeed be borne in mind that the BCEA is a statute which addresses minimum benefits in relation to employment

and is not an instrument to regulate family life or prescribe norms by which free people should organise their family life. The state does nevertheless intervene in that realm but does so in other statutes, of which the Childrens' Act 38 of 2005 is of foremost importance in relation to the controversy in this case. Nonetheless, the BCEA must find application in a way that is in harmony with the Childrens' Act no less than with the Constitution.

[22] Chapter 15 of the Childrens' Act deals with adoption. Section 229 states that the purpose of adoption is to 'protect and nurture children by providing a safe healthy environment with positive support and promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime'. It must follow that section 258 of the BCEA was enacted to facilitate the achievement of these goals. The Childrens' Act does not address the practical conditions under which a child who is adopted must be 'received' by the adoptive parents and the process

of establishing a bond between the child and both adoptive parents be accomplished. Chapter 19 of the Childrens' Act regulates surrogate motherhood. Obviously, save for the experience of an actual pregnancy, the position of the commissioning mother and father are indistinguishable from a birth-mother and father. Chapter 3 of the Childrens' Act deals with parental 'responsibilities and rights.' These apply to all three categories of child as identified in the BCEA. The provisions of this chapter stipulate, as a norm, equal duties and rights by each parent. Married partners are addressed in sections 19 and 20 in those express terms. The circumstances of unmarried parents give rise, in sections 20 and 21, to differential treatment of the father, to cater for potential fluid relationships between father and mother and the de facto intimacy or remoteness of the father's involvement with the mother and with the child. This variable does not intrude on the jurisprudential issues at stake.

[23] Upon the premise that the leave entitlements, and duration of the 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 sections 9 and 10 of the Constitution and also at odds with the norms inherent in the

Childrens' Act.

[1] The relevant portions of the provisions of the BCEA are: 25 Maternity leave

(1) An employee is entitled to at least four consecutive months' maternity leave.

(2) An employee may commence maternity leave-

(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or

(b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child.

(3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.

(4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity

leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.

(5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-

(a) commence maternity leave; and

(b) return to work after maternity leave.

(6) Notification in terms of subsection (5) must be given-

(a) at least four weeks before the employee intends to commence maternity leave;

or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(7) The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (63 of 2001).

25A Parental leave

(1) An employee, who is a parent of a child, is entitled to at least ten consecutive days' parent al leave.

(2) An employee may commence parental leave on

(a) the day that the employee's child is born; or

(b) the date

(i) that the adoption order is granted; or

(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to

(a) commence parental leave; and

(b) return to work after parental leave.

(4) Notification in terms of subsection (3) must be given

(a) at least one month before the

(i) employee's child is expected to be born; or

(ii) date referred to in subsection 2 (b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act 63 of 2001).

25B Adoption leave

An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to

(a) adoption leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

(2) An employee may commence adoption leave on the date

(a) that the adoption order is granted; or

(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption

order in respect of that child,

whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to

(a) commence adoption leave; and

(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given

(a) at least one month before the date referred to in subsection (2); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act 63 of 2001).

(6) If an adoption order is made in respect of two adoptive parents, one of the adoptive parent s may apply for adoption leave and the other

adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.

(7) If a competent court orders that a child is placed in the care of two prospective adoptive parents pending the finalisation of an order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective

adoptive parent

may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.).

25C Commissioning parental leave

An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to

(a) commissioning parental leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

(a) commence commissioning parental leave; and

(b) return to work after commissioning parental leave.

(a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act 63 of 2001) If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred t o in section 25A: Provided that the selection of choice must be exercised at the option of the t wo commissioning parents.

(6) In this section, unless the context otherwise indicates

'commissioning parent' has the meaning assigned to it in section 1 of the Children's Act, 2005 (Act 38 of 2005); and

'surrogate motherhood agreement' has the meaning assigned to it in section 1 of the Children' s Act, 2005 (Act 38 of 2005).

[2] Section 9 of the Constitution:

Equality

1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Section 10 of the Constitution:

Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

[3] See: Unemployment Insurance Act 63 of 2002 (UIF Act), sections 24, 26A,27, 29A.

[4] It was argued by the applicants that the ostensible reason for differential periods of leave is that the legislature deemed adoptive or surrogacy children as deserving of less nurture. In my view it is unnecessary to attribute a malicious intent to the

differential. Rather, it is simply the result of a failure of imagination and a bean-counting approach to determining time off

work. Reference was also made to Wilkinson v Crawford 2021 (4) SA 323

[5] See: SAPS v Barnard 2014 (6) SA 123 (CC) per Moseneke J at para [28] to [39]. At para [28] in particular, it is held that: 'Our Constitutional democracy is founded on explicit values. Chief of these, for present purposes, are human dignity and the achievement of equality in a non-racial, non-sexist society under the rule of law.'

[5] See: SAPS v Barnard 2014 (6) SA 123 (CC) per Moseneke J at para [28] to [39]. At para [28] in

particular, it is held that: 'Our Constitutional democracy is founded on explicit values. Chief of these, for present purposes, are human dignity and the achievement of equality in a non-racial, non-sexist society under the rule of law.'

[6] The Canadian decision in British Columbia Rights Tribunal in re A v Board of Education of School District no 36 (Surrey) [2020] BCHTD No 167 at para [125] was cited by the Minister as an example of a justified distinction between a birth-mother and an adoptive mother. However, the case addressed a preliminary procedural issue and ordered the case to a merits hearing. The controversy was about a reduction of benefits to adoptive parents in order to equalise benefits to all classes of parent. It considered a collective agreement not a statute. The distinction was an issue because there were separate leave-benefits for pregnancy per se, which were different to 'parental' leave.

[7] See: Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC). The issue was whether the Matrimonial Property Act 88 of 1994, because it distinguished spouses married in or out of community of property, with the effect that a spouse in community could not sue the other spouse for bodily injuries, was unconstitutional. It was held that such an effect served no legitimate governmental purpose and was declared unconstitutional. At para [51] the distinction, in this context was described as a relic of the common law which was not useful. I was also referred to MA v State Information Technology agency 2015 (6) SA 250 (LC) where Gush J was required to consider an employer policy on maternity leave. The policy was applied only to mothers and not to commissioning parents. A male spouse in a same-sex union was denied 'maternity' leave. The Labour Court held that the policy was

discriminatory. The cause of action was that the 'mothers only' application was in contravention of section 6(1) of the Employment

Equity act 55 of 1998. The Labour court did not interpret the BCEA or deal with whether or not the BEGA was unconstitutional. The rationale of that court is at paras [13) to [18). The thesis is that the policy had to be consistent with the best interest of the child as contemplated in section 28 of the Childrens' Act. The decision does not however contribute anything to the resolution of jurisprudential controversy before this court.

[7] See: Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC). The issue was whether the Matrimonial Property Act 88 of 1994, because it distinguished spouses married in or out of community of property, with the effect that a spouse in community could not sue the other spouse for bodily injuries, was unconstitutional. It was held that such an effect served no legitimate governmental purpose and was declared unconstitutional. At para [51] the distinction, in this context was described as a relic of the common law which was not useful.

I was also referred to MA v State Information Technology agency 2015 (6) SA 250 (LC) where Gush J was required to consider an employer policy on maternity leave. The policy was applied only to mothers and not to commissioning parents. A male spouse in a same-sex union was denied 'maternity' leave. The Labour Court held that the policy was

discriminatory. The cause of action was that the 'mothers only' application was in contravention of section 6(1) of the Employment

Equity act 55 of 1998. The Labour court did not interpret the BCEA or deal with whether or not the BEGA was unconstitutional. The rationale of that court is at paras [13) to [18). The thesis is that the policy had to be consistent with the best interest of the child as contemplated in section 28 of the Childrens' Act.

[8] See: President of the RSA v Hugo 1997 (4) SA 1 (CC} at para [37 to [39), per Goldstone J: [37] The reason given by the President for the special remission of sentence of mothers with small children is that it will serve the interests of children. To support this, he relies upon the evidence of Ms Starke that mothers are, generally speaking, primarily responsible for the care of small children in our society. Although no statistical or survey evidence was produced to establish this fact, I see no reason to doubt the assertion that mothers, as a matter of fact, bear more responsibilities for child-rearing in our society than do fathers. This statement, of course, is a generalisation. There will, doubtless, be particular instances where fathers bear more responsibilities than mothers for the care of children. In addition, there will also be many cases where a natural mother is not the primary care giver, but some other woman fulfils that role, whether she be the grandmother, stepmother, sister, or aunt of the child concerned. However, although it may generally be true that mothers bear an unequal share of the burden of child rearing in our society as compared to the burden borne by fathers, it cannot be said that it will ordinarily be fair to discriminate between women and men on that basis. [38] For all that it is a privilege and the source of enormous human satisfaction and pleasure, there can be no doubt that the task of rearing children is a burdensome one. It requires time, money and emotional energy. For women without skills or financial resources,

its challenges are particularly acute. For many South African women, the difficulties of being responsible for the social and economic burdens of child rearing, in circumstances where they have few skills and scant financial resources, are immense. The failure by fathers to shoulder their share of the financial and social burden of child rearing is a primary cause of this Hardship. The result of being responsible for children makes it more difficult for women to compete in the labour market and is one of the causes of the deep inequalities experienced by women in employment. The generalisation upon which the President relied is therefore a fact which is one of the root causes of women's inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared. [39] The fact, therefore, that the generalisation upon which the appellants rely is true does not answer the question of whether the

discrimination concerned is fair. Indeed, it will often be unfair for discrimination to be based on that particular generalisation.

Women's responsibilities in the home for housekeeping and child rearing have historically been given as reasons for excluding them from other spheres of life. In a case note concerning Incorporated Law Society v Wookey which denied women the right to be admitted as attorneys, a commentator wrote: 'A revolt against nature is involved in any proposal to allow women to enter into the legal profession. This idea is incompatible with the ideas and duties of Motherhood. To use the generalisation that women bear a greater proportion of the burdens of child rearing or justifying treatment that deprives women of benefits or advantages or imposes disadvantages upon them would clearly, therefore, be unfair.'

[8] See: President of the RSA v Hugo 1997 (4) SA 1 (CC} at para [37 to [39), per Goldstone J:

[37] The reason given by the President for the special remission of sentence of mothers with small children is that it will serve the interests of children. To support this, he relies upon the evidence of Ms Starke that mothers are, generally speaking, primarily responsible for the care of small children in our society. Although no statistical or survey evidence was produced to establish this fact, I see no reason to doubt the assertion that mothers, as a matter of fact, bear more responsibilities for child-rearing in our society than do fathers. This statement, of course, is a generalisation. There will, doubtless, be particular instances where fathers bear more responsibilities than mothers for the care of children. In addition, there will also be many cases where a natural mother is not the primary care giver, but some other woman fulfils that role, whether she be the grandmother, stepmother, sister, or aunt of the child concerned. However, although it may generally be true that mothers bear an unequal share of the burden of child rearing in our society as compared to the burden borne by fathers, it cannot be said that it will ordinarily be fair to discriminate between women and men on that basis.

[38] For all that it is a privilege and the source of enormous human satisfaction and pleasure, there can be no doubt that the task of rearing children is a burdensome one. It requires time, money and emotional energy. For women without skills or financial resources,

its challenges are particularly acute. For many South African women, the difficulties of being responsible for the social and economic burdens of child rearing, in circumstances where they have few skills and scant financial resources, are immense. The failure by fathers to shoulder their share of the financial and social burden of child rearing is a primary cause of this Hardship. The result of being responsible for children makes it more difficult for women to compete in the labour market and is one of the causes of the deep inequalities experienced by women in employment. The generalisation upon which the President relied is therefore a fact which is one of the root causes of women's inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared.

[39] The fact, therefore, that the generalisation upon which the appellants rely is true does not answer the question of whether the

discrimination concerned is fair. Indeed, it will often be unfair for discrimination to be based on that particular generalisation.

Women's responsibilities in the home for housekeeping and child rearing have historically been given as reasons for excluding them from other spheres of life. In a case note concerning Incorporated Law Society v Wookey which denied women the right to be admitted as attorneys, a commentator wrote:

'A revolt against nature is involved in any proposal to allow women to enter into the legal profession. This idea is incompatible with the ideas and duties of Motherhood.

To use the generalisation that women bear a greater proportion of the burdens of child rearing or justifying treatment that deprives women of benefits or advantages or imposes disadvantages upon them would clearly, therefore, be unfair.'

[9] It should not be assumed that all adoptions are of children who are strangers to the adoptive parents. Indeed, commonplace procedures

for adoption of older children would often involve a long period of acquaintance before the adoption order is granted. Leave from an employer in such circumstances might be superfluous.

[10] ILO Recommendation 191, para 10: (1) In the case of the death of the mother before the expiry of postnatal leave, the employed father of the child should be entitled to take leave of a duration equal to the unexpired portion of the postnatal maternity leave. (2) In the case of sickness or hospitalization of the mother after childbirth and before the expiry of postnatal leave, and where the mother cannot look after the child, the employed father of the child should be entitled to leave of a duration equal to the unexpired portion of the postnatal maternity leave, in accordance with national law and practice, to look after the child. (3) The employed mother or the employed father of the child should be entitled to parental leave during a period following the expiry of maternity leave. (4) The period during which parental leave might be granted, the length of the leave and other modalities, including the payment of parental benefits and the use and distribution of parental leave between the employed parents, should be determined by national laws or regulations or in any manner consistent with national practice. (5) Where national law and practice provide for adoption, adoptive parents should have access to the system of protection offered by the Convention, especially regarding leave, benefits and employment protection.

[10] ILO Recommendation 191, para 10:

(1) In the case of the death of the mother before the expiry of postnatal leave, the employed father of the child should be entitled to take leave of a duration equal to the unexpired portion of the postnatal maternity leave.

(2) In the case of sickness or hospitalization of the mother after childbirth and before the expiry of postnatal leave, and where the mother cannot look after the child, the employed father of the child should be entitled to leave of a duration equal to the unexpired portion of the postnatal maternity leave, in accordance with national law and practice, to look after the child.

(3) The employed mother or the employed father of the child should be entitled to parental

leave during a period following the expiry of maternity leave.

(4) The period during which parental leave might be granted, the length of the leave and other modalities, including the payment of parental benefits and the use and distribution of parental leave between the employed parents, should be determined by national laws or regulations or in any manner consistent with national practice.

(5) Where national law and practice provide for adoption, adoptive parents should have access to the system of protection offered by the Convention, especially regarding leave, benefits and employment protection.

[11] See: New Nation Movement NPC v President, RSA 2020 (6) SA 298 (CC) at para [11] Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Woman's Legal Centre amicus Curiae) [2001] ZACC 21; 2001 (4) SA 491 (CC at para[19]; Mahlangu and Another v Minister of Labour 2021(1) BCLR 1 (CC) at para [127]

[12] NEDLAC Act 35 of 1994.

[13] The case law cited in support of the proposition is unhelpful. The cases deal with setting aside executive or administrative decisions, not provisions of a statute.

[14] See: Khosa and Another v Minister of Social Development and Others 2004 (6) SA (CC) at para [45]: 'It is also important to realise that even where the State may be able to justify not paying benefits to everyone who is entitled to those benefits under s 27 on the grounds that to do so would be unaffordable, the criteria upon which they choose to limit the payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights as a whole. Thus if the means chosen by the Legislature to give effect to the State's positive obligation under s 27 unreasonably limits other constitutional rights, that too must be taken into account.'

[15] Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) at para [43].