PRESS STATEMENT | Con Court to decide on new parental leave regime for SA

Date: 01/11/2024


Today, Lawyers for Human Rights will represent the Centre for Human Rights, Solidarity Centre South Africa, International Lawyers Assisting Workers Network, the Centre for Child Law, and Labour Research Service as friends of the court before the Constitutional Court in the matter of Werner van Wyk and Others v Minister of Employment and Labour (CCT308/23); Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT308/23).

This case challenges South Africa’s current parental leave legal framework by calling for broader and more progressive parental leave provisions in South Africa. The hearing in the Constitutional Court is a confirmation hearing following the revolutionary judgment that was handed down by the Gauteng Division of the High Court of South Africa on 25 October 2023.

In the High Court judgment, penned by Sutherland DJP, the provisions of the Basic Conditions of Employment Act, 75 of 1997 (BECA) relating to maternity, parental, adoption and commissioning parental leave, as well as the relevant provisions of the Unemployment Insurance Act, 63 of 2001 (UIA), were declared to be unconstitutional and invalid. The provisions of the BCEA and the UIA were declared to be inconsistent with constitutional rights to dignity and equality insofar as they unfairly discriminate between mothers and fathers and between one set of parents and another based on whether the children were either born of the mother, adopted or conceived by surrogacy.

Our submissions will focus on several emerging conversations around parental leave in the context of South Africa’s labour framework. In particular, the submissions discuss the need to incorporate Ubuntu to develop the value of women’s work at home, and in the workplace, and moving towards decolonising the current labour landscape. The submissions also focus on aligning South Africa’s labour laws on parental leave with international and regional standards by focusing on the rights to gender equality, work, family, best interests of the child and healthy development. The submissions will also canvass comparative law and global trends including concluding observations made by treaty bodies concerning the need for more inclusive parental leave legislation and policies which support a move towards progressive parental leave policies and labour laws in an open and democratic society

The friends of the court will be represented by a legal team including Adv J Bhima, Adv T Thumbiran, Kayan Leung, and Charne Tracey. The proceedings will be live-streamed on the Constitutional Court’s YouTube channel.

For media inquiries, please contact:

Kayan Leung

Head: LHR Strategic Litigation and Gender Equality Programmes

Tel: 011 339 1960

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