The apex court to determine a challenge to parental leave regime this November:
The Minister has a change of heart
On 1 November 2024 the Constitutional Court will consider whether to confirm a High Court order which found the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Fund Act 63 of 2001 (UIF Act) unconstitutional to the extent that it failed to provide equal parental leave and related UIF benefits to biological mothers, fathers, adoptive parents and commissioning parents.
The Commission for Gender Equality (CGE) will submit that a declaration of constitutional invalidity is appropriate in order to advance the rights of women in the workplace and address skewed parental responsibilities in the household. It will also advance the rights of vulnerable children, particularly adoptive children.
If the Constitutional Court agrees that the legislative regime cannot offer a more favourable benefit to biological mothers only, a key question which the Court will grapple with is, how to remedy this?
The legislation can be declared unconstitutional, and Parliament can be given a period of time within which to pass new compliant legislation. However, what happens to families in the interim? A failure to provide temporary relief will mean that the unconstitutional legislation will remain in force and parents and their children will continue to face unfair discrimination for a period of up to two years, possibly longer.
The parties have requested the Court to read in and sever words from the BCEA and UIF Act in order to grant interim relief pending the reform of legislation which results in:
- Each parent being entitled to four months leave;
- Each parent being entitled to share four months leave; or
- Each parent being entitled to share four months plus two weeks leave (the joint leave which is currently available to biological mothers and fathers).
The Court is also called on to determine the CGE’s appeal which asks the Court to find that the failure to provide any parental leave to adoptive parents of children two and older is unconstitutional.
The Minister of Employment and Labour has not opposed the relief sought and has filed a notice to abide. However, on 8 October 2024 the Minister belatedly attempted to file submissions opposing aspects of the temporary interim relief proposed by the parties and CGE’s appeal. Considering that the CGE’s application was filed in November 2023, and the Minister is an abiding party, these submissions are out of time and unusual. At this stage the Constitutional Court has rejected the submissions, calling the Minister to file a formal application for condonation.
*Disclosure notice: Norton Rose Fulbright’s Impact Litigation Unit, under the Social Impact Team, represents the Commission for Gender Equality in this litigation.
This blog was co-authored by Marguerite Gerber, Candidate Attorney
