Last week the High Court of South Africa, passed down a landmark judgment in the case of Werner Van Wyk et al v Minister of Employment and Labour, declaring that provisions in the Basic Conditions of Employment Act (BCEA), which provide four consecutive month maternity leave for mothers, unfairly and unconstitutionally discriminate against fathers as well parents of children adopted or born via surrogacy. Both ILAW and Solidarity Center were amici in this case.
In this case, Judge Sutherland found that while it is self-evidently not discriminatory to grant leave to a birth mother, who gives birth, the real question underlying the law is a policy choice with respect to child nurture, which could be done by either parent. The policy choices underlying the BCEA is based on an asymmetrical view of childcare, which even if commonplace in South African society, precludes the space for egalitarian norms. As a result, for those families, where both parents are equally involved in child-nurture, the BCEA offers no recognition. The judge finds that according to fathers’ a “paltry” ten days leave “regards the father’s involvement in early parenting as marginal…and is per se offensive to the norms of the Constitution in that it impairs a fathers dignity”. Further, placing the burden of childcare exclusively on the mother is equally problematic, since this should be a matter for the parents to decide, not the legislature.
The Minister of Labour opposed the matter arguing that the matter involves resource allocation which should best left to parliament not courts to resolve, and that the legislature should not seek to engineer social and cultural changes in the family. The judge rejected these arguments, declaring “the subordination of women as family-servants and commodities however widespread such attitudes may be among many inhabitants of this country, is in no degree consistent with the norms of the Constitution…which requires social equality between men and women and is uncompromising in actualising that status quo for everyone”.
Both the ILAW Network and the Solidarity Center were amici in this matter, along with the Centre for Human Rights at the University of Pretoria and Labour Research Services, and brought international and comparative law to the court, particularly focussing on the ways in which the BCEA enforces an unequal care burden on mothers.
Read the judgment here, application to be admitted as amicus here, and the heads of argument here. For further information on this case, please contact Ziona Tanzer at ztanzer@solidaritycenter.org.
