Developments in South Africa’s Maternity Leave Provisions

On 25 October 2023, the Gauteng Division of the High Court declared those provisions of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) dealing with maternity leave, parental leave and commissioning parental leave (where a child is conceived by surrogacy), and the corresponding provisions contained in the Unemployment Insurance Fund Act 63 of 2001 invalid and inconsistent with the provisions of the Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”).

According to the Honourable Deputy Judge President, Roland Sutherland, the provisions are inconsistent with the Constitution, as they unfairly discriminate between mothers and fathers and between one set of parents and another set based on whether the children were born of the mother, conceived by surrogacy, or adopted.

The order of invalidity has been suspended for a period of two years to allow Parliament an opportunity to cure the defects.

It will be interesting to see whether the Minister of Employment and Labour will appeal the judgment and what legislation Parliament will enact in the future to cure the defects.

For labour law enquiries, please contact Carmen Abboy.

Name:? Carmen Abboy

Position:?Senior Associate

Department:?Employment?

Telephone number:?031?536 7531

Email address:??? [email protected]

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