Article 31/2025

The high court, in Van Wyk and Others v Minister of Employment and Labour (Centre for Human Rights, University of Pretoria and Others as amici curiae) (2024) 35 SALLR 134 (GJ), considered the constitutionality of the following sections of the Basic Conditions of Employment Act 75 of 1997 (BCEA): maternity leave (s25), parental leave (s25A), adoption leave (s25B) and commissioning parental leave (s25C). How are the relevant BCEA provisions, subsequent to the finding of unconstitutionality on the basis of unfair discrimination in violation of s9 and s10 of the Constitution, currently to be potentially read?

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A. birth mother-based leave

• s25(1)
  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 parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:
  • one or other parent shall take the whole of the period, or each parent shall take turns at taking leave; and:
  • 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.
• s25(2)
  The pregnant mother may commence parental leave –
  • at any time from four weeks before the expected date of birth, unless otherwise agreed; or
  • on a date from which a medical practitioner or a midwife certifies that it is necessary for the pregnant mother’s health or that of her unborn child.
• s25(3)
  No pregnant mother 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.
• s25(4)
  A pregnant mother who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to parental leave for six weeks after the miscarriage or stillbirth, whether or not the pregnant mother has commenced maternity leave at the time of the miscarriage or stillbirth.
• s25(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 –
  • commence parental leave; and
  • return to work after parental leave.
• s25(6)
  Notification in terms of subsection (5) must be given –
  • at least four weeks before the employee intends to commence parental leave; or
  • if it is not reasonably practicable to do so, as soon as reasonably practicable.

B. parental leave

• s25A(1)
  An employee who is a parent of a child is entitled to the leave stipulated in section 25(1).
• s25A(2)
  An employee may commence parental leave on –
  • the day that the employee’s child is born, subject to the provisions of section 25(2); or
  • the date –
    • that the adoption order is granted; or
    • 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.
• s25A(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 –
  • commence parental leave; and
  • return to work after parental leave.
• s25A(4)
  Notification in terms of subsection (3) must be given –
  • at least one month before the –
    • employee’s child is expected to be born; or
    • date referred to in subsection 2(b); or
  • if it is not reasonably practicable to do so, as soon as reasonably practicable.

C. adoption leave

• s25B(1)
  An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6) entitled to –
  • adoption leave of at least ten weeks consecutively; or
  • the leave stipulated in section 25(1).
• s25B(2)
  An employee may commence adoption leave on the date –
  • that the adoption order is granted; or
  • 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.
• s25B(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 –
  • commence adoption leave; and
  • return to work after adoption leave.
• s25B(4)
  Notification in terms of subsection (3) must be given –
  • at least one month before the date referred to in subsection (2); or
  • if it is not reasonably practicable to do so, as soon as is reasonably practicable.
• s25B(6)
  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).
• s25B(7)
  If a competent court orders that the 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 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.

D. commissioning parental leave

• s25C(1)
  An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).
• s25C(2)
  An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.
• s25C(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 –
  • commence commissioning parental leave; and
  • return to work after commissioning parental leave.
• s25C(4)
  Notification in terms of subsection (3) must be given –
  • at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
  • if it is not reasonably practicable to do so, as soon as is reasonably practicable.
• s25C(6)
  Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).