Parental Leave, Equality and Dignity in South Africa: One Step Forward, Two Steps Back

by | Nov 20, 2023

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About Justin Winchester

Justin is a Rhodes Scholar pursuing a DPhil in Law after having completed his BCL at the University of Oxford. He graduated as the top student in his BCom and LLB degrees from the University of Cape Town. Justin’s research explores ways in which equality and anti-discrimination law can alleviate economic inequality. He also takes interest in administrative and constitutional law, human rights, customary law, and the relationship between private law and fundamental rights.

On 25 October 2023, the Johannesburg High Court of South Africa in Van Wyk v Minister of Employment and Labour [2023] ZAGPJHC 1213 declared certain provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA) relating to parental leave unconstitutional for violating the right to equality. On the one hand, the judgment upends the patriarchal insistence of mothers being the default primary child-rearers. On the other hand, the reasoning demonstrates confusion as to the relationship between the constitutional right to dignity (section 10) and substantive equality (section 9).

Mrs Ika Van Wyk was running her own business when she gave birth. With her husband, Mr Werner Van Wyk, they agreed that she should return to her business as soon as possible after giving birth. As a result, Mr Van Wyk would be the primary caregiver. However, the BCEA set the statutory minimum for birth mothers as four consecutive months’ maternity leave and the ‘other parent’ at least ten consecutive days.

The Van Wyks successfully challenged these provisions on the grounds of gender discrimination under section 9(3) of the Constitution. Deputy Judge President Sutherland (‘Sutherland DJP’) identified that the “logic intrinsic in the controversial provisions is that one parent is a primary caregiver and the other is an ancillary parent” [19]. By mandating ancillary fatherhood, equality is both prevented and actively dismantled for families who want an egalitarian parenting dynamic [20].

In remedying the unconstitutionality, Sutherland DJP substituted the impugned provisions, now entitling both parents to four consecutive months’ parental leave — not each, but “collectively” [Order, para 4]. That is, they can split the parental leave between themselves how they choose. Both the reasoning and the remedy in this case are problematic in their invocation of dignity.

Firstly, Sutherland DJP’s reasoning overemphasises the role of right to dignity within the right to equality by implying that the former is instructive for the latter. For example, he framed the issue as whether the “provisions in the BCEA are unconstitutional because they unfairly discriminate against persons in violation of section 9 or 10 of the constitution”, but there cannot be a finding of unfair discrimination without a section 9 violation. Moreover, in coming to the conclusion that the discrimination was unfair, for fathers Sutherland DJP reasoned that the legislation’s “mind-set that regards the father’s involvement in early-parenting as marginal … is per se so offensive to the norms of the Constitution that it impairs a father’s dignity.” [26] For mothers, he reasoned that being forcibly designated primary caregivers also “impairs her dignity.” [27]

Overemphasising the role of human dignity in equality analyses has a proven pernicious history of hindering legitimate discrimination claims. In Law v Canada, the Canadian Supreme Court required proof that society regards one group as less valuable than others (i.e., a dignity infringement) for a violation of the right to equality, denying younger widows survivor benefits on the basis of their age. The Canadian Supreme Court later acknowledged that the addition of the infringement of dignity as a requirement in Law hindered rather than enhanced the achievement of equality. Thus, in R v Kapp, the Court softened the role of dignity. An infringement of dignity was no longer a requirement to prove discrimination; instead, dignity became one amongst several values which give content to a substantive conception of equality.

It is therefore ironic and unfortunate that, secondly, Sutherland DJP’s remedy invoked a shallow conception of dignity. Although not a full-scale levelling down, the remedy afforded — the “collective” leave — has the potential of reducing the total amount of leave for mothers who were originally entitled to four months of their own. By combining the leave, the fathers’ position improves, whereas the mothers’ worsens.

If a right to equality is to be enriched by the value of dignity, it should be in a way that prevents worse treatment — that is, it should ensure that ‘equally bad’ treatment is not justified in the name of equality. This remedy is also particularly dangerous for women whose partners take up most of the leave by forcing mothers to return to work before they are ready.

The outcome in Van Wyk is a significant step in transforming the patriarchal dynamic that thrusts double burden that women experience in public and private life. However, the judgment’s overemphasis and its under-theorisation of dignity within the section 9 analysis potentially retreats from the transformative aims of South Africa’s right to equality.

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