Sunday World reports that a Gauteng couple has served the Department of Employment and Labour with a notice at the Joburg high court, challenging sections of the Basic Conditions of Employment Act as unconstitutional.
In a landmark case seeking to have paternal leave included as part of parental leave, with equal rights afforded to both parents of newborn children, the first applicant Werner van Wyk and second applicant, his wife Ika van Wyk, are seeking maternity leave changed to parental leave with equal rights to all parents. The parties want the courts to declare the non-awarding of paternal leave to fathers of newborn children unconstitutional. Their court application is supported by the Sonke Gender Justice as the third applicant, with the three parties arguing that sections 25 and 26 of the Basic Conditions of Employment Act of 1997 (BCEA) should be declared “unconstitutional in so far as they unfairly discriminate against fathers of newborn children by unjustifiably limiting the father’s rights to paternity leave in South Africa”. The Van Wyks, whose child is now over a year old, initiated the case after Werner, a fulltime employee, was denied four months’ parental leave to look after his newborn child. Werner had to take a sabbatical so that his wife Ika, who is self-employed and runs two businesses, could return to work. The applicants are seeking that section 25 and 26 of BCEA be extended to ensure equal rights of all mother, fathers and same-sex parents of newborn children in SA, and that they include circumstances where a father is the primary caregiver of the newborn child; allow for extended paternal and/parental leave in workplace leave policies; extend the definition of “maternity leave” to include “parental” and “care-giving” leave; and include the recognition of a new category of “peri-natal leave” for the pregnant, delivering and breastfeeding parents for a period of six weeks.
- Read the full original of the report in the above regard by Phumla Mkize on page 6 of Sunday World of 11 September 2022
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