A Long Walk to Gender Equality in South African Employment Law – Van Wyk v Minister of Employment and Labour [2023] ZAGPJHC 1213

Abstract

With the advent of the Constitution and labour legislation, women and men in society have been guaranteed equal opportunities and fair treatment in employment, through the elimination of unfair discrimination. Nonetheless, in the past decades, female employees have been afforded maternity leave to the exclusion of male employees. Accordingly, section 25 of the BCEA allocated 4 months maternity leave to the birth mother employee and 10 days to the ancillary father. Dupper contends that the exclusion of paternity leave fuels the stigmatised notion of women as homemakers and caregivers. Consequently, it leads to the perception that women are provided with maternity leave because the primary responsibility of women is to care for children, whereas men need not be afforded paternity leave because their primary responsibility is to be breadwinners.

Remarkably, the questionable status of the duration leave period between birth mother and father employees remained unchallenged until recently by the Van Wyk family (Van Wyk and Others v Minister of Employment and Labour (2023) ZAGPJHC 1213 (25 October 2023)). The landmark judgment by Sutherland DJP may be welcomed by many as a notable milestone in eradicating the demarcation of gender roles between female and male employees. In pursuit of equality in the workplace, both parents can equally share in the burden of childcare without the mother being deemed doomed to be the primary caregiver. In essence, the landmark judgment can be viewed as a positive step towards achieving a more egalitarian society where the responsibility for childcare is equally shared between parents.