Constantia Park Weltevredenpark Roodepoort Gauteng 1709 South Africa


For a long period of time since the dawn of democracy in South Africa, the debate around diversity revolves around race-related issues. Quite understandably so, even the Employment Equity Act of 1998 (EEA) has been centred on meeting mainly race targets and gender targets to a less extent. It would be misleading to think that that is what the EEA is about. At the centre of the EEA is the diversity of the South African population. It takes into cognisance the historical fact that, for a long time, the South African workforce did not justifiably reflect the variety of people that make up the SA society.
The EEA also acknowledges that during apartheid, a variety of South Africans, beyond race and gender, were unjustifiable discriminated in a number of ways.
The South African society is not only made up of different races and males and females, or whites of Western descent and blacks who are Africans, there is a lot of in-betweens.
Not Everything is in Black and White
From the above analyses, it followed that even the South African labour legislation tends to follow a trend of thought that seems to regulate a society made up of different races, mainly black and white, and two genders, male and females. There are other races, and are equally important. There have even been allegations of asexual people, with former British Prime Minister, Edward Heath, being bandied about as one. These are humans who have no sexual attraction to neither men nor women. But that’s a matter for another Bulletin.
But what happens when a third gender enters the workplace, one which fits the norms of male or female?
The Hijra of India
It has long been recognised that human beings are not just made up of men and women. There are various other genders that exist that in many societies are not recognised. In India, the hijra is a term used to refer to humans that see themselves as neither male nor female was officially recognised with a Supreme Court of India judgement in 2014.
South African Labour Legislation and Parental Leave
The Basic Conditions of Employment Act of 1997 (BCEA) regulates the conditions under which people can be employed in South Africa. Among other conditions of employment that the BCEA regulates, is the issue of parental leave. This is done through the family responsibility leave, s27 of the BCEA and maternity leave, s25 of the same Act. There is no paternity leave in the BCEA. The BCEA, contrary to popular belief, has family caters for family responsibility leave.
Could the absence of paternity leave that is equal to maternity leave be challenged on the basis of s9 of the Constitution and or s6 of the Employment Equity Act?
Leave for Men and Working Mothers
With regards to family responsibility leave, the BCEA grants three days per year leave to an employee in an event of, among others, their child being born or sick. On the other hand, the BCEA grants, at least, four months maternity leave to mothers.
No Pregnancy Please… We are Homosexuals
The question arises then, what happens if an employee in a same sex partnership or union has a new born child through surrogacy? Surrogate mother is when a woman agrees to be impregnated, through artificial insemination or implantation of an already fertilised egg but surrenders the baby and all parental rights to a third party upon birth of the baby.
Can such an employee, even if they are male, upon receipt of the new born baby, be granted maternity leave? 
MIA v the State Information Technology Agency (Pty) Ltd D312/2012
This was a question that confronted the court in the case of MIA v the State Information Technology Agency (Pty) Ltd D312/2012. In this particular case, the State Information Agency (Sita) declined an application for ‘maternity’ leave from a male employee (the applicant) in registered same sex union. He challenged the Sita decision on the basis that it constitutes unfair discrimination in terms of the Employment Equity Act and the South African Constitution.
The applicant argued that between himself and his partner, they had agreed that he would be the primary care giver of the new born child. This means that he would take the role of the mother immediately after the child was born. He sought ‘maternity leave’ for this purpose.
The Basic Conditions of Employment Act and the South African Constitution
Section 9 of the South African constitution outlaws unfair discrimination on a number of grounds, among others gender, sex, family responsibility and sexual orientation. S6 (1) of the EEA prohibits employers form unfairly discriminating against employees on its policies and workplace practices of a number of grounds including the ones mentioned in the constitution.
The Sita cited the fact that both their policies and the BCEA are silent on the issue of parental leave for surrogate parents, let alone same sex unions. When one reads s25 of the BCEA which regulates maternity leave, it is clear that it was meant for the parent who is pregnant and expects to and will give birth to a child. The Sita also argued that by using the term maternity, legislature clearly meant maternity leave to be for female employees.
The Court Decision
In reaching its decision, the court cited the constitution as giving every child a right to family care or parental care. The court further cited s28 of the Children’s Act of 2005 which stipulates that, ‘in all matters concerning the care, protection and wellbeing of a child, the standard that the child’s best interest is of paramount importance must be observed.’ Surrogacy agreements are regulated by the Children’s Act. The court noted that the current maternity leave entitlements as created by the BCEA are not only meant for the welfare and health of the child’s mother but also the best interests of the child.
Four-month Paternity Leave?
This may open an opportunity for fathers in heterosexual relationships to argue that they are also entitled to paternity leave equal to maternity leave as they may be the primary caregivers of their new born child with the mother continuing to work after delivery. The same can go for fathers, whose spouses, sadly, die at or immediately after childbirth.
The Applicant’s Case
In his evidence, the applicant also testified that the biological mother of the child would not even have sight of the child. The child was placed in his care immediately after birth. He would be the only parent present when the child is born. In fact, the surrogate mother never even had sight of the child. This places him in exactly the same position that the biological mother would have been in but for the surrogacy. The court agreed with him saying;
‘Given the circumstances there is no reason why an employee in the position of the applicant should not be entitled to ‘maternity leave’ and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled.” (my emphasis)
Thinking and Acting Ahead
This decision simply means that companies will have to think and act ahead. Companies will have to proactively amend their policies and procedures in line with this judgment. The BCEA, will in all likelihood, also be amended in line with this judgement, but this will take time.
One of the key duties of the Employment Equity Committee (EEC) in any company is to conduct an audit of its policies to identify any unfair discrimination. This judgement means that, in carrying out this duty, the EEC will, in most employers, identify the maternity leave, in its current form, as constituting unfair discrimination. This is due to the fact that in most, if not all companies, maternity leave only caters for biological mothers. This constitutes unfair discrimination for adoptive and surrogate parents. Where such unfair discrimination is identified, the EEC needs to come up with positive or affirmative action measures to eliminate it.
New Forms of Diversity
This judgement also serves to widen our understanding as South Africans in particular and the world in general of how diverse we are and how our norms, legal or otherwise have to cater for this diversity.
In South Africa, we have made great strides in ensuring that those who were unfairly disadvantaged by apartheid i.e. women, black people which includes Indians, Coloured and Africans and people with disabilities are equitably represented in our workforce at all levels. This is a commendable achievement given the short period we have had democracy. We now need to continue to lead by acknowledging and giving equal rights to other forms of diversity that we have that may not necessarily have been acknowledged by the rest of the world. Policies, procedures, practices and the working environment that favours one group over the rest will have to be identified and eradicated.
Forward thinking and progressive employers will amend their policies to eliminate any unjustifiable discrimination.
For further information please contact me directly.
Bruniquel & Associates (Pty) Ltd
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