Abstract

The application of the right to equality as provided for in the Constitution of the Republic of South Africa, 1996, is contentious, especially in the provision of parental leave between mothers and fathers in the South African workplace. While considerable progress has been achieved in the realisation of the rights to equal pay for the performing of the same functions, and the right to equal opportunities for equal qualifications, the same cannot be said of parental leave for employed mothers and fathers. This article explores the law relating to parental leave rights in South Africa in light of the Van Wyk & others v Minister of Employment and Labour 2024 (1) SA 545 (GJ) case. The article evaluates whether the High Court provides adequate guidance in balancing parental leave rights available to employed mothers and fathers in South Africa. In this regard, the question is asked whether the legislature fully understands and correctly interprets the import of the right to equality as provided for in the Constitution. The analysis is premised on the argument that the Van Wyk case presents a fascinating interpretation and application of the right to equality on parental leave rights for mothers and fathers in South Africa. The authors argue that the High Court was correct in its approach though it could have gone further to qualify and elaborate more on the right to equal parental rights for mothers and fathers. The court missed a golden opportunity to unequivocally set out that equality in being is not the same as equality in function and that a misunderstanding of the two breeds unfair discrimination and inequality in the provision of parental leave rights. A gender stereotypical application of the right to equality defeats the letter and spirit of the Constitution which is more inclined to the achievement of equality in being rather than equality in function.