Case CCT 306/22
[2025] ZACC 24
Hearing Date: 07 March 2024
Judgement Date: 05 November 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 5 November 2025, the Constitutional Court handed down judgment in an application for condonation and leave to appeal against a judgment and order of the Regional Court for the Eastern Cape, Mthatha. There are five judgments in this matter. The first judgment is penned by Mhlantla J and Theron J (Tshiqi J and Mathopo J concurring fully and Bilchitz AJ concurring with its order and, subject to qualifications, with its reasoning). This judgment is the majority judgment. The second judgment is penned by Dodson AJ (Madlanga J concurring). The third judgment is penned by Majiedt J (Zondo CJ concurring). The fourth judgment is penned by Bilchitz AJ. The fifth judgment is penned by Zondo CJ.
The background to this matter is as follows. The applicants are Mr Zolani Godloza and Mr Sibulele Mthetho were charged together with Mr Lungisa Grifhs, Mr Siphamandla Tayi and Mr Lwandile Jonas, with one count of murder of Mr Thulani Ntsikini while acting in common purpose. Their trial was in the Regional Court, and they pleaded not guilty and proffered alibi defences. On 28 November 2018, the applicants and Mr Grifhs were convicted of murder. Their conviction was solely based on the evidence of Mr Kwanele Bavu, a purported eyewitness. The Regional Court accepted Mr Bavu’s evidence notwithstanding the fact that Mr Bavu had previously made a mistake about two of the co-accused and his testimony was inconsistent.
The applicants and Mr Grifhs sought leave to appeal against their conviction and sentence on the basis that the Regional Court had erred in its application of the cautionary rule when considering the evidence of the single witness. On 13 June 2019, the application was dismissed for lack of prospects of success. They then filed a petition in the High Court Eastern Cape Local Division, Mthatha, for leave to appeal. This was refused on 9 October 2019.
Subsequently, the applicants and Mr Grifhs filed separate applications in the Supreme Court of Appeal for special leave to appeal, and these were considered by different panels of judges. On 15 May 2020, Mr Grifhs was granted special leave to appeal. On 13 August 2020, the applicants’ application was dismissed on the grounds that there were no special circumstances meriting a further appeal on the merits.
Mr Grifhs’ application came before the Supreme Court of Appeal on 1 September 2021. The Court held that there were “substantial unexplained contradictions between Mr Bavu’s oral testimony and his written statement to the police” and therefore, there were reasonable prospects of success. It granted Mr Grifhs leave to appeal to the High Court.
On learning of Mr Grifhs’ successful application, the applicants lodged an application for reconsideration in terms of section 17(2)(f) of the Superior Courts Act, informing the President of the Supreme Court of Appeal (President) that their co-accused had been granted special leave by that Court. On 21 February 2022, that application was dismissed on the basis that there were no exceptional circumstances.
The applicants first filed their application in this Court on 15 March 2022. They, however, re-filed it in September 2022 with an application for condonation, due to the Registrar’s inability to locate the original application. The applicants submitted that no prejudice arises to the respondents from this delay, while they would suffer grave injustice if condonation was not granted. The applicants argued that both this Court’s constitutional and general jurisdiction were engaged and that their rights to a fair trial, equal treatment before the law, freedom and security of the person and freedom of movement were violated.
As a basis for their appeal, the applicants raised several grounds. First, they contended that the Regional Court did not apply the cautionary rule properly as there were material contradictions and inconsistencies between Mr Bavu’s oral evidence and witness statements. Second, they contended the trial court failed to explain the provisions of section 51(1) of the Criminal Law Amendment Act. Third, they contended the Regional Court failed to explain the provision of section 93ter of the Magistrates’ Court Act. Fourth, they contended the President’s dismissal of their reconsideration application, while granting Mr Grifhs’ leave to appeal, violated their fair trial rights and amounted to unfair differential treatment. Finally, they submitted that during sentencing, the Regional Court failed to consider their circumstances, including their chance of rehabilitation as first-time offenders.
The respondent submitted that there was substantial compliance with section 93ter of the Magistrates’ Court Act and that the applicants were appropriately apprised of the provisions of section 51 of the Criminal Law Amendment Act. However, the respondent submitted that the differential granting of leave between Mr Grifhs and the applicants created an untenable scenario as their cases involve identical material aspects. The respondent agreed that the Regional Court failed to apply the cautionary rule, and that it would be “foolhardy” to rely on the contradictory evidence of a single witness as a sufficient basis for conviction. Since a similar issue may arise in the future, the respondent submitted that it is in the interests of justice for this Court to grant leave to appeal. Regarding remedy, the respondent submitted that the appeal, if granted, must be heard by the High Court.
The first judgment
The first judgment, penned by Mhlantla J and Theron J, held that condonation should be granted as there was an adequate explanation for the delay and there is no potential prejudice to the respondent, while the applicants would suffer significant prejudice if condonation were not granted.
On jurisdiction, the first judgment considered five potential grounds for jurisdiction: (a) the alleged misapplication of the cautionary rule; (b) the alleged non-compliance with section 93ter; (c) the alleged inadequate warning of the applicable minimum sentence; (d) the alleged violation of the rights to equality, a fair trial and access to courts emanating from the dismissal of the reconsideration application (the grave injustice argument); and (e) the alleged violation of the right not to be deprived of freedom arbitrarily without just cause.
First, this judgment held that the misapplication of the cautionary rule constituted a misapplication of the law, which in itself does not engage this Court’s jurisdiction. Second, the first judgment concluded that the section 93ter argument was raised for the first time in this Court. In any event, counsel indicated during the hearing that this argument had been abandoned. The same is true regarding the applicable minimum sentence argument, which counsel indicated to have been abandoned.
Regarding the dismissal of the reconsideration application, the first judgment held that the granting of leave to Mr Grifhs, in itself, did not constitute an exceptional circumstance that would clothe this Court with jurisdiction. Referencing the principle that the right to equality does not guarantee equality of outcome in litigation, the first judgment held that the applicants and Mr Grifhs were accorded the same rights. The alleged unfairness emanated from an exercise of judicial discretion, in which different outcomes were inherent. Thus, the dismissal of the applicants’ reconsideration application did not violate their right to appeal.
The first judgment found constitutional jurisdiction based on the potential infringement of the applicants’ rights to a fair trial and to freedom and security of the person. It is well established that an alleged breach of the right to a fair trial is a constitutional issue. Similarly, the potential breach of the right not to be deprived of one’s freedom arbitrarily and without just cause also raised a constitutional issue. The first judgment held that the scope of a court’s jurisdiction in respect of fundamental rights violations, particularly those involving liberty and human dignity, is an established element of constitutional systems.
In this case, the applicants demonstrated potential violations of their right to a fair trial and to freedom and security of the person.
Regarding leave to appeal, the first judgment held that the interests of justice were determinative in this case. While it could not automatically follow that applicants should be granted leave because their co-accused had been, the facts in this case warranted such a result. The applicants were convicted of murder on the same factual complex as Mr Grifhs. The State also conceded that it cannot support or defend the conviction. In such a criminal matter, the unequal treatment implicated the right not to be deprived of freedom arbitrarily and without just cause and the right to equality.
A denial by this Court to make an order redressing the harm to the applicants would carry the risk of a denial of justice. The applicants had been sentenced to prison sentences of 16 years, while Mr Grifhs had been out on bail since September 2020. This constituted disparate treatment. The first judgment concluded that there is no effective alternative remedy and there were reasonable prospects of success in the matter, as evidenced by the concessions by the State and the judgment of the Supreme Court of Appeal in Mr Grifhs’ application for special leave.
For these reasons, the first judgment held that this Court’s constitutional jurisdiction was engaged and leave to appeal was granted. As there was a pending appeal concerning Mr Grifhs, the majority held that it would be most appropriate and expedient for these appeals to be heard together.
The second judgment
The second judgment, penned by Acting Justice Dodson, agreed with the first and third judgments insofar as they held that the misapplication of the cautionary rule did not engage this Court’s jurisdiction. It also agreed with the first judgment on condonation and in finding against the applicants’ arguments pertaining to section 93ter of the Magistrates’ Courts Act and section 51 of the Criminal Law Amendment Act. Further, the second judgment agreed with the third judgment that the outcome proposed by the first judgment would possibly lead to an avalanche of criminal matters.
The second judgment differed with respect to the refusal by the President of the Supreme Court of Appeal of the application in terms of the proviso to section 17(2)(f) of the Superior Courts Act (the proviso). It held that the proviso extends the “appeal road by adding a further remedy”.
Referencing this Court’s interpretation in the other judgments, the second judgment reiterated that “exceptional circumstances” under the proviso require that grave injustice would ensue or that the administration of justice would be brought into disrepute in the absence of a reconsideration. One such example was where “contrary orders in two cases which were materially identical were made by different panels of the Supreme Court of Appeal”. Hence, while “ordinarily” this Court would lack jurisdiction to consider an appeal against the President’s decision in terms of the proviso, different outcomes from different panels of the Supreme Court of Appeal in respect of the same set of factual and legal circumstances go a long way toward establishing exceptional circumstances. In this case, the second judgment held that because the applicants and Mr Grifhs were so similarly situated, unequal outcomes from different panels of the Supreme Court of Appeal would create a strong prima facie case for exceptional circumstances warranting intervention.
On the first judgment’s criticism of the second judgment as giving rise to a dual appeal system, the second judgment disagreed. It held that where issues of inconsistent outcomes for similarly situated litigants are concerned, the proviso requires a judicial assessment based on a mixture of fact, law, fairness and judicial experience. Absent compelling circumstances, an appeal would not lie against a decision of the President for refusing reconsideration if the applicant can apply to this Court for leave to appeal on the merits. Further, if this Court’s jurisdiction is engaged and if it is in the interests of justice to grant leave to appeal against the decision of the court a quo on the merits, it would not be in the interests of justice to grant leave to appeal against the President’s decision pursuant to section 17(2)(f). Thus, the second judgment held that there were no dual avenues of appeal.
Had it commanded a majority, the second judgment would have granted leave to appeal against the decision of the President of the Supreme Court of Appeal dismissing the applicants’ application in terms of the proviso to section 17(2)(f) of the Superior Courts Act 10 of 2013.
The third judgment
The third judgment, penned by Majiedt J, disagreed with the outcome and reasoning of the first judgment in respect of jurisdiction. It held that this Court lacked jurisdiction in this matter. Consequently, the third judgment would have refused leave to appeal.
The third judgment also disagreed with the second judgment’s finding that the President’s decision engaged this Court’s jurisdiction. It emphasised three important criminal law propositions, which are that— (a) not every wrong judgment is a miscarriage of justice; (b) unequal outcomes for litigants in petitions for leave to appeal do not automatically constitute a grave injustice warranting reconsideration; and (c) the alleged inadequacy of evidence to sustain a conviction cannot establish this Court’s jurisdiction. If so, then every wrong decision would clothe this Court with jurisdiction, leading to an avalanche of cases.
The third judgment also underscored this Court’s jurisprudence on two different outcomes in petitions for leave to appeal to the Supreme Court of Appeal. It emphasised that in Van der Walt v Metcash Trading Limited, this Court held that its jurisdiction is not engaged in such situations. The third judgment held that Metcash is binding authority in both civil and criminal cases and that the first two judgments failed to recognise this aspect.
Regarding the applicants’ constitutional arguments, the third judgment held that they were simply the dressing up in constitutional garb of different outcomes in the Supreme Court of Appeal petitions. This, the third judgment found, was to overcome the binding precedent of this Court, which states that (a) this Court’s jurisdiction is not engaged where there are two different outcomes in respect of leave to appeal applications of different litigants; and (b) the misapplication of an established legal principle does not engage this Court’s jurisdiction. The third judgment further held that conflicting outcomes do not equate to infringement of constitutional prescripts. As this Court made plain in Metcash, “the Constitution does not and could hardly ensure that litigants are protected against wrong decisions”.
Finally, the third judgment cautioned against a possible opening of the floodgates in this Court as a result of the jurisdictional findings in the first and second judgments.
The fourth judgment
The fourth judgment, penned by Bilchitz AJ, agreed with the first judgment with qualifications. It agreed that the constitutional jurisdiction of this Court was engaged and that leave to appeal should be granted. It preferred the approach of the first judgment to the second judgment, given that both the pleadings and the oral argument were structured in terms of the applicants’ fundamental rights. The relief provided by the first judgment also corrected the central violation of rights that had taken place and required all the accused persons to be placed in the same position by having their appeal heard by the High Court in Mthatha. The fourth judgment further added that there were good reasons of fairness and practicality for the applicants’ appeal to be heard with Mr Grifhs’.
However, the fourth judgment departed from the first judgment in two respects. First, it refused to affirm the principles articulated in Metcash and expressed the view that that judgment may have crossed the threshold of being ‘clearly wrong’. It also took issue with the third judgment’s transposition of this troubling precedent in the criminal arena. The fourth judgment rejected the notion that divergent decisions which result in differential treatment of the kind at issue must be accepted in the judicial process, especially when the right to appeal is designed to enable higher courts to address inequitable outcomes.
The second qualification was that the fourth judgment did not accept the first judgment’s holding that, in all cases, applicants may not appeal to this Court against the decision of the President of the Supreme Court of Appeal in terms of the proviso. The fourth judgment found that it was unnecessary to make a definitive pronouncement in this regard and that compelling reasoning to the contrary had been provided in the second judgment. The fourth judgment also disagreed with the dicta in the first judgment concerning the contour of exceptional circumstances under section 17(2)(f).
The fifth judgment
The fifth judgment, penned by Zondo CJ, agreed with the third judgment with qualifications.
With regard to the decision of the President of the Supreme Court of Appeal refusing the application for reconsideration, the fifth judgment held that even if that decision were appealable, the applicants did not apply for leave to appeal against it. Consequently, that decision was not before this Court. As the first judgment made plain, the applicants conceded that they did not apply for leave to appeal.
Apart from these qualifications and with the elaborations contained therein, the fifth judgment concurred with the dismissal order of the third judgment.
Therefore, leave to appeal was granted, and the appeal succeeded in part. The order of the Supreme Court of Appeal was set aside and substituted with the following: firstly, the applicants’ petition for leave to appeal in terms of section 309C of the Criminal Procedure Act 51 of 1977 against both conviction and sentence was granted. Secondly, the applicants were granted leave to appeal to the High Court of South Africa, Eastern Cape Local Division, Mthatha. Finally, if practically possible, their appeal should be considered together with that of Mr Lungisa Grifhs.
The Full judgment here
Case CCT 274/24
[2025] ZACC 23
Hearing Date: 19 November 2024
Judgement Date: 21 October 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 21 October 2025, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Gauteng High Court, Johannesburg which dismissed the applicant’s application for a declaratory order, alternatively an application to review and set aside the decisions made by the City of Johannesburg to approve a rezoning application for Nordic Light Properties (Pty) Limited.
The applicant is the Municipal Employees Pension Fund (the Fund). The first respondent is the City of Johannesburg Metropolitan Municipality and the second respondent is the City’s Building Control Officer (collectively, the respondents). The third respondent is Nordic Light Properties (Pty) Limited (Nordic).
At the time when the Fund instituted the application in the High Court, it had purchased a ‘letting enterprise’ from Erf 82 Bryanston (Pty) Limited (Erf 82). This consisted of various portions of land, including the Nicolway Bryanston Shopping Centre (the mall). When the sale agreement of the letting enterprise was concluded between the Fund and Erf 82 on 26 August 2021, Erf 82 had instituted a review application to set aside the decision of the respondents to approve Nordic’s rezoning application relating to land adjacent to the mall (the review application). In the review application Erf 82 contended, among others, that it had not been given proper notice of Nordic’s rezoning application, nor had it been notified of the respondents’ decision to approve the rezoning applications required by the City’s Municipal Planning By-law, 2016. The nub of Erf 82’s contention was that the audi alteram partem principle had not been complied with and as a result, it was deprived of its right to object and participate in the administrative process that led to the approval of Nordic’s rezoning application, notwithstanding that the rezoning would directly impact the rights of Erf 82 as well as the tenants and visitors to the mall. Erf 82 also contended that the rezoning, which includes the construction of a ten-storey building with various commercial and residential land use rights, would likely cause an increase in traffic congestion to and around the mall, thus negatively impacting the mall and the interests of other owners of surrounding properties who are holders of servitudes registered over the land likely to be affected by the increase in traffic congestion.
Subsequent to the hearing of the review application, the Fund and Erf 82 concluded a written addendum to the sale agreement on 6 December 2021. The effect of the addendum was that Erf 82 would be substituted by the Fund in the review application and continue with the litigation in those proceedings, subject to an order of court confirming the substitution and transfer of Erf 82’s obligations, rights, and interests in the review application. On 18 March 2022 the Fund launched an application seeking an order giving effect to the addendum. The application was unopposed and on 17 May 2022 Sutherland DJP granted an order giving effect to the substitution of Erf 82 with the Fund in the review application.
The review application was heard on 17 October 2022 with the Fund as the applicant. During the hearing the respondents argued their point in limine which was that the Fund did not have standing to pursue the review application despite the order substituting Erf 82 with the Fund. In response, the Fund argued that as a consequence of the agreement to acquire the letting enterprise and the order of Sutherland DJP, it was entitled to continue with the review application and to also rely on the same grounds of review and the relief sought by Erf 82. The Fund also argued that once substitution was given effect to by a court order, standing ceased to be an issue and that since the application for substitution was unopposed by the respondent it impermissible for them to raise standing in limine as a defence.
The High Court held that it was trite that a point in law challenging a party’s standing may be raised by a party at any stage of the proceedings provided that it is supported by facts as they are averred on the papers and subject to the point being raised not resulting in prejudice or unfairness to the other party. The court took the view that insofar as the respondents are concerned, Erf 82 was the applicant in the review application with ownership of the letting enterprise. The court agreed with the respondents and held that at the commencement of the review application proceedings, the Fund was not the owner of the mall and as such, its interests could not have been adversely affected by the respondent’s decision in approving the rezoning application. The court also took the view that where an affected person sought to challenge the approval of a rezoning application in terms of PAJA, that person still needed to prove that he or she had standing at the time when the administrative action was taken. Accordingly, the respondents succeeded with their point in limine and the court dismissed the review application on the ground that the Fund lacked standing despite the order of substitution.
Before this Court, the applicant sought an order against the judgment and order of the High Court. The applicant submitted that the question before this Court, among others, is whether the purchaser of immovable property has standing in litigation proceedings instituted by the seller, prior to the sale, in its own name related to and arising from the seller’s ownership of the property after the registration and transfer of that property, where by agreement or by court order, the seller is substituted by the purchaser. The applicant submitted in this regard that, it acquired standing in the review application when it purchased the letting enterprise and Erf 82 agreed to transfer its rights subject to an order substituting Erf 82 with the applicant, which in this instance was granted on 17 May 2022. The applicant further submitted that Erf 82’s interest in the result of the review application were transferred pursuant to Sutherland DJP’s order.
The respondents submitted that they did not oppose the substitution application because they were of the view that on the facts, it did not give rise to standing of the applicant nor were there any viable defence to that application once it was clear that the applicant acquired ownership of the letting enterprise. The respondents further submitted that the applicant cannot be regarded as an “own-interest applicant” because the applicant has failed to demonstrate why it was in the interest of justice for the High Court to consider the merits of the review application and not merely dispose of it on the issue of standing alone.
Nordic submitted that an objector as envisaged by the By-Laws is the only person entitled to challenge the decision of the city approving a rezoning application. It argued that persons who do not object, comment or make representations when called on to do so, forfeit their right to be heard and to participate in an appeal. It further submitted that the applicant was not in a position to challenge the respondent’s decision on the grounds of PAJA because its rights at the time of the decision had not been affected as it had no interest at that stage. Nordic is of the view that in order to establish standing to challenge an administrative action in terms of PAJA, an applicant must show that the impugned action was taken in circumstances where its right to administrative action has been infringed and that the action has affected its rights.
In a unanimous judgment written by Seegobin AJ (with Madlanga ADCJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J, Theron J, Tolmay AJ and Tshiqi J concurring), the Court found that the applicant has the necessary locus standi to pursue the review proceedings instated by Erf 82.
The Court held that upon acquiring ownership of the property, the Fund stood to be negatively impacted in the very same way that Erf 82 would have been impacted as a result of the administrative decision to approve the rezoning application. For this reason, there was no basis to find that the Fund does not have the requisite locus standi and the right, on becoming the owner of the property, to continue prosecuting the review proceedings commenced by Erf 82.
The review application is remitted to the High Court for the determination of the merits. The respondents are jointly and severally liable for the applicant’s costs of the application for leave to appeal brought in the High Court and Supreme Court of Appeal as well as the applicant’s costs in this Court.
The Full judgment here
Case CCT 308/23 & CCT 309/23
[2025] ZACC 20
Hearing Date: 05 November 2024
Judgement Date: 03 October 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 03 October 2025 at 10h00, the Constitutional Court handed down a unanimous judgment in an application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Johannesburg.
The matter concerns two applications which relate to an order seeking confirmation of constitutional invalidity on the following sections which concern maternity and paternity leave: sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA) and sections 24, 26A, 27 and 29A of the Unemployment Insurance Act (UIF Act) (collectively referred to as the impugned provisions).
In the first application (CCT 308/23), the first and second applicants are Werner and Ika van Wyk, a married couple and parents of a child (Van Wyks). The third applicant is Sonke Gender Justice (Sonke), a non-profit organisation that advocates for gender equality. The fourth applicant is the Commission for Gender Equality, a Chapter 9 Institution, as contemplated in the Constitution. The respondent is the Minister of Employment and Labour (Minister), cited in their official capacity as the Cabinet Minister responsible for the administration of both the BCEA and the UIF Act.
In the second application (CCT 309/23), the Commission for Gender Equality and Sonke are the first and second applicants. The Minister is the first respondent and the Van Wyks are the second and third respondents.
Five amici curiae (friends of the court) were admitted to provide submissions on both applications. They are the Centre for Human Rights, University of Pretoria, the Solidarity Centre, South Africa, International Lawyers Assisting Workers Network, Labour Research Service and the Centre for Child Law.
The Minister filed a notice to abide with the decision of this Court regarding both applications and delivered submissions against the granting of four months’ parental leave for each parent, based on budgetary considerations.
Prior to the birth of their son, the Van Wyks agreed that Mr van Wyk would take primary responsibility for taking care of their son once he is born as Mrs van Wyk had two businesses to run. Mr van Wyk approached his employer seeking four months’ consecutive parental leave but was informed that he was only eligible for 10 days' leave because the maternity leave policy was reserved for female employees who had given birth. Given the potential financial ramifications that his wife's business would suffer if she were to take four months maternity leave, Mr van Wyk opted to take an extended unpaid leave of six months from his employer, which consequently affected his finances, his working conditions and his career prospects.
The Van Wyks, along with Sonke, approached the High Court for an order declaring the impugned provisions of the BCEA as unconstitutional and invalid. They submit that the current parental leave regime in the BCEA and the UIF Act provide greater benefits to biological mothers than to every other category of parents, notably fathers.
In particular, the provisions under section 25 of the BCEA were challenged on the following three grounds: that the differentiation between mothers and fathers serves no legitimate governmental purpose and is irrational; they amount to unfair discrimination with no justification; and they are offensive to the dignity of parents as they prescribe the manner in which families may be legitimately structured, depriving parents of the fundamental choice of how they may nurture their own children.
Similar relief is sought by Sonke and the Commission for Gender Equality in the second application, but specifically concerns other categories of parents such as adoptive and commissioning parents in a surrogate agreement. Section 25B of the BCEA, which makes leave available only to adoptive parents whose children are younger than two years old, was challenged on the basis that it unfairly discriminates between categories of adoptive parents and their children. It is submitted that adopted children of all ages need care on arrival and this need does not diminish with age. A reading-in deleting the words “below the age of two” was proposed by Sonke and the Commission for Gender Equality.
The Minister contended that the BCEA had been previously amended through a process under the National Economic, Development, and Labour Council Act (NEDLAC Act), to reflect societal consensus. Furthermore, the Minister submitted that the provisions on benefits implicate resource allocation and ought to be processed through NEDLAC before approaching a court, to avoid the risk of the courts trespassing into the realm of the legislature.
The High Court stated that even if there was certainty that the State would bear greater costs to eliminate the unfair discrimination and may have to impose additional UIF levies on employers, such a risk has not been reason to declare an unconstitutional provision constitutional in the past.
On application of the Harsken v Lane N.O. test, the High Court found that there was a differentiation between birth mothers and other categories of parents in the impugned provisions of the BCEA. It held that the differentiation between categories of parents has no rational connection to a legitimate government purpose, amounts to unfair discrimination and therefore the impugned provisions cannot be justified under the limitation clause in section 36 of the Constitution.
With regards to adoptive and commissioning parents in a surrogate agreement, the High Court similarly found that there was no reasonable explanation or legitimate governmental objective for a 10-week period of leave, rather than a 16-week period of leave provided to a birthmother. The Court found that all parenting categories should be entitled to the same period of leave if equality is to be achieved.
Consequently, the High Cout declared the impugned sections of the BCEA unconstitutional to the extent that the provisions unfairly discriminate between categories of parents and based on whether children were born of the mother, conceived by surrogacy, or if they were adopted. The High Court awarded costs against the Minister.
Before this Court, the Van Wyks seek an order confirming the High Court's declaration that impugned provisions of the BCEA and the UIF Act are unconstitutional and invalid. Furthermore, the Van Wyks submit that the High Court incorrectly conferred the interim reading-in of section 25 of the BCEA. Unlike the reading-in sought by the Commission for Gender Equality and Sonke, the Van Wyks simply wanted both parents to be afforded four months' parental leave each, and not collectively.
Sonke submits that the High Court order is just and equitable but not to the extent where the parents of the child share the parental leave benefits collectively, as it consequently removes the joint period parents would spend at home together with the child after birth.
In a unanimous judgment penned by Tshiqi J, this Court held that the matter engages this Court’s jurisdiction as it is mandated under sections 167(5) and 172(2) of the Constitution to consider orders of constitutional invalidity made by lower courts.
This Court agrees with the applicants’ submissions that the impugned provisions of the BCEA and the UIF Act (a) infringe on a father's right to dignity by marginalising his involvement as a parent and by depriving parents of the choice to structure their childnurturing responsibilities; (b) unfairly requires one parent (the birth mother) to take on the bulk of the childcare duties and, by extension, be earmarked as the default parent; (c) creates disparity and unequal treatment of adoptive and commissioning parents which marginalises the role that they play in the early life of their children and reduces the recognition of their parental responsibilities as compared to biological parents; (d) amounts to unfair discrimination between adoptive parents based on the age of the children they adopt and also creates a differentiation between adopted children themselves, based on their age.
In conclusion, the High Court’s declaration of constitutional invalidity of the impugned provisions was confirmed. It is thus declared that sections 25, 25A, 25B and 25C of the BCEA, dealing with maternity and parental leave, together with the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are declared invalid and inconsistent with the Constitution.
It is further declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid and inconsistent with the Constitution to the extent that they limit parental leave and related benefits to the case where the adopted child is below the age of two years.
The above declarations of constitutional invalidity are suspended for a period of 36 months to afford Parliament an opportunity to remedy the constitutional defects.
Pending the enactment of remedial legislation, the impugned provisions of the BCEA are amended to read that the current allowance of four months (for biological mothers) should be retained. Parental leave should not be restricted to mothers but should extend to fathers as well. The additional 10 days contemplated in section 25A should also be allowed, giving a total of four months and 10 days leave to be shared between the parents. Where only one of the parents is employed, such parent should be entitled to the full parental leave. In the case of a biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth. Subject to this qualification, the parents should be entitled to share the available days as they choose. In the event of disagreement, the leave contemplated in the relevant section shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and 10 days. There should be a requirement that a father who wishes to avail himself for paternity leave qualifies as one who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act.
Insofar as the corresponding UIF provisions are concerned, this Court found that an interim reading-in would be inappropriate as it does not have sufficient information on how UIF benefits are calculated. Accordingly, an interim reading-in could have substantial financial implications. It is thus ordered that the Minister must provide a report to this Court and the parties by no later than six months before the expiry of the 36-month suspension period. Such report must indicate whether remedial legislation against the impugned provisions of the BCEA and UIF Act have been brought into operation and if not, when it is expected to be brought into operation. Any party may apply, no not later than four months before the expiry of the 36-month suspension period, for supplementary relief.
The Minister is ordered to pay the costs of the application, including the costs of two counsel where so employed.
The Full judgment here