Pretorius Davies Inc. Attorneys

16/09/2026

Landmark Constitutional Court Ruling on Parental Leave
The Basic Conditions of Employment Act in South Africa states:
25. (1) An employee is entitled to at least four consecutive months of maternity leave.
(2) An employee may commence maternity leave-
(a) at any time from the expected date of birth, unless otherwise agreed or;
(b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child

Maternity leave is a “hot topic” and has been widely discussed and somewhat criticized for only being beneficial towards the childbearing mother in a parental setting.
On 23 October 2025, the Constitutional Court of South Africa delivered a judgment in the matter of Van Wyk and Other v Minister of Employment and Labour which can be described as a fundamentally transformable judgement in light of parental rights and gender equality in the workplace. Various sections of the BCEA (Basic Conditions of Employment Act) and UIF Act (Unemployment Insurance Act) have been declared unconstitutional, which evidently challenged long-standing stereotypes in terms of childcare and affirmed the dignity of parents regardless of the child-bearing capabilities of the parent.
Werner and Ika van Wyk are married couple who tried to challenge the structure of the BCEA. Before the birth of their son, the couple agreed thereto that Mr van Wyk would be the primary caregiver because of Mrs van Wyk needing to manage two businesses. Mr van Wyk applied for four months of parental leave, he was however informed that he has the right to receive only ten days as the “maternity leave” policy was strictly reserved for female employees who had given birth.
Mr van Wyk then arrived at a crossroads, either damage his own career or damage his wife’s career. Mr van Wyk then decided to take six months’ unpaid leave, which to state the obvious, strained his finances and career prospects. Sonke Gender Justice and the Commission for Gender Equality who are friends of the court or amicus curiae joined forces with the Van Wyks, and they approached the Constitutional Court with the goal of declaring the provisions unconstitutional. The basis of their argument was that the law’s differentiation between a father and a mother, amounted to unfair discrimination, offends the dignity of parents by subsequently instructing a family on the structure that they should have and that it lacked legitimate government purpose. Justice Tshiqi in the Constitutional Court handed down judgement that the provisions in question of the BCEA and UIF Act had been inconsistent with the Constitution.
Various Constitutional infringements were identified by the honourable court:
1. Reinforcement of stereotypes of gender roles: Labelling the birth mother as the “default parent”, the law unfairly allocates the bulk of the childcare duties to the mother, effectively enforcing gender roles that the Constitution arguably strives do dismantle.
2. Diverse Family Discrimination: Adoptive and/or commissioning parents are automatically placed lower on the pecking order. The BCEA furthermore unfairly discriminated against adoptive parents based on the age of the adoptive child, limiting leave for said parent/s for children under the age of two years. The Court subsequently affirmed that children, regardless of their age, require care upon arrival and integration into a new family.
3. Dignity Infringement: Existing law alienated the role of a father, thus depriving a family unit of structuring child-nurturing responsibilities.
The van Wyk’s accompanied by Sonke Gender Justice sought further clarity on the interim remedy handed down by the High Court in declaring the provisions unconstitutional. The remedy by the High Court initially ordered that the parents share leave benefits equally, which led to Sonke arguing that it might prevent parents from spending much needed time with the child/ren in question.
Equality was the main aim of the Constitutional Court. The Court thus held that all parents, regardless of which category they fall in will be entitled to the same period of leave. The Court also noted that the prior differentiation had no legitimate connection to a government purpose and could not be justified under the Constitution’s limitation clause.
The Court has suspended the deceleration of invalidity for 36 months to allow Parliament the time to remedy the defects in the Constitution through new legislation.
The Constitutional Court has ordered for the time being a significant shift in how parental leave is to be administered:
1. The four-month leave period will be available to both parents of the family.
2. Parents are free to share their available days of parental leave as they choose.
3. In cases where parents cannot decide on the day allocation, the time off will be apportioned equally.
4. If a single parent is employed, that parent is entitled to the full leave term.
5. A father wishing to have access to the rights must be the one who had assumed parental rights and responsibilities as per the Children’s Act.

The Constitutional Court judgement and summary can be downloaded through the following link:

IKA VAN WYK                                                                                          

13/08/2026

MANAGING MENTAL HEALTH IN THE WORKPLACE

According to statistics published by the South African Depression and Anxiety Group (SADAG) website 1 in 3 employees have been diagnosed with depression, 80% of employees take time off as a result of their depression, 75% of respondents in a survey indicated that they could not thinking about work even when not at work. Naturally, there will be employees who also have mental health struggles which do not fall within the scope of depression which results in even higher rates of employees living with mental health problems. According to the World Health Organization’s statistical report for 2021, self-harm is listed in the top 10 causes of death within men in South Africa.

These statistics indicate that mental illness is very common and will have an impact on employees in most workplaces, whether or not employers and colleagues are aware of it as it is commonly not disclosed or discussed as a result of the stigma which exists and the fear of discrimination if it is disclosed. The Labour Court in the matter of Mogomatsi v Goredema N.O. and Others commented that:

[11] The prevalence of stress and mental ill-health in the workplace is a phenomenon that requires comprehension and acknowledgment and should not be stigmatized.
From a business perspective, it is in the interest of employers to have staff who are healthy (mentally and physically) and are productive, motivated and resilient. It is therefore in the interest of the business to foster a healthy working environment.

Employers and employees alike are often not equipped to handle mental health struggles and often do not know where to turn for help. The SADAG website (www.sadag.org) has a wealth of information and contact options for different things, from 24-hour crisis helplines, free support groups to workplace assistance programs and workshops.

It is important to appreciate that mental health conditions may be chronic conditions or they may be conditions that develop as a result of something that happens to the employee, such as work-related stress or burnout which leads to depression and anxiety. It is therefore important for employers to be aware that employee’s mental health struggles may be directly related to their employment.

A useful example for consideration is found in the matter of Le Franschhoek Hotel v Commission for Conciliation, Mediation and Arbitration and Others . The factual background is that the employee in question was a executive chef responsible for the restaurant at the Le Franschhoek Hotel. He developed mental health conditions as a result of a fire which occurred at the Hotel which could have destroyed the hotel had it not been for the action of staff, led by the employee, who fought the fire before the fire department arrived. The employee’s life was significantly impacted as a result of the anxiety, lack of sleep and panic attacks that were experienced. Assistance was sought and a medical report was provided to the employer indicating that the employee would need treatment and accommodation within the workplace would be necessary but that he could ultimately return to his full responsibilities.

The employee was given time off to obtain treatment but thereafter was ultimately dismissed by the employer based on incapacity. The employee had wanted to return to work, with assistance and accommodation as recommended by the professionals that treated him, until he was able to fully resume his former role in due course. The employer unfortunately did not offer the accommodation or assistance to the employee, electing to dismiss him because he was unable to resume his full role and responsibilities. The dismissal was found to be unfair and the employee was awarded 6 months compensation. Emphasis was placed on the additional obligations to accommodate employees who are suffering as a result of a work related incident.

The Code of Good Practice: Dismissal (2025) provides guidance to employers who are faced with situations where they have to handle incapacity issues relating to ill health, injury or incompatibility. The Code specifically sets out that it is a guideline and further indicates that in the case of small businesses their obligations are limited to what is practical and feasible to the business. The fairness of how a particular situation is handled will be judged based on its particular facts and circumstances.

Item 21 of the Code specifically requires employers to consider if an employee is incapacitated as a result of work-related circumstances and if so the duty on the employer to accommodate the employee is more onerous than it would otherwise be. The extent of the incapacity, whether it is permanent or temporary and all possible alternatives should be considered prior to dismissal.

Although an employer has obligations to assist and accommodate employees with mental health problems these obligations are limited to what is within reason. Mental health conditions should never be misused by employees to attempt to justify unacceptable behaviour. Employees will remain accountable for their actions within the working environment and action can be taken against employees who fail to meet the standards expected of them.

The Code of Good Practice and the Le Franschhoek Hotel judgement can be downloaded from our website.

22/07/2026

When has an employee resigned?

Sometimes it is fairly simple to determine whether an employee has resigned. Resignations often take the form of a written letter or email where the employee informs the employer of the resignation. However, in some instances, matters are less clear. Take for example the scenario where an employee storms off after a confrontation and then does not return to work the next day. When does conduct of an employee amount to a resignation?

The reason this question is important is because there are different legal consequences that follow from a resignation when compared to a dismissal. When most people think of “dismissal” they think of the scenario where the employer “fires” an employee. This is indeed one form of dismissal as is codified in section 186(1)(a) of the Labour Relations Act 66 of 1995. In general terms, it is indeed often the case that “dismissal” is some kind of conduct by the employer that terminates the employment relationship. The South African law imposes several strict conditions on an employer before it can dismiss an employee. Without going into too much detail on this aspect it is, in essence, necessary for there to be procedural and substantive fairness when an employer dismisses an employee. On the other hand, if an employee resigns, then an employer need not (generally speaking) worry about these issues. One obvious exception to this is when dealing with “constructive dismissal”, which essentially means that although the employee resigned, the resignation was because the employer made continued employment intolerable for the employee. Forgetting for the moment some of the exceptions such as constructive dismissal, it is accordingly apparent that there is a big difference between the responsibilities which attach to an employer when an employee resigns compared to when an employer dismisses the employee. It is therefore particularly important to understand when an employee’s conduct amounts to resignation.

There have been several matters where the court had to determine whether an employee resigned or not. For example, in Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC), an employee working for a fishing company alleged to have been dismissed by his employer in a meeting where he was told that the business was experiencing operational difficulties. The employer, however, contended that the employee had, during this meeting, indicated that he was in any event leaving his employment. The court held that the employee must show (on a balance of probabilities) whether there was some overt act by the employer that was the immediate cause of the termination of employment. The court distinguished between a dismissal such as this and a voluntary resignation, which is where the contract is terminated by the employee. In essence, the court found that what was required was a consideration of all the factual circumstances and to determine whether it can truly be said that the employee left of his or her own accord and volition. On the particular facts of the case, the court held that the employee failed to prove that he was dismissed.

In the matter between Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) the employee informed his employer that (due to the employer’s conduct) the employment relationship was permanently damaged and the employee wanted to negotiate a termination of the contract. The employer, in essence, tried to argue that this conduct amounted to a rejection by the employee of the contract and hence it was actually the employee who had terminated the contract. The court held that at no stage did the employee, by either words or conduct, evince a clear and unambiguous intention not to go on with his contract of employment. Furthermore, the court found that the employee did not act in such a way as to lead a reasonable person to conclude that he did not intend to fulfil his part of the contract, nor did he say anything to lead to such a conclusion.

Another case of note was that of Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC). In this matter the employee (after allegations about his alleged misconduct surfaced in the media) sent an SMS to the group chief executive officer indicating that he “quit with immediate effect”. The employee attempted to argue that his SMS did not constitute a valid termination of the contract and that he had withdrawn his resignation before it was accepted. The court referred to Fijen and held that a resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The court also held that it is not necessary for an employer to accept a resignation tendered by an employee and, in fact, an employer is not entitled to refuse to accept the resignation or to decline to act on it. The court did, however, indicate that a resignation must be communicated to the employer to be effective in the absence of a contrary stipulation. The court, on a consideration of the evidence, held that the employee did in fact resign.

One last case is mentioned since it serves as a good example of when there can be confusion as to whether there was a resignation or a dismissal. In this matter there was a highly acrimonious relationship between employer and employee which culminated in what appeared to be the employee resigning, although he returned to work the next day to get his job back. The court held that if the employee’s conduct did amount to a resignation, then it was in the heat of the moment and was not held to be effective.

In conclusion, whether an employee resigns voluntarily or is dismissed entails distinct legal consequences. Accordingly, an employer should be careful in presuming an intention if the employee has been unclear in whether or not he or she wants to proceed with the employment relationship.

Disclaimer: the information contained in this article is made available for general purposes only. It does not constitute legal advice. It is also subject to change depending on, amongst other things, legal developments. Accordingly, we do not accept responsibility for any loss or damage (whether direct, consequential or otherwise) which may arise from reliance on the information.

13/07/2026

THE BASICS OF THE FIDUCIARY DUTIES OF DIRECTORS

Being a director of a company in South Africa entails certain obligations. Many people will have heard of the fiduciary duties owed by directors, but not everyone has a fundamental understanding of what these duties entail. Failure by a director to comply with these duties could entail serious consequences. It is accordingly important that every director has a basic grasp of these issues. What, however, do these duties involve and what are some of the basic concepts that directors in South Africa have to be aware of?

South African law on director duties emanates from the common-law and from legislation. Not all of these can be discussed in detail here, but the focus will be on some of the key duties. The Companies Act 71 of 2008 (“Act”) prescribes several important responsibilities of directors. Section 76(3)(a) and (b) of the Act requires that a director must exercise the powers and perform the functions of a director in good faith, for a proper purpose, and in the best interests of the company. This raises the question, however, of how to determine whether a director acted in good faith. In summary, it requires the application of a subjective test. A subjective test, in essence, means looking at the director’s intention, which can be determined by looking at several factors, such as his or her conduct.

Section 76(2)(a) of the Act is also important. It requires that a director must not use his or her position or information obtained from that position to gain an advantage other than for the company (or a wholly-owned subsidiary of the company), or knowingly to cause harm to the company (or a subsidiary of the company). Subject to certain exceptions, a director must communicate pertinent information that comes to the director’s attention to the board as soon as possible.

Section 76(3)(c) of the Act requires, in summary, that a director must act with a requisite degree of care, skill and diligence when exercising his or her powers and functions. What can reasonably be expected of a director will depend on several factors. Of particular significance, is to have regard to what kind of functions the director performs and what kind of general knowledge, skill and experience the director has.

Some of the common-law duties should also be mentioned, since not all of these duties are expressly stated in the Act. They include, but are not limited to, the duty not to appropriate for his or her own benefit, opportunities that rightfully belong to the company, and the duty not to compete improperly with the company.

A director who has been found to be in breach of these obligations can, to name but one example, be held liable to the company for any loss or damaged caused by that breach.

Considering all of this, it may be quite daunting for a person to take on the role of a director. What softens this, at least a bit, is what is known as “the business judgement rule”, which is codified in section 76(4) of the Act. The rule, in essence, states that directors will be deemed to have complied with their duties to act in the best interests of the company and with the required degree of care, skill, and diligence if they have taken reasonable and diligent steps to inform themselves about the matter and (in the case of a decision) they can show a rational basis for believing, and did believe, that the decision was in the best interests of the company. Whilst this is helpful to honest directors, it does not apply to, for example, intentional and reckless conduct.

Another useful source when considering director duties are the King Reports. Although that is the subject of another discussion.

In conclusion, there are several aspects and nuances to consider when evaluating director duties. Having at least a basic understanding of these responsibilities is a necessity for any director.