Mia v State Information Technology Agency (Pty) Ltd (D 312/2012) [2015] ZALCD 20 [2015] 7 BLLR 694 ; (2015) ILJ 1905 (LC) (26 March 2015) per Gush J.

Leave of absence is provided for by law in the best interests of newly born children.  The employer of a parent in a duly registered union was ordered to grant the parent ‘maternity’ leave after an application in terms of s 6 of the Employment Equity Act 55 of 1998 was made by a parent following the birth of a child by a surrogate mother.  It was a clear case of discrimination that could not be justified on any basis in law.

Heard: 19 and 20 November 2014     Delivered:       26 March 2015

Gush J

[1]     In this matter the applicant applies to have the respondent’s refusal to grant him paid “maternity” leave on the basis that he is not the biological mother of his child under a surrogacy agreement to constitute unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation as provided for in section 61 (sic) of the Employment Equity Act[1]. The relief the applicant seeks, for himself and “other similarly placed applicants” (sic) is for the court to direct the respondent to refrain from so discriminating and accord due recognition of their rights.  In addition the applicant seeks damages and payment for the unpaid leave he was required to take to care for his child.

[2]     When the applicant applied for maternity leave, the respondent refused to grant maternity leave on the grounds that its policies and Basic Conditions of Employment Act only covered “female” employees and were silent on the issue of leave for surrogate parents. The respondent initially offered the applicant “family responsibility leave” or special unpaid leave.  Subsequently the respondent granted the applicant two months paid adoption leave and two months unpaid leave.