Introduction

I was in a retail store with a friend and her one-month-old baby. We struck up a conversation with the teller, Doreen, who mentioned that she too had a baby of the same age. When I asked why she was not on maternity leave, she explained that she couldn’t afford not to get paid. Her baby was with her mother. I probably overreached in asking about the father’s involvement, but she simply looked down and shook her head.

In the next 15 minutes, I will address the issue of maternity benefits in South Africa and share what we are seeing in the dispute resolution fraternity regarding women’s experiences of harassment in the workplace. However, I will start with the gender wage gap, as this issue most often captures headlines.

The Wage Gap

One of the headlines in the South African newspapers on Monday was that a recent report compiled by Discovery Corporate found that women earn 24% less than men on average. According to the World Economic Forum, in 2025 women in South Africa earn 23% to 35% less than men. This is not unique to South Africa; it is a persistent international challenge that is widely reported on.

Are these disparities the result of discriminatory practices in organisations, or something more intractable, if not intangible? Two common narratives have emerged: the first is that workplaces are still discriminatory and sexist, and the second is that disparities arise because men occupy more senior positions, skewing the figures. Both narratives, however, fail to capture the nuance of reality for most working women.

The first explanation – that the pay gap reveals pay discrimination – is not well supported by law or the awards and judgments from tribunals and courts. Even before the amendments to the Employment Equity Act in 2014, which introduced equal pay for equal value (“pay parity”), discrimination in pay was already prohibited. While there are no reliable statistics on the outcome of pay parity disputes at the CCMA, a review of awards and judgments suggests that very few cases confirm discrimination in pay on an individual level. Our legal framework, collective agreements, and the minimum wage have played an important role in narrowing gaps.

In disputes, the Labour Court has held that it is not enough to simply allege that a comparator earned more due to gender or race; something more is required to prove discrimination. Section 6(4) of the Employment Equity Act states that differences in terms and conditions of employment are unfair only if they are directly or indirectly based on discriminatory grounds. Regulation 7 further clarifies that differences may be fair if based on legitimate factors such as seniority, qualifications, competence, performance, or market forces.

Case law illustrates this complexity. In Sun International Limited v SACCAWU obo Ramerafe and Others (2019), a woman earned 51% of her male colleague’s salary. Although the CCMA initially found in her favour, the Labour Court overturned this, citing factors such as seniority, qualifications, and market-related justifications. These factors demonstrate how gender pay discrimination is not easily proven and that labour market realities often play a role in salary disparities.

Research also suggests behavioural factors: in the UK, men are 25% more likely to request pay rises or higher salaries. Moreover, men’s and women’s salaries begin to diverge during the childbearing years, a phenomenon labelled the “motherhood penalty.” This penalty is compounded by the “good-daughter penalty” when women assume caregiving roles for elderly parents. Discovery Corporate found that the gap widens as women age, likely due to fewer promotions and structural biases.

If the wage gap is not primarily caused by overt discrimination, but rather the realities of women’s maternal roles, then the question becomes: where should gender challenges be addressed?

Maternity Benefits

South Africa has progressive laws that prohibit discrimination based on pregnancy and provide for four months of maternity leave. In Van Wyk and Others v Minister of Employment and Labour (2023), the High Court found sections of the Basic Conditions of Employment Act unconstitutional, ruling that maternity leave should be shared between parents and that adoptive and surrogate parents should enjoy the same benefits as biological mothers. This landmark judgment, still pending confirmation by the Constitutional Court, challenges outdated gender roles and promotes equal caregiving responsibilities.

By recognising men’s role in child-rearing, this could help address the motherhood penalty by redistributing the burden of parenting. However, does this address the realities of women like Doreen? Stats SA reported in 2022 that over 43% of children live only with their mothers, while only 34% live with both parents. Around 60% do not live with their biological fathers, influenced by migrant labour, economic constraints, and changing social norms.

For many women, the reality is balancing single parenthood with employment, often without support from fathers or maintenance. Added to this are patriarchal expectations at home, where women shoulder responsibilities of childcare, household duties, and extended family support, even while working. This is likely Doreen’s situation, compounded by unpaid maternity leave that forced her back to work when she should have been with her baby.

When considering Regulation 7 factors such as qualifications, competence, and performance, one must ask: how are women like Doreen expected to compete with their male counterparts under these structural constraints?

Harassment

Beyond wage and maternity issues, women must also contend with harassment in the workplace. South Africa adopted the Code of Good Practice for the Prevention and Elimination of Harassment in March 2022.

Statistics highlight the problem. In 2023, an International Bar Association study found that 43% of women legal practitioners in South Africa reported sexual harassment, as did 12% of men. A 2019 South African Human Rights Commission survey reported that 30% of women and 18% of men had experienced workplace harassment. These figures are likely conservative.

In my work mediating, investigating, and presiding over harassment cases, I have observed a marked increase in reporting. This is not necessarily due to more harassment occurring, but rather because of greater awareness, the #MeToo movement, and younger workers who are more willing to assert their rights. Employers, facing potential liability, are also investing in hotlines and reporting systems.

Internationally, I have seen that South Africa is ahead in terms of policy. The inclusion of both formal and informal approaches in resolving harassment cases has proven effective. Informal resolution can educate perpetrators and prevent future misconduct, while serious cases appropriately lead to disciplinary action. This balance ensures both accountability and prevention.

Conclusion

The wage gap reflects the lived realities of women: they are often paid less, disproportionately bear the responsibilities of motherhood, and face workplace harassment. We are far from the world envisioned in the Van Wyk judgment, where men and women share parenting responsibilities equally.

Nonetheless, South Africa’s framework of maternity protections and anti-discrimination laws provides a strong foundation. The Employment Equity Act and the Code of Good Practice on Harassment offer important tools for addressing inequality, even though harassment and structural disadvantages remain pervasive.

We must continue to push forward so that women like Doreen can enjoy both parenthood and prosperity at work, on the same terms as their male counterparts.