Parents in South Africa will now have four months and ten days of parental leave to share between them, following a groundbreaking Constitutional Court ruling.
The Constitutional Court of South Africa has confirmed a ruling from the Gauteng High Court in Johannesburg that the country’s current labour laws for maternity leave violate the Constitution.
Under the Basic Conditions of Employment Act (BCEA), biological mothers are granted four months of maternity leave, while fathers receive ten days of paternity leave.
This leave time works with provisions of the Unemployment Insurance Fund (UIF) Act, to allow for parents to claim relief during this period.
The High Court ruled in 2023 that these provisions were discriminatory because they placed a disproportionate burden on women as default caregivers and did not allow for fathers to be treated equally in child care.
The case also addressed the experiences of adoptive and surrogate parents, who currently face legal limitations when seeking paid leave under the BCEA.
The High Court found that these restrictions are discriminatory, noting that the act’s provisions do not account for diverse family structures or acknowledge that the primary caregiving role can be assumed by any parent, regardless of biological connection to the child.
This aspect of the case underlined a broader commitment to ensuring that all families, regardless of their composition, are treated equitably under the law.
In its decision, the court emphasised that parents, regardless of gender, should have the right to determine how to balance work and caregiving responsibilities following the birth or adoption of a child.
The High Court proposed that both parents should be entitled to the four months of paid leave currently reserved for biological mothers, thereby giving families more flexibility to decide who provides infant care and how caregiving duties are shared.
While the ruling set a groundbreaking precedent for South African leave policies at the time, the matter had to be sent to the ConCourt for confirmation to take effect.
This confirmation has now arrived.
In its ruling on Friday (3 October), the Constitutional Court agreed with the High Court’s findings that the BCEA and UIF Act infringed on a father’s right to dignity by marginalising his involvement as a parent and depriving parents of the choice to structure their child-nurturing responsibilities.
The current laws unfairly require one parent, the birth mother, to take on the bulk of childcare duties and earmark them as the “default parent”, it said.
This also creates disparity and unequal treatment of adoptive and commissioning parents, the court said. This amounts to unfair discrimination.
What the Constitutional Court ordered
The ConCourt confirmed the High Court order, declaring that sections of the BCEA and UIF Act were invalid and inconsistent with the Constitution.
The declarations are suspended for a period of 36 months to afford Parliament the opportunity to remedy the constitutional defects.
However, pending the remedies, the court said that provisions of the BCEA are now amended to read that the current allowance of four months should be retained.
Instead of applying only to biological mothers, parental leave should not be restricted, but applicable to fathers as well.
The additional 10 days contemplated in the laws should also be retained, giving a total of four months and 10 days leave to be sahred among the parents.
Where only one of the parents is employed, that parent should be entitled to the full parental leave.
In the case of 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, the court said.
In the case of a disagreement, the leave should be apportioned as close as possible to an even split of the days.
Regarding the corresponding UIF provisions, the court said that it would be inappropriate to provide an interim reading in, because it does not have sufficient information on how UIF benefits are calculated, and a reading-in could have significant financial implications.
The ConCourt gave the government until six months before the 36-month period is up to report back on whether the laws have been corrected.
Any party can apply, no later than four months before the expiry of the 36-month suspension period, for supplementary relief.
Read full judgement HERE
Source: www.businesstech.co.za
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