Landmark judgment grants equal parental leave

In a far-reaching judgment, South Africa's Constitutional Court has effectively granted all parents – regardless of gender, sex, colour or circumstances – equal parental leave rights. IoL reports that the court declared that parents will now be entitled to four months and 10 days of leave, which they may share between them. This decision significantly alters the previous legal framework, which critics argued unfairly distinguished between maternity, parental and adoption leave. The matter, which originated with the application brought by Werner van Wyk and others, challenged the existing provisions in the Basic Conditions of Employment Act and the Unemployment Insurance Act. The challenge was rooted in the argument that the legislation unfairly discriminated against parents who were not the birth mother – specifically, fathers, adoptive parents and commissioning parents – by granting them only 10 days of parental leave, while the birth mother received four months. The applicants, including Van Wyk, sought to address the unfair societal burden placed primarily on mothers, highlighting that parenting responsibilities should be shared.

The Constitutional Court's ruling means both parents can now decide how best to divide the four-month leave period, allowing for greater flexibility in managing childcare responsibilities and aligning SA law with a more progressive view of shared parenting. Legal experts say the decision marks a progressive step in family law and workplace equality. IoL notes that the judgment is expected to have far-reaching implications for employers, who will need to adjust their leave policies to comply with the new standard. Reaction from labour groups and gender rights activists has been overwhelmingly positive, with many describing the ruling as a major victory for gender equality and family rights in the workplace.

Par­lia­ment has been tasked with review­ing the law to cush­ion the impact of a poten­tially ‘enorm­ous’ fin­an­cial bur­den on the Unemployment Insurance Fund (UIF) triggered by the order. Business Day reports that the court declared invalid the Basic Con­di­tions of Employ­ment Act and sec­tions of the UIF Act that limit par­ental leave and related bene­fits for adopt­ive par­ents and com­mis­sion­ing par­ents in sur­rog­ate moth­er­hood agree­ments. The Con­sti­tu­tional Court judg­ment, penned by Judge Zukisa Tshiqi, provided an interim read­ing-in of changes to these laws that will be oper­at­ive for the 36 months afforded to Par­lia­ment to rem­edy the con­sti­tu­tional defects. However, Tshiqi did not issue an interim order cor­rect­ing the cor­res­pond­ing UIF pro­vi­sions, cit­ing a pos­sible ‘enorm­ous fin­an­cial bur­den’ on the UIF. ‘Interim amend­ments to the UIF Act cor­res­pond­ing to those we make in respect of the Basic Con­di­tions of Employ­ment Act could have sub­stan­tial fin­an­cial implic­a­tions,’ Tshiqi said.

‘There must be many instances of couples where the mother is unem­ployed but the father is employed,’ the judge said. ‘If the employed father were now to be gran­ted 17.32 weeks’ UIF bene­fit, an enorm­ous addi­tional bur­den might be imposed on the UIF. It is thus prefer­able for the law­maker to decide the extent of UIF bene­fits to be con­ferred on employed par­ents in a non-dis­crim­in­at­ory man­ner,’ Tshiqi said. According to Business Day, Michael Bagraim, a labour law­yer and DA mem­ber of Par­lia­ment’s Port­fo­lio Com­mit­tee on Employ­ment & Labour, said the fund should not have any prob­lems with money because it is ‘gen­er­ously fun­ded.’ Bagraim said Par­lia­ment would, however, have to do a lot of work to decide the detail of how the labour law should be changed to com­ply with the court order in a sus­tain­able man­ner.

SA’s biggest union federations have also welcomed the confirmatory judgment. SA Federation of Trade Unions general secretary Zwelinzima Vavi said the judgment was a gigantic step towards equality. ‘This is a decisive move to uproot patriarchy, rebalance care work and force a societal rethink: men must step forward and take an equal role in raising their children,’ he said. Tony Healy of Icon Labour Consultants said the apex court ruling was expected because ‘it was always puzzling’ why parental leave did not equally cater for fathers. Cosatu’s Matthew Parks described the judgment as progressive. ‘This bold ruling by the Constitutional Court endorses Cosatu’s long-standing call for greater equality and responsibility for parents as well as more flexible choices for them based upon the individual family’s needs and circumstances,’ he said. There should be urgent engagements at the National Economic Development and Labour Council with the Department of Employment & Labour to effect the necessary legislative amendments, he said. According to Business Day, Employment & Labour Minister Nomakhosaza Meth did not oppose the application in court and indicated that the department would abide by the court’s ruling.