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Paternity leave ruling welcomed

Both parents now have the right to decide how they want to take parental leave following a High Court judgment.

Both parents now have the right to decide how they want to take parental leave following a High Court judgment.

Published Nov 4, 2023


THE Constitutional Court must still make a final decision, but the groundbreaking Johannesburg High Court judgment which ruled that both parents can now take parental leave, and claim from the Department of Labour’s Unemployment Insurance Fund, has been met with a mixed response.

While some organisations like Sonke Gender Justice (an applicant in the matter) welcomed the ruling, others like the National Employers Association of South Africa (Neasa) said it would place an ”undue and impractical” administrative burden on the employer.

“...the practical implications of this judgment are quite disastrous. In addition, this judgment has left the physical realities of actual childbirth to take a back seat in the name of equality,” said Neasa.

Last week Deputy Judge President Roland Sutherland declared certain provisions of the Basic Conditions of Employment Act (BCEA) invalid because they contradicted sections 9 and 10 of the Constitution as it discriminated between mothers and fathers.

Anli Bezuidenhout, the director of employment law practice at Cliffe Dekker Hofmeyr, said following this ruling both parents are now collectively entitled to four consecutive months of parental leave after the Court stated that the provisions in the BCEA relating to the relevant parental and maternity leave provisions were at odds with the objectives of ”equality and dignity”.

“With this judgment now it essentially says it’s not for the legislature to determine who should be home to nurture, that should be for the family to decide. So the judgment says take the four months that have been provided initially and tells parents that they can split those four months as they deem fit’’.

Bezuidenhout said the judgement gives parents the freedom to make their own arrangements, leaving family arrangements for the family to decide on.

The matter went to court when Polokwane couple Werner and Ika van Wyk challenged sections of the BCEA saying that they discriminated against fathers by limiting their rights to parental leave.

Ika van Wyk is an entrepreneur who runs two businesses, while her husband has a job in the corporate sector.

Because of Van Wyk’s business interest she couldn't take four months of leave and instead wanted her husband to take time off to look after their baby.

“That application was declined based on the wording of the legislation at that point," said Bezuidenhout.

She said the ruling now meant that fathers or supporting partners, whatever the relationship or the arrangement, may now stay at home with the newborn baby should the mother or primary caregiver decide to return to work sooner than anticipated or to not take time off at all.

Garron Gsell, of the Men Foundation, said the ruling went a long way in restoring the dignity of men in society. “As we strive for a gender equal society, righting the wrongs of the past where women have been marginalised members of society, we cannot ignore the plight of men that choose to be active parents. We are dealing with the societal impact relating to the high rate of absent fathers, and legislation is needed to support men who are active parents and play a role in the lives of their children,” Gsell said.

He said their research showed that men were 47% more at risk of suicide at the time of becoming fathers due to the changes and pressures faced by men and the impact on their mental health.

“This ruling provides men the opportunity to adapt to the impact of fatherhood. With South Africa having the highest male suicide rate globally, this ruling does enable men (to take) the time to seek the necessary support,” said Gsell

Sonke Gender Justice said the ruling recognises the diversity of modern family structures and that both parents play an integral part in the nurturing of children.

“We welcome this landmark judgement which is contributing to growing our jurisprudence on the quest for shared care-work in families. Although we did not get all that we prayed for, we are nevertheless gratified that the court was persuaded on the key asks by the legal teams. This is groundbreaking and will go a long way in influencing a positive attitude towards shared care work,’’ said Bafana Khumalo, Co-Executive Director of Sonke Gender Justice and Co-Chairperson of Global MenEngage Alliance.

Neasa called the ruling a “ridiculous arrangement” saying that the different employers of respective parents would have to communicate with each other to ensure that no leave-fraud was committed. It said this would cause “administrative chaos”.

Neasa said that no study had been done to calculate the impact of the ruling on the taxpayer and the state fiscus.

“Nonetheless, the judgment amends the relevant sections of the UIF to ensure that all parents who contribute and now qualify for the four months’ parental leave, can claim. This, despite the already horrifying circumstances of ineptitude and complete lack of service reigning at the UIF,’’ Neasa said.

The Independent on Saturday