Civil society groups welcome ruling on parental leave for mothers and fathers

A court has ruled that the maternity provisions are unconstitutional as it discriminates between parents. Picture: jcomp from Freepik

A court has ruled that the maternity provisions are unconstitutional as it discriminates between parents. Picture: jcomp from Freepik

Published Nov 1, 2023


Durban - Human rights organisations have welcomed the landmark high court judgment that found the existing maternity provisions under the Basic Conditions of Employment Act (BCEA) unconstitutional as they unfairly discriminated against various types of parents.

The declaration of constitutional invalidity was suspended for two years so that remedial legislation could be enacted by Parliament.

In the interim, the court ruled that all parents have four consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the four months leave as they elect.

However, the judgment will require confirmation by the Constitutional Court.

The ruling was handed down last Wednesday by Johannesburg High Court Judge Roland Sutherland in the matter of Werner van Wyk and others versus the Minister of Employment and Labour and others.

The court found that the provisions of the Basic Conditions of Employment Act No 75 of 1997 and the corresponding provisions of the Unemployment Insurance Fund Act No 63 of 2001 (UIF Act) unfairly discriminate between mothers and fathers as well as different sets of parents in terms of surrogacy, or adoption.

Childline KZN acting director Adeshini Naicker said this was a move in the right direction for families, and more importantly for the emotional development of children.

“Although historically mums were seen as the primary caregivers, recent years have seen fathers step up and become more present and involved in the children’s lives. This move allows dads to easily create a firm and nurturing bond with their babies,” she said.

Sonke Gender Justice, who assisted the court during the case, welcomed the ruling, which they said marked a new era of a more inclusive and equitable society.

The organisation said the ruling recognised the diversity of modern family structures, and that both parents play an integral role in nurturing children.

Bafana Khumalo,the co-executive director of Sonke Gender Justice and co-chairperson of Global MenEngage

Alliance, said the groundbreaking ruling would go a long way in influencing a positive attitude towards shared care work.

“We welcome this landmark judgment, which is contributing to growing our jurisprudence on the quest for shared care-work in families. Although we did not get all that we asked for, we are nevertheless gratified that the court was persuaded on the key points by the legal teams.”

The organisation added the court had called for the legislature to make amendments and ensure they were effected within the next 24 months.

Gary da Silva, the chairperson of Official Fathers 4 Justice organisation, cautiously welcomed the ruling but emphasised that genuine equality was far from being realised.

“True equality would entail automatically shared 50/50 contact, care, guardianship, and maintenance of the child from birth. Until such equality is achieved, the biased government, justice system, and social structure may perpetuate the abuse of children and fathers.

“The recent ruling, although a positive step in acknowledging paternal rights, underscores the significant distance yet to be covered before fathers are on an equal footing in South Africa,” he said.

Law firm Webber Wentzel said this landmark decision had the potential to transform the parental leave landscape in South Africa.

“The Van Wyk case represents a significant step toward achieving gender equality and shared parental responsibility. This court decision has set a precedent that may pave the way for a more inclusive and supportive work environment for all parents in South Africa, ultimately benefiting families, employees, and employers.”

The firm said that as the legal landscape evolved to accommodate this expanded definition of parental leave, it was essential for employers to review their policies and practices to ensure compliance with the new legal framework.

“Depending on the ultimate relief granted, this decision will allow, where they so choose, two parents dividing the four months of parental leave in different ways to care for their newborn children. Employers should take note of the operational and cost implications, particularly if they provide paid maternity leave.”