Lawyers for Human Rights will represent various organisations tomorrow in a legal challenge in which a couple are asking the court to have the current definition of maternity leave expanded to pave the way for both parents to be entitled to the same leave.
Polokwane couple Werner and Ika van Wyk are turning to the Gauteng High Court, Johannesburg, with the support of the Sonke Gender Justice organisation.
The couple will ask that both parents be allowed to take four months’ maternity leave, and that this not only apply to mothers.
Lawyers for Human Rights will, as a friend of the court, will be representing the Centre for Human Rights at the University of Pretoria, Solidarity Centre of South Africa, the International Lawyers Assisting Workers Network, and Labour Research Service.
The matter has been set down for three days and is expected to be concluded by Friday.
The case, Werner van Wyk and others v Minister of Employment and Labour, is a challenge to the Basic Conditions of Employment Act 75 of 1997 provisions that the applicants state unfairly discriminates against fathers and other non-birthing parents by limiting the definition of maternity leave to birthing mothers.
Lawyers for Human Rights will present submissions on international law instruments and norms relating to gender equality, non-discrimination, child rights and the rights of families in the context of parental leave, as well as trends in other countries relating to parental leave.
It will draw the court’s attention to these international and comparative trends that support the move from a scheme of maternity benefits for a child-rearing parent, to one of robust equality and non-discrimination, both between a child-bearing and non-child-bearing parent.
It will also highlight the needs of non-traditional parents who still carry the responsibility of child-rearing, such as adoptive and surrogacy-commissioned parents, to be allowed to take maternity leave.
The submissions will focus on the rights of families to have the liberty to decide what care-giving plan is in their best interests, and in the best interests of their child, LHR said.
The Van Wyks are challenging sections of the Basic Conditions of Employment Act, which they argue unfairly discriminates against fathers of newborns by limiting their rights to paternity leave.
The case was sparked after Werner van Wyk earlier applied for four months’ leave from his employer to care for their newborn, as his wife had to return to work to oversee her businesses. His request was denied.
The couple are asking the court to declare that the law, as it stands, discriminates against fathers of newborns.
They feel that the law should be extended to ensure equal rights of mothers, fathers and same-sex parents.
As things stand, fathers are entitled to 10 days’ paternity leave following the birth of their children, while mothers are entitled to up to four months of unpaid maternity leave.
The four months for the birth mother are compulsory by law. Fathers, however, have only since January 2020 been entitled to the 10 days’ paid paternity leave.
Pretoria News