South Africa has witnessed a groundbreaking High Court ruling that promises to transform both parental leave and gender equality within the nation.
The Johannesburg High Court, in a significant verdict, has deemed the existing legislation governing maternity leave, adoption leave, and surrogacy leave in South Africa to be in violation of the Constitution.
The ruling asserted that it discriminates against various categories of parents while infringing upon their dignity and the best interests of their children.
This landmark case was initiated by four petitioners who contested the provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIFA). The applicants comprised a father seeking leave following the birth of his child, a mother aspiring to share leave with her partner, a surrogate mother desiring leave after transferring the child to the commissioning parents, and an adoptive parent seeking leave following the adoption of a child.
Advocate Tertius Wessels, the Legal Director of Strata-g, elucidated on the matter, stating, “The applicants argued that the current law unfairly favours mothers over fathers and excludes parents who have children through surrogacy or adoption. They also claimed that the law infringes on the rights of parents and children to equality, dignity, family life, and the best interests of the child.”
The Court concurred with the applicants, finding that the existing law contravened sections 9 and 10 of the Constitution, which guarantee equality and human dignity.
The Court pointed out that the legislation establishes a hierarchy among parents based on their biological or legal connection with their child and fails to acknowledge the diverse family structures present in South Africa. Moreover, the Court underscored that the legislation undermines the role of fathers and other caregivers in raising their children, thereby depriving children of the opportunity to bond with both parents.
The Court has, therefore, declared sections 25, 25A, 25B, and 25C of the BCEA, as well as corresponding sections of the UIFA, to be unconstitutional and invalid. However, the Court has suspended the declaration for two years, affording Parliament the opportunity to enact remedial legislation that complies with the Constitution. In the interim, the Court has directed that the law be amended to establish a new provisional regime for parental leave.
Under this interim regime, a single parent is entitled to a minimum of four consecutive months of parental leave, while a pair of parents collectively enjoy the same duration of leave, which they can take as per their preference.
Parents must notify both employers in writing of their decision before the birth date, specifying the chosen allocation of leave. This change seeks to create a level playing field for both mothers and fathers, ensuring a fair and equitable approach to parenting.
The judgment extends parental leave to surrogacy parents and adoptive parents, granting them access to full Unemployment Insurance Fund (UIF) benefits. Surrogate mothers and adoptive parents are now entitled to four months of parental leave, aligning their rights with those of biological parents. Except for those adopting children older than two years, all parents are eligible for UIF payments during their parental leave.
Furthermore, the Court maintains that this new regime will guarantee equal and fair treatment of all parents, safeguarding the best interests of their children.
“The judgment has been welcomed by various civil society groups and legal experts, who hailed it as a landmark victory for parental rights and gender equality. These crucial changes ultimately benefit the welfare of children and the dignity of parents. The decision is set to have far-reaching implications for employers and employees alike, promoting a more inclusive and equitable approach to parenting in the workplace,” concluded Wessels.
As this high court ruling promises to reshape parental leave and gender equality, we invite readers to share their thoughts and opinions in the comment section below on this historic development.
