Father on paternity leave looking after his infant son at home
The landmark Constitution court ruling allowing couples to share the statutory four-month parental leave between them has left many employers debating its implications in the workplace.
Labour lawyers and progressive bodies, including the Congress of South African Trade Unions, welcomed the judgment as a significant step towards gender equality in the workplace.
Lawyers also believe the judgment is a powerful affirmation of the constitutional rights to equality and dignity, and recognised that caregiving is not the exclusive responsibility of mothers and that both parents should have the freedom to decide how best to care for their child.
Couples can now share four months of parental leave
It will require an amendment to the Basic Conditions of Employment Act which currently provides mothers with up to four months of maternity leave and only 10 days for fathers.
A team from Johannesburg law firm Webber Wentzel challenged the unequal parental leave provisions under Section 25 of the Act.
They argued that Section 25 unfairly discriminated against fathers and placed an undue burden on the birthing mother by not allowing families to decide who should be the primary caregiver.
ALSO READ: ConCourt rules fathers entitled to equal parental leave as mothers
In its verdict, the court confirmed the argument and criticised the 10-day leave for fathers by rejecting the cultural norms that reinforce gendered parenting roles as inconsistent with constitutional values.
The case was backed by gender rights bodies ā the Commission for Gender Equality (CGE) and Sonke Gender Justice.
The CGE, which advocated for equal parental leave for adoptive and surrogacy commissioning parents, was granted its wish by the Concourt, while Sonkeās request for an equal 16- week leave for both parents was unsuccessful.
Sections of Basic Conditions of Employment Act ‘unconstitutional’
In a ruling delivered by Justice Zukisa Tshiqi, the court confirmed that Sections 25, 25A, 25B and 25C of the Act, along with corresponding provisions of the Unemployment Insurance Fund Act, are unconstitutional.
The court held that these provisions violate the rights to equality and human dignity under Sections 9 and 10 of the constitution.
The judgment will result in the four months of maternal and the 10 days of paternal leave combined, which parents may now share as they choose.
ALSO READ: PICS: Maternity fashion, Rihanna and her kids steal the show on The Smurfs blue carpet
If no agreement is reached, the leave will be split equally. Where only one parent is employed, that parent will be entitled to four consecutive months of parental leave.
In terms of the ruling, the same parental leave provisions apply to adoptive parents and commissioning parents in a surrogacy arrangement.
However, the effectiveness of the ruling has been suspended for 36 months to allow parliament to amend the relevant sections to comply with the constitution for both Acts.
Employers urged to update leave policies and contracts
Webber Wentzel said it encouraged employers to review and, where necessary, update their leave policies and employment contracts to reflect the new parental leave framework.
āThis judgment is a powerful affirmation of the constitutional rights to equality and dignity.
āIt recognises that caregiving is not the exclusive responsibility of mothers and that both parents should have the freedom to decide how best to care for their child,ā said Nkosinathi Thema, senior associate at Webber Wentzel.
NOW READ: Japan PM pledges aid in ālast chanceā to boost birth rate
About the Author
