7 December, 2023In a case that will transform how maternity and parental leave is taken in South Africa, the Gauteng High Court in Johannesburg ruled that working parents can take turns in taking the four months’ maternity leave. Previously, maternity leave applied only to the “pregnant mother.”
With the ruling, working parents will now be entitled to the leave after informing their employers prior to the birth of a child about the dates on which they intend to take the leave. Before the ruling fathers could only apply to paternity leave of 10 days after the birth of a child.
Through the judgment made on 25 October, the court declared that some sections of the Basic Conditions of Employment Act (BCEA) 1997 and the Unemployment Insurance Fund Act (UIF) 2001 were invalid. The court stated that sections of these laws violated the South African Constitution through unfair discrimination. For example, the court listed the forms of unfair discrimination to include that “between mothers and fathers” and “between one set of parents and another on the basis of whether their children - were born of the mother, were conceived by surrogacy” or “were adopted.”
To eliminate the inequality, the court agreed with the arguments made by Werner Van Wyk, and Ika Van Wyk that “all parents of whatever stripe, enjoy 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.” The court gave the national parliament two years to make amendments to the law to “cure the defects.”
The matter was brought to court by the Van Wyks, a married couple and parents of a child, Sonke Gender Justice – a civil society organization that advocates for gender equality, and the Commission for Gender Equality – a Chapter 9 institution to protect and support democracy as per the national constitution, challenged clauses in the BCEA and the UIF acts and sued the minister of labour and employment. The application was supported by Amicus Curiae or friends of the court who included the Centre of Human Rights at the University of Pretoria, Solidarity Centre South Africa, International Lawyers Assisting Workers Network, the Labour Research Service, and the National Employers Association of South Africa who supported the minister of labour.
Susan Khumalo, IndustriALL co-chair for Sub Saharan Africa and SACTWU president, said:
“This is a welcome and progressive court ruling that unions are applauding which is aimed at aligning labour laws with the South African Constitution. Sharing maternity leave days between parents promotes gender equality and lessens the burden for working women. It is important that the courts recognize and value gender equality and the shared responsibilities of both parents in nurturing infants especially in the first few months after birth.”