LISTEN: Parental leave for all parents in South Africa, an experts explanation
A historic ruling gives all South African parents equal parental leave, reshaping family life and workplace equality. Here's what Legal Expert Hope Mboweni of Shepstone and Wylie had to say.
A landmark Constitutional Court decision declares sections of the parental leave law unconstitutional, granting equal leave rights to all parents, including adoptive and surrogate parents.
South Africa’s Constitutional Court has ruled for equal parental leave, transforming family and workplace rights for all parents.
What was the previous law on parental leave in South Africa?
According to Stacey, “Previously, the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act set out four types of leave for parents. Biological mothers were entitled to four consecutive months of maternity leave, while fathers were allowed only 10 consecutive days of parental leave. Adoptive parents could take 10 consecutive weeks, and parents involved in a surrogacy agreement were entitled to 10 consecutive days of commissioning parental leave. All these types of leave were unpaid under the BCEA.”
Who is affected by the Constitutional Court’s ruling?
J Sbu explained, “The ruling affects new parents, adoptive parents, and those involved in surrogacy agreements. The case that led to this decision involved a couple, Mr and Mrs Fve, who faced a unique situation. Mr Fve wanted to take the four months of leave to care for their child while Mrs Fve returned to work, but his employer denied this request, as the BCEA only allowed fathers 10 days of leave. The couple challenged this in court, and the High Court found the provisions unconstitutional. The Constitutional Court confirmed this, declaring that the BCEA’s provisions were unconstitutional and that all parents, biological, adoptive, and those in surrogacy agreements, are entitled to four months and 10 days of leave, which can be shared between parents.”
How will this ruling impact workplace policies and payroll systems?
Hopewell noted, “Employers will need to review and amend their workplace policies to comply with the new ruling. Any policies that previously granted four months of leave only to female employees must now extend this right to male employees as well. Adoption leave policies, which previously allowed only 10 weeks, will also need to be updated. Leave forms and related documentation must be revised to include all eligible parents, regardless of gender or the nature of their parenthood.”
What about UIF payments and financial implications?
Stacey pointed out, “The Constitutional Court did not provide detailed guidance on UIF payments, as there was insufficient information before the court to address this issue. The question of how to extend UIF benefits to all parents, including men, remains unresolved. Parliament has been given 36 months to amend the BCEA and address these practical and financial considerations, including the extension of UIF benefits.”
What challenges could arise during the transition period?
J Sbu commented, “Several challenges may arise during the 36-month period allocated for legislative amendments. One notable issue is how the new leave entitlements will apply in cases of polygamous marriages, which are recognised in South Africa. For example, if a male employee has two wives who become pregnant at different times in the same year, it is unclear how the leave entitlement will be managed. The law currently allows only one period of leave per year for female employees, but this situation is more complex for male employees. Parliament will need to provide clear guidelines to address such scenarios.”
When does the new parental leave entitlement take effect?
Hopewell explained, “The Constitutional Court has provided interim relief, meaning that the new entitlement of four months and 10 days of leave is applicable immediately. However, the BCEA itself can only be amended by Parliament, which has 36 months to do so. In the meantime, all parents are entitled to the new leave provisions.”
What does this mean for South African families and workplaces?
Stacey concluded, “This ruling is a significant step towards equality in parental leave, recognising the diverse forms of parenting in modern South Africa. It ensures that all parents, regardless of gender, adoption, or surrogacy, have the right to share in the early care of their children. While practical challenges remain, the decision marks a transformative moment for family life and workplace rights in the country.”
HOW TO LISTEN TO EAST COAST RADIO
1. Listen to East Coast Radio on the FM (frequency modulation) spectrum between 94 and 95 FM on your radio.
2. Listen live to ECR by clicking here or download the ECR App (iOS/Android).
3. Listen to East Coast Radio on the DStv audio bouquet, channel 836.
4. Switch to the audio bouquet on your Openview decoder and browse to channel 606.
5. Listen to us on Amazon Alexa.
Follow us on social media:
Image courtesy of iStock
Have a similar story or something unique to share? Email us at [email protected], we would love to hear from you!