In a landmark judgement delivered on Friday, the Constitutional Court has ruled that all parents, regardless of gender, sex, colour, or circumstances, are now entitled to equal parental leave of four months and ten days, which they can share amongst themselves. Justice Zukisa Tshiqi handed down the unanimous judgement at the apex court’s sitting in Braamfontein, Johannesburg.
The Constitutional Court was ruling on whether fathers should receive the same amount of parental leave as mothers. This followed a 2023 Gauteng High Court ruling that found the existing laws unfairly discriminated against fathers by granting them significantly different leave entitlements.
Under the previous laws in South Africa, mothers were entitled to four months of maternity leave, while fathers received only 10 days of paternity leave. This disparity has now been deemed unconstitutional.
The applicants in the matter were Mr Van Wyk and the Commission for Gender Equality, with the Minister of Employment and Labour as the respondent.
In her judgement, Justice Tshiqi stated that the current sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance (UIF) Act, which deal with maternity and paternity leave, are unconstitutional. She emphasised that the difference in parental leave entitlement between birth parents constitutes unfair discrimination.
Furthermore, Justice Tshiqi ruled that adoptive parents and commissioning parents in surrogate agreements should be granted the same leave entitlement as birth mothers under the BCEA and UIF Act. This ensures that all parents, regardless of how their family is formed, have equal rights to care for their children.
Specifically, Justice Tshiqi declared sections 25, 25A, 25B, and 25C of the BCEA, and the corresponding sections under the UIF Act, as unconstitutional and invalid.
She affirmed the 2023 judgement of the Gauteng High Court, stating that it was justified in declaring the existing sections dealing with maternity and paternity leave under the BCEA and the UIF Act as unconstitutional.
However, the Constitutional Court's judgement has been suspended for 36 months to allow Parliament time to rectify the constitutional defects. This suspension provides a window for lawmakers to amend the relevant legislation to align with the court's ruling.
Justice Tshiqi clarified that the current law granting mothers four months of leave is to be retained. She emphasised that appropriate leave should be extended to fathers as well, ensuring equality for all parents.
“The four months, 10 days to be shared among the parents as shared leave…” said Justice Tshiqi, outlining the new framework for parental leave.
The court also ordered the Minister of Employment and Labour to cover the legal fees of the applicants and their two counsel. This decision underscores the importance of the case and the need for the government to address the discriminatory aspects of the previous legislation.
This landmark ruling marks a significant step forward for gender equality and parental rights in South Africa, ensuring that all parents have the opportunity to bond with and care for their children equally. The next three years will be crucial as Parliament works to implement the necessary legislative changes to reflect this progressive judgement.
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