New parental leave law brings true equality

by Laurel Pretorius
New parental leave law brings true equality
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A law for new parents has just come into place and will have a positive outcome on ALL South African mothers and fathers of newborns, when it comes to taking long maternity leave. Laurel Pretorius breaks it down.

Last month, the High Court in Johannesburg ruled that new parents should be able to share the four months’ maternity leave which up until recently had only been reserved for birthing mothers, while fathers were only entitled to 10 days of paternity leave.

Indeed, why shouldn’t all types of parents, male and female, from all walks of life benefit from spending a decent amount of time on leave, caring for and bonding with their newborn babies? And why has it only come into law now?

Read Carving out time after maternity leave

How did this new law come about?

Last year, a couple from Limpopo argued that provisions in the Basic Conditions of Employment Act (BCEA), which gave mothers four months’ maternity leave and fathers a mere 10 days off after the birth of a child, were discriminatory. Apparently, when the about-to-be father applied to his employer for the four-month maternity leave benefit, he was refused because the employer’s leave policy didn’t provide for anyone other than the birthing mother to receive the leave benefits.

The father had good reason to apply for the four-months of leave: His wife was overseeing the operations of her two businesses, which meant she needed to get back to work soon after having the baby. Her husband, in the meantime, was in a good position to take long leave and care for their newborn. If she did take the four months of leave, it would have detrimental repercussions on her businesses and therefore directly impact her family.

So, taking all this into account, there are some glaring questions which need to be answered in the wake of only ‘birthing mothers’ receiving four months maternity leave. For example:

  • What if the woman is the breadwinner of the family?
  • What if the new mother is needed back in her job sooner than that of the father?
  • What if both parents want to share the roles of parenting equally?
  • What happens in the instance of same-sex parents?
  • What if the parents have chosen to adopt their baby or go the surrogacy route?

Fortunately, on 26 October 2023, the Gauteng Deputy Judge, President Roland Sutherland, agreed that the act was discriminatory and ruled that if fathers chose to share the experience of being at home with their newborn babies, they could complain against the Basic Conditions of Employment Act as unfair discrimination, while mothers can chose to complain that it isn’t for the legislature to decide she must take on the role as primary caregiver.

The judge also determined that the legislation unfairly discriminated against parents based on the method of their children’s birth—whether through natural means, surrogacy, or adoption. This decision aligns with the notion that in today’s modern society, assumptions about gender roles and outdated societal norms should no longer prevail.

Read Help him be a hands-on dad

So what does this law really mean for parents?

New parental leave in South AfricaDeputy Judge Sutherland has granted Parliament a two-year timeframe to amend the legislation. Meanwhile, he has implemented a provision stipulating that ‘parents of any kind’ are entitled to a combined four consecutive months of parental leave. In other words, “each pair of parents of a qualifying child shall share the four months leave as they elect.”

The ruling does still have to be confirmed by the Constitutional Court, and this will take place over the two-year period while Parliament affects the required amendments to cure the unconstitutionality of the provisions of the Basic Conditions of Employment Act as well as the Unemployment Insurance Act (UIA).

An outcome of true equality

Thanks to a determined couple from Limpopo, and a constitution to be reckoned with, South African parents can now look forward to a reformed labour law that reflects a gender egalitarian approach to parental leave benefits.

Read How maternity leave can be good for your career

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