Legal Matters - A New Chapter In Paternal Leave

South Africa Sets The Pace In Africa

By Jessie Taylor

South Africa has taken a bold step towards gender equality in parenting with a landmark High Court judgment that could transform how families experience the arrival of a child. In a move that positions the country as a leader on the African continent, the court has ruled that both parents should be allowed to share the four months of parental leave previously reserved only for mothers. While the judgment still awaits confirmation by the Constitutional Court, the implications are already being felt in public discourse, company policy, and advocacy for family rights.

A Win For Equality

The case, brought by Polokwane couple Werner and Ika van Wyk alongside advocacy group Sonke Gender Justice, challenged the constitutionality of parental leave provisions under the Basic Conditions of Employment Act. The Van Wyks argued that the current framework — which provides only 10 days of parental leave to fathers — is both inadequate and discriminatory.

The Johannesburg High Court agreed, declaring the provisions unconstitutional and giving Parliament two years to enact remedial legislation. The court’s ruling allows for the four-month parental leave period to be shared between parents, regardless of gender or biological relation to the child. It also equalises the rights of adoptive and biological parents, expanding support for diverse family structures.

The judgment does not limit its scope to married couples or those living together. Adoptive parents, previously entitled to only 10 weeks of leave, now enjoy the same rights as biological parents. This inclusivity ensures that same-sex couples, single parents, and separated families are not left out of the progressive shift. The judgment’s inclusive nature acknowledges the realities of modern families. It removes traditional assumptions about caregiving roles, paving the way for men to take on a more active role in early childcare.

Under the Basic Conditions of Employment Act (BCEA), fathers have been legally entitled to 10 consecutive days of unpaid paternity leave upon the birth of their child or during adoption or a court placement of a child. This leave must be taken within four months of the birth or adoption. While the leave is unpaid, fathers can claim benefits from the Unemployment Insurance Fund (UIF).

This leave must be taken within four months of the child’s birth or adoption. While the leave is unpaid, fathers can claim UIF benefits during this period. The leave applies to employees who are parents of a child, including biological, adoptive, or commissioning parents.

Challenges and Considerations

Despite the progressive intent, implementation may prove challenging.

Firstly, the duration of leave remains a concern. While the International Labour Organisation recommends at least 14 weeks of maternity leave, the new ruling allows only 16 weeks to be shared between parents. This could unintentionally shorten the leave time available to mothers, potentially affecting recovery, bonding, and breastfeeding.

Secondly, the arrangement relies heavily on mutual agreement between parents. In households where fathers do not reside with their children — a situation affecting around two-thirds of South African children — reaching such agreements could be difficult. Additionally, entrenched gender roles may prevent equitable sharing of care responsibilities, especially in patriarchal households.

Thirdly, the policy applies only to those in formal employment who contribute to the Unemployment Insurance Fund (UIF). This excludes a significant portion of the workforce: South Africa’s informal sector contributes 28% of GDP yet remains unsupported in this area of labour rights.

The Constitutional Court will have the final say on whether the High Court’s ruling becomes law. If confirmed, it will mark a seismic shift in South African labour legislation, granting both parents equal rights to parental leave and allowing them to claim from UIF where eligible.

Over the next two years, Parliament has an opportunity to refine the law based on global best practices.

The ruling is more than just a legal victory — it’s a societal one. It affirms that caregiving is not the sole responsibility of mothers but a shared duty that benefits children, parents, and workplaces alike.

Source: The Conversation | Bizcommunity | IOL