SA set to become first African

Gavel in court. Image via www.pexels.com/Ekaterina Bolovtsova

SA set to become first African country with shared parental leave

A ruling by a high court stipulates that both parents must have the right to time off after childbirth or adoption.

SA set to become first African

Gavel in court. Image via www.pexels.com/Ekaterina Bolovtsova

Johannesburg High Court Judge Roland Sutherland has ruled that all parents are entitled to four months “parental leave” according to GroundUp.

FLAWS IN BASIC CONDITIONS OF EMPLOYMENT ACT 

The Basic Conditions of Employment Act (BCEA) of SA has come under scrutiny and sections of it have been declared unconstitutional as it discriminates against mothers and fathers, surrogate parents, and those who adopt children as far as maternity leave is concerned. Judge Sutherland suspended the declaration of invalidity for two years to give Parliament time to “cure the defects”, as reported by GroundUp.

ALSO READ: Paternity leave: Fathers can claim ten days off work from next month

BIRTH MOTHER VS ‘OTHER’ MOTHER

In his ruling, Sutherland made it clear that he was opposed to the differentiation made between mothers and fathers, and between a birth mother and other mothers or parents. 

“Upon the premise that the leave entitlements and duration of leave are provided for the purpose of the nurture of a baby or toddler, not merely to allow a literal physiological recovery from giving birth, it seems plain that the distinctions made in the BCEA are at odds with the objectives of the Constitution and the norms inherent in the Childrens’ Act,” he said.

The judge said that the provision of a ten-week period of leave for commissioning and adoptive “mothers” as opposed to a 16-week period leave provided for a birth mother is irrational.

ALSO READ: Paternity leave in SA: Law change comes with added maternity bonuses, too

ALSO READ: Fathers could soon get paternity leave rights in South Africa

LAW NOT IN LINE WITH CONSTITUTION

The Guardian reported that Wessel van den Berg, MenCare officer at Equimundo, a gender equality organisation, said: “It raises the bar on leave for parents in a wonderful way. I’m thrilled our law is becoming more in line with our constitution.”

“The journey is far from over,” said Van den Berg, “but this judgment represents a promising step toward a more equitable and balanced caregiving landscape in South Africa.”

ALSO READ: Minister Nxesi: We are open to discussing the Employment Equity Act

CLICK HERE TO READ MORE ARTICLES BY MARZANNE JANSE VAN RENSBURG