Pretoria - In a groundbreaking judgment for new parents – especially fathers – the court has ruled that both parents are entitled to maternity leave.

Gauteng High Court, Johannesburg Deputy Judge President Roland Sutherland concluded that the provisions of the Basic Conditions of Employment Act regulating parental leave, unfairly discriminate against various types of parents.

He also found that it was contrary to the interests of the child and impaired the dignity of parents and their children.

Judge Sutherland concluded that the provisions of the BCEA regulating parental leave did offend against Sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers; and unfairly discriminate between parents depending on whether their child was born of the mother; conceived by surrogacy or adopted.

He accordingly declared these provisions unconstitutional and invalid.

The declaration of constitutional invalidity was suspended for two years, so that remedial legislation could be enacted by Parliament, pending which the offending provisions of the BCEA were amended to provide, in the interim, for a new regime.

Law firm Norton Rose Fulbright SA Inc’s Impact Litigation team, who acted on behalf of the Commission for Gender Equality in the application, explained that this would mean that parents in a natural birth arrangement could elect which parent would take the whole four-month parental leave period, or they could freely allocate that four-month period between them.

Parents adopting a child younger than two years and parents in a commissioning parent arrangement would be entitled to the same leave regime as that now applicable to parents to a natural birth.

The law firm said the effect of the interim provision was to allow all parents (save for those adopting a child older than two years) to benefit equally from parental leave provisions and the associated UIF benefits.

This will alleviate the plight of, particularly, birth mothers who were previously obliged to assume the role of primary caregiver, thereby sacrificing employment and economic opportunities.

The interim relief also allows all parents greater flexibility in how they choose to care for their children, the law firm explained.

Although the CGE had asked the court to extend parental leave provisions to adoptions involving children older than two, the court found that this went too far and that the discrimination against such adopted children and their parents was not unfair.

The Commission for Gender Equality had also asked the court to remedy the discrimination between parents by providing four months leave for both parents.

The court, however, found that given the wide range of remedies available to Parliament, the most appropriate remedy was not to grant equal four months leave to both parents, but to allow them the choice of how they chose to arrange their parental leave entitlement.

The Commission for Gender Equality welcomed the judgment in that it advances gender equality and recognises the importance of adoption and surrogacy arrangements in accordance with international best practice.

Pretoria News

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