Equal leave for all parents came under the judicial spotlight yesterday in the Constitutional Court in which sections of the country's employment laws are being challenged that permit four months of maternity leave to biological mothers only.
As the law stands, fathers are only entitled to a 10-day paternity leave.
The court has ruled that both parents are entitled to maternity leave.
A year ago 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.
Judge Sutherland concluded that the provisions of the Act 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.
As it is a Constitutional matter, the apex court has the final say in the matter and has to first confirm the unconstitutionality of these provisions, before it will become law.
If granted, it will see South African fathers being entitled to up to four months of parental leave and entitle them to where appropriate, to claim UIF.
The declaration of constitutional invalidity by Judge Sutherland, following his judgment in October last year, was suspended for two years, so that remedial legislation could be enacted by Parliament if the Constitutional Court gave the green light.
The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, with Sonke Gender Justice and the Commission for Gender Equality among other organisations appearing as friends of the court.
The application by the Van Wyks was sparked after they decided that Werner should be the primary caregiver when they expected their child three years ago. But they faced the law which did not afford him the same parenting plan as that which his wife was afforded.
Sonke said it believes this ruling by the high court (in which the Constitutional Court must now have the final say) marks a new era of a more inclusive and equitable society, as well as recognising the diversity of modern family structures and that both parents play an integral part in the nurturing of children.
Law firm Norton Rose Fulbright SA Inc's Impact Litigation team, who acted on behalf of the Commission for Gender Equality in the application, earlier explained that the high court ruling 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.
Although the Commission for Gender Equality had asked the court to extend parental leave provisions to adoptions involving children older than two, the high 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 high 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 Constitutional Court was yesterday asked to again look into some of the aspects which the high court last year declined, such as not affording both parents the benefit of four months parental leave independently and not collectively.
Pretoria News