The High Court has delivered a ground-breaking judgment declaring provisions of the Basic Conditions of Employment Act on parental leave unconstitutional.
In the judgment, Sutherland DJP found that the provisions discriminate unfairly between mothers and fathers, and between birth-mothers and mothers through surrogacy and adoption, in relation to the amount of parental leave afforded to them.
The declaration of invalidity on parental leave was suspended for two years to allow parliament an opportunity to remedy the provisions. The court also made orders regarding amended provisions that will operate in the interim.
These include a provision allowing both parents in a natural birth arrangement to elect which parent would take the whole four-month parental leave period, or to freely allocate that four-month period between them. For example, the father could take two months of parental leave and the mother could take the other two months.
In terms of the interim dispensation, parents adopting a child younger than two years and parents in a commissioning parent arrangement are also entitled to the same leave regime as that applicable to parents to a natural birth.
The court also declared the corresponding provisions of the UIF Act, which only allow birth-mothers to claim UIF during maternity leave, unconstitutional. Fathers are therefore also permitted to make UIF claims during parental leave.
In recent years, a number of progressive foreign jurisdictions have already recognised parental leave for fathers (on an equal basis to mothers). This judgment brings the approach in South Africa into line with those jurisdictions.
Read a copy of the judgment here:
Judgment - unconstiutional provisions of BCEA and UIF
