A groundbreaking judgment in the case of Van Wyk and Others v the Minister of Employment and Labour and Others handed down last month means that all parents, regardless of gender or birthing status, now have the right to share in the four months of parental leave.

Nadeem Mahomed, a professional support lawyer in employment law practice at Cliffe Dekker Hofmeyr, explains that the high court declared the provisions of the Basic Conditions of Employment Act relating to maternity, parental, adoption and commissioning parental leave and the relevant provisions of the Unemployment Insurance Act, unconstitutional and invalid for falling foul of the rights to equality.

Mahomed clarifies that, because the declaration is subject to confirmation by the Constitutional Court, the status quo remains, although employers can review their leave policies to prepare for the potential interim amendments that afford all parents four consecutive months’ parental leave until Parliament remedies the defect. 

The amendment will not allow both parents to take four months of consecutive leave – the four months will have to be shared between the parents as they see fit.

“There may be two implications for employers. The first is that an employer may be required to furnish longer parental leave of more than 10 days to male staff who apply for the leave benefit. However, the correlation may also be applicable, where some women may take shorter maternity leave if they decide to share the parental leave with their partners,” he says.

The second implication is that employers who currently provide paid maternity leave benefits may need to extend this paid leave for all quali­fying employees in line with the interim amendments.

“In addition, whatever portion of the four months a father takes as parental leave will qualify for the [Unemployment Insurance Fund] maternity leave benefit that mothers usually qualify for,” he adds.

Maternity, paternity and parental leave (both paid and unpaid) allocations differ widely between countries.

Some countries have more generous parental leave allocations for both men and women, whereas others have less leave allocation. Australia is an example of a shared parental leave system that provides parental leave that may be shared between the parents.

Deon Visagie, a partner at Webber Wentzel, says the case challenged not only the legal interpretation of maternity leave but also broader societal norms and expectations about parental roles.

Archaic distinction

“The heart of the applicants’ argument was to ensure the equal treatment of parents.” They sought to eliminate the archaic distinction between birthing parents and non-birthing parents on maternity leave.

By doing so, they aimed to secure a more inclusive and equitable approach towards family support, recognising the shared responsibilities and experiences of both parents.

Visagie says the court’s decision recognised the need to address the existing inequality and had the potential to transform the parental leave landscape in SA.

However, he echoed Mahomed, saying employers should take note of the operational and cost implications, particularly if they provide paid maternity leave.

Sonke Gender Justice, which was an amicus in the case, says the judgment 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.

“Although we did not get all that we prayed for, we are nevertheless gratified that the court was persuaded on the key asks by the legal teams. This is groundbreaking and will go a long way in influencing a positive attitude towards shared care work,’’ said Bafana Khumalo, co-executive director of Sonke Gender Justice and co-chairperson of MenEngage Alliance.

Sonke has noted that the court has called on the legislature to remedy the identified defects in the laws and ensure that amendments are effected within the next 24 months.

Read more: Beyond gender stereotypes: The fight for equal parental leave in South Africa

Together with partners, Sonke will remain engaged in this process to monitor the implementation of the judgment. DM