‘Best outcome for families’ — couple who initiated parental leave case hail ConCourt judgment

Parliament has been given three years to update provisions around parental leave, to allow fathers and adoptive parents equal rights to spend time with their children. This comes after the Constitutional Court ruled that sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act are unconstitutional. 

Labour unions and lawyers have welcomed the decision as an important recognition of equal rights for parents. Meanwhile, the family who initiated the case has told Daily Maverick that while they had initially received criticism for bringing the case, they believe many have come to understand the ruling. 

“I wasn’t necessarily sure it would be so well received because when we started this case four years ago, some people in the public didn’t understand what we were trying to do,” Ika van Wyk told Daily Maverick after the ruling. 

“And interestingly enough, the negative comments mostly came from women who probably had their opinion tainted by their own personal experiences of getting pregnant by a man who isn’t or doesn’t want to be involved; and being scared of men now getting more rights than women and progressing the male agenda as opposed to the female agenda.

“But I think since we launched the case and the ConCourt reading, I think people have started to educate themselves a little bit better, to see what this is truly about.” 

Ika and her husband, Werner, initiated the case in 2022. After their son James was born, Werner tried to apply for four months of paternal leave but was denied based on the BCEA differentiating between the kinds of parental leave that mothers and fathers can take.

Read more: Inequality in parental leave – ConCourt to hear case for fathers, adoptive parents to get more leave

The couple had hoped that Werner could be James’s primary caregiver as Ika was running a jewellery business from their home in Polokwane and planned to continue working during that time.

The Act also had a different provision for adoptive parents and those conceiving through surrogacy. 

Fathers were only granted 10 days’ parental leave, while only one of the adoptive parents could take up to 10 weeks (two and a half months) of parental leave. 

‘The right decision’

On Friday, the ConCourt ruled that the current provisions of the BCEA discriminate unfairly against fathers and adoptive parents. 

“There are several reasons why certain couples opt for adoption or surrogacy. They should not be penalised for this. There are also many reasons why partners decide that the father should be the primary caregiver. The case of Mr and Mrs Van Wyk has shown that even in instances where the other partner is a birth mother, circumstances may dictate that the father assumes the role of primary caregiver. Legislation that prevents them, without any legitimate reason, from arranging their affairs according to their personal circumstances and preferences, intrudes upon their private space unnecessarily and impacts their human dignity,” the court said.

A happy Ika van Wyk told Daily Maverick: “We believe it was the right decision. Otherwise, we wouldn’t have pursued it in the first place. For me, it’s the best outcome for families and, most importantly, children in South Africa,” she said. 

“It’s time that we acknowledge that the parental unit is made up, if you’re lucky, of two parents who would love the opportunity to be equally involved in raising their children. This doesn’t take anything away from mothers, this just adds more rights to fathers. It’s not about mothers losing maternity leave, it’s about fathers finally having a legal claim to the same kind of leave that a mother would have had,” she said. 

Read more: Four months’ leave no longer restricted to new mothers only

The ConCourt was also mindful of the rights of birth mothers in the judgment. In the order amending section 25 of the BCEA, the court retained provisions for mothers who have given birth to take adequate time off work. The order notes that no “female employee who has given birth to a child may work for six weeks after the birth”, unless a medical practitioner or midwife certifies that she is fit to do so. 

It has also provided for employees who have suffered a late-term miscarriage to take six weeks of parental leave, regardless of gender. 

“We are very relieved that it turned out the way it has turned out. This is for the greater good. This is not about my story, or Werner’s story or James’s story. We are just happy that we were able to get the ball in motion,” Van Wyk said. 

Adoptive rights 

The judgment, penned by Justice Zukisa Tshiqi, also noted that adoptive parents were not allocated enough time for nurturing their newly adopted child. 

“The disparity and unequal treatment towards adoptive and commissioning parents not only marginalises the role that commissioning and adoptive parents play in the early life of their child, but also reduces the recognition of their responsibilities as compared to biological parents. The distinction drawn by the statutory regime treats them as a lesser class of parents. Furthermore, the shorter period of leave deprives commissioning parents of the opportunity to structure their parental responsibilities according to their personal circumstances, thereby intruding upon their private life and undermining their dignity,” she said in the judgment. 

While the Department of Labour had not opposed the case, it requested that the court put a cap on the age of the adoptive child for whom their parents can request parental leave, saying it should only apply to children under two years. 

“The minister proffers that the governmental purpose for this differentiation is to create an ‘equivalence’ between parental leave for when a child is born and for an adopted child when they are young. She additionally argues that the differentiation does not occur in respect of children per se, but in respect of the financial benefit afforded to their parents,” the court noted. 

However, the court found that the department’s reasoning was flawed, particularly because adoptive children might need more time to assimilate into a new family. 

“Parental leave, irrespective of the child’s age, is not solely about meeting the needs of the child, such as nurturing, but also to allow children of different ages a period to integrate and adapt in the new family unit. It cannot be disputed that in certain instances, adopted children may require additional care and support depending on the circumstances they come from. The historical origins and initial rationale of the legislative scheme hold limited weight in light of the current contemporary family dynamics and evolving social norms,” the court said. 

Justice Tshiqi referred this matter back to Parliament to make a final determination on a reasonable age cap, with consideration of the Children’s Act and the Constitution. 

“As the unfair discrimination cannot be justified, an order that the capping of the age at two years is unconstitutional must therefore follow,” the court said. 

UIF changes 

The ruling will have an impact on the UIF, which currently administers maternity leave payments to birth mothers only. The court found that sections of the UIF Act will need to be amended in line with changes to the BCEA, while acknowledging that there could be financial implications to such changes

“In the current regime, only biological mothers in employment receive lengthy UIF benefits, up to a maximum of 17.32 weeks (about four months). There must be many instances of couples where the mother is unemployed but the father is employed. If the employed father were now to be granted 17.32 weeks’ UIF benefit, an enormous additional burden might be imposed on the UIF. It is thus preferable for the lawmaker to decide the extent of UIF benefits to be conferred on employed parents in a nondiscriminatory manner,” Justice Tshiqi wrote.  

Labour law expert Avi Niselow said the decision would “give greater flexibility” to families.

“Up until now it’s been one size fits all. It just applied a situation where the mother was viewed as the caregiver in all situations, which isn’t necessarily the case. Certainly, you have situations where the father is the primary caregiver or the mother tragically might be deceased in childbirth. And then the father is faced with the situation where he cannot take leave in order to look after the child,” he said. 

He added that although the judgment would affect employers, communication would be the key to resolve questions about how much leave new parents would be taking.

“So employers will have to be aware now that fathers and adoptive parents may wish to take the leave, and they will also have to update their policies over the course of the next three years. Many employers pay benefits during maternity leave and they would have to look at extending that to other parents. 

Labour union Cosatu said it was “pleased by this historic judgement” and that “consideration will need to be given to ensure parents are able to receive the maximum financial relief whilst allowing them space to decide upon the allocation of leave that makes the most sense based upon the individual family’s needs and circumstance”. DM