EDITORIAL: Court ruling on shared parental leave is a welcome move, but it’s only the first step

Far too many parents have missed out on an early opportunity to bond with their babies because SA’s laws only gave biological mothers a decent stretch of parental leave. Fathers were entitled to just 10 days of paternity leave, while adoptive parents got either 10 weeks or 10 days depending on whether they were the designated primary caregiver.

Last week’s Constitutional Court ruling allowing all parents to have a share of parental leave is thus an important and long overdue step towards greater equality at home and at work. It recognises the important role of all parents in raising their children, regardless of their gender or how they became parents — be it by birth, adoption or a surrogacy arrangement. And it gives families the flexibility to choose the arrangement that suits them best.

The case was brought by Werner and Ika van Wyk, who challenged the constitutionality of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act on the grounds that they unfairly discriminated between mothers and fathers. 

An estimated 60% of SA’s children are growing up in households without their father present.

The couple had decided Werner should take time off work to take primary responsibility for their baby son, as Ika ran two businesses that would have suffered if she took time off. Werner’s employer would only permit him to take 10 days paternity leave, in line with the BCEA, and he was forced to take unpaid leave to care for his son. Had he been the mother, he would have been accorded four months of maternity leave.

The Constitutional Court upheld a 2023 high court ruling that the BCEA and corresponding sections of the UIF Act unfairly discriminated between different classes of parents by according them different amounts of parental leave and paid benefits. It also found the legislation was at odds with their rights to dignity and equality. It has given parliament three years to amend the legislation to bring it in line with the constitution. In the interim, parents can share four months and 10 days of parental leave. The court directed employers to amend their workplace policies and practices to extend parental leave benefits to all parents, regardless of their gender or birth status.

The challenge: putting it into practice

The challenge now is putting all of this into practice. An obvious hurdle facing employers is the extent to which they accommodate the various permutations that may be requested by their employees, who may not want to take their parental leave in a single tranche. For instance, it may suit some families better for parents to split the week or to work alternate weeks. Employers will also have to consider the financial implications of extending paid parental leave to a greater share of their workforce.

But perhaps the biggest stumbling block is the chronically inefficient UIF, which provides financial support to qualifying workers. It is cash flush yet is beset by such deep management problems it is not uncommon for women to wait years for their maternity benefits to be paid out. Sharing benefits between two parents in various permutations isn’t going to cost the fund more, but it is certainly going to add complexity it appears ill-equipped to handle. Employment & labour minister Nomakhosazana Meth would do parents and employers alike a favour if she stepped in now to right that troubled ship.

Four months and 10 days is a measly amount of time compared with the generous parental leave available in trailblazer Sweden, which in 1974 became the first country to replace gender-specific maternity leave with parental leave and now provides up to 240 days of leave per parent and 480 days of parental leave for single parents.

An estimated 60% of SA’s children are growing up in households without their father present. Increasing the opportunities for fathers to forge close ties with their children and share more equally in the drudgery and joy of caring for babies isn’t going to fix this problem overnight. But it is a good start.