In a groundbreaking judgement for new parents, especially fathers, the court has ruled that both parents are entitled to maternity leave.
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.
He also found that it was contrary to the interests of the child and impaired the dignity of parents and their children.
Judge Sutherland concluded that the provisions of the BCEA 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.
The declaration of constitutional invalidity was suspended for two years, so that remedial legislation could be enacted by Parliament, pending which the offending provisions of the BCEA were amended to provide, in the interim, for a new regime.
Law firm Norton Rose Fulbright SA Inc’s Impact Litigation team, who acted on behalf of the Commission for Gender Equality in the application, explained that this 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.
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