The amendments to South Africa’s parental leave laws were prompted by a case involving a couple who had agreed that the father would assume primary parental responsibilities as soon as possible after their child’s birth, to enable the mother to attend to her business interests. When the father’s employer refused his request for four months of paternity leave, the couple approached the High Court, seeking a declaration that, amongst others, the Basic Conditions of Employment Act (BCEA) was unconstitutional as it unfairly discriminated between mothers and fathers.
The High Court ultimately held that the provisions of both the BCEA and the Unemployment Insurance Act (UIA) were unconstitutional on this basis. When a Court finds legislation to be invalid and unconstitutional, the matter must be referred to the Constitutional Court to confirm the declaration of invalidity. The Constitutional Court agreed with the High Court, holding that the relevant provisions were unconstitutional to the extent that they unfairly discriminated between different categories of parents regarding the length of parental leave and the associated unemployment benefits.
This move away from limiting the extensive parental leave to mothers is aimed at promoting equality, inclusivity, and a more accurate reflection of the diversity of modern families.
What exactly are the interim changes? (And why are they interim and not immediate?)
The Constitutional Court implemented certain immediate, interim amendments to the legislation, described below. While the Court declared these changes effective immediately, the Court’s role is not to draft or amend legislation. The function of drafting or amending legislation is a function that lies with the legislature branch of parliament. To respect this separation of powers within parliament, the Constitutional Court suspended the declaration of invalidity for 36 months, providing Parliament time to remedy the constitutional defects as identified in the BCEA and related pieces of legislation.
Given the complexity of the task, the Court also introduced interim measures that apply during this 36-month period, until Parliament enacts the necessary legislative amendments.
In short, Parliament has 36 months to formally update the laws governing parental leave, but in the meantime, the Court’s interim provisions apply. There were various immediate but interim changes made by the Constitutional Court in regard to parental leave, the main ones being as follows:
Universal Parental Leave
Parental leave has been universalised for all classes of parents — including birth mothers, fathers, non-birth mothers, single parents, and parents who are the only employed caregiver. All such individuals are now entitled to parental leave.
Provisions Specific to Birth Mothers
While parental leave has been expanded, the Constitutional Court acknowledged the medical needs of birth mothers. A birth mother may commence parental leave up to four weeks before the expected due date, or as otherwise medically advised, which forms part of the total four months and ten days of parental leave. In addition, birth mothers may not return to work for at least six weeks after giving birth, unless they have been medically cleared to do so.
Aggregate Leave Between Parents
Parents are entitled to a combined (aggregate) parental leave of four months and ten days, to be divided between them as they agree. If the parents cannot agree, the leave should be shared as equally as possible between them.
Single Employed Parent
If only one parent is employed, that parent is entitled to the full period of parental leave.
What does this mean for employers?
Employers must review and update their internal policies, employment contracts, and HR procedures to ensure compliance with the Constitutional Court’s decision. Employers must also facilitate a leave-sharing arrangement between both parents, confirming in advance how the aggregate leave period will be divided. Employers must also ensure that parental benefits are extended equally to both parents. Employers have a long road ahead, and it is likely that initial administrative challenges may arise, particularly where employers need to coordinate with another parent’s employer to verify and facilitate the division of leave.
If you’re a father seeking clarity on your new parental leave rights, or an employer needing to update policies and processes to stay compliant, our team can help. Contact Pagel Schulenburg for guidance tailored to your circumstances.
