Groundbreaking Maternity Leave Ruling: Both Parents Now Entitled in South Africa, Court Decides

The Gauteng High Court in Johannesburg has issued a trailblazing judgment favouring new parents, particularly fathers, by ruling that they are also entitled to maternity leave. This important and precedent-setting ruling was passed by Deputy Judge President Roland Sutherland, who asserted that the pre-existing provisions of the Basic Conditions of Employment Act (BCEA) were discriminatory towards various types of parents.

The judge's ruling was anchored on the fact that the BCEA's rules on parental leave undermined the basic tenets of human dignity, infringing upon parental rights and the best interests of a child. He noted that these provisions violated Sections 9 and 10 of the Constitution, as they unfairly discriminated between mothers and fathers, and between parents based on whether their child was naturally born, conceived by surrogacy, or adopted.

Consequently, the Deputy Judge declared these provisions invalid and unconstitutional. While the declaration of constitutional invalidity stands, its enforcement will be suspended for two years to allow Parliament ample time to enact remedial legislation. In the meantime, the BCEA's contentious provisions have been revised.

The Impact Litigation team from law firm Norton Rose Fulbright SA Inc, who represented the Commission for Gender Equality (CGE) in this matter, clarified this ruling's implications. Now, parents involved in a natural birth can decide which of them will utilize the whole four-month parental leave period, or they can freely split the period between themselves. Parents adopting a child younger than two years or involved in commissioned parenting arrangements all have the same leave rights now applicable to a natural birth.

This interim provision will enable all types of parents to avail their deserved parental leave rights and the associated Unemployment Insurance Fund (UIF) benefits, thereby reducing economic and employment hardships especially for expectant mothers. The ruling further allows parents greater flexibility in deciding their preferred childcare approach.

This judgment has been welcomed by the CGE as it underscores gender equality and acknowledges the significance of adoption and surrogacy arrangements, aligning South Africa with international best practices.