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News24 reports that the Constitutional Court (ConCourt) has given the thumbs-up to a groundbreaking 2023 High Court judgment allowing two parents to share the maternity leave that was previously reserved for biological mothers.
In October 2023, the South Gauteng High Court found that by providing for four months of maternity leave and just 10 days of paternity leave, the Basic Conditions of Employment Act (BCEA) unfairly discriminated between mothers and fathers, and was unconstitutional and invalid. The High Court’s ruling then came before the ConCourt for confirmation and it was upheld in a judgment handed down on Friday.
The case was brought by Limpopo couple Werner and Ika van Wyk, after the birth of their son, James, in April 2021. The High Court found that the BCEA – as well as the corresponding sections of the Unemployment Insurance Fund (UIF) Act – unfairly discriminated between mothers and fathers. It also found the legislation unfairly discriminated against different types of parents whose children were conceived via surrogacy or adopted.
The ConCourt by-and-large agreed with the High Court. It differed from the High Court, however, in finding that capping the age of an adopted child in respect of whom parents were entitled to leave was also unfairly discriminatory. The ConCourt has given Parliament 36 months to rectify the legislation. In the interim, it has effected a reading-in in the BCEA, to the effect that the four months and 10 days that were previously afforded to two parents cumulatively, should be shared between them. It, however, declined to effect a similar reading-in in the UIF Act, saying it did “not have sufficient information at its disposal regarding how the benefits in the corresponding provisions of the UIF Act are calculated”
- Read the full original of the report in the above regard by Bernadette Wicks at News24 (subscription / trial registration required)
- Read too, ConCourt redefines parental leave: Key implications for employers and professionals, at CDH
- En ook, Wye steun vir uitspraak oor gelyke ouerskapverlof, by Maroela Media
Get other news reports at the SA LabourNews home page