The South Gauteng High Court has ruled certain sections of the BCEA as invalid and has implemented temporary measures while Parliament addresses the shortcomings. In essence, the maternity leave provisions have been revoked, and all parents are now eligible for a minimum of four consecutive months of parental leave, regardless of gender or the circumstances of the child’s birth or adoption.

By Lezeth Khoza

The parental leave policies in South Africa have experienced a substantial overhaul as a result of a recent ruling handed down by the South Gauteng High Court.

The ruling was made following an application asserting that sections 25, 25A, 25B, and 25C of the BCEA are unconstitutional.

This decision has not only overhauled the parental leave structure but has also eliminated the traditional maternity leave and the standard four-month period usually provided to pregnant women.

All parents from diverse categories are now eligible for a four-month leave to fulfil their parental duties, following a landmark ruling in the case of Van Wyk and Others v the Minister of Employment and Labour and Others. This ruling also includes associated benefits from the Unemployment Insurance Fund (UIF).

“We welcome this landmark judgement which is contributing to growing our jurisprudence on the quest for shared care work in families. Although we did not get all that we prayed for, we are nevertheless gratified that the court was persuaded on the key asks by the legal teams.

“This is ground-breaking and will go a long way in influencing a positive attitude towards shared care work,’’ said Bafana Khumalo, Co-Executive Director of Sonke Gender Justice and Co-Chairperson of Global MenEngage Alliance.

The decision is a temporary measure that has been put in place for a period of 24 months to allow lawmakers the chance to review and amend the country’s legislation.

The court specifically analysed the provisions within the Basic Conditions of Employment Act 75 of 1997 (BCEA) about maternity leave, focusing on whether they prioritise the needs of the birthmother or the nurturing of the child.

It determined that the policy choices outlined in the BCEA prioritize child nurturing over solely addressing the birth mother’s pregnancy and childbirth experience and her need for a recovery period.

The current language of the BCEA, the court found, does not accommodate a scenario in which both parents are equally committed to nurturing their child. Consequently, both parents should have the opportunity and entitlement to provide comprehensive care for their child.

The National Employers Association of South Africa (NEASA) has said that this decision will bring an “administration burden” on employers and it is “undue and impractical”.

NEASA also pointed out the need for a more in-depth economic and financial analysis of this decision concerning the UIF.

“No economic or financial impact study has been performed to calculate the impact of the amendment of the sections in the UIF Act on the taxpayer and the state fiscus. Nonetheless, the judgement amends the relevant sections of the UIF to ensure that all parents who contribute and now qualify for the 4 months’ parental leave, can claim.

“This, despite the already horrifying circumstances of ineptitude and complete lack of service reigning at the UIF. What is even more cumbersome, is that the Judge even hinted towards the government reducing the benefits offered by the UIF to stay within budget, to achieve ‘equal treatment’ of all the new claimants.

“A pregnant woman, physically, cannot work at a given stage of childbearing, whilst other parents still can. It is grossly unfair to reduce the benefits awarded to the pregnant woman who may have no choice in whether she can continue working.”

The responsibility of determining the allocation of the four-month leave following the birth of a child or adoption will rest with the parents. This development represents a significant milestone in Africa, as South Africa becomes the first country on the continent to enact such a policy.

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