In a groundbreaking victory for gender equality and family rights, South Africa’s highest court has unanimously ruled that all parents are entitled to equal parental leave. This landmark decision rectifies the previous disparity where mothers received four months of leave, while fathers were only granted ten days.
The Constitutional Court found the existing legislation discriminatory against fathers, ruling that both parents can now share the allocated leave period as they see fit. This move is being hailed as a significant step forward for fatherhood and family well-being in the country.
Previously, a lower court had already deemed certain sections of the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act unfair, recognizing their violation of the rights of diverse family structures. The Gauteng High Court’s decision highlighted the unequal treatment of parents concerning leave duration and unemployment benefits.
The case, brought forth by a couple and the Commission for Gender Equality, aimed to address the societal burden often placed solely on mothers. Petitioners argued that the law unfairly disadvantaged fathers, adoptive parents, and parents of surrogate children by limiting their leave to just ten days, while birth mothers received a full four months.
Justice Zukisa Tshiqi, delivering the verdict, emphasized that the current law is outdated and unfairly disadvantages fathers, perpetuating the notion that women are primary caregivers. She stated, “The father is marginalised and deprived of the opportunity to involve himself as a parent in the upbringing of the baby during the early stages of life.” The ruling underscores the importance of shared parenting responsibilities and the dignity of all family members, ultimately prioritizing the child’s well-being.
Legal experts anticipate that this judgment will necessitate significant adjustments to employer policies. “The essence of the case is that it highlights the need to provide equal parental leave benefits, recognising that nurturing a child is a shared responsibility,” commented Tsietsi Shuping from the Commission for Gender Equality, noting that the law did not reflect modern societal views on parenting.
The court has granted Parliament a three-year grace period to amend the legislation. In the interim, parents are free to decide how they will divide the total leave of four months and ten days. If only one parent is employed, they may utilize the entire leave allocation.