Parental leave

In South Africa, there has been numerous complaints regarding parental leave when it comes to the birth of a child as there was unequal treatment when it came to the leave allowed. The Basic Conditions of Employment Act treated parents differently which is in contrast with the constitutional promise of equality. Previously, the law stated that mothers were entitled to 4 months maternity leave while the fathers were entitled to 10 days. In the event of adoption or surrogacy, one of the parties were entitled to 10 weeks of leave.

In a recent court case, Van Wyk and Others v Minister of Employment and Labour, this was changed. According to this case, the provisions of the Basic Conditions of Employment Act violated the Constitutional right to equality and dignity. This was prevalent in that adoptive parents were treated differently than birth parents and mothers and father did not have the same rights.

In the case, the court held that the differentiation amounted to unfair discrimination between mothers, fathers and other types of parents like adoptive and surrogacy parents. The case now resulted in universal parental leave. This means that the four-month maternal leave and the ten days paternal leave is now grouped together as four months
and ten days of parental leave.

This case also resulted in leave sharing being an option. This now means that parties can make their own decisions as to how they wish to share their parental leave. Parental leave also no longer differentiates between parents, and all parents are now entitled to the four months and ten days of parental leave which they may divide between them as they wish.