Equal parental leave for South Africa’s moms and dads

Changes to parental leave law

When it comes to taking time off work to care for a newborn infant (or newly adopted child), Norway and Bulgaria are the best places to live, both in terms of duration and pay. The UK comes next, with other European countries as well as New Zealand and Canada making up the rest of the top 10. The US is known for its miserly parental leave (which does vary considerably from state to state). South Africa’s maternity leave provision is not the most generous, but ensures mothers are able to take leave during the chaotic early months of a child’s life. Until now, maternity leave in South Africa was 16 weeks. The operative words are “maternity leave”. Fathers, by contrast, were only entitled to 10 days’ leave. If the mother experienced a difficult birth, or there were young siblings, this often meant a father had to return to work just when he was most needed at home. Now, thanks to a constitutional challenge brought by a young South African family, all that has changed.

Unconstitutional

The Constitutional Court has confirmed that parts of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) concerning parental leave are unconstitutional. Because the Constitutional Court rules on constitutional matters and does not make laws, Parliament has 36 months to change the legislation. Interim rules have been put in place that apply now. Parents can now share four months plus 10 days of leave between them. If only one parent is employed, that parent can take the full four months. Previously, adoptive parents were only eligible for 10 weeks’ leave and only qualified if the adopted child was under two years old. Adoptive leave is now equivalent to birth parental leave and the age cap has been declared unconstitutional. To protect women’s health and wellbeing, the order states “no female employee who has given birth to a child may work for six weeks after the birth,” mitigating the risk of a controlling partner claiming the full duration of leave and forcing a mother back to work.

Why this matters

Many countries have shifted to shared parental leave. The model of an extended maternity leave and a token paternity leave was based on outdated gender stereotypes that were codified in law. It left many families juggling costs and careers and didn’t give families flexibility in how they organise their domestic affairs and family dynamics. The Court held that this differentiation infringes dignity and equality, marginalising fathers/second parents and treating adoptive parents and parents through surrogacy (commissioning parents) differently without justification. The new interim framework lets families choose how to share early caregiving rather than applying socially constructed assumptions.

What has changed (the interim rules at a glance)

The new framework applies immediately while Parliament drafts the permanent amendments. In summary:

• Parents collectively have four months plus 10 days of parental leave to share as they choose
• If parents disagree, the total will be split, giving each parent as close as possible to half the time
• If only one parent is employed, that parent gets the full four months
• Following birth, the six-week no-work recovery period for the mother takes precedence before any further sharing
• The regime caters for biological, adoptive and commissioning (surrogacy) parents in a unified structure
• The Court did not read interim UIF benefit rules into the law, but the Minister must report to the Court before the 36-month window ends as to whether remedial legislation is in force and, if not, when it will be

What employers must do immediately

HR departments are going to be busy. As almost all employers have some employees of child-bearing age, there is no time to lose in ensuring policies and procedures reflect the new framework. If you are an employer, here is what you must do, as a matter of priority:

• Update policies and handbooks to reflect the interim framework: one shared pot of four months plus 10 days, split by agreement (or 50-50 if not), with the six-week postpartum period protected. Align your leave request forms and HRIS fields
• Add a “shared-leave agreement” template
• Ask relevant employees to record their leave allocation, start dates, and how they’ll handle handover and benefits
• Train managers on the new framework and stress non-gendered leave entitlement. Supervisors must not talk about “maternity” leave or assume the mother will take the full leave entitlement herself
• Coordinate UIF messaging. UIF benefits need legislative updates. Explain that policy and payroll leave will track the Court’s interim regime now, while UIF benefits will be clarified as Parliament amends the UIA
• Refresh adoption/surrogacy policies
• Change the “under-two” adoption limit in internal policies, but keep phrasing neutral (e.g., “pending Parliament’s amendments, the company aligns with the interim shared-leave regime”)

What parents should do right now

If you are expecting a baby or planning an addition to your family, you now have more options. It may still suit your family for the mother to take the bulk of the leave, for example if you are planning to breastfeed your baby (unfortunately many workplaces are still not conducive to expressing and refrigerating breastmilk). But you now have flexibility in how you arrange your family life. For example, a woman who works from home may choose to return to work sooner, while the father takes some time off to bond with the infant. Issues of infant feeding are less problematic when home is the workplace. But it’s a good idea to plan in advance. Life with a newborn is hectic; it may be harder to make decisions when you are sleep-deprived!

• Plan ahead – decide how to split the shared leave before the due date
• Document your plan – file a signed allocation with HR
• Remember the six-week rule – the birth mother’s recovery is not optional
• Adoption and surrogacy – the interim regime treats early caregiving in these circumstances similarly

Cape Town family lawyer can help

SD Law & Associates, based in Cape Town, Johannesburg and Durban, are experts in family law. If you have any questions about how the changes to parental leave will affect you, contact Simon on +27 86 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

• Parental leave following birth, adoption, or surrogacy

SD Law – Simon Dippenaar & Associates Inc.

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