The country's highest court rules fathers granted equal caregiver leave

The Republic of South Africa's highest court has collectively determined that both mothers and fathers of infants are eligible for equal parental leave - a landmark ruling celebrated as a major victory for fair treatment and parental rights.

Present Legislative Disparity

According to the existing legislation, mothers are allowed four months of leave, while fathers get just 10 days.

Through its decision, the Constitutional Court announced sections of the regulation invalid, describing it as unfair against fathers, and ruled that all caregivers may now divide the granted leave as they see fit.

"This constitutes a ground-breaking advancement for equality, household welfare, and the destiny of fatherhood in South Africa," said Sthembiso Phakathi, creator of Single Dads Network.

Legal History

In 2023, a lower court ruled specific provisions of the work regulations and the Unemployment Insurance Fund Act inequitable and determined that they violated the privileges of various family structures.

The regional tribunal then determined that the law showed bias toward categories of mothers and fathers distinctly regarding the period of parental leave and insurance payments received.

Court Proceedings

The legal action was initiated by a married couple, the equality organization and other petitioners, who sought to address the disproportionate load placed primarily on birth mothers, stressing that childcare duties should be shared.

The applicants maintained that the present regulations unfairly discriminated against caregivers who were other than the biological mother - specifically, dads, foster caregivers, and caregivers of infants born to surrogates - by granting them only 10 days of caregiver absence, while the birth mother received 120 days.

Legal Rationale

Delivering the ruling on Friday, Justice Zukisa Tshiqi stated that mothers and fathers should be entitled to divide the available days as they saw fit, describing the current law obsolete and one which "unequally pressured birth mothers and left out fathers".

"The shielding of biological mothers to the exclusion of other parents has the detrimental effect of continuing the belief that females are, and should be, the primary caregivers of children.

"The male parent is sidelined and prevented from the opportunity to participate as a guardian in the nurturing of the infant during the early stages of growth," she stated further.

Justice Tshiqi stated the decision was not only about equal rights but also about preserving the respect of households, emphasising that the main consideration of the judicial ruling was the health of babies.

"The biased handling not merely sidelines parents but also denies babies of the opportunity to be with their parents during a critical time of development and adaptation to their changed circumstances."

Feedback and Consequences

The applicants celebrated the judgment, while jurists advised that the ruling would have far-reaching implications for companies, who will must change their current leave policies to adhere to the decision.

"The fundamental aspect of the lawsuit is that it underscores the need to offer equal parenting allowances, understanding that caring for a baby is a shared responsibility," a representative from the equality body told journalists.

He stated the existing legislation "did not acknowledge changing cultural attitudes around parenting".

Workplace legal expert an expert told state media that the judgment was "a welcome and predicted conclusion" for parental rights in the nation.

Application Timeframe

The court has delayed its ruling of unconstitutionality for three years, giving the government time to amend the current laws to conform to its judgement.

In the meantime, parents will be eligible for determine how they choose to share the allocated time of leave.

When just one caregiver is employed, that caregiver may take the full leave allocation.