ON Friday, October 3, the Constitutional Court (ConCourt) ruled that parents, regardless of gender, sex, colour or circumstances, are entitled to equal parental leave of four months and 10 days.

In its ruling, the ConCourt found that the declaration made by the high court on section 25A, B, and C, of the Basic Conditions of Employment (BCE) Act dealing with maternity and parental leave with corresponding sections 24, 26A, 27 and 29A of the Unemployment Insurance Fund (UIF) Act are invalid and inconsistent with the Constitution “to the extent that they unfairly discriminate between different classes of parents as to the length of parental leave available to parents and as to the unemployment benefits to which they are entitled and the periods for which unemployment benefits are paid”.

According to sections 25 and 26 of the BCE Act dealing with maternity leave: “A pregnant employee is entitled to four consecutive months’ maternity leave.”

Section 25A of the Act states: “An employee, who is a parent of a child, is entitled to at least 10 consecutive days parental leave, when the employee’s child is born, or adoption is granted; or the child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order.”

Section 25B of the Act deals with adoption leave and states that: “An employee who is an adoptive parent of a child who is below the age of two, is subject to section 25(6), entitled to at least 10 weeks consecutive adoptive leave; or 10 consecutive days parental leave when adoption is granted, or the child is placed in his /her care as prospective adoptive parent by a competent court, pending the finalisation of an adoptive order.”

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Section 25C of the Act deals with parental leave and states: “An employee who is a commissioning parent in a surrogate motherhood agreement is subject to section 25(6), entitled to at least 10 weeks consecutive commissioning parental leave; or 10 consecutive days parental leave when his /her child is born as a result of a surrogate motherhood agreement.”

The ConCourt ruled that the age limit of two years in respect of section 25B (1) of the BCE Act and section 27 (1) C of the UIF Act are invalid and inconsistent with the Constitution.

Section 27 (1) C of the UIF Act states that “only one contributor of the adopting parties is entitled to the adoption benefits contemplated in this part in respect of each adopted child and only if the adopted child is below the age of two”.

The ConCourt ruled that the declarations of constitutional invalidity of sections of these acts – the BCE and UIF – are suspended for a period of 36 months from the date of its order to afford parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.

The ConCourt sought to answer the following questions:

1. Does the difference in the parental leave entitlement between birth mothers and fathers amount to unfair discrimination?
2. Should adoptive parents and commissioning parents in a surrogate agreement be granted the same leave entitlement as birth mothers under the BCE Act and UIF Act?
3. Should an adoptive child’s age-cap of two years still apply to determine whether adoptive parents qualify for parental leave?
4. Are sections 25, 25A, 25B and 25C of the BCE Act and the corresponding sections under the UIF Act unconstitutional and invalid?

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