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

Highway Mail reports that in its ruling, the ConCourt found that the declaration made by the high court on sections 25A, B, and C of the Basic Conditions of Employment (BCE) Act 75 of 1997, dealing with maternity and parental leave, along with corresponding sections 24, 26A, 27, and 29A of the Unemployment Insurance Fund (UIF) Act 63 of 2001, is 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’.

Maternity and parental leave entitlements

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

Section 25A 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 deals with adoption leave: “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.”

Section 25C deals with parental leave for commissioning parents in a surrogate motherhood agreement: “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.”

Constitutional invalidity of age limit for adoptive parents

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 is 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’.

Parliament given three years to amend legislation

The ConCourt ruled that the declarations of constitutional invalidity of sections of the BCE and UIF Acts 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 invalidity.

Questions addressed by the ConCourt

The ConCourt considered whether:

• The difference in parental leave entitlement between birth mothers and fathers amounts to unfair discrimination.
• Adoptive parents and commissioning parents in a surrogate agreement should be granted the same leave entitlement as birth mothers.
• An adoptive child’s age cap of two years should still determine eligibility for parental leave.
• Sections 25, 25A, 25B, and 25C of the BCE Act and corresponding UIF Act sections are unconstitutional and invalid.