South African fathers are entitled to equal parental leave, the rules of the court

The highest jurisdiction of South Africa unanimously ruled that all parents of newborns are entitled to equal parental leave – a historic judgment hailed as a major victory for gender equality and family rights.

Under the current law, mothers are granted four months in leave, while fathers only receive 10 days.

In its decision, the Constitutional Court declared parties of unconstitutional legislation, the discriminatory appellant against the fathers, and judged that the two parents can now share the leave granted as they wish.

“This is a revolutionary stage for equality, family well-being and the future of fatherhood in South Africa,” said Sthembiso Phakathi, founder of Single Dads Network.

In 2023, a lower court noted that certain sections of the basic law on employment conditions (ECB) and the law on the unemployment insurance fund (UIF) and deemed having violated the rights of various family structures.

The High Court of Gauteng then judged that the law unjustly dealt with the types of parents differently concerning the duration of parental holidays and unemployment benefits received.

The case was brought to justice by a married couple, the committee for gender equality and others, which sought to tackle the faded societal burden placed mainly on mothers, stressing that parental responsibilities should be shared.

The petitioners argued that the current legislation unfairly discriminated against parents who were not the biological mother – in particular, fathers, adoptive parents and parents of children born of substitutes – by granting them only 10 days of parental leave, while the biological mother received four months.

On Friday, judge Zukisa Tshiqi said that judge Zukisa Tshiqi said that both parents should have the right to share the available days as they see fit, describing the current overtised law and which “kept mothers and excluded the fathers unjust”.

“The protection of nitnaeal mothers to the exclusion of other parents has the unfortunate consequence of perpetuating the hypothesis that women are and should be the main children’s care.

“The father is marginalized and deprived of the opportunity to get involved as a parent in the education of the baby during the early stages of life,” she added.

Judge Tshiqi said that the decision did not only concern gender equality but also the protection of the dignity of families, stressing that the ultimate objective of the court’s decision was the well-being of children.

“Unequal treatment does not only marginalize parents but also deprives children of the possibility of being with their caregivers during a crucial period of development and adaptation to their new environment.”

The petitioners welcomed the decision, while legal experts warned that the decision would have large -scale implications for employers, who will have to adjust their current leave policies to comply with the judgment.

“The essence of the case is that it highlights the need to provide equal parental leave services, recognizing that the feeding of a child is shared responsibility,” the BBC Tsietsi told the gender equality.

He said that the current law “did not reflect societal standards evolving around parenting”.

Labor lawyer Patrick Deale told state media that judgment was “a positive and expected result” for parents’ rights in the country.

The court suspended its declaration of disability for three years, spending the time of Parliament to modify the current laws to align with its judgment.

In the meantime, parents will have the right to decide how they want to share the four months and 10 days off.

If only one parent is used, this parent can take the complete allowance of the leave.