Transcripts
Daphney Willem: Hello, everyone. I'm Daphney Willem.
Speaker:Welcome to a very special podcast.
Speaker:Today we will explore the changes to the parental and maternity leave regime in South Africa.
Speaker:In celebration of Father's Day, I am joined by my colleagues Benny McCullen and Owethu
Speaker:Mbambo.
Speaker:Benny Makoloane: Hi everyone. I'm Benny Makoloane, I'm an associate in Fasken Labour and employment team.
Speaker:Owethu Mbambo: Hi everyone. I am Owethu Mbambo and I am a partner at Fasken Labour and Employment Team.
Speaker:Daphney Willem: The Basic Conditions of Employment Act sets out an employee leave entitlement and the types of leave that an employee
Speaker:who works more than 24 hours for a particular employer is entitled to take.
Speaker:Prior to the 1st of January 2020, an employee was entitled to take annual leave,
Speaker:sick leave, family responsibility leave, and maternity leave.
Speaker:Benny, please explain to us how fathers and other non-birthing parents took time off at the birth of their
Speaker:children.
Speaker:Benny Makoloane: Sure, Daphney. So before the 1st of January 2020, the BECA only allowed Non-birthing parents to take three
Speaker:days of family responsibility leave when their kids were born.
Speaker:And despite that statutory benefit, some employers had a parental leave benefit,
Speaker:which was provided to Non-birthing parents upon the birth of their children.
Speaker:Owethu Mbambo: Thanks, Benny. And then we know that on the 1st of January 2020,
Speaker:the BCEA was amended and introduced three additional categories of leave to be taken by Non-birthing parents at
Speaker:the birth or adoption of their child.
Speaker:And these are termed parental leave, adoption leave and commissioning parental leave.
Speaker:Daphney Willem: I understand that these amendments were introduced to acknowledge the important role played by fathers in the
Speaker:upbringing of their children, and to also ensure that provision is made for leave periods
Speaker:that facilitate early bonding between fathers and their children.
Speaker:Owethu Mbambo: Yes, Daph that's correct. Additionally, the new leave categories also recognise the different ways
Speaker:in which employees are now choosing to become parents, either through adoption or surrogacy.
Speaker:Benny, maybe you can tell us what a father would be entitled to after the effect of the January 2020 amendments
Speaker:and before the Concorde Judgement in Van Wyk, which will touch on a bit later.
Speaker:Benny Makoloane: Sure, Owethu. The position was that a father would be entitled to ten consecutive days of parental leave.
Speaker:An adoptive parent of a child below the age of two would be entitled to ten consecutive weeks or ten days of parental
Speaker:leave. A commissioning parent in a surrogate relationship would be entitled to commissioning parental leave of at
Speaker:least ten consecutive weeks or parental leave ten days.
Speaker:Owethu Mbambo: Thanks, Ben. I understand that unlike with maternity leave, a father who has adopted a child below the age of two or a
Speaker:father in a surrogate arrangement will then have to elect between the longer leave period of ten weeks and the
Speaker:parental leave period of ten days.
Speaker:Depending on the circumstances of each case, it's highly likely that a father would elect the parental
Speaker:leave and give his partner the option of taking the longer period.
Speaker:Daphney Willem: The differential treatment between birthing and non-birthing parents in respect of these categories of leave was
Speaker:considered by the Constitutional Court in the case of Van Vague and others versus the Minister of Employment and
Speaker:Labour in this matter. Mrs. Van Wijk was self-employed and after the birth of her child,
Speaker:she needed to return to work quicker than her husband.
Speaker:The only problem was that her husband only had ten days of parental leave.
Speaker:The Constitutional Court considered the differential treatment and found that this regime unfairly discriminated
Speaker:against the different classes of parents, and also infringed on their dignity and equality based on
Speaker:whether they were a birthing parent, non-birthing parent, or an adoptive parent or commissioning
Speaker:parent in a surrogate arrangement.
Speaker:The Constitutional Court ultimately declared the sections dealing with maternity leave,
Speaker:parental leave, adoption and commissioning parental leave unconstitutional.
Speaker:Benny, can you explain to us what the consequences of this judgement have been on parents taking leave?
Speaker:Benny Makoloane: So the Constitutional Court was clear that the idea that the early caregiving of a child is mainly a woman's work,
Speaker:and that the father's role is secondary is an outdated assumption.
Speaker:Fathers should also be given the opportunity to bond with their children early in their lives.
Speaker:Daphney Willem: So what is the current legal position then in respect of maternity leave,
Speaker:parental leave, adoption leave and commissioning parental leave?
Speaker:Benny Makoloane: So while the Constitutional Court declared sections of the BCA unconstitutional,
Speaker:that declaration was suspended for 36 months to give Parliament time to fix the legislation.
Speaker:Pending this, the court created an interim reading into the BCA.
Speaker:It confirmed that the statutory four months and ten days of parental leave should remain and may be shared between both
Speaker:parents.
Speaker:Owethu Mbambo: Okay, thank you very much, Ben and Dep.
Speaker:This is quite an important case, which was not only about giving more leave to fathers,
Speaker:but it also removes stereotypes that a mother is the primary caregiver of a child and must carry that burden alone.
Speaker:Now the mother and the father of a child can decide how they will take their parental leave.
Speaker:Benny Makoloane: So let's break down the practicalities of the current position after Van Wyk.
Speaker:If an employee is a single parent or the only employed parent in the parental relationship,
Speaker:that employee is entitled to at least four consecutive months of parental leave.
Speaker:That's a big shift because it means potentially an employed father can access a full four months where,
Speaker:for example, the mother is self-employed or unemployed.
Speaker:Daphney Willem: And if both parents are employed, they're entitled to the aggregate of four months and ten
Speaker:days parental leave. They can decide how they want to share it concurrently,
Speaker:consecutively or partly both, provided that each parent's leave is taken as a single
Speaker:sequence of consecutive days. If they do not agree, the default position is that the leave must be apportioned
Speaker:so that each parent's total leave is as close as possible to half the total period.
Speaker:Owethu Mbambo: And as a person who has given birth myself, Daph, I think the one question that comes up is,
Speaker:what about the physical changes and the physical implications and consequences of giving birth?
Speaker:Are those factored into any of this?
Speaker:And when you look at these changes, there is still protection for a parent who gives birth.
Speaker:A female employee who is expecting a child may start leave up to four weeks before the expected date of birth,
Speaker:and no female employee who has given birth may work for six weeks after the birth,
Speaker:unless certified fit by a medical practitioner or a qualified midwife.
Speaker:So the court has preserved the health and recovery dimension of birth while still opening up the broader care giving
Speaker:space for fathers and other parents.
Speaker:Benny Makoloane: Important to note that this interim regime also extends across adoption and surrogacy,
Speaker:Which is another important equality shift.
Speaker:The court here is recognising that bonding care and adjustment are not just issues for the biological parents of
Speaker:a child.
Speaker:Owethu Mbambo: So from a practical perspective, it's easy to see how an employer that employs both parents
Speaker:can easily implement the changes.
Speaker:The question, though, becomes how an employer will monitor the sharing of parental leave.
Speaker:If the parents are employed by different employers, which would generally ordinarily be the case.
Speaker:Daphney Willem: So there are different ways that employers can approach that type of situation,
Speaker:or way to employers could offer the benefit of parental leave,
Speaker:regardless of the other parents employment status.
Speaker:Or they could follow the leave sharing approach.
Speaker:So give your employees the four months.
Speaker:Or if you want them to share, they will share then the four months and ten days.
Speaker:If they do elect the leave sharing option.
Speaker:Employers will require employees to submit a written agreement confirming how the employees have decided to take
Speaker:their parental leave.
Speaker:Benny Makoloane: And we have to remember that trust is the cornerstone of the employment relationship.
Speaker:So an employer will trust that the parents will adhere to that agreement.
Speaker:Owethu Mbambo: Another likely situation that employers must be prepared to deal with is where one of the parents has an employee
Speaker:benefit in terms of their workplace policies, where they are paid to take the full four months leave,
Speaker:and the other parent doesn't have such a benefit.
Speaker:And these are the sort of issues that couples and parents will need to also start thinking about when they decide how
Speaker:they will split their leave up.
Speaker:Daphney Willem: In February 2026. The Department of Labour and Employment published the Labour Law Amendment Bill.
Speaker:This bill sets out proposed amendments to be made to the Basic Conditions of Employment Act,
Speaker:to align it with the principles that we have just highlighted from the Van Wyk judgement.
Speaker:Benny Makoloane: Instead of keeping the old separate concepts of maternity leave,
Speaker:parental leave, adoption leave and commissioning parental leave in the same way,
Speaker:it introduces a more unified framework that's built around one right to parental leave.
Speaker:Under the proposed new section 25 of the BCA, an employee who's a parent of a newborn child,
Speaker:an adoptive parent of a child up to six years old, or commissioning parent in a surrogacy arrangement would
Speaker:qualify for parental leave.
Speaker:Owethu Mbambo: That's quite interesting, Benny, because the Labour Law Amendment Bill thus proposes to
Speaker:increase the adoption age of a child from 2 to 6 years old.
Speaker:Daphney Willem: Benny, can you please take us through the material differences between the Labour Law Amendment Bill and the
Speaker:Van Wyk judgement.
Speaker:Benny Makoloane: I think the major difference relates to what happens when you have parents who cannot agree on how to divide their
Speaker:leave after a child is born, and under the Constitutional Court's interim BCA regime,
Speaker:the default was basically to split the leave as close to equally as possible.
Speaker:After taking into account the birth mother's protected period.
Speaker:Under the bill, if the parents of a child cannot agree on how to share their leave,
Speaker:the person or the parent who gave birth can elect to take the full four months,
Speaker:in which case the other parent gets ten days, or the person who gave birth may take less than four months,
Speaker:in which case the other parent gets the balance.
Speaker:So the bill's in a stronger default preference for the birth mother in scenarios where there's disagreement.
Speaker:Owethu Mbambo: That's a really interesting policy choice on one hand.
Speaker:It recognises recovery from childbirth.
Speaker:On the other hand, it may become one of the more debated features of the bill because it moves away from the courts.
Speaker:More equality based interim default.
Speaker:Daphney Willem: It seems to me that language matters now.
Speaker:The legal conversation has shifted from paternity maternity leave to parental leave,
Speaker:and this mirrors the fact that the law is also moving away from the idea that caregiving rights should depend mainly on
Speaker:whether you are the birth mother or the other parent.
Speaker:Benny Makoloane: For me, the biggest story here is that the law is slowly catching up with reality and how families actually live.
Speaker:In some homes, the fathers, the one who can take extended leave from work in other homes.
Speaker:Both parents need flexibility.
Speaker:Real life is far more textured than the old legislation allowed for.
Speaker:Owethu Mbambo: I agree this is definitely a step in the right direction.
Speaker:The early days after a child is born are not just about nappies and no sleep.
Speaker:They're also about attachment, confidence, routine and building a family rhythm as well.
Speaker:For many fathers, being present in that space is not a luxury,
Speaker:it's foundational. The amendments to the BCEA and the Van Wyk judgement allow fathers to be involved in this important
Speaker:phase of their child's lives.
Speaker:Benny Makoloane: So in closing, if you're an employer, now's the time to review your leave policies.
Speaker:If you're an employee, especially a father, don't assume the answer is still just ten days,
Speaker:boss. The law has moved, brother.
Speaker:Owethu Mbambo: And to everyone listening, whether you're a dad, a co-parent,
Speaker:an employer, or just trying to make sense of this area of law,
Speaker:we hope this has been helpful.
Speaker:Daphney Willem: And to the fathers and the father figures out there, Happy Father's Day.
Speaker:Owethu Mbambo: Happy Father's day.
Speaker:Benny Makoloane: Happy Father's Day.
