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