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Daphney Willem:
Hello, everyone. I'm Daphney Willem.

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Welcome to a very special podcast.

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Today we will explore the changes to the parental and 
maternity leave regime in South Africa.

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In celebration of Father's Day, 
I am joined by my colleagues Benny McCullen and Owethu

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Mbambo.

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Benny Makoloane:
Hi everyone. I'm Benny Makoloane, 
I'm an associate in Fasken Labour and employment team.

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Owethu Mbambo:
Hi everyone. I am Owethu Mbambo and I am a partner at Fasken 
Labour and Employment Team.

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Daphney Willem:
The Basic Conditions of Employment Act sets out an employee 
leave entitlement and the types of leave that an employee

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who works more than 24 hours for a particular employer is 
entitled to take.

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Prior to the 1st of January 2020, 
an employee was entitled to take annual leave,

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sick leave, family responsibility leave, 
and maternity leave.

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Benny, please explain to us how fathers and other 
non-birthing parents took time off at the birth of their

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children.

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Benny Makoloane:
Sure, Daphney. So before the 1st of January 2020, 
the BECA only allowed Non-birthing parents to take three

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days of family responsibility leave when their kids were 
born.

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And despite that statutory benefit, 
some employers had a parental leave benefit,

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which was provided to Non-birthing parents upon the birth of 
their children.

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Owethu Mbambo:
Thanks, Benny. And then we know that on the 1st of January 
2020,

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the BCEA was amended and introduced three additional 
categories of leave to be taken by Non-birthing parents at

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the birth or adoption of their child.

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And these are termed parental leave, 
adoption leave and commissioning parental leave.

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Daphney Willem:
I understand that these amendments were introduced to 
acknowledge the important role played by fathers in the

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upbringing of their children, 
and to also ensure that provision is made for leave periods

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that facilitate early bonding between fathers and their 
children.

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Owethu Mbambo:
Yes, Daph that's correct. Additionally, 
the new leave categories also recognise the different ways

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in which employees are now choosing to become parents, 
either through adoption or surrogacy.

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Benny, maybe you can tell us what a father would be entitled 
to after the effect of the January 2020 amendments

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and before the Concorde Judgement in Van Wyk, 
which will touch on a bit later.

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Benny Makoloane:
Sure, Owethu. The position was that a father would be 
entitled to ten consecutive days of parental leave.

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An adoptive parent of a child below the age of two would be 
entitled to ten consecutive weeks or ten days of parental

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leave. A commissioning parent in a surrogate relationship 
would be entitled to commissioning parental leave of at

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least ten consecutive weeks or parental leave ten days.

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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

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father in a surrogate arrangement will then have to elect 
between the longer leave period of ten weeks and the

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parental leave period of ten days.

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Depending on the circumstances of each case, 
it's highly likely that a father would elect the parental

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leave and give his partner the option of taking the longer 
period.

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Daphney Willem:
The differential treatment between birthing and non-birthing 
parents in respect of these categories of leave was

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considered by the Constitutional Court in the case of Van 
Vague and others versus the Minister of Employment and

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Labour in this matter. Mrs. Van Wijk was self-employed and 
after the birth of her child,

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she needed to return to work quicker than her husband.

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The only problem was that her husband only had ten days of 
parental leave.

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The Constitutional Court considered the differential 
treatment and found that this regime unfairly discriminated

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against the different classes of parents, 
and also infringed on their dignity and equality based on

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whether they were a birthing parent, 
non-birthing parent, or an adoptive parent or commissioning

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parent in a surrogate arrangement.

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The Constitutional Court ultimately declared the sections 
dealing with maternity leave,

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parental leave, adoption and commissioning parental leave 
unconstitutional.

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Benny, can you explain to us what the consequences of this 
judgement have been on parents taking leave?

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Benny Makoloane:
So the Constitutional Court was clear that the idea that the 
early caregiving of a child is mainly a woman's work,

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and that the father's role is secondary is an outdated 
assumption.

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Fathers should also be given the opportunity to bond with 
their children early in their lives.

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Daphney Willem:
So what is the current legal position then in respect of 
maternity leave,

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parental leave, adoption leave and commissioning parental 
leave?

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Benny Makoloane:
So while the Constitutional Court declared sections of the 
BCA unconstitutional,

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that declaration was suspended for 36 months to give 
Parliament time to fix the legislation.

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Pending this, the court created an interim reading into the 
BCA.

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It confirmed that the statutory four months and ten days of 
parental leave should remain and may be shared between both

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parents.

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Owethu Mbambo:
Okay, thank you very much, Ben and Dep.

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This is quite an important case, 
which was not only about giving more leave to fathers,

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but it also removes stereotypes that a mother is the primary 
caregiver of a child and must carry that burden alone.

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Now the mother and the father of a child can decide how they 
will take their parental leave.

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Benny Makoloane:
So let's break down the practicalities of the current 
position after Van Wyk.

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If an employee is a single parent or the only employed 
parent in the parental relationship,

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that employee is entitled to at least four consecutive 
months of parental leave.

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That's a big shift because it means potentially an employed 
father can access a full four months where,

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for example, the mother is self-employed or unemployed.

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Daphney Willem:
And if both parents are employed, 
they're entitled to the aggregate of four months and ten

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days parental leave. They can decide how they want to share 
it concurrently,

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consecutively or partly both, 
provided that each parent's leave is taken as a single

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sequence of consecutive days. If they do not agree, 
the default position is that the leave must be apportioned

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so that each parent's total leave is as close as possible to 
half the total period.

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Owethu Mbambo:
And as a person who has given birth myself, 
Daph, I think the one question that comes up is,

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what about the physical changes and the physical 
implications and consequences of giving birth?

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Are those factored into any of this?

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And when you look at these changes, 
there is still protection for a parent who gives birth.

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A female employee who is expecting a child may start leave 
up to four weeks before the expected date of birth,

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and no female employee who has given birth may work for six 
weeks after the birth,

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unless certified fit by a medical practitioner or a 
qualified midwife.

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So the court has preserved the health and recovery dimension 
of birth while still opening up the broader care giving

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space for fathers and other parents.

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Benny Makoloane:
Important to note that this interim regime also extends 
across adoption and surrogacy,

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Which is another important equality shift.

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The court here is recognising that bonding care and 
adjustment are not just issues for the biological parents of

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a child.

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Owethu Mbambo:
So from a practical perspective, 
it's easy to see how an employer that employs both parents

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can easily implement the changes.

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The question, though, becomes how an employer will monitor 
the sharing of parental leave.

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If the parents are employed by different employers, 
which would generally ordinarily be the case.

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Daphney Willem:
So there are different ways that employers can approach that 
type of situation,

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or way to employers could offer the benefit of parental 
leave,

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regardless of the other parents employment status.

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Or they could follow the leave sharing approach.

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So give your employees the four months.

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Or if you want them to share, 
they will share then the four months and ten days.

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If they do elect the leave sharing option.

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Employers will require employees to submit a written 
agreement confirming how the employees have decided to take

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their parental leave.

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Benny Makoloane:
And we have to remember that trust is the cornerstone of the 
employment relationship.

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So an employer will trust that the parents will adhere to 
that agreement.

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Owethu Mbambo:
Another likely situation that employers must be prepared to 
deal with is where one of the parents has an employee

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benefit in terms of their workplace policies, 
where they are paid to take the full four months leave,

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and the other parent doesn't have such a benefit.

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And these are the sort of issues that couples and parents 
will need to also start thinking about when they decide how

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they will split their leave up.

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Daphney Willem:
In February 2026. The Department of Labour and Employment 
published the Labour Law Amendment Bill.

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This bill sets out proposed amendments to be made to the 
Basic Conditions of Employment Act,

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to align it with the principles that we have just 
highlighted from the Van Wyk judgement.

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Benny Makoloane:
Instead of keeping the old separate concepts of maternity 
leave,

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parental leave, adoption leave and commissioning parental 
leave in the same way,

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it introduces a more unified framework that's built around 
one right to parental leave.

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Under the proposed new section 25 of the BCA, 
an employee who's a parent of a newborn child,

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an adoptive parent of a child up to six years old, 
or commissioning parent in a surrogacy arrangement would

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qualify for parental leave.

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Owethu Mbambo:
That's quite interesting, Benny, 
because the Labour Law Amendment Bill thus proposes to

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increase the adoption age of a child from 2 to 6 years old.

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Daphney Willem:
Benny, can you please take us through the material 
differences between the Labour Law Amendment Bill and the

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Van Wyk judgement.

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Benny Makoloane:
I think the major difference relates to what happens when 
you have parents who cannot agree on how to divide their

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leave after a child is born, and under the Constitutional 
Court's interim BCA regime,

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the default was basically to split the leave as close to 
equally as possible.

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After taking into account the birth mother's protected 
period.

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Under the bill, if the parents of a child cannot agree on 
how to share their leave,

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the person or the parent who gave birth can elect to take 
the full four months,

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in which case the other parent gets ten days, 
or the person who gave birth may take less than four months,

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in which case the other parent gets the balance.

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So the bill's in a stronger default preference for the birth 
mother in scenarios where there's disagreement.

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Owethu Mbambo:
That's a really interesting policy choice on one hand.

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It recognises recovery from childbirth.

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On the other hand, it may become one of the more debated 
features of the bill because it moves away from the courts.

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More equality based interim default.

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Daphney Willem:
It seems to me that language matters now.

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The legal conversation has shifted from paternity maternity 
leave to parental leave,

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and this mirrors the fact that the law is also moving away 
from the idea that caregiving rights should depend mainly on

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whether you are the birth mother or the other parent.

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Benny Makoloane:
For me, the biggest story here is that the law is slowly 
catching up with reality and how families actually live.

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In some homes, the fathers, the one who can take extended 
leave from work in other homes.

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Both parents need flexibility.

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Real life is far more textured than the old legislation 
allowed for.

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Owethu Mbambo:
I agree this is definitely a step in the right direction.

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The early days after a child is born are not just about 
nappies and no sleep.

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They're also about attachment, 
confidence, routine and building a family rhythm as well.

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For many fathers, being present in that space is not a 
luxury,

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it's foundational. The amendments to the BCEA and the Van 
Wyk judgement allow fathers to be involved in this important

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phase of their child's lives.

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Benny Makoloane:
So in closing, if you're an employer, 
now's the time to review your leave policies.

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If you're an employee, especially a father, 
don't assume the answer is still just ten days,

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boss. The law has moved, brother.

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Owethu Mbambo:
And to everyone listening, whether you're a dad, 
a co-parent,

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an employer, or just trying to make sense of this area of 
law,

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we hope this has been helpful.

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Daphney Willem:
And to the fathers and the father figures out there, 
Happy Father's Day.

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Owethu Mbambo:
Happy Father's day.

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Benny Makoloane:
Happy Father's Day.