There is a recent decision in the Gauteng High Court receiving a lot of media attention that will bring about changes to the parental leave provisions in the Basic Conditions of Employment Act (“BCEA”). This decision, handed down on Wednesday, 25 October 2023, found that certain parts of the BCEA were unconstitutional and recommended amendments. The sections dealt with were maternity leave, parental leave, adoption leave and commissioning parental leave.

The objective of this judgment seeks to empower equal rights for both parents to a minimum of four months’ leave following the birth or legal adoption of a child, as opposed to allowing only a birthing mother four months and a non-birthing parent 10 consecutive days.

The Deputy Judge President, Justice Roland Sutherland, suggested revised wording for these sections. These suggestions have the following effect:

1. Both parents (birthing and non-birthing) are entitled to a minimum of four months collectively. This means they can take turns taking leave and cannot both take four months off from work.
2. Parental leave, the 10 consecutive days non-birthing parents can currently take,  is likely to be removed.
3. Adopting parents and parents who commission a surrogate will also be entitled to four months’ leave, as opposed to the current 10-week entitlement.
4. Non-birthing parents, like fathers, will also be entitled to claim benefits from the Unemployment Insurance Fund (UIF) during the four-month period.

When will this come into effect? The judgment will need to be confirmed by the Constitutional Court. Justice Sutherland has suspended his declaration of invalidity for two years, thereby allowing parliament to cure these legislative provisions. This means that these changes are not yet in force but will come into force once the Constitutional Court has confirmed the judgment and Parliament have approved amendments to the BCEA.

What would we suggest you do now? For now, we do not suggest updating employment agreements and policies, however, we do advise reviewing these once the Constitutional Court has confirmed that the judgment is correct. In short, once the apex Court agrees that this decision is the right one, it becomes a common law right for employees and will then be enforced by Parliament in a matter of time.

That said, we think it important to distribute communication to employees setting out that this is not yet a right that they are entitled to as many may derive the incorrect message from the media.   Reach out to us if you would like us to assist with this communication.