Here’s what SA’s new parental leave judgment means for us

THERE are moments when the law does more than amend a statute, it amends our understanding of ourselves.

- PREVIN VEDAN

THE writer says the Constitutional Court's recent judgment on parental leave is about dignity. Pexels.com

(Pexels.com)

The Constitutional Court’s recent judgment in Van Wyk and Others v Minister of Employment and Labour is one such moment. It is revolutionary in how our country understands parenthood, work, equality, and perhaps most importantly, in how we define care.

Until now, South Africa’s parental leave laws were built on an old blueprint of family life.

The Basic Conditions of Employment Act (BCEA) gave birth mothers four months of maternity leave, but limited all other parents to a token 10 days.

Adoptive parents received 10 weeks if the child was under 2 years old, and commissioning parents in surrogacy arrangements faced a similar patchwork of provisions.

The law drew a circle around motherhood and left everyone else outside of it.

It assumed that caregiving rests almost exclusively with the birth mother and that fathers, adoptive parents and partners were helpers, not equals. That framework might once have reflected the norms of its time, but it no longer reflects the lived realities of South Africans who raise children in blended, shared and diverse families.

The effect was discrimination not only between men and women, but between different forms of family, violating the constitutional guarantees of equality, dignity and the best interests of the child.

On October 3, the Constitutional Court agreed. In a unanimous judgment authored by Justice Tshiqi, the court confirmed that sections 25, 25A, 25B and 25C of the BCEA and their matching provisions in the Unemployment Insurance Fund (UIF) Act were unconstitutional to the extent that they discriminated between birth and non-birth parents.