‘Boundary-pushing’ ruling on parental leave consequences ‘far-reaching’


Boundary shifting.

This is how the Johannesburg High Court’s ruling on parental leave was labeled on Thursday.

The law firm Webber Wentzel says the case of Werner and Ika van Wyk and others against the minister of labor and employment has not only challenged the legal interpretation of maternity leave, but also broader societal norms and expectations about parenting roles.

“This case has sparked intense debate and divergent opinions about its merits and will have a significant effect in the workplace,” say Deon Visagie, Joani van Vuuren, Jamie Jacobs and Nkosinathi Thema in a joint opinion by Webber Wentzel.

RNews earlier reported that certain sections of the Basic Employment Act and the Unemployment Insurance Act were declared unconstitutional on Wednesday because – when it comes to so-called maternity leave – legislation unfairly discriminates against mothers and fathers, surrogate parents and those who adopt children.

Judge Roland Sutherland suspended the declaration of invalidity for two years to give parliament the opportunity to “rectify the defects”.

Meanwhile, all parents are entitled to four months of parental leave, and if they contribute to the Unemployment Insurance Fund, also to all Unemployment Insurance benefits.

“This groundbreaking decision has the potential to transform the parental leave landscape in South Africa,” says Webber Wentzel.

However, the Constitutional Court has yet to ratify the verdict.

Webber Wentzel says it nevertheless creates a new precedent for parental rights and equality in the workplace.

“The Van Wyk case represents an important step towards achieving gender equality and shared parental responsibility. This court decision has set a precedent that can pave the way for a more inclusive and supportive work environment for all parents in South Africa, which will ultimately benefit families, employees and employers.”

However, the firm says employers should take note of the operational and cost implications of the ruling, especially if they offer paid maternity leave.

“Employers will be required to provide paid parental leave to all individual employees or employees who together form a parent couple. As the legal landscape evolves to accommodate this expanded definition of parental leave, it is essential for employers to review their policies and practice to ensure compliance with the new legal framework.”