THE groundbreaking judgment that both parents are now eligible for parental leave is forward thinking.
This is according to the Commission for Gender Equality (CGE).
Dr Dennis Matotoka, the acting CEO of the commission, said on Friday, 27 October, that the judgment essentially promotes equal parental leave for all parents irrespective of their gender.
"It's our view that equitable care responsibilities for children in South Africa is very much critical as we rejected the assumption that women must be most of the unpaid childcare work in the home to the detriment of their economic and education opportunities and interest. As such, equal participation of parents irrespective of their gender is in the best interest of the child," he said.
According to the ruling, all parents who contribute to UIF qualify for four consecutive months' parental leave, collectively.
But Matotoka pointed out that the judgment doesn't provide a statutory minimum leave for parents who adopt children who are over the age of two years.
ALSO READ | Ramaphosa angers abahlali during visit!Opens in new window
"In our view, there's no rational or justifiable basis for differentiating between parents adopting children under the age of two and parents that adopted children who are over the age of two. That, in our view, remains a discriminatory clause that needs to be convinced further. As the commission, we will be taking this matter further to challenge this existing limitation with the high courts," he said.
The Joburg High Court found on Thursday, 26 October, that both sections 25 and 26 of the Basic Conditions of Employment Act are unconstitutional to the extent that the said provisions unfairly discriminated against biological parents, adoptive parents and commissioning parents under the existing surrogacy agreement.
The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality, with several other organisations acting as amicus curiae (a friend of the court).
Judge Roland Sutherland ruled: "Upon the premise that the leave entitlements and duration of leave are provided for the purpose of the nurture of a baby or toddler, not merely to allow a literal physiological recovery from giving birth, it seems plain that the distinctions made in the BCEA are at odds with the objectives of the Constitution and the norms inherent in the Childrens' Act."
Sutherland suspended the declaration of invalidity for two years to give Parliament time to remedy the defects.
"The crux of the case is about unequal treatment of persons," Sutherland said.
