Norton Rose Fulbright South Africa secures Constitutional Court victory for the Commission for Gender Equality on parental leave equality

Norton Rose Fulbright South Africa, acting on behalf of the Commission for Gender Equality (CGE), has secured a landmark victory in the Constitutional Court, which has declared key provisions of the Basic Conditions of Employment Act, 1997 (BCEA) and the Unemployment Insurance Act, 2001 (UIF Act) unconstitutional due to unfair discrimination in the allocation of parental leave and related benefits.

The Constitutional Court confirmed that sections 25, 25A, 25B and 25C of the BCEA dealing with maternity leave and parental leave, together with the corresponding sections of the UIF Act, unfairly discriminate between different classes of parents - birth mothers, fathers, adoptive parents, and commissioning parents in surrogacy arrangements - regarding the length of parental leave and the associated unemployment benefits. The Court further declared that limiting adoption leave and benefits to adoptive parents of children under the age of two years is unconstitutional.

The CGE made submissions inter alia that adopted children of all ages require consistent care on arrival and that such care does not diminish with age but heightens. In fact, older children may require greater attention and support to ensure effective bonding, integration within the new family and to prevent a breakdown in placement.

The Court endorsed these submissions, holding that "parental leave, irrespective of the child's age, is not solely about meeting the needs of the child, such as nurturing, but also to allow children of different ages a period to integrate and adapt in the new family unit. It cannot be disputed that in certain instances adopted children may require additional care and support depending on the circumstances they come from."

The declarations of invalidity are suspended for 36 months to allow Parliament to remedy the defects, with interim measures in place to ensure equal parental leave of four months and 10 days be available (and shared) between the parents as they choose.

"This judgment is a significant step forward for gender equality and the recognition of diverse family structures in South Africa. The Court has affirmed that all parents - regardless of gender, sexual orientation, or the manner in which they become parents - are entitled to equal dignity and the opportunity to nurture their children," says Laura Macfarlane, Director at Norton Rose Fulbright South Africa.

The CGE was represented by Norton Rose Fulbright South Africa's Social Impact team, led by Laura Macfarlane and Jason Whyte, with counsel Heidi Barnes SC, Mpho Rasivhetshele, and Keneilwe Ramela.

Congratulations to the team on this outstanding achievement, which demonstrates the impact of our work in advancing constitutional rights and gender equality in South Africa.