Consensus in the Constitutional Court: Parental leave framework is unconstitutional

Today, the Constitutional Court heard a pivotal challenge to the Basic Conditions of Employment Act and Unemployment Insurance Fund Act. There was a shared consensus among all parties in Court, including the Minister of Employment and Labour, that the existing parental leave framework is discriminatory and unconstitutional, warranting legislative reform.

The court’s focus during arguments was on the necessity of protecting the rights of parents and their children during the period leading to legislative amendments. While all parties agreed that the current law is unconstitutional and accepted a suspension of any declaration to maintain some form of parental leave in the interim, the Minister argued against implementing any form of temporary relief.

Representing the Commission for Gender Equality (CGE), Advocate Heidi Barnes SC, instructed by Norton Rose Fulbright’s Impact Litigation directors, under the Social Impact team, argued that interim relief is crucial to prevent continued infringement on the constitutional rights of parents and children while awaiting legislative reform. The CGE advocated for a system allowing parents to collectively receive four months and two weeks of leave, with flexibility on how the leave is allocated between them. By contrast, the individual applicants proposed an option allowing one parent to take four months and the other two weeks, and Sonke Gender Justice suggested that each parent receive four months of leave.

The CGE further submitted that it is unconstitutional to deny parental leave to those adopting children two years and older, stressing the importance of inclusive legislative reform that supports adoption at all child age groups in the interest of promoting the welfare and best interests of all children. Despite having issued a notice of intention to abide by the court’s decision, the Minister opposed this particular form of relief.

The Constitutional Court has reserved its judgment, a ruling that could herald a more equitable parental leave framework for all parents in South Africa.

This case marks a significant step forward in the fight for parental equality, highlighting the critical need for reforms that better support South African families and promote the welfare of all children.