Justice for fathers
SA LEADS CONTINENT: LANDMARK PATERNITY LEAVE RULING
High court ruling states 16 weeks can be shared between two parents.
ASouth African high court has ushered in a new era of parental leave with a landmark ruling that new parents can share four months of parental leave, previously available only to mothers.
The case against the minister of labour was initiated by Werner and Ika van Wyk as first respondents, and advocacy group Sonke Gender Justice as third respondent.
Equimundo: Centre for Masculinities and Social Justice was commissioned to write an expert affidavit on international good practices regarding parental leave, and we drew mainly on the criteria of good leave policies set out in the MenCare Parental Leave Platform for the affidavit.
The Van Wyk couple laid the case after Werner van Wyk was not able to take sufficient leave to care for their baby.
His wife Ika, who is the CEO of her own company, had to take leave and her business suffered. They argued the 10 days of parental leave for fathers was insufficient and discriminatory.
This is a groundbreaking judgment in Africa, since no other African country offers shared parental leave. South Africa is leading the continent in joining the trend of countries worldwide to offer more parental leave to fathers.
The percentage of countries offering paid leave to fathers for one day or more has increased dramatically from 25% in 1995 to 63% in 2022.
The High Court in Johannesburg’s judgment is an interim remedy. It provides lawmakers with a two-year window to develop the law.
Crucially, the judgment avoids specifying marital or relationship status. It allows adoptive and separated parents to share care-giving responsibilities. Adoptive parents now enjoy the same leave rights as biological parents. The previous leave for adoptive parents was only 10 weeks.
The most significant advance in this judgment is that fathers can now take a portion of up to four months of parental leave, provided they reach an agreement with the mother. Mothers can then return to work if fathers assume childcare responsibilities.
As a researcher into the role of men in childcare, I believe this judgment represents a monumental shift in policy. However, several issues must be addressed to increase the likelihood that men take parental leave and that care-giving responsibilities are shared equally.
1. Insufficient time: The International Labour Organisation recommends a minimum of 14 weeks of maternity leave. The judgment states that 16 weeks can be shared among two parents. That’s only eight weeks for each parent.
Importantly, the shared leave potentially reduces the time available to mothers compared to the previous four months.
While it benefits mothers who wish to return to work earlier, separation of mother and child can hinder the bonding between mother and child and complicate the logistics of breastfeeding.
2. Agreement between parents: In a high income family with both parents living together, shared leave could work, but for two-thirds of children in SA, where biological fathers do not live in the same household as the child, coming to an agreement may be difficult. Similarly, in situations where men dominate household decisions, agreeing on men doing more laborious care work may be unlikely.
3. Reality on the ground:
While fathers are becoming increasingly involved in caregiving, there is still a considerable gap in the time invested in care between parents.
This discrepancy is evident in surveys like the UN Women Covid Rapid Gender Assessment in SA and the #HowIcare Project which showed that the gender gap in time spent on care work widened after Covid.
4. For formally employed
only: Parental leave in SA currently only provides support to formally employed workers whose salaries contribute to the Unemployment Insurance Fund.
Many South Africans are either self-employed or informally employed. The informal sector is currently recorded as contributing 28% of GDP.