Are Employment Laws Discriminating by not providing sufficient Paternity Leave in South Africa?
By Advocate Kaiél Grobler

A mere 20 years ago societal norms dictated that women should cater to their families’ needs, while husbands acted as breadwinners who participated in the economy. Many assumed that women were better primary caretakers than men, who had greater economic responsibilities and in fact preferred these responsibilities above those at home. It was therefore not unusual that lawmakers echoed these assumptions in the labour legislation of the day and didn’t cater for paternity leave in South Africa. These laws were discriminatory at its’ core and intended to keep men in the labour force and women out.

With the changing dynamics in relationships, an economy that makes it nearly impossible to survive on a single income and greater understanding of early child development, things look different, and paternity leave in South Africa should be considered. Unfortunately, while society’s perceptions have evolved, our labour laws are not keeping up with modern trends of women entering the labour market and men becoming more involved in the household.

The last few years have brought various discriminatory labour provisions in focus, most recently the bias of maternity leave. Advocate Jackie Nagtegaal from LAW FOR ALL, an innovative legal insurance and service provider, explains that in terms of the Basic Conditions of Employment Act, female employees are at present entitled to four months maternity leave, while their male counterparts are only allowed a dismal three days paid family responsibility leave. “Unfortunately the law doesn’t cater for paternity leave in South Africa and therefore doesn’t recognise the importance or prerogative of men to take care of their newborn children. Many are quick to blame fathers for not being involved enough, but in reality, three days are hardly sufficient to foster a bond. Not to mention, the three days can’t be carried over annually, and also cater for instances of death or sickness in the family.”

Recent studies indicate that households are increasingly sharing responsibilities equally between partners and many believe that these duties should include care for newborn babies. In countries that provide sufficient paternity leave to fathers, studies have found that women not only recover faster from the physical stress of birth but also return to their employment more revitalised. The fathers and children benefit too, as paternity leave allows for stronger bonds to form from the outset, ensuring better relationships and development in the long term.

In 2014, Financial Manager, Henri Terblanche, 38, from Brackenfell, took issue with the absence of adequate paternity leave in South Africa and he set out to challenge the status quo. Terblanche’s wife gave birth to twins, Dante and Juandré, three months prematurely. The newborns had to spend 139 days and 79 days respectively in ICU and required ongoing medical care in the months after their release from the hospital.  The three days of family responsibility leave left the Terblanche’s family in a disadvantaged position and prompted him to petition the National Council of Provinces to update laws. He also urged MP’s to draft new legislation for consideration by the National Assembly.

Nagtegaal explains that the call for increased paternity leave in South Africa is a step in the right direction as the country is falling behind many European and some African countries. “Sweden, for example, provides 480 days leave to parents, with 60 days for both parents directly after the birth. The remainder may be pooled and shared between the parents.  On our continent, in Kenya, men are entitled to 14 days Paternity Leave with full pay, while conservative Cameroon allows ten days a year.”

While 1996 also painted a different picture of stereotypes surrounding South African homosexuals, the implementation of The Bill of Rights meant the prohibition of discrimination on the basis of sexual orientation. The implementation of new laws that gave recognition to gay rights such as the Civil Union Act that allows same-sex couples to wed, and the new Children’s Act which regulates surrogacy, signaled a change in the perceptions surrounding homosexuality by the community. Unfortunately, employment laws have failed to keep up with the changing times.

In 2013, Johannesburg-based Chartered Accountant, Simon (35) and his Architect life partner, Ben (43), leaped to fulfill a lifelong dream of having a child.  The process was anything but easy or economical. Two failed pregnancies and steep costs of medical expenses took its toll on their relationship.  Both men agree that it was a challenging time. “Surrogacy is a modern medical marvel that has allowed us to become the biological parents of a beautiful baby girl, a dream that would otherwise not have been possible but all was not without blood, sweat, and tears.”

Lack of adequate leave benefits didn’t affect the couple much, as Ben is the owner of a successful architecture firm and Simon’s employer was supportive. “My employer basically just sat me down and said that they support my decision wholeheartedly and that they regard me as a high caliber employee who deserves to be happy in my family life too. Many of our friends who have gone the surrogacy route have not been so lucky, and their employers refused leave based on company policy.”

On Thursday 26 March 2015, the Durban Labour Court made it impossible for companies to hide behind company policies to discriminate against homosexual couples. In the groundbreaking matter, the State Information Technology Agency denied a Senior Specialist in Business Architecture in their employ, four months paid “maternity” leave following the birth of their child by a surrogate in 2011. The employee whose identity has been kept out of the media, applied for maternity leave long before the birth of the child and was ultimately granted two months paid adoption leave, and two months unpaid leave. The Agency argued that the Basic Conditions of Employment Act only provided maternity leave benefits to female employees and failed to understand how its policies could be discriminatory as employment laws failed to deal with matters of surrogate parents specifically.

Judge J Gush disagreed with this line of argument and was of the opinion that the Agency’s policies were, in fact, discriminatory in that it failed to recognise the status of the parties to a civil union, the rights of the commissioning parents in a surrogacy agreement. Maternity leave benefits are not solely connected to the welfare and health of the mother, but also to the best interest of the child.  Gush indicated that amendments should be made to existing employment laws and found that the male employees who have children through surrogacy are entitled to “paternity” leave for the same period as to which the natural mother would have been allowed.

Nagtegaal believes that the outcome of the case strengthens the argument of heterosexual father’s regarding their entitlement to paternity leave benefits where they are the primary caregivers or where the mother died during birth and fathers are solely tasked with the upbringing of the child. She is also of the opinion that companies cannot exclusively focus on employment laws, and need to take Constitutional rights and principles into account when formulating policy. “Time has come for legislation to be changed to correspond to the social practices and norms and accept that parenting is not an act reserved only for women. The decision of which parent should care for a newborn should be placed in the hands of parents, in the best interest of their child.” As it stands now, the law decides and does not take into consideration the practicalities of the family’s setup and what would be in the best interest of the child or family. In instances where mothers contribute more financially to the household, it might be prudent to allow the husband to take care of the newborn during the allotted four months. “The fact is, legislation should allow parties to make a choice in the matter and not follow an out of date patriarchal system that discriminates on gender.”

Have you taken the time to sign our online petition to grant men Paternity Leave in South Africa? 

UPDATE: November 2017

The National Assembly has officially adopted the Labour Law Bill that calls for updates on paternity leave.

The Labour Laws Amendment Bill (LLAB), which was introduced to Parliament in November 2015, sought to make crucial changes to leave entitlement for parents .

The LLAB proposes:

  • a motion for general parental leave will be introduced, and an employee who is a parent will be entitled to at least ten consecutive days’ leave. The break will start on the date of the child’s birth; the date that an adoption order is granted; or the date that a child is placed in the care of an adoptive parent by a court.  The minimum requirement for an employee to have been at the company for at least four months before being allowed to take parental leave is not set.
  • an adoptive parent of a child who is younger than two years old will be granted parental leave.  The adoptive parent will be entitled to adoption leave of at least ten consecutive weeks or parental leave of 10 consecutive days. This means that one parent can apply for parental leave of 10 consecutive days and the other for ten consecutive weeks of adoption leave.
  • leave for parents who have a child via surrogacy will also be granted.  So-called “commissioning parents” can be any gender and in the case of there being two parents, one will be allowed ten weeks’ consecutive leave in the form of commissioning parental leave, and the other will then be entitled to parental leave of 10 consecutive days.
  • updated to the Unemployment Insurance Act, 2001 have also been recommended.  This will allow parents to claim parental benefits when leave is taken.

Since the National Assembly has adopted the Bill, it will now decide if it will be passed and sent to the President to sign into law.

LAW FOR ALL has passionately advocated for our laws to be changed to provide for paternity leave in South Africa and officially written submissions and opinion on the proposed provisions of the LLAB  to Parliament in October 2016.

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