BRENTWOOD

2023-10-27

Maternity Leave is unfair discrimination.

Mothers and fathers are unfairly discriminated against in sections of the Basic Conditions of Employment Act and the UIF Act. The High Court has ruled sections of those acts invalid because they unfairly discriminate between mothers and fathers.

Sections of the Basic Conditions of Employment Act and the Unemployment insurance Act are declared invalid by the High Court of South Africa because they with the rights to equality and dignity in the constitution.

Nothing changes for at least the next two years, but the order issued by the High Court this week will be in place in October 2025. Legislation is given a chance to comply with the order first.

It effects maternity leave, parental leave, adoptive leave, and commissioning parent (surrogacy) leave. The new provisions are all gender neutral. Child-nurturing or care should be equally shared between parents if they both want to share in the experience.

Pending remedial legislation being enacted, the provisions in the High Court Order are:
- What is now referred to as maternity leave continues to be 4 months unpaid maternity leave, with UIF benefits.
- However the parents can decide on the division of the leave between them, with one taking a portion of the 4 months, and the other another portion.
- The current 10 days Paternal leave will increase to 4 months unpaid leave.
- The current 10 weeks unpaid adoptive leave will increase to 4 months unpaid leave.
- The current 10 weeks unpaid leave for surrogacy will increase to 4 months unpaid leave.
- Employees in these sections are referred to as pregnant mothers.
- There are still no provisions for the surrogates themselves.

The order does not create 4 months unpaid leave for each of the parents. 

All parents, whether genetic parents, adoptive parents, or surrogate parents, are entitled to 4 months unpaid leave on the birth of the child.

So what now: Carry on as normal.  If legislation does not change to suit the order between now and October 2025, the order comes into effect.