Limpopo couple challenges maternity leave laws for benefit of new fathers

JOHANNESBURG – A Limpopo couple is taking on the country’s labour laws in the hopes of getting more paternity leave for new fathers.

Werner and Ika Van Wyk – together with NGO Sonke Gender Justice have launched a constitutional challenge against Section 25 of the Basic Conditions of Employment Act, which deals with maternity leave, and Section 26, which deals with family responsibility leave.

While mothers are given four months off in terms of the former, fathers only get 10 days off under the latter.

And the Van Wyks argue this unfairly discriminates against fathers.

The couple welcomed their son into the world last April.

Ika runs two small businesses, which wouldn’t be able to trade if she took four months off.

So they decided that Werner – who holds a high-ranking position at one of the country’s leading financial services providers would be the primary caregiver and apply for the equivalent of maternity leave instead.

His application was rejected though, on the basis that as a father, he was only allowed 10 days of “parental leave” and he instead wound up having to take a six-month sabbatical, comprising two months of normal leave and four months of unpaid leave.

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The couple – together with Sonke Gender Justice – have now turned to the courts where they’re seeking to, among other things have the current definition of maternity leave in the act expanded so as to include “parental” and “caregiving leave”.

“There has been a significant change in the family and work environment as can be seen from employers’ leave policies relating to adoption leave. Therefore it is reasonably justifiable that the current legislation that governs maternity leave (and its silence on the male equivalent) be reviewed and amended such that there is an increase in the labour participation of women; co-parents share responsibilities for a newborn child equally; mothers should not be burdened with the largest volume of unpaid work in households which primarily centre around child care,” they argued in papers filed in the Johannesburg High Court last month.

“Further to the above, the male equivalent of maternity leave will allow for fathers to set the foundation for a more equal distribution of responsibilities when it comes to the care of a newborn child”.

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They also argued it would be in the best interests of the child.

“The right to maternity leave is not an entitlement linked solely to the health and welfare of the mother but must of necessity be interpreted to take into account the best interests of the child. Every child has a right to parental care, regardless of the gender, sex or sexual orientation of the caregiver”.

They further described South Africa’s legislation as “delayed in its progression and development of paternity leave or structure of shared parental leave when compared to the rapid development of paternity leave and the structure of shared parental leave in foreign countries” – pointing to the situation in countries such as Spain, Denmark, the United Kingdom, Germany, Australia and Sweden, where there are provisions for mothers and fathers to take up to two years off.

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Barter McKellar Attorneys and advocate Maud Letzler are representing the Van Wyks.

Letzler says these amendments are long overdue.

She spoke to EyeWitness News about the financial burden inflicted on some families where mothers are self-employed or get paid by the hour and don’t enjoy maternity leave benefits as a result.

She also highlighted the potential negative impact it could have on a couple’s relationship when one parent isn’t able to provide physical support at home for the other because they have to go to work.

Moreover, she spoke to mothers often becoming the “default parent” and their children turning to them for everything – saying amendments to the legislation which would allow fathers to be at home during the early months, could go a way to changing this dynamic.

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