The South African legislation makes provision for maternity leave, but not for paternity leave. In accordance with Section 25 of the Basic Conditions of Employment Act (BCEA) an employee is entitled to at least 4 consecutive months unpaid maternity leave. The employee should inform the employer of the expected date of birth, the date on which the employee will go on maternity leave and the date on which the employee will return to work. Maternity leave can commence any time from 4 weeks before the expected date of birth. The employee may not return to work within 6 weeks after the birth of the child, nless the employee is declared fit for work by a medical practitioner or midwife.
The legislation does not specifically refer to ‘female’ employees, but it has been established that this section should be interpreted in this manner. Fathers, on the other hand, are entitled to 3 days paid family responsibility leave per year. These days should be utilised around the birth of the child as indicated under Section 27 of the BCEA. If the father wishes to spend more time at home during this time he must apply for annual leave. This position has been the status quo for many years. At face value these sections cater specifically for heterosexual couples. There exists uncertainty as to how specifically Section 25 should be applied in cases where a child is born or adopted by a lesbian or gay couple.
The Labour Court recently had to determine whether the refusal to grant maternity to a gay employee amounted to unfair discrimination. The employee entered into a civil union with his spouse in 2010 and entered into an agreement with a surrogate mother who would carry the baby for them. As per the said agreement the surrogate mother had to hand over the child at birth and would have no further contact with the child. The employee applied for 4 months maternity leave in anticipation of the birth as he and his partner had decided that he would be the primary caregiver, but his employers denied the request as the BCEA did not cater for such circumstances. The court held that the best interest of the child was paramount in this situation and afforded the employee maternity leave even though he was a male.
The question thus arises whether men in heterosexual relationships should be afforded maternity leave, or rather paternity leave, should they be the primary caregiver of the newborn child. In retrospect, this section seems archaic as it only gives direction in accordance with the colonial concept of a relationship being between heterosexual partners.
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ABOUT THE AUTHOR
PJ Delport is currently a SEESA Labour Legal Advisor since January 2015. PJ obtained his LLB degree from the Nelson Mandela Metropolitan University (NMMU) in 2012 as well as his BA degree in Social Dynamics at the University of Stellenbosch in 2008. He has also lectured Commercial Law and Labour Law modules as well as short learning programs at NMMU. PJ will finalise his Master’s Degree by the end of the year.