Pretoria, South Africa – On Friday, 1 November, the Centre for Child Law (“CCL”) will make submissions to the Constitutional Court on the impact of equal parental leave on the rights of children. Currently, only birthing mothers are able to take parental (maternity) leave following the birth of a child. The High Court in Johannesburg recently declared this provision of the Basic Conditions of Employment Act (BCEA) unconstitutional, ruling that fathers and other non-birthing parents (like adoptive parents and commissioning parents in surrogacies) should have access to parental leave as well.
Where legislation is found to be unconstitutional by a High Court (sections 25, 25A, 258 and 25C of BCEA in this case), it must be confirmed by the Constitutional Court. CCL was granted leave to intervene in the confirmation proceedings alongside four other amici in Van Wyk and Others v Minister of Employment and Labour and Others in the Constitutional Court.
The applicants (the Van Wyk parents) rely on the right to equality and dignity (sections 9 and 10 of the Constitution), which led to the High Court finding of unfair discrimination between one set of parents and another on the basis of whether their children were born of the mother, conceived by surrogacy, or were adopted.
Submissions made by CCL as amicus
CCL seeks to centre the interests of children in this case, urging the court to consider domestic, international, and foreign law in its determination of the law. The Constitution requires courts to consider the best interests of children as paramount in every matter concerning the child. Children have the right to know and be cared for by both their parents.
The amici will argue, with respect to the current parental leave laws, that:
- The right to family is firmly intertwined with the best interests of the child;
- Shared parental responsibilities are in the best interests of the child;
- The obligations imposed by the best interests of the child principle also extend to the private and informal sectors; and
- Caregivers and strong family bonds are essential for children’s right to healthy development.
The CCL believes that the Constitutional Court has an opportunity to uphold the principles of equality, non-discrimination, and the best interests of the child by confirming and striking down the discriminatory provisions of the current parental leave laws as found by the High Court. This would be a significant step forward in promoting gender equality and family-friendly workplaces in South Africa.
The matter will be heard virtually at the Constitutional Court Johannesburg on Friday, 1 November 2024, 09h00 to 12h00 SAT.
Watch the proceedings live by visiting the Constitutional Court YouTube Channel.
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For more information and media queries, please contact:
| Karabo Ozah
Director, Centre for Child Law
|
Liesl Muller
Attorney, Centre for Child Law 012 420 4502
|
