Parliament has been tasked with reviewing the law to cushion the impact of a potentially “enormous” financial burden on the Unemployment Insurance Fund (UIF) triggered by a landmark Constitutional Court order that allows parents to share statutory maternity leave equally.
Currently only biological mothers are entitled to four months of paid maternity leave. But on Friday the apex court confirmed a Johannesburg high court ruling of October 2023 which declared labour laws that entitle employed birth mothers to four months of maternity leave and fathers or partners to 10 days to take care of newborns invalid and inconsistent with the constitution.
The court declared invalid the Basic Conditions of Employment Act and sections of the UIF Act that limit parental leave and related benefits to adoptive parents and commissioning parents in surrogate motherhood agreements.
The Constitutional Court judgment, penned by justice Zukisa Tshiqi, provided an interim reading-in of changes to these laws that will be operative for the 36 months afforded to parliament to remedy the constitutional defects.
‘Enormous financial burden’
However, Tshiqi did not issue an interim order correcting the corresponding UIF provisions, citing a possible “enormous financial burden” on the UIF.
“This court does not have sufficient information at its disposal regarding how the benefits in the corresponding provisions of the UIF are calculated.
“In the present case, interim amendments to the UIF Act corresponding to those we make in respect of the Basic Conditions of Employment Act could have substantial financial implications,” Tshiqi said.
In terms of the current law, only biological mothers in employment receive lengthy UIF benefits, up to a maximum of four months.
“There must be many instances of couples where the mother is unemployed but the father is employed,” the judge said. “If the employed father were now to be granted 17.32 weeks’ UIF benefit, an enormous additional burden might be imposed on the UIF. It is thus preferable for the lawmaker to decide the extent of UIF benefits to be conferred on employed parents in a non-discriminatory manner.”
According to the UIF’s 2024 report, the fund paid R18bn in unemployment insurance claims, which includes maternity leave, for that 12-month period. During the Covid-19 outbreak the fund faced major administrative problems and complaints over slow payouts. The change in labour laws will likely result in an even greater workload for the fund, with a rise in payout applications.
Michael Bagraim, a labour lawyer and DA member of parliament’s portfolio committee on employment & labour, said the fund should not have any problems with money because it’s “generously funded”.
Main points:
- Constitutional Court ruled current parental leave laws discriminatory, requiring equal leave for all parents.
- Interim law changes apply for 36 months while parliament updates legislation.
- UIF benefit changes delayed due to potential financial strain on the fund.
- Parliament must create sustainable, nondiscriminatory parental leave and UIF policies.
- Unions and labour experts welcome the ruling; Labour department agrees to comply.
“The court’s ruling is fantastic. There will be no problem with the UIF being able to make the payments. The UIF is very generously funded from every single worker in SA,” he said.
“The Public Investment Corporation has many billions invested on behalf of the department of employment & labour. They have earmarked about R15bn of their internal investment towards job creation, which would be an entirely fruitless task. It is far better to spend the money on the workers of SA. The workers actually earn that investment, not the government.”
Bagraim said parliament would, however, have to do a lot of work to decide the detail of how the labour law should be changed to comply with the court order in a sustainable manner.
SA’s biggest union federations have also welcomed the confirmatory judgment. SA Federation of Trade Unions (Saftu) general secretary Zwelinzima Vavi said the judgment was a gigantic step towards equality.
“The ruling compels parliament to amend the law so that mothers, fathers and adoptive parents can share and enjoy more equal parental leave.
“This is a decisive move to uproot patriarchy, rebalance care work and force a societal rethink: men must step forward and take an equal role in raising their children,” he said.
Tony Healy of Icon Labour Consultants said the apex court ruling was expected because “it was always puzzling” why parental leave did not equally cater for fathers.
Cosatu’s Matthew Parks described the judgment as progressive. “This bold ruling by the Constitutional Court endorses Cosatu’s long-standing call for greater equality and responsibility for parents as well as more flexible choices for them based upon the individual family’s needs and circumstances,” he said.
There should be urgent engagements at the National Economic Development and Labour Council (Nedlac) with the department of employment & labour to effect the necessary legislative amendments, he said.
Employment & labour minister Nomakhosaza Meth did not oppose the application in court and indicated that the department would abide by the court’s ruling.
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