Men’s Parental Leave South Africa

MEN’S PATERNITY LEAVE – UPDATED 10/2023

From 1 January 2020, fathers of newborns can look forward to spending a bit more time with their babies.

They — along with mothers of children born through surrogacy — will be given 10 days of paid paternity leave.Employers who defy the law will be breaking both the Unemployment Insurance and Basic Conditions of Employment Acts.In light of the new Paternity Bill which effectively entitles new fathers to 10 days consecutive leave after their spouse has given birth, while adopting parents (who were previously not specifically catered for), will be eligible for 10 weeks leave.

Under the proposed bill, the employee may commence parental leave on:

The day that the employee’s child is born; or
The date that the adoption order is granted or placed in the care of a prospective adoptive parent.

Same Sex Couples “Maternity Leave”

in 2015 however;

A South African judge (Judge David Gush ) ruled that Gay men who have a baby born by a surrogate mother are entitled to paid maternity leave,

The labour court in Durban said it was unjust for the state information technology agency, an information technology service in South Africa, not to pay a gay man the customary four months paid maternity leave usually given to new mothers.

“Given these circumstances there is no reason why an employee in the position of the applicant should not be entitled to ‘maternity leave’ and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled,” Gush said.

“I think it’s a vindication that these antiquated conceptions of marriage, of who is ultimately responsible for the care of the child, are rendered void,” said Irvin Lawrence, the Durban-based lawyer representing an anonymous father.

“Ultimately you now have a judge saying we’re enlightened, we’re beyond that stage of prehistoric thinking.”

The father went to court after his employer refused to give him the full four months of paid leave, arguing that maternity leave only applied to women who recently gave birth.

The man, who asked to remain anonymous to protect the identity of his child, was married in a civil union in 2010. He entered a surrogacy agreement a year later and applied for leave in anticipation of the birth of the child in 2012.

The employer granted the man just two months of paid leave along with two months’ unpaid leave.

By winning the court case, the new father was compensated for the two months’ unpaid leave, Mr Lawrence said.

“I feel fantastic,” said Mr Lawrence. “It’s not a significant amount by way of compensation but by way of principle, it is significant.”

The lawyer added that this ruling, where the judge placed more emphasis on the welfare of the newborn child when considering whether or not to grant maternity leave, will likely result in South Africa’s employment act being amended to be more accommodating to all kinds of parents.

Paternity Leave – Updated 2023

25. Maternity Parental leave

Note: The High Court in Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213 (25 October 2023) found sections 25,25A, 25B and 25C to be discriminatory and unconstitutional, and the judgment provided the replacement wording indicated in red below. Note that an order of constitutional invalidity has no force until it is confirmed by the Constitutional Court, which to date has not happened, so technically the deleted wording still applies at this stage.

~~An employee is entitled to at least four consecutive months’ maternity leave.~~

An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months’ consecutive months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:
1. One or other parent shall take the whole of the period, or
2. Each parent shall take turns at taking the leave.
3. Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated’.
~~An employee~~ A pregnant mother may commence ~~maternity~~ parental leave-
1. at any time from four weeks before the expected date of birth, unless otherwise agreed; or
2. on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.
No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to ~~maternity~~ parental leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced ~~maternity~~ parental leave at the time of the miscarriage or stillbirth.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
1. commence ~~maternity~~ parental leave; and
2. return to work after ~~maternity~~ parental leave.
Notification in terms of subsection (5) must be given-
1. at least four weeks before the employee intends to commence ~~maternity~~ parental leave; or
2. if it is not reasonably practicable to do so, as soon as is reasonably practicable.
The payment of ~~maternity~~ parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No 63. of 2001).

25A. Parental leave

~~An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.~~ An employee who is a parent of a child is entitled to the leave stipulated in section 25(1).
An employee may commence parental leave on –
1. the day that the employee’s child is born subject to the provisions of section 25(2) or
2. the date –
  1. that the adoption order is granted; or
  2. that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child,
3. whichever date occurs first.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
1. commence parental leave; and
2. return to work after parental leave.
Notification in terms of subsection (3) must be given –
1. at least one month before the –
  1. employee’s child is expected to be born; or
  2. date referred to in subsection 2(b); or
2. if it is not reasonably practicable to do so, as soon as is reasonably practicable.
The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No.63 of 2001).

25B. Adoption leave

An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to –
1. adoption leave of at least ten weeks consecutively; or
2. the ~~parental~~ leave ~~referred to~~ stipulated in section 25A.
An employee may commence adoption leave on the date –
1. that the adoption order is granted; or
2. that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child,
  whichever date occurs first.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to –
1. commence adoption leave; and
2. return to work after adoption leave.
Notification in terms of subsection (3) must be given –
1. at least one month before the date referred to in subsection (2); or
2. if it is not reasonably practicable to do so, as soon as is reasonably practicable.
The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act no.63 of 2001).
If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the opinion of the two adoptive parents. If an adoption order is made in respect of two adoptive parents, they shall each be entitled to leave as stipulated in section 25(1).
If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.

25C. Commissioning parental leave

~~An employee ,who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to –~~
1. ~~commissioning parental leave of at least ten weeks consecutively; or~~
2. ~~the parental leave referred to in section 25A.~~

An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).
An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to –
1. commence commissioning parental leave; and
2. return to work after commissioning parental leave.
Notification in terms of subsection (3) must be given –
1. at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
2. if it is not reasonably practicable to do so, as soon as is reasonably practicable.
The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No 63 of 2001).
If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.

Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).
In this section, unless the context otherwise indicates –
‘commissioning parent’ has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No.38 of 2005); and
‘surrogate motherhood agreement’ has the meaning assigned to it in section 1 of the Children’s Act, 20015 (Act No.38 of 2005).

Note: The provisions of sections 25 (7), 25A (5) and 258 (5) and 25C (5) and the corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.

26. Protection of employees before and after birth of a child

No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-
1. the employee is required to perform night work, as defined in section 17 (1) or her work poses a danger to her health or safety or that of her child; and
2. it is practicable for the employer to do so.

Sources: Telegraph & Business Tech

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