In terms of Section 27 of the Basic Conditions of the Employment Act (BCEA), prior amendment, employees were awarded a minimum of four days of family responsibility leave in certain circumstances, for example when an employee’s child is born. Fathers were not entirely accommodated for in the labour legislation, causing a gender divide. This is because expectant mothers are provided with four months’ unpaid maternity leave by their employer and no provision for paternity leave was specifically provided for by the BCEA.

Paternity leave refers to short term leave available to fathers in the period after the delivery or adoption of a child, giving men the opportunity to dedicate additional time to their families. The leave is gender specific and available only to fathers. Paternity leave policies should include employment protection which will ensure that the father is able to resume employment upon expiry of the leave period.

In terms of the recent amendments to the BCEA, the provision furnishing an employee to family responsibility leave on the birth of an employee’s child has been repealed, leaving the rest of Section 27 intact. The BCEA has been amended to introduce provisions relating to parental leave, adoption leave and commissioning parental leave, effective 1 January 2020.

In South Africa paternity leave has now been recognised, therefore family responsibility leave will no longer apply with regards to the birth of employees’ children. The Labour Amendment Act does not refer to this leave as paternity leave specifically, but rather parental leave. The term parental leave is a gender-neutral provision offering fathers as well as mothers time off to care for their children.

An employee, who is a father is entitled to ten consecutive days of parental leave. They are entitled to take this leave on the first occurring date between the date the child is born, the date an adoption order is granted or the date that a child is placed in the care of a prospective parent by a competent court, pending the finalisation of an adoption order.

An employee must give notice to the employer one month prior to the child’s expected birth date, in writing of the date which the employee intends to commence parental leave and the date which they will return to work. Furthermore, before a person is entitled to any parental leave payments, such a person must at least have worked for 13 weeks.

In terms of the BCEA amendments, types of leaves are unpaid. However, employers may choose to make all, or a portion of such leave paid as is often with maternity leave. Fathers, who qualify for the Unemployment Insurance Fund (UIF) may apply for the benefits in terms of the fund. Paternity leave will be paid by the UIF at a rate of 66% of the total earnings of the employee at the date of application subject to certain rules and conditions including a threshold constraint.

Parental leave is important because over the years the role of the father has been changing, particularly in relation to the care of their children after birth. With the changing dynamics of the family, the approach that mothers are the primary caregivers will soon start to change. The father’s role is no longer solely as a breadwinner but rather one of shared responsibility regarding childcare as well.

During pregnancy and the birth of a child, the father plays an active participatory role right from the start. When a father is available at the beginning of postnatal development, his presence positively impacts on the maturity of the child through the bonding process. In allowing a father to commence with leave after the birth to help nurture the new-born, newly adopted child comes many societal and parental benefits.

In conclusion, recognising the right to paternity leave meant that there was a need to acknowledge the working father’s role in child rearing in South Africa, to advocate for the caregiving duties of fathers and change the gender inequalities coming from limited legal regulation of after birth childcare. The perspective of society on the role of fathers has changed significantly with fathers taking a more active participatory roles in raising their children. Fathers are now more involved in the care of their children than ever before. Additionally, human relationships are also evolving, with fathers playing a more significant role than the traditional stereo-typical heterosexual figure.

Paternity law in South Africa