Abstract
The evolution of fatherhood in South Africa impacts the labour landscape as working fathers increasingly take on caregiving responsibilities. This change has been partially recognised by the new regulatory framework created by the Labour Laws Amendment Act 10 of 2018, amending both the Basic Conditions of Employment Act 75 of 1997 and the Unemployment Insurance Fund Act 63 of 2001. The regulatory framework provides fathers with parental leave of 10 days in contrast to the four months leave provided to mothers. However, this disparity in parental leave raises critical questions about the constitutional commitment to equality as it perpetuates gender stereotypes in family dynamics and children’s rights. In this minor dissertation, I assess the regulatory framework against international law obligations and a comparative approach. Furthermore, I critically evaluate the regulatory framework, in light of the constitutional challenge to the legislation considered in Van Wyk v Minister of Employment and Labour 2024 1 SA 545 (GJ). In this recent judgment, the High Court found that the impugned sections of the BCEA are inconsistent with sections 9 and 10 of the Constitution and ordered parliament to eliminate the inequalities. While the High Court judgment is a step in upholding substantive equality, nevertheless I argue that the methodology used by the court and its remedy do not suffice as they still offend the equality clause. The matter has been heard by the Constitutional Court in pending confirmation proceedings, which I analyse. Lastly, I proceed to recommend solutions to properly equalise parental leave for fathers.