In a landmark judgment that resonates across the continent, South Africa’s highest court has unanimously ruled that all parents of new-borns are entitled to equal parental leave, a decision heralded as a major victory for gender equality and family rights .
The Constitutional Court declared parts of the existing legislation unconstitutional, calling it discriminatory against fathers . Under the previous law, mothers were granted four months of maternity leave, while fathers received only 10 days . The court ruled that both parents may now share a combined four months and ten days of leave however they choose .
The case was brought by a married couple, Werner and Ika van Wyk, after the husband’s employer denied his request for four months of leave to be the primary caregiver for their newborn . The court found that the old law “unfairly burdened mothers and excluded fathers,” perpetuating the assumption that women are the sole primary caregivers .
“This is a ground-breaking step for equality, family wellbeing, and the future of fatherhood in South Africa,” said Sthembiso Phakathi, founder of Single Dads Network .
A shift
This ruling aligns with a growing trend of African judiciaries actively upholding constitutional rights to promote equality and environmental justice. Just weeks apart, both South Africa and Kenya’s highest courts delivered powerful, precedent-setting judgments that underscore this shift .
In early December 2024, Kenya’s Supreme Court ordered a metal refinery and government agencies to pay KSh 1.3 billion in damages to residents of Owino Uhuru village in Mombasa for years of toxic lead pollution, mandating an additional KSh 700 million for environmental clean-up . The court affirmed the ‘polluter pays’ principle, holding both corporate and state actors accountable for environmental harm and its devastating health consequences .
These parallel rulings from the continent’s leading judicial bodies highlight a shared commitment to transforming constitutional rights into tangible realities for citizens.
Local implications for Kenya
For Kenya, South Africa’s parental leave judgment offers a powerful blueprint. It challenges policymakers and employers across East Africa to re-examine their own parental leave provisions through a lens of modern family dynamics and gender equality.
While Kenya’s employment law provides for paternal leave, the duration is typically three days, a provision that many argue reinforces outdated gender roles in childcare. The South African ruling demonstrates a progressive path forward, showing how robust legal frameworks can be used to mandate a more equitable sharing of childcare responsibilities from the earliest stages .
As South Africa embarks on this transformative change, all eyes will be on its implementation. Its success could provide a compelling model for Kenyan legislators and gender equality advocates seeking to build a more inclusive and supportive environment for all parents.
