Parental Leave in South Africa: The Grandmother that Labour Law cannot See
Editor’s Note: This post draws on Grey Stopforth and Marthinus van Staden, “It Takes a Village, Not a Pair: Assessing the Van Wyk v Minister of Employment and Labour ‘Pair of Parents’ Model with Social Parenting Constructs in South Africa” (2026) Industrial Law Journal, doi 10.1093/indlaw/dwag024, published open access.
Picture a grandmother who is raising her daughter’s newborn while her daughter works in Johannesburg. South African law has a good deal to say about her.
The Children’s Act calls her a caregiver, meaning any person other than a parent or guardian who factually cares for a child and section 32 places her under a legal duty to safeguard the child’s health, wellbeing and development, together with the power to exercise whatever parental rights that duty reasonably requires.
When a court weighs the best interests of that child, section 7 directs it to consider her relationship with the child and her capacity to meet the child’s needs. The social assistance system pays the child support grant to the child’s primary caregiver rather than to a parent as such, so it can see her too. Then she takes a job and the Basic Conditions of Employment Act looks straight through her.
That blind spot survived the Constitutional Court’s decision in Van Wyk v Minister of Employment and Labour. The judgment did something valuable. It severed the statutory link between caregiving and birth motherhood, treated care as a function rather than a biological destiny and let parents decide between themselves who will do it. But the interim reading-in speaks throughout of a single parent or a pair of parents, and it ties entitlement to a person who has assumed parental rights and responsibilities under the Children’s Act. One rigid template was replaced by another. The first was built on gender. The second is built on number.
The draft legislation repeats the design. The Labour Law Amendment Bill, published in Government Gazette 54220 on 26 February 2026 and still awaiting certification before its introduction in Parliament, consolidates the old patchwork into a single entitlement, lifts the adoption age cap from two years to six and aligns Unemployment Insurance Fund benefits with the new structure. All of this is an improvement. None of it loosens the pair. Sharing still depends on a written agreement between two employed parents lodged with their respective employers and nothing in the Bill allows any part of that entitlement to follow the child to the person actually doing the caring.
The continental instruments already use a wider word
Our recent case note in the Industrial Law Journal made this argument by way of Sweden, which now permits parents to transfer leave days to grandparents and by way of the International Labour Organisation’s work on the care economy. Both remain useful, but the closer authority is African and it has been sitting in plain sight. Article 20(1) of the African Charter on the Rights and Welfare of the Child does not confine primary responsibility for a child’s upbringing to parents. It speaks of parents or other persons responsible for the child and article 31 assumes a household in which elders occupy a position of authority and reciprocal obligation. The Maputo Protocol goes further in article 13(l), requiring states to recognise that the upbringing of children is a social function for which the state and the private sector carry secondary responsibility. That is a labour law provision hiding in a women’s rights treaty and it says something the BCEA does not: employers are not bystanders to the work of raising children.
“The question for Parliament is not whether our law is capable of recognising the ‘Grandmother’. Three statutes and three treaties already do.”
The Protocol on the Rights of Older Persons in Africa, in force since November 2024, is more direct still. It obliges states to support indigent older persons who care for orphans and vulnerable children and to ensure that benefits designed for those children are remitted to the older persons caring for them. The awkwardness for South Africa is easy to state. Its Portfolio Committee on Social Development recommended ratification of the Older Persons Protocol in May 2024, however, South Africa was not among the fifteen states whose ratifications brought it into force six months later. In the same period the Department of Employment and Labour produced a Bill that gives the caregiver in that instrument nothing at all when she is employed. A state can be forgiven for moving slowly on ratification. It is harder to explain drafting in the opposite direction.
The definitional objection is weaker than it looks
The usual answer is administrative. Parenthood is a bright line, caregiving is not and a transferable entitlement would invite abuse. The objection assumes that South African law lacks a workable concept of a caregiver, which is precisely what the Children’s Act supplies and what the social assistance system has been administering, at scale and under audit, for two decades. The Constitutional Court itself was alert to abuse, which is why it required that a parent claiming leave have assumed responsibilities under the Children’s Act. That qualification can do the same work one step further out.
A modest design follows. Allow a defined portion of the four months and ten days, rather than the whole of it, to be taken by or transferred to a person who has assumed the care of the child within the meaning of the Children’s Act, on written notice to the employer, once per child, with the Unemployment Insurance Fund benefit following the leave. This is not a floodgate. It is an election, capped and evidenced and it costs the fund nothing beyond what it already contemplates paying for the same child.
The point travels. Several African states are currently drafting family leave legislation, and most are working from a European template routed through international instruments written in the language of parents. The continent’s own instruments use a wider word. South Africa is unusually well placed to show what that word looks like in a statute, and it has a drafting window open to do it. The question for Parliament is not whether our law is capable of recognising the ‘Grandmother’. Three statutes and three treaties already do. The question is why the one law that governs her working hours still cannot.
