Constitutional Court of South Africa Confirms Equal Parental Leave Entitlements for All Parents

Waboga David
Oct 4
2 min read

Summary

In a landmark unanimous decision delivered on October 3, 2025, the Constitutional Court of South Africa confirmed the High Court's declaration of invalidity of key provisions in the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Act 63 of 2001 (UIF Act).

The Court ruled that these provisions unfairly discriminate between different categories of parents, such as biological mothers, fathers, adoptive parents, and commissioning parents in surrogacy arrangements, by providing unequal access to parental leave durations and unemployment insurance benefits.

To address this, the Court has suspended the invalidity for 36 months to allow Parliament to enact remedial legislation. In the interim, it has ordered an immediate reading-in to the BCEA, entitling both parents to share a total of four months and 10 days of paid parental leave. This reform promotes gender equality, parental dignity, and flexible childcare arrangements, with significant implications for employers, employees, and the state. No interim changes apply to UIF benefits pending further review.

Background

The consolidated applications stemmed from challenges by Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality against the Minister of Employment and Labour. The van Wyks, biological parents, sought equal parental leave after their son's birth, but Mr. van Wyk was limited to 10 days of paternity leave under the BCEA, forcing him to take unpaid time off.

The High Court previously declared unconstitutional sections 25, 25A, 25B, and 25C of the BCEA (governing maternity, parental, adoption, and surrogacy leave) and corresponding sections 24, 26A, 27, and 29A of the UIF Act. These provisions differentiated leave based on parental category (e.g., 16 weeks for biological mothers vs. 10 days for fathers) and imposed an age-two limit for adoptive parents, which the applicants argued infringed on constitutional rights to equality (section 9), dignity (section 10), and children's best interests (section 28). The Constitutional Court was tasked with confirming this declaration and providing appropriate remedies.

Key Findings

The Court, in a judgment penned by Justice Steven Majiedt, made several points determinations,

The provisions marginalize fathers and non-birthing parents by defaulting childcare responsibilities to biological mothers, infringing on their dignity and parental rights. This creates irrational disparities, such as 16 weeks for birth mothers versus 10 days for fathers, with no legitimate governmental justification under section 36 of the Constitution.

Adoptive parents receive only 10 weeks of leave, and this is limited to children under two years old, discriminating between adopted children based on age and undervaluing the parental role of commissioning parents in surrogacy. All parenting categories must receive equal leave to achieve substantive equality.

The framework fails to recognize diverse family structures, depriving parents of choice in nurturing responsibilities and perpetuating gender stereotypes. The Court emphasized that equality requires uniform entitlements across biological, adoptive, and surrogate contexts.

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