South Africa's Parental Leave Reform In Progress - All Parents - Biological, Adoptive, And Commissioning Are Now Entitled To Parental Leave

The Constitutional Court has ushered in a shift in the legal landscape of parental leave in South Africa. On 3 October 2025, the Constitutional Court in Van Wyk and Others v Minister of Employment and Labour and Others [2025] ZACC20 confirmed the unconstitutionality of several provisions of the Basic Conditions of Employment Act, 1997 ("BCEA") and the Unemployment Insurance Act, 2001 ("UIF Act") regulating maternity, parental, adoptive and commissioning parental leave as they unfairly discriminate against different categories of parents and children.

Background

Mr and Mrs van Wyk, a married couple with a newborn child, challenged the provisions of the BCEA after Mr van Wyk was denied extended paternity leave to care for their newborn child. Mrs van Wyk, a business owner, could not afford to take four months off work, and the couple agreed that Mr van Wyk would assume primary caregiving responsibilities for the child. Unfortunately, Mr van Wyk's employer was only able to provide him with 10-days parental leave, as per section 25A of the BCEA.

Joined by Sonke Gender Justice and the Commission for Gender Equality, the Van Wyks argued that the BCEA and UIF Act provisions were unconstitutional. The High Court agreed, finding that the legislation:

• unfairly discriminated against other categories of parents (fathers, adoptive parents, commissioning parents) when compared to birth mothers.
• impaired the dignity of parents by enforcing gendered caregiving roles and denied parents the right to choose for themselves who should bear the rigours of parenthood.
• failed to provide adequate leave for adoptive and commissioning parents, particularly failing to provide any leave for parents adopting children older than two years.

The High Court declared provisions of the BCEA and UIF Act unconstitutional and in the interim held that employed parents were entitled to share the four months parental leave.

The High Court's finding was however subject to confirmation by the Constitutional Court.

Findings of the Constitutional Court

The Constitutional Court unanimously confirmed the High Court's declaration of invalidity, agreeing that the impugned provisions of the BCEA and the UIF Act violated sections 9 and 10 of the Constitution.

Justice Tshiqi, who penned the judgment, emphasised that:

"The protection of birth mothers to the exclusion of other parents has the unfortunate consequence of perpetuating the assumption that women are and should be the primary caregivers of children. The father is marginalised and deprived of the opportunity to involve himself as a parent in the upbringing of the baby during the early stages of life. The parents are also deprived of the choice to structure their child-nurturing responsibilities rather than being assigned caregiving and parental responsibilities based on their gender."

The Constitutional Court also found that the BCEA was discriminatory to adoptive and parents in surrogate arrangements as they are given less leave than those parents who have a child biologically. The court found that there was no legitimate reason for the reduced leave entitled and this was viewed as a means to penalise employees for pursuing alternative means to become parents.

The Constitutional Court found that the two-year age cap for adopted children to qualify for parental leave was also arbitrary and discriminatory, noting that older adopted children often require more intensive care and support to adjust to their new families. Notwithstanding this, the Constitutional Court could not determine the appropriate age cap and left it to Parliament for determination.

The Constitutional Court suspended the invalidity of the provisions of the BCEA and UIF Act for 36 months to provide Parliament with an opportunity to remedy the identified constitutional defects.

To prevent a legal vacuum and to safeguard the rights of parents and children, the Constitutional Court provided the following interim relief, which is effective immediately:

• Single parents are entitled to four consecutive months' parental leave.
• Where only one of the parents is employed, such parent is entitled to four consecutive months' parental leave.
• If both parents are employed,
  • both parents are entitled to share the four months and ten days of parental leave. The parental leave is inclusive of the four weeks that the female is entitled to take before the expected date of birth and the six weeks that after birth during which she is prohibited from working. Accordingly, the remainder of the parental leave may be shared between the parents.
  • both parents must agree on how to divide the parental leave and how to take it – whether concurrently, consecutively or partly concurrently or partly consecutively.
  • they cannot agree on how to divide the remainder of their parental leave, the leave will be apportioned between the parents in such a way that each parent's total parental leave is as close as possible to half of the four months and 10 days from the birth of the child.
• The Constitutional Court's judgment represents a significant advancement in the recognition of parental rights, and the choice parents have to structure their child-nurturing responsibilities in a manner that benefits them and their child. The days of differentiating between maternity leave and parental leave are over. Employers need to review and amend their leave policies to align them with the changes confirmed by the Constitutional Court. Parental leave remains a form of unpaid leave hence the corresponding sections in the UIF Act have also been declared invalid. However, where employers provide paid benefits to employees for taking maternity and paternity leave, those benefits will also have to be revised to remove any differentiation between categories of parents.

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