South Africa's Constitutional Court Mandates Equal Parental Leave for All Parents

Landmark Ruling on Parental Leave

In a historic decision delivered on Friday, October 3, 2025, South Africa's Constitutional Court unanimously ruled that all parents of newborns are entitled to equal parental leave. This groundbreaking judgment mandates that parents can collectively share four months and ten days of leave, striking down previous discriminatory provisions in the country's labor laws. The ruling, stemming from the case of Van Wyk and Others v Minister of Employment and Labour, aims to foster gender equality and promote shared caregiving responsibilities from birth.

Background to the Legal Challenge

The Constitutional Court's decision confirms an earlier ruling by the Gauteng High Court in October 2023, which found sections of the Basic Conditions of Employment Act (BCEA) of 1997 and the Unemployment Insurance Fund (UIF) Act of 2001 to be unconstitutional. Previously, the BCEA granted biological mothers four consecutive months of maternity leave, while fathers were entitled to only 10 days of paternity leave. Adoptive parents and commissioning parents in surrogacy arrangements also faced limitations, with one parent receiving 10 weeks and the other 10 days, often with an age cap of two years for adopted children. These provisions were deemed discriminatory based on gender, family structure, and parental status, infringing upon constitutional rights to equality and dignity.

The legal challenge was initiated by Werner van Wyk and Ika van Wyk, supported by organizations such as Sonke Gender Justice, the Commission for Gender Equality (CGE), and the Centre for Child Law. They argued that the existing framework reinforced outdated gender stereotypes, placing an unfair burden on mothers as primary caregivers and limiting the involvement of other parents.

New Parental Leave Entitlements

Under the new interim arrangements, which are effective immediately, all parents—whether biological, adoptive, or commissioning—are collectively entitled to four months and ten days of parental leave. Key aspects of the new entitlements include:

• Shared Leave: Parents can decide how to divide the total leave period. If both parents are employed and cannot agree on the division, the leave will be split as equally as possible.
• Single Employed Parent: If only one parent is employed, that parent is entitled to take the full period of parental leave.
• Maternal Recovery: Birth mothers retain their entitlement to six weeks of compulsory medical leave post-childbirth, which is included within the overall shared parental leave allocation.
• Adoptive Parents: The previous age cap for adopted children (under two years) was also declared unconstitutional, ensuring broader eligibility for adoptive parents.

Implications and Future Legislative Action

The Constitutional Court's ruling has been widely hailed as a significant victory for gender equality and family well-being in South Africa. It promotes a more balanced model of parenting, recognizing the right and responsibility of both parents to participate in early childcare. While the new provisions are immediately enforceable, the Court has suspended the declaration of invalidity for 36 months (three years) to allow Parliament to enact comprehensive remedial legislation that aligns fully with the constitutional principles of equality and dignity. Employers are now required to update their parental leave policies to comply with these revised standards.