- Constitutional Court rules maternity, adoption and parental leave laws unconstitutional.
- All parents may now share four months and 10 days’ leave regardless of gender or adoption.
- Parliament has 36 months to amend laws, with interim relief already in place.
In a historic judgment handed down on Friday, 3 October 2025, the Constitutional Court confirmed that South Africa’s parental leave laws unfairly discriminated against fathers, adoptive parents, and parents in surrogacy arrangements. This is a major victory for parental leave equality South Africa.
The case, brought by Werner and Ika van Wyk with the support of Sonke Gender Justice and the Commission for Gender Equality, challenged the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act), which gave birth mothers four months of leave but only allowed fathers ten days and adoptive parents ten weeks if the child was under two years old.
Justice Leona Tshiqi, writing for a unanimous court, declared the provisions unconstitutional for violating equality and human dignity. The judgment recognises that caregiving is not the sole preserve of mothers and that families must be free to decide how to nurture their children without the state imposing gender-based roles.
“To accord a paltry 10 days’ leave to a father speaks to a mindset that regards the father’s involvement in early-parenting as marginal. In my view this is per se offensive to the norms of the Constitution in that it impairs a father’s dignity,” the judgment quoted from earlier findings.
How the case began
The dispute was sparked when Mr Van Wyk requested four months of paternity leave to care for his newborn, as his wife ran two businesses and could not step away for that period. His employer refused, citing the law that limited him to ten days.
Mr Van Wyk was forced to take six months of unpaid leave, plunging the family finances into strain and limiting his career growth. Together with Sonke Gender Justice and the Commission, the couple challenged the laws as unconstitutional.
The High Court had already found the provisions discriminatory but stopped short of removing the two-year age limit on adoption leave. The Constitutional Court went further, striking down that limitation too. It ruled that adopted children over the age of two equally require time with parents to bond, adjust and integrate into their new families.
The new framework
Pending Parliament’s intervention, the Court has introduced interim measures. Single parents are entitled to the full four months’ parental leave. Where both parents are employed, they are entitled in total to four months and 10 days, which they may share as they choose, concurrently, consecutively, or split between them. If they cannot agree, the law will apportion the time equally. Importantly, a birth mother retains preference for time off before and after delivery for health recovery, but fathers or other parents may share the balance.
Adoptive and commissioning parents now enjoy equal recognition, with no age limit on adopted children. This means a couple adopting a child aged three or even 10 can also access shared parental leave.
Parliament has been given 36 months to amend the BCEA and UIF Act. The Minister of Employment and Labour must report back to the Court six months before the deadline on progress.
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