In a historic ruling, the top Court of South Africa has struck down discriminatory provisions in the country’s parental leave laws, granting both parents the equal right to share four months and 10 days of paid parental leave, a transformative step toward gender equality and modern family recognition.
The landmark judgment, delivered on October 3, 2025, confirmed the High Court’s declaration of invalidity of key sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act).
The Court found that the laws unfairly discriminated between biological mothers, fathers, adoptive parents, and commissioning parents in surrogacy arrangements, by offering unequal leave durations and benefits.
In unanimous decision led by Justice Steven Majiedt held that the challenged provisions violated the rights to equality, dignity, and family life as enshrined in South Africa’s Constitution.
“The BCEA and UIF Act perpetuated outdated stereotypes that caregiving is the sole responsibility of mothers,” Justice Majiedt said.
“True equality means recognizing that all parents, regardless of gender or biological connection, are equally capable of nurturing their children.”
Previously, the BCEA granted 16 weeks of maternity leave to biological mothers but only 10 days of paternity leave to fathers.
Adoptive parents were entitled to 10 weeks, and only if the adopted child was under two years old. Commissioning parents through surrogacy were limited to even less.
The Court ruled that this structure unfairly privileged one category of parent over another, failing to reflect South Africa’s evolving family dynamics.
To remedy the inequality, the Court suspended the declaration of invalidity for 36 months to give Parliament time to amend the laws.
However, it also ordered an immediate “reading-in” to the BCEA to ensure fairness in the interim.
Under the new framework, both parents are now entitled to share a total of four months and 10 days of paid parental leave, allowing families to determine how to divide the time based on their own needs.
“Equality must also mean choice,” the Court emphasized.
“Parents must have the freedom to decide how best to share caregiving responsibilities.”
The Court, however, left the issue of Unemployment Insurance Fund (UIF) parental benefits to Parliament for further legislative reform, citing the need for administrative adjustments.
The ruling arose from consolidated applications 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, both biological parents, argued that the BCEA’s limited paternity leave provision forced Mr. van Wyk to take unpaid leave to help care for their newborn son.
They contended that this distinction violated the rights to equality (section 9), dignity (section 10), and the best interests of the child (section 28) of the Constitution.
In 2024, the High Court in Johannesburg agreed and struck down the discriminatory sections.
The Constitutional Court’s confirmation now cements that ruling as law.
