Mothers, Fathers, and The Law: How the Constitutional Court has broken the mould

The legal landscape governing South African workplaces

The legal landscape governing South African workplaces has just been fundamentally reshaped. In a landmark decision, the Constitutional Court has unequivocally declared that parental rights cannot be constrained by outdated, gender-based legislation.

The journey began in the High Court, which in October 2023 boldly exposed the constitutional flaws in the Basic Conditions of Employment Act, 1997 (“BCEA”) and the Unemployment Insurance Fund (“UIF”) Act, 2001. These pieces of legislation, which historically privileged "mothers" with maternity leave while offering minimal provision for other parents, were deemed invalid for failing to uphold the principle of equality enshrined in the Constitution, 1996.
On 3 October 2025, the Constitutional Court delivered its definitive verdict in Van Wyk and Others v Minister of Employment and Labour (2025) ZACC 20.

This judgment is not merely an amendment; it is a revolution in parental equity. As the apex court, its ruling sets a new, compulsory standard that all parents, regardless of their gender, family structure, or parental status, must be treated equally when it comes to accessing paid leave to care for a new child. This decision marks a profound shift towards genuine equality in the workplace, challenging employers and the state to redefine what it means to support the modern South African family.

While the Constitutional Court has granted Parliament a generous 36 (thirty-six) month grace period to cure the legislative defects by enacting permanent, remedial legislation, the below critical changes are enforced with immediate effect.

KEY SHIFTS IN THE BCEA

The End of Parental Categories and Start of a New Unified Parental Leave Standard:

Prior to the apex court’s ruling, the BCEA and UIF Act created a hierarchy of parents in that a mother who gives birth was treated differently from biological fathers, same-sex partners, adoptive parents, and commissioning parents in a surrogacy arrangement. This differentiation dictated both the duration of leave and the entitlements to UIF benefits.
The apex court declared this differential treatment inconsistent with the right to equality (Section 9) and dignity (Section 10) of the Constitution. As a result of this ruling, all parents, whether biological, adoptive, or commissioning, are now collectively entitled to 4 (four) months and 10 (ten) days of parental leave.

Crucially, this leave is a shared entitlement in that:

(i) it may be shared amongst the parents of the child; and
(ii) the division of the leave is flexible and may be determined by the parents based on what best accommodates their household needs.

In an instance where both parents of the new child are employed, they must determine and agree on how the leave should be divided. Where they cannot reach an agreement, the parental leave should be split as equally as possible. Where only one parent is employed, that parent is entitled to the full period of parental leave.

Surrogacy, Adoption, and the Removal of an Adoption Age Cap:

A further point of contention was the discriminatory cap on adoptive leave. Previously, adoption leave was only available to parents adopting a child younger than 2 (two) years of age.
This distinction was successfully challenged as having no legitimate purpose. While the High Court was hesitant to remove the cap, the Constitutional Court reasoned that the integration and bonding needs of adoptive families often require significant parental leave, regardless of the child's age.

The apex court, while acknowledging that the specific details of an age cap (if any) are for Parliament to decide, decisively ruled that adoptive parents of children of any age are now eligible for parental leave. Therefore, where two adoptive parents are involved, each shall also be entitled to an aggregate of 4 (four) months and 10 (ten) days’ leave, shared as agreed or equally. This ruling ensures that the law supports the crucial process of integration and bonding for all adoptive families, removing an arbitrary and discriminatory restriction.

Adoption leave shall begin on the date of the adoption court order or when the adopted child has been placed within the care of its adoptive parent(s) by court order. Similarly, commissioning parents are also entitled to an aggregate of 4 (four) months and 10 (ten) days’ leave, shared as agreed or equally, which leave shall commence on the child’s birth.

Pregnancy and Post-Birth Leave:

While the law now mandates parental equality, the Constitutional Court explicitly retained crucial protections for the birth mother's physical recovery. A female employee may not work for 6 (six) weeks after giving birth, unless a medical practitioner or midwife certifies her fit to do so. A female employee may still begin leave up to four weeks before the expected birth date, or earlier if medically necessary
Crucially, these protected recovery periods are included within the total 4 (four) months and 10 (ten) days of shared parental leave allocation.

Notification Requirements:

The Constitutional Court retained the existing rules for notifying an employer about the intention to take parental leave, only updating the language to reflect the new, unified parental leave entitlement. As a result, an employee will still be required to notify their employer in writing of their intended parental leave at least 4 (four) weeks prior to the intended date or as soon as reasonably possible.

PARLIAMENT TO DEAL WITH IMPLICATIONS OF UNEMPLOYMENT INSURANCE BENEFIT ENTITLEMENTS

The Constitutional Court’s aforementioned changes did not extend to the UIF Act. The Court explicitly declined to amend the UIF Act provisions directly, citing the complexity of the amendments and the substantial financial implications for the state. Instead, the Court has left the design of a constitutionally compliant, non-discriminatory UIF benefits scheme entirely to Parliament.

To ensure action is taken, the Court issued a strict directive that not later than 6 (six) months before the expiry of the 36 (thirty six) month suspension period, the Minister of Employment and Labour must report to the Registrar on whether remedial UIF legislation has been enacted, and if not, the expected date of implementation.
While parental leave is now equal, the framework for equal financial benefits rests squarely with Parliament, under strict judicial oversight.

WHAT DOES THIS MEAN FOR EMPLOYERS?

It is clear that there are now instant and non-negotiable implications for employers. Companies are now legally required to update all internal policies to ensure genuine equality, extending benefits previously restricted to 'maternity' to all fathers and non-birthing parents. While Parliament finalises the UIF benefit structure, the Van Wyk ruling compels every South African workplace to immediately embrace flexibility and recognise the equal dignity of every parent's role.

Marc Humphries

Director: Legal

Bronwyn Kodisang

Legal Advisor