Groundbreaking Constitutional Court Ruling: Parents Can Now Share Four Months of Parental Leave

In a landmark decision, the Constitutional Court has upheld a 2023 Gauteng High Court ruling that declared South Africa’s parental leave laws unconstitutional for unfairly discriminating between mothers and fathers.

Previously, the Basic Conditions of Employment Act (BCEA) allowed four months of maternity leave for biological mothers, while fathers were granted only 10 days of paternity leave.

This disparity was challenged by Limpopo couple Werner and Ika van Wyk, who sought to split caregiving duties after the birth of their son in 2021.

The Constitutional Court confirmed that the BCEA and the Unemployment Insurance Fund (UIF) Act violated constitutional rights to equality and dignity by:

•              Reinforcing gendered parenting roles,

•              Marginalising fathers,

•              Discriminating against adoptive and surrogate parents.

In a unanimous ruling, the Court emphasized that all parents—regardless of gender or the means by which they become parents—deserve equal opportunity to nurture their children during the early months of life.

What This Means for Parents

Until Parliament updates the legislation (a process it must complete within 36 months), parents are now legally allowed to share the cumulative four months and ten days of parental leave previously reserved for mothers and minimal paternity leave. This shift allows families greater flexibility in deciding how to divide caregiving responsibilities.

However, the UIF Act remains unchanged for now. The Court declined to directly amend its provisions, citing insufficient information about benefit calculations. Parliament has been instructed to reform both Acts and the Minister of Labour must report progress within the next 30 months.

This judgment marks a major step forward for parental equality in South Africa, challenging outdated assumptions about caregiving roles and affirming the right of all parents to participate equally in early child-rearing.

Have questions about your parental rights or other labour law matters? Contact VST Attorneys today to ensure your rights are fully protected.