A HISTORIC SHIFT IN PARENTAL RIGHTS

In a landmark ruling that reshapes South African labour law, the Constitutional Court has declared the country’s parental leave framework unconstitutional for discriminating against fathers, adoptive parents, and commissioning parents. The judgment, handed down in Van Wyk and Others v Minister of Employment and Labour and Others, affirms the right of all parents to equal leave, regardless of gender or the nature of their parenthood.

The case originated in the Gauteng High Court in 2023, where the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act) was challenged as discriminating considering the birth mothers were entitled to four months of maternity leave, while other parents received significantly less—typically only ten days. The High Court found this disparity unconstitutional, and the Constitutional Court has now confirmed that finding.

The Court ruled that Sections 25, 25A, 25B and 25C of the BCEA dealing with maternity and parental leave are inconsistent with the Constitution to the extent that they unfairly discriminate between different classes of parents as to the length of parental leave available to parents. Parliament has been afforded 36 months to remedy the constitutional defects.

Although the Court declared the relevant provisions invalid, it suspended the declaration for two years to allow Parliament time to amend the BCEA and UIF Act. During this period, employers must comply with the Court’s interim order and update their policies accordingly.

Parental Rights

With immediate effect, any two parents—regardless of whether they are birth, adoptive, or commissioning parents—may share parental leave.

Parental leave

An employee who is a single parent; or the only employed party in a parental relationship, is entitled to at least four consecutive months’ parental leave.

A female employee who is expecting the birth of a child may commence parental leave at any time from four weeks before the expected date of birth, unless otherwise agreed; or on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.

No female employee who has given birth to a child may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.

An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to parental leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced parental leave at the time of the miscarriage or stillbirth.

Sharing parental leave

If both parties to a parental relationship are employed, the parties are entitled in the aggregate to four months and ten days’ parental leave, inclusive of any parental leave taken for giving birth.

The remainder of the parental may be taken by the parties in such manner as they may agree, including concurrently or consecutively, or partly concurrently and partly consecutively, save that any such parental leave must be taken by the party concerned in a single sequence of consecutive days.

If the parties cannot agree on the manner in which the remainder of the parental leave is to be taken, such remainder shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and ten days, provided that such leave is completed within a period of four months from the birth of the child.

A party shall be deemed to be a party to a parental relationship if such a party has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005 (Act No. 38 of 2005).

Adoption leave

An employee, who is an adoptive parent of a child who is below the age of two is entitled to parental leave and may commence adoption leave on the date that the adoption order is granted; or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

If an adoption order is made in respect of two adoptive parents, both parties are entitled in the aggregate to four months and ten days’ adoption leave.

Commissioning parental leave

An employee, who is a commissioning parent in a surrogate motherhood agreement is, entitled to leave. The employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

Where there are two commissioning parents, they shall each be entitled in the aggregate to four months and ten days’ commissioning parental leave.

Employer Obligations

Employers are now required to revise parental leave policies to reflect the shared four-month entitlement and treat all parental leave requests equally, without regard to gender or parental role removing gendered terms like “maternity” and “paternity” leave and replacing them with “parental leave”.

Payroll systems must accommodate the new leave entitlements and employers should clarify whether the leave is paid or unpaid, and how UIF benefits apply under the revised structure.

Failure to implement the new system may expose employers to constitutional challenges and labour disputes. Non-compliance may lead to claims under the Employment Equity Act and leave denial based on outdated criteria could be deemed discriminatory.

Proactive compliance and thoughtful implementation will be key to navigating this new chapter in employment law. It’s an opportunity to foster a more inclusive, flexible, and supportive work environment.

Conclusion

This ruling marks a historic moment in South African labour law. It promotes gender equality, aligns South Africa with global trends toward inclusive family policies and recognises diverse caregiving arrangements.

Employers are encouraged to reach out to their EOHCB representatives to update their policies in accordance with the Court’s order.