Parents may now share this leave amongst themselves as they see fit.
The Constitutional Court has unanimously ruled that all parents of newborns are entitled to equal parental leave of four months and 10 days, regardless of gender, sex, colour, or circumstances.
The court found that previous provisions in the Basic Conditions of Employment Act (BCEA), which distinguished between maternity and paternity leave, constituted unfair and unconstitutional discrimination.
Judge Zukisa Lumka Tshiqi delivered the landmark judgment on Friday, 3 October 2025, confirming that sections of the BCEA dealing with maternity and parental leave “unfairly discriminate between different classes of parents as to the length of parental leave available to parents and as to the unemployment benefits to which they are entitled and the periods for which unemployment benefits are paid.”
Parents may now share the leave amongst themselves as they see fit.
The ruling affects biological parents, adoptive parents and commissioning parents in surrogacy arrangements.
Key provisions of the parental leave ruling
The court retained the current four-month leave for biological mothers but extended this right to fathers as well.
Where only one parent is employed, that parent is entitled to full parental leave.
In cases of biological birth, the mother must have preference regarding the time currently allocated for preparation for and recovery from birth. Subject to this qualification, parents are entitled to share the available days as they choose.
“In the event of disagreement, the leave contemplated in the relevant section 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 10 days,” Tshiqi ruled.
Tshiqi stated that a father who wishes to avail himself of paternity leave must qualify as one who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act.
ALSO READ: Husbands can now legally adopt wives’ surnames in SA, ConCourt rules
Dignity and discrimination concerns
Tshiqi emphasised the dignity implications of the previous legislation. “The shorter period of leave deprives commissioning parents of the opportunity to structure their parental responsibilities according to their personal circumstances, thereby intruding upon their private life, thereby undermining their dignity,” she said.
The judge noted that there are several reasons why certain couples opt for adoption or surrogacy. “They should not be penalised for this,” Tshiqi said. “There are also many reasons why partners decide that the father should be the primary caregiver.”
She added that circumstances may dictate that the father assumes the role of primary caregiver, even when the other partner is the birth mother.
“Legislation that prevents them, without any legitimate reason, from arranging their affairs according to their personal circumstances and preferences intrudes upon their private space unnecessarily and impacts their human dignity,” the judge said.
Age limit for adoption struck down
The court also declared unconstitutional the two-year age limit for adopted children to qualify for parental leave.
Previously, adoptive parents could only claim leave if their adopted child was below two years of age.
Tshiqi found that adoptive parents of children older than two years and their children are treated differently from parents and children younger than two years.
“The extent of the limitation is such that there is no leave at all for adoptive parents with adopted children who are two years or older,” she said.
The judge acknowledged uncertainty about what a reasonable cap should be. “This is a matter best left for final determination by the legislature, as the unfair discrimination cannot be justified. An order that the capping of the age at two years is unconstitutional must therefore follow,” she ruled.
While the primary focus of granting leave is nurturing, Tshiqi accepted that adjustment to a new environment is also very important for adopted children and cannot be excluded from consideration.
ALSO READ: How much do these 7 baby essentials cost?
Parliament given 36 months to act
The declarations of constitutional invalidity have been suspended for 36 months from the date of the order, affording Parliament an opportunity to remedy the constitutional defects.
Pending remedial legislation, the impugned provisions of the BCEA will be read in with immediate effect.
The court directed that parental leave, which now combines the former maternity and paternity leave, adoption leave and commissioning parental leave, will equally entitle parents to four months and 10 days shared leave.
The additional 10 days previously contemplated for paternity leave is now included in the total available to be shared between parents.
Not later than six months before the expiry of the 36-month suspension period, Tshiqi said the minister must furnish a report to the registrar on notice to the parties regarding whether remedial legislation has been brought into operation.
Background to the parental leave case
The case originated in 2022 when the Johannesburg High Court heard challenges to the BCEA provisions.
The applicants were Werner Van Wyk and Ika Van Wyk, a married couple and parents of a child, along with Sonke Gender Justice and the Commission for Gender Equality. The respondent was the Minister of Labour and Employment.
Roland Sutherland, deputy judge president of the Gauteng Division of the High Court, ruled in favor of the applicants.
“The sections in the BCEA do offend sections 9 and 10 of the Constitution. Parliament must get to work to eliminate the inequalities,” Sutherland said in his 2022 judgment.
He proposed that all parents, regardless of their background, enjoy four consecutive months of parental leave collectively.
“In other words, each pair of parents of a qualifying child shall share the four months leave as they elect,” Sutherland ruled.
ALSO READ: Weaning baby off breastfeeding: What parents need to know
Previous discriminatory framework
Before the ruling, the BCEA differentiated three categories of children: those born of a mother, those born by surrogacy, and adopted children. Birth mothers were entitled to four consecutive months’ maternity leave, of which one month could be taken prior to the date of birth. Fathers were entitled to only 10 days leave from the date of birth.
Adoptive parents faced additional restrictions. One parent was entitled to 10 consecutive weeks’ leave, and the other to 10 days’ leave, but only if the adopted child was under two years old.
Additionally, the period of 10 weeks leave was six weeks less than that to which a birth mother was entitled.
Commissioning parents in surrogacy arrangements had identical entitlements to adoptive parents: 10 weeks or 10 days. The statute said nothing about the surrogate herself.
The minister of labour had argued that the existing suite of benefits in the BCEA compared favourably with those of other states, particularly countries with socio-economic profiles similar to South Africa’s.
The minister contended that the controversy was intrinsically a matter of social policy involving resource allocation, better left to parliament to evaluate.
The National Employers’ Association of South Africa also opposed the relief sought, arguing it would be bad for business and sharing the minister’s view that Parliament should address the controversy.
Unemployment Insurance Fund implications
The ConCourt found it inappropriate to provide an interim reading-in for corresponding provisions of the Unemployment Insurance Fund Act before the suspension period lapses.
Tshiqi noted that the UIF Act is regulated differently from the BCEA.
“This court does not have sufficient information at its disposal regarding how the benefits in the corresponding provisions of the UIF are calculated,” she said. “Given that a reading-in in respect of the impugned provisions of the UIF Act is more complex than in the case of the BCEA, it seems preferable to defer the question of such a reading-in.”
The order includes a direction that this question be brought to the court’s notice for supplementary relief if it appears likely there will be a need for remedial reading-in.
The same approach applies to the two-year age cap in the BCEA.
Any of the parties may apply for supplementary relief to become operative upon expiry of the 36-month suspension period. Such applications must be brought not later than four months before the suspension period expires.
Tshiqi ordered that the minister pay the applicants’ costs in the Constitutional Court, including the costs of two counsel.
READ NEXT: ‘Many victims do not fight or flee but freeze’: ConCourt heards arguments on consent
