Constitutional Overhaul: Equal Parental Leave Rights for All Parents
On 3 October 2025, the Constitutional Court of South Africa delivered a landmark unanimous judgment in the consolidated cases of Van Wyk and Others v Minister of Employment and Labour. The Court confirmed that existing provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act) were unconstitutional because they unfairly discriminated against different classes of parents.
The Core Legal Challenge
The applicants, including a private couple and advocacy groups like Sonke Gender Justice and the Commission for Gender Equality, challenged the law for differentiating leave based on how a child entered a family. They argued that the disparity between the four months granted to birth mothers and the significantly shorter periods (often just 10 days) granted to fathers, adoptive parents, and commissioning parents in surrogacy agreements was discriminatory and undermined human dignity.
Key Findings of the Court
The Constitutional Court confirmed the High Court’s declaration of invalidity regarding sections 25, 25A, 25B, and 25C of the BCEA and corresponding sections of the UIF Act.
- Unfair Discrimination: The law unfairly discriminated between different classes of parents regarding the length of parental leave and the associated unemployment benefits.
- Age Limitation Struck Down: The Court specifically declared the two-year age limit for adopted children to qualify for leave as unconstitutional. All adoptive parents are now entitled to leave regardless of the child’s age.
- Suspension for Remedy: The declarations of invalidity are suspended for 36 months to allow Parliament to draft remedial legislation.
Interim Measures (Effective Immediately)
Until Parliament enacts new laws, the Court has provided an interim “reading-in” of the BCEA to ensure immediate equality. The new structure is as follows:
| Parent Status | New Interim Leave Entitlement |
| Single Parents | Entitled to at least four consecutive months of parental leave. |
| Only Employed Parent | Entitled to at least four consecutive months of parental leave. |
| Both Parents Employed | Entitled to an aggregate of four months and ten days of parental leave. |
| Sharing Leave | Employed parents can agree to share the four months and ten days concurrently or consecutively. |
| Disagreement on Sharing | If parents cannot agree, the leave must be apportioned equally (approx. 2 months and 5 days each). |
Additional Protections
- Compulsory Post-Birth Leave: No female employee who has given birth may work for six weeks after delivery unless certified fit by a medical practitioner.
- Miscarriage/Stillbirth: Employees who suffer a miscarriage in the third trimester or a stillbirth are entitled to six weeks of parental leave.
- Notification Requirements: Employees must still provide written notice to their employer at least four weeks before intended leave begins, or as soon as practicable.
