Whatshot

2025
2024
June
April
2023
March
2022
2021
2020
March
February
2019
December
November
October
September
August
July
June
May
April
March
February
2018
December
November
October
September
August
July
June
May
April
March
February
2017
December
November
October
September
August
July
June
May
April
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
July
June
May
April
March
February
January
2012
December
November
October
September
August
July

Game-Changer for Families: Constitutional Court Reshapes Parental Leave

Game-Changer for Families: Constitutional Court Reshapes Parental Leave

Author: By Fawzia Khan
Date: 2025-11-03

In October 2025, the Constitutional Court delivered its judgment in a landmark case which challenged South Africa's maternity and parental leave laws under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) saying both those Acts were unfairly discriminatory.

The case will transform how South African workplaces handle parental leave - ensuring that every parent, regardless of gender or how they became a parent, can equally care for their child. The applicants Werner and Ika van Wyk, along with Sonke Gender Justice and the Commission for Gender Equality argued that the current system treats parents differently based on their gender and the way they become parents (birth, adoption, or surrogacy). Under the BCEA:

* A mother giving birth gets four months' maternity leave.

* A father or partner gets 10 days' parental leave.

* Adoptive and surrogate parents get different combinations of leave depending on who is the "primary caregiver."

The applicants said this system reinforces gender stereotypes, assumes women are the default caregivers, and fails to recognise diverse families, thus violating section 9 (equality) and section 10 (human dignity) of the Constitution. The legal challenge at play was that the applicants wanted the Constitutional Court to declare that the BCEA and UIA unfairly discriminate against parents based on sex, gender, and family structure; and that all parents biological, adoptive, or via surrogacy should have equal parental leave rights. They also wanted the UIF benefits linked to these leaves to be adjusted accordingly.

The Minister of Employment and Labour opposed the application, arguing that maternity leave serves a biological purpose linked to pregnancy and recovery, not only childcare, and that differences were therefore justifiable. The Constitutional Court delivered a groundbreaking judgment, holding that the current leave framework is unconstitutional and discriminatory.

The Court found that the BCEA's distinction between "maternity leave" and "parental leave" unfairly stereotypes women as primary caregivers and men as secondary. It also said that Act ignores modern family structures, including adoptive parents, and families formed through surrogacy. The system undermines gender equality and human dignity, as it denies fathers and non-birthing parents the same opportunity to bond and care for their children.

The Court ruled that all parents must be entitled to at least four months of parental leave, to be shared between the parents as they choose. This approach promotes equality, flexibility, and family autonomy. The Court suspended the declaration of invalidity for two years, giving Parliament time to amend the BCEA and UIA. In the meantime, it ordered an interim reading-in to ensure equal treatment of parents. The significance of the ruling is that it hailed as a landmark victory for gender equality and family rights in South Africa. The judgment modernises the concept of "parenthood" beyond traditional gender roles and recognises diverse families and shared caregiving. The case is set to transform how South African workplaces handle parental leave - ensuring that every parent, regardless of gender or how they became a parent, can equally care for their child.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney. Call 031-5025670 or email fawzia@thelawdesk.co.za for legal assistance at competitive rates.