03/10/2025
Equal Parental Leave: Constitutional Court levels the playing field for parents in Landmark Judgment
On 3 October 2025, the Constitutional Court handed down its unanimous judgment in Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20.
This decision reshapes South Africa’s parental leave regime under the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act), striking down discriminatory provisions and affirming the rights of all parents to equal treatment.
________________________________________
🔑 Key Findings of the Court:
1. Unfair Discrimination Confirmed
The Court held that sections 25, 25A, 25B and 25C of the BCEA (and matching UIF provisions) unfairly discriminated between birth mothers, fathers, adoptive parents, commissioning parents (surrogacy), and their children.
Limiting adoptive leave only to children under two years was also declared unconstitutional.
2. Human Dignity and Equality
By assuming that mothers are primary caregivers and fathers only marginal contributors, the law violated section 9 (equality) and section 10 (human dignity) of the Constitution.
The Court emphasized that caregiving roles should be chosen by parents themselves, not imposed by legislation.
3. Suspension of Invalidity for 36 Months
Parliament has 36 months (three years) to amend the BCEA and UIF Act to correct these constitutional defects.
4. Interim Remedy: 4 Months + 10 Days Shared Leave
Pending new legislation, both parents in an employment relationship are now entitled, in the aggregate, to 4 months and 10 days’ parental leave, which can be:
Shared concurrently or consecutively, or partly both;
Split equally if parents cannot agree.
A single employed parent is entitled to the full 4 months’ parental leave.
Birth mothers retain a mandatory 6 weeks’ recovery period after childbirth.
5. Adoption and Surrogacy Equalised
Adoptive parents and commissioning parents are now also entitled to 4 months and 10 days’ leave in total, to be shared on the same basis as biological parents.
The age cap of “under two years” for adopted children is unconstitutional and struck down.
________________________________________
⚖️ Practical Implications
For Parents:
• You now have the right to decide, together, how to share parental leave.
• This applies equally to adoptive parents, same-sex couples, and parents through surrogacy.
• Leave may be taken concurrently or split between parents.
For Employers:
• Review and update HR policies and contracts immediately to reflect the interim reading-in.
• Ensure compliance: allow parental leave of up to 4 months + 10 days in total, shared between parents.
• Continue monitoring developments — Parliament must pass new legislation within 36 months.
For Government:
• The Minister of Employment and Labour must report to the Court on progress at least 6 months before the 36-month deadline.
________________________________________
📅 When Does It Apply?
• The interim regime applies immediately from 3 October 2025.
• Parliament has until October 2028 to finalise permanent amendments.
• UIF benefit reforms are left to Parliament — for now, UIF provisions remain to be amended legislatively.
________________________________________
💡 Why This Judgment Matters
• Promotes gender equality by removing outdated stereotypes.
• Affirms that all families — biological, adoptive, and through surrogacy — deserve equal recognition.
• Advances the best interests of children, ensuring that every child can bond with both parents.
________________________________________
At Steyn du Toit Inc, we welcome this historic ruling. We encourage employers and employees alike to update policies and plans in line with this new constitutional standard.
Steyn du Toit Inc – Your partner in Labour Law.
📞 018 110 0907
