ConCourt ruling grants fathers right to share parental leave
In a groundbreaking judgment hailed as a victory for gender equality and children’s rights, the Constitutional Court has ruled that South African parents can now share up to four months and ten days of parental leave.
The leave would have to be granted regardless of whether they are mothers, fathers, adoptive parents, or commissioning parents through surrogacy.
The unanimous judgment, delivered by Justice Zukisa Tshiqi, struck down sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF), declaring them unconstitutional and discriminatory.
The ruling stemmed from the case of Werner and Adelé van Wyk, who had agreed before the birth of their child that Mr Van Wyk would assume primary caregiving responsibilities while his wife focused on running her businesses.
But when he approached his employer for four months’ leave, he was told fathers were only entitled to ten days.
Faced with no choice, Van Wyk took six months’ unpaid leave — a decision that led to a constitutional challenge supported by the Commission for Gender Equality.
The High Court had earlier ruled in favour of the Van Wyks, and the Constitutional Court has now confirmed that ruling, cementing a fundamental shift in South African labour law.
Justice Tshiqi said the laws as they stood entrenched outdated gender roles that unfairly burdened mothers and excluded fathers.
"The protection of birth mothers to the exclusion of other parents has the unfortunate consequence of perpetrating the assumption that women are and should be the primary caregivers of children. The father is marginalized and deprived of the opportunity to involve himself as a parent in the upbringing of the baby during the early stages of life."
She stressed that the ruling was not only about gender equality but also about protecting the dignity of families.
"Parents are deprived of the choice to structure their child-rearing responsibilities, and children are deprived of the opportunity to be with both caregivers in their early lives. This is inconsistent with our constitutional values."
The apex court also struck down the two-year age cap on adoption leave, which previously denied parents who adopted older children the right to paid parental leave.
"The disparity and unequal treatment towards adoptive and commissioning parents not only marginalises the role they play in the early life of their child, but also reduces the recognition of their responsibilities as compared to biological parents. The distinction drawn by the statutory regime treats them as a lesser class of parents," Tshiqi said.
A mandate for Parliament
The court has suspended its declaration of invalidity for 36 months, giving Parliament time to amend the BCEA and UIF Act. However, in the interim, parents will already be entitled to share the four months and ten days of leave.
Where only one parent is employed, that parent will be entitled to take the full leave allocation.
The ruling means employers will have to adjust workplace policies, with legal experts warning that HR systems, payroll structures, and UIF claim processes will all need urgent reform.
Justice Tshiqi emphasised that the ultimate focus of the court’s decision was the well-being of children.
"The unequal treatment not only marginalises parents but also deprives children of the opportunity to be with their caregivers during a crucial period of nurturing and adjustment to their new environment."
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