Equal parents, equal leave: Landmark ruling reshapes parental rights in South Africa

In a groundbreaking decision, the Constitutional Court has declared several provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act) unconstitutional for unfairly discriminating between different categories of parents. The judgment marks a significant shift in South African labour law, affirming the rights of all parents, regardless of gender, sexual orientation, or the method by which they become parents, to equal parental leave and dignity.

The case at a glance

The case was brought by Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality. Mr van Wyk had requested four months of paternity leave to care for his newborn son, as his wife was self-employed and unable to take extended leave. His employer denied the request, citing the BCEA’s provision of only ten days’ parental leave for fathers. This prompted a legal challenge that questioned the constitutionality of the BCEA and UIF Act provisions governing maternity, parental, adoption and commissioning parental leave.

Legal implications

The Court found that the BCEA and UIF Act:

• Unfairly discriminated between birth mothers and other parents (fathers, adoptive parents and commissioning parents).
• Reinforced outdated gender roles by assuming mothers are the primary caregivers.
• Violated the constitutional rights to equality and human dignity under sections 9 and 10 of the Constitution.
• Discriminated against adoptive parents by limiting leave to those adopting children under two years of age.

The Court confirmed the High Court’s declaration of invalidity and suspended it for 36 months to allow Parliament to amend the legislation. In the interim, the Court ordered a reading-in to ensure equal parental leave rights.

Practical implications

For employers and employees, the ruling has immediate and long-term consequences:

• Interim leave structure: Until Parliament enacts new legislation, both parents in a parental relationship are entitled to share four months and ten days of leave. If only one parent is employed, that parent may take the full leave.
• Adoptive and commissioning parents: These parents are now entitled to the same leave as birth parents, regardless of the child’s age or method of becoming a parent.
• Employer obligations: Employers must accommodate the revised leave entitlements and ensure non-discriminatory practices in granting parental leave.
• UIF benefits: While the BCEA provisions are immediately adjusted, UIF benefits remain unchanged until Parliament acts. The Court deferred any interim changes to UIF due to financial and administrative complexities.

Key takeaways

For employers:

• Review and update leave policies to align with the interim provisions.
• Prepare for future legislative changes that may expand UIF benefit eligibility.
• Foster inclusive workplace practices that support diverse family structures.

For employees:

• Know your rights: both parents can now share extended parental leave.
• Adoptive and commissioning parents are no longer treated as second-class caregivers.
• Fathers and non-birth parents can assert their right to participate equally in early childcare.

Conclusion

This ruling is a victory for gender equality, family autonomy and the recognition of diverse parenting roles. It affirms that caregiving is not defined by biology or gender but by commitment and responsibility. As South Africa moves toward more inclusive labour laws, this judgment lays the foundation for a society where all parents are empowered to nurture their children equally.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.