In a landmark ruling that redefines parental rights in South Africa, the Constitutional Court has confirmed a decision by the Gauteng High Court declaring the country’s existing parental leave laws unconstitutional.
The court found that provisions under the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act unfairly discriminated against fathers, adoptive, and surrogate parents by assigning maternity leave solely to biological mothers.
Shared Leave: Four Months and 10 Days
Effective immediately, parents will now be entitled to four months and 10 days of parental leave, which they can share between them, rather than having leave designated by gender or parental role.
Previously:
- Biological mothers were entitled to four months of maternity leave.
- Fathers were granted only ten days of paternity leave.
The new arrangement retains the total amount of leave, but allows parents – regardless of gender or biological status – to decide how to divide the time.
“The court emphasised that parents, regardless of gender, should have the right to determine how to balance work and caregiving responsibilities,” the ruling states.
Court Finds Discrimination in Existing Laws
The High Court had originally ruled in 2023 that the BCEA placed a disproportionate burden on women, assuming them to be default caregivers, while marginalising fathers and failing to accommodate non-traditional family structures.
The Constitutional Court agreed, ruling that:
- The current laws undermine the dignity of fathers
- They fail to recognise diverse family structures, including adoptive and commissioning (surrogacy) parents
- The laws amount to unfair discrimination and are inconsistent with the Constitution
Key Features of the Ruling
- Both parents can share the four months and 10 days of leave as they choose
- In biological births, the mother has initial preference for time needed before and after childbirth
- In the event of disagreement, leave should be evenly split
- Where only one parent is employed, that parent is entitled to the full leave allocation
Parliament Given 36 Months to Amend the Law
The Constitutional Court has suspended the declaration of invalidity for 36 months, giving Parliament three years to amend the BCEA and UIF Act accordingly.
However, in the interim, the court ordered a temporary reading-in of the new provisions under the BCEA – meaning that shared leave is immediately available in practice, though some administrative and legal clarifications will follow.
Regarding UIF benefits, the court declined to implement interim changes, citing a lack of clarity on benefit calculations and fiscal impact.
Next Steps for Government
- The Department of Employment and Labour must report back six months before the 36-month suspension expires, detailing progress on legislative changes
- Any party may apply for supplementary relief up to four months before the deadline, if Parliament fails to act
This decision is being hailed as a progressive and inclusive shift in South African labour law – one that acknowledges evolving family dynamics and affirms the constitutional right to equality in parenting.
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