1. Issues and Purpose
1.1 Whether a father or non-birthing parent is constitutionally entitled to an equivalent parental leave period (i.e, four months) under South African law.
1.2 How the pending Constitutional Court confirmation proceedings in Werner van Wyk & Others v Minister of Employment and Labour (CCT 308/23) and Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 309/23) affect the legal position.
1.3 What are the key legal, practical, and transitional duties that employers and employees should anticipate, given the evolving jurisprudence?
2. Statutory & Precedent Framework
2.1 BCEA & UIF Rights
Section 25A of the Basic Conditions of Employment Act 75 of 1997 entitles non-birthing parents, including fathers, to ten consecutive days of parental leave.
Section 25 provides that maternity leave for a birthing employee shall consist of four consecutive months, with a statutory minimum of six weeks during which return to work is prohibited except by medical certification (section 25(3)).
Adoptive and commissioning parents receive different leave entitlements under sections 25B and 25C, typically granting one parent ten weeks and the other ten days of leave.
Corresponding provisions in the Unemployment Insurance Fund Act 63 of 2001 (“UIF Act”) enable claims for benefits during parental/maternity leave.
These frameworks establish a hierarchy of rights among birthing mothers, non-birthing parents, and adoptive or commissioning parents.
2.2 High Court in Van Wyk & Others v Minister of Employment and Labour
On 25 October 2023, the Gauteng Division of the High Court (Sutherland DJP) declared parts of the BCEA and UIF provisions unconstitutional.
2.2.1 Key findings and orders included:
The Court held that the distinctions drawn by sections 25, 25A, 25B, and 25C (and corresponding UIF provisions) constitute unfair discrimination under sections 9 and 10 of the Constitution — discriminating on grounds of gender and differentiating among sets of parents (e.g., based on mode of parenthood).
The Court recognised the need for a recovery period for birthing mothers but found this insufficient to justify limiting other parents to only ten days of leave.
The Court suspended its declaration of invalidity for two years to afford Parliament time to remedy the defects.
Pending new legislation, the Court provided interim relief by reading amendments into BCEA sections 25(1), 25A, 25B, 25C, and related UIF provisions.
2.2.2 Under that reading:
- A pair of parents (or a single parent) would be collectively entitled to 4 (FOUR) consecutive months’ parental leave (as opposed to the existing fractured scheme).
- Parents may choose how to allocate the four months of leave, allowing either parent to take the full period or to alternate leave between them.
- Adoptive and commissioning parents are to be treated in parity with biological parents under the interim reading.
- The interim order set out notification requirements for employers and coordination rules for parents employed by different organisations.
The High Court’s interim remedy removed the distinction between ten days for non-birthing parents and four months for birthing mothers, replacing it with a temporary shared four-month entitlement.
However, this remedy is not final and requires confirmation by the Constitutional Court to become binding.
3. Pending proceedings before the Constitutional Court in CCT 308/23 and CCT 309/23
3.1 Followingthe High Court’s ruling, the focus shifts to the pending Constitutional Court proceedings in CCT 308/23 and CCT 309/23, which will determine the final framework for parental leave.
Werner van Wyk & Others v Minister of Employment and Labour (CCT 308/23) is the confirmation application by the Minister of Employment and Labour seeking confirmation (or amendment) of the High Court’s order.
Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 309/23) is a related case in which the CGE challenges aspects of the High Court order and seeks a direct appeal or cross-appeal on constitutional grounds.
The two matters were heard jointly by the Constitutional Court (on 1 November 2024).
Amici curiae, including the Centre for Human Rights, Solidarity Centre, International Lawyers Assisting Workers Network, Labour Research Service, and Centre for Child Law, have been admitted to submit arguments on international norms, equality, child rights, and comparative law.
3.2 Issues Raised by the Constitutional Court
During confirmation proceedings, the Constitutional Court identified several key issues and concerns with the High Court’s interim order.
These include:
3.2.1. Scope and sufficiency of interim relief
- The Constitutional Court is assessing whether the interim four-month collective leave is fair and practical, or if further adjustments are needed.
- The Court is also considering whether to confirm the invalidity declaration but leave the detailed design of relief to Parliament.
3.2.2. Six-week restriction for birthing mothers (s 25(3))
- The Court is reviewing how the six-week mandatory recovery period for birthing mothers interacts with the shared four-month leave, including whether the six weeks are part of or in addition to the four months.
- The Court is considering if the interim remedy could limit the autonomy or protection of birthing mothers during their recovery.
3..2.3 Coordination between employers
When parents work for different employers, the Court is examining how leave should be coordinated and how notice requirements should operate.
3.2.4. Parental disagreement
If parents cannot agree on leave allocation, the Court is considering whether to establish a default rule, require mediation, or allow for court intervention.
3.2.5. Financial and fiscal implications
The Court is evaluating whether expanding UIF or parental leave benefits to a four-month regime would create an undue fiscal burden, and if the Minister or UIF can provide evidence of this impact.
3.2.6. Separation of powers/legitimacy concerns
The Court is considering whether to avoid prescribing detailed social policy, such as leave allocation mechanisms, and instead defer these decisions to Parliament within constitutional limits.
Given these issues, the Constitutional Court’s final judgment may uphold, modify, or reject parts of the High Court’s remedy. Key takeaway: The final parental leave framework will be determined by the Constitutional Court.
3.3 Recent Constitutional Court Judgment (August 2025)
On 1 August 2025, the Constitutional Court delivered a judgment in Werner van Wyk confirming key aspects of the High Court’s order.
In that judgment, the Court declared unconstitutional the parental leave provisions in the BCEA/UIF that differentiated between mothers and fathers, as well as between categories of parenting.
The Commission for Gender Equality welcomed the judgment, highlighting its transformative impact on equality in parental rights.
Following the Constitutional Court ruling, parents are now collectively entitled to four months and ten days of leave, to be shared in accordance with the Court’s guidance.
The Constitutional Court has confirmed and refined the entitlement to leave. Key takeaway: Parents may now share four months and ten days of leave.
4. Deeper legal analysis to clarify the constitutional and practical consequences of the new regime
4.1 In light of these developments, further legal analysis is needed to clarify the constitutional and practical effects of the new regime.
The High Court’s original reasoning remains compelling: the existing statutory scheme entrenches gender stereotypes, relegates fathers (or nonbirthing parents) to an “ancillary” role. This violates the dignity and equality guaranteed under sections 9 and 10 of the Constitution.
In a modern constitutional democracy, caregiving should not remain strictly gendered. The law must reflect evolving social norms.
The Constitutional Court’s recent ruling (August 2025) applies to all employers and employees, giving effect to the constitutional principle that all parents should share in childcare during the early months, not just the birthing parent.
4.2 From Interim to Binding Law
With the Constitutional Court’s confirmation of the High Court’s order, the interim provisions are now binding. Employers must update their leave policies to comply with the new regime, subject to future legislative changes.
However, it is important to note:
- The Constitutional Court’s adjustment to four months and ten days indicates that the leave period is not fixed and may be further refined.
- Practical details such as notification, default rules, and leave allocation may be further clarified in future regulations or legislation.
4.3 Practical Consequences & Legal Duties
4.3.1. Employer Policy Revision
Employers must revise parental leave policies to support a shared-leave structure for all parents, including adoptive and commissioning parents, in line with the Constitutional Court ruling.
Employers should anticipate notification protocols, coordination with other employers, and default rules for resolving disagreements.
4.3.2. UIF Benefit Claims & Administration
The UIF must adapt to the new leave structure, allowing all parents—not only birthing mothers—to claim benefits during their leave.
4.3.3. Transitional Safeguards
Employers should set transition rules for employees who have started or plan to take parental leave before the judgment, ensuring consistency and fairness. Key takeaway: Provide clear guidance for current and future leave cases.
4.3.4. Conflict Resolution / Non-Agreement
Policies should include mechanisms such as a default split, mediation, or HR arbitration to resolve disagreements over parental leave arrangements.
4.3.5. Medical / Six-Week Recovery Protection
The statutory six-week ‘no return’ protection for birthing mothers must be upheld. Employers must not pressure birthing mothers to return early; all shared-leave plans must respect this protected period.
4.3.6. Coordination Between Employers
When parents work for different employers, policies should allow flexibility, such as delayed or staggered leave, and require clear notice to each employer, in line with the Constitutional Court’s approach.
5. Conclusion & Recommendation
The law has fundamentally changed: following Van Wyk and the Constitutional Court judgment, fathers and all non-birthing parents are now constitutionally entitled to equal parental leave, to be shared with the birthing parent.
The Constitutional Court’s August 2025 ruling makes this change binding and further refines the total leave entitlement to four months and ten days.
Employers must now revise leave policies, ensure UIF compliance, and implement fair processes for shared leave, scheduling, and dispute resolution.
Clients—including employees, HR departments, and employer associations— should immediately audit and align parental leave policies with the new constitutional standard.
Where ambiguity exists, such as disagreements between parents or coordination across employers, careful policy design and possibly additional regulation will be required.
For further information or assistance, please don’t hesitate to contact me to arrange a workplace compliance review.
By: Natascha Miller
Attorney, Conveyancer & Forensic Consultant
Cell: 082445 7003
E-mail: natascham@bnlaw.co.za
