The Constitutional Court has handed down a landmark judgment granting mothers and fathers equal parental leave — a combined four months and 10 days that parents can divide between themselves.
The ruling, delivered on Friday, strikes down sections of the Basic Conditions of Employment Act (BCEA) which previously gave mothers four months maternity leave but restricted fathers to 10 days.
The court found this arrangement unfairly discriminated on the basis of gender and family structure.
Reading the judgment, justice Zukiswa Tshiqi said arents will be entitled to four months and 10 days of leave, with the option to share or split it among themselves as they choose. This applies not only to biological parents but also to adoptive and commissioning parents through surrogacy.
The ruling follows a challenge brought in 2023 by Werner and Adéle van Wyk, a married couple who argued the law violated constitutional rights to equality and dignity.
“Mr and Mrs van Wyk agreed, before the birth of their son, that Mr Van Wyk would assume primary responsibility for taking care of their son as soon as possible after the birth a Mrs Van Wyk had two businesses to run,” the court noted.
When Werner applied for four months parental leave his employer said he was only entitled to 10 days, as maternity leave applied only to women who had given birth.
To support his family, Werner took six months unpaid leave, which negatively affected his finances, working conditions and career.
The couple, with Sonke Gender Justice, challenged the law in the high court, arguing the BCEA and the Unemployed Insurance Fund (UIF) Act unfairly favoured biological mothers over fathers and other categories of parents.
In its ruling, the ConCourt agreed with the high court’s findings that the BCEA and the UIF Act infringed on a father’s right to dignity by marginalising his involvement as a parent and depriving parents of the choice to structure their child-nurturing responsibilities.
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