By Asma Cachalia | Director and Alex van Greuning | Associate

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Introduction

Friday, 3 October 2025 marked legal victory, both for Werner and Ika van Wyk, and for the Commission for Gender Equality, who together challenged the care giving leave provisions in the Basic Conditions of Employment Act (and the correlative benefits in the Unemployment Insurance Act) as being unconstitutional insofar as they conflicted with parents’ human rights in the Constitution to equality (section 9 of the Constitution) and to dignity (section 10 of the Constitution). See judgement here.

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What was the position previously?

Previously, a female employee who gave birth to a child had access to four months maternity leave, while her partner (where there is a partner) who is an employee would be entitled to 10 consecutive calendar days’ leave from that partner’s employer. The 10 days were referred to as “parental leave”.

There was a similar arrangement for parents who adopted or were parents via surrogacy, except that in these scenarios, the one parent would be entitled to 10 weeks (as opposed to 4 months), and the other parent would be entitled to the 10 days, from their respective employers. The 10-week period was referred to as “adoption leave” and “commissioning parental leave”, respectively, with the other 10-day period being referred to as “parental leave”.

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What problems was the Court faced with?

The problem raised was the differentiation in the amount of care giving leave awarded between different sets of parents, namely biological parents and on the other hand those that become parents by other means. The other problem lay between co-parents, namely the inequality in the one parent receiving the bulk of the leave (whether that be the 4 months maternity leave or the 10-weeks adoption or commissioning parental leave), and the other parent receiving 10 calendar days parental leave only.

On equality, the Court noted that the Minister of Employment and Labour (the sole respondent in the application) accepted in her written submissions to the Court that there were problems with the leave regime as it stood, and that something ought to be done. Thus, the Court did not engage in an extensive analysis as to exactly how or why the previous leave regime was unfairly discriminatory. The parties were of the same mind insofar as that was concerned, and the Court accepted this position.

On dignity, the Court explained that the indignity currently suffered by parents is that they do not receive the same leave protections that a birthing mother receives. As set out above, they received much less. This has a knock-on effect on those parents’ ability to nurture their child – i.e. less time with their child and the like. In the Court’s words, they were treated “as a lesser class of parents”.

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What did the Court do?

The Court declared the previous BCEA leave provisions (and the correlative provisions in the Unemployment Insurance Act) unconstitutional, giving Parliament three years to promulgate legislation to amend these Acts and bring it in line with parents’ rights to equality and to dignity in the Constitution.

In the meantime, and from date of judgment on 3 October 2025, the relevant provisions in the BCEA will be read in line with the interim relief granted by the Court, discussed immediately below.

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What is the current position?

Until Parliament’s amending legislation takes force, the position will be as follows.

Regarding the amount of parental leave available, there will be no more distinction between biological parents and other sets of parents.

All co-parents who are employees (whether or not they are biological parents) will be entitled to share in a total parental leave benefit of 4 months and 10 days, amongst themselves. Where no agreement can be reached on the leave split between co-parents, it must be apportioned as close as possible so that each parent receives half of the available leave benefit.

A birthing mother who is an employee will have a priority right to the parental leave four weeks before the birth and six weeks thereafter. After that, the above position applies to the balance of the leave benefit between co-parents.

A single parent is entitled to 4 months parental leave, as opposed to the 4 month and 10-day period made available to co-parents.

Although the 2-year age cap on adoption leave has been declared unconstitutional, the Court’s interim relief keeps it in place, i.e. only adoptive parents who adopt a child under the age of two will be entitled to the 4 month and 10-day leave benefit.

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What was left unaddressed?

The Court has left the issues of how to amend the Unemployment Insurance Act, and how to address the age cap on adoption leave (described above), to Parliament, and no interim relief has been provided in this regard.

If Parliament does not finalise the amendment process within the 3-year period provided, it may become necessary for the Constitutional Court to provide interim relief in respect of the benefits under the Unemployment Insurance Act and on the issue of the said limitation placed on adoption leave. But the Court plans to deal with that, when the time comes, to the extent that it proves necessary.

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What now?

As is often the case when longstanding lines are redrawn to include more people in a right, the place where the new line falls may give rise to new (and unintended) exclusions.

Here are some practical steps employers can take in light of this judgment:

1. Implement interim measures as soon as possible

The Court’s order has immediate effect, but Parliament has 36 months to finalise legislative amendments.

Employers should introduce/amend current policies to incorporate a written interim parental-leave policy now, clearly marked “pending statutory amendment.”  Employers should consider in these policy amendments removing gender connotations to parental leave.  

Once new legislation is enacted, the interim policy can be formally replaced.

2. Proof of shared leave allocation

Because parental leave may now be shared between two employed parents, employers must be able to properly monitor and control leave overlap and prevent duplicate leave payments or UIF claims.

Employers should require employees to submit:

• A Parental-Leave Declaration Form, which can be developed, confirming whether the other parent is employed and how the leave will be split
• Proof of the partner’s employment (e.g., employer confirmation, payslip, or written statement)

3. Establish verification and disciplinary safeguards

To deter abuse of the shared-leave system and promote integrity in implementation employers should, amongst other things, amend disciplinary policies to introduce wording confirming that:

• False declarations or deliberate misrepresentation of shared-leave details constitute serious misconduct

• The employer reserves the right to verify leave records

4. Review paid-leave practices

To avoid further discrimination claims, if the employer currently pays full or partial maternity leave, extend that benefit to the other parent who takes the equivalent portion of parental leave.

Consider whether the paid portion should be capped at the total shared entitlement (four months + ten days) or proportionally reduced if the employee takes only part of that time.

Furthermore, this may require an amendment to your contracts of employment in respect of terms contrary to the judgment.

5. Apply sensitivity

Be mindful that the new parental leave entitlement of 4 months and 10 days is now shared across all types of co-parents.

Ensure HR, payroll, and management apply the new regime sensitively and consistently, particularly in cases involving non-traditional families, adoption, or surrogacy.

6. Communicate and train

Issue a short internal circular summarising the changes, interim policy, and documentation requirements.

Conduct manager and HR training on:

• The gender-neutral framework; and
• Handling of documentation and proof of employment for partners

7. Review and adjust by 2028

Track developments from the Department of Employment and Labour and Parliament’s forthcoming amendment bill.

Plan to review and re-issue the policy before 3 October 2028, when the suspension period ends and any unaddressed invalidities (e.g., the adoption age cap) will automatically fall away.

Our employment team looks forward to assisting your business in navigating the Constitutional Court’s interim relief, in anticipation of Parliament’s final amendments.

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