Here’s what South Africa’s new parental leave judgment means for us all

THERE are moments when the law does more than amend a statute, it amends our understanding of ourselves. The Constitutional Court’s recent judgment in Van Wyk and Others v Minister of Employment and Labour is one such moment. It is revolutionary in how our country understands parenthood, work, equality and perhaps most importantly, in how we define care.

Until now, South Africa’s parental leave laws were built on an old blueprint of family life. The Basic Conditions of Employment Act (BCEA) gave birth mothers four months of maternity leave, but limited all other parents to a token 10 days. Adoptive parents received 10 weeks if the child was under two years old, commissioning parents in surrogacy arrangements faced a similar patchwork of provisions.

The law drew a circle around motherhood and left everyone else outside of it. It assumed that caregiving rests almost exclusively with the birth mother and that fathers, adoptive parents, and partners were helpers, not equals. That framework might once have reflected the norms of its time, but it no longer reflects the lived realities of South Africans who raise children in blended, shared and diverse families.

The effect was discrimination not only between men and women, but between different forms of family, violating the constitutional guarantees of equality, dignity and the best interests of the child.

On October 3, the Constitutional Court agreed. In a unanimous judgment authored by Justice Tshiqi, the Court confirmed that sections 25, 25A, 25B and 25C of the BCEA and their matching provisions in the Unemployment Insurance Fund (UIF) Act were unconstitutional to the extent that they discriminated between birth and non-birth parents.

The court held that the law’s hierarchy of care was incompatible with the spirit of the Constitution. Equality, it said, “cannot remain aspirational in the home while being proclaimed in the workplace.”

It struck down the provisions that limited adoption leave to children under two, and that treated parental and commissioning leave as inferior. Yet, aware that Parliament must rewrite the legislation, the Court suspended the declaration of invalidity for 36 months and thereby giving lawmakers three years to correct the statutes, while providing an interim remedy to prevent further injustice.

During this 36-month period, South Africans will live under an interim system that reflects both equality and practicality. Here is what it means in plain language:

1. If you are a single or only employed parent, you are entitled to four consecutive months of parental leave.

2. If both parents are employed, they now share a total of four months and 10 days, which they can divide as they choose, consecutively, concurrently or partly overlapping, provided each parent’s share is taken in a single block.

3. If the parents cannot agree, the default split will be roughly equal.

4. Birth mothers must still observe the mandatory six-week post-birth recovery period (unless medically certified to return earlier). Those six weeks form part of the overall four-month leave.

5. Adoptive and commissioning parents fall under the same framework. Adoption leave begins when the child is placed or when a court grants the adoption, commissioning leave begins at birth under a surrogacy agreement.

6. The “ten-day parental leave” section (25A) is deleted — all parental leave now flows through a unified provision.

Employers are required to update workplace policies immediately to align with this interpretation. It is effective from the date of judgment, October 3, not at some future point.

The Court’s judgment is a hand-off to Parliament. Within three years, lawmakers must enact a comprehensive parental-leave regime that reflects the equality and dignity clauses of the Constitution. The Minister of Employment and Labour must report back to the court at least six months before the deadline on whether corrective legislation has been passed.

If Parliament fails to act in time, any party may return to the court to seek further relief. This is a mechanism designed to ensure accountability and prevent legislative inertia.

The court chose not to make the new scheme retrospective. Parents who took leave before the ruling will remain subject to the old law unless Parliament provides otherwise. That approach balances fairness with legal certainty, it protects future families without unraveling past administrative decisions.

This case was not about leave days. It was about dignity. It reminds us that equality begins in the choices of who wakes at 2am to feed a newborn, who stays home when a child falls ill and who sacrifices earnings for care.

By recognising that caregiving belongs to all genders, the court has re-centred children in the debate. It says to the nation that the Constitution’s promise of equality must start in the crib, not the courtroom.

It also challenges employers to see parental leave not as lost productivity, but as an investment in stable families, healthier workplaces and a more humane economy. The Constitutional Court, in its gentle firmness, has done what transformative courts must, it has pulled the law forward to where the people already are.

As a lawyer and as a South African I have seen firsthand how the smallest injustices in policy echo loudly in people’s lives. A father denied time with his newborn. A mother pressured to return to work while her body still heals. A same-sex couple told their adoption does not fit the statute’s age limit.

The Van Wyk judgment restores balance. It says to every parent that your bond with your child matters, not based on biology, but based on love, presence and responsibility.

This decision also models what good constitutionalism looks like. It is neither reckless nor timid. It declares the truth, that our law was unequal, but gives the legislature space to fix it properly. It protects rights today without disrupting systems tomorrow.

In that sense, it teaches not just about parental leave, but about governance itself and progress built through principle and patience.

When Parliament enacts the new law, South Africa will join a growing global movement that sees caregiving as a shared social good. Many European nations now provide flexible parental leave where both parents share several months equally, supported by public benefits. South Africa’s interim model moves us closer to that ideal, one where equality at home is recognised as essential to equality in the workplace.

But law alone cannot shift culture. Employers must adapt policies and attitudes. Fathers must claim the leave they are entitled to, without shame or fear. Women must be freed from the assumption that care is theirs alone. And government must ensure that UIF benefits evolve to match the new framework, so that equality on paper becomes equality in practice.

If there is one message from this case, it is that justice begins in the ordinary. In the way we work, raise children and design our systems of care. As the Court put it, equality must be lived, not just legislated.

For employers, this means updating contracts and HR manuals today, not next year. For employees, it means knowing your rights and insisting on them with dignity. For lawmakers, it means writing a law that honours both parents and every kind of family our democracy embraces.

And for all of us, it means remembering that a nation that values its caregivers values its future.

Previn Vedan is a lawyer and human rights advocate

** The views expressed do not necessarily reflect the views of IOL or Independent Media. 

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