Male “maternity” leave confirmed
Male “maternity” leave confirmed
IMPORTANT CONSTITUTIONAL COURT JUDGEMENT
2025/10
On 03 October 2025, the Constitutional Court handed down a unanimous judgment in an application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Johannesburg.
The matter concerns two applications which relate to an order seeking confirmation of constitutional invalidity on the following sections which concern maternity and paternity leave: sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA) and sections 24, 26A, 27 and 29A of the Unemployment Insurance Act (UIF Act) (collectively referred to as the impugned provisions).
Background
Prior to the birth of their son, the Van Wyks agreed that Mr van Wyk would take primary responsibility for taking care of their son once he is born as Mrs van Wyk had two businesses to run. Mr van Wyk approached his employer seeking four months’ consecutive parental leave but was informed that he was only eligible for 10 days’ leave because the maternity leave policy was reserved for female employees who had given birth.
Given the potential financial ramifications that his wife’s business would suffer if she were to take four months maternity leave, Mr van Wyk opted to take an extended unpaid leave of six months from his employer, which consequently affected his finances, his working conditions and his career prospects.
The High Court
The Van Wyks, along with Sonke, approached the High Court for an order declaring the impugned provisions of the BCEA as unconstitutional and invalid. They submitted that the current parental leave regime in the BCEA and the UIF Act provide greater benefits to biological mothers than to every other category of parents, notably fathers.
In particular, the provisions under section 25 of the BCEA were challenged on the following three grounds:
- that the differentiation between mothers and fathers serves no legitimate governmental purpose and is irrational;
- they amount to unfair discrimination with no justification; and
- they are offensive to the dignity of parents as they prescribe the manner in which families may be legitimately structured, depriving parents of the fundamental choice of how they may nurture their own children.
Section 25B of the BCEA, which makes leave available only to adoptive parents whose children are younger than two years old, was challenged on the basis that it unfairly discriminates between categories of adoptive parents and their children. It was submitted that adopted children of all ages need care on arrival and this need does not diminish with age. A reading-in deleting the words “below the age of two” was proposed by Sonke and the Commission for Gender Equality.
On application of the Harsken v Lane N.O. test, the High Court found that there was a differentiation between birth mothers and other categories of parents in the impugned provisions of the BCEA. It held that the differentiation between categories of parents has no rational connection to a legitimate government purpose, amounts to unfair discrimination and therefore the impugned provisions cannot be justified under the limitation clause in section 36 of the Constitution.
With regards to adoptive and commissioning parents in a surrogate agreement, the High Court similarly found that there was no reasonable explanation or legitimate governmental objective for a 10-week period of leave, rather than a 16-week period of leave provided to a birthmother. The Court found that all parenting categories should be entitled to the same period of leave if equality is to be achieved.
Consequently, the High Cout declared the impugned sections of the BCEA unconstitutional to the extent that the provisions unfairly discriminate between categories of parents and based on whether children were born of the mother, conceived by surrogacy, or if they were adopted.
The Constitutional Court
Before the Constitutional Court, the Van Wyks sought an order confirming the High Court’s declaration that impugned provisions of the BCEA and the UIF Act are unconstitutional and invalid. Furthermore, the Van Wyks submitted that the High Court incorrectly conferred the interim reading-in of section 25 of the BCEA. Unlike the reading-in sought by the Commission for Gender Equality and Sonke, the Van Wyks simply wanted both parents to be afforded four months’ parental leave each, and not collectively.
Sonke submitted that the High Court order is just and equitable but not to the extent where the parents of the child share the parental leave benefits collectively, as it consequently removes the joint period parents would spend at home together with the child after birth.
In a unanimous judgment the Constitutional Court agreed with the applicants’ submissions that the impugned provisions of the BCEA and the UIF Act:
(a) infringe on a father’s right to dignity by marginalising his involvement as a parent and by depriving parents of the choice to structure their child nurturing responsibilities;
(b) unfairly requires one parent (the birth mother) to take on the bulk of the childcare duties and, by extension, be earmarked as the default parent;
(c) creates disparity and unequal treatment of adoptive and commissioning parents which marginalises the role that they play in the early life of their children and reduces the recognition of their parental responsibilities as compared to biological parents;
(d) amounts to unfair discrimination between adoptive parents based on the age of the children they adopt and also creates a differentiation between adopted children themselves, based on their age.
In conclusion, the High Court’s declaration of constitutional invalidity of the impugned provisions was confirmed.
The Constitutional Court declared that sections 25, 25A, 25B and 25C of the BCEA, dealing with maternity and parental leave, together with the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are invalid and inconsistent with the Constitution.
It was further declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid and inconsistent with the Constitution to the extent that they limit parental leave and related benefits to the case where the adopted child is below the age of two years.
The above declarations of constitutional invalidity are suspended for a period of 36 months to afford Parliament an opportunity to remedy the constitutional defects.
Interim Amendment
Pending the enactment of remedial legislation, the impugned provisions of the BCEA are amended to read that the current allowance of four months (for biological mothers) should be retained.
Parental leave should not be restricted to mothers but should extend to fathers as well. The additional 10 days contemplated in section 25A should also be allowed, giving a total of four months and 10 days leave to be shared between the parents.
Where only one of the parents is employed, such parent should be entitled to the full parental leave. In the case of a biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth.
Subject to the aforementioned qualification, the parents should be entitled to share the available days as they choose. In the event of disagreement, the leave contemplated in the relevant section shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and 10 days.
There should be a requirement that a father who wishes to avail himself for paternity leave qualifies as one who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act.
UIF?
Insofar as the corresponding UIF provisions are concerned, this Court found that an interim reading-in would be inappropriate as it does not have sufficient information on how UIF benefits are calculated. Accordingly, an interim reading-in could have substantial financial implications. It is thus ordered that the Minister must provide a report to this Court and the parties by no later than six months before the expiry of the 36-month suspension period.
Workplace implications
Readers are invited to attend a short information session on the 22 of October 2025, during which we will discuss the practical implication of this judgement in workplaces.
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