When considering fathers’ parental leave in South Africa, a landmark ruling on Friday, 3 October 2025, saw the Constitutional Court confirm that fathers are now entitled to four months of parental leave — a right that was previously reserved exclusively for biological mothers. The Court found that the former system amounted to unfair and unconstitutional discrimination.
Until now, fathers were limited to only 10 days of paternity leave under the Basic Conditions of Employment Act (BCEA), while mothers were entitled to four months of maternity leave.
The ruling means that parents can now share the four-month parental leave period, enabling both to participate equally in the early stages of childcare.
The case has been developing for several years. In October 2023, the Johannesburg High Court ruled that the unequal leave provisions under the BCEA were discriminatory and unconstitutional. That judgment was referred to the Constitutional Court for confirmation, which upheld the decision on 3 October 2025.
The legal proceedings originated in Van Wyk and Others v Minister of Employment and Labour [2023] ZAGPJHC. On 25 October 2023, the Gauteng High Court declared provisions of both the BCEA and the Unemployment Insurance Act (UIA) unconstitutional. The Court found that these laws violated sections 9 and 10 of the Constitution, which guarantee equality and dignity.
The Constitutional Court agreed, noting that the legislation:
- unfairly discriminated between mothers and fathers, and
- unfairly discriminated among parents depending on whether their children were born naturally, adopted, or conceived through surrogacy.
Furthermore, the Court emphasised that caregiving leave is designed to support a child’s well-being, not only a mother’s physiological recovery after childbirth.
While birthing mothers remain entitled to a recovery period, the Court said distinctions that excluded or limited non-birthing parents’ caregiving roles were unjustified, particularly in adoption and surrogacy cases.
In its judgment, the High Court observed: “Parenting is sui generis and undoubtedly onerous, involving actual work, resilience in the face of exasperation, anxiety, unrelenting close attention to the new-born, extreme exhaustion, sacrifice of sleep and sacrifice of the pursuit of other interests. A father who chooses to share in this experience for his own well-being, no less than that of his children and of their mother, can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination.”
The ruling has been met with mixed responses.
Some critics argue that equality does not necessarily mean fairness, pointing to the unique biological role of women in pregnancy, childbirth, and breastfeeding. Others have welcomed the change, stressing that mothers benefit from partners’ involvement and support, while fathers gain the opportunity to bond more closely with their newborns.
By providing equal access to parental leave, the Constitutional Court has paved the way for a more balanced model of parenting in South Africa. The decision recognises that both parents have the right — and responsibility — to share in the physical and emotional demands of raising a child from the earliest stages.
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FAQs
It means fathers can now share the four months of parental leave previously reserved for mothers, ensuring both parents can participate in childcare.
Provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) were found unconstitutional as they discriminated against fathers and non-birthing parents.
Yes. The Court found that previous provisions unfairly discriminated between parents depending on whether a child was born naturally, adopted, or via surrogacy.
