South Africa’s Constitutional Court has delivered a landmark judgement affirming that all parents of new-borns — regardless of gender or family structure — are entitled to equal parental leave. The unanimous ruling, widely regarded as a significant advancement for gender equality and family rights, redefines how the state, employers, and society understand caregiving responsibilities.
Under previous legislation, the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF) granted birth mothers four months of maternity leave, while fathers were entitled to just ten days. The court found this framework unconstitutional, determining that it unfairly discriminated against fathers, adoptive parents, and parents of children born through surrogacy.
Justice Zukisa Tshiqi, delivering the court’s judgment, stated that both parents should be able to share the total period of leave as they choose, noting that the existing provisions “unfairly burdened mothers and excluded fathers.” She further observed that the prior legal approach reinforced outdated gender roles by assuming women were the primary caregivers, a presumption that marginalised fathers and limited their participation in early child-rearing.
“The protection of birth mothers to the exclusion of other parents has the unfortunate consequence of perpetuating the assumption that women are, and should be, the primary caregivers of children,” Justice Tshiqi remarked. “The father is marginalised and deprived of the opportunity to involve himself as a parent in the upbringing of the baby during the early stages of life.”
The Constitutional Court’s decision follows a 2023 Gauteng High Court ruling, which had found sections of the BCEA and UIF Acts unconstitutional. That earlier judgment, brought by a married couple supported by the Commission for Gender Equality (CGE), had already highlighted how existing parental leave laws discriminated against non-birth parents. The CGE argued that the unequal provisions placed an undue social and economic burden on mothers while diminishing the role of other caregivers.
In an interview following the decision, Tsietsi Shuping from the CGE said the outcome underscores the evolving understanding of family and parenting in South Africa. “This ruling recognises that nurturing a child is a shared responsibility. The previous framework did not reflect contemporary societal norms or the realities of diverse family structures,” he said.
Labour law specialist Patrick Deale described the judgment as “a positive and expected outcome” that aligns the country’s labour laws with its constitutional values of equality and dignity. However, he noted that the ruling will necessitate significant adjustments in workplace policy and human resources planning, especially within industries unaccustomed to shared parental leave frameworks.
The Constitutional Court suspended the declaration of invalidity for three years to allow Parliament time to amend the relevant laws. During this interim period, parents may choose how to divide the existing four months and ten days of leave between themselves. If only one parent is employed, that parent may take the full allocation.
Beyond its immediate legal and policy implications, the ruling represents a broader shift in African jurisprudence — one that situates family well-being, equality, and dignity at the heart of social development. By recognising both parents as capable and essential caregivers, the judgment reaffirms an African-centred vision of family life grounded in shared responsibility, community, and collective nurturing, rather than one limited by colonial-era labour constructs.
For many advocates, this is more than a gender equality victory; it is a reassertion of African family values that honour inclusivity, balance, and the importance of both parents in the child’s formative years. As South Africa joins a growing list of nations expanding parental rights, it signals a regional evolution in understanding family welfare — one shaped not by external models, but by homegrown commitments to dignity, care, and equity.
