The effect of these provisions is that the employee is entitled to take off time from work and has job security upon their return.

Furthermore, Section 25(3) of the BCEA forbids a moth from working for six weeks after the birth, unless a doctor or midwife provides approval for earlier recommencement of work.

The unfairness to fathers’ specifically where the biological mother ran their own business and realistically cannot take four months maternity leave without completely jeopardising their business came into focus in the case of Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 2, wherein Mr. van Wyk (the father), an employee, approached his employer seeking four months’ consecutive paternity leave. Mrs. van Wyk (the mother), was (and still is) in business for her own account. Prior to the birth of their son, Mr and Mrs van Wyk agreed that Mr. van Wyk would assume primary responsibility for taking care of their son as soon as possible after the birth, since Mrs. van Wyk had two businesses to run. When Mr. van Wyk approached his employer with the request for paternity leave, he was informed that he was only eligible for 10 days’ paternity leave.

Given the potential financial ramifications that Mrs. van Wyk’s businesses would suffer if she were to take four consecutive months’ maternity leave, Mr. van Wyk opted to take extended unpaid leave of six months from his employer.

This led to Mr and Mrs van Wyk approaching the High Court for an order declaring Section 25 of the BCEA invalid and inconsistent with the Constitution and for a declaration to be suspended for a period of 24 months from the date of declaration to allow Parliament to correct the defects.

 The constitutional challenge rested on three grounds, namely that:

(a) the differentiation between mothers and fathers in section 25 serves no legitimate governmental purpose and is irrational;

(b) if it indeed serves any legitimate governmental purpose, it nevertheless amounts to unfair discrimination with no justification; and

(c) section 25 is in any event offensive to the dignity of parents as it prescribes the manner in which families may be legitimately structured and it deprives parents of the fundamental choice of how they may nurture their own children.

The High Court found that the differentiation between fathers and mothers amounted to unfair discrimination, specifically regarding the duration of entitled leave. That Court held that the case should not focus on delinquent fathers but should determine whether fathers generally have an opportunity to participate in child nurturing in the early stages of childhood.

The High Court held further that it is unfair for the mother to be deemed the primary caregiver when the burden of childcare should be equally shared with the father.

The High Court thus made a declaration of constitutional invalidity with a reading-in to safeguard the rights of parents and children during the two-year suspension period.

On 2 October 2025, the Constitutional Court confirmed the High Court’s finding of constitutional invalidity in respect of maternity and parental leave provisions of the BCEA.  However, the Court suspended the invalidity for 36-months to allow Parliament to enact remedial legislation.  In the interim, the Court ordered the following changes with immediate effect:

Universal Parental Leave:

All parents (whether biological, adoptive, and commissioning) are collectively entitled to four months and ten days of parental leave, to be shared as they choose.

Leave Sharing:

If both parents are employed, they must agree on how to divide the leave.  If they cannot agree, the leave is split as equally as possible. 

Adoption Age Cap Removed:

Adoptive parents of children of any age (as opposed to the previous restriction of 2 years old) are now eligible for parental leave. 

Single Employed Parent:

Where only one parent is employed, that parent is entitled to the full period of parental leave. 

Notification Requirements:

Employees are required to notify their employer in writing of their intended leave dates and return date at least four weeks in advance 

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