Age cap unconstitutional: How the ConCourt parental leave ruling affects adoptive parents

In a judgment handed down in October 2025, the Constitutional Court ushered in a new era for parental leave, grounded in equality, dignity and the evolving realities of modern families. The Court confirmed that the country’s parental leave laws, long anchored in traditional gender roles, are unconstitutional. The judgment affirms the rights of fathers, parents in same-sex relationships, and adoptive and commissioning parents.

By Sibusiso Dube, Layla Shah, and Jessica Rushmere

13 Oct 2025

Image source: Freepik

One of the most significant aspects of the judgment was the Court’s treatment of the age cap for adopted children. Under the previous law, adoptive parents were only entitled to parental or adoption leave if the child was under the age of two. The Commission for Gender Equality challenged this provision, arguing that older adopted children also require time to bond and adjust to their new families.

While the High Court did not find the age capping unconstitutional, the Constitutional Court agreed with the Commission, finding that the age cap amounted to unfair discrimination based on age, a prohibited ground under section 9(3) of the Constitution.

Landmark ConCourt ruling on parental leave and what it means for employers

3 Oct 2025

It noted that older children may, in fact, need more support and time with their new parents, and that the lack of leave for parents adopting older children could discourage such adoptions.

The Court accepted that, in principle, an age cap may be justified, but it was not convinced that two years was an appropriate cap and declared the current cap to be unconstitutional. It was not, however, clear to the Court what a reasonable cap should be and this was left for the Legislature to determine. No measures were put in place by the Court in this regard and until the Legislature has resolved the constitutional defect, the old position remains.