Justice Tshiqi leaves an indelible mark in law after 21 years on the bench

From a small village in Cefane, eNgcobo in the Eastern Cape, Justice Zukisa Tshiqi, 65, never imagined she would one day help shape constitutional law at the highest court in SA.

One of her major judgments before retirement is now changing how South African families share time with their newborns.

The Constitutional Court ruling in the Van Wyk v Minister of Employment and Labour matter declared parts of the country’s maternity and paternity leave laws unconstitutional, paving the way for a more equal system of parental leave for mothers, fathers, adoptive parents and commissioning parents.

The court found that the existing law unfairly discriminated against fathers by limiting them to only 10 days of leave while mothers received four months. It also found that adoptive and surrogate parents were treated unequally and that the system reinforced outdated assumptions that women must be the primary caregivers.

Justice Tshiqi says the case stood out because it directly touched the daily realities of families.

“They were very important issues I had to deal with. I was looking at parental rights and the rights of children. I had to make sure the order was clear and could be understood by people who are going to use it,” she says.

The court suspended its declaration of invalidity for 36 months to allow parliament to amend the law. In the meantime, it introduced an interim solution: parents are now entitled to a combined four months and 10 days of parental leave, which they can share between themselves in any arrangement they choose.

For Tshiqi, the judgment reflected not only legal reasoning but also the evolving nature of family life in SA.

Born and raised in a rural community where opportunities for women were limited, Tshiqi says becoming a judge was never part of her original plan.

“I was raised at a time and in a community where women were housewives and had no careers beyond the household. Even my own mother lived that life. I thought that would be my fate too,” she says.

However, Tshiqi says, her mother strongly valued education and encouraged her children to study.

“My mother wanted me to become a medical doctor, but I struggled with mathematics. It was my brother who suggested I consider law instead. So I took his advice.”

Starting her legal journey before 1994, Tshiqi says she entered a profession where black judges were almost nonexistent.

“There were very few black judges, even after that period. I never counted myself as someone who would become one of them one day. It was a victory for women in a space that was previously male-dominated,” she says.

She specialised in labour and commercial law and rose through the judicial ranks, serving at the Johannesburg High Court, then the Supreme Court of Appeal (SCA) in Bloemfontein, before being appointed to the Constitutional Court in 2019.

She describes her early days in the high court motion court as intimidating, with busy court rolls and experienced advocates appearing daily before her.

“The motion court was the most challenging. I had many advocates in my court every day. It was intimidating at first,” she says.

She adds that the SCA was “tough but transformative”, noting efforts by senior judges at the time to improve the institution.

By the time she reached the Constitutional Court, she had already gained the experience and confidence needed for the role.

After 21 years on the bench, Tshiqi says her decision to retire was guided by timing and exhaustion.

“I could still work and still enjoy the work, but it is retirement time. I am 65. I am also tired,” she says.

She adds that she draws inspiration from former president Nelson Mandela’s belief in stepping down at the right time.

“You must leave while your sun is still shining. Don’t wait until you can no longer do the work. That would be an injustice to the people,” she says.

Even though she is stepping away from full-time judicial duties, Tshiqi says she does not see retirement as the end of her working life.

“Judges don’t really retire. I will still do other work when it comes my way,” she says.