Introduction
In a landmark decision handed down on 3 October 2025, the Constitutional Court of South Africa ushered in a new chapter in the evolution of employment law and parental rights. In Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, the Court confirmed that South Africa’s existing parental leave regime was unconstitutional, finding that it unfairly discriminated among different categories of parents and entrenched outdated gender roles.
The judgment marks a decisive shift towards a more inclusive and egalitarian approach to family life, one that recognises that caregiving responsibilities belong not to mothers alone, but to all parents equally.
The Law before the Judgment
Before the Constitutional Court’s ruling, South Africa’s parental leave provisions were found primarily in sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), supported by corresponding provisions in the Unemployment Insurance Act 63 of 2001.
The statutory framework was deeply gendered. It granted birth mothers four consecutive months of maternity leave, while the “other parent”, most often a father, was afforded only ten days of parental leave. Adoptive parents could take ten weeks of leave, but only if the adopted child was under the age of two, and the other adoptive parent could take no more than ten days. Commissioning parents in a surrogacy arrangement were afforded similar rights: ten weeks for one parent and ten days for the other.
The logic underpinning this system was that maternity leave existed primarily to allow for the physiological recovery of birth mothers, whereas fathers and non-birthing parents had only ancillary roles to play in the early care of a child. This approach, while historically common, had become increasingly discordant with modern family structures, constitutional principles, and the lived realities of South African households.
As a result, fathers, adoptive parents, commissioning parents, and same-sex couples were all left with inadequate leave entitlements and little legislative recognition of their caregiving responsibilities.
The Constitutional Court’s Findings
The case was brought by Werner and Ika van Wyk, a married couple who had agreed that Mr van Wyk would assume primary caregiving responsibilities for their newborn child, as Mrs van Wyk was self-employed and ran two businesses. When Mr van Wyk requested four months’ parental leave from his employer, the request was denied on the basis that only women who had physically given birth qualified for maternity leave. The employer advised that he was entitled to only ten days of leave under section 25A of the BCEA. As a result, Mr van Wyk was forced to take six months of unpaid leave, significantly affecting his finances and career prospects.
Supported by Sonke Gender Justice and the Commission for Gender Equality, the Van Wyks challenged the BCEA and the UIF Act on the basis that the provisions unfairly discriminated on grounds of gender, family status, and the age of adopted children. They argued that the statutory regime deprived families of the freedom to decide who would assume primary caregiving responsibilities and imposed on them a state-sanctioned model of parenthood inconsistent with the Constitution.
The High Court agreed, declaring the impugned provisions unconstitutional. The matter then came before the Constitutional Court for confirmation of the order of invalidity. In a unanimous judgment, the Court endorsed the High Court’s findings, holding that the provisions violated both section 9 (the right to equality) and section 10 (the right to human dignity) of the Constitution.
The Court accepted that birth mothers have unique physiological needs before and after childbirth, but found that the BCEA’s differentiation went far beyond what was necessary to protect those needs. It entrenched harmful stereotypes by treating women as natural caregivers and men as secondary participants in childcare. In doing so, it marginalised fathers, same-sex partners, and parents who became caregivers through adoption or surrogacy.
Ultimately, the Court held that the existing framework created an unjustifiable hierarchy of parenthood and that the differentiation among various categories of parents could not survive constitutional scrutiny.
The New Legal Framework and Interim Measures
Recognising that immediate reform of the BCEA and UIF Act would require legislative intervention, the Constitutional Court suspended its declaration of invalidity for thirty-six months to allow Parliament time to amend the legislation. However, to prevent continued discrimination during this period, the Court introduced interim measures that took effect immediately.
Under this new interim regime, all parents, whether biological, adoptive, or commissioning, are entitled in total to four months and ten days of consecutive parental leave, which they may share between them in whatever manner they choose. If both parents are employed, they may agree to take the leave concurrently, consecutively, or in any other combination that suits their circumstances. If they cannot reach agreement, the leave must be divided as equally as possible. Where only one parent is employed, that parent is entitled to the full period of four months and ten days.
Pregnant employees retain the right to commence their leave up to four weeks before the expected date of birth, or earlier if medically necessary, and may not work for six weeks after the birth unless certified fit to do so. These periods form part of the overall parental leave entitlement.
Implications for Employers and Employees
The judgment has immediate and far-reaching implications for employers throughout South Africa. From the moment of its delivery, it became necessary for employers to review and, where required, overhaul their workplace policies, employment contracts, and human-resources practices to ensure compliance with the interim framework. Any reference in company policies to “maternity leave” and “paternity leave” should be replaced with the gender-neutral term “parental leave.” Policies that continue to limit fathers, partners, or non-birthing parents to ten days’ leave are no longer lawful.
At a practical level, employers will need to consider how to manage shared parental leave where both parents are employed, potentially by different employers. Procedures will have to be developed for verifying the apportionment of leave, preventing abuse, and confirming that an employee qualifies as a parent under the Children’s Act. Human-resources teams will need clear guidance and training on implementing the interim regime consistently and fairly.
For employees, the judgment represents an immediate expansion of their rights. Parents now have the freedom to determine who will assume the primary caregiving role, how long each will take leave, and whether they wish to take it together or separately. This flexibility acknowledges that modern families are diverse and that caregiving responsibilities can and should be shared in whatever way best supports the welfare of the child.
Implementation and the Legislative Path Ahead
Although the declaration of invalidity has been suspended for thirty-six months, the interim reading-in of the BCEA provisions has immediate effect. Employers cannot defer compliance until Parliament passes amending legislation. The period of suspension is designed not to delay implementation but to afford Parliament the opportunity to enact permanent reforms and to harmonise related provisions of the UIF Act.
By October 2028, Parliament is expected to introduce amendments that codify the new parental leave framework and provide clarity on UIF benefit entitlements. The Minister of Employment and Labour is required to report to the Constitutional Court by April 2028 on progress made towards this goal. If Parliament fails to act, the Court retains the power to grant supplementary relief to prevent the perpetuation of unconstitutional inequality.
Employers should regard the new framework as binding and operative. Failure to comply with the Court’s order could expose them to claims of unfair labour practice, discrimination, or non-compliance with the BCEA.
The Broader Significance
Beyond its legal and administrative consequences, the Van Wyk judgment represents a profound statement about equality, dignity, and the nature of modern parenthood. It acknowledges that caregiving is not a gendered function but a human one, and that the Constitution demands an employment framework that reflects this reality. By striking down provisions that privileged biological mothers and marginalised other parents, the Court has advanced the project of transformative constitutionalism—the ongoing effort to align South African law with the values of inclusion, diversity, and substantive equality.
The decision also signals a cultural shift. It invites employers, policymakers, and society at large to view parenting as a shared and flexible responsibility, not confined to traditional roles or assumptions. For many families, this will enable a more equitable division of childcare and allow both parents to participate meaningfully in the formative months of a child’s life. For children, it affirms the constitutional principle that their best interests are served by the active involvement of all their parents or caregivers, regardless of gender or biological connection.
Conclusion
The Constitutional Court’s decision in Van Wyk v Minister of Employment and Labour has transformed South Africa’s understanding of parental leave. It replaces a rigid, gendered framework with one that is flexible, inclusive, and grounded in equality. While Parliament has been given three years to enact formal legislative amendments, the Court’s interim regime applies immediately and has binding force. Employers must therefore act without delay to align their policies with the judgment and to ensure that no parent is denied equal opportunity to care for their child.
For further assistance, consult an attorney at SchoemanLaw.
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