On October 25, 2023, the Gauteng Division of the High Court of South Africa delivered a significant judgment in the case of Van Wyk & Others v The Minister of Employment and Labour. This legal challenge targeted sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA), governing maternity leave, parental leave, adoption leave, and commissioning parental leave.


The matter emanated from the a family’s utilization of maternity/parental leave, reflecting a common scenario in modern society. The husband, a salaried employee, and the wife, a business owner, faced challenges as the wife’s return to her trade after childbirth rendered traditional maternity leave impractical. This situation led to the husband taking unpaid extended leave under an ad-hoc agreement, without entitlement to UIF payouts.

Legal Challenge and Constitutional Compliance:

The court was tasked with determining whether sections 25, 25A, 25B, and 25C of the BCEA and corresponding provisions of the Unemployment Insurance Fund Act were invalid due to inconsistency with sections 9 and 10 of the Constitution. The key issue was the alleged unfair discrimination between mothers and fathers and between different sets of parents based on the circumstances of their children’s birth.

Judgment and Declaration of Unconstitutionality:

The court found the specified BCEA provisions invalid, emphasizing that they unfairly discriminated based on parental gender and the circumstances of a child’s birth, violating constitutional principles.

Implications for Employers and Interim Measures:

The court’s order did not automatically invalidate maternity and parental leave provisions, instead, the court suspended the invalidity for two years, allowing Parliament time to rectify the identified flaws. In the interim, temporary measures have been implemented, granting parents more flexibility in deciding how to allocate the four-month parental leave period.


The judgment introduces a progressive shift in parental leave entitlements, challenging the BCEA’s distinctions between parents. However, the legal force of this declaration is subject to confirmation by the Constitutional Court. If upheld, employers will need to adjust policies in accordance with the court-ordered interim provisions while awaiting legislative amendments. Potential issues, such as shared allocation of parental leave for pregnant women in committed relationships, may arise, necessitating careful consideration in subsequent legislation. For more information and guidance on employment and family law, please contact Schoemanlaw Inc.