On 3 October 2025, the Constitutional Court of South Africa handed down a precedent judgment in Van Wyk and Others v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20, reshaping how parental leave is understood, implemented, and shared in the workplace.

The Court declared that specific provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) were inconsistent with the constitutional right to human dignity entrenched in section 10 of the Constitution. The ruling builds upon the foundation laid by the Johannesburg High Court in Van Wyk v Minister of Employment and Labour (2024) 45 ILJ 194 (GJ). It signals a decisive step towards gender equality, inclusivity, and fairness in South Africa’s labour framework.

The Case that Changed the Conversation

The case originated when Mr Van Wyk, an employee, requested four months’ consecutive paternity leave after he and his wife agreed that he would assume primary caregiving responsibilities for their newborn son. His employer refused, citing the BCEA, which only entitled fathers to ten days of parental leave. This refusal became the catalyst for a constitutional challenge that would fundamentally question traditional assumptions about gender, caregiving, and work.

For centuries, maternity protection laws centred on birth mothers alone, reflecting outdated cultural norms that positioned women as the default caregivers. However, as Deputy Judge President Roland Sutherland observed in the High Court, these distinctions no longer align with South Africa’s constitutional values. He held that granting only ten days to fathers “speaks to a mindset that regards the father’s involvement in early parenting as marginal.” Similarly, shorter leave periods for adoptive or commissioning parents could not be justified merely because they did not experience childbirth.

The Constitutional Court agreed, noting that parenthood takes many forms: Birth, adoption, surrogacy, or other arrangements, and that the law must reflect this diversity. Limiting leave based on gender or biological experience unfairly penalises families for their personal choices and intrudes on their private lives.

The Constitutional Court’s Findings

Writing for a unanimous bench, the Court affirmed that the right to parental leave must be interpreted through the lens of dignity, equality, and freedom of choice within the family unit. The Court found that the BCEA’s provisions were constitutionally invalid to the extent that they:

  • Limited birth mothers to four months’ maternity leave but granted fathers only ten days’ parental leave;
  • Provided shorter leave to adoptive and commissioning parents; and
  • Failed to recognise the right of parents to determine who the primary caregiver should be.

The Court noted that these distinctions entrenched gender stereotypes by assuming that women are always the primary caregivers and that men’s role in early child-rearing is secondary. Such assumptions, the Court held, are incompatible with South Africa’s constitutional commitment to substantive equality.

The Judgment and Interim Remedy

Pending the enactment of remedial legislation, the Constitutional Court ordered an interim amendment to the impugned provisions of the BCEA to ensure immediate relief. The Court directed that the current allowance of four months, previously reserved exclusively for biological mothers, be retained but extended to include fathers and other parents. In addition, the existing ten days of parental leave contemplated in section 25A should remain available, resulting in a total of four months and ten days’ leave that may be shared between parents as they choose.

Where only one parent is employed, that parent will be entitled to the full parental leave. In cases of biological birth, however, the mother retains preference over the portion of leave required for physical preparation and recovery. Subject to this qualification, parents may determine the division of leave between themselves. In the event of disagreement, it must be apportioned so that each parent’s total leave is as close as possible to half of the four months and ten days.

A father wishing to take parental leave must qualify as one who has assumed parental rights and responsibilities in terms of the Children’s Act 38 of 2005.

In respect of Unemployment Insurance Fund (UIF) benefits, the Court declined to issue an interim amendment, noting that it lacked sufficient data on how benefits are calculated and distributed, and that a provisional order might carry unintended financial consequences. Instead, the Court directed the Minister of Employment and Labour to submit a report within six months before the expiry of the 36-month suspension period, detailing how the UIF framework will be restructured to align with the new shared parental leave regime.

The ruling is immediately binding on employers and employees regarding how parental leave under the BCEA must now be applied. UIF benefits, however, remain governed by the old UIF Act provisions until Parliament amends them, as the Court specifically declined to make an interim UIF reading-in due to financial and administrative complexities. Employers must thus accommodate these shared leave arrangements, as per the Court’s ruling.

From Equality in Principle to Equality in Practice

While this ruling represents a milestone for gender equality, it also introduces new practical challenges for employers. Organisations must now review and adapt internal leave policies to align with the ruling, ensuring that all categories of parents – biological, adoptive, commissioning, and surrogate – are treated equally.

To give effect to this change, employers should:

  • Revise internal policies to reflect the shared parental leave entitlement.
  • Ensure equitable treatment regardless of gender, marital status, or biological role.
  • Train managers and HR personnel on the new rights and entitlements to avoid inconsistency.
  • Prepare for UIF and administrative challenges, especially in more complex family structures such as adoption or polygamous marriages.
  • Balance operational demands through strategic workforce planning to accommodate shared leave arrangements.

While some employers may fear potential misuse of the flexible leave structure, these concerns can be mitigated through clear internal guidelines, documentation protocols, and transparent HR verification processes.

A Broader Commitment to Equality

This judgment, alongside another 2025 Constitutional Court ruling affirming men’s right to adopt their spouse’s surname, reflects South Africa’s continued evolution toward genuine gender equality. Together, these cases confirm that equality is not just a constitutional promise; it is a living, enforceable standard that must be reflected in both policy and culture.

However, progress also reveals the need for legislative alignment. The BCEA, Labour Relations Act (LRA), and related frameworks must now be amended to avoid contradictions and ensure consistency across South Africa’s employment law.

The Takeaway

The Van Wyk judgment is more than a legal victory; it’s a cultural shift. It challenges old norms and affirms that caregiving is not a gendered responsibility but a shared human one.

For employers, it’s a call to adapt. For policymakers, it’s a reminder to reform. And for South Africans, it’s a powerful statement that equality and dignity in family life are not privileges, but constitutional rights.

 

Tips:

  • Revise Internal Policies Immediately – Update your parental leave policy to reflect the shared leave entitlement.

Ensure it clearly outlines how leave can be allocated between parents, including biological, adoptive, commissioning, and surrogate parents. This prevents confusion, ensures compliance, and demonstrates a commitment to equality.

Train Managers and HR Teams – Educate your HR staff and line managers on the new parental leave rights. Make sure they understand that leave allocation is flexible and decided by the parents, not dictated by gender or role. This will help avoid disputes, inconsistent treatment, or unintended discrimination.

Article by Hemanth Haricharan & Ernest Masupye

Dispute Resolution Official & Senior Collective Bargaining Co-Ordinator at Consolidated Employers Organisation (CEO SA)