Landmark Judgment: Constitutional Court Confirms Equal Parental Leave for All Parents

In a historic judgment, the Constitutional Court confirmed that South Africa’s parental leave framework under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund Act (UIF Act) is unconstitutional for unfairly discriminating against fathers, adoptive parents, and commissioning parents. The Court’s decision in Van Wyk and Others v Minister of Employment and Labour and Others marks a fundamental shift in parental leave rights, ensuring equality for all parents regardless of gender or type of parenthood.

Background to the Case

The case originated in the Gauteng High Court in 2023. Mr. Van Wyk, whose wife was self-employed, sought to become the primary caregiver of their newborn child but was limited to only 10 days of parental leave. The High Court declared sections of the BCEA and UIF Act unconstitutional, as they granted four months of maternity leave only to birth mothers, while adoptive, commissioning, and fathers were entitled to far shorter periods. This, the Court ruled, violated constitutional rights to equality and dignity.

Legal Facts Considered

• Challenge: Sections 25, 25A, 25B, and 25C of the BCEA differentiated leave entitlements for birth mothers, fathers, adoptive parents, and commissioning parents.

• Discrimination: The leave regime entrenched gender stereotypes that mothers must be primary caregivers while fathers’ caregiving role was marginal.

• Constitutional Rights Breached: The framework impaired dignity (section 10) and equality (section 9) by denying parents equal opportunity to share childcare responsibilities.

• Previous Case Law: The Court referenced MIA v State Information Technology Agency (Pty) Ltd (2015), where a commissioning father was recognised as entitled to parental leave, affirming principles of equality and best interests of the child (section 28 of the Constitution).

Constitutional Court’s Findings (October 2025)

The Constitutional Court agreed with the High Court, holding that:

• The BCEA and UIF Act provisions unfairly discriminate between mothers and fathers, and between biological, adoptive, and commissioning parents.

• The denial of equal leave is unconstitutional and invalid.

• Equality in parenting is central to dignity, gender neutrality, and the best interests of children.

• Interim relief is necessary to ensure rights are immediately protected.

Interim Relief and Effective Date

• Equal parental leave: With immediate effect, any two parents may share a total of four consecutive months of parental leave, regardless of whether they are birth, adoptive, or commissioning parents in surrogacy.

• Medical recovery preserved: Birth mothers remain entitled to six weeks’ obligatory medical leave post-childbirth, independent of the shared parental leave entitlement.

• Suspension of invalidity: The declaration of invalidity is suspended for two years to allow Parliament until October 2027 to amend the BCEA and UIF Act accordingly.

Employer Response Required

Employers must act immediately to comply with the Constitutional Court’s order:

• Update parental leave policies to reflect that four months’ leave may be shared between parents in any family structure.

• Ensure UIF and payroll practices accommodate the interim relief standard.

• Avoid discriminatory practices in approving parental leave requests, as failure may give rise to unfair discrimination claims under the Employment Equity Act.

• Adjust employment contracts, HR policies, and internal communication to align with the ruling.

Why This Judgment Matters

This ruling represents a watershed moment in South African labour law, aligning parental leave with constitutional values of equality, dignity, and non-discrimination.

It:

• Promotes gender equality in the workplace by recognising both parents as caregivers.

• Reduces stereotypes that women are the default caregivers.

• Strengthens child welfare by promoting early involvement of both parents.

• Aligns South Africa with progressive international standards on family-friendly employment practices.

The "suspension of invalidity"

This finding means that while the Constitutional Court has declared the parental leave provisions in the BCEA and UIF Act unconstitutional and invalid, the effect of that invalidity is postponed for a set period—in this case, two years—so Parliament can fix the unconstitutional legislation. However, during this suspension period, the Court typically provides "interim relief" to ensure people's constitutional rights are not infringed while Parliament is working on new legislation.

So:

• Employers must comply with the Court's interim order immediately and allow any two parents to share four months of leave, as set out by the Constitutional Court.

• The suspension does not mean employers can ignore the ruling or keep applying the old law. Instead, it means the unconstitutional provisions officially remain on the books for two years, but must be implemented as modified by the Court’s order during this time.

• If Parliament fails to amend the law within the two years, then the declaration of invalidity comes into full effect, and the old law falls away entirely.