On 3 October 2025, the Constitutional Court along with the friends of the Court made a decision on the reassessment on the issue of parental leave.
The Applicants’, Van Wyk and others, challenged the Minister of Labour and Employment on the constitutionality and validity of certain clauses of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Fund Act 63 of 2001 (UIF Act).
On 3 October 2025 a groundbreaking judgement on the matter of Van Wyk and Others v Minister of Employment and Labour (2024) 45 ILJ 194 (GJ) was heard at the Constitutional Court.
It was disputed by the Applicants’ that the laws which govern parental leave were against the Constitution wherein the rights to equality and dignity were infringed.
One would argue that parental rights and responsibilities should not be restricted to one class of parents, irrespective of gender, class, and race which is anchored in the Bill of Rights.
What was the law at the time?
- Biological birth mothers who gave birth were allowed four months of maternity leave.
- Fathers and non-birthing parents (like adoptive or surrogate parents) were only allowed 10 days of parental leave.
- Adoptive and commissioning parents (those using surrogates) got 10 weeks of leave, but only if the child was under two years old.
It was argued by the parties that the system was prejudicial. They argued that only mothers were treated fairly.
Mothers were considered as the only caregivers, whereas father’s and other types of parents were not considered.
The Court’s judgment
The Court went along with the parents’ request.
It was concluded that the current laws were unlawful due to the following reasons:
- It is an indirect bias against the fathers and other parents.
- It promotes gender stereotyping, which reaffirms that assuming children are the sole responsibility of the mother.
- There is a lack of thought or consideration in respect of the modern family structure, families with adoptive and same-sex parents.
What is the current situation?
Parliament has been given 36 (thirty-six) months to amend the laws. In the interim, provisional clauses have been put in place:
- Four months of leave can be apportioned between parents regardless of how they decide.
- A birthing mother must take six weeks off to recover.
- Employers must revise their leave policies to comply with the new regulations.
What is the significance?
This is a landmark development in South African Law as it focuses on gender equality and the rights of families.
- Fathers and other caregivers can spend more time with their newborns.
- The primary care of the child is no longer the burden of the birthing mother alone.
- Other parents, including fathers can now bond with their infants and children.
- All parents are properly acknowledged.
Closing remarks
The Van Wyk case places all parents on the same platform regardless of gender, race and class.
Parents can now be involved in the lives of their children from the beginning and responsibilities can now be shared.
Written by Ms Meli Deborah Kabwa, Candidate Legal Practitioner, under supervision of Ms Manisha Maganbhai-Mooloo, Head of Litigation, Pretoria.