The recent landmark judgment of the Constitutional Court in Van Wyk and Others v Minister of Employment and Labour [1] marks a significant shift in parental leave rights, ensuring equal and non-discriminatory treatment for all parents, regardless of gender or family structure.
Background of the Case
Mr and Mrs van Wyk challenged the existing parental leave framework under the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act). Mr van Wyk requested four months parental leave to care for their newborn son, as his wife was self-employed and needed to return to her own businesses. However, Mr Van Wyk’s employer denied the request, citing a policy that restricted maternity leave to birthing mothers, leaving him with only ten days’ parental leave.
Constitutional Court Judgment
On 3 October 2025, the Constitutional Court delivered a unanimous judgment declaring the existing parental leave provisions in the BCEA and UIF Act unconstitutional. The Court found that the legislative framework unfairly discriminated against fathers, adoptive parents, and commissioning parents by providing significantly shorter leave entitlements compared to birthing mothers.
Key Implications of the Judgment:
Universal Parental Leave: The court established that all parents biological, adoptive, and commissioning – are entitled to four months and ten days of parental leave, which can be shared as they choose.
Interim Arrangements: While the court confirmed the constitutional invalidity of the existing provisions, it suspended this invalidity for 36 months to allow Parliament to enact the remedial legislative changes. During this period, the new parental regime will apply.
Sharing Leave: If both parents are employed, they must agree on how to divide the leave. If they cannot reach an agreement, the leave will be split as evenly as possible.
Employers are advised to review and update their leave policies to avoid unfair discrimination by extending parental leave to all parents, regardless of gender or birthing status.
Should you require any more information, please contact Melanie Hart at melanie@bv-inc.co.za.
[1] [2025] ZACC 20
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.