Constitutional Court Redefines Parental Leave in South Africa

Introduction

On 3 October 2025, the Constitutional Court of South Africa delivered a historic judgment in Werner van Wyk and Others v Minister of Employment and Labour (CCT 308/23) and Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 309/23). The Court confirmed that provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF) dealing with maternity, parental, adoption and commissioning parental leave are unconstitutional because they unfairly discriminate on the basis of gender and parenthood.

The Court’s ruling acknowledges that the current statutory framework entrenched outdated gender roles, limited the rights of fathers, adoptive parents and commissioning parents, and undermined the constitutional rights to equality and dignity. While the declaration of invalidity was suspended for two years to give Parliament time to amend the law, interim measures were ordered to ensure parents already enjoy greater flexibility in leave entitlements.

Background to the Case

The matter began in the Gauteng High Court when Werner and Ika van Wyk challenged the constitutionality of the BCEA’s parental leave provisions. In October 2023, the High Court held that sections 25, 25A, 25B and 25C of the BCEA, together with certain UIF provisions, unfairly differentiated between birthing and non-birthing parents, between mothers and fathers, and between biological, adoptive and commissioning parents.

Although the High Court accepted that birthing mothers require maternity leave for physical recovery, it found that the statutory framework discriminated against other parents by granting them significantly less leave. This, the Court ruled, violated the constitutional rights to equality and dignity. The High Court suspended the declaration of invalidity for two years to allow Parliament to act, but it also granted interim relief which allowed parents to share four months of leave regardless of gender or the way in which the child joined the family.

Because this was a constitutional matter, the High Court’s ruling required confirmation by the Constitutional Court. At the same time, the Commission for Gender Equality approached the Constitutional Court directly, arguing for even broader reform that would grant each parent equal entitlements.

The Constitutional Court’s Findings

The Constitutional Court confirmed the High Court’s declaration of invalidity. It held that the BCEA and UIF provisions entrenched stereotypes by assigning the caregiving role exclusively to mothers while relegating fathers and other parents to the role of secondary caregivers. This, the Court said, amounted to unfair discrimination that infringed both the right to equality in section 9 of the Constitution and the right to dignity in section 10.

The Court acknowledged that maternity leave for birthing mothers remains justifiable for purposes of recovery, but found that this limited need did not justify excluding other parents from equitable caregiving rights. The Court therefore ruled that the statutory scheme was unconstitutional in its current form.

To prevent legal uncertainty and disruption, the Court suspended its declaration of invalidity for two years. During this suspension, interim measures introduced by the High Court will remain in place, with slight modifications. These measures allow parents to allocate or share leave in a flexible way that better reflects the needs of the child and the caregiving arrangements chosen by the family. The Court also granted the Commission for Gender Equality partial leave to appeal and ordered the Minister of Employment and Labour to pay the costs of the applications.

Implications for Parents

The judgment is a watershed moment for South African parents. It confirms that caregiving responsibilities should be shared equally and that non-birthing parents, including fathers, adoptive parents and commissioning parents in surrogacy arrangements, are entitled to meaningful parental leave. The Court’s recognition of caregiving as work affirms that both parents should be supported in participating equally in the upbringing of their children.

In practical terms, the interim relief allows parents more flexibility in how they arrange their leave entitlements until Parliament enacts permanent reforms. This may encourage families to adopt more balanced parenting roles and dismantle the traditional assumption that mothers are the default caregivers.

Implications for Employers

For employers and HR practitioners, the decision requires careful review of existing workplace policies. Payroll systems, leave administration processes and internal policies will need to adjust to accommodate the flexible interim regime. Employers should also prepare for the statutory reforms that Parliament will introduce within the next two years.

This judgment emphasises the importance of treating employees fairly and equally in relation to family responsibilities. Employers who fail to align their policies with the new legal reality may face challenges in implementing leave or risk claims of unfair discrimination.

Implications for Parliament

Parliament now has the task of reforming the BCEA and UIF to create a constitutionally compliant parental leave scheme. The Court’s ruling provides guidance but leaves it to the legislature to design a system that accommodates both the recovery needs of birthing mothers and the constitutional rights of all parents. This will likely require careful consultation, consideration of comparative models from other jurisdictions, and balancing between affordability, administrative feasibility and the best interests of children.

Broader Constitutional Significance

The judgment is not only about labour law but also about advancing South Africa’s commitment to substantive equality. It sends a clear message that the law may not reinforce stereotypes or limit rights based on outdated gender roles. By restructuring the parental leave framework, the Court has moved closer to realising equality and dignity in family life and in the workplace.

Conclusion

The Van Wyk and CGE cases represent a decisive step in reshaping South Africa’s parental leave framework. By declaring the BCEA and UIF provisions unconstitutional, the Constitutional Court has recognised that caregiving is a shared responsibility that should not be divided along rigid gender lines. Parents, employers and lawmakers must now adapt to a new reality in which equality and dignity guide family and workplace arrangements.

This ruling opens the door to a future where mothers, fathers, adoptive parents and commissioning parents stand as equal partners in caregiving, and where South African labour law reflects the constitutional promise of fairness and equality for all.

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