Introduction
In our previous article, ‘Some parents will no longer be more equal than others’ , we discussed the High Court’s judgment in van Wyk and Others v Minister of Employment and Labour (2024) 45 ILJ 194 (GJ) which declared certain provisions of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) and the Unemployment Insurance Fund Act 63 of 2001 (“UIF Act”) unconstitutional. The matter has now reached the highest court in the land. On 3 October 2025, the Constitutional Court confirmed the order of constitutional invalidity, cementing South Africa’s commitment to equality, dignity and inclusivity in the world of work for all parents.
The Constitutional Court’s decision marks a pivotal step, albeit a complicated one, in ensuring that the law recognises and supports diverse family structures, affirming that all parents – regardless of gender, biological connection and/or method of parenthood, are entitled to equal benefits conferred by statute.
Background
In the High Court, the applicants challenged the BCEA’s parental leave provisions for unfairly discriminating between different categories of parents. First, the High Court addressed the issue of commissioning and adoptive parents being granted only a ten-week period of leave, while a birth mother received sixteen weeks. The Court acknowledged that although a birthing mother requires time for physiological recovery, there was no fair reason to deny other parents the additional six weeks of leave simply because they did not undergo childbirth.
Second, the High Court dealt with the issue relating to the BCEA affording ten days of parental leave to the “other parent” not on maternity, commissioning, or adoptive leave. The Court found that this created an unequal status, reinforcing the perception of one parent as the primary caregiver and the other as playing a secondary, “ancillary” role.
Constitutional Court’s Findings
The Constitutional Court confirmed the High Court’s declaration that sections 25 and 25A, 25B and 25C of the BCEA (and related UIF provisions) are unconstitutional for unfairly discriminating between different categories of parents. The Court held that the law’s current design entrenched outdated gender roles, undermining the rights to equality and dignity. However, the Court suspended the declaration of invalidity for a period of 36 months to allow Parliament sufficient time to amend the legislation. During this period, an interim regime will apply to ensure immediate relief and promote seemingly equitable treatment.
Accordingly, all parents – whether biological, adoptive, or commissioning – collectively qualify for four months and ten days of parental leave, which may be shared between them as they choose. Where both parents are employed, they are expected to reach agreement on how to divide this period, and if they are unable to do so, the leave is to be split as equally as possible. Single parents and those where only one parent is employed, are eligible for the full leave period regardless of their sex or gender.
The Constitutional Court further clarified that female employees may commence parental leave up to four weeks before the expected date of birth, or earlier if medically necessary. The law remains that no female employee may work within six weeks after giving birth, unless medically certified fit to do so. Both these periods forms part of the overall parental leave allocation and must be taken consecutively.
Practical and Policy Implications for Employers
This judgment has immediate and far-reaching consequences not only for employees, but for employers as well. The interim regime is immediately enforceable and therefore employers must now ensure that their workplace policies align with the Court’s interim framework. The decision extends statutory parental leave entitlements to all parents, regardless of gender, biological connection, or family structure.
Employers should take proactive steps to bring their internal policies and procedures in line with the new legal position and determine whether any pay will be provided to parents as they may historically have done for maternity leave. Clear internal procedures should also be introduced to guide the management of shared or overlapping parental leave, particularly where both parents are employed within the same organisation or industry as well as ensure that any practices relating to pay are not discriminatory.
Failure to implement these changes may expose employers to claims for unfair labour practices, unfair discrimination or non-compliance with the BCEA. Naturally, with this will come the risk of reputational damage as well.
Broader Significance and the way forward
Beyond its immediate practical impact, the judgment is a profound affirmation of equality and dignity in South African employment law. It recognises the evolving nature of families and the importance of shared parenting responsibilities. By extending parental leave to all parents, the Court has moved the country closer to a workplace culture that values caregiving and dismantles gender stereotypes.
Parliament now has 36 months to craft legislation that codifies these inclusive principles. There is a hope that the legislature will look beyond the current construct and seek to balance the interests of parents, economic considerations and most importantly, that of the child.
In the meantime, employers play a vital role in modelling progressive practices and ensuring that their policies mirror the constitutional vision of fairness and equality.
As South Africa’s labour framework continues to evolve, this decision reminds us that equality at home is integral to equality at work. Employers and policymakers alike must now give life to this constitutional promise.
