On 3 October 2025, the Constitutional Court handed down a landmark judgment in Van Wyk & Others v Minister of Employment and Labour (CCT 308/23), confirming that sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”), which regulate maternity leave, parental (paternity) leave, adoption leave, and commissioning parental leave, and the corresponding provisions of the Unemployment Insurance Act 63 of 2001 (“UIF Act”) are invalid and inconsistent with the Constitution.
The Constitutional Court found that these provisions amounted to unfair discrimination as the statutory regime treated fathers, adoptive and commissioning parents as lesser classes of parents.
Background
The case was brought by Werner and Ika van Wyk, together with Sonke Gender Justice and the Commission for Gender Equality, who challenged the constitutionality of the BCEA and the UIF Act’s leave provisions. The applicants argued that the legislative framework unfairly restricted fathers to only ten days of parental leave and ten weeks for adoptive and commissioning parents, while granting mothers four months of maternity leave.
The Constitutional Court’s findings
The Constitutional Court found that the impugned provisions of the BCEA and the UIF Act perpetuated the assumption that mothers should be the primary caregivers of children. This assumption, the Constitutional Court found, undermines gender equality and the dignity of different classes of parents.
The Constitutional Court confirmed that all parents, regardless of gender, sex, marital status, or the method by which they become parents, are entitled to equal parental leave.
Specifically, both parents are now entitled, in total, to four months and ten days of parental leave, which they may share between them in a manner that suits their family circumstances.
The Constitutional Court also struck down the two-year age cap on adoption leave in section 25B of the BCEA finding it to be unconstitutional. The Constitutional Court reasoned that all adopted children, irrespective of age, require a period of adjustment and bonding with their adoptive parents.
Interim reading-in of the BCEA
Recognising that Parliament requires time to amend the legislation, the Constitutional Court suspended the declaration of invalidity for thirty-six months, during which time the BCEA provisions will operate with an interim “reading-in” to give immediate effect to the Constitutional Court’s ruling.
Pending remedial legislation, the BCEA must be read as follows:
- The existing four months of maternity leave for biological mothers is retained but extended to include fathers, adoptive and commissioning parents.
- Where only one parent is employed, that parent is entitled to the full period of parental leave.
- In cases of biological birth, the mother has preference for leave needed for pre-birth preparation and post-birth recovery. Subject to this, parents may share the leave entitlement as they agree. If they cannot agree, the leave must be apportioned equally between them as far as possible.
- The same four months and ten days’ leave applies to adoptive parents and commissioning parents (in surrogacy arrangements).
Practical implications
This judgment represents a fundamental shift in South African labour law, ushering in a new era of equal parenting rights and shared responsibilities.
For parents, the decision promotes flexibility, equality, and shared caregiving, allowing families to determine how best to divide parental leave in line with their needs. It further recognises that caregiving and bonding are not determined by gender, sex, or marital status.
For employers, the implications are significant. Although the Constitutional Court suspended the declaration of invalidity for thirty-six months to give Parliament time to amend the BCEA and the UIF Act, employers must align existing leave policies to comply with the Constitutional Court’s interim reading-in, as it has immediate effect. This is likely to have significant cost implications for employers who had previously offered paid maternity benefits, since they would now need to consider the cost involved for allowing other persons to obtain similar benefits for parental leave.
For assistance in reviewing or amending your organisation’s parental leave policies in light of this decision, please contact our employment law team.
