A landmark judgment delivered on 3 October 2025 by the Constitutional Court of South Africa has reshaped the legal landscape governing employment and family rights. In Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20, the Court declared several provisions of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) and the Unemployment Insurance Act 63 of 2001 (“UIF Act”) invalid and inconsistent with the Constitution in that they unfairly discriminate between different classes of parents.

The matter arose when Mr van Wyk, an employee, requested four months of paternity leave from his employer so that he could be the primary caregiver to his newborn son. His wife, Mrs van Wyk, ran two businesses and could not extend time off work. However, the employer refused Mr van Wyk’s request, citing the BCEA’s provisions that only entitled fathers to 10 days of parental leave. To find a solution, Mr van Wyk decided to take six months of unpaid leave to support his family. This, however, negatively affected his household finances and career prospects.

Aggrieved by this inequality, the Van Wyks challenged the leave provisions of the BCEA and related UIF Act, for an order declaring section 25 and 25A - 25C of the BCA to be invalid and unconstitutional. The applicants argued that the BCEA’s differentiation between mothers and fathers was irrational, amounted to unfair discrimination, and violated the Constitutional rights to equality and dignity. They contended that the current legal framework unjustly dictates the manner in which families must be structured, depriving parents of the freedom to choose how they may nurture their own children. The High Court found that it is unfair for the mother to be deemed the primary caregiver when the burden of childcare should be equally shared with the father, considering that parenting is sui generis (unique) in nature. The Court further held that the shorter leave period afforded to non-biological parents, such as adoptive and commissioning (surrogate) parents, had no reasonable explanation or legitimate governmental objective.

In a unanimous judgment, the Constitutional Court confirmed that the BCEA and UIF provisions unfairly discriminated on the basis based on gender and human dignity. The Court found that these laws granted preferential treatment to biological mothers over other parents, thereby perpetuating the outdated notion that women must be the primary caregivers, while fathers play a secondary role.

The Court found that while it is legitimate to protect the health of birth mothers before and after childbirth, fathers should also be afforded the allowed to actively participate in the early nurturing period of the child, preceding the mother’s recovery stage. 

In the unanimous judgment, the Court further addressed the discrimination against adoptive and surrogate parents, who were limited to only 10 weeks of adoption leave or 10 consecutive days of parental leave under the BCEA. The Court found this limitation unconstitutional, holding that it diminishes the role of non-biological parents and reduces the recognition of their responsibilities as compared to biological parents. 

The Court also struck down the BCEA’s restrictions that only parents adopting a child under the age of two years qualify for adoption leave, finding this irrational and inconsistent with the constitutional rights of both parents and children. After all, adopted children, regardless of age, deserve time to bond and adjust to their new family environment.

The Court suspended its declaration of invalidity of these provisions for 36 months to allow Parliament time to amend the legislation. However, in the interim, the law will apply as follows:

1. The existing four months of leave remain, but it is now available to either parent and is to be referred to as parental leave. 
2. Parents may share the total of four months and 10 days of parental leave between themselves as they choose.
3. In cases of disagreement between the parents, the leave must be split as equally as possible.
4. The mother retains the preference to take leave during the period required for her recovery and preparation for birth.
5. Fathers seeking to claim leave must demonstrate that they have assumed parental rights and responsibilities in terms of the Children’s Act 38 of 2005.

With regards to the UIF Act, the Court refrained from imposing immediate changes to the UIF benefits system, citing potential financial implications, leaving this issue for the Legislature to resolve.

This judgment signifies the end of gender-based parental roles in employment law. The Constitutional Court’s decision redefines parenthood in the context of constitutional rights, equality, and human dignity. It paves the way for a more inclusive and equitable society, where families and not laws decide how to care for their children.

In light of this judgment, employers are expected to:  

1. Update employment contracts and policies regulating parental leave.
2. Update collective agreements regulating parental leave to align with this Constitutional Court judgment.
3. Employers’ failure to comply with the amendments could be construed as a contravention of the BCEA and unfair discrimination.