This article aims to let the reader understand what the Van Wyk and Others v Minister of Employment and Labour case is about, and what it means for you. We will look at the facts of the case, the issue(s) before the court, the laws that were declared unconstitutional by the High Court, and the conclusions by both the High Court and the Constitutional Court.
This case involves several parties, including applicants, respondents, and amici curiae (friends of the court). For the sake of simplicity, we will first focus on the applicants and respondents and then focus on the points that were raised by the different friends of the court.
In this case, Mr and Mrs Van Wyk (the Van Wyks), a married couple, before the birth of their son, had agreed that Mr Van Wyk would take care of their newborn child. He then approached his employer to request four months of paternity leave, but was denied because only women who have given birth qualify for four months of maternity leave, and he would only qualify for the 10 days of paternity leave as stated in section 25A of the Basic Conditions of Employment Act (BCEA). Mr Van Wyk then proceeded to take the unpaid and extended 6 months paternity leave to take care of their son. It is important to note that the reason why the husband was to take care of their newborn was that Mrs Van Wyk had businesses that would suffer financially if she were to be absent from them for 4 months.
The Van Wyks and Sonke Gender Justice (Second Applicant) approached the High Court to declare that the provisions in the BCEA, specifically under section 25 and sections in the Unemployment Insurance Act 63 of 2001, are unconstitutional and therefore invalid because these laws currently benefit the biological mothers more than any other category of mothers, and more especially fathers.
Section 25 of the BCEA was challenged on three grounds:
(i) that the differentiation between mothers and fathers serves no legitimate governmental purpose and is irrational;
(ii) they amount to unfair discrimination with no justification; and
(iii) they are offensive to the dignity of parents as they prescribe the way families may be legitimately structured, depriving parents of the fundamental choice of how they may nurture their own children.
Now we need to understand in-depth what exactly was being challenged by the applicants with regard to section 25 of the BCEA. It is also important to note that these three grounds are interrelated.
First, it was argued that the differentiation between mothers and fathers lacked any legitimate governmental purpose and was therefore irrational. Section 25 granted birth mothers four months of maternity leave, while other parents, including fathers, were limited to significantly shorter periods of leave. The applicants contended that this distinction did not rationally advance any legitimate state objective, particularly considering evolving societal norms recognising the shared responsibilities of parenting.
Second, the applicants argued that the differentiation amounted to unfair discrimination in violation of the right to equality. The statutory scheme privileged birth mothers over other categories of parents, including fathers, adoptive parents, and commissioning parents, both in terms of access to leave and its duration. This, they contended, entrenched gender-based stereotypes regarding caregiving roles and could not be justified under the Constitution.
Third, it was submitted that section 25 infringed the dignity of parents. By prescribing that mothers should assume the primary caregiving role, the provision effectively dictated how families ought to be structured. This deprived parents of the autonomy to determine for themselves how to raise and nurture their children, thereby undermining their dignity and freedom to make fundamental family decisions.
In the second application, Sonke Gender Justice and the Commission for Gender Equality (Fourth Applicant) sought similar relief, but with a particular focus on categories of parents beyond biological mothers and fathers, namely adoptive and commissioning parents in surrogacy arrangements. Central to this aspect of the challenge was section 25B of the BCEA, which limits adoption leave to parents of children under the age of two. It was argued that this provision creates an unjustifiable distinction between adoptive parents based solely on the age of the child, thereby amounting to unfair discrimination. The applicants emphasised that all adopted children, regardless of age, require care, support, and adjustment upon entering a new family environment, and that this need does not meaningfully diminish as the child grows older. On this basis, they proposed a reading-in remedy that would remove the words “below the age of two” from the provision.
The challenge to section 25B of the BCEA raises a particularly compelling instance of how ostensibly neutral legislative distinctions can entrench substantive inequality. By limiting adoption leave to parents of children under the age of two, the provision draws an arbitrary line that fails to reflect the lived realities of adoptive families. As argued by Sonke and the Commission for Gender Equality, the assumption underpinning the provision, that younger children require greater care upon placement, lacks both evidential and normative justification. Older adopted children may, in fact, face more complex emotional and developmental challenges, thereby requiring equal, if not greater, parental support. In this light, the age-based limitation appears not only underinclusive but also irrational in its differentiation.
In response, the Minister argued that the BCEA had already undergone amendment through the consultative framework established by the National Economic Development and Labour Council (NEDLAC), reflecting a form of negotiated social consensus. It was further submitted that matters relating to employment benefits are inherently tied to questions of public resources and budgetary allocation. As such, these issues, the Minister contended, are more appropriately dealt with through legislative and policy processes, rather than judicial intervention, to avoid courts encroaching on the domain of the legislature.
The Minister’s reliance on the NEDLAC process and concerns regarding institutional competence reflect a familiar separation of powers argument, emphasising judicial restraint in matters implicating resource allocation. However, this position is not without difficulty. While courts are rightly cautious in entering terrain traditionally reserved for the legislature, deference cannot extend to the point of tolerating clear constitutional infringements. The High Court’s rejection of the cost-based justification is therefore significant. It affirms the principle that financial implications, though relevant, cannot operate as a blanket defence where legislation unjustifiably limits fundamental rights. In doing so, the Court aligns with a broader constitutional commitment to substantive equality, recognising that formal distinctions, such as age thresholds, must be interrogated for their real-world impact. Ultimately, the proposed reading-in remedy represents a proportionate and constitutionally coherent response, as it removes the discriminatory element without unduly intruding on the broader legislative framework.
The High Court took the same approach when considering adoptive and commissioning parents in surrogacy arrangements. It found that there was no convincing reason why these parents should receive only 10 weeks of leave, while birth mothers are entitled to a longer period. In the Court’s view, this distinction could not be justified and undermined the principle of equality. As a result, it held that all categories of parents should be treated equally in terms of leave if the law is to reflect genuine fairness.
On this basis, the Court declared the relevant provisions of the BCEA unconstitutional, insofar as they unfairly differentiate between parents depending on how a child enters the family, whether by birth, adoption, or surrogacy. The Minister was also ordered to pay the costs of the application.
The Constitutional Court ultimately confirmed the High Court’s declaration of invalidity, holding that the statutory scheme governing maternity and parental leave unjustifiably differentiated between categories of parents. In doing so, the Court recognised that the framework of sections 25 to 25C of the BCEA, read together with the corresponding provisions of the UIF Act, failed to meet constitutional standards of equality and dignity. In particular, the limitation of adoption-related benefits to children under the age of two was found to be arbitrary and incapable of justification.
However, rather than striking down the provisions with immediate effect, the Court adopted a more cautious, institutionally sensitive approach by suspending the declaration of invalidity for 36 months. This reflects a clear awareness of the separation of powers, acknowledging that the redesign of a comprehensive parental leave regime, especially one with financial implications, falls primarily within the legislative domain. At the same time, the Court did not leave the matter unaddressed during this period. Through an interim reading-in, it reshaped the leave framework to better align with constitutional values, effectively transforming maternity leave into a more flexible, gender-neutral system of parental leave.
Under this interim regime, the existing four-month leave entitlement is retained but is no longer reserved exclusively for mothers. Instead, it may be shared between parents, with an additional 10 days’ leave included, thereby recognising both caregiving equality and the practical realities of parenting. Importantly, the Court preserved a limited preference for birth mothers in relation to the physical demands of pregnancy and recovery, while otherwise affirming parental autonomy in deciding how leave should be allocated. Where parents cannot agree, the leave must be divided as equally as possible, reflecting a commitment to substantive equality rather than rigid formalism.
Notably, the Court declined to impose a similar interim remedy in respect of UIF benefits, citing insufficient information regarding the financial and administrative implications. This restraint underscores the Court’s recognition of the limits of judicial competence in complex socio-economic matters. Instead, it imposed a reporting obligation on the Minister, thereby maintaining oversight while leaving the detailed restructuring of the benefits system to the legislative process.
Overall, the judgment reflects a careful balancing act: it firmly enforces constitutional rights to equality and dignity, while simultaneously respecting the role of Parliament in crafting sustainable and coherent policy solutions.
A natural question arising from this judgment is whether both parents may take leave at the same time. The answer is yes. Under the Court’s interim framework, parental leave is conceived as a shared entitlement, meaning that both parents may be on leave concurrently if they so choose. This reflects a significant shift away from the traditional model, allowing both parents to be present during the early stages of a child’s life. However, it is important to note that the leave is not duplicated. Instead, parents share a combined total of four months and ten days, which they may divide between themselves in a manner that best suits their family circumstances.
This leads to a further question: how exactly is this leave divided? The Court makes it clear that parents have autonomy in deciding how to allocate the leave. They may choose to take it simultaneously, consecutively, or through a combination of both approaches. This flexibility allows families to tailor caregiving arrangements according to their specific needs, whether that involves both parents being present at the same time or ensuring continuous care over a longer period.
Another practical concern is what happens if the parents cannot agree on how to divide the leave. In such instances, the Court provides a default position: the leave should be apportioned as equally as possible between the parents. This reinforces the principle of substantive equality, ensuring that neither parent is automatically prioritised over the other in the absence of agreement.
Finally, it is important to recognise that the Court preserves a limited distinction in favour of birth mothers. Due to the physical demands of pregnancy and childbirth, mothers retain priority over the portion of leave necessary for pre-birth preparation and post-birth recovery, including the mandatory six-week recovery period. Beyond this, however, the remaining leave is to be shared equally and flexibly, marking a decisive move towards recognising both parents as equal caregivers.
Ultimately, the significance of this case extends far beyond the confines of statutory interpretation and into the everyday realities of family life. By recognising that caregiving is not the sole domain of mothers, the Court affirms a more modern and inclusive understanding of parenthood, one that acknowledges both men and women as equal participants in the nurturing of children. This shift has tangible consequences: it enables fathers to be present during the critical early stages of a child’s life, supports shared parenting responsibilities, and relieves the disproportionate burden historically placed on mothers. Equally important is the Court’s recognition of adoptive and commissioning parents, whose roles have often been marginalised by rigid legislative frameworks. By extending equal protection and benefits to these parents, the judgment validates diverse family structures and ensures that all children, regardless of how they enter a family, receive the care and support they need. In this sense, the decision is transformative; it not only corrects legal inequality but also reshapes societal expectations around parenting, promoting dignity, autonomy, and substantive equality within the home.