On 3 October 2025, the Constitutional Court, in a unanimous judgment, confirmed the constitutional invalidity of various sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act) relating to maternity and parental leave.
The case began when, prior to the birth of their son, the Van Wyks agreed that Mr van Wyk would assume primary caregiving responsibilities so that Mrs van Wyk could continue running her two businesses. When Mr van Wyk requested four months of parental leave from his employer, his request was refused.
The Van Wyks, together with advocacy group Sonke, approached the High Court to challenge the constitutionality of the BCEA and the UIF Act. They argued that the current legal framework provides disproportionate benefits to biological mothers while placing fathers and other categories of parents at a significant disadvantage. In their view, the parental leave regime entrenches gender inequality in caregiving roles, fails to reflect modern family structures and unfairly burdens men who wish to take on primary caregiving responsibilities.
Consequently, the High Court declared the impugned sections of the BCEA unconstitutional to the extent that they unfairly discriminate between categories of parents and based on whether children were born of the mother, conceived by surrogacy or adopted.
Before the Constitutional Court, the Van Wyks sought an order confirming the High Court decision. The Constitutional Court confirmed the declaration of constitutional invalidity of the impugned provisions.
It found that the provisions of the BCEA and UIF Act infringe on fathers’ dignity by marginalising their role as parents and depriving families of the freedom to structure caregiving responsibilities. The Court further found that the laws unfairly place the burden of childcare primarily on birth mothers, entrenching them as the default parent, while diminishing the role of adoptive and commissioning parents in the early stages of their children’s lives. In addition, the provisions create unequal treatment among adoptive parents based on the age of the children they adopt, and discriminate between adopted children themselves by affording different recognition and benefits depending on their age.
The declarations of constitutional invalidity are suspended for 36 months to allow Parliament an opportunity to remedy the constitutional defects. In the interim, the impugned provisions of the BCEA must be read to allow parental leave to be shared between parents. Where only one parent is employed, that parent is entitled to the full parental leave.
