Introduction
On 3 October 2025, the Constitutional Court handed down a significant ruling 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 [2025] ZACC 20, substantially transforming South Africa’s legal framework governing parental leave.
Case Study
Mr Werner Van Wyk and Mrs Ika Van Wyk started this case. Mr Van Wyk wanted to be the primary caregiver of their newborn baby, as Mrs Van Wyk had two businesses and could not take 4 months of maternity leave. However, the law stated that Mr Van Wyk was only entitled to 10 days of paternity leave, while birth mothers were allowed 4 months of maternity leave. Unhappy with the situation, Mr and Mrs Van Wyk approached the High Court for an order declaring section 25 invalid and inconsistent with the Constitution.
The Constitutional Challenge rested on three grounds namely the differentiation between mothers and fathers in section 25 serves no legitimate governmental purpose and is irrational, if it indeed serves any legitimate governmental purpose, it nevertheless amounts to unfair discrimination with no justification and section 25 is in any event offensive to the dignity of parents as it prescribes the manner in which families may be legitimately structured and it deprives parents of the fundamental choice of how they may nurture their own children.
The Constitutional Court found that the Basic Conditions of Employment Act was unconstitutional. The laws were found to be unfair for several reasons including, that it wrongly assumed that women must always by the primary caregiver and that a father’s role is marginal, it denied parents the freedom to choose how they want to structure their family life and it was unfair to adoptive parents as these parents were given only 10 weeks leave for children adopted under the age of two.
Making a firm move toward equality, the court mandated immediate measures that both employers and employees must implement. The court, however, has given Parliament 36 months to revise the legislation formally. Under these new measures, parents are now collectively entitled to 4 months and 10 days of parental leave. Parents can choose how to share this time, or, if they cannot agree, the leave must be divided in half between them. Even though leave can be shared, birth mothers are still protected, as they still have the right to leave for the weeks immediately before and after the birth. Adoptive parents are now also entitled to leave regardless of the age of the child they are adopting.
Conclusion
The Constitutional Court’s decision marks a transformative moment in South African labour and constitutional law. By declaring the existing provisions unconstitutional, the court affirmed the principles of equality, dignity and freedom of choice in family life. The judgment recognises that caregiving responsibilities should not be predetermined by gender and that parents must decide how best to care for their children. This ruling strengthens constitutional protection for both parents and children and represents a significant step toward substantive gender equality in the workplace and at home.
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Zandrie Rademeyer | SchoemanLaw Inc
