A New Dawn for Parental Equality
Today marks a pivotal moment for South African families and workplace equality. On 3 October 2025, the Constitutional Court delivered a historic ruling: key sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act have been declared unconstitutional and invalid.
This decision stems from the Van Wyk and Others v Minister of Employment and Labour case, in which long-standing discriminatory provisions around parental and maternity leave were challenged. For too long, law has treated different classes of parents unfairly—granting significantly more leave to biological mothers than fathers, adoptive parents, or commissioning parents in surrogacy arrangements.
By recognizing that this legal disparity violated dignity and equality, the Court rewound decades of default assumptions, sending a strong message: parenthood, not gender, must guide leave rights.
What the Constitutional Court Decided
Declaration of Unconstitutionality
The Court affirmed that the BCEA and UIF provisions being challenged did indeed amount to unfair discrimination. The rules that privileged biological mothers—and left others with lesser entitlements—were inconsistent with constitutional rights to dignity and equality.
36-Month Suspension for Parliament
Rather than creating legal chaos, the Court suspended the invalidity order for 36 months, giving Parliament a window to redraft and pass new legislation that aligns with constitutional principles.
Interim, Immediate Adjustments
While full legislative reform takes time, the Court mandated interim changes to parental leave provisions effective immediately. This ensures that some equality gains begin now, rather than waiting years for Parliament to act.
Although the precise details of the interim regime are still being analyzed, the ruling signals that the era of unequal parental leave is officially over.
Why This Matters: Implications & Opportunities
For Employers & HR Teams
- Policy overhaul is imperative: Existing maternity or parental leave policies must be revised to reflect equality.
- Prepare for legislative change: Your templates, systems, and workflows need flexibility.
- Interim compliance: Start aligning to the interim changes the Court ordered—not waiting passively.
- Employee communication is key: Explain the ruling and your plan to adapt to build trust.
For Employees & Parents
- Greater access to leave: Fathers, adoptive parents, and commissioning parents can expect fairer entitlements.
- Choice & dignity in parenting: Leave becomes less about biology and more about real caregiving roles.
- Transitional clarity needed: Some ambiguity remains until Parliament enacts updated laws.
What Employers Should Do Immediately
- Review your leave policies to identify gendered or discriminatory terms
- Model scenarios using prospective interim leave provisions
- Communicate transparently with your workforce about anticipated changes
- Consult legal advisors to align future contracts, handbooks, and systems
- Monitor Parliamentary updates so you’re ready to implement new laws swiftly
Beyond Parental Leave: Case Spotlight on Employment Equity
In parallel, the High Court (Gauteng) ruled on NEASA and Sakeliga v Minister of Employment and Labour (28 August 2025), upholding new sectoral equity targets. This further emphasizes how high the stakes are for employers: policy, equality, and compliance will converge.
That means your responsibility is not only to pay or grant leave—your entire employment strategy must align with evolving constitutional and equity norms.
Conclusion: Change Is Now Mandatory
The Constitutional Court’s ruling in Van Wyk is not just a legal footnote—it’s a transformational moment for work, family, and equality in South Africa. By invalidating discriminatory leave provisions and demanding interim reforms, the Court has made clear: the assumption that mothers are primary caregivers can no longer stand in law.
Employers who respond proactively—by auditing, planning, communicating, and adjusting—will emerge ahead of the curve, protected legally and aligned with the future workplace norms.
If you need support updating your parental leave policies, contracts, or HR systems post-decision, Labour Law with Luzan is here to help. Visit luzan.co.za to explore our tailored services.
