The Constitutional Revolution Underway in Van Wyk and Others v Minister of Employment and Labour (CCT 308/23)
A Moment of Constitutional Reckoning
A seismic shift may be coming to how South Africa understands maternity, parental, and caregiving rights. The case Van Wyk and Others v Minister of Employment and Labour (CCT 308/23)—heard in early November 2024—puts at stake assumptions embedded in our labour framework.
For employers, HR practitioners, and policy-makers, this is not a passive moment. The way you design leave policies, manage equity, and communicate with staff may soon come under a new constitutional standard. In this article, we unpack:
- What Van Wyk challenges
- The High Court’s interim ruling and basis
- The Constitutional Court’s key deliberations
- Risks and opportunities for employers
- Concrete steps you can take now
What Van Wyk Is About
At the heart of the litigation is a challenge to how the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund (UIF) legal provisions treat different classes of parents. The clauses under scrutiny include:
- BCEA: sections 25, 25A, 25B, 25C (maternity, parental, adoption, commissioning-parent leave)
- UIF Act: sections 24, 26A, 27, 29A (parental leave benefit entitlements)
The applicants contend that these provisions violate the constitutional guarantees of equality (section 9) and dignity (section 10) because they:
- Favor biological mothers over fathers or non-birthing parents
- Distinguish between adoptive, biological, and commissioning parents in leave rules
- Rely on outdated assumptions that caregiving should default to the mother
Applicants include Werner and Ika Van Wyk, Sonke Gender Justice, and the Commission for Gender Equality. The respondent is the Minister of Employment and Labour. Amicus curiae support comes from human rights organizations, advocacy groups, and academic institutions.
The High Court Ruling & Interim Remedy
Core Findings
On 25 October 2023, the Gauteng High Court held that the challenged leave provisions were constitutionally invalid insofar as they permitted unfair differentiation. The court concluded:
- Limiting non-birthing parents to lesser leave amounts amounted to unfair discrimination
- The legal framework incorrectly presumed that only mothers fulfill caregiving roles
- The current legal design was incompatible with constitutional values of equality and human dignity
Interim Reading-In Remedy
Rather than nullify the legislation outright, the court suspended the invalidity order for two years, allowing Parliament time to remedy the defects. Meanwhile, it read in a temporary measure: all qualifying parents should have four consecutive months of parental leave, freely allocable between parents (subject to notice to the employer).
This judicial fix aims to balance constitutional demands with legislative practicalities until a permanent legislative solution is enacted.
Debates and Uncertainties
- Some argue that this interim model reduces dedicated maternity leave for biological mothers.
- The judgment did not fully map out how the shared leave splits would work—part-time, block splits, adoption, surrogacy, etc.
- Employers are left navigating grey areas: Do they adopt the four-month model now? Do they maintain legacy maternity policy?
What the Constitutional Court Will Weigh
In the hearing on 1 November 2024, the Constitutional Court must decide whether to:
- Confirm the High Court’s invalidity and the interim reading-in
- Modify the remedy—perhaps lengthening, restricting, or revising the four-month model
- Set aside parts of the judgment if deemed overly intrusive into legislative design
Key areas under the court’s scrutiny will include:
- Equality and discrimination principles: Must differentiation be scrapped entirely or only adjusted?
- Role of the courts versus Parliament: How much “reading in” is permissible constitutionally before crossing into legislative territory?
- Child interests and family structures: Will a shared model serve bonding, stability, and child welfare?
- Complex family scenarios: Adoption, surrogacy, same-sex parents, step-parents—all demand clarity in any ruling
If confirmed, the High Court’s remedy may become binding, or serve as a floor upon which Parliament must build.
Implications for Employers & HR
Policy & Documentation
You may need to overhaul or redesign leave policies to align with a gender-neutral, flexible leave framework. Legacy maternity clauses may be challenged.
Financial & Operational Planning
Greater flexibility may lead to increased leave usage, needing more robust staffing plans, temporary coverage, shift planning, and budget adjustments.
Administrative Complexity
Handling leave elections, block splits, notice periods, adoption or surrogacy leave, and role transitions will require revamped HR systems and workflows.
Legal Exposure
Until clarity arrives, inconsistent leave practices or favoritism could spawn disputes or claims of discrimination or unfair treatment.
Employee Relations
Transparent communication will be critical. Employees affected by changes must feel the policy is fair, not arbitrary. Engaging them now fosters trust.
What Employees Stand to Gain
- More Equal Leave: Non-birthing parents, adoptive or commissioning parents may gain leave parity.
- Choice & Dignity: Parental leave becomes a flexible right rather than a rigid maternal default.
- Structural Reform: The case challenges dated norms around caregiving and gender roles.
- Transitional Ambiguity: Until the final ruling, employees may hesitate—clear interim policies help guide expectations.
What You Should Do Now (Before Final Judgment)
1. Audit Your Current Leave Policies
Compare your policies to the interim reading-in model (4 months shared leave), and flag inequitable distinctions or gaps.
2. Model Scenarios
Simulate multiple leave allocations (mother-first, father-first, split blocks) to assess cost, resource impact, and operational feasibility.
3. Communicate Proactively
Brief your leadership team and staff on the case. Explain your intent to adapt pending final judgment, solicit input, and reassure continuity.
4. Stay Vigilant
Watch the Constitutional Court’s judgment closely. Be ready to pivot and update leave policies promptly post-judgment.
5. Seek Expert Advice
Engage labour law professionals to interpret the final ruling, update contracts, and ensure your policies remain constitutionally compliant.
Why Van Wyk Matters to You
This is not a maternity leave case alone.
Van Wyk questions longstanding assumptions about caregiving, equality, and the employer’s role in supporting families. A decision in favour of equality may ripple across employment law—from contracts to benefits to dispute resolution. Those who act early—auditing, communicating, and systematizing flexibility—will avoid scrambling for compliance later.
The best time to prepare is before the ruling lands. Companies that proactively align with constitutional values and employee expectations will gain trust, retain talent, and reduce legal risk.
Call to Action
If you want help reviewing your leave policies, adapting contracts, or structuring parental leave models ahead of judgment, Labour Law with Luzan is here for you. Our Leave Policy + Contracts Package can future-proof your operations. Visit our services page at luzan.co.za to get started.
