High Court Rules Parental Leave Provisions Unconstitutional


In the case of Van Wyk and Others v The Minister of Employment and Labour, the High Court has made a significant ruling regarding the constitutionality of certain provisions related to parental leave in South Africa. These provisions were outlined in the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF Act), affecting maternity, parental, adoption, and commissioning parental leave. The court’s decision revolves around the discrimination between mothers and fathers in these provisions, which it found offensive to the principles of the Constitution.

Examination of the Facts

The applicants in this case are Werner and Ilka Van Wyk, a married couple with a child. Sonke Gender Justice, an organisation advocating for gender equality, and the Commission for Gender Equality (CGE) also participated as applicants. The respondent is the Minister of Labour, responsible for the BCEA. Mr. Van Wyk is a salaried employee, while Mrs. Van Wyk runs her own business. They faced a unique situation where Mrs. Van Wyk needed to return to her business quickly to prevent it from failing, making Mr. Van Wyk the primary caregiver for their child.

Court’s Findings

The core issue before the court was the alleged unconstitutionality of sections 25, 25A, 258, and 25C in the BCEA, which address maternity and parental leave. The argument presented was that these sections are unconstitutional because they unfairly discriminate against parent-employees, violating the equality (section 9) and dignity (section 10) provisions of the South African Constitution.

The contested sections differentiate between three categories of children: those born of a mother, those born through surrogacy, and adopted children. Moreover, they differentiate between mothers and fathers, as well as between birthmothers and other parents. The logic behind these provisions assumes that one parent is a primary caregiver, and the other is ancillary, leading to a four-month maternity leave for birthmothers.

The court ruled that providing only ten days of leave to fathers implies a mindset that marginalizes the father’s role in early parenting, which is offensive to the constitutional principles of dignity. The BCEA did not account for family models like the Van Wyks’, which are consistent with constitutional norms. Consequently, the court declared the sections in the BCEA to violate sections 9 and 10 of the Constitution and called on Parliament to address the inequalities.

The court’s immediate solution to eliminate inequality, during an interim period, is to propose that all parents, regardless of their situation, enjoy four consecutive months of parental leave, to be shared as they see fit.

The court directed parliament and the legislature to address the unconstitutional provisions of the BCEA and the UIF Act within a period of two years.


The Van Wyk case has declared certain provisions in the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act unconstitutional. These provisions unfairly discriminated between mothers and fathers, and between different types of parents and children. The court found that the discrimination impaired the dignity of fathers and was inconsistent with the South African Constitution. To rectify this, the court proposed equalizing parental leave for all parents, allowing them to share four months of leave as they choose. This decision is a significant step toward promoting gender equality and addressing discrimination in parental leave policies in South Africa.

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