Equal parental leave ruling Constitutional Court reshapes the law

In a historic judgment, the Constitutional Court confirmed that South Africa's parental leave framework under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund Act (UIF Act) is unconstitutional for unfairly discriminating against fathers, adoptive parents, and commissioning parents.

- John Botha | Joint CEO | Global Business Solutions | [e-mail] |

The Court's decision in Van Wyk and Others v Minister of Employment and Labour and Others [1] marks a fundamental shift in parental leave rights, ensuring equality for all parents regardless of gender or type of parenthood. The judges emphasised that equality in parenting is central to dignity, gender neutrality, and the best interests of children, and that interim relief was necessary to ensure these rights are immediately protected.

This ruling is a watershed moment for both South African families and the world of work. By declaring the current regime unconstitutional, the Court has ensured that parental leave is no longer tied to outdated gender stereotypes but to principles of equality, dignity and the best interests of the child.

Constitutional Court's findings

The Court agreed with the High Court, holding that provisions of the BCEA and UIF Act unfairly discriminate between mothers and fathers, and between biological, adoptive and commissioning parents.

The denial of equal leave was declared unconstitutional and invalid.

The judges emphasised that equality in parenting is central to dignity, gender neutrality, and the best interests of children, and that interim relief was necessary to ensure these rights are immediately protected.

Interim relief and effective date