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.
The Court’s decision in Van Wyk and Others v Minister of Employment and Labour and Others marks a fundamental shift in parental leave rights, ensuring equality for all parents regardless of gender or type of parenthood.
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 By declaring the current regime unconstitutional, the Court has ensured that parental leave is no longer tied to outdated gender stereotypes but to principles of equality, dignity, and the best interests of the child.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.
Wessel Van Den Berg 27 Dec 2023 Interim relief and effective date
With immediate effect, the Court ordered that:
- Equal parental leave: Any two parents, regardless of gender or parenthood type (birth, adoptive, or commissioning in surrogacy), may now share a total of four consecutive months of parental leave.
- Medical recovery preserved: Birth mothers remain entitled to six weeks of compulsory medical leave post-childbirth, in addition to the shared parental leave arrangement.
- Suspension of invalidity: While the provisions of the BCEA and UIF Act remain formally “on the books”, Parliament has until October 2027 to bring them in line with the Constitution. Until then, employers must comply with the Court’s interim order. In practice, this means the suspension is a grace period for Parliament - not for employers, who must implement the revised standard immediately.
Why it matters
This decision goes beyond legal technicalities. It represents:
- Gender equality in the workplace: For the first time, fathers and non-birth parents are recognised as equal caregivers, breaking away from deeply entrenched stereotypes.
- Workplace transformation: Employers must urgently update policies, contracts, payroll, and UIF systems to align with the ruling — failure to do so may amount to unfair discrimination under the Employment Equity Act.
- Better outcomes for children: Research consistently shows that children thrive when both parents are actively involved from birth. This ruling puts children’s welfare at the centre.
- Alignment with international standards: South Africa now moves closer to progressive global norms that promote family-friendly workplaces and gender equality.
The employer imperative
Employers cannot afford to take a “wait and see” approach. Compliance is required now.
That means:
- Updating HR and parental leave policies immediately.
- Training line managers and HR staff to apply the ruling fairly and consistently, ensuring no discriminatory practices in approving leave requests.
- Adjusting employment contracts, UIF and payroll practices to reflect the new parental leave framework.
- Communicating clearly with employees to prevent confusion or disputes.
The cost of ignoring the ruling is not just legal risk. It also affects employer branding, employee morale, and talent retention in an era where inclusivity and flexibility are key to attracting top talent.
The bigger picture
South Africa’s Constitutional Court has once again confirmed its role as a global leader in rights-based jurisprudence. This judgment redefines family life in South Africa, rebalances workplace responsibilities, and underscores that transformation is not just about race or gender in the boardroom, but about how society recognises and values caregiving.
Employers, policymakers, and civil society now face the challenge - and the opportunity - of ensuring that equality in law translates into equality in practice.
