ConCourt Gives All Parents a Fair Share of Leave

Werner and Ika van Wyk wanted to do something simple: share the care of their newborn. But South African law had other plans. While Ika was entitled to four months of maternity leave, Werner – as the father – was granted just ten days. That discrepancy became the basis of a constitutional challenge that would reshape parental leave across the country. (Van Wyk and Another v Minister of Employment and Labour and Others, 2025)

In October 2025, the Constitutional Court ruled in their favour, granting all parents – regardless of gender or family structure – equal access to shared parental leave. It was a victory not just for the Van Wyks, but for every family that doesn’t fit the traditional framework.

How It Started

A married couple from Gauteng, Werner and Ika van Wyk, wanted to share the first months of caring for their newborn. Taking a four-month break wasn’t an option for Ika, so Werner offered to take leave in her place. However, the Basic Conditions of Employment Act (BCEA)   only granted ten days of parental leave to fathers. With the support of Sonke Gender Justice   and the Commission for Gender Equality (CGE) , the Van Wyks challenged sections 25, 25A, 25B and 25C of the BCEA, as well as sections 24, 26A, 27 and 29A of the Unemployment Insurance Act (UIF) , alleging that these provisions discriminated against adoptive parents, commissioning parents, and fathers (CGE, 2023).

As a result, the Gauteng Division of the High Court declared these sections unconstitutional in 2023 for violating the rights to equality and dignity (Gauteng High Court, 2023) .Because only the Constitutional Court can confirm constitutional invalidity, the judgment was sent to the higher court for confirmation – a safeguard ensuring that lower courts cannot unilaterally invalidate legislation. In October 2025, the Constitutional Court confirmed the invalidity, upheld the High Court’s ruling, and gave Parliament 36 months to amend the applicable legislation. (Constitutional Court of South Africa, 2025).

What the Court Decided

With all its complexity and application, the ruling issued interim guidelines that allow parents to schedule four months and ten days of leave however they choose – concurrently or sequentially – heralding a more inclusive era in family policy (Tshiqi, 2025). Justice Zukisa Tshiqi noted that South Africa’s parental-leave laws have long perpetuated the assumption that women should be the primary caregivers of their children, while excluding fathers, adoptive parents, and commissioning parents.

In its decision, the Court asserted that all parents must be treated equally in law and in practice because unequal treatment violated the constitutional rights to equality and dignity. Adoptive and commissioning parents are now entitled to parental leave, with the previous age restriction on adoptive children removed, allowing them the same length of time off as biological parents.

Additionally, the Unemployment Insurance Fund (UIF) must adjust its benefit plan so that both parents can receive income replacement during their chosen leave period  (Department of Employment and Labour, 2025). The BCEA also retains the six-week medical-recovery period for birth mothers – a non-negotiable safeguard for maternal health, even under shared leave.

A Notable Victory

At its heart, this ruling levels the playing field of care. It recognises that a child’s wellbeing depends not on who gave birth but on who is present. As explained by the Commission for Gender Equality (CGE) (2025), it affirms that all parents should be treated equally.

Additionally, it reflects global labour norms – echoing Scandinavian models where flexible shared leave has long been linked to stronger family bonds and narrower gender-pay gaps (OECD, 2023) . Beyond aligning with global standards, this judgment embodies African jurisprudence – a philosophy of law that emphasises dignity, community, and Ubuntu  (HSRC, 2024) . By redefining caregiving as a shared social responsibility, the Court reclaims care from the margins of “women’s work.”

Family in Africa is often defined beyond the nuclear unit, making this ruling fitting for a continent where interconnectedness is a way of life. It is, in every sense, a victory for modern Africa – a demonstration that constitutionalism and cultural identity can coexist.

The Equality and Equity Debacle

Every victory has its quiet collateral, and perhaps birth mothers are the ones asked to adjust the most. While equality in caregiving is a welcome step, the new framework raises a practical question: how do we ensure that birth mothers’ recovery needs remain fully protected within the shared-leave period?

Even as the Minister of Employment and Labour  acknowledged that the provisions were unconstitutional, she cautioned that any reform should not infringe the rights of birth mothers (Nxesi, 2025). As Parliament refines the BCEA in the next three years, it may need to create clearer distinctions between recovery and shared care to ensure that equality does not erode equity.

Across social media and community spaces, some birth mothers expressed discomfort, worrying that shared leave might reduce essential recovery time. Their concerns are not misplaced – pregnancy and recovery are deeply physical experiences that cannot simply be averaged into a neutral framework.

Moreover, this legislation alone will not transform the culture of parenting in South Africa. There is no legislative way to mandate care, but laws can compel fairness. In a country where nearly 60 percent of children grow up without their biological fathers (Statistics South Africa, 2021)  , it can nevertheless start a conversation – a necessary one – about gender roles, responsibility, and fatherhood. In that sense, it is an invitation: not for men to celebrate entitlement, but to unlearn, relearn, and show up differently.

As the Human Sciences Research Council (HSRC) noted, this ruling has the potential to reshape South Africa’s system of rewarding output over care, recognising the significant social and economic value of caregiving (HSRC, 2024). Over the next few years, we will see whether employers make space for both parents to participate equally, or whether these rights remain symbolic on paper.

Closing

This ruling is a welcomed development that reflects the intersectional nature of our social realities in South Africa and across the continent. It offers a long-overdue correction to the idea that women alone should be primary caregivers, challenging deep-seated gender norms and inviting a broader re-imagining of care. Beyond legal reform, it will inevitably become a conversation starter – socially and corporately – about what shared responsibility truly means.

The responsibility now shifts to Parliament, which must translate this judicial directive into enforceable legislation – a process that will require careful consideration of financial implications, structural adjustments, and technical timelines. At the same time, workplaces across all sectors will need to re-examine their policies, finding a balance between genuine inclusion and operational sustainability (Department of Employment and Labour, 2025) .

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References

Commission for Gender Equality (CGE). (2025). Press Statement on Parental Leave Ruling. Retrieved from https://www.cge.org.za/press-statement-on-parental-leave-ruling-october-2025

Department of Employment and Labour. (2025). Media Statement on Constitutional Court Ruling on Parental Leave. Retrieved from https://www.labour.gov.za/parental-leave-judgment-media-statement-october-2025

Gauteng Division of the High Court. (2023). Van Wyk and Another v Minister of Employment and Labour and Others (Case No. 28107/21). Retrieved from https://www.saflii.org/za/cases/ZAGPPHC/2023/889.html

Human Sciences Research Council (HSRC). (2024). The Value of Care Work in South Africa: Policy Brief. Pretoria: HSRC. Retrieved from https://www.hsrc.ac.za/publications/2024/value-of-care-policy-brief

Organisation for Economic Co-operation and Development (OECD). (2023). Parental Leave Systems and Gender Equality Report. Retrieved from https://www.oecd.org/gender/parental-leave-systems-and-gender-equality.htm

Statistics South Africa. (2021). General Household Survey 2021. Pretoria: Stats SA. Retrieved from https://www.statssa.gov.za/publications/P0318/P03182021.pdf

Tshiqi, Z. (2025). Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (2025) ZACC 20. Constitutional Court of South Africa. Retrieved from https://www.concourt.org.za/index.php/judgement/617-a-werner-van-wyk-and-others-v-minister-of-employment-and-labour-b-commission-for-gender-equality-and-another-v-minister-of-employment-and-labour-and-others

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About the author:

Aphelele Mtwecu is a content writer, activist, and creative force passionate about youth development, transformation, and social impact. She is deeply committed to advocating for mental health and working to remove the stigma around mental health. She is also committed to creating more safe spaces for young people to engage. As a 2016 Activator and member of the ACTIVATE! Change Drivers writer’s hub, Aphelele, uses her writing to inspire and advocate for positive change.