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On the 3rd day of October 2025, a ground breaking judgement was delivered in the Constitutional Court in Van Wyke and Others v Minister of Employment and Labour [2025] ZACC 20, where both parents and their right to parental leave was redefined.
The case was brought about by Mr. Werner Van Wyke, who was initially entitled to ten days of paternity leave. He accordingly, requested four months of parental leave in order to care for his newborn baby. The leave was denied by his employer, citing a policy which restricted maternity leave to mothers only.
The Constitutional Court confirmed the High Court’s judgment on the constitutional invalidity in terms of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund’s (UIF) maternity and parental leave.
The court further suspended the invalidity for a period of 36 months, to allow for the necessary amendments to be enacted by Parliament.
INTERIM ARRANGEMENTS
- Universal Parental Leave
Both mothers and fathers are now entitled to four months and ten days of parental leave, with the option of this leave being shared between them.
- Adoptive Age Cap Removed
Adoptive parents to children of any age are now entitled to parental leave.
- Pregnancy and Post-Birth Leave
Female employees who are due to give birth are entitled to parental leave from four weeks before the expected birth, or earlier, should it be medically deemed. Female employees are further not to work six weeks after giving birth unless medically deemed to.
- Single Employed Parent Household
In the instance of one parent being employed, that parent is entitled to the full four months parental leave.
- Adoption and Surrogacy
Adoptive parents are entitled to parental leave upon confirmation of the adoption by a court order. Commissioning parental leave shall commence on the date of birth stated under the surrogate agreement.
WHAT THIS MEANS FOR EMPLOYERS
This judgment moves away from gender-specific "maternity" and "paternity" leave, allowing parents (fathers, mothers, adoptive, and commissioning parents) to be treated equally. Employers should not discriminate, not only to fathers but to various parents and shift towards gender equality. Employers now have the task of reviewing their employment and leave policies as they are now expected to extend parental leave to all employees, regardless of gender.
MOVING FORWARD WITH AMENDING EMPLOYMENT POLICIES
Van Deventer and Van Deventer Incorporated welcomes this new landmark change in our constitutional dispensation as it provides various diverse groups of parents the choice to be entitled to parental benefits of the same nature. Our attorneys at Van Deventer and Van Deventer Incorporated are ready to assist employers by ensuring their employment policies are compliant with this new constitutional requirement.