When Ten Days Wasn’t Enough: The Van Wyks’ Journey to the Constitutional Court
The seed of this constitutional challenge was planted in the lived reality of a Johannesburg couple facing a choice no family should have to make. Werner and Ika van Wyk were expecting their first child. Mrs van Wyk operated two businesses, and the couple had made what seemed like a perfectly reasonable decision: Mr van Wyk, as an employee, would assume primary responsibility for caring for their newborn son, allowing his entrepreneurial wife to continue running her enterprises without the devastating financial impact that a four-month absence would entail.
When Mr van Wyk approached his employer to request four months’ consecutive paternity leave, he was met with an answer that would ultimately reshape South African labour law. He qualified for a mere ten days’ parental leave under section 25A of the Basic Conditions of Employment Act 75 of 1997 (the BCEA). Meanwhile, had Mrs van Wyk been an employee rather than a business owner, she would have been entitled to four consecutive months under section 25 of the BCEA. The stark arithmetic of inequality was inescapable: 120 days for mothers, 10 days for fathers.
Faced with this legislative straitjacket, Mr van Wyk made a choice that thousands of South African fathers before him had been forced to make. He took six months of unpaid leave. The decision came at considerable cost. The family’s finances suffered. His working conditions deteriorated. His career prospects dimmed. All because the law presumed, without justification, that mothers are and should be the primary caregivers of newborn children, and that fathers need only ten days to fulfil their parental responsibilities.
The Van Wyks refused to accept that this state of affairs was constitutionally sound. Together with Sonke Gender Justice, a non-profit organisation advocating for gender equality, they approached the High Court of South Africa, Gauteng Division, Johannesburg. They were later joined by the Commission for Gender Equality, a Chapter 9 institution established under the Constitution with a mandate to promote and protect gender equality. Their challenge was straightforward but far-reaching: the parental leave provisions in the BCEA discriminated unfairly between mothers and fathers, violated human dignity, and could not be justified in an open and democratic society based on human dignity, equality and freedom.
But the Van Wyks’ challenge went further. They questioned not only the disparity between mothers and fathers in traditional biological births, but also the treatment of adoptive parents and commissioning parents in surrogacy arrangements. Under section 25B of the BCEA, adoptive parents of children below the age of two years were entitled to either ten weeks’ adoption leave or the ten days’ parental leave. Under section 25C, commissioning parents in surrogacy agreements received similar treatment. Both categories of parents received substantially less leave than birth mothers, despite facing the same demands of early parenting and, in many cases, the added complexities of helping a child integrate into a new family.
Most troublingly, section 25B imposed an arbitrary age cap. Parents who adopted children aged two years or older received no parental leave whatsoever. The Legislature had drawn a bright line: children under two warranted parental leave benefits; children aged two years and one day did not. The Commission for Gender Equality challenged this provision specifically, arguing that older adopted children often require more, not less, parental support to facilitate bonding, integration, and adjustment to their new family environment.
The respondent Minister of Employment and Labour initially defended the provisions, arguing that they reflected a societal consensus reached through consultations under the National Economic, Development and Labour Council Act 35 of 1994. The Minister suggested that any amendments would have financial implications for the Unemployment Insurance Fund and that decisions about resource allocation should remain with Parliament, not the courts. This argument echoed the familiar refrain that judges do not govern the country and should exercise restraint when dealing with matters that implicate budgetary considerations.
The High Court was unmoved. It found that the differentiation between mothers and fathers, and between birth mothers and other categories of parents, amounted to unfair discrimination that could not be justified. The focus, the High Court held, should not be on delinquent fathers but on whether fathers generally should have an opportunity to participate in child-nurturing during the early stages of childhood. Parenting is sui generis, the Court observed, involving work, resilience, anxiety, exhaustion, and sacrifice. A father who chooses to share in this experience can rightly complain when the law denies him equal recognition. Similarly, a mother can complain when the law assigns her the role of primary caregiver and denies her and her partner the right to choose for themselves how to structure their parental responsibilities.
The High Court declared sections 25, 25A, 25B and 25C of the BCEA, along with the corresponding provisions of the Unemployment Insurance Act 63 of 2001 (the UIF Act), to be inconsistent with sections 9 and 10 of the Constitution. It suspended the declaration for two years to allow Parliament to remedy the defects and crafted an interim reading-in to protect parents’ rights during the suspension period. The matter then came before the Constitutional Court for confirmation of the order of invalidity, as required by section 167(5) of the Constitution.
Unpacking the Unfairness: Gender Discrimination in South Africa’s Parental Leave Regime
The Constitutional Court’s analysis began with a striking concession. By the time the matter reached the apex court, the Minister had abandoned her defence. She accepted that sections 25, 25A, 25B and 25C of the BCEA differentiated between categories of parents. She accepted that the differentiation was discriminatory on the basis of gender, a specified ground under section 9(3) of the Constitution. She accepted that the discrimination was unfair and could not be justified under section 36 of the Constitution. She accepted, in short, that the provisions were unconstitutional.
This concession did not end the Court’s enquiry. Constitutional Court confirmation proceedings require more than agreement between parties. The Court must independently satisfy itself that the impugned provisions are indeed inconsistent with the Constitution. Justice Tshiqi, writing for a unanimous Court, embarked on a careful analysis of why the parental leave regime violated the foundational values of equality and human dignity.
The discrimination was both obvious and multifaceted. Birth mothers received four consecutive months of parental leave. Fathers received ten days. Adoptive parents of children under two years received either ten weeks or ten days, depending on their election. Commissioning parents in surrogacy arrangements received the same truncated entitlements. The Legislature had created a hierarchy of parents, with birth mothers at the apex and all other parents occupying subordinate positions.
The Constitutional Court drew on its established equality jurisprudence to analyse this hierarchy. In Harksen v Lane N.O. [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC), this Court had set out a structured approach to equality claims. First, does the provision differentiate between people or categories of people? If so, does the differentiation amount to unfair discrimination? If the discrimination is on a specified ground listed in section 9(3), it is presumed to be unfair. The burden then shifts to the respondent to establish that the discrimination is fair, or to justify it under the limitations clause.
Here, the differentiation was undeniable. Gender was the primary basis for distinguishing between birth mothers and fathers. The mode of acquiring a child, whether through birth, adoption, or surrogacy, served as the basis for distinguishing between different categories of mothers. These were paradigm cases of differentiation that triggered the equality guarantee.
The discrimination was presumptively unfair because it was based on gender, a specified ground. But the Court went further, examining why the discrimination was indeed unfair. The Harksen case had emphasised that the test of unfairness focuses primarily on the impact of the discrimination on the complainant. As L’Heureux-Dubé J had observed in the Canadian case of Egan v Canada, dignity is a notoriously elusive concept that requires precision and elaboration. The enquiry must centre on the lived experience of those subjected to the discriminatory treatment.
For fathers like Mr van Wyk, the impact was profound. The legislation accorded them a “paltry” ten days’ leave, conveying an unmistakable message that their involvement in early parenting was marginal, almost vestigial. The law assumed that biological fathers were peripheral figures in the nurturing of newborns, entitled to barely more than a week to bond with their children before returning to the workplace. This assumption rested on outdated gender stereotypes that cast women as natural caregivers and men as breadwinners whose presence at home was neither necessary nor particularly valuable.
The Court rejected these stereotypes as incompatible with constitutional values. Long-standing cultural norms that exalt motherhood, the Court held, are not a legitimate platform for distinguishing between mothers’ and fathers’ roles. Parenting is indeed sui generis and undoubtedly onerous, but there is no constitutional basis for assigning the burden of care primarily to mothers. A father who chooses to share in the experience of early parenting for his own wellbeing, no less than that of his children and their mother, can rightfully complain that the absence of equal recognition amounts to unfair discrimination.
The discrimination harmed mothers as well. By deeming mothers to be the primary caregivers and assigning them four months of leave while fathers received only ten days, the legislation reinforced the very gender stereotypes that section 9 was designed to dismantle. It denied parents the autonomy to structure their caregiving responsibilities according to their own circumstances and preferences. Mrs van Wyk’s situation illustrated the point vividly. She operated two businesses. The financial cost of closing those businesses for four months would have been severe. Yet the law provided no mechanism for the couple to make the obviously sensible decision that Mr van Wyk, as an employee with job security, should take primary responsibility for their son’s care.
The discrimination extended to adoptive and commissioning parents. These parents received substantially less leave than birth mothers, despite facing equivalent or greater demands. The Court acknowledged that birth mothers require time before and after birth for health reasons, and that the mandatory six-week postnatal rest period in section 25(3) of the BCEA served a legitimate purpose. But once the health and recovery period was accounted for, there remained a substantial period allocated for nurturing. Adoptive and commissioning parents needed that nurturing time no less than biological parents.
The shorter leave period available to adoptive and commissioning parents sent a troubling message. It implied that these parents required less time with their children, that their caregiving obligations were less onerous, that the bond they needed to establish was somehow less important than the bond between a birth mother and her biological child. This message diminished the role these parents play in their children’s lives and reduced the recognition of their responsibilities compared to biological parents. The statutory regime treated them as a lesser class of parents.
The discrimination was particularly acute for commissioning parents who had pursued surrogacy and adoptive parents who had chosen adoption. There are many reasons why couples pursue these paths to parenthood. Some face infertility. Some are in same-sex relationships. Some wish to provide homes to children in need of families. They should not be penalised for these choices. Yet the legislation did exactly that, affording them inadequate time to integrate their children into their families and establish the secure attachments that are crucial in early childhood.
The Court turned next to the question of human dignity. In Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC), this Court had explained that human dignity is both a foundational value and a justiciable right. It informs the interpretation of other rights, particularly the right to equality. Where discrimination impairs human dignity or affects people adversely in a comparably serious manner, it offends the Constitution.
The parental leave regime violated dignity in multiple ways. For fathers, it intruded upon their autonomy to make fundamental decisions about how to structure their family lives. It denied them meaningful participation in the early stages of their children’s lives based solely on their gender. For mothers, it prescribed their role as primary caregivers and removed their choice to arrange caregiving responsibilities differently. For adoptive and commissioning parents, it conveyed that their parental relationships were worth less, deserving of less legal protection and social recognition than biological parent-child relationships.
The Court invoked its earlier decision in President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (1) SACR 567 (CC); [1998] JOL 1543 (CC) to illustrate the danger of gender stereotypes. In that case, Justice Goldstone had noted that while mothers as a matter of fact may bear more responsibility for childrearing in South African society, this generalisation cannot justify treating all mothers and fathers according to stereotype. There will be particular instances where fathers bear more responsibilities than mothers. The law cannot rely on statistical generalisations to deny individuals the opportunity to structure their families according to their own circumstances.
Having found unfair discrimination that violated dignity, the Court considered whether the limitation could be justified under section 36(1) of the Constitution. In S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC), this Court had explained that justification requires a proportionality analysis, balancing the nature and importance of the right against the purpose and extent of the limitation.
The Minister bore the onus of justification but failed to discharge it. She argued that the four-month leave period for birth mothers was necessary to protect maternal and child health before and after birth. The Court accepted this rationale for the period dedicated to preparation for birth and postnatal recovery. But it found no justification for denying fathers, adoptive parents, and commissioning parents adequate time for the nurturing phase that follows.
The Minister also argued that granting longer leave to all categories of parents would create an “equivalence” between different parenting situations and that the scheme needed parameters to function analogously to the leave provided when a child is born. This argument crumbled under scrutiny. Birth mothers return to work when their children are three to four months old. If the goal was true equivalence, why was the age cap for adopted children set at two years? The Minister provided no answer. She did not explain how a cap at two years was reasonable or why a different parameter would be unsuitable.
The Minister’s suggestion that older adopted children could be placed in day-care facilities while younger children could not was equally unpersuasive. What meaningful difference exists between a child who is 23 months old and one who is 25 months old? Should the law presume that a 25-month-old child can adjust to a new family without parental presence while a 23-month-old cannot? These presumptions bore no rational relationship to the realities of child development or family integration.
The proportionality analysis revealed a legislative scheme that advanced no legitimate purpose beyond administrative convenience and fiscal caution. These considerations, while relevant to remedy, could not justify the infringement of fundamental rights. As the High Court had noted, cost implications have never been sufficient reason to refrain from declaring legislation unconstitutional. The State cannot purchase immunity from constitutional scrutiny by pleading poverty.
The Court concluded that the discrimination was unfair, unjustifiable, and inconsistent with sections 9 and 10 of the Constitution. The question then became: what remedy would adequately vindicate the rights of the affected parents while respecting the institutional role of Parliament?
The Court’s Interim Fix: Reading-In Four Months and Ten Days of Shared Leave
Once unconstitutionality was established, the Constitutional Court faced a delicate remedial question. How should it craft relief that vindicated constitutional rights without unduly encroaching on Parliament’s legislative prerogative? The answer lay in a carefully calibrated interim remedy, suspended to give the Legislature time to fashion a comprehensive solution.
The parties proposed starkly different approaches. The Van Wyks sought an order entitling both parents to four months’ parental leave independently, resulting in a total of eight months’ combined leave available to a couple. Sonke supported this position. The Commission for Gender Equality took a more modest stance, requesting that both parents collectively receive four months’ leave to be shared between them, with advance notification to employers about how the leave would be divided. The Minister, while conceding unconstitutionality, opposed granting four months to each parent on budgetary grounds and suggested that suspension alone, without any interim reading-in, would suffice.
The High Court’s interim remedy fell somewhere between these positions but contained what the Constitutional Court identified as “fundamental difficulties.” That court had ordered that parents share four months of parental leave collectively, but in doing so had eliminated the ten days’ parental leave previously available to fathers under section 25A. The reading-in created ambiguity about how the four months would be apportioned between parents and failed to adequately protect the rights of birth mothers who needed time for preparation and recovery from childbirth. Most critically, it provided no safeguard against abuse by absent fathers who might claim leave entitlements without genuinely participating in caregiving.
Justice Tshiqi crafted a more nuanced solution. The Constitutional Court retained the existing four-month entitlement but reconceptualised it as “parental leave” rather than “maternity leave,” making it available to all categories of parents. Where only one parent is employed, that parent receives the full four months. Where both parents are employed, they share a total of four months and ten days, the additional ten days representing the paternal leave previously provided under section 25A.
The interim amendments to section 25 of the BCEA reveal the Court’s careful balancing. Subsections (1) through (4) preserve the existing entitlements for single parents and birth mothers, including the crucial provisions allowing mothers to commence leave up to four weeks before the expected date of birth and prohibiting work for six weeks after birth unless medically cleared. The Court recognised that these provisions serve legitimate health and safety purposes that cannot be compromised.
The innovation appears in the new subsections (4A) through (4D). Where both parties to a parental relationship are employed, they receive collectively four months and ten days’ parental leave, inclusive of any leave taken by the birth mother before and after birth. The parents enjoy wide latitude to structure this leave according to their needs. They may take it concurrently, consecutively, or in some combination, provided each parent takes their allocated portion in a single unbroken sequence.
If parents cannot agree on how to divide the leave, subsection (4C) provides a default rule: the leave shall be apportioned so that each parent’s total comes as close as possible to half of four months and ten days, completed within four months from the child’s birth or, for adoptive and commissioning parents, from the relevant triggering date. This default promotes equal sharing while maintaining flexibility.
Subsection (4D) addresses the concern about absent fathers. A party qualifies as a party to a parental relationship only if they have “assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005 (Act No. 38 of 2005).” This requirement ensures that fathers cannot claim leave entitlements while shirking actual caregiving duties. It roots the right to leave in genuine parental commitment rather than biological connection alone.
The Court deleted section 25A entirely, as the ten days’ parental leave it provided had been incorporated into the new shared leave structure. Section 25B, governing adoption leave, was amended to entitle adoptive parents to the same four months and ten days available to biological parents, subject to the same sharing arrangements. The contentious age cap remained in place during the suspension period, but the Court declared it unconstitutional and left its ultimate fate for Parliament to determine.
Section 25C, dealing with commissioning parents in surrogacy arrangements, received parallel treatment. Commissioning parents now enjoy the same four months and ten days as other categories of parents, with the same flexibility to share the leave as circumstances require. The amendments eliminate the previous hierarchy that privileged birth mothers over all other parents.
The Constitutional Court departed significantly from the High Court’s approach when addressing the corresponding provisions of the UIF Act. Justice Tshiqi declined to provide an interim reading-in for sections 24, 26A, 27, and 29A of that statute. The Court acknowledged that while financial considerations cannot justify unconstitutional discrimination, they properly inform remedial discretion, particularly where multiple constitutionally compliant solutions exist.
The UIF provisions presented complexities absent from the BCEA. Benefits are calculated according to formulas set by the Minister. Currently, only employed biological mothers receive lengthy UIF benefits, up to a maximum of 17.32 weeks. If employed fathers in couples where the mother is unemployed suddenly became entitled to equivalent benefits, the financial burden on the UIF could be substantial. The Court lacked sufficient information about benefit calculation methods and fund sustainability to craft an appropriate interim remedy.
More fundamentally, the Court recognised that interim amendments to the UIF Act could create perverse consequences. The principle established in the Makwanyane case requires that remedies serve the constitutional objective without creating new injustices. An ill-considered interim reading-in might inadvertently disadvantage some categories of parents or create administrative chaos in the UIF system.
The Court opted instead for a prospective mechanism. If Parliament fails to enact remedial legislation within the 36-month suspension period, the declarations of invalidity will take effect, leaving a legislative vacuum with respect to parental benefits under the UIF Act. Such an outcome would be untenable, as parents would suddenly find themselves without any statutory entitlement to UIF benefits.
To prevent this scenario, the order includes provisions for supplementary relief. The Minister must furnish a report to the Registrar six months before the suspension period expires, detailing whether remedial legislation has been enacted and, if not, when it is expected and what processes remain outstanding. Upon receipt of this report, or if no report is furnished, any party may apply for supplementary relief to take effect when the suspension period ends. Such applications must be brought at least four months before expiry, with further conduct regulated by directions from the Chief Justice.
This mechanism respects parliamentary supremacy while ensuring that the constitutional defects will ultimately be remedied. Parliament receives a generous 36 months to craft comprehensive legislation addressing not only the discrimination between categories of parents but also the age cap for adopted children. The Legislature can consult stakeholders through NEDLAC, conduct financial modelling, and design a sustainable benefits regime that aligns with constitutional imperatives.
Should Parliament fail to act, the Court retains jurisdiction to impose a reading-in remedy, but only after giving notice and affording the parties an opportunity to be heard on the appropriate terms of such relief. This deferred approach acknowledges the Court’s institutional limitations when dealing with complex social benefits legislation while maintaining its ultimate responsibility to ensure constitutional compliance.
The suspension period itself reflects constitutional pragmatism. In section 172(1)(b) of the Constitution, the framers recognised that immediate invalidation of legislation can sometimes cause more harm than good. Suspension allows for an orderly transition, preventing disruption to employers, employees, and the UIF while Parliament undertakes remedial action. The 36-month period is generous, providing ample time for the consultative and deliberative processes that characterise sound legislative reform.
The interim reading-in thus serves multiple functions. It vindicates the rights of parents during the suspension period, ensuring that the Van Wyks and others similarly situated need not wait three years for relief. It provides a working model that Parliament may adopt, adapt, or improve upon as it sees fit. It establishes the constitutional baseline below which any new legislation cannot fall. And it demonstrates the feasibility of equal parental leave without dismantling the legitimate health and safety protections afforded to birth mothers.
The Clock is Ticking: What Parliament Must Do in the Next 36 Months
The Constitutional Court’s order sets in motion a 36-month countdown that places South Africa’s parental leave architecture at a crossroads. Parliament now faces the formidable task of redesigning a legislative framework that has, for decades, rested on assumptions about gender roles that the Constitution categorically rejects. The challenge extends beyond merely equalising leave entitlements. It requires a fundamental reimagining of how the law conceives of parenthood, caregiving, and the relationship between work and family life.
The judgment leaves Parliament with considerable latitude on several critical questions. The Court declared the two-year age cap for adopted children unconstitutional but deliberately refrained from imposing a specific alternative. This restraint reflects appropriate judicial modesty. The determination of whether any age cap is necessary, and if so where to set it, implicates policy considerations that courts are ill-equipped to resolve. Parliament must weigh factors including child development research, adoption patterns in South Africa, the needs of older children transitioning into new families, and the practical realities of workplace accommodation.
The age cap question cannot be answered in isolation from broader debates about adoption policy. South Africa faces a crisis in child care, with thousands of children languishing in institutions or temporary placements while adoption rates remain disappointingly low. Research consistently shows that older children are less likely to be adopted than infants, creating a perverse hierarchy where the children most in need of permanent families are least likely to find them. If parental leave is available only for very young adopted children, prospective parents face an additional disincentive to adopt older children who may require even more intensive support during the transition period.
The Court’s implicit suggestion is that Parliament should seriously consider whether any age cap serves a legitimate purpose. The assumption underlying the current two-year cap appears to be that parental leave is primarily about meeting the physical care needs of infants who cannot yet attend day-care facilities. But this assumption misconceives the purpose of parental leave in the adoption context. Adopted children of any age require time to bond with their new families, to begin processing the trauma of separation from previous caregivers, and to establish the sense of security that forms the foundation for healthy development.
International practice varies widely on this question. Some jurisdictions impose no age cap at all for adoption leave. Others tie leave duration to the child’s age, providing longer leave for older children who may face greater adjustment challenges. Still others provide a uniform leave entitlement regardless of the child’s age at adoption. Parliament would benefit from examining comparative models and from consulting with adoption agencies, social workers, adoptive parents, and child development experts to craft an evidence-based solution.
The UIF provisions present equally complex policy choices. The Court’s decision to withhold an interim reading-in for the UIF Act reflects the multiplicity of constitutionally permissible approaches. Parliament might choose to maintain the current total quantum of UIF benefits while distributing them differently among categories of parents. It might increase the total benefits available, funding the expansion through higher contribution rates or general tax revenue. It might create a tiered system that provides different benefit levels for different categories of parents, provided the differentiation serves a legitimate purpose and is not unfairly discriminatory.
One particularly vexing question concerns benefit duration. The interim remedy for the BCEA provides for four months and ten days of leave to be shared between employed parents. Should UIF benefits mirror this structure exactly, providing the equivalent of 17.32 weeks of benefits to be split between parents as they divide the leave? Or might there be reasons to structure benefits differently, perhaps providing each parent with a non-transferable allocation plus a shared component that can be allocated by agreement?
The concept of non-transferable leave has gained traction internationally as a means of encouraging fathers to take parental leave. If each parent has a “use it or lose it” allocation, couples cannot default to traditional gender patterns where mothers take all available leave while fathers remain in the workplace. This approach recognises that legal entitlements alone may not overcome deeply entrenched social norms. Fathers may be reluctant to take extended leave if they fear career repercussions or if family finances depend on their higher earnings. Non-transferable allocations create an incentive structure that nudges behaviour toward more egalitarian patterns.
Parliament must also grapple with questions about the timing and sequencing of parental leave. The interim remedy requires that each parent’s leave be taken in “a single sequence of consecutive days.” This restriction prevents parents from fragmenting leave into multiple short periods, which could complicate workplace planning and potentially undermine the bonding and caregiving purposes that leave is meant to serve. But it also reduces flexibility. Some parents might prefer to take leave in two or more blocks, particularly as children grow and different care needs emerge.
The notification provisions warrant careful attention. The interim remedy retains the existing requirement that employees notify employers at least four weeks before commencing leave, or as soon as reasonably practicable if four weeks’ notice is not feasible. Where both parents are employed and plan to share leave, coordination becomes more complex. Each parent must notify their respective employer about when they will take leave, and the parents must ensure their arrangements comply with the statutory requirements. Parliament might consider whether additional administrative mechanisms are needed to facilitate these coordination challenges.
Enforcement mechanisms require consideration as well. What happens when an employer refuses to grant leave to which an employee is entitled? What remedies are available when an employee suffers discrimination or retaliation for taking parental leave? The BCEA contains general enforcement provisions, but Parliament might determine that specific protections for parental leave are warranted, perhaps including expedited dispute resolution procedures or enhanced penalties for violations.
The judgment’s implications extend to same-sex couples and non-traditional family structures. The interim remedy’s reference to “parties to a parental relationship” and the requirement that a party must have “assumed parental rights and responsibilities over the child as contemplated in the Children’s Act” ensures that the regime applies equally to all family configurations. But Parliament might consider whether additional clarification or elaboration is needed to address specific scenarios that arise in diverse family structures.
The six-month reporting requirement imposes a meaningful accountability mechanism on the executive. The Minister must inform the Registrar, on notice to the parties, whether remedial legislation has been enacted and, if not, when it is expected and what processes remain outstanding. This reporting obligation serves multiple functions. It maintains pressure on the executive to prioritise the legislative process. It provides the parties and the Court with timely information about progress. And it creates a formal record that will prove valuable if supplementary relief becomes necessary.
The four-month window for supplementary relief applications reflects practical necessity. If Parliament fails to enact legislation and parties wish to seek a reading-in from the Court, the application must be brought sufficiently in advance of the suspension period’s expiry to allow for proper adjudication. Four months provides adequate time for the filing of papers, the preparation of argument, and the convening of a hearing while avoiding the chaos that would result if the suspension period expired with no remedy in place.
The Chief Justice’s role in regulating the conduct of any supplementary relief application ensures that the process can be adapted to circumstances. If multiple parties seek different forms of relief, case management directions may be necessary to consolidate issues and avoid duplicative proceedings. If novel questions arise requiring additional evidence or expertise, the Chief Justice can make appropriate provision. This flexibility is essential given the uncertainty about what may transpire over the next three years.
The judgment’s reasoning carries implications beyond parental leave. It reinforces several fundamental propositions about equality jurisprudence in South Africa. Gender stereotypes, no matter how deeply embedded in social practice, cannot justify differential legal treatment. Parents possess a constitutionally protected autonomy to structure their caregiving arrangements according to their circumstances and values. Children’s interests cannot be served by discriminating among categories of parents. And financial constraints, while relevant to remedy, cannot excuse violations of fundamental rights.
These principles resonate across numerous areas of law where gender-based assumptions persist. Family law, social security, tax law, employment law, and many other fields contain provisions that rest explicitly or implicitly on the notion that women are primarily responsible for caregiving while men are primarily responsible for breadwinning. The Van Wyk case provides a template for challenging these provisions and insisting that the law evolve to reflect constitutional values rather than patriarchal tradition.
The decision also contributes to the ongoing development of dignity jurisprudence. The Court’s analysis demonstrates how dignity operates both as an independent right and as a value that informs the interpretation of other rights, particularly equality. The restriction of fathers to ten days’ leave violated dignity not merely because it treated men and women differently, but because it denied fathers meaningful participation in a fundamental human experience and prescribed to mothers a caregiving role that may not align with their life circumstances. This understanding of dignity as encompassing autonomy, self-determination, and freedom from state-imposed identity categories enriches our constitutional discourse.
Parliament’s response to this judgment will reveal much about the commitment to gender equality in South Africa. Will the Legislature seize the opportunity to design a truly progressive parental leave regime that supports diverse families and promotes shared caregiving? Or will it do the constitutional minimum, grudgingly extending entitlements while preserving as much of the status quo as possible? The answer will affect millions of South African families for generations to come.
The judgment arrives at a moment when work-family policy occupies the centre of global debates about gender equality, economic security, and child wellbeing. The recognition that fathers and mothers share equal responsibility for nurturing children, that adoptive families deserve the same support as biological families, and that all children benefit from having parental time during their early years reflects an emerging international consensus. South Africa now has the opportunity to position itself at the forefront of these developments, crafting legislation that other jurisdictions might study and emulate.
The Constitutional Court has illuminated the path forward. The journey belongs to Parliament, with the active participation of social partners through NEDLAC, civil society organisations, and affected communities. The 36-month period ahead presents not merely a remedial obligation but a transformative opportunity to align South African labour law with the constitutional promise of substantive equality and human dignity for all.
Questions and Answers
What statutory provisions were declared unconstitutional in the Van Wyk case?
The Constitutional Court confirmed that sections 25, 25A, 25B and 25C of the BCEA, together with the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are invalid and inconsistent with the Constitution. These provisions regulate maternity leave, parental leave, adoption leave, commissioning parental leave, and the corresponding unemployment insurance benefits. The Court also declared that the two-year age limitation in section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act is unconstitutional insofar as it restricts parental leave and benefits to adoptive parents of children below the age of two years.
On what constitutional grounds did the applicants challenge the parental leave provisions?
The applicants challenged the provisions on the basis that they violated section 9 of the Constitution, which guarantees equality and prohibits unfair discrimination, and section 10, which protects human dignity. They argued that the provisions unfairly discriminated between mothers and fathers, between birth mothers and other categories of parents including adoptive and commissioning parents, and between adopted children based on their age. The discrimination was based on gender, a specified ground under section 9(3), and therefore presumed to be unfair.
What test did the Constitutional Court apply to determine whether the provisions constituted unfair discrimination?
The Court applied the framework established in the Harksen case. The enquiry begins by asking whether the provision differentiates between people or categories of people. If differentiation exists, the next question is whether it bears a rational connection to a legitimate governmental purpose. If the differentiation amounts to discrimination on a specified ground listed in section 9(3), such as gender, it is presumed to be unfair. The burden then shifts to the respondent to establish that the discrimination is fair or to justify it under section 36 of the Constitution. The Court emphasised that the test of unfairness focuses primarily on the impact of the discrimination on the complainant.
Why did the Minister concede that the provisions were unconstitutional?
By the time the matter reached the Constitutional Court, the Minister accepted that the provisions differentiated between categories of parents on the basis of gender, a specified ground under section 9(3). She conceded that this differentiation amounted to discrimination that was presumptively unfair and acknowledged that there was no basis on which it could be justified under the limitations clause in section 36. The Minister further accepted that the provisions violated the right to human dignity protected by section 10. Despite these concessions, she participated in the proceedings to assist the Court in fashioning appropriate relief.
How did the Court distinguish between the health rationale and the nurturing rationale for parental leave?
The Court accepted that birth mothers require time before and after birth for legitimate health and safety reasons. The four weeks before the expected date of birth allow for preparation, and the mandatory six-week postnatal period in section 25(3) serves recovery purposes. These health-related provisions are constitutionally sound. However, the Court found that beyond the health and recovery period, there remains a substantial nurturing component to the four-month leave entitlement. This nurturing function is equally necessary for all categories of parents, including fathers, adoptive parents, and commissioning parents. The discrimination arose from denying these other parents adequate time for nurturing whilst affording it exclusively to birth mothers.
What was the Minister’s “equivalence” argument and why did the Court reject it?
The Minister argued that the two-year age cap for adopted children created an equivalence between parental leave for biological births and adoption, ensuring that adoptive parents received benefits analogous to those available when a child is born. The Court rejected this argument as illogical. Birth mothers return to work when their children are three to four months old, not two years old. If true equivalence were the goal, the age cap should align with the age at which children of birth mothers are typically left when their mothers return to work. The Minister provided no explanation for why two years was chosen as the appropriate cap or why a different parameter would be unsuitable. The Court found that the argument failed to justify the discriminatory treatment of adoptive parents and their children.
What is the significance of requiring that a party must have “assumed parental rights and responsibilities” under the Children’s Act?
Subsection (4D) of the amended section 25 provides that a party qualifies as a party to a parental relationship only if they have assumed parental rights and responsibilities over the child as contemplated in the Children’s Act. This requirement ensures that fathers cannot claim parental leave entitlements whilst shirking actual caregiving duties. It addresses concerns about absent or uninvolved fathers who might seek to exploit leave provisions without genuine commitment to parenting. The provision roots the right to leave in actual parental responsibility rather than mere biological connection, thereby preventing abuse whilst protecting the interests of children and mothers.
Why did the Constitutional Court decline to provide an interim reading-in for the UIF Act provisions?
The Court exercised caution because the UIF Act is regulated differently from the BCEA and involves complex benefit calculation formulas. The Court lacked sufficient information about how benefits are calculated and what financial implications would flow from various remedial options. Whilst financial considerations cannot justify unconstitutional discrimination, they properly inform remedial discretion when multiple constitutionally compliant solutions exist. The Court was concerned that an ill-considered interim reading-in might create perverse consequences or impose an unsustainable burden on the UIF. It therefore deferred the question, providing a mechanism for supplementary relief if Parliament fails to act within the suspension period.
What is the purpose and duration of the suspension period granted by the Court?
The Court suspended the declarations of invalidity for 36 months from the date of the order to afford Parliament an opportunity to remedy the constitutional defects. Section 172(1)(b) of the Constitution recognises that immediate invalidation can sometimes cause more harm than good. Suspension allows for an orderly transition, preventing disruption to employers, employees, and the UIF whilst Parliament undertakes remedial action. The generous 36-month period provides ample time for consultative processes through NEDLAC, financial modelling, stakeholder engagement, and the deliberative processes necessary for sound legislative reform. During this suspension period, the interim reading-in applies to protect parents’ rights.
What reporting obligation does the order impose on the Minister?
Not later than six months before the expiry of the 36-month suspension period, the Minister must furnish a report to the Registrar, on notice to the parties, detailing whether remedial legislation in respect of the BCEA and UIF Act has been brought into operation. If legislation has not been enacted, the report must indicate when it is expected to be brought into operation and what further processes need to be completed. This reporting requirement maintains accountability, provides the Court and parties with timely information about progress, and creates a formal record that will prove valuable if supplementary relief becomes necessary.
Under what circumstances may parties apply for supplementary relief?
Upon the furnishing of the Minister’s report, or in the absence of such report, any party may apply for supplementary relief insofar as it is necessary. Such supplementary relief would become operative upon the expiry of the 36-month suspension period. Applications must be brought not later than four months before the expiry of the suspension period. The Chief Justice will regulate the further conduct of any such application through case management directions. This mechanism ensures that if Parliament fails to enact remedial legislation, a constitutional vacuum will not arise when the suspension period expires.
What is the total amount of parental leave available to a couple where both parties are employed under the interim remedy?
Under the interim reading-in, if both parties to a parental relationship are employed, they are entitled in the aggregate to four months and ten days’ parental leave. This total is inclusive of any parental leave taken by a birth mother in terms of subsections (2) and (3) of the amended section 25, which allow for leave before birth and the mandatory six-week postnatal period. The additional ten days represent the paternal leave previously provided under section 25A, which has been incorporated into the shared leave structure and then deleted as a separate provision.
How may employed parents structure the sharing of their collective parental leave entitlement?
The remainder of the parental leave, after deducting any leave taken by a birth mother for preparation and recovery from birth, may be taken by the parties in such manner as they agree. This includes taking leave concurrently, consecutively, or partly concurrently and partly consecutively. However, any such parental leave must be taken by the party concerned in a single sequence of consecutive days. This restriction prevents fragmentation of leave into multiple short periods, which could complicate workplace planning and undermine the bonding and caregiving purposes that leave serves.
What happens if employed parents cannot agree on how to divide their parental leave?
If the parties cannot agree on the manner in which the remainder of the parental leave is to be taken, subsection (4C) provides a default rule. The leave shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and ten days. This leave must be completed within a period of four months from the birth of the child or, where section 25B or 25C applies, from the date of adoption or surrogacy as specified in those sections. This default rule promotes equal sharing whilst maintaining a clear time frame for the exercise of leave rights.
What approach should Parliament take when determining whether to retain, modify, or eliminate the two-year age cap for adopted children?
The Court deliberately refrained from imposing a specific alternative to the two-year age cap, recognising that this determination implicates policy considerations best resolved by the Legislature. Parliament must weigh factors including child development research, adoption patterns in South Africa, the needs of older children transitioning into new families, and practical workplace considerations. The Court’s implicit suggestion is that Parliament should seriously consider whether any age cap serves a legitimate purpose, given that adopted children of any age require time to bond with their new families and establish security. International practice varies widely, and Parliament would benefit from examining comparative models and consulting adoption agencies, social workers, adoptive parents, and child development experts to craft an evidence-based solution that promotes both parental rights and children’s best interests.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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