Van Wyk and Others v Minister of Employment and Labour

Case Name: Van Wyk and Others v Minister of Employment and Labour

Citation: Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20; 2026 (1) SA 38 (CC)

Court: Constitutional Court of South Africa

Judgment Date: 3 October 2025

Coram: Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J. Unanimous judgment written by Tshiqi J.

Subject Matter: Constitutional law / Labour law / Equality (s 9) / Human Dignity (s 10) / Best Interests of the Child (s 28)

Introduction

On 3 October 2025, the Constitutional Court of South Africa handed down a landmark judgment in Van Wyk and Others v Minister of Employment and Labour.¹ The decision reshapes South African employment and constitutional jurisprudence by declaring key provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA)² and the Unemployment Insurance Act 63 of 2001 (UIF Act)³ unconstitutional.

Facts

The matter arose from two consolidated applications. In the first (CCT 308/23), the applicants were Mr Werner van Wyk, an employee, and his spouse Mrs Ika van Wyk, who ran two businesses of her own. Sonke Gender Justice and the Commission for Gender Equality joined as third and fourth applicants. In the second (CCT 309/23), the Commission and Sonke were the applicants, with the Van Wyks cited as respondents. Five organisations were admitted as amici curiae: the Centre for Human Rights at the University of Pretoria, Solidarity Centre South Africa, the International Lawyers Assisting Workers Network, the Labour Research Service, and the Centre for Child Law.

Before the birth of their son, the Van Wyks agreed that Mr van Wyk would take on primary caregiving responsibility, since Mrs van Wyk’s businesses required her active involvement. When Mr van Wyk approached his employer for parental leave, he was told he qualified for only 10 days under the BCEA. He ultimately took six months of extended unpaid leave, with real financial and career consequences.

Procedural History

The Van Wyks, together with Sonke, challenged the constitutionality of sections 25, 25A, 25B and 25C of the BCEA and the corresponding sections of the UIF Act in the Gauteng Local Division of the High Court, Johannesburg.⁴ The Commission for Gender Equality intervened as a further applicant, also challenging the two-year age cap on adoption leave under section 25B(1). The High Court declared the leave provisions unconstitutional but declined to strike down the age cap; the Commission appealed that latter finding to the Constitutional Court, while the confirmation of the main order came before the Court under section 167(5) of the Constitution.

Issues

1. Whether sections 25, 25A, 25B and 25C of the BCEA unfairly discriminate under section 9 of the Constitution between birth mothers, fathers, adoptive parents and commissioning parents.
2. Whether the statutory scheme infringes the right to human dignity under section 10 by denying parents autonomy over caregiving arrangements.
3. Whether the two-year age cap on adoption leave in section 25B(1) separately and unfairly discriminates against adoptive parents and children based on age.
4. If any infringement is established, whether it is justifiable under section 36.

Rule

Section 9 guarantees equality before the law and prohibits unfair discrimination, directly or indirectly, on grounds including sex, gender, pregnancy, marital status and age. Section 10 protects everyone’s inherent dignity. Section 28(2) requires that a child’s best interests be treated as paramount in every matter concerning the child. Section 36 permits limitation of rights only by law of general application, to the extent reasonable and justifiable in an open and democratic society.

Under the challenged scheme, the BCEA granted four consecutive months of leave exclusively to birth mothers, 10 days to other parents (typically fathers), and 10 weeks to adoptive and commissioning parents — with adoption leave available only where the child was under two years old.

Binding Judicial Precedent

Harksen v Lane NO⁵ supplies the governing test: whether there is differentiation, whether it amounts to discrimination, whether that discrimination is unfair, and whether it can be justified under section 36.

President of the Republic of South Africa v Hugo⁶ is cited for the proposition that statutory classifications resting on assumptions about women as primary caregivers can offend equality.

Dawood v Minister of Home Affairs⁷ is drawn on for the interconnection between dignity and other constitutional rights, including equality.

Arguments of the Parties

The applicants argued that limiting fathers to 10 days reinforces the assumption that caregiving belongs to mothers and breadwinning to fathers, and that section 10 protects parents’ freedom to organise their own caregiving arrangements without state-imposed roles. The Commission argued separately that the two-year adoption age cap arbitrarily devalues the bonding needs of older adopted children and reduces their chances of being adopted at all.

Notably, the Minister did not contest the core finding on the mother/father/adoptive-parent leave gap: she conceded that the differentiation was discriminatory and unconstitutional, and that reform was needed. Her opposition centred on the shape of the interim remedy — she resisted granting each parent a full four months independently, citing budgetary strain on the UIF — and on defending the two-year age cap as a proxy for the needs of very young children.

Application

The Court held that the leave scheme created explicit differential treatment resting on grounds specified in section 9(3) — sex, gender, pregnancy and parental status — amounting to prima facie unfair discrimination. Because the Minister conceded this point, the Court’s analysis focused on the human dignity dimension: the scheme entrenches the assumption that women are natural primary caregivers and men are secondary parents and providers, denying all parents the agency to structure their own family arrangements. The Court held this offends section 10.

On adoptive and commissioning parents, the Court found no legitimate reason for giving them materially less leave than birth mothers, since nurturing and bonding are not unique to biological birth.

On the separate age-cap issue, the Court held that capping adoption leave eligibility at two years old also constitutes age-based discrimination under section 9(3). The Minister’s justification — that the cap creates “equivalence” with the period a birth mother spends with a very young infant — was rejected as unexplained and arbitrary: no evidence was offered for why two years, rather than any other age, was the appropriate cut-off, and older adopted children have their own, no less real, integration and bonding needs. This limitation also failed under section 36.

On remedy, the Minister’s concern about the financial impact on the UIF was held not to justify maintaining an unconstitutional scheme; fiscal considerations do not override the rights to equality and dignity, and the Minister produced no data showing the shared-leave model was financially unsustainable.

Conclusion

The Constitutional Court confirmed the High Court’s order that sections 25, 25A, 25B and 25C of the BCEA and the corresponding UIF Act sections are unconstitutional, and separately declared the two-year age cap in section 25B(1) unconstitutional. The declarations of invalidity are suspended for 36 months to give Parliament time to legislate a remedy.

Pending that legislation, the Court ordered an interim reading-in:

• All employed parents — biological, adoptive or commissioning — share a combined pool of four months and ten days of statutory parental leave.
• Parents may divide this leave between themselves as they choose, consecutively or concurrently.
• A single employed parent is entitled to the full four months and ten days.
• Biological birth mothers retain preferential allocation over the initial post-natal physical recovery period.
• Where parents cannot agree on allocation, the leave must be divided as close to 50/50 as possible.

The Court expressly declined to read in an equivalent interim regime for the UIF Act’s benefit provisions, given the more complex financial modelling involved, and instead left that to Parliament — while directing that supplementary relief be sought if remedial legislation is not in force before the 36-month suspension expires.

Commentary

The judgment merges two previously distinct legal entitlements — medical recovery from childbirth and caregiving/bonding leave — into a single shared pool. This differs from models such as the EU’s Work-Life Balance Directive,⁸ which keep individual, non-transferable medical leave separate from shared parental leave.

Because BCEA leave remains unpaid by default, reliant on capped UIF benefits, the judgment secures formal legal equality rather than substantive economic equality. Employers who currently offer contractual maternity top-ups exclusively to birth mothers may now face exposure under section 6(1) of the Employment Equity Act 55 of 1998,⁹ since offering identical top-ups only to some categories of parent may itself constitute unfair discrimination. Employers will likely have to choose between extending top-up pay to all parents or withdrawing such schemes altogether.

The default 50/50 split, applied where parents cannot agree, also creates a practical verification problem where each parent works for a different employer: neither employer has any statutory basis to compel the other to confirm leave already taken, and requesting personal relationship documentation raises its own compliance risk under the Protection of Personal Information Act 4 of 2013.¹⁰

Reference(S):

Cases

Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC)

President of the Republic of South Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC)

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)

Van Wyk v Minister of Employment and Labour [2023] ZAGPJHC 1213; (2024) 45 ILJ 194 (GJ)

Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20; 2026 (1) SA 38 (CC)

Statutes and Constitutional Provisions

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Protection of Personal Information Act 4 of 2013

Unemployment Insurance Act 63 of 2001

International and Foreign Legislation

Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers

Footnote(S):

1. (CCT 308/23) [2025] ZACC 20; 2026 (1) SA 38 (CC).

2. Act 75 of 1997.

3. Act 63 of 2001.

4. Van Wyk v Minister of Employment and Labour [2023] ZAGPJHC 1213; (2024) 45 ILJ 194 (GJ).

5. [1997] ZACC 12; 1998 (1) SA 300 (CC).

6. [1997] ZACC 4; 1997 (4) SA 1 (CC).

7. [2000] ZACC 8; 2000 (3) SA 936 (CC).

8. Directive (EU) 2019/1158.

9. Act 55 of 1998. 10. Act 4 of 2013.