NAVIGATING THE NEW LANDSCAPE (Van Wyk v Minister of Labour)

PARENTAL LEAVE IMPLEMENTATION AND THE BEST INTERESTS OF THE CHILD

By Sbahle Xulu

The Constitutional Court’s recent decision in Van Wyk and Others v Minister of Employment and Labour (CCT 308/23) [2025] ZACC 20 marks a significant turning point in South Africa’s approach to parental leave. While the ruling has been widely celebrated for affirming gender equality through the introduction of a gender-neutral, shared leave framework, its impact goes beyond surface-level fairness.

At its core, the judgment does two things: it creates immediate implementation responsibilities for employers, and it redefines parental leave as a mechanism that serves the best interests of the child and not merely the recovery of the birthing parent.

A New Legal Framework: What Has Changed?

The Court declared provisions of the Basic Conditions of Employment Act (“BCEA”) and Unemployment Insurance Act (“UIA”) unconstitutional for its unequal treatment of parents based on gender and biological ties. The result is a new, interim parental leave structure, pending legislative reform within thirty-six (36) months.

Key features of the interim framework include:

All employed parents are entitled to a shared total of four months and ten days of parental leave, regardless of their gender or how they became parents (biological, adoptive, or commissioning).

The mother of the minor child born may not return to work for six (6) weeks post-birth, but this forms part of the shared leave pool. In the event that two parents cannot agree on how to divide the leave, it must be split as equally as possible. The previous two-year age limit for adopted children to qualify for leave has been removed.

Implementation: Practical Implications for Employers

While Parliament has been given time to revise legislation, the interim ruling is in effect now, and employers are expected to align their practices accordingly.

Policy and Contractual Adjustments

Organisations will need to review and update employment contracts and internal policies to reflect gender-neutral parental leave, standardising entitlements across all family types.

Introducing a Leave-Sharing Process

Employers may also need to implement systems for parents to formally agree on how to allocate the shared leave period, including clear documentation protocols. The judgment requires a default mechanism namely, an equal split if no agreement is reached.

UIF Misalignment

Although the Court has changed the leave entitlement, the UIF benefits remain unchanged, leading to a temporary disconnect between leave rights and available financial support. The judgment acknowledges this and places the onus on Parliament to reform the UIA.

Training and Cultural Sensitisation

Beyond the administrative changes, the ruling invites a cultural shift in the workplace. Employers are encouraged to ensure that parental leave is equitably accessible, regardless of gender, and that all parents are supported equally in practice. This may include training for HR teams and managers to avoid assumptions about caregiving roles.

Children at the Centre: A Shift in Legal Philosophy

Crucially, the Van Wyk judgment is not just about a parent's right to equality; it is fundamentally about the child's right to be nurtured and cared for by all their parents. The Court elevated this principle, framing parental leave as serving the best interests of the child, not just accommodating the physiological recovery of the birth mother. 

The Court criticised the old regime for creating a hierarchy of parents, privileging birth mothers and marginalising other legal parents. The Court found that this undermined the child’s right to receive care from all parents.

The removal of the two-year adoption age cap is particularly significant. The Court affirmed that children adopted at any age need time to bond with their new families, thus recognising the emotional and psychological realities of adoptive parenthood.

Looking Ahead

The Constitutional Court’s ruling marks a progressive recalibration of family and labour law in South Africa. While legislative reform is still to come, the interim framework represents an enforceable shift that both responds to the evolving nature of modern families and places

the child’s well-being at the centre of legal policy.

As the country moves toward a more inclusive and equitable parental leave system, this judgment sets the tone not only for how existing legislation treats parents, but for how society values care, connection, and co-parenting in all its forms.

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