Before Van Wyk: The Old Patchwork
- Maternity leave: 4 months (birth mother).
- Parental leave: 10 days (typically the other parent).
- Adoption leave: 10 weeks (for adoptive parent of a child under 2).
- Commissioning parental leave (surrogacy): 10 weeks for commissioning parent designated as primary caregiver; 10 days for the other.
This structure drew criticism for unequal caregiving opportunities and gendered assumptions.
Van Wyk (Constitutional Court, 2025): The Core Outcomes
The Constitutional Court:
- Confirmed constitutional defects in the BCEA’s parental-type leave framework.
- Issued interim directions (reading-in approach) pending legislative amendment.
- Moved South Africa toward a gender-neutral, equal-care model.
Practical effect (interim):
- Parents (biological, adoptive, commissioning) must have access to substantial caregiving leave in a way that does not unfairly discriminate between them.
- Employers should update policies to reflect non-discriminatory allocation of leave and clarify UIF benefit processes while Parliament finalises amendments.
(For HR teams: we can map your exact wording to the Court’s interim reading-in and your sectoral realities.)
Documentation & UIF Benefits
- Proof of relationship (birth certificate, adoption order, surrogacy documents) remains central.
- UIF: Apply promptly; anticipate transitional admin while the statutory text is amended.
- Policies: Remove gendered language (“maternity vs paternity” where not medically required) and specify the allocation mechanism that complies with the Court’s directions.
Compliance Risks & Opportunities
- Policies that simply replicate the pre-Van Wyk differentials risk unfair discrimination challenges.
- Payroll systems must be re-tuned for various leave types and durations.
- Manager training is essential: equal treatment, documentation, and avoiding stereotypes in approvals.
Conclusion
Van Wyk shifts South Africa toward equal parenting at work. Interim compliance is not optional. Employers should revise policies now, and employees should assert their rights using the Court’s guidance.
References
Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 (Constitutional Court). SAFLII+1
Van Wyk and Others v Minister of Employment and Labour [2023] ZAGPJHC 1213 (High Court). SAFLII+1
CCMA Leave Info Sheet (context on parental/adoption leave evolution). CCMA
Further practitioner analyses on the interim regime.