On 25 October 2023, the Johannesburg High Court handed down judgment in the matter of Van Wyk v the Minister of Employment and Labour.

The case concerned the question of whether the provisions of the Basic Conditions of Employment Act, 1997 (“the BCEA”), regulating parental leave, unfairly discriminate against various types of parents, are contrary to the interests of the child, and impair the dignity of parents and their children.

In its judgment, the Court concluded that the provisions of the BCEA regulating parental leave do offend against sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers; and unfairly discriminate between parents depending on whether their child was born of the mother; conceived by surrogacy; or adopted.

Accordingly, sections 25, 25A, 25B and 25C of the BCEA (together with the corresponding sections of the Unemployment Insurance Fund Act, 2001, which provide for parental leave benefits) were declared unconstitutional and invalid.

The application was brought by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice and the Commission for Gender Equality. The Centre for Human Rights and five other organisations intervened in the application as amici curiae.

While acknowledging that maternity leave serves a legitimate physiological purpose of ensuring the recovery of a birthing parent immediately prior to and after childbirth, the court recognised that the current framework of the BCEA does not take into account more modern relationship dynamics where both parents share a commitment to the nurturing of a child. The court also remarked that the typical assumption that only the birthing parent should be the primary care giver of the child does not factor in different parental modalities and dynamics and is therefore not aligned with the constitutional principles of gender equality and dignity which ought to be afforded to all persons, including all parents.

The court held that “Parenting is sui generis and undoubtedly onerous, involving actual work, resilience in the face of exasperation, anxiety, unrelenting close attention to the new-born, extreme exhaustion, sacrifice of sleep and sacrifice of the pursuit of other interests. A father who chooses to share in this experience for his own well-being, no less than that of his children and of their mother, can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination. A mother can on the same premise rightly complain that to assign her role as the primary care-giver who should bear the rigours of parenthood single-handed, is a choice that she and the father should make, not the legislature …“.