In October 2025, the Constitutional Court of South Africa delivered a landmark judgment in Van Wyk v Minister of Employment and Labour, fundamentally reshaping the country’s parental leave framework.
The Court declared sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA), together with corresponding provisions of the Unemployment Insurance Fund Act, unconstitutional. These sections were found to unfairly discriminate between different categories of parents, including birthing parents, non-birthing co-parents, adoptive parents and commissioning parents in surrogacy arrangements.
Following the Constitutional Court's ruling, South Africa will now adopt a shared parental leave model.
Under the prior framework:
The Court held that this differentiation amounted to unfair discrimination and violated the constitutional rights to equality and human dignity under sections 9 and 10 of the Constitution.
The ruling introduces a shared parental leave model, replacing the previous differentiated system, with the following framework:
Parliament has 36 months from October 2025 to formally amend the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) to give effect to the judgment.
In the interim, employers must align policies and practices with the Constitutional Court’s decision. Since the UIF Act has not been updated, fathers are not able to currently claim UIF.
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