South African labour law had long operated on a simple assumption, namely that mothers were responsible for childcare while fathers were responsible for providing. However, recent legal developments have fundamentally challenged that assumption.
A Brief History
Under the 1983 Basic Conditions of Employment Act, parental leave as we understand it today did not exist. The legislation protected pregnant employees from hazardous work, but fathers, adoptive parents and same-sex couples received no recognition whatsoever.
The 1997 BCEA improved this position by introducing four months’ maternity leave, along with three days of family responsibility leave for fathers. While this was progress, the underlying assumption remained unchanged as mothers were the primary caregivers and fathers played a supporting role.
The Labour Laws Amendment Act of 2018 went on to introduce 10 days of parental leave, along with 10 weeks of adoption leave and commissioning parental leave. For the first time, the law acknowledged that families are not all structured the same way. However, the disparity remained significant as mothers were given four months compared to the 10 days or 10 weeks provided to other parents.
The Van Wyk Case
The matter of Werner and Ika Van Wyk brought this disparity into sharp focus. Mrs Van Wyk ran two businesses and the couple agreed before their child’s birth that Mr Van Wyk would take on the role of primary caregiver. When he approached his employer for four months’ leave, he was informed that, as the father, he was only entitled to 10 days. He ultimately took six months of unpaid leave which negatively impacted his family’s finances and his career.
The Constitutional Court found that this was not simply a matter of unequal treatment between parents. More fundamentally, the legislation prevented parents from deciding for themselves how caregiving responsibilities should be divided within their own family. The Court held that this infringed not only the right to equality, but also the right to dignity.
The Court’s decision
The Constitutional Court declared the existing leave provisions unconstitutional and suspended this declaration for 36 months to allow Parliament to introduce corrective legislation. In the interim, the Court directed that:
- a single parent is entitled to at least four months’ leave;
- where only one parent is employed, that parent receives the full four-month entitlement;
- where both parents are employed, they collectively share four months and 10 days, to be divided as they agree; and
- where no agreement can be reached, the leave is divided as close to equally as possible.
Importantly, the Court preserved the specific protections associated with pregnancy and childbirth, including leave prior to birth and the six-week recovery period thereafter. The distinguishing principle became clear in that leave connected to physical recovery from childbirth remains linked to the birth mother, while leave connected to caregiving should not be allocated according to gender.
The Court also declared the provision that denied adoption leave where a child was adopted after the age of two as invalid, finding no rational basis for the distinction. This reinforced the broader principle that parental leave should be determined by caregiving responsibility, rather than by biology.
Legislative reform
In response to the judgment, the Department of Employment and Labour published the Labour Relations Amendment Bill in early 2026, with the aim of converting the Court’s interim arrangement into permanent legislation. The Bill is intended to remove unconstitutional distinctions between categories of parents, introduce a more flexible shared leave model, extend protection to a broader range of family structures and align UIF benefits with the revised leave framework.
While this represents meaningful progress, certain questions remain unresolved. It is not yet clear how employers will verify caregiving arrangements in practice, or whether the UIF system will be administratively equipped to support the new entitlements. There is also a legitimate question as to whether the proposed four months and ten days adequately serves the best interests of the child or reflects the practical limits of the current fiscal framework.
Implications for employers
These developments have immediate and practical relevance for employers. It would be prudent to:
- review existing parental leave policies to ensure alignment with the interim constitutional position;
- update employment contracts and collective agreements accordingly;
- prepare to accommodate leave requests from employees regardless of gender as well as to establish clear internal processes for managing shared or disputed leave allocations; and
- monitor the progress of the Bill through Parliament as the final framework may differ from the current interim arrangement.
Concluding remarks
Van Wyk is a reflection on the broader principle that the allocation of caregiving responsibility within a family is a matter for parents to determine and not one that legislation should prescribe based on gender.
Susan Tarwa and Kyle Bentley are attorneys in the Employment Law Department at Mkhabela Huntley Attorneys.
