Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20; [2025] 12 BLLR 1213 (CC); (2025) 46 ILJ 2811 (CC); 2026 (1) SA 38 (CC); 2026 (1) BCLR 45 (CC) (3 October 2025)

Key Facts

Issues

• The Commission for Gender Equality challenged the age limit in section 25B(1) of the BCEA, which restricts adoption leave to children under two years, asserting that this limitation unfairly discriminates against adoptive parents and is inconsistent with the Constitution.
• The applicants challenged the provisions of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act) that differentiate between categories of parents (birth mothers, fathers, adoptive parents, and commissioning parents) in terms of parental leave duration and benefits, arguing that this discrimination is unconstitutional under sections 9 and 10 of the Constitution.

Holdings

• The Court declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid to the extent they limit parental leave and benefits to adopted children under two years of age, violating constitutional equality and dignity.
• Amended provisions for parental leave during the suspension period include allowing employed parents to share four months and ten days of leave collectively, with apportionment rules if agreement cannot be reached.
• The Constitutional Court confirmed the High Court's declaration that sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act (BCEA) and corresponding sections of the Unemployment Insurance Act (UIF Act) are invalid and inconsistent with the Constitution due to unfair discrimination between different classes of parents regarding parental leave duration and unemployment benefits.
• The declarations of invalidity were suspended for 36 months to allow Parliament to enact remedial legislation, with a requirement for the Minister to report on progress six months before the suspension period expires.
• The Court directed that supplementary relief applications may be filed four months before the suspension period ends, with the Chief Justice regulating their conduct.
• The Minister of Employment and Labour was ordered to pay the applicants' costs in the case, including costs for two counsel if employed.

Remedies

• Pending the coming into force of remedial legislation, the impugned provisions of the BCEA are read to grant collective parental leave of four months and ten days for employed parents, with apportionment rules and job-protected leave periods as outlined.
• Upon furnishing a report or in its absence, any party may apply for supplementary relief to become operative after the 36-month suspension period. Applications must be filed four months before the suspension expires.
• The Minister is ordered to pay the applicants' costs in this Court, including the costs of two counsel where applicable. This applies to both applications and is repeated for emphasis.
• The declarations of constitutional invalidity referred to in paragraphs 2 and 3 are suspended for 36 months from the date of this order to afford Parliament an opportunity to remedy the constitutional defects.
• The Commission for Gender Equality is granted leave to appeal against the High Court's decision not to declare the age limitation of two years in section 25B(1) of the Basic Conditions of Employment Act and section 27(1)(c) of the Unemployment Insurance Act invalid and inconsistent with the Constitution.
• It is declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid and inconsistent with the Constitution to the extent they limit parental leave and related benefits to cases where the adopted child is below two years of age.
• The High Court's declaration that sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act (BCEA) and sections 24, 26A, 27, and 29A of the Unemployment Insurance Act (UIF Act) are invalid and inconsistent with the Constitution is confirmed. The invalidity pertains to unfair discrimination between different classes of parents regarding parental leave duration and unemployment benefits.

Legal Principles

• The court confirmed the High Court's declaration that sections of the Basic Conditions of Employment Act and Unemployment Insurance Act were invalid for unfair discrimination against non-birth parents and adoptive parents of children over two years old. The decision applied proportionality analysis under section 36 of the Constitution to assess whether the differentiation could be justified.
• The Constitutional Court employed a purposive interpretation of the Constitution, emphasizing the need to align labor laws with constitutional values of equality and human dignity. This approach prioritized the social purpose of parental leave in fostering equal caregiving responsibilities.
• The court held that the impugned provisions violated the right to human dignity (section 10 of the Constitution) by perpetuating gender stereotypes and marginalizing non-birth parents, including fathers, adoptive parents, and commissioning parents, in their ability to nurture children.

Precedent Name

• President of the Republic of South Africa v Hugo
• Van Wyk v Minister of Employment and Labour
• S v Makwanyane
• Dawood v Minister of Home Affairs
• Harksen v Lane N.O.

Cited Statute

• Unemployment Insurance Act 63 of 2001
• Basic Conditions of Employment Act 75 of 1997

Judge Name

• Tshiqi
• Rogers
• Madlanga
• Theron
• Majiedt
• Mhlantla
• Kollapen
• Seegobin
• Tolmay

Passage Text

• The Court rejected the Minister's argument regarding financial implications of equalizing parental leave, stating: 'Such an outcome can be managed... the State could keep the same amount of funding budgeted for in the UIF and reduce the amount payable as a benefit to stay within budget.'
• The High Court held that the differentiation between fathers and mothers amounted to unfair discrimination, specifically regarding the duration of entitled leave. The Court stated: 'The burden of child care should be equally shared with the father, considering that parenting is sui generis (unique) in nature.'
• The Court declared section 25B(1) of the BCEA invalid for capping adoption leave at children under two years, stating: 'The differentiation between adopted children below and above two years is not a legitimate governmental purpose and cannot be justified.'