Published On: October 15, 2026
Authored By: Priscille Mabwa Mbongo
I. Case Details
The case of Werner van Wyk and Others v Minister of Employment and Labour and Others, [2023] ZAGPJHC 1213, was decided by the High Court of South Africa, Gauteng Local Division, Johannesburg, under Case No. 2022-017842. The judgment was delivered on 25 October 2023 by a Full Bench comprising Deputy Judge President Roland Sutherland, Judge Leicester Adams and Acting Judge Elmarie van der Schyff. The case concerned the constitutionality of South Africa’s statutory parental-leave framework and raised important questions regarding equality, human dignity and discrimination. It remains a significant decision in the development of constitutional and labour law.[1]
II. Facts of the Case
The proceedings arose from a constitutional challenge to South Africa’s statutory parental-leave regime. The applicants were Werner van Wyk and his wife, Ika van Wyk, together with Sonke Gender Justice and the Commission for Gender Equality. They challenged sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA), alongside corresponding provisions of the Unemployment Insurance Act 63 of 2001.[2] At the time, the legislation distinguished between parents according to how they became parents. A birth mother was entitled to four months’ maternity leave, while other parents generally received shorter periods: fathers were entitled to ten days’ parental leave, and adoptive and commissioning parents could receive ten weeks’ leave. The applicants also challenged the different treatment afforded to parents of children born through adoption or surrogacy.[3] The Van Wyks sought a more equal distribution of parental leave, while the other applicants challenged the broader distinctions within the statutory scheme.[4] The proceedings therefore brought before the Court the unequal structure of parental leave under South African employment law.
III. Legal Issues
The central issue before the High Court was whether South Africa’s parental-leave framework created constitutionally impermissible distinctions between different categories of parents. More specifically, the Court had to determine whether the unequal leave entitlements between birth mothers and other parents amounted to unfair discrimination contrary to section 9 of the Constitution.[5] It also considered whether differentiating between parents according to whether their children were born, adopted or conceived through surrogacy was constitutionally justified.[6] Finally, the Court had to determine an appropriate remedy that would protect the affected rights while respecting the constitutional role of Parliament in reforming the legislation.[7]
IV. Arguments of the Parties
The applicants maintained that the statutory scheme unjustifiably differentiated between parents. They argued that there was no constitutionally legitimate basis for treating fathers as less entitled to participate in the early care of their children and that the unequal allocation of leave entrenched traditional assumptions that mothers were primary caregivers while fathers were secondary providers.[8] They further contended that parents should not receive different entitlements because their children entered the family through birth, adoption or surrogacy, as these distinctions undermined equality and dignity.[9] The Minister of Employment and Labour opposed the challenge, arguing that the existing framework was a matter of social policy and resource allocation better determined by Parliament. The Minister also maintained that South Africa’s leave provisions compared favourably with those of countries with similar socio-economic circumstances.[10] The National Employers’ Association of South Africa (NEASA) similarly argued that extending parental leave would impose practical and economic burdens on employers.[11] The Court nevertheless found the justification advanced for the statutory distinctions inadequate.[12]
V. Judgment and Decision
The High Court declared the challenged parental-leave provisions constitutionally invalid to the extent that they unfairly differentiated between mothers and fathers, as well as between parents according to whether their children were born, adopted or conceived through surrogacy.[13] The Court held that these distinctions were inconsistent with the rights to equality under section 9 and human dignity under section 10 of the Constitution.[14] Rather than immediately invalidating the legislative framework, the Court suspended its declaration of invalidity for two years, giving Parliament an opportunity to develop a constitutionally compliant parental-leave scheme.[15] During this period, the Court introduced an interim arrangement under which qualifying parents were collectively entitled to four months of parental leave, allowing them to decide how that leave should be divided between them.[16] This remedy sought to address the immediate constitutional harm while avoiding an abrupt disruption of the existing statutory system. In doing so, the Court attempted to protect fundamental rights while recognising that Parliament remained responsible for establishing the permanent legislative framework.[17]
VI. Ratio Decidendi
The Court’s reasoning rested on the principle that parental leave must be structured consistently with constitutional equality and dignity rather than assumptions about traditional family roles. First, it found that the significantly shorter period available to fathers could not be adequately justified by treating mothers as the natural or primary caregivers. The distinction therefore risked preserving gender stereotypes and diminishing fathers’ equal role in caring for their children.[18] Secondly, the Court distinguished legitimate protection of a birth mother’s physical recovery from childcare itself. While pregnancy and childbirth may justify particular maternity-related protections, they do not provide a sufficient basis for assigning substantially different caregiving rights to parents whose children enter their families through adoption or surrogacy.[19] Finally, the Court approached the statutory distinctions through the substantive equality framework in section 9, read together with the protection of dignity in section 10.[20] Its essential reasoning was that historical patterns of gendered caregiving could not, without adequate constitutional justification, determine the legal entitlement of contemporary parents to care for their children.[21]
VII. Critical Analysis
The judgment represents a meaningful development in South African equality jurisprudence because it challenges the assumption that mothers should bear the principal responsibility for childcare. By recognising fathers as active caregivers, the Court moved beyond formal equality towards a more substantive understanding of parental rights.[22] Its recognition of birth, adoptive and commissioning parents also reflects the diversity of contemporary families and prevents parental rights from being determined solely by traditional family structures.[23]
Nevertheless, the judgment is not beyond criticism. The Court’s reasoning concerning dignity and equality could have been more clearly developed, particularly in explaining how these rights operate together within the substantive-equality framework.[24] The interim remedy of four months’ collective leave was progressive, but its practical application could create uncertainty where parents disagree about allocation or where employers face competing operational demands. More fundamentally, designing a comprehensive parental-leave system involves complex social and economic policy choices ordinarily entrusted to Parliament.[25]
The two-year suspension of invalidity therefore represents a sensible compromise. It preserved constitutional supervision while giving the legislature an opportunity to formulate a permanent solution.[26] Overall, the judgment successfully exposed the constitutional weakness of gendered caregiving assumptions, although its long-term effectiveness depends upon legislative reform capable of translating the Court’s equality principle into workable parental-leave rights.
VIII. Conclusion
Van Wyk represents an important development in South African constitutional and labour law because it confronts parental-leave rules shaped by traditional assumptions about gender and caregiving. The Court’s approach demonstrates that equality is not achieved merely by treating individuals within existing categories alike; it may require reconsidering the categories themselves where they perpetuate unequal parental roles.[27] Its emphasis on dignity likewise strengthened the constitutional protection of parents seeking to participate meaningfully in childcare. Although the interim remedy was not free from practical difficulties, suspending invalidity gave Parliament space to develop a lasting legislative response. Overall, the Court struck a persuasive balance between protecting constitutional rights and respecting legislative responsibility.
Footnotes
[1] Werner van Wyk and Others v Minister of Employment and Labour and Others [2023] ZAGPJHC 1213 (Gauteng Local Division, Johannesburg).
[2] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 1, 8–13.
[3] ibid paras 8–13.
[4] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 15–16.
[5] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 16–19.
[6] ibid paras 20–24.
[7] ibid paras 50–58; Constitution of the Republic of South Africa, 1996, ss 9–10, 172.
[8] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 13, 25–26.
[9] ibid paras 13, 24.
[10] ibid para 14.
[11] ibid para 15.
[12] ibid paras 17–19, 32.
[13] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 38–39.
[14] ibid paras 32–39.
[15] ibid para 58.
[16] ibid paras 59–61.
[17] Constitution of the Republic of South Africa, 1996, s 172(1)(b); Van Wyk (n 1) paras 58–61.
[18] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 27–32.
[19] ibid paras 20–24, 32.
[20] Constitution of the Republic of South Africa, 1996, ss 9–10; Van Wyk (n 1) paras 33–37.
[21] Van Wyk (n 1) paras 27–37.
[22] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 25–28.
[23] ibid paras 20–24, 32.
[24] Howard Chitimira and Elfas Torerai, ‘The Right to Equal Parental Leave Rights for Mothers and Fathers in the South African Case of Van Wyk & Others v Minister of Employment and Labour 2024 (1) SA 545 (GJ)’ (2024) 36(2) South African Mercantile Law Journal 277, 277–96.
[25] Van Wyk (n 1) paras 14–15, 50.
[26] Constitution of the Republic of South Africa, 1996, s 172(1)(b); Van Wyk (n 1) paras 58–61.
[27] Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, paras 20–39, 58–61.
