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Introduction
In our previous article, ‘Some parents will no longer be more equal than others’ , we discussed the High Court’s judgment in van Wyk and Others v Minister of Employment and Labour (2024) 45 ILJ 194 (GJ) which declared certain provisions of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) and the Unemployment Insurance Fund Act 63 of 2001 (“UIF Act”) unconstitutional. The matter has now reached the highest court in the land. On 3 October 2025, the Constitutional Court confirmed the order of constitutional invalidity, cementing South Africa’s commitment to equality, dignity and inclusivity in the world of work for all parents.
The Constitutional Court’s decision marks a pivotal step, albeit a complicated one, in ensuring that the law recognises and supports diverse family structures, affirming that all parents – regardless of gender, biological connection and/or method of parenthood, are entitled to equal benefits conferred by statute.
Background
In the High Court, the applicants challenged the BCEA’s parental leave provisions for unfairly discriminating between different categories of parents. First, the High Court addressed the issue of commissioning and adoptive parents being granted only a ten-week period of leave, while a birth mother received sixteen weeks. The Court acknowledged that although a birthing mother requires time for physiological recovery, there was no fair reason to deny other parents the additional six weeks...
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