Landmark Judgment Seeks to Overhaul Existing Maternity and Parental Leave Provisions

​​​​​​​​​​In a judgment with constitutional significance for the workplace, the High Court has ruled that all parents, irrespective of gender, should be entitled to four months of parental leave from their employers.

On 25 October 2023, the High Court handed down a judgment indicating a significant shift in parental leave rights. In the groundbreaking case of Van Wyk and Others v the Minister of Employment and Labour and Others, the applicants advanced a gender-neutral interpretation of the term "employee" in the provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA) concerning parental leave. Their argument was simple: maternity leave, as currently provided for, should not be limited to those who have given birth. Instead, it should apply to all parents, regardless of gender or birthing status, providing them with the same right to share in the four months of parental leave.

The case challenged not only the legal interpretation of maternity leave but also broader societal norms and expectations about parental roles. This case sparked intense debate and diverse opinions on its merits and will have a significant impact in the workplace.

The heart of the applicants' argument was to ensure the equal treatment of parents. They sought to eliminate the archaic distinction between birthing parents and non-birthing parents on maternity leave. By doing so, they aimed to secure a more inclusive and equitable approach towards family support, recognising the shared responsibilities and experiences of both parents.

The section of the BCEA under scrutiny was section 25 and its subsequent amendments, which address maternity leave, parental leave, commissioning parental leave, adoption leave and their respective durations. This section provides the legal framework that the applicants aimed to reform. Their assertion was that these sections perpetuated an unequal system, favouring birthing parents and neglecting the rights of non-birthing parents.

The Court’s decision departs from the conventional interpretation of these sections. It recognised the need to address the existing inequality and decided to modify section 25 to align with the Van Wyks' progressive vision. The Court said that a single parent or two parents are collectively entitled to at least four consecutive months of parental leave. It acknowledged the need to address inequality and decided that, in the interim, the appropriate means to do so is to extend the right to four consecutive months of parental leave. In other words, each pair of parents of a qualifying child should share the four months of leave as they see fit.

This landmark decision has the potential to transform the parental leave landscape in South Africa. While the judgment will require confirmation by the Constitutional Court, it sets a new precedent for parental rights and equality in the workplace.

Depending on the ultimate relief granted, this decision will allow, where they so choose, two parents dividing the four months of parental leave in different ways to care for their newborn children.​ Employers should take note of the operational and cost implications, particularly if they provide paid maternity leave. Employers would be expected to provide the paid parental leave to all individual employees or employees who are a pair of parents. As the legal landscape evolves to accommodate this expanded definition of parental leave, it is essential for employers to review their policies and practices to ensure compliance with the new legal framework.

The Van Wyk case represents a significant step toward achieving gender equality and shared parental responsibility. This court decision has set a precedent that may pave the way for a more inclusive and supportive work environment for all parents in South Africa, ultimately benefiting families, employees, and employers.


These materials are provided for general information purposes only and do not constitute legal or other professional advice. While every effort is made to update the information regularly and to offer the most current, correct and accurate information, we accept no liability or responsibility whatsoever if any information is, for whatever reason, incorrect, inaccurate or dated. We accept no responsibility for any loss or damage, whether direct, indirect or consequential, which may arise from access to or reliance on the information contained herein.

© Copyright Webber Wentzel. All Rights reserved.

Webber Wentzel > News > Landmark Judgment Seeks to Overhaul Existing Maternity and Parental Leave Provisions
Johannesburg +27 (0) 11 530 5000
Cape Town +27 (0) 21 431 7000
Validating email against database, please wait...
Validating email: please wait...
Email verified: Please click the confirmation link sent to your mailbox, also check junk/spam folder. If you no longer have access to this email address or haven't received the verification email then email
Email verified: You are being redirected to manage your subscription
Email could not be verified: Please wait while you are redirected to the Subscription Form
Unanticipated error: Saving your CRM information Subscription Form