PRESS STATEMENT | Ground-breaking judgment for gender equality in parental leave

Date: 26/10/2023


Judgment was handed down at the Johannesburg High Court yesterday by Deputy Judge President Roland Sutherland in the matter of Werner van Wyk & Others V Minister of Employment and Labour. It was declared that sections of the Basic Conditions of Employment Act no 75 of 1997 and  corresponding provisions in the Unemployment Insurance Fund Act no 63 of 2001 are invalid, and inconsistent with provisions of the Constitution, to the extent that they:

  • unfairly discriminate between mothers and fathers,
  • unfairly discriminate between one set of parents and another, on the basis of whether the children were born of their mother, conceived by surrogacy, or adopted.

Parliament will have two years from the date of judgment to cure the defects of these provisions, with an interim relief that entitles all parents to a collective period of at least 4 months of parental leave.

Lawyers for Human Rights acted on behalf of friends of the court (amici curiae), including the Centre for Human Rights, Solidarity Centre, Labour Research Service and the International Lawyers Assisting Workers Network. The submissions of the amici focused on international law instruments and norms relating to gender equality, non-discrimination, child rights, and the rights of families in the context of parental leave, as well as trends in other countries relating to parental leave.

Honourable Sutherland DJP held, “The reach of the Constitution, in its most modest aspirations, requires social equality between men and women and is uncompromising in actualising that as the status quo for everyone.”

“This is a huge advancement towards gender equality, recognising the importance of parents’ equal opportunity to engage in early child nurturing, and the importance of challenging gender roles,” said  Kayan Leung, Head of the Strategic Litigation Programme at LHR.

Access the full judgment here.

For further information, please contact:

Kayan Leung | kayan@lhr.org.za

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