Date: 07/10/2025
On 3 October, the Constitutional Court handed down a unanimous judgment that will transform the parental leave system, taking a step towards gender equality and consideration for children’s best interests of children in parental care.
The matter stems from a 2023 High Court judgment in the matter of Werner van Wyk & Others v Minister of Employment and Labour. The High Court in Johannesburg declared that sections of the Basic Conditions of Employment Act and corresponding provisions in the Unemployment Insurance Fund Act, which limit parental leave to the birth mother, are unconstitutional.
They are declared invalid to the extent that they unfairly discriminate between parents who are birth mothers, and other legally recognised parents, including fathers, parents of children born to same-sex parents, or through surrogacy, or have adopted children.
Werner van Wyk & Others v Minister of Employment and Labour. The High Court in Johannesburg declared that sections of the Basic Conditions of Employment Act and corresponding provisions in the Unemployment Insurance Fund Act, which limit parental leave to the birth mother, are unconstitutional.
They are declared invalid to the extent that they unfairly discriminate between parents who are birth mothers, and other legally recognised parents, including fathers, parents of children born to same-sex parents, or through surrogacy, or have adopted children.
Before the Constitutional Court, which was required to confirm the High Court’s finding on unconstitutionality, Lawyers for Human Rights acted on behalf of the amici curiae (friends of the court), being the Centre for Human Rights, Solidarity Centre, Labour Research Service, International Lawyers Assisting Workers Network and the Centre for Child Law. Our submissions emphasised the urgent need to incorporate the African philosophy of Ubuntu in recognising and elevating the value of women’s work — both at home and in the workplace — as part of decolonising South Africa’s labour landscape. Our submissions further argued for South Africa’s labour laws on parental leave to be brought in line with international and regional standards, with a strong focus on the constitutional rights to gender equality, decent work, family life, and the right of the child to have their best interests considered paramount (most important) in all matters affecting them.
The submissions further drew on comparative law and global best practices, highlighting concluding observations by international treaty bodies that stress the importance of more inclusive parental leave frameworks. In doing so, we advocated for progressive parental leave policies and labour laws that are rooted in equality and inclusivity, and which reflect the values of an open and democratic society.
The Constitutional Court confirmed the High Court’s finding and referred the matter to Parliament to change the legislation.
In the meantime, all parents will have the right to decide how they share the parental leave of four months and ten days which can be taken concurrently or consecutively.
The amici welcome the various positive aspects of the judgment, particularly in relation to the equality of children born outside of a nuclear family. However, the Court missed the opportunity to fully engage with the rights of children, in particular their right to have their best interests considered paramount in matters that affect them. It is crucial that children’s rights are expressly applied and developed in novel applications of the law, like in the context of parental care, to ensure they remain centred and relevant.
“The Court’s ruling takes a step towards placing dignity and equality in the heart of parental leave. It marks a vital step in valuing care work and modernising South Africa’s labour law. I hope the public will engage with Parliament when the time comes to substantively shape legislation that reflects the needs of all interested groups” said Kayan Leung, Head of the Gender Equality Programme at Lawyers for Human Rights.
Going forward, civil society, academia, and other stakeholders will need to join hands to provide the legislature with reliable research, and submissions for the design of a legislative framework which considers the full spectrum of needs of all involved.
A copy of the judgment can be found here
A special thanks to our legal team Adv Jatheen Bhima, Adv Tamika Thumbiran, Kayan Leung and Charné Tracey.
For further information, please contact:
Kayan Leung (Lawyers for Human Rights)
Head of Programme: Gender Equality Programme
Email: kayan@lhr.org.za
Liesl Muller(Centre for Child Law)
Senior Attorney
Email: liesl.muller@up.ac.za
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PRESS STATEMENT | Land Claims Court Grants...
Lawyers for Human Rights (LHR) has successfully represented twelve families comprising of former farmworkers in the Land Claims Court (LCC),...
Date: 15/07/2021
PRESS STATEMENT | Supreme Court of Appeal...
On 21 June 2021, the Supreme Court of Appeal (SCA) handed down judgment in the matter Joao Rodrigues v National...
Date: 23/06/2021
WORLD REFUGEE DAY STATEMENT | This is...
To mark World Refugee Day and Youth Month, Lawyers for Human Rights (LHR), Jesuit Refugee Service (JRS), The Jesuit Institute of...
Date: 20/06/2021
PRESS STATEMENT | Department of Health and...
Jesuit Refugee Service (JRS), SECTION27 and Lawyers for Human Rights (LHR), organisations working and advocating the rights of refugees, asylum...
Date: 17/06/2021
YOUTH DAY STATEMENT | Let us reach...
Youth Day commemorates the uprising of the youth in South Africa as they led a revolution to end apartheid and...
Date: 16/06/2021
PRESS STATEMENT | LHR stands with LGBTIQ+...
As we mark the half-way point in Global Pride Month, LHR calls for an end to the prejudice and discrimination...
Date: 15/06/2021
JOINT STATEMENT | ‘We stand with the...
On 3 June 2021, the Southern Africa Litigation Centre (SALC) and Open Secrets launched an urgent two-part application in the...
Date: 07/06/2021
JOINT STATEMENT | Child Protection Week 2021:...
As we commemorate Child Protection Week (30 May – 6 June 2021), an umbrella body comprising eight humanitarian organisations, the...
Date: 03/06/2021
PRESS STATEMENT | LHR to Challenge Eviction...
Lawyers for Human Rights (LHR) is in the Middleburg High Court today, defending a group of retired mineworkers who previously...
Date: 25/05/2021
PRESS STATEMENT | 195 former Ekurhuleni Metro...
Following a brief postponement, Lawyers for Human Rights (LHR) is back in the Labour Appeal Court today representing dismissed workers...
Date: 25/05/2021
PRESS STATEMENT | Western Cape High Court...
Lawyers for Human Rights (LHR) welcomes the recent order granted by the Western Cape High Court as a positive step in...
Date: 19/05/2021
PRESS STATEMENT | DHA announces online renewal...
Lawyers for Human Rights welcomes recent information released by the Department of Home Affairs (DHA), announcing an online renewal process...
Date: 18/05/2021
PRESS STATEMENT | LHR Represents UN Special...
Beginning today, the Pretoria High Court will hear a challenge to government’s longstanding failure to take meaningful steps to combat...
Date: 17/05/2021
PRESS STATEMENT | LHR and Sonke Gender...
On 12 May 2021, the Western Cape High Court will hear the matter of Scalabrini Centre of Cape Town (Scalabrini)...
Date: 11/05/2021
PRESS STATEMENT | Mining Host Communities in...
This week, the Pretoria High Court is hearing a review of the 2018 Mining Charter, to which a number of...
Date: 04/05/2021
JOINT STATEMENT | Hate Crime Murders –...
South Africa, it is enough. Over the past two and half months, South Africa’s LGBTIQ+ community has been rocked by...
Date: 22/04/2021
PRESS STATEMENT | LHR briefs Portfolio Committee...
Ms. Primrose Modisane is a South African citizen by birth, however, for the past 16 years she has struggled to...
Date: 15/03/2021
PRESS STATEMENT | Lawyers for Human Rights...
Lawyers for Human Rights (LHR) has received several reports from student activists regarding the South African Police Service’s (SAPS) use...
Date: 10/03/2021
PRESS STATEMENT | LHR Launches Universal Birth...
“Universal birth registration is impossible to ignore and entirely possible to achieve.” – Archbishop Emeritus Desmond Tutu, 2009 Universal birth...
Date: 05/03/2021
PRESS STATEMENT | 195 former employees of...
Today, Lawyers for Human Rights (LHR) is in the Labour Appeal Court representing dismissed workers of the Ekurhuleni Metropolitan Municipality...
Date: 23/02/2021
PRESS STATEMENT | Wayne Ncube Appointed as...
Lawyers for Human Rights is delighted to announce the appointment of Wayne Ncube to the role of National Director of...
Date: 17/02/2021
Statement by the Southern African Nationality Network...
As the Covid-19 virus has spread across the world, we were all beset with fear and uncertainty that has now...
Date: 16/02/2021
PRESS STATEMENT | New LHR report looks...
Today Lawyers for Human Rights (LHR) released a new report on gender and migration. The report, titled “Paper Promises”, is...
Date: 08/02/2021
PRESS STATEMENT | Constitutional Court confirms unconstitutionality...
On 4 December the Constitutional Court handed down judgment in the confirmation proceedings relating to Sonke Gender Justice / President...
Date: 07/12/2020
PRESS STATEMENT | High Court Grants interim...
Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Western Cape High Court interdicting and restraining the...
Date: 04/12/2020
PRESS STATEMENT | Community journalists pledge their...
On the 26th and 27th November 2020, journalists working in community radio and community print media from around South Africa...
Date: 03/12/2020
PRESS STATEMENT | South Africa’s Department of...
In 2019 the Southern African Litigation Centre (SALC) launched an application in the Western Cape High Court challenging the decision...
Date: 16/11/2020
PRESS STATEMENT | “South Africa belongs to...
Elizabeth was born in Lesotho to a Basotho mother and a South African father. She moved to South Africa when...
Date: 13/11/2020
PRESS STATEMENT | UN Special Rapporteur for...
The United Nations Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean,...
Date: 13/11/2020
PRESS STATEMENT | LHR and Sonke Gender...
Lawyers for Human Rights (LHR) will be representing Sonke Gender Justice (Sonke) who have brought an application to the Court...
Date: 10/11/2020
PRESS STATEMENT | Ahmed Timol murder-accused to...
Lawyers for Human Rights (LHR) will be representing the Southern African Litigation Centre (SALC) who will be appearing as amicus...
Date: 05/11/2020
PRESS STATEMENT | African organisations push for...
In June 2014, the United Nations Human Rights Council adopted resolution 26/9, by which it agreed to establish an open-ended...
Date: 20/10/2020
PRESS STATEMENT | QWELANE VS SOUTH AFRICAN...
On 22 September 2020, the Constitutional Court will hear the case of Jonathan Dubula Qwelane v South African Human Rights...
Date: 21/09/2020
[PRESS STATEMENT] Lawyers for Human Rights to...
On Tuesday, 15 September 2020, Lawyers for Human Rights (LHR), in collaboration with Scalabrini Centre of Cape Town and Corruption...
Date: 15/09/2020
Statelessness in a global pandemic: an old...
A statement by the Southern African Nationality Network (SANN) to the 16th Southern African Civil Society Forum.
Date: 21/08/2020
[VACANCY] LHR seeks Candidate Attorney for eThekwini...
LHR is inviting applications from law graduates with an interest in human rights law and public interest litigation to join...
Date: 31/07/2020
[PRESS STATEMENT] Constitutional Court settles 7-year battle...
The Constitutional Court yesterday handed down judgment in a case launched by Lawyers for Human Rights in 2016, but which...
Date: 23/07/2020
[VACANCY] LHR seeks National Director
LHR is a vibrant, 40-year old non-profit organisation offering specialist public interest legal services in key programme areas such as...
Date: 08/07/2020
[PRESS STATEMENT] Residents of Industry House &...
On 29 June 2020, the High Court in Johannesburg declared section 13 (7) (c) of the South African Police Services...
Date: 01/07/2020
[PRESS STATEMENT] On World Refugee Day, LHR...
As we commemorate world refugee day it is important to uphold the fundamental rights of foreign nationals as equal to...
Date: 20/06/2020
[PRESS STATEMENT] Urgent Litigation on Covid-19 Social...
Lawyers for Human Rights (LHR) supports the Scalabrini Centre of Cape Towns’ urgent litigation to include asylum seekers and special...
Date: 17/06/2020
[PRESS STATEMENT] UN Special Rapporteur Applies to...
Lawyers for Human Rights (LHR) is representing the United Nations Special Rapporteur on the issue of human rights obligations relating...
Date: 15/06/2020
[PRESS STATEMENT] Agreement reached between the Lesetlheng...
This agreement is a significant milestone following protracted litigation and ongoing negotiations between the Lesetlheng community and Pilanesberg Platinum Mine.
Date: 11/06/2020
[PRESS STATEMENT] Fighting For Fatherhood In South...
Lawyers for Human Rights (LHR), representing the Centre for Child Law (CCL), yesterday filed an application with the Constitutional Court...
Date: 10/06/2020
[PRESS STATEMENT] Lawyers for Human Rights Releases...
On Friday, 12 June 2020, via webinar, Lawyers for Human Rights (LHR) will launch its report, “Monitoring Policy, Litigious and...
Date: 09/06/2020
Joint Statement on Child Protection Week: Protecting...
The World Health Organisation describes COVID-19 pandemic as having a devastating impact across the world. Although governments are commended for...
Date: 03/06/2020
[PRESS STATEMENT] Supreme Court of Appeal upholds...
Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Supreme Court of Appeal on 29 May 2019,...
Date: 01/06/2020
[PRESS STATEMENT] TERS extended to workers not...
Lawyers for Human Rights (LHR) welcome the amendments to the Covid-19 Temporary Employer/Employee Relief Scheme (TERS) which extend the definition...
Date: 27/05/2020
Joint Statement: In Solidarity with the Stateless
An urgent call to states, donors and other stakeholders to promote and protect the rights of stateless persons in their...
Date: 27/05/2020
LHR Launches Constitutional Challenge on Behalf of...
Lawyers for Human Rights has launched an urgent application on behalf of informal waste reclaimers in Tshwane Metropolitan Municipality, seeking...
Date: 26/05/2020
Lawyers for Human Rights Celebrates Africa Day:...
Today, the 25th of May 2020, Lawyers for Human Rights (LHR) celebrates Africa Day. Africa Day is an annual commemoration...
Date: 25/05/2020
High Court rules unmarried fathers can register...
Lawyers for Human Rights (“LHR”) welcomes the judgment handed on 19 May 2020 by Rugunanan J of the Makhanda High...
Date: 24/05/2020
Marievale Community Successfully Fights Illegal Eviction by...
In an urgent court hearing yesterday night, Lawyers for Human Rights again successfully defended the Marievale community, a small village...
Date: 22/05/2020
Strandfontein Homeless Action Committee v City of...
It is with regret that Lawyers for Human Rights announces that it has withdrawn as the attorneys of record for...
Date: 21/05/2020
Strandfontein Homeless Committee Takes on City of...
On Monday 18 May 2020, the Strandfontein Homeless Action Committee (SHAC), represented by Lawyers for Human Rights, initiated legal proceedings...
Date: 19/05/2020
Joint Statement on Workers Day 2020
A joint statement by the Universal Rights Association, Africa Diaspora Forum, the Consortium for Refugees & Migrants in South Africa,...
Date: 01/05/2020
High Court declares parts of the new...
In the matter of Lawyers for Human Rights and Others v Minister of Home Affairs and others, LHR acting in...
Date: 01/01/2003
Lawyers for Human Rights wins landmark decision...
Lawyers for Human Rights won a landmark case against the Department of Home Affairs and the Airports Company of South...
Date: 01/01/2002
Refugee rights dropped from world racism conference
Following the controversial debate surrounding reparations, the Geneva preparatory meeting of the UN World Conference Against Racism has recently decided...
Date: 01/01/2001
Human rights group plan court action over...
HUMAN rights lawyers are threatening legal action against the home affairs department for ordering border posts to turn back asylum-seekers...
Date: 01/01/2001
Die Okkupeerder: a Resource Manual for Eviction...
At the end of May 1999, the Security of Farm Workers Project launched a booklet called “Die Okkupeerder: A resource...
Date: 31/05/1999
LHR to Challenge Discriminatory Impact of COVID-19...
Lawyers for Human Rights will appear before the Pretoria High Court today on behalf of five groups of informal waste...
Date: 07/04/2020
NIAWG Advocacy Statement on COVID-19 and vulnerable...
The NIAWG calls on all concerned stakeholders and authorities to make every effort to prevent any form of harm and...
Date: 08/04/2020
LEGAL SUPPORT HOTLINE DURING #LOCKDOWNSA
Public Interest Law organisations working together, to make sure human rights are respected and protected during the COVID19 lock-down in...
Date: 31/03/2020
LHR’s Human Rights Day Statement
On this Human Rights Day, amidst the growing COVID-19 threat, Lawyers for Human Rights calls on all in South Africa...
Date: 21/03/2020
LHR Responds to COVID-19
On Sunday, 15 March 2020, President Cyril Ramaphosa declared a national state of disaster due to the COVID-19 virus outbreak....
Date: 16/03/2020
Constitutional Court rules president’s suspension of SADC...
Lawyers for Human Rights welcomes the Constitutional Court’s judgement, handed down yesterday, 11 December 2018, in the matter of Law Society...
Date: 12/12/2018
Urgent appeal to support LHR client after...
Lawyers for Human Rights is making an urgent appeal for assistance after a recent judgement by the Johannesburg High Court,...
Date: 21/10/2019
Supreme Court of Appeal secures the right...
LHR welcomes the judgment handed down by Maya P in the Supreme Court of Appeal on Monday, 8 July 2019,...
Date: 08/07/2019
Sexual offences courts critical in the fight...
Organisations in the gender-based violence sector were shocked to learn that the Department of Justice intends to investigate the possibility...
Date: 15/05/2017
Police failure to assist complainants in terms...
Lawyers for Human Rights (LHR) is deeply unsatisfied with the South African Police Service (SAPS) and Civilian Secretariat for Police...
Date: 30/09/2017
LHR rejects normalisation of violence against women
Lawyers for Human Rights (LHR) is shocked to learn that Deputy Minister of Higher Education, Mduduzi Manana, allegedly assaulted two...
Date: 07/08/2017
#NotOurLeaders campaign launched during 16 days of...
#NotOurLeaders Campaing launched by Women and Democracy Initiative, Lawyers for Human Rights and gender violence specialist during 16 Days of...
Date: 24/11/2017
No more time limit to prosecute sexual...
On Thursday 14 June 2018, the South African Constitutional Court (Court) issued an unanimous judgment confirming that there will be...
Date: 15/06/2018
LHR supports #TheTotalShutDown
Lawyers for Human Rights (LHR) supports #TheTotalShutDown, the national intersectional womxn’s march against gender based violence. All LHR women and...
Date: 01/08/2018
#NotOurLeaders
Equality Court to hear case on the...
On 26 November 2018, the Lawyers for Human Rights (LHR) will appear in the Cape High Court, sitting as an...
Date: 25/11/2018
LHR on announcement that there is no...
On Monday, 2 September, the South African government on Twitter called on women to “speak out”, and “not allow themselves...
Date: 03/09/2019
Victory for Jade September and the transgender...
On Monday 23 September 2019, the Equality Court in the Western Cape handed down judgment in the matter of September...
Date: 23/09/2019
Judgment in the case of J September
Lawyers for Human Rights, the Legal Resources Centre, and Gender Dynamix cordially invite you to a press conference, on judgment...
Date: 16/09/2019
African organisations push for binding treaty on...
As part of the latest round of negotiations on the U.N. Binding Treaty on transnational corporations and other business enterprises...
Date: 01/10/2019
Marievale Community in court today to fight...
In November and December 2017 members of the SANDF stormed into the homes of about 150 families residing in a...
Date: 17/04/2018
Mayor of Lusikisiki for contempt of a...
15 April 2018 — On Friday, 13 April 2018, the New Rest community witnessed justice in action when the Mayor...
Date: 15/04/2018
Victory for the homeless
LHR represents a group of homeless people who reside at Prince’s Park, on the corner of Prince’s Park Road and...
Date: 03/04/2018
Mr Godfrey Mtenje and his family fight...
The matter of Mr Godfrey Mtenje will continue be heard in the Land Claims Court of South Africa on the...
Date: 19/03/2018
Victory for mining host communities in 2017...
This morning, the Pretoria High Court postponed the judicial review of the Mining Charter published last year by Minister of...
Date: 19/02/2018
LHR notes the statements released by the...
LHR notes the statements released by the Chamber of Mines and the Department of Mineral Resources regarding postponement of the...
Date: 19/02/2018
Mining host communities in court to challenge...
Beginning tomorrow, four mining affected communities represented by Lawyers for Human Rights will be in the Pretoria High Court to...
Date: 18/02/2018
In memory of Rudolph Jansen
Long-time human rights lawyer, Rudolph Jansen, who fought against injustice on behalf of the poor and marginalized for over three...
Date: 27/11/2017
LHR is delighted that the Pretoria High...
LHR is delighted that the Pretoria High Court today ruled that four of its clients, should be allowed to intervene...
Date: 14/11/2017
Mary Rahube // Hedsrine Rahube & others...
Today, the High Court of South Africa, Gauteng Division, Pretoria handed down judgment in the case of Mary Rahube, a...
Date: 26/09/2017
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