The case (Van Wyk and Others v Minister of Labour and Employment (2023) ZAGPJHC) was brought by Mr. and Mrs Werner and Ika van Wyk, with Sonke Gender Justice and the Commission for Gender Equality calling for a gender-neutral interpretation of the term 'employee' in the provision of the Basic Conditions of Employment Act 75 of 1997 (BCEA) concerning maternity leave. 

They demanded that the leave apply equally to parents regardless of whether they had given birth.

In the first respect, the Court found unfair discrimination between mothers and fathers, where Article 25 grants mothers a four-month maternity leave and fathers only ten days of parental leave. Both parents are able and should have the right to provide complete care for their child, and restricting the father's right to parental leave undermines the father's dignity by treating his role as marginal. 

The declaration of invalidity is suspended for two years, during which the Parliament may take action to remedy.

In the meantime, the invalid provisions will no longer apply. Consequently, all parents, regardless of gender or the basis on which the child was born or adopted, will be entitled to a minimum of four consecutive months of parental leave.

Moreover, it will have to be seen how, in practice, parents decide to take and divide the leave among themselves. Parliament should intervene by eliminating the discrimination in the current legislation without removing the benefits associated with maternity leave.

It is a very relevant decision in the world of work in South Africa, and employers will have to take it into account, both in terms of workforce presence and cost.