Ep 8: Van Wyk v Minister of Employment and Labour: a Pyrrhic victory?

South Africa’s parental leave and social security framework came under the spotlight in Van Wyk (https://www.saflii.org/za/cases/ZACC/...) , where the Constitutional Court was asked to confirm a High Court order declaring parts of the Basic Conditions of Employment Act and the Unemployment Insurance Act unconstitutional. At the heart of the case is a paradox, a self-employed birth mother, falls entirely outside statutory maternity protection and unemployment insurance. Yet the litigation did not challenge the exclusion of self-employed caregivers from social security. Instead, it focused on extending caregiving rights to formally employed fathers, raising difficult questions about who benefits and who remains invisible within South Africa’s social protection system. In this episode, we’re joined by Professor Kitty Malherbe (https://www.linkedin.com/in/kitty-mal...) from the University of the Western Cape, who teaches Labour and Social Security Law and researches social protection for caregivers, domestic workers, older persons, and persons with disabilities. Drawing on her recent co-authored article with Debbie, we explore how the Court may have reverted to a formal equality lens, overlooked intersectional disadvantage, and failed to engage meaningfully with section 27’s right of access to social security.