SA parental leave: What you need to know

On 3rd October 2025, the Constitutional Court handed down a historic judgement concerning the constitutionality of the current parental leave legislation, in a matter Van Wyk and Others vs Minister of Employment and Labour & Others, that was heard towards the end of 2024.

Mr. Van Wyk’s wife was self-employed and wanted to return to work after the birth of their child. Mr. Van Wyk declared that he would be the primary care giver to their newborn child. Mr. van Wyk who was employed at the time, approached his employer seeking four months’ consecutive parental leave but was informed that he is only entitled to 10 days paternity leave.

Given the potential financial constraints that they would face if his wife was to take 4 months maternity leave, Mr. van Wyk opted to take an extended unpaid leave of 6 months from his employer, which consequently affected his finances and career prospects.

They submitted that the current parental leave legislation in the BCEA and UIF Act provide greater benefits to biological mothers, than every other category of parents, in particular fathers, and that this is unconstitutional and invalid.

The Constitutional Court’s findings are as follows:

• The BCEA and UIF Act provisions unfairly discriminate between mothers and fathers, and between biological, adoptive and commissioning parents.

  
  

• The denial of equal leave is unconstitutional and invalid.

  
  

• Equality in parenting is central to dignity, gender neutrality, and the best interests of children.

  
  

• Interim relief is necessary to ensure rights are immediately protected.

What is interim relief and when is it effective?

1. With immediate effect, any 2 parents may share a total of four consecutive months and ten days (approx. 130 days) of parental leave, regardless of whether they are birth, adoptive or commissioning parents in surrogacy.

2. There is now only Parental Leave – which replaces the previous Maternity, Parental Leave, Adoptive or Commissioning Leave.

3. Pending the enactment of remedial legislation, the impugned provisions of the BCEA are amended to read that the current allowance of 4 months, for biological mothers, should be retained.

4. Where only one of the parents is employed, such parent should be entitled to the full parental leave. In the case of a biological birth, the mother must have preference in respect of the time, currently allocated as preparation for birth up to 4 weeks, and for 6 weeks after giving birth unless certified medically fit.

5. Subject to this qualification, the parents should be entitled to share the available days as they choose.

6. Furthermore, the period of 6 weeks parental leave for a biological mother after miscarriage or still birth also still applies.

7. There should be a requirement that a father who wishes to avail himself for paternity leave, qualifies as one who has assumed the parental rights and responsibilities over the child as contemplated in the Children’s Act.

These rules apply immediately, even though Parliament has three years to update the written laws.

What does this mean for Employers?

1. Update their leave policies, employment contracts and leave systems to replace Maternity, Paternity, Adoptive and Commissioning leave with Parental Leave.

2. In terms of the BCEA Parental Leave remains unpaid leave subject to UIF benefits to those who qualify. Please note that if your organisation has a policy currently providing for PAID maternity/ paternity leave, then it might be deemed as unfair discrimination if the additional parental leave options do not qualify for the same benefits.

3. Allow employees to share leave flexibly between parents – where BOTH parents are employed by the same employer.

4. Train and inform HR staff and line managers on how to apply the new rules.

5. Inform employees that the UIF benefits are still be updated to match the new laws.

6. Avoid discriminatory practices in approving parental leave requests, as failure to do so may give rise to unfair discrimination claims under the Employment Equity Act.

Notification requirements

Employees must notify their employer, or both employers, in writing of their intended parental leave dates and return date, at least 4 weeks in advance or one month for adoption or commissioning parents, unless this is not possible to do so.

Further considerations:

1. Some practical issues that still need to be considered is how UIF benefits will be paid and how employers will handle cases where both parents work for different employers.

2. Furthermore, will an employer of the one of the parents to a parental relationship, be able to confirm the details of a shared parental leave agreement with the other parent’s employer in order to avoid abuse. There is no clear legal answer at this stage but it is recommended that your policy review also address this issue by including consent from your employee to do so or specifying other means of verifying the information.

This ruling brings South Africa closer to global standards on family and workplace equality. It allows parents to decide what works best for their family and encourages shared caregiving responsibilities.