Parental Leave in South Africa - Changes from the Constitutional Court

On 3 October 2025, the Constitutional Court handed down judgement in a matter that was heard towards the end of 2024, concerning the constitutionality of the current parental leave dispensation in South Africa. It confirmed that legislative changes need to be made, and has given interim’ reading-in’ provisions that must be applied while the legislative process takes it course.

Background

The matter came to the Constitutional Court via a finding from the High Court in October 2023, wherein the Van Wyks, a married couple, challenged the difference in statutory parental leave relating to different classes and types of parents - and specifically that only a birth mother is entitled to 4 months’ maternity leave while every other type of parent gets less. In particular, the Van Wyks had wanted the father to look after the newborn baby, as the mother had businesses to run and wanted to return to work. Mr Van Wyk (who was employed full time) was however only granted 10 days paternity leave by his employer. The High Court had declared the whole parental leave dispensation discriminatory and declared that the law needed to change, but this declaration had to be confirmed by the Constitutional Court (CC) to have legal effect.

This confirmation is what happened on 3 October, but the order by the CC was suspended for 36 months in order to give the legislature time to make the necessary changes to the BCEA and the UIFAct (for parental leave benefits). The CC however, in the interim, pronounced changes to the relevant sections of the BCEA dealing with all kinds of parental leave, which will apply immediately, until such time as the legislature has made the final amendments.

What are the interim changes that apply immediately?

In essence, all parents are now entitled to the same parental leave - regardless of their gender or birthing status. But, if both parents are employed, the total leave must be apportioned between them - so it does not double up. The leave is still unpaid in terms of the BCEA - but this is where the issue with UIF benefits will come in, because it will be an extra strain on the Fund if more parents (including adoptive/surrogate parents) now have the right to claim and for a longer period.

The CC however did not make any interim changes to the UIFAct, saying it is too complex for a court to decide on - so it is unclear how such claims will work during the next 36 months, apart from the UIF benefits that are already in place. The Court did however say that, if things are not moving forward according to the time frame as set out in the judgement, any party can approach the Court for supplementary relief and further interim guidance.

The changes, as they appear from the CC judgement, are as follows:

📌 There is now only “parental leave” - no longer maternity/paternity leave, etc.

📌 A “party to a parental relationship”, for the purposes of entitlement to parental leave, is defined as someone who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005 (Act No. 38 of 2005).

📌Parental Leave: All parents (biological, adoptive, or commissioning surrogacy), if both parents to a parental relationship are employed, are entitled to a total of four months and ten days of parental leave, to be shared between them as they choose and can be taken either (partly) consecutively or (partly) concurrently by the parents.

Note however, the following in the case where both parents are employed:

• Leave sharing: The parents must agree on how to divide the leave. If they cannot agree, the leave is split as equally as possible, and the total leave must be completed within 4 months from when the leave started. Each parent who takes leave has to take it in a single sequence of consecutive days.

• BUT - in the case of a biological birth, the mother giving birth must first be given preference in respect of the time allocation, since the provisions that female employees who are due to give birth may begin parental leave up to 4 weeks before the expected birth, or earlier if medically necessary, and that no female employee may work for 6 weeks after giving birth unless certified medically fit, still apply. These periods are included in the total parental leave allocation. The remainder of the total period of parental leave, after the periods above have been utilised and deducted, can then be shared / allocated between the parents as set out above.

• The period of 6 weeks’ parental leave for a birthing mother after a miscarriage or still birth, also still applies.

• If neither of the two parents to the parental relationship is the biological mother, then the shared parental leave for both parents can start on the day the child is born / under the separate provisions as set out for adoption leave or surrogacy leave, and can be taken by the parents (partly) concurrently/consecutively as they decide, or split as close to half each if they cannot agree, up to a total of 4 months and 10 days between them, and must be completed within 4 months from the start of the leave.

📌 In the case where it is a single parent, or the only employed parent in a parental relationship, that parent is entitled to take at least 4 consecutive months’ parental leave.

📌 Adoption leave - The CC has also indicated that the current age limitation of ‘under 2 years’ that applies in the case of parents qualifying for taking adoption leave, should be reviewed and is unconstitutional in its current form. However, the Court seems to have left it as is for now, subject to the 36-month review period for the legislature to make the necessary changes and decide on a limitation that can be constitutionally justified.

📌 Notification Requirements: Employees must notify their employer (or both their employers) in writing of their intended parental leave dates and return date, at least four weeks in advance (or one month for adoption/commissioning leave), unless this is not possible to do.

What does this mean for employers?

Employers will have to amend their leave policies in accordance with the CC judgement, to allow for (interim) parental leave to be taken as set out above.

In terms of the BCEA, it is all still unpaid leave (subject to UIF benefits for those who qualify) - however, 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. So a careful review of the totality of your parental leave policy and the applicable benefits, may be required.

Also to be considered, is whether an employer of one of the parents to a parental relationship will 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, for example including consent from your employee to do so, or specifying other means of verifying the information.

Conclusion

The judgement, and in particular the order with the “interim reading-in” of the BCEA sections, should be carefully studied and policy revisions and implementation checked with professional advisors as necessary.

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© Judith Griessel