In a historic decision handed down on 3 October 2025, the Constitutional Court has rewritten the rules on parental leave in South Africa. In Van Wyk and Others v Minister of Employment and Labour, the Court found parts of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) unconstitutional because they discriminated on the grounds of gender, sex, and family status.
The outcome? A complete shift from a gendered “maternity leave” model to a system that recognises all parents equally, no matter how their family is formed – through birth, adoption, or surrogacy.
What Has Changed
Parliament now has 36 months to amend both Acts, but the Court has already introduced an interim framework to ensure that no parent is unfairly disadvantaged in the meantime. While it left the question of UIF benefits to lawmakers, the judgment took an unambiguous stance: equality cannot wait.
At the centre of this ruling is the recognition that caregiving is not defined by gender, and that all parents should have fair and equal access to time with their children.
The New Interim Framework
Under the new system, “maternity leave” is officially replaced by “parental leave”, a neutral term that applies to every parent. The key principles are:
- A single parent or the only employed caregiver is entitled to four consecutive months of parental leave.
- If both parents are employed, they share a total of four months and ten days of leave, to divide as they wish.
- Parents may take this time together, separately, or in part, depending on what suits their family.
- If they cannot agree on how to divide it, the time must be split as evenly as possible.
- Birth mothers may take priority immediately before and after childbirth to allow for physical recovery.
- The framework applies equally to adoptive and surrogate parents.
In addition, the Court struck down the previous restriction that limited adoption leave to children under two years of age, calling it irrational and discriminatory. Parliament will determine a new, constitutionally compliant age limit in due course.
What Employers Should Do Now
Employers are advised to review and update all employment and HR documentation to reflect the new parental leave structure. Practical steps include:
- Policy updates: Replace gendered terms such as “maternity” or “paternity leave” with the inclusive “parental leave.”
- Verification: Introduce a declaration process for employees to confirm their partner’s leave arrangements where both are employed.
- Pregnancy-related clauses: Ensure birth mothers can take leave before and after delivery, and that employees who experience stillbirth or miscarriage are not excluded.
- Adoption and surrogacy: Create a clear process for verifying legal parenthood in line with the Children’s Act 38 of 2005.
- Collective agreements: If parental leave is governed by union or bargaining council agreements, begin negotiations to align with the judgment. No employee should be offered less than what the interim order requires.
Why This Matters
This decision is not merely a policy change, it’s a transformative step toward true equality in both the home and the workplace. It challenges outdated assumptions that caregiving is a mother’s duty and reaffirms that all parents, regardless of gender, deserve the same legal recognition and support.
For employers, the ruling presents a valuable opportunity to modernise workplace culture, promote inclusivity, and demonstrate compliance with evolving labour law principles.
For parents, it signals long-overdue recognition that family structures have evolved, and the law must evolve with them.
A Krüss Attorneys remains committed to guiding both employers and employees through these legislative developments. Our employment law specialists can assist with updating policies, drafting compliant documentation, and ensuring your organisation meets all legal obligations.
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