Constitutional Court Redefines parental leave in South Africa : What employers must know

6 October 2025 – In a landmark decision authored by Justice Tshiqi J, the Constitutional Court has handed down its judgment in Van Wyk and Others v Minister of Employment and Labour ([2025] ZACC 20). The ruling marks a major step forward for equality in the workplace and fundamentally redefines how parental leave is to be applied across South Africa.

At a glance:

• The Court confirmed that the existing maternity, parental, adoption and commissioning parental leave provisions under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act) are constitutionally invalid, as they unfairly discriminate between mothers, fathers, adoptive and commissioning parents.

• Parliament has 36 months to correct the legislation.

• With immediate effect, all parents, regardless of gender, family structure, or how they became parents, are collectively entitled to four months and ten days’ parental leave, which may be shared between them.

Background to the Case:

The case arose when Werner van Wyk requested four months’ maternity leave from his employer to care for his newborn while his wife, Ika van Wyk, returned to manage her business. The employer refused, limiting him to ten days’ parental leave under the BCEA.

This prompted a constitutional challenge, supported by Sonke Gender Justice and the Commission for Gender Equality, arguing that the legislation discriminated on the basis of gender, family status and the type of parenthood (biological, adoptive or commissioning).

The Constitutional Court agreed, holding that the BCEA provisions violated the rights to equality (section 9) and human dignity (section 10) of the Constitution. The Court emphasised that decisions about caregiving roles should rest with families, not employers or legislators.

What changes immediately:

Pending Parliament’s amendment of the BCEA and UIF Act, the Court ordered that the following interim framework applies:

1. Universal Parental Leave:

   All parents - biological, adoptive and commissioning - are collectively entitled to four months and ten days’ parental leave, which they may divide as they choose.

2. Flexibility and Sharing:

   Parents may take leave consecutively, concurrently, or partly overlapping. If they cannot agree, the leave is split as equally as possible.

   
   

3. Single Employed Parent:

   Where only one parent is employed, that parent may take the full leave entitlement.

   
   

4. Pregnancy and Recovery Period:

   A pregnant employee may begin leave up to four weeks before birth, and may not work for six weeks thereafter unless certified medically fit. These periods form part of the total leave.

   
   

5. Adoption and Surrogacy:

   The Constitutional Court declared the two-year age cap for adopted children unconstitutional but suspended the invalidity for 36 months to allow Parliament to amend the legislation. Accordingly, for now, adoption leave continues to apply to the adoption of a child below the age of two years.

   
   

   During this interim period, the same four-months-and-ten-days parental-leave framework applies to adoptive and commissioning parents, commencing on the date the child is placed with the adoptive parent by court order or on the date of birth under a valid surrogacy agreement.

   
   

6. Notice Requirements:

   Employees must give written notice of intended leave at least four weeks in advance (or as soon as practicable).

7. UIF Benefits:

   UIF benefit structures will remain under review until Parliament enacts remedial legislation.

   
   

Impact on Employers

Employers must act swiftly to ensure compliance with this new framework:

• Update parental and maternity leave policies to extend benefits equally to all parents.

• Amend employment contracts and HR handbooks to reflect the new rights.

• Adjust payroll and leave systems to accommodate shared or staggered leave arrangements.

• Train HR teams and managers to ensure gender-neutral application of leave policies.

• Prepare for further changes once Parliament finalises the legislative amendments.

  
  

Failure to align policies could result in claims of unfair discrimination under the Employment Equity Act and potential reputational harm.

A step towards equality:

The Constitutional Court’s judgment recognises that caregiving responsibilities are not determined by gender or biology. It represents a modern, inclusive approach to family life-one that promotes both parental choice and workplace equality.

How we can help:

At Kern, Armstrong & Associates, our Employment Law Department is already assisting clients to review and amend their HR policies in line with the Constitutional Court’s judgment.

We can assist your organisation to:

• Draft or update parental-leave policies and employment contracts;

• Conduct policy audits to ensure compliance with the BCEA and Labour Relations Act; and

• Provide legal opinions and staff training on the implementation of the new framework.

For professional assistance, contact us at info@kernattorneys.co.za.

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