On 3 October 2025, the Constitutional Court handed down a landmark judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, fundamentally reshaping South Africa’s approach to parental leave. The Court confirmed that sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) are unconstitutional for discriminating unfairly between parents based on gender and the nature of their parenthood. The ruling recognises the equal parenting rights of all parents, including biological fathers, adoptive parents, and commissioning parents via surrogacy, and introduces a new framework of universal, shareable parental leave, effective immediately.

Background to the Case

The applicant approached his employer for four months of maternity leave to care for his newborn child after he and his wife decided that she would continue managing her two businesses following the birth. The employer declined, stating that the benefit was available only to birthing mothers. The applicant challenged the constitutionality of the BCEA and UIA parental leave provisions, arguing that the laws infringed on their rights to equality and dignity. In October 2023, the High Court agreed and declared key sections of both statutes unconstitutional. The matter was referred to the Constitutional Court for confirmation.

Key Findings of the Constitutional Court

The Court upheld the High Court’s declaration of invalidity, finding that the statutory parental leave framework:

  • Unfairly discriminates between birthing and non-birthing parents;
  • Reinforces outdated gender roles, implying that only women are primary caregivers;
  • Fails to protect the rights of adoptive and commissioning parents; and
  • Limits family autonomy by dictating caregiving arrangements based on biology rather than parental choice.

The Court ruled that these provisions violate the rights to equality (section 9) and dignity (section 10) in the Constitution.

New Parental Leave Framework – Effective Immediately

Although Parliament has 36 months to amend the legislation, the Court introduced interim measures with immediate effect:

  1. Universal Leave Allocation: All employed parents, regardless of gender or method of parenthood, are jointly entitled to four months and ten days of parental leave, to be shared as they choose.
  2. Leave Sharing Rules: If both parents are employed, they must agree on how to divide the leave. Failing agreement, the leave is split equally.
  3. Pregnancy-Related Provisions Remain: Birthing mothers may still begin leave up to four weeks before the expected date and may not work for six weeks after giving birth, unless certified fit. These periods count toward the shared leave.
  4. Single Working Parent: Where only one parent is employed, that parent qualifies for the full leave entitlement.
  5. Adoption & Surrogacy Aligned: Adoptive and commissioning parents now receive equal leave rights, and the age cap for adoptive children has been removed.
  6. Notification Duty: Employees must notify their employer of intended leave at least four weeks in advance (or one month for adoption/commissioning), unless impractical.
  7. Miscarriage or Stillbirth: Birthing employees are entitled to six weeks’ leave in the event of a third-trimester miscarriage or stillbirth.

Implications for Employers

Employers must now align their parental leave policies with the Court’s order. Specifically:

  • All parents are eligible for shared parental leave, irrespective of gender or birth status.
  • Paid maternity leave benefits must be extended to any parent claiming the shared leave, not just birthing mothers.
  • Employers are advised to:
    • Review and update leave policies and employment contracts;
    • Ensure compliance with the amended legal framework;
    • Implement procedures to confirm shared leave arrangements between parents (with proper employee consent and in compliance with POPIA); and
    • Prepare for operational adjustments due to the expanded leave entitlements.

The UIF provisions remain unchanged for now. The Court held that interim changes to UIF benefits are too complex to implement without further information and suggested that supplementary relief may be sought if needed in future.

What’s Next?

The 36-month suspension of invalidity runs from 3 October 2025. Until Parliament passes corrective legislation, the Constitutional Court’s interim measures are binding and must be followed. This judgment marks a significant step forward in the evolution of family law in South Africa, recognising diverse parenting arrangements and promoting gender equality in caregiving responsibilities.

We encourage employers, IR/HR professionals, and legal practitioners to engage with these developments and share their insights.