A single Constitutional Court judgment has fundamentally reshaped parental leave in South Africa and it’s something every employer, HR team, and working parent should be aware of.
The shift isn’t just about how much leave is available. It’s about who gets it, how it’s shared, and moves away from outdated assumptions about caregiving roles.
Whether you’re expecting a child, adopting, part of a commissioning family, or responsible for managing people and policies, this judgment has real, immediate implications.
Let’s unpack what happened, what’s changed, and what this means in practice.
How Did This Happen?
The story starts with the landmark Constitutional Court case Van Wyk and Others v Minister of Employment and Labour, handed down on 3 October 2025.
At the centre of the case was the Basic Conditions of Employment Act (“BCEA”), which historically provided:
- Four months’ maternity leave for birth mothers
- Only ten days’ parental leave for fathers
- Different (and often lesser) entitlements for adoptive and commissioning parents
The applicants argued that this structure was unfair, irrational, and discriminatory. It effectively forced families into a prescribed caregiving model – one that assumed mothers would be primary carers and other parents would play a secondary role.
The Constitutional Court agreed.
The Court found that the BCEA’s parental leave framework:
- Unfairly discriminated on the basis of gender and parental role
- Undermined the constitutional rights to equality and dignity
- Failed to reflect the reality of modern families
Importantly, the Court emphasised that families should be free to decide how caregiving responsibilities are shared, without the law dictating those roles.
What Did the Court Say?
In broad terms, the Court made three key points:
- Parental leave must be gender-neutral and inclusive, regardless of biological connection.
- Parents should be able to decide together how leave is shared.
- The law must support both parents’ involvement in early childcare, which benefits families and workplaces alike.
This judgment doesn’t just tweak the edges of the existing framework – it resets the underlying principles.
What’s the New Parental Leave Framework?
As a result of the judgment, parental leave in South Africa has been fundamentally reshaped.
The Constitutional Court set out the following structure as the constitutionally compliant position:
- Total shared parental leave: All parents are entitled to four months and ten days of paid parental leave per child, to be shared between them.
- Equal treatment of all parents: Equality for all parents: Birth parents, adoptive parents, commissioning parents, and parents in same-sex relationships all fall under a single, gender-neutral parental leave framework.
- Flexible sharing: Parents may decide how to divide the leave between them. If no agreement is reached, the leave must be split as evenly as possible, ensuring neither parent is excluded.
- Mandatory recovery period for birth mothers: A birth mother must still take six weeks of leave immediately after birth, but this period forms part of the total shared leave – it is not additional.
- Single parents: A single parent is entitled to the full four months and ten days.
This replaces the previous system, which heavily favoured one parent by default. Parental leave is now treated as a shared resource, rather than a gendered entitlement.
Is This Actually Law Yet?
This is an important point to clarify.
While the Constitutional Court has declared parts of the BCEA unconstitutional, the wording of the BCEA itself has not yet been formally amended by Parliament.
That does not mean the judgment can be ignored.
A Constitutional Court ruling has immediate legal force. From the date of the judgment:
- The old parental leave framework is invalid to the extent that it unfairly differentiates between parents.
- Courts, tribunals, employers, and regulators are required to apply the new constitutional standard.
- Parliament is expected to amend the BCEA to reflect the judgment, but the legal obligation has already shifted.
Put differently: the law is in a transition phase. The legislation will catch up – but compliance is required now.
What This Means for Employers
For employers, this isn’t a “wait and see” development. It has immediate operational consequences.
1. Update HR Policies
Parental leave policies should be reviewed and updated to reflect a shared, gender-neutral framework. Clear internal rules reduce uncertainty, prevent disputes, and protect the business.
2. Align Contracts and Systems
Employment contracts, payroll processes, and HR systems need to be able to:
- Record shared leave accurately
- Apply leave consistently
- Avoid favouring one parent over another by default
3. Train HR and Managers
Even the best policies fail if they’re misunderstood. HR teams and line managers should be trained on:
- How shared parental leave works
- How leave can be divided
- What to do if parents cannot agree
4. Plan for Disagreement
Where parents can’t agree on how to split leave, employers should apply a neutral default position in line with the Court’s guidance – typically an even split – and document the process.
A Practical Note
Some employers may be tempted to wait for Parliament to formally amend the BCEA before making changes.
That’s risky.
Continuing to apply the old framework after the judgment exposes businesses to:
- Discrimination claims
- Unfair labour practice disputes
- Constitutional challenges
Taking the right steps not only ensures compliance but also shows employees that their families are valued, boosting morale, retention, and workplace culture.
Common Questions
Can a parent take all the leave at once?
Yes, provided the total leave taken does not exceed four months and ten days and the mandatory six-week recovery period for the birth mother is respected.
What if one parent isn’t employed?
Where only one parent is employed, that parent may access the full parental leave entitlement, as there is no other employed parent with whom the leave can be shared.
In practice, while employers must allow the leave, payment during this period may still depend on UIF processes and transitional administrative rules.
What about part-time or fixed-term employees?
Entitlements may need to be prorated, depending on the employment relationship, but the underlying constitutional principles still apply.
How Lay Law Can Help
Legal changes like this can feel overwhelming – especially when the law is evolving in real time.
At Lay Law, we break down complex judgments into simple, actionable guidance, helping both employers and employees understand what their rights and obligations are under the new legal framework, how to correctly update company policies and to make informed decisions about shared leave.
Our support includes:
- Clarifying rights and obligations under the new parental leave framework
- Updating HR policies and employment contracts
- Advising on payroll and system alignment
- Training HR teams and managers
- Providing practical tools for managing shared leave fairly
Our focus is simple: helping businesses stay compliant without overcomplicating things.
Final Thoughts
The Van Wyk judgment marks a real turning point for parental leave in South Africa.
It recognises that families don’t all look the same and that the law shouldn’t force them into outdated roles. For employers, it’s an opportunity to modernise policies, reduce risk, and support employees more meaningfully.
If you’re unsure how this ruling affects your business, your workforce, or your existing policies, Lay Law can help you navigate this.
AuthorTejal Surjuprosad
