Parental leave has changed — is your policy still lawful?

South Africa’s parental leave law changed on 3 October 2025. The Constitutional Court delivered a unanimous judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, declaring the existing framework unconstitutional and issuing a new set of interim rules that apply immediately — without waiting for Parliament.

The terms ‘maternity leave’ and ‘paternity leave’, as separate and unequal legal categories, no longer reflect the law as it stands. Any employer whose leave policy, employment contracts or HR practices still use this framework may be non-compliant — and exposed to unfair discrimination claims.

This is not a future development. It is the current legal position.

Case: Van Wyk and Others v Minister of Employment and Labour (CCT 308/23) [2025] ZACC 20

Decided: 3 October 2025 — Constitutional Court of South Africa

Effective: Immediately from 3 October 2025 — employers cannot wait for Parliament

Parliament’s deadline: 36 months from 3 October 2025 to enact remedial legislation (by approximately October 2028)

Sections declared unconstitutional: Sections 25, 25A, 25B and 25C of the BCEA, and corresponding provisions of the UIF Act

Source: Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 — Constitutional Court of South Africa (saflii.org); Cliffe Dekker Hofmeyr employment law alert, 3 October 2025

What the case was about

Werner and Ika van Wyk, a married couple, made a practical family decision: because Mrs van Wyk ran two businesses, Mr van Wyk would be the primary caregiver for their newborn son. When Mr van Wyk approached his employer — a major South African bank — requesting four months of leave for this purpose, he was told he was entitled to only ten working days of paternity leave. Mrs van Wyk, as the birth mother, would have been entitled to four months. The couple could not simply transfer this entitlement.

The Van Wyks, together with Sonke Gender Justice and the Commission for Gender Equality, challenged the constitutionality of the BCEA’s parental leave framework. The Constitutional Court agreed: the system unfairly discriminated on the basis of gender and family structure, and was inconsistent with the constitutional rights to equality and human dignity.

Source: Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, paragraphs 18–19 and 42

What the law now says — the interim order

Because Parliament was given time to enact permanent legislation, the Constitutional Court issued a reading-in order — effectively rewriting the relevant BCEA provisions in the interim. These interim rules apply now, from 3 October 2025, and are binding on all employers.

BEFORE — 2 October 2025

AFTER — 3 October 2025 (in force now)

Birth mothers: 4 months’ maternity leave

All parents collectively entitled to 4 months and 10 days of parental leave — to be shared as they choose

Fathers / non-birthing parents: 10 working days’ parental leave

No separate category of ‘paternity leave’ — all parents share from the same collective entitlement

Adoptive parents: 10 weeks (child under 2 years only)

Adoptive parents entitled to parental leave on the same basis as biological parents (age cap for adoption still applies pending legislative amendment)

Commissioning parents (surrogacy): 10 weeks

Commissioning parents entitled to parental leave on the same basis as biological parents

Single employed parent: 4 months (birth mother only)

Single employed parent (any parent type): entitled to 4 months and 10 days

Source: Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 — reading-in order; Bowmans FAQ series on the Van Wyk judgment, November 2025

Where both parents are employed and they cannot agree on how to share the leave, the Court’s order provides that it is divided as equally as possible between them — each receiving as close to half of the four months and ten days as possible, completed within four months of the child’s birth.

The birth mother retains the right to leave for the period immediately before and after the birth, within the overall shared entitlement — acknowledging the physical reality of childbirth without reintroducing the inequality that was declared unconstitutional.

What about UIF? — an important clarification

The Constitutional Court’s interim order rewrites the BCEA parental leave entitlements immediately. However, it expressly declined to extend interim relief to the UIF Act, citing the financial and regulatory complexity of doing so. This creates a practical gap that employers and employees need to understand.

The current UIF position — as it stands

Birth mothers: UIF maternity benefits continue to apply on the existing basis.

Non-birthing parents (fathers, adoptive parents, commissioning parents): Entitled to take the leave under the new BCEA interim rules, but UIF benefit claims from these categories are unlikely to be accommodated under the current UIF framework pending legislative amendment.

Employers are not legally required to pay employees during parental leave — the BCEA entitlement is unpaid. However, where an employer has historically provided paid maternity benefits to birth mothers, extending equivalent paid benefits to other parent categories may be required to avoid unfair discrimination claims.

The Labour Law Amendment Bill (published February 2026) proposes to align UIF benefits with the new parental leave framework — but the Bill is not yet law.

Source: Labourwise — Parental Leave Equality: A Rocky Road Ahead?, November 2025; DML Attorneys, October 2025; Moonstone Information Refinery, March 2026

Where employers are most exposed

The risks arising from non-compliance fall into three categories.

Unfair discrimination claims.

Any policy that grants paid leave or extended leave exclusively to birth mothers, while denying equivalent benefits to fathers, adoptive parents or commissioning parents, is now likely vulnerable to a claim of unfair discrimination. The Constitutional Court’s order is not aspirational — it is binding. Employers who have not updated their policies are operating outside the law as it currently stands.

Terminology and contract exposure.

Employment contracts, HR policies, leave forms and payroll systems that refer to ‘maternity leave’ and ‘paternity leave’ as separate categories do not reflect the current legal framework. Where a dispute arises, these documents will not support the employer’s position. In some cases, they may actively work against it.

Leave request management.

From 3 October 2025, an employee — any parent, of any gender, in any family structure — could approach their employer and request leave in accordance with the new interim rules. If the employer does not know what those rules are, or has no process in place to manage shared leave arrangements, the employer is exposed to dispute. As Bowmans notes in its FAQ series, an employee could have come on the day of the ruling and requested leave under the new provisions.

Source: Bowmans — Understanding the Van Wyk Judgment: Frequently Asked Questions, November 2025 (bowmanslaw.com); DML Attorneys, October 2025 (dmllaw.co.za)

What employers need to do — now

POLICY AND COMPLIANCE REVIEW CHECKLIST

Review all leave policies — remove references to 'maternity leave' and 'paternity leave' as separate legal entitlements and replace with a unified 'parental leave' framework consistent with the Court's interim order.
Review employment contracts — identify and update any contracts that define leave entitlements using the pre-October 2025 framework.
Review leave forms and HR systems — ensure that leave request processes can accommodate shared parental leave arrangements, including leave taken concurrently or consecutively by two parents.
Review payroll rules — if the business has historically paid maternity benefits to birth mothers, assess whether equivalent paid benefits must now be extended to other parent categories to avoid discrimination claims.
Update payroll systems — reclassify leave categories from 'maternity' and 'paternity' to a unified 'parental leave' category where relevant.
Communicate with employees — staff should be informed of the change so that leave requests are handled consistently and without confusion.
Consider benefit contributions during leave — if an employer contributes to pension or medical aid during maternity leave, consider whether equivalent treatment is required for all categories of parental leave.
Monitor legislative developments — the Labour Law Amendment Bill proposes to align the BCEA and UIF permanently. Statutory amendments must be enacted by Parliament by approximately October 2028.

A note on sectoral determinations

The Constitutional Court’s reading-in order applies to the BCEA itself. The position for employees covered by sectoral determinations is less straightforward — the Court’s order does not automatically amend sectoral determinations, and the legal position for workers in those sectors is not yet clear-cut. Employers whose workforces are covered by sectoral determinations should seek specific guidance on how the ruling applies to their situation.

Source: Bowmans — Understanding the Van Wyk Judgment: Frequently Asked Questions, November 2025

Final consideration

The Van Wyk judgment is not a compliance development that employers can monitor from a distance and act on when Parliament gets around to it. The interim rules are already the law. Parliament has until approximately October 2028 to formalise permanent legislation — but employers have no equivalent grace period. The obligation to comply runs from 3 October 2025.

For most SME employers, the required adjustments are not structurally complex — they involve reviewing and updating leave policies, employment contract templates and HR processes. The risk of not doing so is considerably higher than the effort of doing it.

Members are encouraged to engage with their (SA)UEO organiser to review their current leave policies and employment contract templates in light of the Van Wyk ruling. Where specific legal advice is needed on the interpretation of the Court’s order or its application to a particular workforce, members should seek appropriate professional guidance. Contact info@saueo.co.za for further support.

Sources:

• Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 — Constitutional Court of South Africa, 3 October 2025 (available at saflii.org);

• Cliffe Dekker Hofmeyr — Constitutional Court redefines parental leave: Key implications for employers and professionals, October 2025 (cliffedekkerhofmeyr.com);

• Bowmans — Understanding the Van Wyk judgment: Frequently asked questions, November 2025 (bowmanslaw.com);

• DML Attorneys — Recent Developments: The Constitutional Court, Parental Leave and Van Wyk, October 2025 (dmllaw.co.za)

• Labourwise — Parental Leave Equality: A Rocky Road Ahead?, November 2025 (labourwise.co.za) .

• Moonstone Information Refinery — Amendment Bill reshapes parental leave and UIF benefits, March 2026 (moonstone.co.za

• DLA Piper Africa — Both parents are now entitled to parental leave in equal measure, October 2025 (dlapiperafrica.com).