The New Parental Leave Rules in South Africa Explained

South Africa’s parental leave landscape changed fundamentally on 2 October 2025. In a unanimous judgment, the Constitutional Court confirmed in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 that the parental leave provisions of the Basic Conditions of Employment Act (BCEA) were unconstitutional. The old rules, which gave birthing mothers four months of unpaid leave while fathers received a mere 10 days, were found to unfairly discriminate on the basis of gender and to violate the right to human dignity under sections 9 and 10 of the Constitution.

The case was brought by a Polokwane couple, Werner and Ika van Wyk. When their son was born, the Van Wyks agreed that Werner would be the primary caregiver while Ika managed her two businesses. His employer told him he was entitled to 10 days. He ended up taking six months of unpaid leave. That story resonated with many South African families. 

The key shift after the judgment: parents are no longer entitled to separate, parallel leave periods. Instead, they share a single pool of four months and ten days, which they allocate between themselves. 

What the Court Ordered

The Constitutional Court declared several sections of the BCEA, along with corresponding provisions of the Unemployment Insurance Fund (UIF) Act, constitutionally invalid. Parliament now has 36 months from the date of the judgment to enact remedial legislation.

Critically, the Court did not simply suspend the old rules and leave a vacuum. It put interim arrangements in place that apply immediately, while Parliament finalises new legislation.

The ruling covers all categories of parents: biological parents, adoptive parents, and commissioning parents in a surrogacy arrangement. For a father to claim parental leave under the interim rules, he must have assumed parental rights and responsibilities over the child as set out in the Children’s Act 38 of 2005.

Understanding New Parental Leave Rules

A common misunderstanding is that each parent now gets four months and ten days. However, the total entitlement is four months and ten days shared. If one parent takes three months, the other may only take the remaining one month and ten days.

This distinction matters particularly when planning leave, especially where both parents are employed and want meaningful time at home.

Three points that could catch people off guard:

1. The leave is still unpaid at the statutory level. The BCEA provides for unpaid parental leave. UIF benefits may partially offset income loss during this period, but the Act itself does not require employers to pay employees during parental leave. 

2. You must give notice. Employees are required to notify their employer in writing of their intended leave dates and expected return date. The notice period is at least four weeks in advance for biological births, and at least one month in advance for adoption or surrogacy leave, unless giving that notice is not reasonably practicable.

3. The birthing mother’s post-birth protection is not optional. Regardless of how parents choose to divide their leave, a female employee may not return to work within six weeks of giving birth unless a medical practitioner or midwife certifies that she is fit to do so. This also counts towards the shared leave pool.

What Employers Have to Do Now

The interim rules are not a suggestion; they are binding. Employers who continue applying the old framework, offering mothers four months while giving fathers only 10 days, are in breach of the interim court order and exposed to unfair discrimination claims.

Practically, employers should:

• Review and update leave policies to reflect the shared pool model and extend parental leave benefits to all parents, regardless of gender or family structure.
• Remove gender-specific language from maternity leave policies that restrict benefits to birthing mothers only.
• Train HR and line managers on how to process leave requests from fathers, same-sex partners, adoptive parents, and commissioning parents.
• Develop a process for managing split leave for two employed parents, including how to handle notifications when the parents work for different employers, and even more so when they work for the same employer.
• Extend paid parental leave benefits (where these exist as a contractual benefit) equally to all parents, to avoid discrimination claims

The Constitutional Court’s ruling does not give employers a grace period. The interim reading-in took effect immediately upon the judgment on 2 October 2025.

The Bigger Picture

The Van Wyk judgment is more than a procedural fix to the BCEA. It reflects a broader constitutional commitment to equal parenting, regardless of gender or the route by which a person became a parent. The old framework assumed that child-rearing was primarily a mother’s responsibility and that fathers needed only a fortnight to adjust. The Constitutional Court has rejected that assumption outright.

Parliament now has until approximately October 2028 to pass remedial legislation. What that legislation will look like remains to be seen. The Van Wyks originally sought four months for each parent, not a shared pool. The Court did not go that far, but the 36-month window gives Parliament room to consider a different model.

If you are a parent navigating a parental leave dispute or need advice on your rights under the new interim rules, contact Cawood Attorneys for practical family law advice from qualified attorneys.