South Africa’s Constitutional Court has rewritten the rules on parental leave — and employers must take note.

In its landmark judgment in Van Wyk and Others v Minister of Employment and Labour, the Court confirmed that the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) unfairly discriminated between mothers, fathers, adoptive and commissioning parents. The old provisions have been declared unconstitutional, and the Court has introduced interim measures that apply immediately while Parliament updates the law.

What the Constitutional Court decided

The Court agreed with the High Court that limiting four months of leave to “birth mothers” only was unconstitutional. However, instead of striking down the provisions outright, it:

• Confirmed the declaration of invalidity,
• Suspended it for 36 months to give Parliament time to amend the BCEA and UIA, and
• Ordered an interim “reading-in” that gives all parents equal rights during the suspension period.

What this means in practice

Under the interim regime, effective immediately:

• Parents are jointly entitled to four months and ten days of parental leave, which they can share however they choose — consecutively, concurrently, or in any combination.
• If only one parent is employed, that parent may take the full four-month period.
• These rights apply equally to biological, adoptive and commissioning parents.
• The birth-mother may still begin leave up to four weeks before birth and must not work for six weeks thereafter unless medically certified fit — these weeks form part of the total entitlement.
• The previous limitation that “adoption leave applies only if the child is under two” is no longer valid.

The BCEA itself has not yet been formally amended, but the Constitutional Court’s interim order has legal force and must be applied now.

What leading employment experts recommend

Experts note that employers must not wait for Parliament to act. The interim ruling already binds all employers. Their key recommendations include:

1. Review and update policies immediately
   • Replace all gendered references such as “maternity leave” and “paternity leave” with inclusive “parental leave” language.
   • Reflect the new entitlement of four months and ten days, shared between parents.
2. Educate and communicate
   • Train HR staff and managers to understand the new framework.
   • Ensure employees know how to apply for leave, how to share it with their partner, and what notice periods apply.
3. Establish clear notification procedures
   • Require employees to submit written notice specifying who will take which portion of leave and the dates involved.
   • If both parents are employed by different employers, coordination between the two workplaces will be critical.
4. Audit payroll and UIF processes
   • Review how your company handles pay during parental leave, especially if you top up UIF benefits.
   • The UIF regulations are still being revised, so administrative flexibility will be needed.
5. Prepare operationally
   • Plan for longer and more flexible leave arrangements that may include non-birthing parents.
   • Review succession and coverage planning to manage extended absences.
6. Record-keeping and compliance
   • Keep detailed records of parental leave applications and sharing arrangements to ensure compliance and protect the employer if disputes arise.

Why this change matters

This judgment marks a significant shift towards gender-neutral, family-inclusive employment law in South Africa. It recognises that caregiving is a shared responsibility and removes outdated distinctions between different types of parents.

For employers, this is both a compliance obligation and an opportunity: those who update their policies early will demonstrate commitment to equality, family support, and modern workplace values.

Next steps for employers

1. Amend your policies now – don’t wait for Parliament’s formal changes.
2. Update employment contracts to reference “parental leave” consistently.
3. Communicate proactively with your workforce about their entitlements.
4. Align with UIF administration once new claim procedures are published.

Stay Compliant with Confidence

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Become a member today and ensure your organisation stays ahead of every labour law change — confidently, fairly, and compliantly.