Constitutional Court Overhauls Parental Leave

On 3 October 2025, South Africa’s Constitutional Court ruled that the country’s parental leave laws are unconstitutional. The decision immediately changes how employers must handle maternity, paternity, adoption, and commissioning parental leave. All employers, including domestic employers, must now apply a new, gender-neutral “shared parental leave” structure.

The Ruling

In a landmark decision in Werner van Wyk and Others v Minister of Employment and Labour (CCT 23/23), the Court confirmed that parts of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act) unfairly discriminated against fathers, adoptive, and commissioning parents.

The old framework reinforced gender stereotypes and excluded many modern family types. The Court has suspended the invalid provisions for 36 months while Parliament passes new legislation. In the meantime, interim BCEA provisions take effect immediately.

New Shared Parental Leave Rules (Effective Immediately)

1. Universal Parental Leave
   All parents, biological, adoptive, and commissioning, share four months and ten days of total parental leave.
   
2. Leave Sharing
   
   • If both parents are employed, they decide how to divide the total leave.
   • Leave can be taken concurrently or consecutively, but each parent must take their portion as a single, continuous block.
   • If no agreement is reached, the default split is half each.
   • All leave must be taken within four months from the birth, adoption, or surrogacy start date.
   
   
3. Single Parent Entitlement
   If only one parent is employed, that parent gets the full four months and ten days.
4. Protection for Birth Mothers
   No employee who has given birth may work for six weeks after delivery, unless certified fit by a medical practitioner or midwife.
   This six-week recovery period forms part of the shared total leave.
5. Adoption Leave Age Cap Removed
   Adoptive parents of children of any age are now eligible for parental leave. The previous “under two years” limit is no longer valid.

What Employers Must Do Right Now

1. Update your leave policies and contracts to reflect shared, gender-neutral parental leave.
2. Apply equal benefits. If you offer paid or top-up leave, extend it to all qualifying parents.
3. Create a written leave-sharing form for employees to record how they’ll split their parental leave.
4. Verify parental status based on the Children’s Act (not just biological parenthood).
5. Train managers and payroll staff to avoid gender bias and non-compliance.

UIF Benefits

UIF has not yet been amended. Employees can still claim maternity or parental benefits under current UIF rules, but equal benefits for all parents will follow once Parliament updates the UIF Act.

Key Takeaway

From 3 October 2025, South Africa recognises shared parental leave for all families, including biological, adoptive, and commissioning. Employers must apply these new rules immediately to remain compliant with the BCEA.

AskMandla has already updated its contracts and leave policies. If you’re an AskMandla employer, no action is required; your documents and payroll settings will automatically reflect the new law.

For help updating your contracts or policies, contact info@askmandla.com or visit help.askmandla.com.