Equal Parental Leave for All South African Parents

Constitutional Court Ruling: Equal Parental Leave for All South African Parents

On 3 October 2025, the Constitutional Court of South Africa handed down a landmark judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, declaring the maternity and parental leave provisions of the Basic Conditions of Employment Act (BCEA) unconstitutional.

This ruling fundamentally changes how parental leave will be managed in South Africa, granting equal leave rights to all parents — whether biological, adoptive, or commissioning — and placing an immediate obligation on employers to align their policies accordingly.

Background

The case originated when Werner van Wyk requested four months of maternity leave from his employer so he could care for his newborn while his wife, Ika van Wyk, ran her businesses. His request was denied because existing BCEA provisions limited maternity leave to birthing mothers.

The High Court found these provisions discriminatory, and the Constitutional Court confirmed the finding, ruling that differentiating between mothers and fathers — or between biological, adoptive, and commissioning parents — violates the right to equality under the Constitution.

What the Court Ordered

While Parliament has been given 36 months (until October 2028) to amend the BCEA, the interim order applies immediately. Employers must therefore comply with the following changes without delay:

Universal Parental Leave

All parents — biological, adoptive, and commissioning — are collectively entitled to four months and ten days (130 days) of shared parental leave.

Shared Leave Arrangement

Where both parents are employed, they may decide how to divide the leave. If they cannot agree, the leave must be shared as equally as possible.

Medical Leave for Birth Mothers

Birth mothers retain the six weeks of compulsory medical leave after childbirth and may begin parental leave up to four weeks before the expected due date, or earlier if medically required. These periods form part of the total parental leave allocation.

Single Employed Parent

If only one parent is employed, that parent is entitled to the full four months and ten days of parental leave.

Adoption and Surrogacy

Adoptive parents may start leave when a child is placed with them by court order.
Commissioning parents may start leave on the date of birth under a valid surrogacy agreement.
The previous age cap for adopted children has been removed.

Notice to Employers

Employees must notify employers in writing at least four weeks before the intended start of leave (or one month for adoption/commissioning leave), unless impracticable.

What This Means for Employers

This judgment requires immediate action from employers across South Africa:

Update HR Policies: Review and amend all parental leave, maternity, and family responsibility leave policies to reflect the new entitlements.
Equal Benefits: Extend any paid maternity or parental leave benefits previously available only to birthing mothers to all eligible parents.
Communicate Clearly: Inform employees of the changes, ensuring consistency and fairness in application.
Plan for Flexibility: Anticipate increased demand for shared parental leave arrangements and plan workforce coverage accordingly.

While Parliament has until 2028 to amend the BCEA formally, employers cannot delay implementation — the Court’s ruling is effective immediately.

Why This Matters for HR Professionals

For HR practitioners, this development represents both a compliance challenge and an opportunity to advance workplace equality.

The ruling:

Promotes gender-neutral caregiving and supports both parents in early childcare.
Encourages flexible, family-friendly workplaces.
Signals a shift toward progressive employment standards that reflect modern family structures.

Key Takeaway

The Van Wyk judgment is a transformative step toward equality and inclusivity in South African labour law. HR Consult encourages employers to act now — review your internal policies, communicate with employees, and implement equitable parental leave practices without delay.

Read the Full Judgement here

👉 For expert assistance in updating your company’s HR policies and ensuring BCEA compliance, contact us.

Office: 012 997 0037

E-mail: info@hrconsultsa.co.za

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