Parental Leave Policy Updates in South Africa: Equal Parents, Equal Leave:
In October 2025 the Constitutional Court of South Africa delivered a landmark ruling in Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213; [2024] 1 BLLR 93 (GJ); (2024) 45 ILJ 194 (GJ); 2024 (1) SA 545 (GJ) (25 October 2023), declaring key parental-leave provisions of the Basic Conditions of Employment Act to be constitutionally invalid.
This ruling has redefined parental leave entitlements in South Africa and represents a fundamental step toward equality and dignity in the workplace, affirming that caregiving is a shared responsibility, not reserved for birth mothers alone.
Introduction
This case declared that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), and the corresponding provisions of the Unemployment Insurance Fund Act no 63 of 2001 (UIF Act), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions:
(a) Unfairly discriminate between mothers and fathers;
(b) Unfairly discriminate between one set of parents and another on the basis of whether their children
- Were born of the mother.
- Were conceived by surrogacy.
- Were adopted.
In summary
- All parents – biological, adoptive, and commissioning – are entitled to 4 months and 10 days parental leave, which may be shared between employed parents. If only one parent is employed, that parent is entitled to the full leave.
- Age restrictions for adoptive parents have been removed.
- Fathers must have assumed parental rights under the Children’s Act 38 of 2005 to qualify.
- Policies must be inclusive and non-discriminatory, accommodating diverse family structures.
- The Court has granted a 36-month grace period for Parliament to amend the BCEA and UIA.
To implement these amendments, we recommend the following (Note: each company will have to implement them in accordance with their own internal documents):
- Policy Update:Revise the company’s parental leave policy to reflect the Court’s findings. Most employees will be covered under the policy, making this the simplest and most efficient approach.
- Existing Employment Contracts:
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- Where contracts include parental leave provisions that are now inconsistent with the Court’s ruling, there is no need to amend every individual contract.
- Under South African law, contracts are interpreted in line with legislation and binding court judgments. This means contracts can be read as if they already incorporate the new entitlements.
- In practice, this allows the company to rely on the updated policy while ensuring employees receive the full entitlements required by law.
- Employees cannot lawfully be denied the leave guaranteed by the Court, even if their contract specifies a lesser amount.
- We advise that all employees be updated regarding the amendments and its immediate effect: Clearly explain the entitlements and procedures, and note that existing contracts will be interpreted in line with the new legal framework.
Suggested Notice to Employees
“In accordance with the Constitutional Court judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, the Company has updated its parental leave policy. All parents – including biological, adoptive, and commissioning (surrogacy) parents – are entitled to four months and ten days of parental leave. This leave may be shared between employed parents as they see fit.
This entitlement applies regardless of the age of the child, and contracts specifying different leave provisions will be read in accordance with the Court’s ruling. Employees are encouraged to familiarise themselves with the updated procedures and contact HR for clarification. The Company will continue to monitor legislative developments during the 36-month grace period and update policies as required.”
Unfortunately, the shared parental leave entitlement introduces some additional administrative steps for HR and payroll, particularly when both parents are employed by the same or different employers.
To manage this efficiently, we recommend that employees submit a clear leave plan indicating how they intend to share the four months and ten days, that HR maintain a central register tracking leave per child, and that payroll align any UI claims with approved leave periods.
This is a new phase in parental leave administration, and companies will naturally test different approaches and refine their processes over time. Clear communication with employees and simple templates for coordination between co-parents will help ensure compliance while allowing the organisation to develop the most practical method moving forward.
For parents working for different employers, the legal entitlement is guaranteed individually, but HR needs to rely on the employee’s declaration to ensure the shared leave doesn’t exceed four months and ten days in total.
Employers cannot legally require coordination between other employers, but they can create internal processes to record the employee’s plan and manage payroll/UIF compliance. We therefore recommend the following to be added to the policy:
“Where both parents work for different employers, employees are expected to coordinate the division of leave between themselves. The company will rely on the employee’s declaration for planning and payroll purposes.”
With regards to your policy update we recommend the following:
“All parents – including biological, adoptive, and commissioning (surrogacy) parents – are entitled to a total of four months and ten days of parental leave, which may be shared between employed parents as they agree. Where both parents work for different employers, the Company will rely on the employee’s declaration of the co-parent’s leave allocation for planning, payroll, and UIF purposes. This policy applies irrespective of the age of the child, and any contract provisions specifying different leave entitlements will be interpreted in accordance with the Constitutional Court judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20.”
Please take note that with UIF and Sick Pay Fund Benefits, there has not been an interim change yet.
PCASA (the Plastics Convertors Association of South Africa) is an Employers Organisation, exclusively representing our members in the Plastic Industry. We provide updated, in-depth guidance and training in labour law ensuring your business is heard and protected on key policy and regulatory matters. Contact us today!
Natalie: +27 72 968 7808 – natalie@pcasa.co.za
Gretchén: +27 82 830 7281 – gretchen@pcasa.co.za
Nadine: +27 82 308 5337 – nadine@pcasa.co.za
Office: admin@pcasa.co.za
* PCASA exclusively represents members in the Plastic Industry. *