What the landmark parental leave ruling means for parents and employers

On 3 October 2025, the Constitutional Court handed down a landmark judgment, confirming that four months of parental leave can now be shared between both parents, regardless of whether they are biological, adoptive, or commissioning (surrogacy) parents.

The information below aims to address some of the most frequently asked questions parents and employers may have about the new ruling.

Employment law experts at Cliff Dekker Hofmeyr provided the information .

What was the case about?

The case, Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20, began when Werner and Ika van Wyk challenged South Africa’s parental leave laws.

Mr Van Wyk’s employer denied him the four-month maternity leave benefit, arguing that it applied only to birth mothers. The couple had agreed that Mr Van Wyk would stay home to care for their newborn while his wife managed her two businesses. However, the law at the time did not allow him to take equivalent leave.

Their case ultimately reached the Constitutional Court, after the Gauteng High Court ruled that the parental leave provisions of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) were unconstitutional for violating the rights to equality and dignity.

What did the Constitutional Court decide?

On 3 October 2025, the Constitutional Court confirmed that sections of the BCEA and UIA were unconstitutional because they unfairly discriminated between:

Mothers and fathers; and
Parents based on whether their children were biological, adopted, or born through surrogacy.

The Court upheld the High Court’s declaration of invalidity, suspended it for 36 months to give Parliament time to amend the laws, and introduced interim measures with immediate effect.

What changes apply immediately?

The Court ordered the following interim parental leave framework, effective immediately:

Universal Parental Leave: All parents, biological, adoptive, and commissioning (via surrogacy), are entitled to four months and ten days of parental leave, which they can share as they choose.
Leave Sharing: If both parents are employed, they must agree on how to divide the leave. If they cannot agree, it is split equally.
Single Parent: If only one parent is employed, that parent is entitled to the full period of leave.
Adoption and Surrogacy: Adoptive and commissioning parents may begin leave when the child is placed or born under a court order or surrogacy agreement.
Pregnancy and Post-Birth Leave: Pregnant employees may begin leave up to four weeks before birth, or earlier if medically required, and may not work for six weeks after birth unless certified fit to do so.
Notification: Employees must inform their employers of their leave dates at least four weeks in advance (or one month for adoption/commissioning leave).

Why did the Court make this decision?

The Court found that limiting maternity leave to birth mothers violated the constitutional rights to equality and dignity.

It ruled that:

Denying fathers and other non-birthing parents equal benefits reinforces outdated gender roles that assume women are primary caregivers.
The law unfairly restricted families’ freedom to decide how to share child-rearing responsibilities.
It discriminated against adoptive and surrogacy parents, who were entitled to much shorter leave periods than biological mothers.
The Court recognised that while birth mothers have specific medical needs, nurturing and bonding are not limited to biological mothers alone.

Does this mean parents can both take leave at the same time?

Yes, if both parents are employed, they can decide whether to take the leave consecutively or concurrently.

If they cannot agree, it will be split equally. Each parent must take their portion in one continuous period.

When does Parliament have to fix the law?

Parliament has 36 months from 3 October 2025 until October 2028 to amend the BCEA and UIA to comply with the Constitution.

What does this mean for employers?

Employers are now required to:

Extend parental leave benefits to all parents, regardless of gender or whether they are birth parents.
Review and update leave policies to ensure compliance.
Apply any existing paid maternity benefits equally to all eligible parents.
Keep proper documentation of leave-sharing arrangements and ensure compliance with the Protection of Personal Information Act (POPIA) when confirming arrangements between employers.

What about the UIF benefits?

The Constitutional Court did not immediately amend the UIF provisions.

It found that changing the UIF system required careful financial and administrative consideration. Parliament will need to address UIF-related parental benefits separately before the three-year suspension period ends.

Does the judgment still protect pregnant women’s medical needs?

Yes. The Court confirmed that pregnant employees:

May begin parental leave up to four weeks before the expected due date (or earlier if medically necessary).
May not work for six weeks after giving birth, unless medically certified fit.
They are entitled to six weeks of leave following a miscarriage in the third trimester or a stillbirth.

If one parent is unemployed, can the employed parent take all the leave?

Yes. Where only one parent is employed, that parent may take the entire four months and ten days of parental leave.

Why does this ruling matter?

According to experts at Cliff Dekker Hofmeyr, this judgment marks a transformative moment in South Africa’s labour law.

It:

Promotes gender equality and family diversity.
Recognises that caregiving is a shared social responsibility.
Aligns parental rights with constitutional values of equality, dignity, and freedom of choice.

In short:

The Constitutional Court has modernised South Africa’s parental leave system, allowing families to share caregiving equally and ensuring all parents are treated with the dignity and equality guaranteed by the Constitution.