The Constitutional Court confirmed a father’s right to parental leave after the birth of their newborns. This judgement marks a significant shift towards equality and flexibility in parental leave, with immediate practical consequences for workplace policies and practices.
On 3 October 2025, the Constitutional Court delivered its landmark judgment in Van Wyk and Others v Minister of Employment and Labour (2025) ZACC 20 — in an application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Johannesburg.
The matter concerns two applications which relate to an order seeking confirmation of constitutional invalidity on the following sections which concern maternity and paternity leave: sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA) and sections 24, 26A, 27 and 29A of the Unemployment Insurance Act (UIF Act) (collectively referred to as the impugned provisions).
However, the Court suspended the invalidity for 36 months to allow Parliament to enact remedial legislation. In the interim, the Court ordered the following changes with immediate effect (note that these are immediately binding and need to be implemented by all employers):
Universal parental leave: All employed parents — biological, adoptive, and commissioning — are entitled to a combined four months and ten days of parental leave, to be shared between the two parents based on mutual agreement as they choose.
Leave sharing: If both parents are employed, they must agree on how to divide the leave. If they cannot agree, the leave is split as equally as possible.
Adoption age cap removed: Adoptive parents of children of any age are now eligible for parental leave.
Pregnancy and post-birth leave: Female employees who are due to give birth may begin parental leave up to four weeks before the expected birth, or earlier if medically necessary. No female employee may work for six weeks after giving birth unless certified medically fit. These periods are included in the total parental leave allocation.
Single employed parent: Where only one parent is employed, that parent is entitled to the full period of parental leave.
Notification requirements: Employees must notify their employer in writing of their intended leave dates and return date, at least four weeks in advance (or one month in advance for adoption/commissioning leave), unless impracticable.
Adoption and surrogacy: Adoption leave may begin when a child is placed with a prospective adoptive parent by court order. Commissioning parental leave may begin on the date of birth under a surrogate motherhood agreement.
This judgement reinforces the constitutional right to equality, dignity and non-discrimination. Employers must ensure that parental leave policies do not reinforce outdated gender roles or discriminate against non-birthing parents.
The UIF Act provisions relating to parental leave have also been declared unconstitutional. Employers should anticipate changes to UIF parental leave claims and monitor updates from the Department of Employment and Labour.
Employers must now extend parental leave benefits to all parents, regardless of gender or birthing status. This includes fathers and non-birthing parents, who are now entitled to share in the four months and ten days of leave. Employers should review and update their leave policies to ensure compliance and avoid discrimination. Where paid maternity leave has previously been offered only to birthing mothers, these benefits should be extended equally to all parents.
Failure to comply with the interim measures may expose employers to legal claims for unfair discrimination under the Employment Equity Act and the Constitution.
Employer Action Checklist
Review and revise leave policies to reflect the new shared parental leave model:
– Ensure equal access to paid leave benefits for all parents.
– Update HR systems and payroll to accommodate flexible leave sharing.
– Train HR personnel on the new legal requirements.
– Communicate changes clearly to employees.
Printing SA offers expert HR and Industrial Relations consulting services to assist members in interpreting and implementing the pending legislative changes.
PRINTING SA
Tel: +27 11 287 1160
Email: info@printingsa.org
Website: http://www.printingsa.org
