Talita Laubscher, Partner, and Chloë Loubser, Knowledge and Learning Lawyer, at Bowmans

The Constitutional Court’s decision in Van Wyk and Others v Minister of Employment and Labour has fundamentally altered the legal landscape for parental leave in South Africa. In this article, we unpack some of the most frequently asked questions that employers have been grappling with since the judgment was handed down on 3 October 2025.

How much parental leave are employees now entitled to?

Through its reading-in order, the Constitutional Court has effectively collapsed the (previously separate) categories of maternity leave, parental leave, commissioning parental leave and adoption leave into one unified form of leave: parental leave.

The exact entitlement depends on the employee’s circumstances. A single parent or a parent who is the only employed party in the parental relationship is now entitled to at least four consecutive months’ unpaid parental leave. If both parties to a parental relationship are employed, the parties are entitled to share four months and 10 days’ parental leave. This leave includes the time allocated to the biological mother for the preparation and recovery from birth. In this regard, a birth mother may not work for a period of six weeks after the birth of the child unless certified fit to do so by a medical doctor or midwife. She may elect to commence parental leave any time from four weeks before the birth of the child.

Can employees who are adoptive parents now request parental leave if they adopt a child of any age?

No. While the Court found the age cap for adoption leave (under two years) to be unconstitutional, it suspended the declaration of invalidity and did not provide interim relief in this regard. Thus, the current position remains: an adoptive parent is eligible for parental leave only where the child to be adopted is under the age of two. This is pending legislative amendment.

Do employers need to update their leave policies now, or can they wait until Parliament amends the legislation?

The changes to the Basic Conditions of Employment Act, 1997 (BCEA) are effective immediately from the date of the Court’s order (ie from 3 October 2025). An employee could accordingly come today and request leave from their employer in accordance with the amended BCEA provisions outlined in the judgment. If policies have not been updated – particularly those that provide for paid leave benefits for certain categories of parents – this may make such requests difficult to navigate.

We would therefore encourage employers to update their policies as soon as possible, so that there is a clear position that applies during this interim three-year period while we wait for Parliament to enact the amendments to the BCEA needed to remedy the defects identified by the Court. Of course, this does mean that employers may need to further amend their policies at the point that Parliament passes the legislative amendments, and if not already provided for, it would be advisable for policies to contain language to the effect that the policy can be amended at the employer’s discretion from time to time.

How should employers verify eligibility for, and apportionment of, parental leave?

Employers should implement robust verification procedures to confirm an employee’s entitlement to parental leave, including by requesting supporting documentation evidencing parental rights and responsibilities in line with the Children’s Act.

Policies should further reserve the right to verify information, including an employer’s partner’s leave dates, with the employee’s partner’s employer. In doing so, employers should ensure compliance with the provisions of the Protection of Personal Information Act, 2013 (POPIA) including, among other things, the requirement to put in place adequate processing notifications in respect of each data subject whose personal information the employer (as responsible party) processes.

Will employees be entitled to UIF benefits whilst on parental leave?

The statutory minimum leave entitlement is unpaid leave. However, employees may be entitled to benefits from the Unemployment Insurance Fund (UIF).

The Court found it inappropriate to provide an interim reading-in to the Unemployment Insurance Act, 2001 (UIA), reasoning that interim amendments could have substantial financial implications for the State. Accordingly, the existing provisions of the UIA will continue to apply during the interim period.

The effect of this is that, during this interim period, an employed parent might have the ability to take more leave than they were previously entitled to but may not actually receive UIF benefits for the full period. For example, fathers whose wives are unemployed and elect to take four months’ unpaid leave will still only be able to claim benefits for 10 days from the UIF.

Can employers differentiate between categories of parent when it comes to payment while on parental leave in their policies?

As the statutory entitlement is to unpaid leave, employers are free to regulate whether, and the extent to which, they pay employees whilst on parental leave at their discretion. However, differentiating paid leave entitlements among categories of parents (eg, mothers and fathers, or birth parents and adoptive or commissioning parents) carries a risk of unfair discrimination claims under the Employment Equity Act, 1998 (EEA). Any such differentiation must be justifiable. Where there are rational and fair reasons to justify differentiation in an employer’s policy, an employer should be able to successfully defend an unfair discrimination claim.

If an employer does not provide payment during periods of parental leave, what impact would this have on an employee’s medical aid, retirement fund or risk benefits?

If parental leave is unpaid, there is no general statutory obligation on an employer to continue paying benefit contributions or premiums, unless such continuation is required by the employment contract, employer policies and/ or the governing rules or insurance policies of the relevant medical aid scheme, retirement fund or risk benefit. Employers should accordingly review these documents to determine the obligations regarding contributions during unpaid parental leave.

What are the implications for employers and employees covered by existing sectoral determinations?

The Van Wyk judgment creates a complex situation for employers and employees covered by sectoral determinations and the legal position is not clear-cut.

The Court’s reading-in order is limited to the provisions of the BCEA itself and does not extend to sectoral determinations. In terms of the BCEA, the provisions of a sectoral determination remain binding until they are amended or superseded by a new or amended sectoral determination, or they are cancelled or suspended by the Minister. Further, if a matter in the BCEA is regulated also in a sectoral determination, the provision in the sectoral determination prevails. Accordingly, it appears that the amended BCEA provisions will need to be read alongside the existing provisions of the relevant sectoral determinations, until these provisions are amended by a new sectoral determination, or are cancelled or suspended.

This may result in practical complexities and conflict situations, such as where partners in a parental relationship cannot agree on how to share parental leave and the mother (who is employed in a sector where there is a sectoral determination) insists on taking four months’ maternity leave under the sectoral determination, effectively leaving her partner with only 10 days’ leave.

What practical steps should employers take now?

Employers should carefully review all relevant policies, contracts, and benefit rules to ensure that they are aligned, and updated where necessary, with due regard to both the commercial and legal considerations and risks.

Where changes will be made to existing terms and conditions or discretionary benefits, these should be preceded by a consultation process with employees or their representatives, with the aim of reaching agreement, where necessary.

Employers would also do well to develop appropriate template forms and processing notifications to facilitate leave requests, verification efforts and to ensure legal compliance.

ENDS