Parental Leave in South Africa: What the Van Wyk Ruling Means for Families

On 3 October 2025, South Africa's Constitutional Court handed down a landmark ruling that fundamentally reshapes the approach to parental leave in South Africa. The decision in Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 declares the current parental leave system unconstitutional and gives Parliament three years to fix it. In the meantime, working parents will see significant changes to their leave entitlements.

The Problem of Current Parental Leave in South Africa: A System Stuck in the Past

The case began with a simple but powerful story. Werner and Ika van Wyk were expecting their first child. Ika ran two businesses and Werner was employed. They agreed that Werner should be the primary caregiver after their son's birth. But when Werner approached his employer, he discovered he was only entitled to 10 days of paternity leave, while Ika would have been entitled to four months of maternity leave.

Faced with this reality, Werner took six months of unpaid leave, which hurt the family's finances, his working conditions, and his career prospects. The van Wyks, along with advocacy organisations, Sonke Gender Justice and the Commission for Gender Equality, decided to challenge the law. The old system created several inequalities.

Between mothers and fathers, birth mothers received four months of leave; fathers got just 10 days. Between biological and other parents, adoptive parents and commissioning parents in surrogacy arrangements received either 10 weeks or 10 days, far less than the four months available to birth mothers. Between adopted children, only parents adopting children under two years old qualified for leave benefits. Parents adopting older children received nothing.

What the Court Found

The Constitutional Court unanimously agreed that these provisions violated the Constitution on two fundamental grounds: the right to equality and the right to human dignity.

The Equality Violation

The Court found that the law discriminated unfairly based on gender. By giving mothers significantly more leave than fathers, the legislation assumed that women should be the primary caregivers. This assumption, the Court ruled, is both outdated and harmful.

The discrimination extended beyond birth parents. Adoptive and commissioning parents received substantially less leave, treating them as "lesser" parents despite facing equally demanding caregiving responsibilities. The Court rejected the idea that adoptive or surrogate families need less time to bond with their children.

The Dignity Violation

Perhaps even more significant was the Court's finding on human dignity. Justice Tshiqi wrote that the law violated dignity by perpetuating the stereotype that women are and should be primary caregivers, marginalising fathers and denying them meaningful opportunities to participate in early childcare, depriving parents of the choice to structure their caregiving responsibilities according to their own circumstances, and implying that adoptive and commissioning parents have less onerous caregiving duties

As the Court put it: "A father who chooses to share in this experience for his own wellbeing, no less than that of his children and of their mother, can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination."

The Changes: What Happens Now

The Timeline

Parliament has 36 months (until October 2028) to pass new legislation that addresses these constitutional defects. The Minister of Employment and Labour must report back to the Court six months before this deadline on the progress of remedial legislation.

Interim Arrangements (Effective Immediately)

While Parliament works on permanent reforms, temporary changes are now in effect for the Basic Conditions of Employment Act:

For Single Parents or When Only One Parent is Employed

The employed parent gets four consecutive months of parental leave. This applies equally to:

• Birth mothers;

• Birth fathers;

• Adoptive parents; and

• Commissioning parents in surrogacy arrangements.

  
  

For Two Employed Parents

Both parents together get four months and ten days of parental leave to share between them. Pregnant employees can still take up to four weeks before the expected birth date, and the mandatory six-week recovery period after birth remains in place (unless a doctor certifies fitness to return earlier).

After accounting for the mother's pre-birth and recovery time, the remaining leave can be divided however the parents agree. They can take it:

• Consecutively (one parent after the other);

• Concurrently (both parents at the same time); or

• A combination of both approaches.

  
  

If parents cannot agree on how to split the leave, it will be divided as equally as possible between them. Each parent must take their portion of leave in one continuous block of consecutive days. To access parental leave, a father or non-birth parent must have "assumed parental rights and responsibilities over the child as contemplated in the Children's Act." This provision aims to prevent abuse by absent fathers who have no involvement in caregiving.

The Age Cap is Gone

The restriction limiting adoption leave to parents of children under two years old has been removed. Parents adopting older children now qualify for the same parental leave as those adopting infants. The Court recognised that older adopted children often need even more time and attention to adjust to their new families.

The Crucial Limitations

While this ruling represents a significant step forward, several important limitations remain:

No Changes to UIF Benefits (Yet)

The interim order only modifies the Basic Conditions of Employment Act, which governs an employee's right to time off work and job security. It does not change the Unemployment Insurance Fund (UIF) benefits system. The Court acknowledged that changing UIF benefits has complex financial implications. Currently, only birth mothers in employment receive UIF maternity benefits. If all employed parents suddenly became eligible for these benefits, the financial burden on the UIF could be enormous. The Court left this issue for Parliament to resolve, though it included a safeguard: if Parliament fails to act within 36 months, parties can apply for supplementary relief to ensure some UIF benefit system remains in place.

Employers Are Not Required to Pay

The BCEA requires employers to grant leave and protect jobs, but it does not mandate paid leave. Many major employers do provide paid parental leave as a contractual benefit, but this is not universal. Parents who work for employers without paid leave provisions will need to rely on UIF benefits (subject to the limitations above), their own savings, or unpaid leave.

The Sharing Model Has Drawbacks

The four months and ten days shared between two employed parents represents progress, but it falls short of some international standards. Countries like Sweden give each parent their own separate, non-transferable parental leave allocation, which research shows is more effective at promoting gender equality in caregiving.

Under South Africa's interim system, couples must negotiate how to divide a limited pool of leave. This could lead to conflict between partners, pressure on fathers to defer to mothers, and continued gender imbalances in practice, even if the law is now gender-neutral

Administrative Challenges

The new system requires:

• Written notice to employers about leave plans;

• Coordination between two employers when both parents work;

• Agreement (or dispute resolution) about how to split leave; and

• Compliance with the requirement that each parent's leave be taken in one continuous block.

  
  

These administrative requirements may prove challenging for some families, particularly in less formal employment arrangements.

Three Years of Uncertainty

While the interim measures provide immediate relief, families and employers face 36 months of uncertainty about what the permanent system will look like. Parliament could adopt the interim approach, individual leave allocations for each parent, a different model entirely or changes to UIF benefits and funding.

What Comes Next

For Parents

If you are expecting a child or planning to adopt:

• Review your employer's parental leave policies;

• Understand that you now have more flexibility under the BCEA;

• If both parents are employed, discuss how to divide the available leave;

• Put your plans in writing and notify your employer as required; and

• Remember that UIF benefits have not yet been modified.

  
  

For Employers

Organisations should:

• Update policies and employee handbooks to reflect the interim provisions;

• Train HR personnel on the new requirements;

• Prepare for negotiations with employees about shared leave;

• Consider the administrative systems needed to manage leave coordination between partners; and

• Review contractual paid leave provisions in light of the new minimum standards.

Conclusion

The Van Wyk ruling represents a watershed moment in South African family and employment law. By declaring that the current parental leave system violates the Constitution, the Court has set in motion reforms that could reshape how families care for children and how workplaces treat working parents.

The interim measures provide immediate relief, expanding leave entitlements for fathers, adoptive parents, and commissioning parents while removing discriminatory age caps. However, significant work remains. Parliament must craft permanent legislation that addresses the complexities of UIF funding while promoting genuine equality in caregiving.

As South Africa waits for Parliament to act, one thing is clear: the country has taken a significant step toward recognising that parenting is a shared responsibility, that children thrive when both parents are involved, and that dignity requires the freedom to structure family life according to one's own circumstances and values. The next three years will determine whether South Africa builds on this foundation to create a truly progressive, equitable parental leave system.