What we know so far
South African employers are legally bound, with immediate effect, to a new parental leave system that grants equal leave entitlements to mothers, fathers, adoptive parents and parents using surrogacy, following a Constitutional Court ruling that struck down the country’s previous maternity leave framework as unconstitutional.
The Constitutional Court handed down its judgment 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 on October 3, 2025. The court declared sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act, along with corresponding sections of the Unemployment Insurance Act, constitutionally invalid, finding that the differing leave entitlements previously afforded to birth mothers, fathers, adoptive parents and commissioning parents in surrogacy arrangements amounted to unfair discrimination with no rational justification.
The declaration of invalidity was suspended for 36 months to give Parliament time to pass corrective legislation, but the court simultaneously read an interim replacement framework into the BCEA that took immediate legal effect. That interim framework remains binding today, meaning employers whose policies have not been updated already risk non-compliance, according to law firm Wright Rose-Innes.
The Department of Employment and Labour has since published the Labour Laws Amendment Bill, 2025, on February 27, 2026, to give the court’s interim framework permanent legislative form. Public comment on the Bill closed on March 28, 2026, and Employment and Labour Minister Nomakhosazana Meth told Parliament during the department’s 2026 budget vote that 216 public submissions on the Bill were under review.
Why it matters
The case originated when Werner van Wyk, an employee whose wife was pregnant, asked his employer for four months of leave so he could act as primary caregiver to their newborn while his wife managed her business. His employer refused, citing a policy that restricted four-month leave to birth mothers only. Van Wyk, joined by the Commission for Gender Equality and advocacy group Sonke Gender Justice, challenged the law in the High Court before the matter reached the Constitutional Court.
The court rejected arguments that longer leave for birth mothers could be justified on health grounds alone, finding that caregiving responsibilities apply universally to parents regardless of gender or how their family was formed. The Commission for Gender Equality, one of the applicants in the case, said in a statement that the previous framework “entrenched outdated gender roles, unfairly discriminating between parents based on sex, gender, and the method of family formation,” and called on Parliament to act swiftly to give the ruling permanent legislative effect.
Because the ruling applies immediately regardless of whether the Bill is eventually passed in its current form, employers cannot wait for Parliament to finish its process before updating their policies. Wright Rose-Innes said employers should already have consolidated separate maternity and parental leave categories into a single framework, updated adoption age thresholds, and introduced procedures for parents to submit leave-sharing agreements.
The Labour Laws Amendment Bill is not limited to parental leave. The same bill published by the department also introduces protections for workers on zero-hours or “on-call” contracts, raises statutory severance pay from one week to two weeks per completed year of service for retrenchments, and extends collective bargaining rights to gig and dependent contract workers through a new presumption-of-employment framework.
Key details and figures
Under the interim framework and the proposed Bill, an employee is entitled to four straight months of parental leave where only one parent in a relationship is employed. Where both parents are employed, they share a collective entitlement of four months and ten days, though neither parent may individually claim more than four months. The framework applies to birth parents, adoptive parents of children aged six or younger, up from the previous threshold of under two, and commissioning parents in surrogacy arrangements.
Employees who experience a third-trimester miscarriage or stillbirth are entitled to six weeks of parental leave regardless of whether parental leave has already begun. Where both parents are employed and wish to share the collective entitlement, they must conclude a sharing agreement and submit it to their respective employers, and leave may be taken concurrently, consecutively or in combination.
If parents cannot reach a sharing agreement by the time the child is born, the default position gives the birth parent four months of leave, with the other parent entitled to ten days, mirroring the old system. Where a birth parent chooses to take less than four months, the remaining portion becomes available to the other parent. For adoptive or surrogacy arrangements where parents cannot agree, the Bill specifies that leave must be shared close to equally between them.
What happens next
Parliament has until early October 2028, 36 months from the Constitutional Court’s judgment, to pass permanent legislation before the declaration of invalidity takes full effect without a substitute framework in place. The Labour Laws Amendment Bill, having completed its public comment period on March 28, 2026, is now being refined based on the 216 submissions the department says are under review, though no date has been set for its formal introduction to Parliament.
In the meantime, the interim court-ordered framework continues to apply in full, meaning the outcome of Parliament’s process will determine whether the current rules become permanent, are amended, or are replaced entirely, but will not affect employers’ obligation to comply with them now. Wright Rose-Innes said employers who fail to align their policies “risk non-compliance” regardless of the Bill’s eventual form, and urged proactive review rather than waiting for a dispute to force the issue.
