Parental leave changes for South Africa

The Constitutional Court’s has rules that all South African parents should share four months and 10 days of parental leave, which means that employers need to implement major operational changes.

CDH’s directors of employment law, Anli Bezuidenhout and Nadeem Mahomed, and candidate attorney, Haydon Anderson explained that this was a landmark judgement for parents in South Africa.

The case was initiated by Werner van Wyk and his spouse, Ika. When Ika was pregnant, Van Wyk requested four months’ maternity leave from his employer.

He wished to take this leave so he could care for their newborn while she managed her businesses. The employer denied his request, citing a policy that restricted maternity leave to birthing mothers.

As a result, he was unable to access longer parental leave, despite his family’s needs and their decision for him to be the primary caregiver.

On 2 October 2025, the Constitutional Court confirmed the High Court’s finding of constitutional invalidity in respect of maternity and parental leave provisions of the Basic Conditions of Employment Act (BCEA).

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 –

• Universal parental leave: All parents – biological, adoptive, and commissioning – are collectively entitled to four months and ten days of parental leave, to be shared 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 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.

Changes for employers

Quest by Adcorp managing executive Carole Ratcliffe explained that this ruling has prompted an important shift in how South African employers think about people, policies, and workplace culture going forward.

The ruling now gives all new parents the opportunity to share four months and 10 days of leave as they themselves see fit, regardless of their gender or how their parenthood is formed.

“This is a long-overdue correction to an unequal system and a meaningful step toward inclusive workplaces that support families in all their forms,” Ratcliffe said.

“But, as with any landmark ruling, the path from the courtroom to the HR policy manual is not linear. It requires conversation and careful planning.”

Over the next 36 months, Parliament will work to align the BCEA and Unemployment Insurance Fund (UIF) Act to comply with the judgement.

However, in the meantime, interim provisions already apply. According to Ratcliffe, this means organisations need to start adapting immediately.

Firstly, policies need to be rewritten in language that reflects families more accurately, and systems must be adjusted to record shared parental leave.

Employers must also account for cases where the parents are with different employers into account. All of these changes must be communicated to employees.

Since UIF benefits have not yet been updated to match the ruling, HR teams and employees must navigate an interim landscape of temporary measures and additional documentation.

“For HR leaders, adequate planning has become essential,” Ratcliffe said. “The requirement for parents to provide notice at least four weeks before taking leave helps, but in reality, not every leave request is predictable.”

This is because births can come earlier than expected, and adoption and surrogacy timelines can shift. The mandatory six-week medical recovery period for birth mothers also adds another layer of complexity.

She recommended that employers make use of temporary employment services (TES), to navigate employee absenses. The TES model is already structured around compliance, flexibility, and operational continuity.

“It is designed to bridge workforce gaps caused by both planned and unplanned leave, and it functions within the same legislation that governs permanent employment.”

“What changes now are the scale and consistency with which TES partnerships will be called upon, often at short notice.”