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 [2025] ZACC 20, the Constitutional Court (“the Court“), handed down a landmark judgment that fundamentally reshapes the South African parental leave landscape. As it has immediate effect, employers should urgently familiarise themselves with the ruling and make the required policy, payroll and human resource system adjustments.

What did the Constitutional Court decide?

The Court declared the existing parental leave framework set out in the Basic Conditions of Employment Act (“BCEA”) and the Unemployment Insurance Act (“UIF Act”), unconstitutional on the basis that it unfairly discriminates between (a) birth mothers and fathers; (b) biological, adoptive, and commissioning (surrogacy) parents, and (c) adopted children under and over the age of two.

Whilst the constitutional invalidity of various provisions of the BCEA and UIF Act have been confirmed, it has been suspended for 36 months to allow Parliament to affect the necessary amendments to the legislation. During this period of suspension, the Court has imposed an interim parental leave regime that now applies to employers.

The new interim position: how employers must treat parental leave

The traditional distinctions between maternity leave (four months), parental leave (10 days), adoption leave (10 weeks), and commissioning leave (10 weeks), fall away for practical purposes.

Pending legislative reform, (a) a single employed parent is entitled to full four months plus 10 days parental leave; (b) where both parents are employed, they are collectively entitled to four months plus 10 days’ parental leave, to be shared as they choose (consecutively, concurrently or split); (c) in the case of birth, the birth mother retains the preference for pre- and postnatal recovery, but only as part of the shared parental leave entitlement; and (d) if the parents cannot agree on how to split the parental leave available to them, such leave will be split as close as possible to half of four months and 10 parental leave days each.

Importantly, the Court emphasised that parental leave may only be taken by a parent who assumes parental responsibility (as defined in the Children’s Act). Employers may therefore require reasonable proof thereof.

What about UIF benefits?

The Court declined to impose an interim remedy regarding UIF claims. This means that employers must grant leave as per the new regime, even though UIF payment rules have not yet been updated.

Employers who have historically, whether by reason of verbal or written agreement or internal workplace policy, paid maternity benefits will likely be required to extend this entitlement to fathers and adoptive / commissioning parents to avoid possible discrimination claims.

Risks for employers

Employers who fail to comply with the Court’s interim order risk the following, amongst other things:

  • Discrimination claims: Failure to adjust policies could lead to unfair discrimination or constructive dismissal disputes.
  • Payroll misalignment: Systems still reflecting outdated categories (e.g., “maternity” vs “parental”) will need immediate reclassification.
  • Policy inconsistency: Benefits or leave arrangements that still differentiate between mothers and fathers will not withstand constitutional scrutiny.

Recommended employer actions

In light of the Court’s decision, employers are urged to:

  1. Update leave policies to reflect a gender-neutral “Parental Leave” category.
  2. Remove references to “maternity”, “paternity”, “adoption” and “commissioning” leave distinctions, save where specifically required for medical recovery.
  3. Require written elections from dual-employed parents on how they intend to allocate parental leave.
  4. Review remuneration practices to ensure the consistent treatment of all qualifying parents.
  5. Monitor legislative developments — statutory amendments to the BCEA and UIF Act must be enacted by October 2028.

Conclusion

This judgment marks a decisive shift towards gender-neutral caregiving and equal parenting in the workplace. While full legislative clarity is pending, the interim order is already binding, and employers who fail to comply face material legal and reputational risk.

Should you require assistance in redrafting policies or managing current employee requests under the new regime, we are available to advise further.