Introduction
South Africa’s laws on parental leave have changed after a major ruling by the Constitutional Court on 3 October 2025 in the case of 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 (3 October 2025)
The court found that the old laws were unfair because they gave different types of leave to mothers, fathers, and adoptive or surrogacy parents. The judges said this was unconstitutional because it discriminated based on gender and family type.
Under the old system, a birth mother could take four months of maternity leave, while a father or partner only got 10 days of parental leave. Adoptive and commissioning (surrogacy) parents also had different entitlements depending on the age of the child.
The court ruled that all parents should have equal rights to parental leave. This change supports equality, shared parenting, and the idea that both parents can care for a new child, no matter how the child comes into the family.
What Are the New Rules?
The new system gives parents a shared pool of four months and 10 days (about 130 days) of parental leave.
Here’s how it works:
- If only one parent is employed, that parent gets the full 130 days of leave.
- If both parents are employed, they can split the 130 days between them in any way they agree – for example, each taking two months, or one parent taking all the time.
- A birth mother must still take at least six weeks of leave after giving birth (for health reasons), but that time counts toward the total shared leave.
- Adoptive and commissioning parents are now treated the same as birth parents.
These rules apply immediately, even though Parliament has three years to update the written laws.
Why It Matters
This decision marks a big step forward for gender equality and family rights. It recognises that both parents can be caregivers and that family situations differ. It also helps fathers and partners play a more active role after the birth or arrival of a child.
The Commission for Gender Equality and many family organisations have welcomed the change as a victory for equality and modern family life
What Employers Should Do
Employers now need to:
- Update their policies, employment contracts, and leave systems to replace “maternity” and “paternity” leave with parental leave.
- Allow employees to share leave flexibly between parents.
- Train HR staff and managers on how to apply the new rules fairly.
- Inform employees that the Unemployment Insurance Fund (UIF) benefits might still be updated later to match the new law.
Employers are encouraged to handle requests for parental leave with flexibility and empathy, ensuring compliance with the law while supporting employees during this important life stage.
Conclusion
Some practical issues still need to be resolved – such as how UIF benefits will be paid and how employers handle cases where both parents work for different companies.
Even so, this new ruling brings South Africa closer to global standards on family and workplace equality. It allows parents to decide what works best for their family and encourages shared caregiving responsibilities.
