Parental Leave Rewritten

On 3 October 2025, the Constitutional Court delivered a landmark ruling in Van Wyk and Others v Minister of Employment and Labour that fundamentally changes the parental leave landscape in South Africa.

Until now, South African law distinguished between maternity leave (for birthing mothers), limited paternity leave (10 days), and separate provisions for adoptive or commissioning parents. The Court held that these differentiated provisions unfairly discriminate on the basis of gender, family structure, and parenthood status, violating rights to equality and dignity.

The decision introduces an interim regime that employers must respect immediately, while Parliament has been granted 36 months to correct the statute.

This ruling has major implications for leave policies, HR processes, and employer-employee relationships. This blog unpacks what employers must do now, what choices to make, and how to prepare for the legislative changes ahead.

Key Changes Introduced by the Ruling

1. Unified Parental Leave
   The Court abolished separate maternity and paternity leave categories in the interim regime. All parents—biological, adoptive, or commissioning via surrogacy—are now entitled to a collective 4 months + 10 days of parental leave, which they may share.
2. Flexibility in Sharing
   If both parents are employed, they may divide the leave as they agree: consecutively, concurrently, or a mix. If they cannot agree, the Court ordered that the leave be split “as nearly as possible” evenly.
3. Single Employed Parent
   If only one parent is formally employed, that parent can take the full four months’ leave.
4. Antenatal/Postnatal Rules Included
   The birthing parent may start leave up to 4 weeks before expected birth (or earlier if medically indicated), and may not return to work for at least 6 weeks postpartum unless certified fit. These periods count toward the total leave entitlement.
5. Adoption & Surrogacy
   The previous age cap on adopted children (under two years) is no longer enforceable under the interim regime. Surrogacy and commissioning parents are fully included.
6. Suspended Declaration & Read-In
   The Court suspended the declaration of invalidity for 36 months to allow Parliament to enact remedial legislation. During this period, the Court ordered the existing law to be “read in” (interpreted) so as to grant equal parental leave rights.

Examples to Illustrate Application

These scenarios help highlight how the new regime is inclusive and flexible.

What HR & Employers Must Do: Policy Guidance

1. Update Leave Policies Immediately

• Remove gendered terms like “maternity” and “paternity” in favour of “parental leave”.
• Include a clause allowing parents to allocate leave between them with flexibility.
• Provide a default splitting clause if agreement fails (e.g. 50/50).
• Incorporate the antenatal and postnatal constraints (4 weeks before, 6 weeks after) into the policy.
• Eliminate age restrictions for adoption leave.
• Amend employment contracts, handbooks, and HR policy manuals accordingly.

2. Implement Leave Planning Procedures

• Require employees to submit a Parental Leave Election Form well before the birth or adoption date (e.g. 4 weeks’ notice).
• Document how the leave is to be shared, when, and whether it will run concurrently or consecutively.
• Offer mediation or discussion to help co-parents reach agreement.
• If no agreement is reached, apply the default splitting rule and document the rationale.

3. Adapt HR Systems & Payroll

• Modify leave-management software to allow overlapping, staggered, or shared leave blocks.
• Track total days taken by each parent.
• Ensure compliance with UIF, timekeeping, accruals, and benefits as applicable under the revised regime.
• Train HR and line managers in interpreting, applying, and explaining the new rules.

4. Handling Unique Cases

• Unemployed / Self-employed co-parent: The employed parent is entitled to full leave.
• Other employer HR coordination: If co-parents work for different employers, coordinate leave without penalising either party.
• Same-sex parents, adoption, surrogacy: Treat all these with equal entitlement under parental leave.
• Establishing parental rights: Ask for proof such as court orders, agreements, or evidence of legal parenthood to support leave applications under adoption or surrogacy.

5. Communication & Training

• Launch internal communications to explain changes to all staff.
• Provide FAQs, guidelines, and examples to employees.
• Train HR and managers to handle requests fairly and consistently.
• Maintain transparency so employees know their rights and how decisions are made.

Risks of Non-Compliance

• Unfair labour practice or discrimination claims.
• Reputational harm for being out of step with constitutional equality rights.
• Disputes with employees, potentially at CCMA or Labour Court.
• Neglecting legal obligations may demoralize employees and undermine trust.

Preparing for Parliamentary Changes

Although Parliament has up to 36 months to enact corrective legislation, you shouldn’t wait. Use this interim period to adopt the new regime in your policies and operations so your business is ready to comply when the law is formally amended. The interim remedy is binding on employers, and the Court’s order must be followed.

When Parliament enacts the remedial legislation, you may need to revisit policy definitions, benefit levels, and compliance procedures — but if you’ve already aligned with the Court’s interim order, the transition will be smoother.

Conclusion & Call to Action

The Constitutional Court’s ruling is a pivotal moment in South African labour law, affirming that equal parental leave is not just fair — it’s constitutionally required. For employers, the time to act is now.

If you’d like help interpreting this ruling, updating your leave and / or other HR policies, or managing the change in your HR systems, Elan Solutions is here to assist you.

📞 Book a free 30-minute consultation with Karlien
📧 [email protected]
📞 010 500 0979
📱 +27(0)82 572 8077

Let’s partner to ensure your business meets constitutional standards while supporting your people.