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Parental Leave Rewritten

Parental Leave Rewritten: What South African Employers Must Know

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

Scenario

What the Ruling Requires

Notes / HR Implication

Parent A and Parent B both work

They must share the 4 months + 10 days, according to their agreement.

If they fail to agree, split as evenly as possible.

Only one parent is formally employed

That parent may take full 4 months leave.

No sharing required.

Adoption of a child aged 4

The adoptive parent is eligible for full parental leave.

The old “under 2 years” limit is no longer valid.

Commissioning parent from surrogacy

Entitled to parental leave under the same scheme.

HR must treat commissioning parents equally.

Birthing parent wants to start leave 5 weeks before birth

May be allowed if medically justified.

Leave before birth counts within the entitlement.

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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.

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HR Practices Review

When Is the Right Time to Review Your HR Practices?

As a business owner or manager, you’re constantly balancing strategy, people, and business performance. But when it comes to human resources, many companies fall into a reactive cycle—only reassessing policies and practices when a crisis occurs. The truth is, effective HR should be proactive and foundational, not just a response to issues.

So, when is the right time to review your HR practices? The answer: sooner than you think—and more often than you might currently be doing.

  1. When You’re Planning for Growth

Whether you’re hiring, expanding into new markets, or scaling operations, your people strategy needs to align with your business goals. Reviewing your HR practices ensures that:

  • Your structures and job roles are fit for purpose.
  • You’re compliant with labour legislation during the expansion.
  • You have the right people, with the right skills, in the right seats.
  1. When Business Feels Stuck or Unproductive

If your team is demotivated, turnover is rising, or productivity is slipping, your HR practices may need fine-tuning. Regular reviews can highlight:

  • Gaps in and focused/targeted training and development.
  • Misaligned or outdated position descriptions and performance metrics.
  • Poor communication or leadership practices.

These issues, when addressed early, can reignite employee engagement and performance.

  1. When Laws and Regulations Change

South Africa’s labour laws are detailed and dynamic. If your HR policies aren’t staying in step with changes to the Basic Conditions of Employment Act, Employment Equity Act, or Labour Relations Act, you’re putting your business at risk. Regular reviews help ensure ongoing compliance and peace of mind.

  1. When You’re Facing a New Year (or Quarter)

While many businesses conduct annual reviews at year-end, it’s often rushed or overshadowed by closing activities. A strategic HR review is best scheduled ahead of a new year or quarter, allowing time to:

  • Adjust policies based on lessons from the past year and latest best practice / legislation changes.
  • Develop clear objectives for performance assessment, employee development, succession planning and retention.
  • Align HR strategies with upcoming business plans.
  1. When You’re Unsure Whether You’re on Track

Sometimes you just need clarity. A comprehensive HR review can provide valuable insight into:

  • Whether your HR function supports your strategic goals.
  • What’s working well—and what’s holding your team back.
  • Which processes need refinement or automation.

How Elan Solutions Can Help

At Elan Solutions, we specialise in HR strategy, operations, and coaching—tailored to South African businesses. Whether you’re a growing SME or an established enterprise, we help you:

  • Make labour legislation work for you.
  • Evaluate your current HR processes.
  • Align HR with your business goals.
  • Create actionable plans that boost productivity, compliance, and engagement.

Let us be your partner in building a people-first, future-ready business.

📩 Contact us today at [email protected]
💬 Or book a free consultation to discuss how we can support your HR journey.

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A brand-new Website!

After weeks of hard work and dedication we are proud and delighted to officially announce the launch of our new website.

Our goal with the new website is to provide visitors with a more intuitive structure to access our services and solutions.  The new website is creative, interactive and informative. Allowing visitors to browse information based on their own choice.

Our current and prospective customers will find useful information about our services on our home page, as well as helpful information and relevant articles in the blog section.

We would like to thank our amazing collaboration partner Upfront Solutions for donating time and energy to make the site a reality.

For any questions, suggestions, feedback, or comments, please contact us.

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Announcing our new logo!

We are proud to announce the launch of our new logo as part of the ongoing growth and evolution of our company brand.

Our former logo

has been replaced by a new corporate identity

We made the decision to reposition our services and target market as our business evolves and grows, providing creative solutions, connecting people. This is reflected in the new logo with three people connected through a shining light bulb.

Currently we are positioning ourselves as the Human Resources Outsourced Services business of choice.  We realised that it is the perfect time to evaluate our brand logo and align it to who we are now and where we are going in the future.  All related communication, marketing and social media will be updated in due course with the logo.

We thank you for the support of our business and remain committed to providing excellence in outsourced human resources services.

Announcing our new logo! Read More »