If you have not yet updated your parental leave policy, you are already behind. On 3 October 2025, the Constitutional Court handed down a unanimous judgment in Van Wyk and Others v Minister of Employment and Labour that fundamentally rewrote the rules and the changes took effect immediately. Not “from a date to be proclaimed”, not “once Parliament passes the amendments” immediately. With the Labour Law Amendment Bill, 2025 now out for public comment, the direction of travel is even clearer.
For a lot of South African businesses, that means the maternity leave clause sitting in your employment contracts is, at best, out of date and at worst, unlawful. If you offered four months’ paid leave to birth mothers but only ten days to fathers and you have not yet revisited that policy, you are exposed to unfair discrimination claims under the Employment Equity Act, with all the CCMA fun that goes with it.
This guide walks you through exactly how to update your policy without panic and without leaving gaps that will catch you out when an employee from a same-sex couple, a surrogacy arrangement or an adoptive family asks a question your old policy never anticipated. Let’s get into it.
Why the law changed: the Van Wyk judgment in plain English
Werner and Ika van Wyk were a young Johannesburg couple expecting their first child. Ika ran two of her own businesses; Werner was a salaried employee at a major South African bank. They made what most modern couples would consider an entirely sensible decision: Werner would take primary responsibility for caring for their newborn so that Ika could keep her businesses running.
When Werner asked his employer for four months’ leave, he was told he qualified for ten days. Full stop. So he took six months of unpaid leave instead. The household lost income, his career stalled, and the family went to court.
The Gauteng High Court agreed with them in October 2023, declaring sections 25, 25A, 25B and 25C of the BCEA and the corresponding provisions of the Unemployment Insurance Act unconstitutional. On 3 October 2025, the Constitutional Court confirmed the order.
In essence, the apex court found that the old system unfairly discriminated in three ways. It discriminated between mothers and fathers, by giving birth mothers four months and other parents only ten days locking mothers into the role of default primary carer, whether the family wanted that or not. It discriminated between biological parents and adoptive or commissioning parents, with no rational reason why an adoptive mother should receive ten weeks while a birth mother received four months. And it discriminated between adopted children themselves, by cutting off adoption leave at the arbitrary age of two.
The Court suspended the declaration of invalidity for 36 months to give Parliament time to fix the legislation. But and this is the part employers keep missing it also “read in” interim provisions that take effect immediately. So while we wait for the Labour Law Amendment Bill, 2025 (published on 26 February 2026) to be enacted, the BCEA already reads differently from what your old policy says.
The new entitlements at a glance
Here is the practical summary your HR team needs taped to the wall. These are the entitlements as they stand under the interim regime, with notes on what the proposed Bill would change once enacted.
| Scenario | Entitlement | Notes |
| Sole parent / only employed parent | At least 4 consecutive months | Applies if other parent is self-employed, unemployed, or absent. |
| Two employed parents (biological) | 4 months + 10 days (Shared) | Parents agree on the split. Can be concurrent or consecutive. |
| Birth mother’s protection | No return to work for 6 weeks | These 6 weeks form part of the shared pool for recovery. |
| Adoption (child under 2) | 4 months + 10 days (Shared) | Or 4 months if there is only one employed adoptive parent. |
| Surrogacy / Commissioning | 4 months + 10 days (Shared) | Leave starts on the date of birth under the agreement. |
| Miscarriage or stillbirth | 6 weeks’ leave | Unchanged. Starts on the day of the event (third trimester). |
Critical points to flag for your team:
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Cap on sharing: Neither parent may take more than 4 months on their own (under the proposed Bill). You cannot stack the full 4 months and 10 days onto one parent.
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Paternity leave is gone: The old 10-day “paternity leave” is folded into the single, shared pool.
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UIF Lag: UIF benefits still pay out under old categories at 66% of earnings while we wait for Parliament to update the administrative side.
Step 1: Audit your current policy and contracts
Before drafting anything new, you need to know what you have. Pull every document in your business that mentions leave, parenthood or family.
For each, run through these five questions:
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Does it treat birth mothers more generously than other parents?
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Does it use gendered language like “she” or “her” where it should use “the parent”?
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Does it provide for adoption leave only where the child is under two?
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Does it ignore surrogacy altogether?
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Does it assume leave can only be taken in one continuous block?
If you answered “yes” to any of those, you will need to redraft.
Step 2: Draft the new policy clauses
Parental Leave Policy Sample
Entitlement: Where both parties to a parental relationship are employed, they are collectively entitled to four months and ten days’ parental leave. This leave may be taken concurrently, consecutively, or in any combination agreed between the parents and notified to the employer.
A note on paid leave top-ups: If you offered fully paid maternity leave before, you must decide whether to extend this to all parents, scale it down, or move to a fixed budget. Leaving a “mothers only” paid benefit is a high-risk for discrimination claims.
Step 3: Build the apportionment agreement and notification forms
The shared model requires a written apportionment agreement between the parents that is submitted to both employers.
Your forms toolkit should include:
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Parental Leave Notification Form: Captures expected dates and return-to-work info.
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Parental Apportionment Agreement: Signed by both parents, confirming how the 4 months and 10 days are divided.
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Declaration of Parental Relationship: Confirms assumption of parental rights under the Children’s Act.
Step 4: Brief payroll on UIF parental benefits
The Constitutional Court specifically declined to amend the UIF Act, leaving that to Parliament. What this means in practice is that the UIF will continue to pay benefits under the old categories maternity, parental, adoption and commissioning at 66% of earnings.
Brief your payroll administrator on:
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Category gaps: A father taking 8 weeks might struggle with the old “10-day” UIF category. Check for updated Department of Employment and Labour guidance.
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UI-19 accuracy: Ensure codes reflect parental leave so claims are not blocked.
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Expectation management: UIF is partial and capped.
Step 5: Communicate the change to employees
Sample Memo Snippet
“Parental leave now applies equally to all parents biological, adoptive and commissioning regardless of gender or family structure. If you are expecting a child, please contact HR at least four weeks before your planned start date.”
Common pitfalls
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Assuming old rules apply: The BCEA changed on 3 October 2025. Your old policy is no defense.
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Keeping “mothers only” pay: This is likely unfair discrimination under the Employment Equity Act.
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Ignoring apportionment: Without seeing the agreement from the other employer, you cannot verify if parents are “double dipping” on leave.
FAQ: Frequently Asked Questions
Can both parents take leave at the same time?
Yes. The interim rules allow parents to take their shared 4 months and 10 days concurrently (at the same time) or consecutively (one after the other).
Does this mean fathers now get 4 months of paid leave?
The law mandates the time off (leave), but not that the employer pays for it. Unless your contract specifies a paid benefit, this leave is unpaid by the employer, and the employee must claim from the UIF.
What happens if an employee’s partner is self-employed?
If the other parent is self-employed or unemployed, the employed parent is entitled to at least 4 consecutive months of parental leave.
Is the 6-week recovery period for birth mothers still mandatory?
Yes. A birth mother may not return to work for 6 weeks after giving birth unless a doctor or midwife certifies them fit. These 6 weeks are counted as part of the total shared pool.
Wrapping up
The Van Wyk judgment moves South Africa away from the old gendered model of parenting. For employers, the work is straightforward: Audit, redraft, build forms, and communicate. If you need a hand future-proofing your policies, get in touch with the team at HRSpot.
