On 3 October 2025, the Constitutional Court handed down a unanimous ruling in Van Wyk v Minister of Employment and Labour and Others, confirming that South Africa's statutory four months and 10 days of parental leave may be shared between both parents. Hailed as a breakthrough for gender equity, equality and family rights, this is the first time the Court has directly addressed the constitutionality of parental leave. The judgment undoubtedly reshapes the legal landscape for families and workplaces alike.
Webber Wentzel, which advised on this matter, welcomes this landmark ruling as a vital step in advancing constitutional values and closing long-standing gaps in parental rights. While it marks a decisive move towards equality, it also brings about practical implications for employers, particularly around leave entitlements, workplace policies, and compliance.
The court's findings
The Court declared sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (BCEA) along with the corresponding provisions of the Unemployment Insurance Fund Act, unconstitutional. These provisions were found to unfairly discriminate between parents based on whether they were a birthing parent, non-birthing co-parent, adoptive parent or commissioning parent in a surrogacy arrangement.
Previously, a birthing parent was entitled to four months’ maternity leave, while the non-birthing co-parent received only 10 days. Adoptive or commissioning parents were entitled to 10 weeks or less. This differentiation was deemed discriminatory and automatically unfair and were consequently found to violate the rights to equality and human dignity under sections 9 and 10 of the Constitution.
What this means in practice
Although Parliament has been given 36 months to amend the legislation, the Court has read in interim provisions to remedy the unconstitutionality of the BCEA, which take immediate effect. The interim provisions that now govern parental leave in South Africa are as follows:
- A single parent or a parent who is the only employed parent, is entitled to four months' consecutive parental leave.
- Parents who are both employed may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
- An adoptive parent of a child younger than two years is entitled to four months' consecutive parental leave.
- If an adoption order is granted in respect of two parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
- A commissioning parent is entitled to four months' consecutive parental leave.
- Where there are two commissioning parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
Practical implications for employers
The ruling significantly expands access to protected parental leave. Employers are encouraged to review their parental leave policies and related documents and implement changes where required. In doing so, employers should determine if such entitlements emanate from contracts of employment, workplace policies, collective agreements, and/or workplace practices. Below we set out key considerations employers need to consider when implementing their policy changes.
Paid vs unpaid leave
The nature of parental leave as provided for in the BCEA is an unpaid, protected leave of absence. This remains the case. Many employers, however, currently provide paid maternity leave. Employers must now assess the unique operational and financial realities of their businesses to establish how to best extend paid benefits to all parents in alignment with the Court's ruling. The new provisions may result in more employees being away from work due to shared parental leave and the financial implications of extending paid benefits may not be feasible, while reducing them may trigger legal or employee-relations risks.
Capping leave
Employers cannot cap the number of times an employee is entitled to statutory parental leave. However, where an employer provides paid parental leave, it may set limits on how often paid leave is available, and the monetary value thereof, with subsequent periods of parental leave potentially being unpaid.
Managing shared leave
Beyond financial considerations, the administrative processes governing leave must be updated to cater for shared leave arrangements. Employers will be required to grant parental leave benefits based on the strength of the information provided by employees. To ensure that parents share the allocated parental leave as envisaged by the judgment, employers may require a declaration from employees as to how the leave will be shared.
If the co-parent is employed by a different employer, the employee's employer may have to confirm the leave-sharing arrangement with the co-parent's employer. While employees typically consent to the processing of their personal information for employment purposes, the co-parent will not have provided such consent. Employers should obtain the co-parent's consent to receive and process the information disclosed in the written notification and comply with the Protection of Personal Information Act (POPIA) when verifying such information. While trust remains central in all employment relationships, policies should make provision for the recovery of overpayments or disciplinary action if an employee misrepresents shared leave arrangements.
Key actions for employers
- Review and update all employment contracts, policies, and procedures relating to parental leave immediately.
- Prepare template forms for shared parental leave notifications with appropriate declarations and consent provisions.
- Assess financial implications of extending enhanced benefits to all categories of parents.
- Train HR teams on the new requirements, verification procedures, and data protection obligations.
- Monitor and, if possible, participate in the legislative developments, as Parliament has 36 months to enact permanent legislation.
- Ensure compliance with interim provisions to avoid unfair discrimination claims.
The Court’s decision in Van Wyk is a landmark ruling that advances equality, dignity, and the recognition of diverse families. It challenges entrenched stereotypes about caregiving and ensures that all parents can access meaningful leave.
For corporate South Africa, the case is more than a symbolic move toward constitutional ideals. It requires immediate action to update policies, address cost implications, and manage new operational complexities. In this way, employers can play a central role in realising the constitutional promise of equality, while ensuring workplace policies remain practical, sustainable, and fair. Webber Wentzel is proud to have advised in this matter and remains committed to helping clients navigate this transition.
