On 3 October 2025 the Constitutional Court confirmed the High Court’s judgment in Van Wyk and Others v Minister of Employment and Labour declaring certain provisions of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) and the Unemployment Insurance Fund Act 63 of 2001 (“UIF Act”) unconstitutional.
In doing so, the Constitutional Court issued an order with immediate effect regarding parental leave under the BCEA, fundamentally changing how parental leave is allocated between employed parents.
Under the new regime, where both parents are employed, a total of four months and ten days of parental leave must be shared between them.
This brings an end to historical discrimination in parental leave entitlements and places pressing compliance duties on employers from the date of the ruling.
Overview of the New Parental Leave Provisions
The Constitutional Court ordered Parliament to amend to unconstitutional provisions of the BCEA and the UIF act within 36 months of the date of the Order. In the meantime the following provisions will apply with immediate effect:
- If both parents to a parental relationship are employed, they are entitled, collectively, to four months and ten days’ parental leave, inclusive of any leave already taken under other subsections (such as maternity or adoption leave).
- The balance of the four months and ten days (after accounting for any other parental leave already taken) may be divided between the parents as they agree. This allocation offers considerable flexibility: the leave may be taken at the same time (“concurrent”) or one after the other (“consecutively”), or as a mix, provided each parent’s portion is taken as a single, uninterrupted stretch of days.
- If the parents cannot agree, the law requires the total leave be apportioned as equally as possible between them—each getting as close as possible to half of the four months and ten days. All leave must be taken within a four-month period from the birth or relevant placement, adoption or surrogacy event.
Impact on Employers
Given that the Constitutional Court’s orders took effect from the date of the Order, employers are required to implement these interim measures with immediate effect. This means updating their parental leave policies and practices without delay.
Employers will also be well-advised to revise all employment contracts, HR policies, and leave administration systems to reflect that:
- Both employed parents share a combined total of four months and ten days’ parental leave.
- Leave can be taken as agreed between the parents (potentially overlapping), or, failing agreement, split equally and consecutively within the initial four months after the qualifying event.
- These provisions apply not only to biological parents but also to adoptive and commissioning parents (surrogacy).
This is important since non-compliance exposes employers to potential claims of unfair labour practices.
Conclusion
The Court’s order enshrines gender equality and parental autonomy in the law, removing longstanding discrimination and imposing new, shared parental leave structures across all forms of parenthood.