On 3 October 2025, the Constitutional Court of South Africa handed down a historic judgment in Van Wyk & Others v Minister of Employment and Labour [2025] ZACC 20.

For years, South Africa’s labour laws treated parents unequally, with mothers entitled to four months of maternity leave, while fathers received only ten days of parental leave. Adoptive and commissioning parents were also treated differently.

The Court found that these distinctions were unconstitutional, unfairly discriminating on the basis of gender, family structure, and birth circumstance.

In its judgment, the Court not only struck down the old provisions of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act), it went a step further and gave new interim wording that now applies immediately to all workplaces in South Africa.

You can read the full judgment here: Van Wyk & Others v Minister of Employment and Labour [2025] ZACC 20 (SAFLII)

What Exactly Did the Court Decide?

In practical terms:

• Parents are now collectively entitled to four months and ten days of parental leave.

• This leave may be shared between both parents in any way they agree, concurrently, consecutively, or partly both.

• If the parents cannot agree, the leave must be divided as close to half as possible for each parent.

• The birth mother still has protected recovery time for at least six weeks post-birth (unless certified fit to return earlier).

• Adoptive and commissioning parents (those using surrogacy) now enjoy the same parental leave rights as biological parents.

Parliament now has 36 months to formally amend the BCEA and UIF Act to reflect this judgment, but until then, the Court ordered that the following interim provisions be read directly into the BCEA, meaning they apply immediately.

The New Interim Parental Leave Rules (Now Binding)

Here’s the core of what the Constitutional Court has inserted into law:

Section 25(4A)
If both parties to a parental relationship are employed, they are entitled in the aggregate to four months and ten days’ parental leave, inclusive of any leave taken by the birth mother.

Section 25(4B)
The parents may take this leave in any manner they agree - concurrently, consecutively, or partly concurrently and partly consecutively.

Section 25(4C)
If they cannot agree, the leave must be shared equally, and all leave must be completed within four months of the birth (or adoption/commissioning date).

Section 25B and 25C
Adoption and commissioning parents now receive identical rights - four months and ten days shared between them.

In short:
Every parent now has equal status in law, regardless of gender or how their child came into the family.

Why This Matters for Employers:

This ruling is not optional or “pending parliamentary approval.” It is already enforceable, meaning:

✅ Every public and private employer, including churches and NPOs, must now comply with these interim rules.
✅ Any denial of shared parental leave could expose an employer to constitutional discrimination claims.
✅ Employers must update employment contracts and policies immediately to reflect this change.

If your policies still say:

“Mothers get four months” or “Fathers get ten days then your workplace is outdated and non-compliant.

Beyond compliance, this change reshapes the way workplaces must approach fairness, equality, and family responsibility.

What Employers Should Do Right Now

To implement this ruling correctly, employers should:

• Issue an Information Notice
  Inform all staff in writing of the Constitutional Court’s ruling and how parental leave will now be handled.

• Update Employment Contracts
  Replace “maternity/paternity leave” clauses with a single Parental Leave Clause that mirrors the Court’s wording.

• Update Policies
  Align your leave policy, HR manuals, and payroll procedures with the new structure.

• Handle UIF With Caution
  UIF benefits are still catching up. Employers should keep clear written records and ensure employees are guided correctly when claiming.

• Record Agreements in Writing
  When two employed parents share leave, document the agreed division to avoid disputes.

Why I Serve Small Businesses, Churches, and Not for Profit Originations:

I understand that smaller employers operate under constant pressure, balancing people, purpose, and payroll. Labour law compliance often feels secondary until a legal challenge appears.

Many simply don’t know the law has changed until it’s too late, and a CCMA case or reputational risk follows. That’s why I’ve made it my mission to provide affordable, practical, and legally sound resources so that compliance is not a burden, but a simple, proactive safeguard.

How I Can Help You Stay Protected

As an admitted attorney (non-practising) and qualified court-annexed mediator with over 12 years’ experience in both public service and private practice, I’ve seen too many good employers penalised because they lacked updated contracts, policies and proof that they informed their staff about new developments relating to their employment conditions.

That’s why I’ve updated my Employment Contract Template to include the new Constitutional Court–compliant parental leave clause.

👉 Download the updated Employment Contract Template here: Legal Assist Solutions Store
👉 Or contact me for a review of your policies: 📩 admin@legalassistsolutions.co.za

Don’t wait for confusion or conflict to expose a gap in your policies, update your contracts today.

About the Author
Melissa Opukiri
Admitted Attorney (Non-Practising) | Court-Annexed Mediator | Legal Consultant
Founder of Legal Assist Solutions – providing ethical, affordable, and practical legal resources for small businesses, NPOs, and church organisations across South Africa.