On 2 October 2025, South Africa’s Constitutional Court handed down a landmark judgment in Van Wyk and Others v Minister of Employment and Labour, reshaping parental leave for all parents. The Court confirmed defects in the Basic Conditions of Employment Act and issued interim rules with immediate effect while Parliament amends the legislation.

Read the Constitutional Court case page (judgment link): Van Wyk and Others v Minister of Employment and Labour (CCT 308/23 & CCT 309/23).

What’s changed (effective immediately)

• Universal parental leave (shared): If both parents are employed, parents (biological, adoptive and commissioning) are jointly entitled to “four months and ten days” of parental leave (aggregate). The entitlement (after any pregnancy-related or immediate post-birth parental leave) may be split as they choose (concurrently, consecutively, or a mix), but each parent must take their portion in a single consecutive block. If they cannot agree, it must be split as close as possible to half each, to be completed within four months from the birth/placement/adoption date.
• Single employed parent: Where only one parent is employed, that parent may take the full period of at least 4 consecutive months of parental leave.
• Adoption & surrogacy: Parental leave due to adoption starts on placement by court or on the adoption order, whichever occurs first; two commissioning parents (surrogacy) share four months and ten days in total.
• Who is deemed a parent: A person is deemed to be a party to a parental relationship if they have assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005. Under the Court’s interim shared parental leave regime, adoptive and commissioning parents fall within “parent” for the purposes of parental leave without any child-age condition in the interim text. The original BCEA wording in s25B remains in force until Parliament amends it.
• Before and after birth: A pregnant employee may start parental leave up to four weeks pre-expected birth, or earlier if medically necessary. No female employee may work for six weeks after birth unless medically certified fit. These periods count toward the total parental-leave allocation
• Notice: Employees should give written notice at least four weeks before leave (one month for adoption/commissioning leave), unless not reasonably practicable.

Parliament has a fixed window (36 months) to amend the BCEA. The interim regime above applies immediately.

1. Update policies and handbooks to reflect the shared 4 months + 10 days regime, eligibility for all parent types, and notice requirements. Please reach out to a labour lawyer for legal advice as needed.
   
2. Adjust payroll configurations to align with the updated policies.