On 3 October 2025, the Constitutional Court delivered its much-anticipated judgment in the Van Wyk case, declaring sections of the Basic Conditions of Employment Act (BCEA) that govern maternity leave laws and South Africa parental unconstitutional. The Court found that the existing provisions discriminated unfairly between mothers, fathers, and other categories of parents, failing to reflect the constitutional principles of equality, dignity, and the best interests of the child.
South Africa Parental Leave: Key Changes
The Court did not suspend its order, as is usually the case when legislation is struck down. Instead, it issued interim relief that effectively amends the BCEA until Parliament enacts formal legislative reform. The interim measures establish a more inclusive and flexible parental leave regime applicable to all parents (biological, adoptive, and commissioning) under defined conditions.
The judgment introduces the following key principles:
Definition of “Parent”: Any person who has parental rights and responsibilities under the Children’s Act, 2005 (Act No. 38 of 2005), qualifies as a parent.
Shared Leave Entitlement: Where both parents are employed, the total entitlement is now four months and ten consecutive days of Parental Leave, which the parents may share as they choose.
Single-Parent Leave: If only one parent is employed, that parent is entitled to the full four months and ten days.
Unpaid Leave: The new Parental Leave remains unpaid unless the employment contract or company policy provides otherwise.
Preference for Birth Mothers: For biological births, the mother retains preference for leave associated with childbirth preparation and recovery. She may start her leave up to four weeks before the expected due date and may not return within six weeks of giving birth unless medically certified fit.
Leave Sequencing: Shared leave must be taken in consecutive blocks. If parents disagree on allocation, it must be divided as evenly as possible.
Use Period: Parental Leave must be taken within four months after the child’s birth.
The Court did not extend Unemployment Insurance Fund (UIF) coverage to non-birth parents. UIF benefits remain payable only to the biological mother until Parliament updates the related legislation.
Practical Impact on Employers
This ruling has immediate consequences for all employers operating in South Africa and highlights the importance of employment law compliance under the new employment and labour framework:
Review and update maternity, paternity, and parental leave policies to comply with the new framework.
Amend employment contracts to reflect the new Parental Leave terminology and sharing mechanism.
Adjust HR and payroll systems to track leave taken by multiple parents in a shared arrangement.
Communicate clearly with employees about the new entitlements and application process to prevent confusion or disputes.
Atlas HXM’s Position and Next Steps
At Atlas HXM, we have begun drafting updated employment contract addenda aligned with this ruling.
The Van Wyk judgment marks a major step toward equality in the workplace and recognition of diverse family structures. It compels employers to re-evaluate long-standing assumptions about maternity and paternity roles and to align employment practices with constitutional principles, ensuring employment law compliance and adherence to South Africa parental leave requirements.