The landmark ruling from the Constitutional Court in Van Wyk v Minister of Employment and Labour on 3 October 2025 is more than a legal turning point; it signals a decisive call for South African employers to modernise their approach to parental leave and workplace equity.

On 7 November 2023, we reported on the High Court findings (a copy of this article can be found here), in which it found that certain parental leave provisions in the Basic Conditions of Employment Act (“BCEA”) were unconstitutional in that it unfairly discriminated against parents – including mothers, fathers, adoptive parents, and commissioning (surrogate) parents – by granting differing forms of leave based on gender and parental status.

The Constitutional Court has now confirmed that decision and provided clear guidance on how employers must move forward.

Here is what you should know:

The Court suspended the order of invalidity for 36 months, giving Parliament time to amend the legislation. However, the Court provided an interim reading-in of amendments to the BCEA to cure the inequality in parental leave with immediate effect.

Parental leave – all parents, biological, adoptive and commissioning, are entitled to at least four consecutive months’ parental leave. 

Single parent / only employed parent – entitled to at least four consecutive months’ parental leave. 

Leave sharing between parents – where both parties to a parental relationship are employed, they are entitled in the aggregate to four months and ten days’ parental leave. This permits the parties to agree on how to take the leave (concurrently, consecutively, or partly both). If they cannot agree, the remainder is to be apportioned so that each parent’s total leave is as close as possible to half of four months and ten days, and the balance must be completed within four months from the birth (or from the applicable date in the case of adoption or surrogacy).

Adoption age cap removed – Adoptive parents of children of any age are eligible for parental leave.

Pregnancy and post-birth leave – the Court retained a birthing mother’s entitlement not to work for six weeks after birth unless certified fit by a medical practitioner or midwife. It also preserved the ability of a female employee to commence leave up to four weeks before the expected birth or earlier if medically necessary. These periods are included in the total parental leave allocation.

Notification requirements

For maternity/parental leave, employees must notify their employers in writing of the intended commencement and return dates at least four weeks before commencement (or as soon as reasonably practicable if not possible).

For commissioning parental (surrogacy) leave, notification must be given at least one month before the child’s expected birth (or as soon as reasonably practicable).

Employers should urgently review their leave policies and employment contracts to align with the Constitutional Court’s ruling; failure to do so could expose employers to claims of unfair discrimination.