Parental leave update

Update on the BCEA:  maternity leave is out and parental leave is in;  apex court levels the playing field. On 3 October 2025 the Constitutional court declared Sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA) unconstitutional. These sections govern maternity, parental, adoption, and commissioning parental leave.  The groundbreaking judgment was handed down in the cases of Van Wyk and Others v Minister of Employment and Labour and Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20.

The Constitutional court has recognised that South Africa’s parental leave laws were unfair to many families and found that the sections dealing with maternity, parental, adoption, and commissioning parental leave were unconstitutional because they failed to treat all parents equally and with dignity.

Importantly, the court affirmed that all parents, whether through birth, adoption, or surrogacy should be free to decide together how to share the responsibilities of raising their child. Laws that prevent families from making those choices without any legitimate reason not only discriminate but also intrude on their personal/family lives, which unnecessarily impacts their human dignity.

Previously

Before this landmark judgment, the BCEA provided for differentiated leave entitlements based on the role of the parent. Specifically:

• Section 25 granted a birth mother at least four consecutive months of unpaid maternity leave, typically starting one month before the expected due date.
• Section 25A allowed ten days of unpaid parental leave to the father or non-birth parent, to be taken for the first ten days after the child’s birth or adoption.
• Section 25B provided for unpaid adoption leave of ten weeks to one adoptive parent, while the other adoptive parent would only qualify for parental leave in terms of Section 25A.
• Section 25C provided a similar framework of unpaid commissioning parental leave for commissioning parents in a surrogate motherhood agreement, allowing one parent 10 weeks of unpaid leave whereas the other would qualify for parental leave in terms of Section 25A.

The new ‘law’ under the BCEA

Even though the literal text of the BCEA has not yet changed, the court has given Parliament 36 months to enact remedial legislation which addresses the unconstitutionality of these sections and until then the court has given an interim “reading-in” of amendments to the BCEA to cure the inequality in parental leave.  It is summarised as follows:

1. Parental leave

• Single parents or the only employed parent: at least four consecutive months parental leave.
• If both parents are employed: a combined entitlement of four months and 10 days, taken concurrently or consecutively as agreed.
• If no agreement: leave is split equally as far as possible, starting from the child’s birth, provided that female employees who are giving birth to the child may begin leave from four weeks before birth, or earlier if medically required, and may not return to work for six weeks after birth, unless certified fit by a medical practitioner.

2. Adoption leave

• A single or only employed adoptive parent of a child under two years of age: four months adoption leave.
• If an adoption order is made in respect of two adoptive parents, both parties are entitled in the aggregate to four months and 10 days, taken in any agreed manner (concurrently, consecutively, or a mix).
• If no agreement: adoption leave is apportioned as near as possible to half each, provided that such balance is completed within a period of four months from the adoption of the child.
• Leave may start on the date that the adoption order is granted or placement by a competent court pending the finalisation of adoption, whichever is earlier.

3. Commissioning parental leave

• Starts from the date a child is born as a result of a surrogate motherhood agreement.
• A single commissioning parent in a surrogate motherhood agreement: four months commissioning parental leave.
• Two commissioning parents: they shall each be entitled in the aggregate to four months and 10 days combined, taken as agreed including concurrently or consecutively, or partly concurrently and partly consecutively, and if no agreement then the leave is apportioned equally, provided that such balance is completed within a period of four months of the child’s birth.

Interestingly the term “maternity leave” has been removed from these sections and replaced with “parental leave”. This judgement marks a significant shift towards equality and flexibility in parental leave whilst recognising diverse family structures and ensuring more equal access to parental leave.

Each workplace is unique and this judgement might not affect all employers in all industries the same. Employers should contact the LWO for expert advice on their individual workplace needs and update internal policies and practices to remain compliant and support all parents fairly.

Contact the LWO for any advice or assistance!

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