South Africa’s Constitutional Court orders expansion of parental leave rights

South Africa’s Constitutional Court recently declared the current law on maternity and parental leave unconstitutional as it entitles a birth mother to four months of maternity leave and the other parent to only 10 days of parental leave.

Effective from 3 October 2025, the Court has ordered the implementation of a unified parental leave system, under which both parents (through birth, adoption and surrogacy), regardless of gender, are collectively entitled to four months and ten days of parental leave, to be shared as they choose. This effectively replaces the previous maternity and parental leave provisions.

Background

In South Africa, the Basic Conditions of Employment Act sets out provisions on maternity, parental, adoption and commissioning parental leave. Under these provisions prior to the ruling:

• Birth mothers were entitled to four consecutive months of maternity leave, while the other biological parent received only 10 consecutive days of parental leave.

• Adoptive parents of children under the age of two had the option to choose between 10 consecutive weeks of adoption leave or 10 consecutive days of parental leave. If there were two adoptive parents, only one could apply for adoption leave, while the other could take parental leave. For adoptive parents of children aged two or older, only 10 consecutive days of parental leave were available.

• Commissioning parents in a surrogate motherhood agreement were entitled to choose between taking 10 consecutive weeks of commissioning parental leave or 10 consecutive days of parental leave. If there were two commissioning parents, only one could apply for commissioning parental leave and the other could apply for parental leave.

Key details

The Court ruled that the existing provisions, which grant different periods of leave to different categories of parents, are constitutionally invalid as they:

• Infringe on the right to human dignity by reinforcing gender stereotypes that women should be the primary caregivers, limiting the second parent’s role, and depriving parents of the choice to structure their child-nurturing responsibilities.

• Create disparity and unequal treatment of adoptive and commissioning parents which marginalizes the role that they play in the early life of their children and reduces the recognition of their parental responsibilities as compared to biological parents.

• Amounts to unfair discrimination between adoptive parents based on the age of the children they adopt and creates a differentiation between adopted children themselves, based on their age.

Changes to maternity, parental, adoption and commissioning parental leave

While the Court has provided three years for Parliament to remedy the relevant legislative provisions, it has also ordered the immediate implementation of changes to the existing provisions on maternity, parental, adoption and commissioning parental leave.

The following key changes took effect from 3 October 2025, being the date of delivery of the judgment:

Replacement of maternity and parental leave with unified parental leave

The maternity and parental leave provisions have been replaced with a single primary provision on unified parental leave that applies to all parents, regardless of gender and whether single or in a parental relationship. A person is deemed to be a party to a parental relationship if they have assumed parental rights and responsibilities over a child as contemplated in the Children’s Act.

Changes to adoption and commissioning parental leave

The Court has also expressly amended the provisions on adoption and commissioning parental leave to reflect that adoptive parents of children aged two or older and commissioning parents are entitled to the new unified parental leave. This leave is to be taken as adoption or commissioning parental leave.

However, the Court has not ordered an immediate change to the existing age cap in the adoption leave provisions, which still limit eligibility to children under two years old. Instead, it has deferred to Parliament to decide whether the existing age cap is indeed necessary, what factors to consider, and at what age limit, if any, is appropriate.

Although the amended adoption leave provisions still include the age cap, the overarching provision on unified parental leave appears to extend eligibility to all parents who have assumed parental rights and responsibilities over a child, which would include adoptive parents of children of any age. Since the precise amount of leave available to adoptive parents of children aged two or older is not clearly defined in the current changes, further clarification may be needed through future regulatory guidance or legislative amendments.

Sharing of parental leave

Where both parents are employed, they are entitled to a total of four months and ten days of parental leave. This leave can be shared as both parents may agree, subject to the following in cases of biological birth:

• An expecting birth mother may begin parental leave up to four weeks before the expected birth or any other date if certified as medically necessary. Her preference on whether to take parental leave in preparation for the birth shall take precedence in calculating how parental leave is to be shared.

• A birth mother must take six weeks of parental leave after the birth, unless she is certified fit for work.

Each parent must take their share of parental leave in a single block. If there is disagreement on how parental leave is shared, the leave shall be divided equally between both parents.

Single or only employed parent

Where an employee is a single parent or the only employed parent in a parental relationship, that employee is entitled to four consecutive months of parental leave.

No immediate changes to Unemployment Insurance Fund benefits

Employers are not required to pay employees for maternity, parental, adoption and commissioning parental leave, but eligible employees may claim benefits from the Unemployment Insurance Fund (UIF), which range from 38% to 66% of their income, depending on their income level and the type of leave. A maximum income threshold (ZAR 17,712 per month in 2025) applies when calculating these UIF benefits.

While the Court has made changes to maternity, parental, adoption and commissioning parental leave, it has notably refrained from ordering any changes to the corresponding benefit provisions in the UIF Act.

The Court stated that it is preferable for Parliament to decide the extent of UIF benefits to be conferred on employed parents in a non-discriminatory manner. Until legislative changes are made to the UIF Act, the existing UIF benefits regime will continue to apply (see the UIF’s website here (opens a new window) for more details).

Employer action: ACT

Employers should review these changes and update their family leave policies and procedures and employee handbooks, as needed, to ensure compliance, and assess the relevant impact on their operations. Employers should ensure that the new parental leave benefits are offered to all parents, regardless of gender or parenting category.

Given the current uncertainty around whether adoptive parents of children aged two or older are entitled to the full unified parental leave, employers with affected employees may wish to seek clarification from the Department of Employment and Labour. Alternatively, they may wish to err on the side of caution and offer the full entitlement to such employees to mitigate risk and promote equitable treatment.

The judgment is expected to lead to legislative changes to remedy the constitutionally invalid provisions. The Lockton Global People Solutions Compliance Practice will monitor the release of any proposed legislation and provide updates accordingly.

Further Information

Werner van Wyk and Others v Minister of Employment and Labour CCT 308/23 (opens a new window)

Basic Conditions of Employment Act 1997 (opens a new window)

Children's Act 2005 (opens a new window)