Parental leave in South Africa after the Van Wyk judgment
There is no longer a separate four months of maternity leave and ten days for fathers. Since 3 October 2025 the BCEA gives every parent the same leave, and the details matter for how you plan cover and pay.
In short
- One kind of leave, parental leave, for every parent: by birth, adoption or surrogacy.
- A single parent, or the only parent who works, gets at least four consecutive months.
- Where both parents work, they share four months and ten days. Each parent's part is one unbroken run.
- It is unpaid under the BCEA unless you choose to pay. The UIF's benefits did not change.
What the Court decided
In Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, handed down on 3 October 2025, the Constitutional Court found that the BCEA's leave for parents was unconstitutional because it treated mothers, fathers, adoptive parents and parents through surrogacy differently. Parliament has until October 2028 to fix the Act. Until it does, the Court has read new words into the BCEA, and those words apply from the day of the order.
The old ten days of parental leave for the other parent (section 25A) no longer exist as a separate right. They were folded into a shared pool.
What each parent is entitled to now
| Situation | Leave |
|---|---|
| Single parent, or the only one of the two parents who is employed | At least four consecutive months |
| Both parents employed | Four months and ten days in total, shared between them |
| Miscarriage in the third trimester, or a stillbirth | Six weeks after it |
Sharing. Where both parents work, they decide how to take the pool: at the same time, one after the other, or partly overlapping. But each parent's own leave must be one unbroken run of consecutive days. A father cannot take two weeks now and two more next month from the pool.
If the parents cannot agree, each takes as close as possible to half, and the leave must be finished within four months of the birth.
The parent who gives birth keeps her protections: she may start leave four weeks before the expected date of birth (or earlier if a doctor or midwife certifies it is needed), and may not work for six weeks after the birth unless a doctor or midwife certifies that she is fit. That time is part of the shared four months and ten days, not on top of it.
Adoption gives the same entitlement, but for now the child must still be under two: the Court found the age limit unconstitutional but left it in place until Parliament acts. Surrogacy: a commissioning parent under a surrogate motherhood agreement gets the same entitlement from the day the child is born.
Notice
The employee must tell you in writing when the leave will start and when they will return: at least four weeks before the leave for a birth, or one month before for an adoption or a surrogate birth, or as soon as is reasonably practicable if that is not possible.
When the other parent works somewhere else
The judgment does not say how two employers share information about the pool, and you only know what your own employee tells you. A practical approach is to ask the employee, in writing, whether the other parent is employed and how much of the pool they are taking, and to keep that declaration on file. Treat it as personal information under POPIA: ask only for what you need.
Pay, and what the UIF covers
Parental leave is unpaid under the BCEA. You pay only if a contract, policy or collective agreement says you will. The Court refused to rewrite the Unemployment Insurance Act, so UIF benefits are the same as before:
- The parent who gave birth may claim maternity benefits for up to 17.32 weeks.
- The other parent may claim parental benefit for 10 days, even if they now take two months.
- An adoptive parent of a child under two, or a commissioning parent, may claim for up to 10 weeks.
Benefit rates and the earnings ceiling change from time to time, so check the current figures with the Department of Employment and Labour before you quote them to staff. Make sure your contracts and leave policy say clearly whether you top up pay, and for how long.
What employers should do now
- Update your leave policy and contract templates. Stop describing "four months' maternity leave" and "ten days' parental leave" as separate rights.
- Decide your pay position for parental leave and put it in writing, so mothers and fathers are treated the same way.
- Plan for longer absences by fathers and other parents, who may now take months rather than days.
- Check your industry. The Court's reading-in does not change sectoral determinations; where one covers your staff and says something different, it still binds until the Minister changes it.
- Watch for the new law. A Labour Law Amendment Bill to make these rules permanent was published for comment in February 2026. Check whether it has been passed before you rely on this guide.
How LetterUp handles parental leave
LetterUp records parental leave per child, not as a yearly balance. HR records the situation the employee declares (single parent, both employed, the other parent working here or elsewhere), and LetterUp counts the four months, or the shared four months and ten days, in calendar days, warning when a booking does not fit. The leave policy LetterUp drafts states the rule as it stands, and colleagues never see what kind of leave somebody is on. See staff records and leave.
Questions employers ask
Is there still maternity leave in South Africa?
Since the Constitutional Court's Van Wyk judgment of 3 October 2025, the BCEA is read as giving one kind of leave, parental leave, to every parent. The parent who gives birth keeps her protections: she may start four weeks before the expected date and may not work for six weeks after the birth unless certified fit.
How much parental leave does a father get now?
The same as any parent. If he is a single parent or the only one of the two parents who works, at least four consecutive months. If both parents work, they share four months and ten days between them, as they agree, and each parent's own leave must be one unbroken run.
Do employers have to pay parental leave?
Not under the BCEA, unless a contract, policy or collective agreement says so. The UIF pays benefits: maternity benefits for the parent who gave birth, and 10 days of parental benefit for the other parent. The judgment did not change the UIF Act.
How much notice must an employee give?
Written notice of the start date and the return date, at least four weeks before the leave for a birth, or one month before for an adoption or a surrogate birth, or as soon as is reasonably practicable.
This guide is general information about South African law as it stood on 22 October 2026, while Parliament has not yet amended the BCEA. It is not legal advice. LetterUp is not a law firm.