Is your parental leave policy out of date? What South African employers should review now
The Constitutional Court’s Van Wyk ruling introduced an interim shared parental leave framework. Learn how to review your policy, contracts, payroll processes, and manager guidance.
Key takeaways
Parental leave is time away from work when an employee becomes a parent through birth, adoption, or surrogacy.
In South Africa, statutory leave entitlements are set out in the Basic Conditions of Employment Act (BCEA).
On 3 October 2025, the Constitutional Court delivered its judgment in Van Wyk and Others v Minister of Employment and Labour.
The Court found that the relevant parental leave provisions of the BCEA and Unemployment Insurance Act unfairly discriminated between different categories of parents and were therefore inconsistent with the Constitution.
It introduced interim arrangements while Parliament develops replacement legislation.
If you manage HR, payroll, employment contracts, or workplace policies, review how your organisation handles parental leave.
Your policy, payroll codes, forms, and manager guidance may still reflect the previous framework.
Here’s what we’ll cover:
- What did the Van Wyk ruling change?
- Why your policy may now be out of step
- Which parts of your parental leave process should you review?
- How do you audit your parental leave policy?
- Why is a clear parental leave policy important?
- Final thoughts
- Frequently asked questions about parental leave in South Africa
What did the Van Wyk ruling change?
The judgment replaced the previous statutory distinctions between different categories of parents with interim arrangements.
These arrangements apply while Parliament develops replacement legislation.
The judgment also addressed corresponding provisions of the Unemployment Insurance Act.
However, employers should distinguish between an employee’s right to take leave and their ability to claim UIF benefits during that leave.
Under the interim arrangements, a single parent or the only employed parent is entitled to full four months’ parental leave.
Where both parents are employed, they share a total of four months and 10 days.
The parents must agree how to divide the available leave; if they cannot agree, it must be divided as equally as possible.
Employers should confirm the detailed timing, notice, and leave-sharing requirements against the final Court order and current employment-law guidance before updating contractual wording.
| Situation | Before 3 October 2025 | Interim position following the judgment |
| Only one parent is employed | Four months if that parent gave birth; otherwise 10 days | At least four consecutive months, whoever that parent is |
| Both parents employed, child born to one of them | Four months for the birth mother, 10 days for the other parent | Four months and 10 days shared, split as the parents agree |
| Adoptive parents and commissioning parents (surrogacy) | 10 weeks for one parent, 10 days for the other | Four months and 10 days shared between the employed parents, subject to the Court order and the facts of the request. If only one parent is employed, four months. |
Employees who give birth retain specific health protections.
They can start leave up to four weeks before the due date and may not work for six weeks after the birth unless a doctor or midwife certifies them fit.
This protected period forms part of the overall parental leave entitlement.
If both parents are employed, they should record how they have agreed to divide the available leave.
Your policy should explain how requests will be handled where parents share leave, without creating rules that go beyond the current legal framework.
For a couple where one parent gives birth, the combined total is the same as before.
The key change is that leave is no longer allocated solely according to whether the employee gave birth.
A parent who is the only employed parent may qualify for the full four-month entitlement.
To qualify, a parent who didn’t give birth must have taken on parental rights and responsibilities under the Children’s Act, 2005.
The Court suspended its declaration of invalidity for 36 months, until October 2028, to give Parliament time to amend the law.
In February 2026, the Department of Employment and Labour published proposed legislative amendments that include a shared parental leave model.
The proposals have not been signed into law and thus have not yet replaced the interim arrangements, so employers should base current policy decisions on the Court order and any applicable official guidance.
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Why your policy may now be out of step
If your policy predates the October 2025 judgment, review it now.
It may still use the previous maternity, parental, adoption, and commissioning parental leave categories.
Do not review the policy in isolation.
Check offer letters, employment contract templates, employee handbooks, leave forms, payroll codes, intranet guidance, and manager training materials.
Three misconceptions come up often:
“Nothing changes until Parliament acts.”
The Court introduced interim arrangements while Parliament develops replacement legislation.
Employers should therefore review current policies rather than wait for the final legislation.
“Family responsibility leave changed too.”
Family responsibility leave is a separate BCEA entitlement.
Do not automatically rewrite that section of your policy as part of the parental leave update without checking the applicable provisions.
“Employers must pay employees for the full leave period.”
Statutory leave entitlement, employer-paid leave, and UIF benefits are separate issues.
Check the employee’s contract, your workplace policy, and current UIF rules before explaining what income they may receive during leave.
If your organisation provides paid leave above the statutory minimum, review the eligibility rules carefully.
Consider whether different benefits are linked to pregnancy and recovery from childbirth, parental status, or another clearly defined purpose.
Ask an employment-law specialist to review any policy that provides different paid benefits to different categories of parents.
This will help you identify potential discrimination risks while preserving any support intended specifically for pregnancy or post-birth recovery.
Which parts of your parental leave process should you review?
Eligibility
Review definitions that rely only on “mothers” and “fathers”.
Your policy should distinguish clearly between the birth parent, another parent, adoptive parents, commissioning parents, and a sole employed parent where those distinctions affect the applicable rules.
Adoption requires particular care.
The Court considered the statutory age restriction affecting adoption leave separately.
The proposed 2026 amendments would extend the relevant adoption provisions to children aged six or younger.
As these changes are proposed rather than final, check the current legal position before introducing an age limit in your policy.
Because the legislative position may change, obtain specialist advice before setting an age limit in your policy.
Requesting and splitting leave
Check the notice requirements that apply to each type of parental leave.
Your policy should explain when notice must be provided, what information the employee should include, and what happens when advance notice is not reasonably possible.
For example, an employee may ask to share parental leave with a partner who works for another organisation.
If your contract still refers only to maternity leave and ten days of parental leave, the employee, manager, HR team, and payroll team may each reach a different conclusion.
A clear process helps everyone work from the same information.
Where both parents are employed, your organisation may need evidence of how they have agreed to divide the available leave.
Ask an employment-law or HR specialist to confirm what declaration is appropriate, proportionate, and lawful before making it a policy requirement.
Documentation
Set out what supporting information employees may need to provide for a birth, adoption, or surrogacy arrangement.
Collect only the information needed to administer the request, store it securely, and apply the process consistently.
Payroll and UIF
Leave entitlement and UIF benefits are related, but they are not the same.
The Constitutional Court judgment addressed provisions in both the BCEA and the Unemployment Insurance Act, including differences in the benefits available to different categories of parents.
Before advising an employee about UIF benefits, check the latest UIF guidance and claim requirements or refer them to the Department of Employment and Labour.
Payroll should record the leave correctly and provide any employer information needed to support the employee’s claim.
Learn more about how to calculate UIF to ensure accurate payroll processing.
Manager awareness
Managers are often the first people employees approach about leave.
If a manager automatically tells a parent that they can take only ten days, they may be relying on the previous statutory framework.
Give managers a clear route for referring parental leave requests to HR or payroll before confirming the employee’s entitlement.
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Valuable insights, practical advice, and next steps for HR and payroll professionals in South Africa.
How do you audit your parental leave policy?
Work through this checklist, and log each gap as you find it:
Find every document and system that refers to parental leave
Check employment contracts, policy documents, handbooks, application forms, payroll codes, intranet guidance, and manager materials.
Update definitions and entitlement summaries
Check that your definitions and entitlement summaries reflect the current arrangements for the different parental circumstances covered by your policy.
Have contractual or policy wording legally reviewed before publishing it.
Check how payroll records leave and supports UIF claims
Make sure payroll teams understand the differences between statutory leave, employer-paid leave, and UIF benefits, and can provide the required employer information promptly.
Review what employees are told and where
Make sure your intranet, onboarding materials, and HR guidance give employees consistent information.
Brief managers and record each change
Give managers a clear referral route for questions and confirm when every policy, form, system, and communication has been updated.
Before you publish the new wording, have an employment law specialist review it.
Why is a clear parental leave policy important?
A clear policy helps employees understand their options at an important point in their lives.
It also helps you plan workloads, arrange cover, and give managers consistent guidance.
Explain the request process, notice requirements, available pay or benefits, and the employee’s return-to-work arrangements in one place.
Employees should not have to piece together different answers from their manager, HR, and payroll.
If you provide paid leave above the statutory minimum, explain who qualifies and why.
Transparent eligibility rules make the policy easier to understand and apply consistently.
A well-structured parental leave policy also supports better work-life balance and can contribute to stronger employee retention strategies.
Final thoughts
The interim parental leave arrangements already affect how employers handle leave requests, even though Parliament has not yet enacted replacement legislation.
Review your policy, employment contracts, payroll setup, forms, and manager guidance together.
This will help your teams give employees consistent information from the first conversation.
Keep the policy under review as Parliament considers the proposed amendments and the Department publishes further guidance.
Understanding labour laws and your business obligations is essential for maintaining compliance.
Before changing contractual wording or deciding a complex parental leave request, get legal advice that reflects your organisation’s circumstances.
Make employee leave easier to manage
Explore how HR and payroll software can help you record leave accurately, keep employee information consistent, and manage parental leave more effectively.
Frequently asked questions about parental leave in South Africa
What is parental leave in South Africa?
Parental leave is statutory time away from work for an employee who becomes a parent through birth, adoption, or surrogacy.
Following the October 2025 Constitutional Court judgment, interim arrangements apply while Parliament develops replacement legislation.
Who qualifies for parental leave?
Eligibility depends on how the employee becomes a parent, whether one or both parents are employed, and the parental rights and responsibilities involved.
Adoption-age rules are legally complex, so employers should check the Court order and current official guidance before refusing a request.
How is parental leave different from maternity leave now?
The previous framework provided distinct maternity, parental, adoption, and commissioning parental leave entitlements.
The interim arrangements introduced a shared parental leave model, while retaining specific health protections for an employee who gives birth.
Where both parents are employed, they share a total leave entitlement.
A single parent or the only employed parent is entitled to four months’ leave.
Do employers have to pay employees on parental leave?
Statutory leave is not automatically the same as employer-paid leave.
Whether the employer pays during parental leave depends on the employee’s contract and workplace policy.
An eligible employee may also be able to claim UIF benefits, but the benefit type and claim period depend on the applicable UIF rules.
If you offer enhanced paid leave, have the eligibility criteria reviewed for fairness and legal compliance.
What role does payroll play?
Payroll should record the correct leave category, apply any employer-paid benefit in line with the policy, and provide the employer information required for a UIF claim.
Payroll teams should check the latest Department of Employment and Labour guidance and UIF claim requirements before advising an employee about the benefits they may be able to claim.
How often should you review your parental leave policy?
Review your policy now against the interim arrangements.
Review it again when Parliament enacts replacement legislation or the Department issues material new guidance.
After that, include parental leave in your regular employment-policy review and update related contracts, forms, payroll codes, and manager guidance at the same time.
Effective leave management requires ongoing attention, and time management tools can help streamline the process.
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