Maternity and Parental Leave in South Africa After the Van Wyk Ruling

Maternity leave and paternity leave in South Africa changed on 3 October 2025, when the Constitutional Court ruled in Van Wyk that the leave rules in the Basic Conditions of Employment Act (BCEA) unfairly discriminated between parents. The Court rewrote the rules on an interim basis, and that interim version is what employers must apply now, even though the published Act still shows the older wording.

Information current as of 25 October 2026. This page is general legal information about South African law and does not constitute legal advice in an individual case.

What the published BCEA still says

If you open the BCEA today, including the SAFLII consolidation updated to 1 May 2026, sections 25 to 25C still carry the pre-judgment wording (section 25 largely from 1997; sections 25A to 25C added by the Labour Laws Amendment Act 10 of 2018, in force from 1 January 2020). That wording gave a birth mother at least four consecutive months of maternity leave (section 25), gave any other parent at least 10 consecutive days of parental leave (section 25A), and gave adoptive and commissioning parents 10 weeks for one parent and 10 days for the other (sections 25B and 25C).

That text is no longer the full picture. The consolidation does not incorporate the Van Wyk order, so anyone reading the Act alone will get the leave rules wrong. Older summaries based on the 1997 Act are further out of date still: they show maternity leave only and no parental, adoption or commissioning leave at all.

What the Constitutional Court decided in Van Wyk

The case is Van Wyk and Others v Minister of Employment and Labour, heard together with Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23 and CCT 309/23) [2025] ZACC 20. Judgment was delivered on 3 October 2025. It was unanimous, written by Tshiqi J.

The Court confirmed the High Court's declaration that sections 25, 25A, 25B and 25C of the BCEA, together with the matching sections 24, 26A, 27 and 29A of the Unemployment Insurance Act, are unconstitutional to the extent that they unfairly discriminate between different classes of parents on the length of leave and on unemployment benefits. It separately declared invalid the rule limiting adoption leave to children below the age of two.

Both declarations are suspended for 36 months from the date of the order, which runs to about 3 October 2028, to give Parliament time to fix the law. But the Court did not leave parents waiting. Pending new legislation, it ordered that the BCEA leave sections must read in a rewritten interim form. That interim wording applies now.

The Court also ordered the Minister of Employment and Labour to report to the Court, no later than six months before the suspension ends, on whether remedial legislation for both the BCEA and the UIF Act has come into operation.

How parental leave works now

The interim text renames maternity leave as parental leave and opens it to fathers and other parents. Where both parents are employed, a parent counts as a party to the parental relationship if they have assumed parental rights and responsibilities over the child under the Children's Act 38 of 2005.

The separate 10-day parental leave in section 25A is deleted in the interim text. The Court explained that those 10 days should be added to the four months, giving four months and ten days to be shared where both parents work. It did not adopt the proposal, made by some of the parties, that each parent receive four months of their own.

The protected birth period

Where a birth is involved, the Court held that the mother must have preference for the time set aside for preparing for and recovering from the birth. Under the interim text, a female employee expecting a birth may start parental leave at any time from four weeks before the expected date of birth (unless otherwise agreed), or earlier if a medical practitioner or midwife certifies that it is necessary for her health or her unborn child's.

She may not work for six weeks after the birth unless a medical practitioner or midwife certifies that she is fit to do so. Section 26 of the BCEA separately protects pregnant and nursing employees from hazardous work and, during pregnancy and for six months after the birth, requires the employer to offer suitable alternative work on no less favourable terms where she does night work or her work is dangerous to her or her child, if that is practicable.

Two employed parents: sharing four months and ten days

When both parents are employed, they are entitled in the aggregate to four months and ten days of parental leave. That total includes the birth mother's leave before the birth and her six weeks after it.

The rest can be split however the parents agree. They can take it at the same time, one after the other, or partly overlapping. The one constraint is that each parent's own leave must be taken in a single run of consecutive days.

If the parents cannot agree, the interim text sets a default. The remainder is divided so that each parent's total leave is as close as possible to half of four months and ten days, roughly two months and five days each. Under that default, the leave must be completed within four months of the child's birth.

A practical point: two employers are involved, and each sees only its own employee's request. Agree the split as a couple first, then give each employer written notice of the dates that apply to their employee.

Single parents and the only employed parent

A single parent, or the only employed party in the parental relationship, is entitled to at least four consecutive months of parental leave. This is the old four-month maternity entitlement, now available to fathers and other parents as well. A single father of a newborn, for example, now has the same four-month floor a mother had before the judgment.

Where the parent did not give birth, the leave may start on the day the child is born, or on the relevant adoption or surrogacy date set out below.

Adoptive parents and commissioning parents

Adoption. Under the interim text, an employee who is an adoptive parent of a child below the age of two is entitled to the same parental leave as section 25(1) gives a single or only-employed parent. Where there are two adoptive parents, they share four months and ten days in the same way as birth parents, split by agreement or, failing agreement, as close to half each as possible, completed within four months of the adoption. The same applies to prospective adoptive parents with whom a child has been placed by court order.

The under-two age limit remains in the interim wording. The Court declared it invalid but chose not to rewrite it in the interim, leaving it for Parliament or for later supplementary relief. Until then, the BCEA text does not extend adoption leave to children aged two or older, and a parent adopting an older child should get advice on their own position. The Department of Employment and Labour has described proposed changes that would cover adopted children aged six or younger, but that is a proposal only.

Surrogacy. A commissioning parent in a surrogate motherhood agreement is entitled to the same leave as section 25(1) provides. Where there are two commissioning parents, the interim text gives them four months and ten days of commissioning parental leave on the same pattern as birth parents, with the same default of a split close to half each, completed within four months of the birth. The interim wording of this provision is awkwardly drafted, so commissioning parents with an unusual arrangement should take advice.

Pay: the BCEA, UIF and what is not settled

The BCEA does not require an employer to pay an employee during parental leave. Section 25(7) leaves payment to the Minister, subject to the Unemployment Insurance Act 63 of 2001. An employer may still pay full or partial salary under an employment contract, a company policy or a collective agreement, so check those documents first.

For birth mothers, the UIF maternity benefit continues as before: a flat 66% of earnings, up to the earnings ceiling, for a maximum of 17.32 weeks. The UIF maternity benefits page explains the rate, the 13-week employment requirement and how UIF tops up employer pay, and the UIF claim process page covers how to apply.

The UIF Act's existing benefits for other parents still apply. The Court suspended its declaration of invalidity for the UIF Act as well and did not read anything into it, so the Act's current benefits remain in force unchanged. Under section 26A, a contributor who is registered as the father of the child under the Births and Deaths Registration Act, who is the parent of a child born under a surrogate motherhood agreement, or who is an adoptive parent of a child below the age of two, can claim UIF parental benefits for a maximum of ten consecutive days, provided they have not claimed adoption or commissioning parental benefits for the same child. Section 27 provides adoption benefits for one of the adopting parents of a child below the age of two for up to ten consecutive weeks, and section 29A provides commissioning parental benefits for one of the commissioning parents in a surrogacy agreement for up to ten consecutive weeks. Each requires at least 13 weeks of employment before the application. The 2018 amending Act also sets a 66% rate for these benefits, but that rate provision (section 8(c) of Act 10 of 2018) is listed as not yet brought into force, so confirm with the UIF the rate it applies. These are the limits the Act sets; whether a particular claim is paid is for the UIF to decide.

UIF pay beyond those periods is not settled. The Court expressly declined to give an interim reading-in for the UIF Act, saying it is regulated differently from the BCEA. It noted that under the current regime only biological mothers in employment receive lengthy UIF benefits. So the leave entitlement changed in October 2025, but the UIF provisions did not. As of October 2026, no Department of Employment and Labour or UIF notice was found explaining how claims by a second parent are being handled.

In practice, that means a father or other parent taking a longer share of the four months and ten days should not assume UIF will pay for more than the existing benefit period, such as the ten days under section 26A. Ask the UIF or a Labour Centre before you plan around a payment, and keep a written record of what you are told.

Giving notice to your employer

Under the interim text, an employee must give the employer written notice of the date they intend to start leave and the date they intend to return, unless they are unable to give it. For birth-related parental leave the notice is due at least four weeks before the leave begins; for adoption and commissioning parental leave, at least one month before the adoption, placement or expected birth; in each case, if that is not reasonably practicable, as soon as it is.

Where both parents are employed, the notice is the place to set out your agreed share of the four months and ten days. It also helps to say in the notice that you are relying on the interim reading-in ordered in Van Wyk [2025] ZACC 20, because some payroll and HR systems still reflect the old 10-day rule.

Who is covered, and can a contract reduce the leave?

The leave chapter of the BCEA applies to employees generally, with a few exceptions. It does not apply to an employee who works less than 24 hours a month for an employer, and the BCEA as a whole excludes members of the State Security Agency and unpaid volunteers for charitable organisations. Independent contractors are not employees for BCEA purposes. Unlike some working-time rules, the leave sections are not switched off for higher earners above the BCEA earnings threshold (R269,600.90 a year from 1 May 2026).

The BCEA is a floor. A bargaining council collective agreement may not reduce the entitlements in sections 25 to 25C, and the Minister may not vary section 25 by sectoral determination. A more generous contract term or company policy still applies. Domestic workers have additional sector rules; see the domestic worker rights page.

Protection from dismissal

Dismissing an employee because of her pregnancy, intended pregnancy or any reason related to her pregnancy is automatically unfair under section 187(1)(e) of the Labour Relations Act 66 of 1995. The Labour Relations Act also treats an employer's refusal to allow an employee to resume work after maternity leave as a dismissal (section 186(1)(c)). These provisions are framed around pregnancy and maternity leave. How they apply to a father or other parent taking leave under the interim text is not addressed in the Van Wyk order and is not yet settled.

Any parent who is dismissed can still challenge the dismissal as unfair in the ordinary way. A dismissal dispute must be referred to the CCMA, or to a bargaining council if one covers your workplace, within 30 days of the dismissal (or of the employer's final decision to dismiss); see How to Refer a Dispute to the CCMA and Unfair Dismissal in South Africa. Compensation for an automatically unfair dismissal is capped at 24 months' remuneration.

If your employer refuses the leave

Many employers have not yet updated their policies, so a refusal is often a matter of outdated information rather than defiance. Start in writing:

1. Put the request in writing. Give the dates, your share of the leave if both parents work, and a reference to Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, decided on 3 October 2025.
2. Ask for the refusal in writing. A written reason helps you and any adviser understand the dispute.
3. Check your contract, policy and any collective agreement. These may give more than the BCEA, and they set out internal grievance procedures.
4. Ask which route applies. Contact a Labour Centre of the Department of Employment and Labour, or the CCMA call centre on 0861 16 16 16, to ask which process fits your situation. If you are dismissed, the 30-day referral deadline applies.

What happens next

The interim regime lasts until Parliament passes remedial legislation or the 36-month suspension ends. The Department of Employment and Labour published a draft Labour Law Amendment Bill 2025 for comment on 26 February 2026 (Government Gazette 54220, Notice 3801 of 2026). It proposes parental leave consistent with the Constitution and UIF parental benefits that match the BCEA. Comments closed on 28 March 2026, and an August 2026 departmental briefing still described the changes as proposed. It is a draft, not law.

If no legislation is in force when the 36 months end, the Court's order allows the parties to apply for supplementary relief, which must be brought no later than four months before the suspension expires. This page will be updated when either step happens.

Related reading

• UIF Maternity Benefits: The 66% Rule
• How to Claim UIF
• Family Responsibility Leave
• Unfair Dismissal in South Africa
• South Africa Labour Law
• South Africa Laws

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Frequently Asked Questions

How long is paternity leave in South Africa now?

Since 3 October 2025 there is no separate paternity leave. A father is a parent for parental leave purposes. If he is a single parent or the only employed parent, he is entitled to at least four consecutive months. If both parents are employed, the two of them share four months and ten days, divided as they agree.

Is maternity leave still four months?

Yes. A birth mother who is a single parent or the only employed parent is entitled to at least four consecutive months. If her partner is also employed, the four months and ten days is shared between them, and her pre-birth leave and the six weeks after the birth count towards that shared total.

What happens if we cannot agree on how to split the leave?

Under the interim order, the remainder after the birth mother's pre-birth and six-week post-birth leave is divided so that each parent's total is as close as possible to half of four months and ten days, and the leave must be completed within four months of the birth.

Does my employer have to pay me during parental leave?

The BCEA does not require it. Payment is left to the Unemployment Insurance Act. An employment contract, company policy or collective agreement may give paid leave or a top-up, so check those documents.

Can the second parent claim UIF for parental leave after Van Wyk?

Partly. The UIF Act was not changed in the interim, so its existing benefits still apply: a contributor registered as the child's father can claim UIF parental benefits for up to ten consecutive days under section 26A, and adoptive and commissioning parents keep the section 27 and 29A benefits of up to ten consecutive weeks. What is unclear is whether UIF will pay for any longer share of the four months and ten days. The Constitutional Court expressly declined to rewrite the UIF Act in the interim, and no Department of Employment and Labour or UIF notice on such claims was found as of October 2026. Ask the UIF or a Labour Centre before relying on any payment.

How much notice must I give my employer before parental leave?

Under the interim text, written notice of the date you intend to start leave and the date you intend to return, unless you are unable to give it. For birth-related parental leave it is due at least four weeks before the leave starts; for adoption and commissioning parental leave, at least one month before the adoption, placement or expected birth; if that is not reasonably practicable, as soon as it is. Where both parents work, use the notice to record your agreed share of the leave.

Do adoptive parents get the same leave?

Under the interim text, an adoptive parent of a child below the age of two is entitled to the same parental leave as a birth parent, and two employed adoptive parents share four months and ten days. The Court declared the under-two limit invalid but did not rewrite it in the interim, so adoptions of older children are not yet covered by the BCEA wording.

Can my employer dismiss me for being pregnant or taking leave?

Dismissal because of pregnancy, or for a reason related to pregnancy, is automatically unfair under section 187(1)(e) of the Labour Relations Act, and refusing to let an employee return after maternity leave counts as a dismissal. A dismissal dispute must be referred to the CCMA, or to a bargaining council if one covers your workplace, within 30 days.