Sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act have been found to be in violation of the constitution as they display unjust discrimination when it comes to “maternity leave.” This discrimination affects mothers, fathers, surrogate parents, and those who adopt children.
Judge Roland Sutherland of the Johannesburg High Court has temporarily suspended the declaration of invalidity for a period of two years, allowing parliament the opportunity to address these issues.
In the interim, Judge Sutherland has ruled that all parents, provided they contribute to UIF benefits, are entitled to a four-month period of “parental leave.”
It is important to note that this ruling must receive confirmation from the Constitutional Court, and the Minister of Labour may express an intention to seek leave to appeal it.
Constitutional Court Confirmation (October 2025)
On 3 October 2025, the Constitutional Court delivered its landmark judgment in Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20; 2026 (1) SA 38 (CC), confirming the High Court’s finding of constitutional invalidity in respect of the maternity and parental leave provisions of the BCEA.
The Court suspended the declaration of invalidity for 36 months to allow Parliament to enact remedial legislation, which sets a deadline of 3 October 2028. Until Parliament acts, the Court read corrected wording into sections 25, 25A, 25B and 25C of the BCEA, so the following rules govern in the meantime:
- All parents — biological, adoptive, and commissioning — are collectively entitled to four months and ten days of parental leave, to be shared as they choose.
- A single parent, or a parent who is the only employed party in the parental relationship, is entitled to at least four consecutive months’ unpaid parental leave.
- If both parents are employed, they must agree on how to divide the four months and ten days between them.
This represents a significant shift from the previous regime, where a birthing parent was entitled to four months’ maternity leave while the non-birthing co-parent received only 10 days.
The Labour Law Amendment Bill (February 2026)
On 26 February 2026 the Minister of Employment and Labour published the Labour Law Amendment Bill in Government Gazette No. 54220, proposing the remedial legislation the Court called for. On parental leave, the Bill substitutes sections 25, 25A and 25B of the BCEA and repeals section 25C altogether, replacing the separate maternity, parental, adoption and commissioning-parent regimes with a single gender-neutral entitlement. A parent would be entitled to four months’ parental leave; where both parents are employed, the entitlement is four months and ten days, to be shared between them. The Bill applies the same framework to birth, adoptive and commissioning parents, and makes corresponding amendments to the Unemployment Insurance Act so that benefits follow the leave.
Public comment closed on 28 March 2026. As at August 2026 the Bill has not yet been introduced in Parliament: it remains in the pre-parliamentary phase, awaiting certification by the State Law Adviser before it can be tabled and referred to the Portfolio Committee on Employment and Labour for further public hearings. Until it is enacted and brought into force, the Constitutional Court’s interim reading-in above remains the operative law, and employers who have not yet revised their leave policies to reflect it are applying provisions that have already been declared invalid.
For more on how South African labour legislation protects employees, see our guides on understanding the Labour Relations Act and labour laws in South Africa. If you are navigating parental responsibilities more broadly, our article on parenting plans in South Africa may also be helpful.
Updated 14 April 2026 — Added the Constitutional Court’s confirmation of the Van Wyk judgment (October 2025), interim parental leave entitlements, and details of the draft amendment Bill.
Updated 4 August 2026 — Added Parliament’s 3 October 2028 deadline for remedial legislation and the full citation of the Constitutional Court judgment. Expanded the legislative section to set out what the Labour Law Amendment Bill (Government Gazette No. 54220 of 26 February 2026) proposes for sections 25 to 25C of the BCEA, and confirmed that the Bill had still not been introduced in Parliament as at August 2026, so the Court’s interim reading-in continues to govern.
