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.

Read the judgement here.

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 [2025] ZACC 20, 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. In the interim, the following rules apply:

  • 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.

Draft Amendments (February 2026)

On 26 February 2026, the Minister of Employment and Labour released draft amendments to the BCEA and the Unemployment Insurance Act to address the constitutional defects identified by the Court. The draft Bill was open for public comment until 28 March 2026.

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.