On 3 October 2025, the Constitutional Court delivered a landmark decision in Van Wyk and Others v Minister of Employment and Labour & Others (CCT 308/23) [2025] ZACC 20, fundamentally reshaping the law on parental leave in South Africa. 

The Judgment 
The court declared that the existing provisions of the Basic Conditions of Employment Act 78 of 1997 unfairly discriminated by granting four months of leave only to birth mothers while restricting fathers and other non-birthing parents to just ten working days. This model, the court held, was rooted in outdated gender stereotypes that assumed women were the natural caregivers and men mere helpers. In a decisive shift towards true equality in parenting, the court has ordered immediate changes that employers and employees must follow, even though Parliament has been granted 36 months to formally amend the legislation.

The New Regime
Under the new interim regime, all parents, whether biological, adoptive, or commissioning, are collectively entitled to a shared pool of four months and ten days of parental leave. Parents are free to divide this time between themselves as they choose. Where they are unable to agree, the leave must be split as equally as possible. If only one parent is employed, that parent is entitled to take the full allocation. Adoptive parents also benefit from an important change: there is no longer any age limit on the adopted child for parental leave eligibility. Expectant mothers may begin their leave up to four weeks before the due date, or earlier if medically necessary, and may not return to work within six weeks after birth unless medically cleared; however, these periods now form part of the shared total leave entitlement. 

What Must Employees Do? 
Couples who are planning children, or who already have them, should begin by discussing how they wish to divide the available leave. Once agreed, they should inform their employer in writing, clearly stating when the leave will begin, how long they intend to be away, and how the leave has been allocated between parents. It is advisable to keep written records of all correspondence in case disputes arise. In many ways, the decision empowers families to choose who will be the primary caregiver without being constrained by outdated legal norms.

What Must Employers Do? 
Employers may no longer limit leave benefits to birth mothers only. Any policy or contract that grants extended paid leave solely to women may now be vulnerable to challenge on the grounds of discrimination. Employers must therefore review and update their leave policies, employment contracts, and payroll systems to ensure compliance. 

This judgment marks a profound shift in South African employment law. For the first time, fathers, adoptive parents, and commissioning parents stand on equal legal footing with birth mothers when it comes to caregiving. The judgment is a decisive step towards promoting dignity and equality.

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