South Africa’s parental leave framework has been declared unconstitutional, prompting significant legislative reform. The Labour Law Amendment Bill, 2025, proposes a unified system that grants equal access to parental leave. This article outlines the proposed changes and their implications for employers.

Importantly, the reform is not merely a matter of executive policy preference but stems from a binding judgment of the Constitutional Court.

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, the Court declared sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) constitutionally invalid.

The Court’s reasoning was straightforward: different categories of parents were afforded varying forms and durations of leave, resulting in unequal treatment. This differentiation was found to be inconsistent with the Constitution and incapable of justification.

The declaration of invalidity was suspended for 36 months to allow Parliament to enact corrective legislation. In the interim, however, the Court introduced a revised framework by reading additional provisions into the BCEA. This interim regime took immediate effect.

As a result, employers who have not aligned their parental leave policies with the Van Wyk judgment may already face legal exposure.

What the bill proposes?

The Labour Law Amendment Bill, 2025 (“the Bill”), published on 26 February 2026, in its clause 3, substitutes sections 25, 25A, and 25B, and repeals section 25C of the BCEA. 

The Bill introduces a unified parental leave framework applicable to the parent of a newborn child, the adoptive parent of a child who is six years of age or less, and a commissioning parent in surrogacy arrangements.

Under the proposed system:

• Where only one party in a parental relationship is employed, or where the employee is a single parent, that employee is entitled to at least four consecutive months of parental leave.
• Where both parties to the parental relationship are employed, they share a collective entitlement of four months and ten days parental leave. However, neither parent may claim more than four months individually.

The Bill also extends adoptive parental leave to children up to six years of age, a notable increase from the current interim threshold of under two years.

In addition, employees who experience a third-trimester miscarriage or a stillbirth are entitled to six weeks’ parental leave, regardless of whether parental leave has already commenced.

Where both parents are employed and elect to share the collective entitlement, they must conclude a sharing agreement and submit it to their respective employers. Leave may be taken concurrently, consecutively, or in combination. An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence parental leave; and return to work after parental leave.

If no agreement is reached in a birth scenario, the birth parent must elect to take four month’s parental leave, in which case the other parent is entitled to take 10 days parental leave; or if the birth parent takes less than four months’ parental leave, the other parent is entitled to take that portion of the parental leave that the mother of the child is not taking. If the parties to a parental relationship who are entitled to parental leave as a result of an adoption or surrogate motherhood agreement cannot agree on the manner in which parental leave is to be shared, the leave must be apportioned between the parents in such a way that each parent’s parental leave is as close as possible to half of the leave.

What must change before commencement?

The proposed amendments have not yet come into force. However, the interim framework established by Van Wyk is already legally binding, and the Bill is intended to give it legislative effect. Employers should therefore review their parental leave policies without delay.

In particular:

• Separate leave categories, such as “maternity leave” and “parental leave”, should be consolidated into a unified framework.
• The adoption age threshold should be updated to six years.Join Us
• Leave application procedures should incorporate the requirement for sharing agreements between parents.

Employers must also account for the operational impact of two employees within the same parental relationship taking leave simultaneously or overlapping. These changes should be addressed proactively, rather than reactively in response to disputes.

South Africa’s parental leave regime has shifted. Employers who fail to align their policies with both the interim and forthcoming legislative framework risk non-compliance. A proactive review of internal policies and procedures will reduce legal exposure and ensure organisational readiness when the new law formally comes into effect.


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