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The Constitutional Court has confirmed that South Africa's parental-leave regime in the BCEA unfairly discriminated between different kinds of parents and has ordered a temporary "reading-in" that changes how leave works with immediate effect (pending legislation).
The judgment (Van Wyk and Others v Minister of Employment and Labour, [2025] ZACC 20, 3 October 2025) suspends the declaration of invalidity for 36 months to allow Parliament to amend the BCEA and UIF Act, but it also sets out how employers must read the BCEA in the interim.
The Court confirmed that sections 25, 25A, 25B and 25C of the BCEA (and the corresponding UIF provisions) are unconstitutional to the extent that they discriminate between parents as to leave length and UIF benefits. The declaration is suspended for 36 months.
It also held that the "under-two" age cap for adoption leave is unconstitutional; that defect is likewise suspended, with Parliament to fix it.
During the suspension, the Court reads new parental-leave text into the BCEA to govern immediately.
How to read Parental Leave now, until Parliament amends the law
- Single/only employed parent: An employee who is a single parent or the only employed party in a parental relationship is entitled to at least four consecutive months' parental leave.
- Two employed parents: If both parties are employed, they are entitled in the aggregate to four months and ten days' parental leave, which they may take concurrently, consecutively or partly both, but each parent must take their allocation in a single consecutive block. If they cannot agree, the leave is split as close as possible to half of four months and ten days each, to be completed within four months of the birth/adoption/surrogacy date.
- Birth recovery remains protected: No employee may work for six weeks after giving birth unless certified fit to do so. The ante-natal timing rules are retained.
- Sections re-framed: The interim text deletes BCEA s25A and re-casts s25 (Parental leave) as the core provision; adoption (s25B) and commissioning parental leave (s25C) are aligned to the same shared-leave structure.
NB: UIF benefits have not been re-written, yet
The Court did not impose an interim reading-in for UIF benefits because of fiscal/administrative complexity. Parliament must fix the UIF Act within the 36-month window, and the Minister must report on progress before the window closes. Supplementary relief may be sought if the window is about to lapse without legislation.
Practical Steps for Employers
1) Update your policies and contracts now – don't wait for the BCEA amendment. Rewrite your parental-leave provisions to mirror the Court's interim text: shared "four months and ten days" for two employed parents; full four months where only one party is employed; retain the six-week post-birth no-work rule. This is how the BCEA must be read immediately.
2) Build a fair sharing mechanism. Require parents to file a pre-birth/adoption/surrogacy plan indicating how they will split leave (concurrent/consecutive). Provide a default 50/50 split if they cannot agree, ensuring completion within four months of the triggering event, per the judgment.
3) Align your payroll and benefits carefully. Contractual top-ups (if you pay above UIF) should follow the new BCEA leave structure. Keep a clear distinction between leave entitlement (now re-framed) and UIF benefits (unchanged for now), and brief employees that UIF rules may only change when Parliament acts.
4) Update forms and proof requirements. Your HR templates should accept any parent who has assumed parental rights and responsibilities under the Children's Act (the judgment uses this test for parental status) and capture the required written notices of start and return dates.
5) Train your managers to avoid "mother-default" bias. The Court found the previous framework infringed equality and dignity by presuming mothers as default caregivers. Train line managers and payroll to handle all family formations (birth, adoption – no age cap in principle – and surrogacy) on equal terms.
6) Communicate now, then watch for the amendment Bill. Issue an employee circular summarising the new interim regime and signalling that statutory amendments are expected within 36 months, with a further update to follow once Parliament finalises the BCEA/UIF changes.
Why the Court changed the framework
In a unanimous judgment (Tshiqi J), the Court held the BCEA scheme violated equality (s9) and dignity (s10) by giving fundamentally different leave to birth mothers versus other parents and by capping adoption leave to children under two – differences the state could not justify. The interim remedy keeps necessary medical protections for birth mothers, but otherwise puts parents "of all stripes" on a shared, flexible footing while Parliament rewrites the statutes.
Fairbridges can help you through the process
Until Parliament acts, employers must read and apply the BCEA exactly as the Court has set out. We suggest that you move quickly to update contracts, policies, payroll rules and communication so your workplace complies now, and so that parents can plan leave in a way that fits their family, without discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
