Constitutional Court Redefines Parental Leave under BCEA

Posted 23 October 2025 Written by Acts Online
Category Labour

Brought to you by SA Accounting Academy: The Constitutional Court has delivered a landmark ruling that removes the distinction between birthing and non-birthing parents regarding leave entitlements, effective immediately.

In terms of the judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, the Constitutional Court has ordered immediate amendments to the Basic Conditions of Employment Act, No. 75 of 1997 (BCEA). The Court found that the existing provisions unfairly discriminated between birthing and non-birthing parents. Effective from 3 October 2025, the judgment introduces an interim measure that allows all parents to share a total of four months and ten days of consecutive parental leave.

Under the new regulatory framework, the previous 10-day paternal leave limit is superseded by a collective entitlement. Key directives from the judgment include:

  • Both parents are now collectively entitled to four months and ten days of consecutive parental leave.
  • The leave period may be shared between the parents as they choose, providing flexibility for the primary caregiver.
  • Employers must extend these benefits to all parents, regardless of gender or birthing status, including fathers and non-birthing partners.

Employers are required to review and update their workplace policies to ensure compliance and avoid potential discrimination claims. Where paid maternity leave was previously restricted to birthing mothers, these benefits must now be extended equally to all parents in accordance with the shared leave model. This shift requires immediate adjustment to HR systems and employment contracts to align with the 3 October 2025 effective date.

Click here to download the full judgment.

What this means for you, your business, or your clients

  • For yourself: No direct individual obligations; impact is channelled through professional advisory duties to ensure labor law compliance for your firm or clients.
  • For your business: You must immediately update HR policies and payroll systems to reflect the shared four-month and ten-day parental leave entitlement to avoid unfair labor practice claims.
  • For your clients: Advise clients to revise employment contracts and leave application procedures to accommodate the sharing of leave between parents and to ensure non-birthing parents are not excluded from benefits.

Originally published at https://accountingacademy.co.za/news/read/constitutional-court-judgment-parental-leave-redefined

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