Constitutional Court Rules on Parental Leave Provisions

Posted 24 October 2025 Written by Acts Online
Category Labour

Brought to you by SA Accounting Academy: The Constitutional Court has addressed the inequality in parental leave entitlements by declaring specific sections of the Basic Conditions of Employment Act, No. 75 of 1997 (BCEA) unconstitutional.

In the matter of Van Wyk and Others v Minister of Employment and Labour and Others, the Court found that the current legislative framework unfairly discriminates between mothers and fathers, as well as between biological and adoptive parents. While the declaration of constitutional invalidity has been suspended for a period of 36 months to afford Parliament an opportunity to remedy the defects, the Court ordered interim relief with immediate effect.

The interim order fundamentally alters the application of sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act, No. 75 of 1997. Employers must now recognize a more flexible leave structure that does not distinguish solely on the basis of which parent gave birth.

Key Interim Measures

  • All parents (biological, adoptive, or commissioning parents in a surrogacy agreement) are entitled to at least four consecutive months of parental leave.
  • In a two-parent household, this four-month period may be shared between the parents as they see fit, provided the total leave taken does not exceed the four-month allocation.
  • The interim measures remain in place until Parliament enacts remedial legislation or until the 36-month suspension period expires.

Click here to download the CDH Parental Leave Guideline.

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

  • For yourself: As a professional advisor, you must update your internal templates for employment contracts and leave policies to reflect the interim sharing of the four-month parental leave period.
  • For your business: Your firm’s HR and payroll systems must be adjusted immediately to process leave applications that deviate from the traditional maternity/paternity split, ensuring compliance with the Court’s interim order.
  • For your clients: You must advise clients that they can no longer limit fathers or non-birthing parents to only 10 days of parental leave if the parents choose to share the four-month allocation, as failure to do so risks a constitutional challenge or labor dispute.

Originally published at https://accountingacademy.co.za/news/read/cdh-parental-leave-guideline

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