End of an era for parental leave in South Africa
South Africa’s parental leave framework is undergoing a major change after it was ruled unconstitutional to extend parental leave to only 4 months for mothers.
The Labour Law Amendment Bill, 2025, proposes a new unified system that grants equal access to parental leave.
The reform comes after the Constitutional Court’s binding judgment and is not simply a matter of executive policy preference.
The court found that 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA) were constitutionally invalid.
“The court’s reasoning was straightforward: different categories of parents were afforded varying forms and durations of leave, resulting in unequal treatment,” said law firm Wright Rose-Innes.
“This differentiation was found to be inconsistent with the Constitution and incapable of justification.”
The declaration of invalidity was suspended for three years to allow parliament time to enact corrective legislation.
However, in the interim, the court introduced a revised framework by reading additional provisions into the BCEA. This has taken immediate effect.
Employers who are thus not aligned with the latest court judgment on parental leave policies can already face legal exposure.
What the Bill states
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 or less, and a commissioning parent in surrogacy arrangements.
Under the new Bill, where only one party in a parental relationship is employed, that employee is entitled to at least four straight months of parental leave.
Where both parties in the parents’ relationship are employed, they have a collective entitlement to four months and 10 days parental leave. That said, neither parent may claim more than 4 months individually.
The Bill also extends adoptive parental leave to children up to six years of age, a notable increase from the current threshold of under two years.
Employees who also experience a third-trimester miscarriage or a stillbirth are entitled to six weeks’ parental leave, regardless of whether parental leave has already started.
“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,” said Wright Rose-Innes.
Leave can be taken concurrently, consecutively, or in combination. An employee will need to notify their employer of the dates they intend to commence and return from parental leave.
If an agreement is not reached by birth, the birth parent can elect to take four months of parental leave, in which the other parent is entitled to take 10 days, similar to the old system.
The birth parent can, however, take less than four months of parental leave, with the other parent 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 adopting or using a surrogate cannot reach an agreement, the parental leave must be shared in a way that is close to half for each party.
While the Bill has yet to come into force, the interim framework established by the court’s ruling is already legally binding.
Wright Rose-Innes said that employers should therefore review their parental leave policies without delay, especially:
- 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
- Leave application procedures should require parents to enter into sharing agreements.
The law firm said that 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,” it noted.
“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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