South Africa’s New Parental Leave Laws: What Every Parent Needs to Know

Effective October 3, 2025

In a groundbreaking decision that changes everything about parental leave in South Africa, the Constitutional Court has ruled that the old system under the Basic Conditions of Employment Act was unfair and discriminatory. This historic judgment means that biological parents, adoptive parents, and commissioning parents in surrogacy arrangements now have equal rights to parental leave.

What Was Wrong with the Old System?

Previously, the law gave birth mothers four months of maternity leave, but fathers only got 10 days of “paternity leave.” Adoptive parents could get 10 consecutive weeks, but only if they were adopting a child under two years old. This created serious problems for families who wanted to share caregiving responsibilities. The case started when Werner van Wyk asked his employer for four months of leave to care for his newborn baby because his wife, Ika, ran two businesses and couldn’t take time off. His employer said no, citing the law that limited him to just 10 days. Mr. van Wyk ended up taking six months of unpaid leave, which put a huge strain on the family’s finances and hurt his career. The Constitutional Court agreed this was unfair and declared the old laws unconstitutional.

What’s Changed Now?

Everyone Gets Equal Leave – All parents—biological, adoptive, and commissioning parents in surrogacy arrangements—are now collectively entitled to four months and ten days of parental leave. This is a total “leave pool” that parents can share, however, they choose.

How Does Sharing Work?

Here’s how it works in practice:

If both parents are employed:

• You have a combined total of four months and 10 days to share between you and your partner.
• You decide together how to split it; one person could take all of it, you could split it 50/50, or divide it any other way that works for your family.
• You can take leave at the same time (both off together) or one after the other.
• If you can’t agree on how to divide it, the law will split it as equally as possible.

If only one parent is employed:

• That parent gets the full four months and 10 days, regardless of their gender.

Special Rules for Birth Mothers:

Because pregnancy and childbirth affect the body, there are still some specific protections for women giving birth:

• Those employees who are due to give birth may begin parental leave up to four weeks before the expected birth date, or earlier if medically necessary and advised as such by a medical practitioner or their midwife.
• No employee may work for six weeks after giving birth unless certified medically fit by a doctor.
• These periods count as part of the total parental leave time allocation.

Changes to Adoption Leave:

The Court struck down the two-year age limit for adoptive parents, ruling that adopted children over the age of two equally require time with parents to bond, adjust and integrate into their new families.

This means whether you’re adopting a baby or a 10-year-old child, you’re entitled to parental leave.

For Surrogate Families

Finally, families formed through surrogacy arrangements have the same rights as biological families. There’s no more discrimination based on how your family was formed.

What You Need to Tell Your Employer:

You must notify your employer in writing of your intended leave dates and return date at least four weeks in advance (or one month for adoption or surrogacy leave), unless it’s not practical to do so.

Why This Matters For Families:

This change recognises that fathers are just as capable of caring for children as mothers, and that families should decide for themselves who takes time off and when. It also acknowledges that adopted children and children born through surrogacy deserve the same bonding time with their parents as biological children.

Justice Leona Tshiqi, writing for a unanimous court, stated that giving fathers only 10 days “speaks to a mindset that regards the father’s involvement in early parenting as ‘marginal’ and called this ‘per se offensive to the norms of the Constitution’.

For Working Parents:

The new rules give families real flexibility. Maybe mom wants to go back to work after two months, and dad takes the remaining time to raise and bond with their child. Maybe both parents want to take time off together for the first month. Maybe one parent has a critical work project, and the other can take more leave. The choice is yours to make.

What Employers Need to Do. If you’re an employer, here’s what you need to know:

1. Update Your Policies Immediately: The old parental leave policies now need to reflect the new system. You need to implement the new shared parental leave system as soon as possible. Parliament has 36 months to amend the Basic Conditions of Employment Act to reflect this update, but there is no harm in getting ahead of the curve now and making adjustments once formally implemented by the government.
2. Treat All Parents Equally: Whether someone is a father, mother, adoptive parent, or commissioning parent, they’re entitled to the same leave rights.
3. Allow Flexible Arrangements: Parents can choose how to divide their leave. Your role is to accommodate their choices (with reasonable notice).
4. Extend Paid Benefits Fairly: If you’ve been offering paid maternity leave to birth mothers, you must now offer the same benefits to all parents taking parental leave.
5. Remove Age Restrictions: If your adoption leave policy had age limits, those are no longer valid.

What Happens Next?

The Constitutional Court has given Parliament 36 months to write new laws that comply with this judgment. In the meantime, the Court’s interim arrangements are in effect immediately.

The Minister of Employment and Labour must report back to the Court six months before the deadline on progress.

Real-World Examples:

Example 1: Traditional Split Sarah gives birth and takes 10 weeks off to recover. Her husband, John, then takes 10 weeks so Sarah can return to work. Both parents get quality bonding time, and Sarah’s career isn’t the only one affected.

Example 2: Same-Sex Couple Two fathers, David and Michael, are adopting a 5-year-old child. Under the old law, they might not have qualified for full leave. Now they can share four months and 10 days to help their child settle into their new home.

Example 3: Self-Employed Parent Lisa is self-employed and can work from home while caring for the baby. Her husband Mark works in an office. They decide Mark will take three months off while Lisa takes one month, allowing their family maximum flexibility.

Example 4: Single Parent Nomsa is a single mother by choice. Because she’s the only employed parent, she gets the full four months and 10 days to bond with her baby. The Bottom LineThis is one of the most significant advances in workplace equality and family rights in South Africa’s history.

It recognises that:

• Parenting is a partnership, not just a mother’s job.
• Fathers have an equal right and responsibility to care for their children.
• All families, regardless of how they’re formed, deserve equal treatment.
• Children benefit when both parents can be present in their early days.

Whether you’re planning to have a baby, in the process of adopting, or expecting through surrogacy, these new rules give your family real choices about how to balance work and caregiving.

Your Rights in Summary:

✓ Both parents together: 4 months and 10 days to share as they please.

✓ Single employed parent: Full 4 months and 10 days in full.

✓ Birth mothers: Protected time before and after birth (included in total leave).

✓ Adoptive parents: No age limit on adopted children, and are entitled to 4 months and 10 days to share with their partner as they please.

✓ Surrogacy parents: Same rights as biological parents.

✓ Flexible splitting: Decide together how to share the time.

✓ Equal treatment: All parents are entitled to the same benefits, regardless of their gender.