Parental leave in South Africa just changed. Here’s what it means for families and workplaces right now

South Africa’s top court has rewritten the rules on parental leave. On Friday, 3 October 2025, the Constitutional Court confirmed that the old setup in the Basic Conditions of Employment Act was unconstitutional because it treated different kinds of parents differently. The Court then put an interim system in place that applies immediately while Parliament works on a permanent fix over the next 36 months. If you are a parent, planning to become one, or you manage people, this is a real change you need to understand this week, not next month.

What changed on 3 October

Before this ruling, birth mothers had four months of maternity leave, most fathers and other non‑birthing parents had ten days of parental leave, and adoptive or commissioning parents had their own separate buckets with extra limits. The Court held that this design undermined equality and dignity because it locked in outdated ideas about who does the caregiving and when. The judges confirmed the earlier High Court’s finding that several BCEA and UIF sections were invalid to the extent that they treated parents differently on the length of leave and related UIF benefits. To keep the system running while Parliament fixes the law, the Court “read in” new wording to the BCEA that everyone must apply immediately.

In plain terms, two employed parents now share a single pool of four months and ten days of parental leave. They can take it at the same time, one after the other, or with some overlap, as long as each parent’s portion is a single continuous block. If they cannot agree on the split, they must divide it roughly in half and finish within four months of the birth, adoption, or surrogacy date. If only one parent is employed, that parent gets the full four months. These are not proposals. These are the rules in force today.

How the shared leave actually works

Think of the new system as a family leave wallet. In a household where both parents are employed, the wallet holds four months and ten days that belong to both of you together. You decide how to spend it. You might choose to take the first six weeks together while everyone finds a rhythm, then one parent returns to work and the other stays home for the rest. Or you might alternate in larger chunks so that both get long stretches of full‑time caregiving. The Court said that however you split it, each parent must take their time in one continuous sequence, not scattered days here and there, and the total must be wrapped up within four months of the arrival or placement of the child.

The rules around recovery from birth still apply. A birth mother may start leave up to four weeks before the expected due date if needed, and no one may require her to work for six weeks after giving birth unless a medical professional clears it. Those weeks come out of the shared pot. That is the Court’s way of protecting health while still treating caregiving as a shared responsibility.

Adoption and surrogacy, and the tricky “under two” question

The judgment also took aim at the old rule that limited adoption leave to children under two. The Court found that this restriction is unconstitutional. It suspended that finding for up to 36 months to give Parliament time to fix the text properly. As a result, the interim wording that the Court inserted into the BCEA still shows the age reference in the adoption clause, which is confusing. The signal from the Court is clear, though. The age cap discriminates and must fall. Many employers will choose not to enforce it in practice to avoid an equality problem, even before Parliament cleans up the section. At the very least, employers should be ready for claims from adoptive parents of older children who ask to be treated on equal terms, and they should take advice before denying such requests.

Commissioning parents in a surrogacy arrangement are now aligned with everyone else. They draw from the same wallet, with the same options to take leave together or one after the other, and with the same single‑block rule for each parent’s share.

What this means for employees

If you are expecting a child or adopting, talk to your partner and write down a simple leave plan that suits your household and fits the new rules. If you are the only employed parent, you get the full four months. If you are both employed, decide how to split the time, whether you want to be home together at the start, and when each of you will return. The Court requires written notice to your employer of your start and return dates, ideally four weeks in advance for birth and at least one month for adoption or surrogacy, unless it is not reasonably possible. Bringing your plan, rather than waiting for HR to guess, will reduce friction.

You should also be ready to speak to your manager about handovers and communication. The new scheme is meant to support families, not create stress at work. If your employer has a policy that pays birth mothers during leave but pays nothing to other parents, ask how the company will extend benefits fairly now that all parents share the same statutory entitlement. The equality principle behind the judgment makes it risky for employers to pay one parent and not the other in the same household. Many companies will move to a neutral top‑up policy that follows the shared leave.

What employers need to do this week

If you run HR or a small business, open your leave policy today and line it up with the Court’s interim wording. Replace any references to “maternity” and “paternity” leave with “parental leave.” Spell out that two employed parents share four months and ten days and that each parent’s share is a continuous block. Keep the six‑week recovery rule after birth. Add the four‑weeks‑before clause for pre‑birth. Adjust your forms so any parent who has assumed parental rights and responsibilities under the Children’s Act can apply, and make sure your process collects written start and return dates. These are the elements the Court set out, and they apply right now.

Look at your benefits too. If you currently give paid maternity leave but not paid leave to the non‑birthing parent, that gap now creates a real discrimination risk. A safer approach is to offer the same company top‑up to any parent who is taking parental leave, whether by birth, adoption, or surrogacy, with the same rules about how the time is taken. That mirror structure is easier to defend and easier to administer. Legal updates from employment law firms are already urging policy updates on this point, and the reasoning is sound.

Where UIF fits in

This is the part everyone asks about first. The Court confirmed that the UIF provisions that tied benefits to the old unequal leave scheme are also unconstitutional. It suspended that declaration for up to 36 months to let Parliament fix the Unemployment Insurance Act properly. At the same time, the interim BCEA wording says that the payment of parental, adoption and commissioning parental benefits will be determined by the Minister, subject to the UIF Act. The practical takeaway is that the legal structure for leave has changed already, but the benefits machinery may need a short catch‑up period before it fully reflects the shared‑leave model. Employers should explain this to staff in plain terms and keep an eye out for a government notice or an amendment bill. Employees should still apply for UIF benefits as they would have in the past, and ask HR for help while the administrative guidance catches up.

Two quick stories to make this real

Sipho and Naledi both work full-time and are expecting their first child in December. Under the new rules, they sit down, count four months and ten days, and decide to spend the first six weeks together at home. After that, Naledi returns to work and Sipho stays home for the remainder, all in one continuous stretch. They submit a joint plan to HR with their start and end dates. The company updates payroll to reflect Naledi’s return and Sipho’s ongoing leave, and both of them submit UIF claims in line with HR’s guidance. No one needs to argue about “paternity” or “maternity” labels anymore. They are simply parents using their shared leave.

Nomsa is adopting a six‑year‑old later this year. The Court has flagged that the under‑two rule is unconstitutional and asked Parliament to fix the text, but the interim wording still contains that age limit. Nomsa’s employer takes a conservative approach to legal risk and decides to honour adoption leave regardless of age, matching the spirit of the judgment and the equality duty. Nomsa gives one month’s written notice of her start date and return date, then takes a continuous block of leave with her partner, who uses a shorter block at the start to help settle their child at home. The company will be well placed to defend that decision if it is ever challenged.

Timelines and what to watch next

The judgment is in force as of 3 October 2025. The declaration of invalidity is suspended for 36 months. That means Parliament has until October 2028 to pass amendments to the BCEA and the UIF Act that bring the law in line with the Constitution. In the meantime, the interim wording that the Court has written into the BCEA is the law that employers and employees must apply. Expect the Department of Employment and Labour to issue guidance, and expect the UIF to align benefits processing. Business media and law firms are already publishing practical notes for payroll and HR teams, which is a good sign that the market is preparing to comply.

If you are changing policies at work

Start with communication. Send a short note to staff that says the company has updated its policy to reflect the Constitutional Court ruling. Explain the shared leave wallet in simple terms so parents can plan with confidence. Remind people that a written notice is required, that each parent’s leave is a continuous block, and that the default split is half and half if the parents cannot agree. Invite employees to speak to HR early if they are expecting a child or completing an adoption this year. Signal that adoptive and commissioning parents are on equal footing and that the business is watching for Parliament’s amendments. That sets the tone and lowers the chance of confusion later.

If you are planning your own leave

Focus on your household’s needs first. The law now gives you flexibility to be with your child at the same time or to stagger time away so the child gets a longer period with a full‑time caregiver. Do not feel pressured to choose the pattern your friends chose. Follow the health rules around birth, get the paperwork in on time, and keep a simple log of conversations with HR in case anyone changes roles while you are out. If you hit snags, raise the Court’s date and the key features of the new scheme. It often helps to send a short note that quotes the four months and ten days rule and the one‑block rule so everyone is looking at the same facts.

Final word

This ruling is a big step toward a fairer approach to family life and work in South Africa. It recognises that caregiving is not a single story, and it gives parents real choices. It also asks employers to clean up policies that were tied to old labels. The best way forward is simple. Update the policy. Brief your managers. Help families use the new system without making them jump through hoops. The law has caught up with how many South Africans already share care at home. It is up to all of us to make it work well at the office, too.