Parental Leave Re-written: What Van Wyk Means for Your Policies (SA, 2025)

Legal Reference

Van Wyk and Others v Minister of Employment and Labour; CGE v Minister of Employment and Labour and Others [2025] ZACC 20 (3 October 2025). The Constitutional Court declared parts of the BCEA and UIF Act unconstitutional and fashioned an interim, binding order that restructures parental leave into a gender-neutral, shared entitlement.

Basic Conditions of Employment Act 75 of 1997 (BCEA) — ss 25, 25A–25C (maternity, parental, adoption and commissioning parental leave). The Van Wyk order suspends and modifies the operation of these provisions pending legislative correction.

Key holding (high level): The Court confirmed that the statutory "four months + 10 days" parental leave framework must operate as a pool that parents may share, irrespective of sex, family structure or parental status (birth, adoption, commissioning). Employers must apply the interim order now.

What Changes for Employers

Shared leave model (interim)

Parents can allocate the available statutory leave between them; one parent need not be the "mother" to access extended leave. The Court anticipated disputes and directed that, absent agreement, each parent's total leave should be apportioned as close as possible to half of four months and 10 days.

Immediate effect

The order is operative from 3 October 2025 and binds employers and the UIF pending legislative amendments. Policy changes may not be deferred.

UIF and payroll

UIF claims must follow the interim framework; HR/Payroll should map benefits and claims workflows accordingly. (Practitioner guidance confirms applicability while Parliament amends the Acts.)

Procedure: How to Implement Lawfully

1. Update policies & contracts

Replace sex-based entitlements with a gender-neutral shared-leave clause referencing the Van Wyk interim order, checked against leave entitlements under the BCEA more broadly so the new clause sits consistently alongside your other leave provisions. If your policy suite needs a wider rewrite, our HR policy development support can help.

2. Intake & allocation process

Require an allocation statement signed by both parents (where practicable) showing how the "4 months + 10 days" will be shared; keep on personnel file.

3. UIF coordination

Align leave category coding (maternity/parental/adoption/commissioning) with UIF submission notes reflecting Van Wyk.

4. Transition cases

For employees already on leave on 3 Oct 2025, offer a variation to align with the shared-leave regime and adjust payroll/benefits prospectively.

5. Communication & training

Issue a company-wide circular and brief line managers to avoid discriminatory gate-keeping of leave.

Model Policy Clause (Interim)

Parental Leave (Interim, effective 3 Oct 2025) In accordance with the Constitutional Court decision in Van Wyk [2025] ZACC 20, parental leave under sections 25 and 25A–C of the BCEA operates as a shared entitlement between parents. Employees may allocate the total statutory leave between themselves by written agreement. Failing agreement, the Company will apportion each parent's leave as nearly as possible to half of four months and 10 days, subject to statutory requirements and UIF rules. Proof of parentage (birth/adoption/commissioning) is required.

(Drafting note: reference the judgment in your policy footnotes and mark it as "interim pending legislative amendment".)

Documentation Checklist

• Allocation statement signed by both parents (where feasible)
• Proof of event (birth register/adoption order/surrogacy agreement extract)
• UIF claim documentation
• Payroll variance authorisation reflecting interim framework

FAQs

Do we still cap "fathers" at 10 days? No. The shared-leave model replaces sex-based caps for the interim period.

What if parents disagree? Apply the apportionment guidance indicated by the Court (each as close as possible to half). Keep an internal record.

Can we wait for Parliament to amend the Acts? No. The interim order is already binding.

Compliance note: This guidance is procedural and educational. It does not replace formal legal advice.

Need help updating your parental leave policies? Book a free consultation with our expert team today.