SA Shift from Maternity Leave to a Unified Parental Leave System What Every Employer Must Know

SA shift from maternity leave to a unified parental leave system: What every employer must know

Key takeaways

South Africa's parental leave landscape has fundamentally changed following the Constitutional Court's October 2025 ruling, creating immediate compliance obligations and strategic opportunities for employers.

Gender-neutral parental leave is now law: Traditional "maternity" and "paternity" leave no longer exist - all parents share a unified 4-month and 10 Days allocation regardless of gender or family structure
Immediate policy updates are mandatory: Employment contracts and HR policies using outdated gendered language expose employers to discrimination claims and legal liability.
Companies can add a disclosure to the Parental leave form and accept the information provided in good faith. If there is proof that the information is incorrect, Employees need to be aware that this will amount to a charge of misconduct.
This directly impacts financial health as well as HR administration: Workforce planning, payroll systems, manager training, and company culture all require strategic adjustment to comply with the new framework
Proactive employers gain competitive advantage: Forward-thinking businesses can use this change to strengthen their employer brand, improve talent retention, and build more inclusive workplace cultures

The parliamentary deadline is set for October 2028, so immediate action is essential to avoid compliance failures, operational disruption, and potential disputes with employees seeking their new parental rights.

Read the full article text below.

Introduction :

Why this policy shift extends beyond HR

South Africa maternity leave policies as employers previously knew them, exist no longer. The Constitutional Court's October 2025 ruling in Van Wyk v Minister of Employment and Labour declared gender-specific leave provisions unconstitutional and replaced them with a shared, gender-neutral 4-month and 10 days parental leave framework. This renders most employer Maternity policies as outdated and in need of immediate update. This exposes businesses to compliance risk and operational disruption. In fact, this extends beyond HR administration to leadership, workforce planning, payroll coordination, and company culture. This article unpacks what every South African employer must know and implement even before Parliament's October 2028 deadline.

Understanding the new South Africa maternity leave law 2026

What the constitutional court actually ruled

The Constitutional Court delivered its judgement in Van Wyk and Others v Minister of Employment and Labour on 3 October 2025. The ruling confirmed that sections 25, 25A, 25B, and 25C of the Simple Conditions of Employment Act (BCEA) were unconstitutional. Werner van Wyk sought four months of parental leave to act as main caregiver for his newborn child. He was informed he qualified for only 10 days under the existing framework. The case originated from this situation. The Court found that the provisions discriminated unfairly between different categories of parents based on gender and parental status and ruled this undermined dignity and caregiving roles.

The Court suspended the declaration of invalidity for 36 months to allow Parliament to enact remedial legislation. But it ordered interim measures with immediate effect and fundamentally restructured how parental leave operates across South Africa. These interim provisions now govern all parental leave entitlements until October 2028, when permanent amendments are expected.

The end of traditional maternity and paternity leave

Prior to the Constitutional Court ruling of 3 October 2025, the BCEA provided that:

Birth mothers were entitled to four consecutive months of maternity leave
Fathers (non‑birth parents) were entitled to ten days of parental leave
One adoptive parent qualified for ten weeks of adoption leave (if the child was under two years old), while the other was limited to ten days
In surrogacy arrangements, one commissioning parent qualified for ten weeks of commissioning parental leave, while the other received ten days

This created a hierarchy that treated birth mothers as main caregivers and marginalised all other parents.

The constitutional court eliminated these differences:

The terms "maternity leave" and "paternity leave" no longer exist in South African labour law
All parents now share access to a unified parental leave entitlement
Gender, biological relationships to the child, or path to parenthood do not matter
This applies to biological parents, adoptive parents and commissioning parents in surrogate arrangements.

South Africa maternity leave duration: The new 4-months and 10 days rule

Both parents collectively receive four months and ten consecutive days of parental leave to share as they choose where both are working. Parents may divide this allocation concurrently, consecutively, or through any agreed arrangement. The leave must be split as equally as possible if parents cannot reach agreement on the division.

Female employees who give birth may begin parental leave up to four weeks before the expected birth date for biological births if medically necessary. No female employee may work for six weeks after giving birth unless a healthcare provider certifies her as medically fit. This mandatory recovery period forms part of the total parental leave allocation, not an additional entitlement.

Employees must provide written notification to their employer at least four weeks in advance of intended leave dates and return dates. One month's notice applies for adoption or commissioning leave, unless circumstances make advance notice impracticable.

Revised eligibility criteria for all parent types

Any person who holds parental rights and responsibilities under the Children's Act of 2005 qualifies as a parent for leave purposes. The Constitutional Court removed the adoption age cap that previously limited adoptive parents to children under two years old. Adoption leave now applies to adoptive parents who qualify for parental leave regardless of the child’s age.

Adoptive parents may commence leave when a court order places a child with them. Commissioning parents in surrogacy arrangements may begin leave on the date of birth under a surrogate motherhood agreement. All parent types access the same four-month-plus-ten-days allocation under identical conditions.

How this affects single parents

The individual receives the full four months and 10 days of parental leave where only one parent is working, or an employee is a single parent. This will give children in single-parent household’s adequate care. Working single parents are not disadvantaged by the shared leave model.

The legal and financial implications for employers

South Africa maternity leave paid or unpaid: What employers owe

The BCEA places no statutory obligation on employers to pay salaries during parental leave. The legislation establishes minimum unpaid leave entitlements, meaning employees rely on the Unemployment Insurance Fund for income replacement during their absence. Many South African employers have historically offered paid maternity leave to birth mothers as an enhanced benefit beyond statutory minimums, especially in professional and corporate sectors.

This practice now creates legal risk. Where paid leave has been offered only to female employees who give birth, extending equivalent benefits to all parent types may be needed to avoid unfair discrimination claims. An employer who grants four months and 10 days of fully paid leave to a birth mother but refuses payment to a male employee taking two months of shared parental leave creates a differentiation that lacks objective justification under the new constitutional standard. Surrogate parents, same-sex couples and adoptive parents would be excluded from paid benefits despite their parental role being equivalent.

Some employers may respond by removing paid entitlements for all categories rather than expanding them to every parent type. This promotes equality but eliminates a benefit many employees have come to expect and rely upon for financial planning during a major life event. Employers need to consider that Male employees can go on Parental leave more than once in a financial year. An employer may remove a paid maternity leave benefit because South African law provides only for unpaid parental leave, but this change must be implemented in a non‑discriminatory manner by applying it equally to all parents, and it must be done through proper consultation with employees since it constitutes a change to terms and conditions of employment.

UIF benefits and the employer's administrative role

The Unemployment Insurance Fund offers parental benefits at 66% of regular earnings, subject to maximum income thresholds. Single parents or sole employed contributors receive 17.32 weeks of benefits. Two employed parents share 17.32 weeks plus ten days between them. Employees must have contributed to the UIF during the 13 weeks before applying for benefits to qualify for payment.

There is currently a misalignment between the BCEA (shared parental leave) and the UIF Act (individual benefit claims). Employers may need to manage employee expectations carefully until Parliament amends UIF legislation (expected by 2028).

Employers carry important administrative responsibilities even though they do not fund the benefits. They must register employees with the UIF, maintain accurate payroll contribution records and help employee’s complete application forms. Short delays in paperwork can postpone benefit payments by weeks, creating financial hardship for employees on unpaid leave.

Preventing double claims and overpayment

The risk of overlapping or fraudulent claims emerges where both parents are employed by different organisations. Employers may need formal proof of leave-sharing agreements to verify that the combined leave taken by both parents does not exceed the four-month-and-ten-day allocation. One parent could claim full leave whilst the other also takes extended time off without coordination between employers, creating double claims against the UIF.

No clear legal mechanism exists right now for one employer to confirm leave details with another parent's employer. Companies can add disclosure to the Parental leave form and accept the information provided in good faith. If there is proof that the information is incorrect, this will amount to a charge of misconduct.

Documentation requirements for different parent types

Biological fathers must provide birth certificates showing their name to qualify for UIF parental benefits. Adoptive parents need court orders confirming child placement. Commissioning parents in surrogacy arrangements need surrogate motherhood agreements showing the birth date. Employees must notify employers in writing of intended leave dates and, where applicable, provide copies of agreements reached with the other parent regarding leave division. Proof of employment, contribution history and banking details complete the application package submitted to UIF offices.

Common mistakes employers are already making

Using outdated gendered language in policies

Employment contracts, HR handbooks and leave application forms that still reference "maternity leave" and "paternity leave" expose employers to immediate discrimination claims. HRIS and payroll systems must reflect gender-neutral "parental leave" terminology that applies to biological, adoptive and commissioning parents. Multinational firms face particular risk when local South Africa policies reference outdated legislative provisions and global templates remain unchanged.

Failing to verify partner's leave status

The four-month and 10 days collective limit creates verification challenges when parents work for different employers. One parent could claim full leave and the other take extended time off at the same time without confirmation mechanisms, exceeding the statutory allocation. Employers should implement mandatory Shared Parental Leave Declaration Forms that require employees to disclose whether their partner intends to claim leave and the proposed leave split. No employer holds responsibility for arbitrating parental disputes regarding leave allocation, especially across different organisations.

Updating payroll and benefits systems

Payroll platforms designed for separate maternity and paternity categories cannot process shared leave arrangements with accuracy. Systems need to be updated to accommodate equivalent payments to all parent types where employers offered paid maternity benefits to birth mothers only, or face discrimination exposure. Finance and HR departments require integrated workflows to track combined leave taken by employee couples, prevent UIF overpayments and ensure accurate benefit administration.

Treating this as an HR-only issue

Parental leave restructuring affects workforce planning, temporary staffing budgets, operational continuity and manager training. Legal, risk and technology functions must work together on policy updates, system changes and compliance verification. Managers require training on new rights, verification procedures and how to plan workloads when multiple team members take overlapping leave. This change has cross-functional implications that treating it as administrative paperwork misses.

Ignoring the cultural and leadership dimension

Forward-thinking employers recognise this ruling as a chance to strengthen workplace culture, improve retention and model progressive practices. Organisations that continue preferential treatment for birth mothers and deny equivalent benefits to other parents’ risk reputational damage alongside legal liability. Building inclusive, family-supportive cultures requires leadership commitment that goes beyond policy compliance.

Practical implementation: What to change and how

Auditing your current labour law compliance

Every South African business must audit existing employment contracts, HR handbooks, and leave policies to identify non-compliant provisions. Maternity leave clauses require integration into the broader parental leave framework, while distinct paternity leave provisions should be removed. Adoption leave and commissioning parental leave clauses must reflect access to the shared four-month and 10 day pool rather than separate entitlements. Employment contracts referencing outdated terminology expose employers to discrimination claims under the Employment Equity Act. Label current policies "interim pending statutory amendment" and monitor Parliament's progress towards the October 2028 deadline.

Draft gender-neutral parental leave policies

Replace all references to maternity, paternity, adoption, and commissioning leave with a single Parental Leave category. Policies must explain leave sharing arrangements, notice requirements, and approval processes. Develop standardised Parental Leave Declaration Forms that require employees to disclose whether their partner intends to claim leave and the proposed division. The employer may not request personal information about the co‑parent such as a payslip or employer letter without the co‑parent’s explicit consent, as this would not comply with POPIA. Instead, the employer should rely on a Shared Parental Leave Declaration Form completed by the employee, which confirms the co‑parent’s employment status and the agreed division of parental leave. Birth parents must provide certified birth certificates. Adoptive parents need court orders, and commissioning parents require surrogacy agreements showing the child's birth date. Reserve the right to verify declarations and state that false declarations constitute serious misconduct.

Train managers on the new framework

Managers must understand new parental leave entitlements and avoid assumptions about which parent should take leave, as incorrect guidance amounts to discrimination. Training should cover documentation requirements, verification procedures, and sensitive scenarios including surrogacy and diverse family structures. HR teams require education on the gender-neutral framework and how to manage leave coordination when parents work for different organisations.

Communicate changes to employees

Employees should know that New Parental Leave amendments are effective immediately and that company leave policies will be updated. Provide a designated contact person for parental leave queries and reassure staff that all rights will be honoured. Clear communication prevents confusion about UIF benefits, which remain unchanged during the interim period.

Set up leave coordination processes

Update HRIS and payroll systems to reflect the new Parental Leave category. Maintain detailed records of parental leave allocations, declarations, and supporting documentation. Audit leave taken against declarations for couples working in the same organisation, to detect overlapping claims.

For additional assistance to help understand how this impacts your business and mitigation strategies, contact us at bso@bdo.co.za

The strategic opportunity: Culture, talent and reputation

Why this matters beyond legal compliance

The Constitutional Court's decision marks a cultural move in how workplaces recognise and support parenthood. Companies that support shared parental leave see improved morale, better retention and more inclusive workplace cultures. This extends beyond mere legal reform to challenging entrenched stereotypes about caregiving roles. Fathers can now take meaningful parental leave without worrying about career progression. This helps prevent burnout and creates more stable workforces.

How forward-thinking employers are responding

Progressive employers position this ruling as a chance to strengthen their employer brand and show commitment to equality in caregiving and support for diverse family structures. Businesses that respond by updating policies and communicating clearly can reinforce their reputation as inclusive employers. Supporting parents builds loyalty, especially when you have younger employees who expect progressive workplace practices.

The South African reality: Balancing ideals and operations

The ruling mandates equality, but South African businesses face unique operational and financial realities. Extended absences could strain productivity. Employers offering paid leave may face increased costs as non-birth parents claim benefits reserved for mothers in the past. Small and medium enterprises encounter challenges with workforce planning and temporary replacement costs.

Using this as a talent retention tool

Family-supportive company cultures reduce stress-inducing conflict between work and home obligations. Offering inclusive parental leave becomes a talent attraction factor and makes strategic planning for associated costs needed. Organisations that make space for parents to be present at home build stronger families and stronger businesses.

Conclusion: Lead proactively or react in crisis

South Africa's parental leave framework has moved from gendered provisions to a unified, shared model that just needs immediate employer attention. Outdated policies expose businesses to legal liability and operational disruption. This extends beyond HR paperwork to workforce planning, payroll coordination, and leadership culture.

Parliament's October 2028 deadline approaches, yet many organisations still operate under invalid provisions. Employers who update policies and train managers will protect their businesses whilst building stronger, more inclusive cultures. Those who delay risk disputes, compliance failures, and talent loss.

Watch the full webinar recording on YouTube for detailed implementation guidance. Take action now rather than waiting for the first claim to expose gaps in your systems.

FAQs

Q1. How much parental leave are employees entitled to in South Africa from 2026? Employees are entitled to a shared allocation of four months and ten consecutive days of parental leave when both parents are employed. If only one parent is employed or an employee is a single parent, that individual receives the full four consecutive months and 10 days. Neither parent may take more than four months and 10 days individually, and parents can take the leave concurrently, consecutively, or through any agreed arrangement.

Q2. Is parental leave in South Africa paid or unpaid? Parental leave under the Basic Conditions of Employment Act is unpaid. However, employees can claim benefits from the Unemployment Insurance Fund at 66% of their regular earnings, subject to maximum income thresholds. Some employers voluntarily offer paid parental leave as an enhanced benefit, but there is no statutory obligation to do so.

Q3. Who qualifies for parental leave under the new policy? Any person who holds parental rights and responsibilities under the Children's Act of 2005 qualifies for parental leave. This includes biological parents, adoptive and commissioning parents in surrogacy arrangements. The policy applies equally regardless of gender, biological relationship to the child, or path to parenthood.

Q4. What documentation do employees need to provide for parental leave? Employees must provide written notification to their employer at least four weeks in advance of intended leave dates. Biological fathers need birth certificates showing their name, adoptive parents require court orders confirming child placement, and commissioning parents need surrogate motherhood agreements showing the birth date. Where leave is shared between two employed parents, proof of the agreed division may also be required.

Q5. What happens if both parents work for different employers? When both parents are employed by different organisations, they collectively share the four-month-and-ten-day allocation. Employers may require formal proof of leave-sharing agreements to verify that the combined leave taken does not exceed the statutory limit. Employees should disclose whether their partner intends to claim leave and provide details of the proposed division to prevent overlapping claims.