Four Months, Ten Days and a New Bill: Understanding Parental Leave in South Africa

South Africa’s parental leave landscape has been on quite the rollercoaster recently. In October 2025, the Constitutional Court declared parts of the existing maternity, paternity and adoption leave framework unconstitutional and temporarily introduced a more equal parental leave system until Parliament amends the law. And just as we were catching our breath, the Labour Law Amendment Bill, 2025 arrived with proposals to entrench and refine the new framework.

Whether you are an employer trying to stay compliant or a soon-to-be parent trying to remember where you left your keys, understanding both the current rules and the proposed rules is essential to thriving in this new employment landscape. Here’s what you need to know:

The current legal position:

For the overwhelmed and over-googling parents-to-be or even the HR manager late for a parental leave presentation, here is your friendly, digestible summary of the current legal position on parental leave in South Africa following the Constitutional Court judgment:

· Universal parental leave:

All parents (biological, adoptive and commissioning) now share four months and ten days of leave.

You can take it together or separately, but it must still be taken in a single sequence of consecutive days (for now).

If only one of you is formally employed or you are a single parent, you are entitled to four months' leave (regardless of your gender).

· Sharing arrangements:

If you are both employed, you need to agree on how to split the leave (e.g. one takes three months and the other takes one month and ten days).

If you cannot agree, it must be divided as equally as possible (for now).

· Pregnant employees:

Birth mothers may still:

o   start leave up to four weeks before birth (or earlier if medically required); and

o   may not return to work for six weeks after giving birth (unless declared medically fit).

· Notice requirements:

If possible, you must give your employer at least four weeks’ notice of intended leave dates.

· Payment:

Parental leave is generally unpaid, although you can still claim benefits from the UIF during the leave period, unless your employer has a more generous policy.

· NB: Outdated policies do not override your rights

Even if your contract or company policies still only offer 10 days’ paternity leave or 10 weeks’ adoption leave, the Constitutional Court’s interim model currently takes precedence, and you can rely on it when exercising your leave rights.

If you wish, you can find the full judgment of Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (2025) ZACC 20 here.

The Labour Law Amendment Bill, 2025 (“the Bill”):

On 26 February 2026, the Minister of Employment and Labour released draft amendments to various labour legislation, including the parental leave provisions in the Basic Conditions of Employment Act and Unemployment Insurance Act.

These amendments are intended to fix the constitutional defects highlighted by the Constitutional Court and to replace the temporary measures currently in place.

The Bill is currently open for public comment until 28 March 2026.

The proposed amendments largely mirror the Constitutional Court’s interim model. However, it introduces some important changes:

1.  Once-per-year limit

The Bill proposes that employees (other than birth mothers) may only take parental leave once in a 12-month period.

2.  Written parental leave agreement

If both parents are employed, the Bill proposes that they must sign a written agreement setting out how they will share parental leave.

This agreement must be submitted to both employers together with notice of the intended dates of leave.

3.  More flexibility in how leave is taken

Under the proposed amendments, parental leave:

·     does not have to start immediately at birth or adoption; and

·     does not have to be taken as a single sequence of consecutive days.

Therefore, parents will be able to take part of the leave at the time of the birth or adoption (if they want to) and part later, as long as all leave is taken within four months of the birth or adoption.

4.  New default rule when parents cannot agree

This is where the Bill vastly differs from the current position.

It is proposed that if both parents are employed and cannot agree on how to divide the leave:

·       the birth mother gets to decide how much of the entitlement she will use (up to four months); and

·       whatever she does not use, goes to the other parent.

For adoptive or commissioning parents who disagree, the fallback remains splitting the leave as equally as possible.

5.  Adoption leave age cap extended

The Bill proposes to replace the prior two-year adoption age cap (which the Constitutional Court declared unconstitutional, but left to Parliament to amend) and extend parental leave entitlements to adoptive parents of children aged six or younger.

6.  UIF benefits to be updated

The Bill includes matching amendments to the Unemployment Insurance Act so that UIF benefits align with the new BCEA provisions.

A copy of the Bill can be accessed here.

Conclusion:

The Constitutional Court judgment in October 2025 shook up parental leave in South Africa and implemented rules that still remain in force today. The Labour Law Amendment Bill, 2025 now aims to refine the system, add flexibility and bring clarity where the interim model left a few grey areas.

While Parliament finalises the amendments, there is still uncertainty about what the final framework will look like. Therefore, staying informed about these developments is very important, as these changes will meaningfully impact both employees and employers.

At Van Zyl Scheepers, we monitor all labour law changes closely, so you don’t have to. If you need any guidance on parental leave or help updating your policies, contact us today to be assisted by attorneys who care.