Parents in South Africa could soon gain greater flexibility over how they share parental leave, adoptive parents may qualify for leave when adopting children up to six years old, and the Unemployment Insurance Fund (UIF) could shift from maternity benefits to a broader parental benefits system.
These changes form part of the Labour Law Amendment Bill, 2025, published by the Minister of Employment and Labour on 26 February for public comment.
The proposed amendments to the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIA) aim to give legislative effect to the Constitutional Court’s landmark ruling in Van Wyk and Others v Minister of Employment and Labour.
Legal specialists say the reforms would fundamentally reshape how parental leave is allocated between parents while introducing a more unified system of parental benefits.
Constitutional Court ruling forced reform
The proposed amendments follow the Constitutional Court’s October 2025 ruling confirming that aspects of South Africa’s parental leave framework are unconstitutional.
The Court found that provisions of the BCEA and UIA unfairly discriminate between different categories of parents by granting birth mothers significantly longer leave than fathers, adoptive parents, and commissioning parents in surrogacy arrangements.
Read: Employers must update leave policies after landmark ConCourt ruling
The case arose after Werner van Wyk sought four months of parental leave from his employer so that he could act as the primary caregiver after the birth of his child. Because maternity leave under the BCEA was reserved for women who had given birth, he was informed that he qualified for only 10 days of parental leave.
The Court agreed with earlier High Court findings that the system discriminated based on gender and parental status, undermining the dignity and caregiving role of other parents.
It also declared invalid provisions limiting adoption leave and UIF benefits to cases where the adopted child is younger than two years old.
However, the Court suspended the declaration of invalidity for 36 months to allow Parliament to amend the legislation. In the interim, it introduced a temporary “reading-in” remedy expanding parental leave rights.
Interim ruling created temporary shared leave system
Under the Court’s interim order, parental leave effectively became a shared entitlement between parents.
The ruling provided that:
- a single parent, or the only employed parent in a household, is entitled to four months’ parental leave;
- where both parents are employed, they are entitled to four months and 10 days of parental leave between them; and
- parents may divide the leave concurrently, consecutively or in another agreed arrangement.
The judgment also extended parental leave rights to adoptive and commissioning parents, placing them on a more equal footing with birth mothers.
Employers were advised at the time to review workplace leave policies to ensure they did not discriminate between parents.
Draft legislation aims to formalise new parental leave framework
The Constitutional Court’s interim remedy created a temporary framework but left several practical questions unresolved, including how leave should be divided between parents and how disputes should be resolved.
The Labour Law Amendment Bill seeks to convert the Court’s interim solution into a permanent legislative framework while refining how parental leave should operate in practice.
According to Jean Ewang, counsel: employment law at Cliffe Dekker Hofmeyr, the proposed amendments to the BCEA are intended to correct the constitutional defects identified by the Court and establish a unified parental leave structure.
Under the proposed legislation:
- a single parent or the only employed parent would be entitled to four months’ parental leave;
- where both parents are employed, they would share four months and 10 days of parental leave; and
- neither parent may take more than four months of leave.
Parents who both intend to take parental leave would be required to conclude an agreement on how the leave will be divided and submit the agreement to their respective employers.
The amendments also clarify that parental leave does not have to begin immediately after birth or adoption, provided it is taken within four months.
Bowmans partner Talita Laubscher and knowledge and learning lawyer Chloë Loubser note that the proposal also allows parents to split the leave period, enabling employees to take some leave immediately after birth and the remainder later.
New rules for disagreements between parents
The draft Bill also introduces a clearer mechanism for situations where parents cannot agree on how to divide the leave period.
If parents cannot reach an agreement, the birth mother would have the first choice and may decide how much parental leave she wishes to take, up to the four-month maximum.
The other parent would then be entitled to the remaining portion.
Laubscher and Loubser say this approach avoids placing employers in the difficult position of having to intervene in disputes between parents over leave allocation.
Different rules would apply in cases of adoption or surrogacy, where parents who cannot reach an agreement would need to divide the leave as equally as possible.
Adoption leave extended to older children
The Bill also proposes expanding parental leave rights for adoptive parents.
Currently, adoption leave applies only where the adopted child is two years old or younger.
The proposed amendments would increase the eligibility age to six years, significantly broadening access to leave for adoptive parents.
The Constitutional Court had previously found the two-year age limit unjustified but left it to Parliament to determine an appropriate replacement.
UIF parental benefits to replace maternity framework
Changes are also proposed to the UIA to align the benefits system with the revised parental leave framework.
According to Ewang, the amendments would replace the current maternity benefit structure with parental benefits available to qualifying contributors.
Under the proposed system:
- a single contributor could claim up to 17.32 weeks of parental benefits;
- where both parents contribute to the UIF, the benefits would be shared between them; and
- benefits would be paid at 66% of earnings, subject to the UIF income threshold.
The UIF reforms aim to ensure the financial support system aligns with the new shared parental leave model.
Questions remain about fairness
Despite the move towards a more equal parental leave framework, some commentators say the proposals may still produce uneven outcomes.
Bowmans notes that the Bill retains the rule that a parent who is the only employed partner in a household may take the full four months of parental leave.
In contrast, where both parents are employed, they must share the leave entitlement.
This could create situations where households with a stay-at-home partner qualify for more leave than households where both parents work.
What the reforms mean for employers and parents
If enacted, the amendments would represent one of the most significant shifts in South Africa’s parental leave framework since the BCEA was introduced.
For employers, the reforms would require updates to leave policies, clearer procedures for managing parental leave requests, and co-ordination where parents work for different organisations.
For working parents, the proposed framework could offer greater flexibility in how caregiving responsibilities are shared – particularly in households where both parents are employed.
At the same time, some elements of the proposal are likely to remain points of debate as the legislation moves through public consultation and the parliamentary process.
Public comment period open
The Labour Law Amendment Bill remains in draft form and is open for public comment.
Comments on the Labour Law Amendment Bill and the Labour Relations Amendment Bill must be submitted by email to Hlukani.Mabunda@labour.gov.za and/or Kopano.Kgatlhanye@labour.gov.za.
Submissions must reach the Department of Employment and Labour within 30 days of the publication of the notice in the Government Gazette on 28 March 2026.
Late submissions may not be considered.
