It is important to note that leave entitlement with regards to the birth of a child first changed in 2020 with the amendments to Family Responsibility Leave (FRL). Taking effect from 1 January 2020, following a proclamation issued by the President (on 23 December 2019) in terms of section 17 of the Labour Laws Amendment Act of 2018, employees were no longer entitled to paid Family Responsibility Leave with the birth of a child.
From 1 January 2020 employees were legally entitled to the following leave with the birth of a child:
- Unpaid maternity leave for birthing mothers of four (4) consecutive months.
- Parental leave of ten (10) consecutive days; or
- Adoption leave of ten (10) consecutive weeks; or
- Commissioning parental leave of ten (10) consecutive weeks.
Following the court case of Van Wyk and Others v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20, the Constitutional Court handed down a judgement on 03 October 2025 that will require employers to grant leave in accordance with this judgement, as it was found that the old provisions were invalid and inconsistent with the Constitution.
Older provisions made differentiation between mothers and fathers limiting fathers to only ten (10) days of parental leave while granting birthing mothers four (4) month’s maternity leave, indicating that mothers are the primary caregiver of a child. It also made differentiation between the duration of leave where commissioning and adoptive parents were only entitled to ten (10) weeks of commissioning and adoptive leave.
From 03 October 2025 employees will be legally entitled to the following Parental Leave with the birth of a child:
- A combined total of four (4) months and ten (10) days (approximately 130 days) for employed parents (biological, adoptive, commissioning) to share for birth, adoption, or surrogacy, allowing flexible use (concurrently or consecutively), while the birthing parent still has mandatory recovery time, ensuring equality and recognizing diverse family structures.
What does this mean for employers?
- Employers who still refer to paid Family Responsibility Leave (FRL) for the birth of a child must update and change their employment contracts and policies to reflect that FRL can only be taken if a) an employee’s child / adopted child (under the age of 18 years) is sick and b) upon the death of the employee’s spouse or life partner; the death of the employee’s parent, adoptive parent, child, adopted child, grandchild, grandparent, or sibling.
- Employers should update their employment contracts and policies to reflect equal shared parental leave for all employees according to the latest judgement.
These changes do not come without some practical challenges. The payment of the Parental leave benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001). Due to the potential financial impact and regulatory complexity, the Constitutional Court granted the Department of Labour thirty-six (36) months to implement the changes. While non-birthing parents, such as fathers, adoptive parents, or commissioning parents, are now in principle entitled to significantly more leave than before, the UIF system has also not yet been updated to accommodate the application.
While still unchartered territory, employers are encouraged to update their contracts of employment, as well as their leave policies as soon as possible, ensuring that all employees know that the new legislation makes provision for flexible leave allocation decided by the parents and not dictated by gender or role.
Employers are encouraged to conduct further research in this regard to ensure compliance. Read the full order and judgement.