But What Does This Mean for Companies Offering Paid Maternity Leave?

The Constitutional Court’s Landmark Ruling in Van Wyk & Others v Minister of Employment and Labour has reshaped parental leave in South Africa, pushing the country toward greater equality for all parents. Delivered on 3 October 2025, the unanimous judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 confirmed that key provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund (UIF) Act are unconstitutional. These provisions unfairly discriminated by granting birth mothers four months of maternity leave while limiting other parents—fathers, adoptive parents, and commissioning parents in surrogacy—to far less (typically 10 days for fathers or shorter periods for others). The Court found this differentiation violated constitutional rights to equality (section 9) and dignity (section 10), perpetuating outdated gender roles and failing to recognize diverse modern families. As an interim measure (with a 36-month suspension for Parliament to enact permanent changes), the law now treats parental leave as a shared entitlement:

• A single parent or the only employed parent gets at least four consecutive months.
• Where both parents are employed, they share a total of four months and 10 days, allocated as they agree (or split evenly if no agreement).

This ruling directly challenges traditional “maternity leave” models that favour biological mothers.

Parental Leave for All – But What Does This Mean for Companies Offering Paid Maternity Leave?

South African employers now face a pivotal question in the wake of this decision: If your policy provides paid maternity leave (often more generous than statutory minimums), do you need to extend similar paid benefits to all parents?

The short answer: Yes, if the paid benefit is limited to biological mothers, it carries a significant risk of unfair discrimination claims. The Constitutional Court’s emphasis on equality means that gender-neutral or family-neutral policies are far safer. Limiting enhanced paid leave to one gender (or birthing parents only) could expose companies to:

• Unfair discrimination disputes under the Employment Equity Act.
• Employee relations conflicts or CCMA referrals.
• Reputational harm in an era where inclusive family policies are increasingly expected.

Practical Steps Employers Should Take Now to align with the Van Wyk judgment and mitigate risks, consider these actions:

• Shift to gender-neutral “paid parental leave”: Replace “paid maternity leave” language and eligibility with a unified parental leave benefit available to any qualifying parent. This better reflects the shared entitlement and constitutional principles.
• Define the paid benefit clearly: Decide on a set number of paid weeks (or months) for any parent, ensuring it complies with minimum statutory requirements while offering competitive enhancements. Policies can allow sharing between parents where applicable.
• Update documentation and systems: Revise employment contracts, employee handbooks, payroll, leave tracking, and UIF submissions to accommodate parental leave for all parents—not just birthing mothers. HR and payroll teams need to prepare for more flexible claims.
• Train managers and HR: Inconsistent application is a common trigger for disputes. Provide clear guidance on the new rules, emphasizing fair and equitable treatment to avoid perceptions of bias.

This ruling is a progressive step toward equality, recognizing that caregiving is a shared responsibility across diverse family structures. While it creates immediate administrative work for employers still using gendered policies from years past, it also offers an opportunity to build more supportive, modern workplaces. If your organization needs assistance reviewing, redrafting, or communicating updated parental leave policies in line with the Constitutional Court’s position in Van Wyk, Optiworx³⁶⁰ can help with policy alignment, compliance checks, and employee engagement strategies.