New Parental Leave Law: What Employers Must Change Right Now
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On 3 October 2025, the Constitutional Court changed South Africa's parental leave law. The old rules on maternity leave and paternity leave no longer apply in the same way. Many employers do not know this yet. If your clients have not updated their leave policy, they are already out of date.
This article explains what changed, why it changed, and what you need to check for every client.
WHAT CHANGED
The case is called Van Wyk and Others v Minister of Employment and Labour. The Constitutional Court looked at South Africa's old parental leave system. Under the old system, a mother who gave birth could take four months of maternity leave. A father could only take ten days of paternity leave. Adoptive parents and parents who used a surrogate had different, shorter leave periods too.
The Court said this was unfair. It treated fathers, adoptive parents, and surrogacy parents differently from birth mothers, without a good reason. The Court struck down the sections of the law that created this unfair split. This includes sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act (BCEA), and the matching sections of the Unemployment Insurance Fund Act (UIF Act).
The ruling took effect immediately. Parliament now has two years to write a new, permanent law. Until then, the interim rules set by the Court apply. These rules are already binding law today, not just a guideline.
WHAT THE NEW RULES SAY
There is now one shared type of leave called parental leave. It replaces the old separate categories of maternity leave, paternity leave, and adoption leave.
Here is how it works:
If only one parent is employed, or only one parent can realistically care for the child, that parent can take up to four months of unpaid leave.
If both parents are employed, they now share a total of four months and ten days of leave between them. They can split this however they choose. For example, one parent could take three months and the other could take the rest.
This leave still counts as unpaid under the BCEA. Employees can still claim money from the UIF while on leave, the same as before. But the UIF Act has not been updated yet to match the new Court ruling. This means some UIF claims from non-birth parents may take longer to process while the system catches up.
WHY THIS MATTERS TO YOUR CLIENTS
Most small and medium business owners do not read Constitutional Court judgments. They will only find out about this change when an employee asks for parental leave and the manager refuses it, using the old rules. At that point, the business has already broken the law, and the employee can take the matter to the CCMA.
This is not a small risk. A wrongly refused leave request is a clear case of unfair discrimination. It is also an easy case for an employee to win, because the law itself is now very clear.
Many SME owners in retail, hospitality, and small offices run their HR policies off a template they downloaded years ago. That template almost certainly still says "maternity leave" and "paternity leave" as two separate things, with two separate lengths. It needs to change now, not when Parliament finishes the permanent law in two years' time.
WHAT ACCOUNTANTS AND BOOKKEEPERS SHOULD CHECK
If you handle payroll, HR administration, or compliance advice for SME clients, here is what to check for each one:
First, check the leave policy itself. Look for the words "maternity" and "paternity." If the policy treats mothers and fathers differently, it needs to be rewritten using neutral words like "employee" and "employee's partner."
Second, check the payroll system. Most payroll software still has separate leave codes for maternity leave and paternity leave. Someone needs to go into the system and either replace these codes or add a new shared parental leave code. The software will not fix this by itself.
Third, check how the business will handle shared leave. Since parental leave is now shared between two parents, the employer needs a simple way to confirm how much leave each parent has already used. There is currently no official system that connects one employer to another to check this. The simplest fix is a short signed form. The employee states how much parental leave their partner has taken or plans to take, especially if the partner works somewhere else.
Fourth, check how UIF claims are being processed for affected staff. Since the UIF Act has not caught up with the court ruling yet, some claims from fathers, adoptive parents, or surrogacy parents may need extra paperwork or take longer. Set expectations with staff early so nobody is caught by surprise.
Fifth, put a reminder in your calendar. Parliament must pass a permanent law within two years of the ruling. That means the rules may change again. Treat the current policy as a first version, not a final one.
WHAT TO DO NEXT
Here is a short action list you can run through with each client this month:
1. Pull out their current leave policy and read it carefully.
2. Replace any gendered language with neutral terms.
3. Combine maternity, paternity, and adoption leave into one parental leave category.
4. Update the payroll system's leave codes.
5. Create a simple leave-sharing declaration form for employees to sign.
6. Brief managers so nobody refuses a parental leave request using the old rules.
7. Set a date next year to review the policy again, in case Parliament passes new legislation early.
A SIMPLE EXAMPLE
Say a client runs a small retail store with eight staff. One of the sales assistants tells her manager that her husband, who works at a different company, plans to take three months off to care for their new baby, so she can go back to work sooner. Under the old policy, the manager would have said no, because paternity leave was capped at ten days, no matter who the employer was.
Under the new rules, this is allowed. The couple can agree to split the four months and ten days however suits their family. The wife's employer cannot block this decision, and neither can the husband's employer. The only thing each employer needs is confirmation of how much leave the other parent is taking, so nobody accidentally claims more leave than the law allows between them. That confirmation is exactly what the signed declaration form is for.
COMMON QUESTIONS
Does this apply to every business, no matter how small?
Yes. The ruling applies to all employers covered by the BCEA, regardless of size or sector. A five-person business has the same obligation as a five-hundred-person company.
What if the two parents work for different employers?
This is the trickiest part in practice. Each employer only sees their own employee's leave request, not what the partner's employer is doing. Until a formal system exists to check this between companies, a signed declaration from the employee is the safest way for each employer to track how much of the shared leave has already been used.
What if the client's existing policy is already more generous than the law requires?
That is fine, and it does not need to change. The new rules set the legal minimum, not a maximum. If a client already offers longer or fully paid parental leave, they can keep that. What does need to change is any wording that treats mothers and fathers unequally, even in a generous policy.
Is this leave paid or unpaid?
Under the BCEA, parental leave remains unpaid. Employees can claim benefits from the UIF instead, in the same way they could previously claim maternity benefits. Employers are not required to pay salary during this leave unless their own policy says otherwise.
THE BOTTOM LINE
This change is already in effect. It is not something coming later this year, and it is not optional. Every SME client with staff, in every sector, needs their leave policy checked now.
For accountants and bookkeepers, this is also a chance to help clients properly, not just point out the problem. Reviewing and rewriting a leave policy is real, useful work. It protects the client from a CCMA claim, and it shows that you understand more than just the numbers.
