Good day,

May your week bring clarity and calm during changing times.

We’d like to share some information on the new parental law that may help you stay compliant and informed.

South Africa’s New Parental Leave Law (2025): What Employers and Employees who are Parents or Legal Guardians Need to Know

The New Parental-Leave Framework Explained

The Court replaced the BCEA’s fragmented system with a unified “parental-leave pool” of four months and ten days, shared by all parents or legal guardians recognised under South African law regardless of gender or how they became parents.

Constitutional Court ruling (Van Wyk & Others v Minister of Employment & Labour, 3 Oct 2025) redefines parental leave as gender-neutral.

Key Points for employees and employers:

• Parents now share 4 months + 10 days of unpaid leave, this means no longer separate maternity, paternity, or adoption categories.

Example calculation: Suppose two parents decide to split leave equally. They have approximately 130 calendar days (approximately four months plus ten days). The person giving birth (as defined under UIF Act) must take six weeks (42 days) after the birth. The remaining 88 days are split equally, giving each parent 44 days. The person giving birth therefore gets 86 days of leave (42 + 44), and the partner or co-parent gets 44 days. Employers and employees who are parents or legal guardians can agree on other splits as long as the total does not exceed estimated 130 days and the 6‑week rest for the person giving birth is observed.

• Person giving birth must still take 6 weeks’ recovery leave unless medically cleared should they wish; this counts toward the shared total.
• Only the person giving birth can currently claim UIF benefits; partner or co-parents’ leave is unpaid unless the employer provides pay.
• Parliament has 36 months (to Oct 2028) to align the BCEA and UIF Acts.
• The shared leave only applies when the adopted child is under two.  For now, The Constitutional Court declared the age limit unconstitutional but left it in place until Parliament amends the Act.
• If parents cannot agree on allocation, it defaults to an equal split after the six-week recovery period is deducted.

UIF Implications

• The UIF Act has not yet been amended.
• Only the contributing person giving birth may claim maternity benefits (38–66 % of salary up to R 17 712 cap). This means HR should continue to process UIF maternity benefits claims exactly as before until official amendments are gazetted.
• Non-birthing parents cannot yet claim UIF.
• Parliament must legislate new UIF categories within the three-year suspension.

What’s Next: Preparing for Legislative Updates – For Employers

Government systems (UIF & Department of Labour) must still modernise processes. Employers should label current policies “interim pending statutory amendment” and monitor Parliament’s progress.

Practical guidance for compliance: Implementing the interim regime:

• Update policies now: the Court’s order has immediate effect. Employers should amend parental‑leave policies to reflect the shared pool of four months and ten days, gender‑neutral language, the six‑week post‑birth rest and the requirement that leave must be taken within four months.
• Employment contracts and handbooks that still refer to “maternity leave” or “paternity leave” should be replaced with gender‑neutral “parental leave” terminology to avoid discrimination and reflect the new legal framework.
• Develop a “parental‑leave declaration form” and obtain proof: because two employed parents may split leave across different employers, HR departments should require employees to submit a declaration stating whether the partner or co-parent is employed and how the leave will be shared. Proof of the co-parents or partner’s employment (if applicable) (letter from employer or payslip) to ensure compliance.
  To support claims and stay compliant, the form should request proof of parentage. For birth parents this can be the child’s full birth certificate listing all legal parents or guardians (falling within the legal acts and compliance for parental leave). For adoptive parents it should include the official adoption order or a letter from the adoption social worker. For commissioning parents (surrogacy) it should include the surrogacy agreement and, once available, the birth certificate showing the commissioning parents as the legal parents. Recognise that birth certificates may not immediately reflect adoptive or commissioning parents; in those cases, the court order or surrogacy agreement serves as the primary proof.
• Verification and disciplinary safeguards: employers should reserve the right to verify declarations, and disciplinary policies should state that false declarations or deliberate misrepresentation constitute serious misconduct.
• Align paid‑leave practices: if employers currently offer paid maternity leave beyond UIF benefits, they should extend equivalent paid leave to partner or co-parents taking part of the shared parental leave to avoid discrimination claims.
• Train managers and HR staff: provide training on the new gender‑neutral framework, documentation requirements and how to handle adoption, surrogacy, and diverse family structures. Communicate the changes clearly to employees and update HRIS/payroll systems.
• Monitor legislative updates: Parliament has until 3 October 2028 to amend the BCEA and UIA. Employers should monitor the Department of Employment and Labour and be ready to update policies again.
• Update systems and engage with government: Employers and employees should anticipate delays and closely follow government updates on how shared leave and UIF claims will be processed during the transition.

Practical Steps to Prevent Misuse and Support Compliance:

• Require documentary proof of the parent–child relationship:
• Birth: a certified copy of the child’s birth certificate with the parents’ details or, if not yet available, a confirmation of birth from a hospital. For surrogacy, the commissioning agreement and proof that the commissioning parents have assumed parental rights under the Children’s Act.
• Adoption: the adoption court order or a letter from the adoption social worker showing that the employee is the adoptive parent. Even though the age limit still applies, the order should confirm the child’s age.
• Cross‑employer co‑ordination: when all legal parents or guardians (falling within the legal acts and compliance for parental leave) work for different employers, HR departments should exchange confirmation letters (with the employee’s consent) detailing the agreed split of leave. This helps ensure that the total leave taken does not exceed 4 months + 10 days.
• Declarations and declarations from partners: as noted, a parental‑leave declaration form should ask whether the employee’s partner is employed, how leave will be divided and whether the partner has claimed UIF benefits. Employers may request an affidavit if there is no formal proof.
• Audit and record‑keeping maintain detailed records of parental leave allocations, declarations, and proof. Periodically audit leave taken against declarations to detect overlapping claims.
• Address mismatches in UIF benefits: clearly explain to employees that the interim regime does not entitle the non‑birthing parent to UIF benefits. Employers who top‑up maternity leave should consider offering equivalent top‑ups for the partner or co-parent.

Employers and employees should treat 2025–2028 as a transition period and update policies now but remain flexible as Parliament and UIF systems evolve.

Please let us know if you need further guides, articles or information at [email protected] or contact your BP directly.

 Thank you and have a beautiful day,

BSM Support Desk
We're here to help.

Disclaimer: Guides and best-practice setups can be provided; however, system changes may have additional impacts, so it’s always best to first understand the client’s specific system and environment before implementation.