South Africa’s Constitutional Court ruled on Friday, 3 October 2025, that any two parents may now share four months of parental leave.
The Constitutional Court found that the sections of the Basic Conditions of Employment Act dealing with maternity leave, parental leave, adoption leave, and surrogacy leave are unconstitutional and must be amended.
The Court further ordered that, pending the enactment of remedial legislation, the contested provisions of the Basic Conditions of Employment Act (BCEA) be amended to provide that the current four-month maternity leave (for biological mothers) must be retained. Leave must not only be limited to mothers, but must also be extended to fathers. The additional 10 days as referred to in section 25A (parental leave) must also be considered, which constitutes a total of four months and 10 days of maternity/parental leave that can be shared between the parents.
Where only one of the parents is employed, that parent must be entitled to the full parental leave. In the case of a biological birth, the mother should be given priority in terms of the time currently allocated for preparation for and recovery from childbirth. Subject to this qualification, the parents should be entitled to divide the available days as they choose.
In the event of a difference of opinion, the leave should be divided between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and 10 days.
It should further be determined that a father who claims paternity leave only qualifies for it if he has accepted parental rights and responsibilities over the child, as contemplated in the Children’s Act.
This means that Maternity Leave, Parental Leave, Adoption Leave, and Surrogacy Leave will henceforth consist of 4 months and 10 days which can be shared by the parents on a 50/50 basis except in the case where one of the parents is unemployed, in which case the working parent can take the full 4 months and ten days.Employers are required to review and align their leave policies with the new ruling.