South Africa: New (provisional) family leave entitlements now in effect

Employer Action Code: Act

South Africa’s Constitutional Court ruled on October 3, 2025 that the previously separate maternity, partner (paternity) and adoption leaves should be consolidated into a single shared leave entitlement of four months and 10 days for reasons of birth, adoption or surrogacy, to be divided between the two parents as they see fit. The ruling took effect immediately.

Key details

• In 2023, the High Court (Gauteng regional division) declared the family leave provisions under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) unconstitutional, citing unfair discrimination between mothers, fathers and other types of parents (e.g., adoptive and surrogate). Under the BCEA and UIA, mothers were entitled to four months of maternity leave with benefits payable by social security for up to 17.32 weeks, while partners of primary caregivers were entitled to 10 calendar days of partner leave (for birth or adoption), paid by social security as well. Adoptive and surrogate parents were entitled to 10 weeks of leave (for one parent), provided the child was under age two in the case of adoption
• The Constitutional Court has now confirmed the 2023 ruling, finding that the family leave provisions in the BCEA and UIA violate constitutional rights to equality and human dignity. The court also found that the age cap for adoption leave (i.e., age two) is arbitrary and unconstitutional but left it in effect until revisited by parliamentary action
• Parliament has 36 months to amend the BCEA and UIA to remedy the relevant problematic provisions. In the meantime, provisional rules issued by the court, effective October 3, 2025, entitle all new parents — including birth, adoptive (of children under age two) and surrogate parents — to four months and 10 calendar days of shared parental leave (four months for a single parent or if the employee is the sole employed parent), replacing maternity, partner (paternity) and adoption leaves. Parents may determine how to allocate the full leave entitlement between themselves; if they cannot agree, it should be split as equally as possible between them
• The ruling did not address the level of parental leave benefits, which continue to be payable by the Unemployment Insurance Fund at 66% of monthly pay up to 17,712 South African rand

Employer implications

The ruling primarily affects leave duration and allocation of leave between parents, greatly increasing the amount of leave available to fathers and adoptive parents. Employers must now allow parents to share the leave between themselves; they should prepare for a more flexible system that acknowledges both parents' roles. The change is a legal requirement and not a matter of company policy. Companies surveyed by WTW generally provide employees with the minimum leaves under the BCEA and the UIA provisions, but 48% top up social security maternity benefits to full pay for 16 weeks, 24% provide partner leave at full pay for 10 workdays, and 23% offer adoption leave at full pay for 87 workdays (i.e., 17.32 weeks) at the median. Employers should review and revise their family leave policies to ensure compliance with the provisional rules and to avoid discrimination.

Contact

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Melanie Trollip

Director of Work and Rewards, South Africa

email Email

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