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Constitutional Court judgment: Parental leave redefined
- 23 October 2025
- Law
- South African Accounting Academy
Summary:
The Constitutional Court has delivered a landmark judgment in the matter regarding certain provisions of the Basic Conditions of Employment Act (BCEA) and the determination and allowance of parental leave, which amends the BCEA with immediate effect.
Article:
The case (Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20), as initiated by Werner van Wyk and his spouse, Ika van Wyk. When Mrs van Wyk was pregnant, Mr van Wyk requested four months’ maternity leave from his employer so he could care for their newborn while Mrs van Wyk managed her businesses. The employer denied his request, citing a policy that restricted maternity leave to birthing mothers. As a result, Mr van Wyk was unable to access longer parental leave, despite his family’s needs and their decision for him to be the primary caregiver.
In a nutshell, both birthing parents are now allowed four months and ten days of consecutive parental leave, which can be shared as they choose, as opposed to the 10 days paternal leave previously afforded by law.
The changes to the BCEA is immediately effective from 3 October 2025.
This judgment marks a significant shift towards equality and flexibility in parental leave, with immediate practical consequences for employers and their workplace policies and practices.
Employers must now extend parental leave benefits to all parents, regardless of gender or birthing status. This includes fathers and non-birthing parents, who are now entitled to share in the four months and ten days of leave. Employers should review and update their leave policies to ensure compliance and avoid discrimination. Where paid maternity leave has previously been offered only to birthing mothers, these benefits should be extended equally to all parents.
Click here to download the document:
Access the relevant SA Government media statement at: https://www.gov.za/news/media-statements/commission-gender-equality-welcomes-constitutional-court%E2%80%99s-judgment-parental
Relevance to Auditors, Independent Reviewers & Accountants:
- The BCEA is yet another piece of legislation that your clients must comply with, and which you must assess compliance with. If they don’t comply with the relevant laws and regulations, you have certain reporting obligations in terms of NOCLAR (NOn-Compliance with Laws And Regulations) – this could include reporting to management, qualifying your audit opinion, reporting a Reportable Irregularity, etc.
- As an employer, you also need to comply with the BCEA in your workplace.
- You should also be aware of court rulings that significantly affect the application of the BCEA.
Relevance to Your clients:
- An entity (company or close corporation) has a duty to comply with the Basic Conditions of Employment Act, otherwise they could be held liable.
- An employer has a duty to comply with the BCEA.
- Employers should also be aware of court rulings that significantly affect the application of the BCEA.