If you learned about South African maternity leave any time before October 2025, what you learned is now out of date. The Constitutional Court's Van Wyk and Others v Minister of Employment and Labour judgment struck down the old system — 4 months of maternity leave for the birth mother, 10 days of parental leave for everyone else — as unconstitutional discrimination. A new, shared interim regime has applied since 3 October 2025, and it changes who can take leave, how much, and how it's split. This guide covers exactly what's in force right now.
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What Changed — the Van Wyk Ruling
On 3 October 2025, the Constitutional Court delivered its judgment in Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20. The Court unanimously found that Sections 25, 25A, 25B and 25C of the BCEA — which had reserved 4 months of maternity leave to birth mothers, 10 days of parental leave to everyone else, and 10 weeks of adoption or commissioning parental leave to one adoptive/commissioning parent only — unfairly discriminated on grounds including gender and parental status.
The declaration of invalidity is suspended for 36 months (to roughly October 2028) to give Parliament time to pass permanent replacement legislation. But the Court didn't leave a gap in the meantime — it set out an interim regime that has applied since the judgment date, and that interim regime is the current law, not the pre-2025 rules you may have seen described elsewhere.
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Use our UIF Calculator to estimate what a maternity, adoption or parental benefit claim could pay — and confirm your exact position with the Department of Employment and Labour given the current legal uncertainty explained below.
Open UIF CalculatorThe Current Entitlement — Shared, Not Split by Role
Where two parents are both employed, they are collectively entitled to 4 months and 10 days of parental leave to divide between themselves as they see fit — concurrently, consecutively, or any combination. A single parent (with no second employed parent in the picture) is entitled to the full 4 months and 10 days individually. This applies equally to birth parents, adoptive parents and commissioning parents in a surrogacy arrangement — the old distinction between "maternity leave," "parental leave" and "adoption leave" as separate entitlements with different lengths no longer determines how much leave a family gets in total.
| Situation | Before 3 Oct 2025 | Now (interim regime) |
|---|---|---|
| Birth mother | 4 months, hers alone | Shares a combined 4 months + 10 days with the other parent |
| Other birth parent | 10 days only | Can take up to the full combined allocation, by agreement |
| One adoptive parent (child under 2) | 10 weeks | Shares the combined 4 months + 10 days with the other adoptive parent |
| Second adoptive parent | 10 days only | Shares the same combined allocation |
| Single parent (any category) | Varied by category | Full 4 months + 10 days individually |
How the Split Actually Works
Parents can divide the combined allocation however suits their circumstances — one parent taking most or all of it, an even split, or a staggered arrangement where one returns to work as the other starts their portion. The only structural rule is that each parent's own share must be taken as a single sequence of consecutive days, not broken into scattered blocks. If the parents can't agree on a split, the default is as close to an equal half each as possible. A birth mother's mandatory 6-week medical recovery period after delivery still applies within whatever allocation she takes, regardless of how the total is divided.
Notice to Your Employer
You must give your employer at least 4 weeks' written notice of your intended leave and return dates — or notify as soon as reasonably practicable if that much advance notice genuinely isn't possible, such as an early birth. A parent must also have assumed genuine parental rights and responsibilities over the child, as contemplated in the Children's Act, to qualify. This leave sits alongside, not instead of, your ordinary annual and sick leave — see our Leave Days Entitlement guide for how those separate BCEA entitlements work.
The Open Question — What Happens to UIF Benefits?
This is the part of the current position that isn't settled, and it matters: parental leave is unpaid by your employer, exactly as before Van Wyk — UIF benefits are the only income replacement available during this leave. But the Constitutional Court explicitly declined to set an interim rule for how the corresponding Unemployment Insurance Act provisions apply to the new shared leave structure, stating that the UIF Act's benefit-calculation mechanism is regulated differently and that the Court didn't have enough information to safely read in an interim formula. That question is left entirely to Parliament, alongside the permanent BCEA amendment, within the same 36-month window.
In practice, this means the pre-Van-Wyk UIF maternity/adoption benefit structure (a flat 66% of capped daily income, up to 121 claimable days — see our UIF Calculator for that pre-Van-Wyk rate as a reference point) exists in the UIF Act as written, but how it's meant to apply when two parents now share what used to be one parent's separate entitlement is genuinely unclear pending Parliament's fix. Don't assume your UIF benefit works exactly as it did before Van Wyk — confirm your specific position directly with the Department of Employment and Labour, uFiling, or a labour lawyer before relying on a benefit estimate for this leave type specifically.
This Is Interim, Not Final
Everything above describes the regime the Constitutional Court put in place to cover the gap while Parliament legislates — it is genuinely the current law, but it is explicitly temporary. Parliament has until roughly October 2028 to pass permanent amending legislation, which could confirm this interim structure, adjust the specific day counts, or resolve the open UIF question differently than the interim position suggests. If you're planning leave well into the future, it's worth checking for updates as that deadline approaches rather than assuming today's rules are locked in indefinitely.