What the New Parental Leave Case Means for South African Families

South African parents are living through a historic moment. The Constitutional Court has changed the rules of parental leave in a way that finally recognises that families come in many forms and that caregiving should not be limited by gender or biology.

In the judgment of Van Wyk and Others v Minister of Employment and Labour[2025] ZACC 20, the Constitutional Court found that previous parental-leave laws were unfair, unequal, and out of touch with real family life. The Court found the laws to be discriminatory and reinforced outdated gender roles.

For many parents, especially fathers, adoptive parents, same-sex couples, and parents using surrogacy, this decision marks the beginning of a more inclusive and supportive parenting experience.

As a mediator and the Director of Fair Practice™ Mediation Services, I have spoken to countless parents who have felt overlooked, excluded, or unsupported by the old system. This article breaks down what the new ruling means in simple, practical terms, and why mediation will play a crucial role in helping families adjust.

What Was the Problem With the Old Parental-Leave System?

Before this case, South Africa’s labour laws gave:

• 4 months of maternity leave for birth mothers
• 10 days of parental leave to fathers
• 10 weeks to adoptive or commissioning parents
• No leave at all for adoptive parents of children older than two

The result? Fathers felt sidelined. Adoptive parents felt undervalued. Same-sex parents were confused about their rights. And children adopted at older ages, who often need the most support, were completely excluded.

The law, as it stood, sent a message that only birth mothers are “real” caregivers. This did not match real life. Many families share caregiving equally. Some fathers are stay-at-home parents. Many mothers run businesses or earn more than their partners. Some families grow through adoption or surrogacy. These laws did not see them as persons with parental responsibilities.

The Constitutional Court did, in this judgment of Van Wyk and Others v Minister of Employment and Labour[2025] ZACC 20.

So What Did the Court Change?

To fix the unfairness, the Court introduced a new, temporary system while Parliament works on rewriting the law.

Here’s what now applies:

1. If only one parent is employed, that parent gets the full four months and ten days of leave.
2. If both parents are employed, they must “share” the four months and ten days of leave between them.

This brings in a big change to autonomy in the decision-making of shared parental leave.  It means parents can decide:

* One parent takes all the leave, OR

* They divide the leave, OR

* They take some of it at the same time (concurrently), OR

* They alternate — for example: mum takes two months and 5 days, dad takes two months and 5 days, etc.

Parents now truly have a choice, not a rigid rule forced on them.

3. Birth mothers still get medical protection – Mothers can still take time off before birth, and they must have recovery time after birth.
4. Adopted children are now treated equally – No more age cut-off. A child adopted at three, seven, or even 15 years can now benefit from early bonding.
5. Fathers must show involvement – A father wanting to take shared leave must show he has taken on real parental responsibilities, which is important in cases where he is absent or uninvolved.

Why Is This Good News for Some Parents?

1. Dads finally get real parenting time. No more two-week rush. Fathers can now be hands-on, present and involved in those precious early months.
2. Adoptive and surrogate parents are recognised. They are no longer “less-than” parents in the eyes of the law.
3. Caregiving is finally treated as a shared responsibility. The ruling respects that many parents want and need to raise children as equals.
4. Children win. Every child deserves bonding, attachment and stability in the early days of joining a new family.

Why This Ruling May Be Challenging For Other Parents?

While the ruling is wonderful in principle, in practice, many parents will face new complications, including:

• Separated or high-conflict parents
• Low-income families (due to UIF uncertainty)
• Informal-sector workers
• Parents with unsupportive employers

 How to manage this challenge:

1. Parents have to agree on how to share leave:

For married or co-operative couples, this is easy.

But what about:

* Divorced parents?

* Parents who recently broke up?

* Parents in conflict?

* Parents in abusive or controlling relationships?

If the parents cannot agree, the Court submits that leave should be divided as close to 50/50 as possible. Disagreement is now almost guaranteed without intervention to understand how best to divide the days.

2. UIF payments are unclear:

The Court did not rewrite the UIF Act, which means many parents may not get financial support during leave. At least not immediately. This is a major concern for lower-income families.

3. Employers may be confused:

Many human resource departments will not know how to apply the new system, and workplaces may struggle to manage:

* Two parents at two separate companies

* Shared leave schedules

* Requests for concurrent leave

4. Single parents face extra pressure:

They get more leave, but not necessarily more income support.

How Mediation Can Help Families Navigate This New System

At Fair Practice™, we see the real-life side of legal change, and the truth is: shared leave is going to cause dispute. Especially among parents who are separated, co-parenting reluctantly, or already in conflict.

This is where mediation becomes essential.

1. Mediation helps parents negotiate respectfully.

A trained mediator provides a neutral, safe space for parents to discuss:

* How leave should be shared

* What works best for the child

* Work schedules and financial realities

* Overnight care, feeding, bonding time

This reduces stress and prevents resentment, and could help to solve other problems before they occur.

2. It protects children from adult conflict.

Children suffer when parents fight, and mediation keeps conversations respectful, constructive and focused on what is best for the child.

3. It supports vulnerable parents.

This ruling can be exploited in cases of:

* Financial control

* Emotional manipulation

* Coercive behaviour

Mediators ensure fairness in participation throughout the mediated process.

4. It gives separated parents a roadmap

Many separated parents may not have a co-parenting plan yet, which sets out their responsibilities and rights. Shared leave forces them to create one, and mediation helps them do that in a structured, realistic and practical way.

5. Employers can use mediation too

Workplace mediation helps companies and employees develop parental policies that are lawful, compassionate and easy to manage.

Conclusion

This judgment is a long-overdue step toward equality and recognition of current-day families. It acknowledges that love, caregiving and responsibility are not defined by biological motherhood alone. But change, even good change, can be messy. Parents now need guidance, clarity and support to navigate shared leave without harming their children or their co-parenting relationship.

That is why Fair Practice™ Mediation Services help parents transform conflict into cooperation and confusion into clear plans. We believe that parenting should never be a battlefield and parental leave should bring families closer, instead of pulling them apart.

©Veerash Srikison – Fair Practice™

www.fairpractice.co.za

info@fairpractice.co.za