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physical recovery. They may start leave up to four weeks before the expected birth and cannot work for six weeks after delivery unless medically cleared. Adoptive and commissioning parents now have identical rights. The previous restriction limiting adoption leave to children under two years old has been declared unconstitutional, although it remains on record until the BCEA is formally amended. UIF benefit rules have not yet been updated, meaning payment for some categories of leave remains unclear until legislative alignment occurs.
Insurance Fund (UIF) Act were discriminatory. On 3 October 2025, the Constitutional Court handed down its decision. It declared parts of both Acts unconstitutional, marking a fundamental shift in how parental leave will work in South Africa. The Court held that all parents, whether biological, adoptive, or commissioning through surrogacy, should have equal rights to parental leave and benefits. The ruling reflects constitutional values of equality and dignity under sections 9 and 10 of the Constitution of South Africa. Key Legal Findings The Court found that differentiating between birth mothers, fathers, adoptive parents, and commissioning parents amounted to unfair discrimination. The unconstitutional provisions will remain valid for 36 months to allow Parliament time to amend the laws.
In the meantime, the Court introduced interim measures that apply immediately. The Interim Regime Now in Effect Under the new interim framework: A single employed parent is entitled to four months and ten days of parental leave. jointly entitled to that same total and may share it in any way they agree, concurrently, consecutively, or If both parents are employed, they are partially. If they cannot agree, it must be split equally. Birth mothers still receive protection for
The Court held that all parents, whether biological, adoptive, or commissioning through surrogacy, should have equal rights to parental leave and benefits.
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GLOBAL PAYROLL MAGAZINE ISSUE 18
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