The Labour Laws Amendment Bill, 2025 (“the Bill”) was published for comment in Government Gazette 54220 of 26 February 2026. The Bill seeks to amend the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”), and the Unemployment Insurance Act 63 of 2001 (“the UIA”), in respect of changes to the forms of maternity, parental, adoption, and commissioning parental benefits. These amendments give effect to the ruling of the Constitutional Court 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) 46 ILJ 2811 (CC)
The Court determined that the leave and benefits regime set out in the BCEA and the UIA was unconstitutional in certain aspects. It, however, refused to make an interim reading-in of prolonged benefits in respect of the UIA. The Court observed that such an intervention might have significant financial implications and that the redesign of the Unemployment Insurance Fund (“UIF”) benefit structure was a matter better suited to Parliament. The invalidity declaration in respect of the UIA was thus put on hold for 36 months.
At present, section 24(4) of the UIA states that maternity benefits should be paid up to 17.32 weeks. The provision is linked to pregnancy and childbirth, with entitlement based on pregnancy, delivery, and the post-delivery period.
In comparison, section 26A of the UIA provides parental benefits of only ten consecutive days. Adoption benefits in terms of section 27 and commissioning parental benefits in terms of section 29A are each limited to ten consecutive weeks. The UIA thus does not provide a common framework for all parents. Rather, it establishes separate categories, each with its own protection period.
These provisions reveal that the current UIA does not treat biological motherhood as the same as other types of parenthood. The Constitutional Court in Van Wyk found that the legislative framework distinguished between different categories of parents in a manner that perpetuated the assumption that women are and should be the primary caregivers of children. The Court held that this framework marginalised fathers and other parents and failed to recognise the diversity of contemporary family structures. It therefore concluded that the provisions unfairly discriminated between categories of parents and were inconsistent with sections 9 and 10 of the Constitution.
The Bill now seeks to repeal sections 24 to 29C of the UIA and introduce a unified parental benefit system instead of the existing maternity and parental system.
The Bill proposes that a single contributor will remain entitled to 17.32 weeks of benefits. Where more than one contributor qualifies in relation to the same child, the Bill does not create separate individual claims. Instead, it establishes a shared parental entitlement that arises on the birth or placement of the child. The division of that entitlement is governed by agreement between the contributors and by the statutory framework.
On paper, the structure appears workable. The legislation allows contributors to determine between themselves how the shared benefit will be divided, creating space for agreement between parents. However, the UIF is a contributory system, which may complicate allocation in practice. Where both parents have contributed to the UIF, each may view the benefit as something to which they are personally entitled. Disagreement may arise where one parent assumes primary caregiving responsibilities and seeks a larger portion of the benefit, while the other insists on an equal share on the basis of equal contribution.
In South Africa, care work continues to be disproportionately performed by women. A formally neutral and shareable entitlement may therefore operate within unequal household dynamics. The question is not only whether the statute permits sharing, but whether social realities enable it.
Although the consolidated parental model represents an important constitutional shift, its practical effects remain uncertain. The reform appears fair in principle and aims to promote greater equality amongst parents, but complications may arise in implementation. This means care will have to be taken in its implementation to ensure that the benefits reach those for whom they are intended. Whether the model will truly redistribute caregiving responsibilities or simply change how entitlement is expressed in the law will depend on how it works in real social conditions.
