South African Leave Rules (as per Basic Conditions of Employment Act)


Annual Leave.

Every full-time employee is entitled to 15 working days per annum on full pay. The Act states “21 consecutive days” and reference to a calendar will show that 21 consecutive days is 15 working days based on a 5 day week, or 18 working days based on a 6 day week. Public holidays which fall within a period of annual leave are additional to the annual leave entitlement.


Accrual or accumulation of annual leave.

The Act does not stipulate that annual leave must be taken within 6 months of the end of the cycle in which it accrues. Whatthe Act does stipulate is that should the employee submit a request to take annual leave due to him/her upon expiry of the 6 month period then the employer may not refuse to grant that request for leave.


The Act does not prohibit the accumulation of annual leave, which means then that employees may accumulate annual leave for any period of time, provided they do not contravene the employer's Annual Leave Policy. Therefore all employers should have in place an Annual Leave Policy, which regulates the accumulation of annual leave, placing limits on the amount of annual leave that may be accumulated and stipulating when the annual leave may/must be taken (having regard to annual shut-down and so on.)


Employers cannot impose a "use it or lose it" policy on employees. Nowhere does the Act state that employees must take the leave within a stipulated period or after expiry of a certain time period, and nowhere does the Act state that if employees do not take annual leave within certain periods, then the employee shall forfeit that leave. Any annual leave already accumulated to the employee's credit is his/her legal entitlement and the employer has no authority or legal basis to deprive the employee of that legal entitlement.   The employer may also not "purchase" annual leave from the employee, and may not pay the employee out for any annual leave except upon termination of the employment contract for any reason.


Annual leave can be taken at any time provided it is first agreed with the employer. This means that the employer has the right to refuse any application for leave if it is not suitable at that time for the employee to take leave. For example, many companies close down over Christmas, and employees must take their leave at that time and are not permitted to take leave at any other time. (section 20 (10) of the Act).  However, any occasional leave that may be granted is deductible from the annual entitlement. Whilst on annual leave, the employer may not require or permit the employee to undertake any work for the employer. Annual leave may not be substituted in place of sick leave, maternity leave or family responsibility leave


Entitlement to accrue annual leave.

By prior agreement with the employer, the employee may accumulate leave at the rate of 1 hour for every 17 hours worked or for which the employee was entitled to be paid, or 1 day for every 17 days worked or for which the employee was entitled to be paid, or 1, 25 days per month.


Maternity Leave.

The Act entitles a pregnant employee to four months unpaid maternity leave. It further stipulates that the maternity leave must commence not later than four weeks before the expected date of birth of the child and of the employee may not return to work for six weeks after the birth of the child. These periods may be varied upon written permission from a doctor or midwife.


The Act does not stipulate at what stage of the pregnancy the employee is obliged to inform the employer of her pregnant condition. The Act stipulates that the employee must notify the employer in writing of the date on which the employee intends to commence maternity leave and the date on which the employee intends to return to work. The Act stipulates further that the above written notice must be given to the employer at least four weeks before the commencement of the maternity leave.


An employer is obliged to keep the employee's job open, and no employee may be dismissed on grounds of pregnancy, or for any reason in relation to pregnancy or intended pregnancy. Any arrangements between the employer and employee regarding payment of salary or benefits during maternity leave, remains a matter between employer and employee and has nothing to do with any provision of the Act. The employee must inquire at the Department of Labour regarding maternity benefits payable in terms of UIF.


Note: Annual leave continues to accrue to an employee who is absent from the workplace on maternity leave. Section 20 of the Act states that the employer must grant to an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle, and it goes further to define a leave cycle as a period of 12 months in employment with the same employer immediately following an employee's commencement of employment or the completion of the prior leave cycle. It is clear then that the accrual of annual leave is dependent upon a period of employment of 12 months with the same employer - it is not dependent on whether the employee actually attends the workplace or not.  When an employee is on maternity leave, the employment contract is not changed in any way at all - the employee is merely exercising her legal entitlement to four months unpaid leave (whether the employer pays a salary for the duration of, or for part of, the maternity leave, is of no consequence)


Sick Leave

A sick leave cycle is a period of 36 months employment with the same employer immediately following the date of commencement of employment, or the completion of the prior sick leave cycle. During the first 6 months of employment, the employee is entitled to 1 day sick leave for every 26 days worked. On the first working day of month number 7, the balance of the 30 days becomes available to the employee, less any days taken sick during the first 6 months of employment.  The amount of the sick leave entitlement is a number of days that the employee would ordinarily have worked during a six week period. In other words, if the employee works a 5-day week then it is 30 days sick leave in each leave cycle or every 3 years, or a 6-day week would result in 36 days sick leave a every 3 years.  At the end of every 3-year cycle, any sick leave remaining untaken or unused is forfeited, and the next cycle begins with a fresh balance of 30 days or 36 days as the case may be.


Annual leave may not be substituted for sick leave and sick leave is in addition to any other leave entitlement. Sick leave, however, is not in addition to a period of notice of termination of the employment contract.


Medical certificates

An employee who is off sick for more than 2 consecutive days (in other words, 3 days or more) is required to produce a medical certificate signed by a medical practitioner or any other person who is certified to diagnose and treat patients, and who is registered with a professional council established by an Act of Parliament.  


If the employee does not produce the required medical certificate as above, then the employer is entitled to treat the period of absence as unpaid leave, and the employee is not entitled to request that it be taken as paid annual leave.  Certificates issued by clinic sisters, Traditional Healers, Sangomas, “Witch Doctors” etc. are not presently acceptable, therefore absence from work where the employee was treated by one of the afore-going, should be treated as annual leave or unpaid leave.


Note that absent on a Friday and a Monday is not “consecutive days”. It is 2 separate occasions, and the employer cannot demand proof of incapacity in such circumstances. Likewise, if an employee is off sick on the day before or the day after a public holiday, the employer is not entitled to request proof of incapacity.  If the employee is absent on 3 consecutive working days or more, or is absent on more than 2 occasions (remember a Friday and a Monday is 2 separate occasions) during the same 8 week period, then the employer is entitled to demand proof of incapacity. If such proof is not produced on demand by the employer, then the employer is entitled to treat the days absent as unpaid leave.


Family Responsibility Leave

Employees who have been in employment with the same employer for more than 4 months and who work for the same employer for at least 4 days per week are entitled to 3 days Family Responsibility Leave full pay per annum.  Family Responsibility Leave is in addition to any other leave entitlement and any unused portion lapses at the end of each year and is not accumulative. Family Responsibility Leave applies when the employee's child is born, when the employee's child is sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.  An employee is entitled to take family responsibility leave as a ½ day, if that is all that is required.


The employer is entitled to ask for proof of the event for which the family responsibility leave is sought, such as a medical certificate or death certificate. Family responsibility leave may not be claimed for any reason other than the reasons stated above. The employer should bear in mind that in the majority of cases, such proof may only be available upon the employee’s return to work and employer’s should be reasonable in that regard. Note that the illness of an employee’s spouse does not qualify for Family Responsibility Leave. Family Responsibility Leave is in addition to any other leave entitlement.


Study Leave

Labour legislation is silent on the matter of study leave, and therefore in the purpose of Labour Law, study leave does not exist. This is a matter for arrangement entirely between the employer and the employee, and is the employer stipulates that study leave must be deducted from the employee's annual leave entitlement or be taken as unpaid leave, then that decision must apply.


Leave for religious holidays

Labour Law does not to regulate leave for religious holidays. At present the situation is that should an employee wish to take leave for the purpose of religious holidays other than an official public holiday, then the employee must take paid annual leave or unpaid leave. Any paid annual leave taken will be deductible from the employees annual leave entitlement.


Injury on duty and sick leave.

If an employee is unable to work because of an accident or occupational disease, as defined in the Compensation for Occupational Injuries and Diseases Act, then any period of absence is not taken from ordinarily sick leave, unless there is no compensation payable in terms of the Act.


Unpaid leave

There is no provision in the BCEA which entitles an employee to take unpaid leave. Unpaid leave is referred to in the Act only in terms of what the employer is entitled to do when an employee’s sick leave or annual leave has been exhausted - the employer may then allow (or require) the employee to take unpaid leave. However, there is no provision in the Act that allows an employee to demand that he/she be permitted to take unpaid leave.


Paternity Leave

New legislation, effective as from 1 January 2020, determines that all parents – including fathers, adopting parents, and surrogates – are now entitled to 10 days unpaid parental leave when their children are born.  However, this new legislation does not apply to mothers who give birth as they are already entitled to maternity leave.  Parents are entitled to take the leave once a calendar year and they must apply for it from their employer.


Through the new amendments, UIF contributors will also have the right to claim for parental, and commissioning parental benefits in the event that an employer cannot pay the full salary of the worker. The payment of parental benefits by UIF will be in line with the 10 leave days granted and will be subject to credit days accumulated and the standard applicable 66% of their salary up to the Basic Conditions of Employment Act annual earnings cap (as set from time to time).



DISCLAIMER:  These guidelines must be read in conjunction with any later amendments and additions to the Act and it remains the sole responsibility of the business owner, when applying any of these leave types or conditions, to ensure that the details contained in this guide are current and not in conflict with current determinations of the Act.  Users are encouraged to provide immediate feedback to Innovative Options should they become aware of any anomolies or contradictions between these guidelines and the Act.