Maternity Leave
Maternity leave is provided and regulated under the Basic Conditions of Employment Act.
Female workers are entitled to at least four consecutive months of fully paid maternity leave (17.32 weeks), which is paid through the Unemployment Insurance Fund. The worker may commence maternity leave four weeks prior to the expected date of confinement or earlier if a medical practitioner certifies that it is necessary for the health of the worker or her child. Also, a worker is not allowed to work within 6 weeks of the child's birth unless a medical practitioner certifies her to do so.
In the event of a miscarriage in the third trimester of pregnancy or a stillbirth, the woman is entitled to six weeks of leave from the date of the miscarriage or stillbirth, whether or not she has commenced maternity leave at the time of miscarriage or stillbirth.
The pregnant worker must notify her employer in writing at least 4 weeks prior to the date of commencement of maternity leave and when she intends to return to work from maternity leave.
An employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave (paid through the Unemployment Insurance Fund) of at least ten weeks consecutively or paternity leave of 10 days. An employee may commence adoption leave on the date that the adoption order is granted; or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child, whichever date occurs first.
A commissioning parent is also eligible for commissioning leave of at least ten consecutive weeks or paternity leave of days on the birth of a child.
On 3 October 2025, the Constitutional Court in South Africa handed down a judgment concerning the constitutionality of the parental leave dispensation in South Africa.
A couple (Van Wyks) went to court because the law gave the birth mother four months’ maternity leave but gave the father only ten days, even though they wanted to share care more equally. Aadoptive and surrogacy (commissioning) parents also have access to much weaker leave rights.
It was argued before the Court that the legal scheme discriminated on the basis of sex, gender, sexual orientation, family type and how a child joins the family (birth, adoption, surrogacy).
The High Court agreed and said key parts of the Basic Conditions of Employment Act and UIF Act were unconstitutional since these provisions infringed the right to equality and dignity as provided for in the Constitution. The High Court order (23 October 2024) needed sign-off from the Constitutional Court.
On 3 October 2025, the Constitutional Court confirmed that the old maternity/parental/adoption/commissioning leave rules, and linked UIF rules, unfairly favoured traditional, hetero, birth-mother families and harmed children’s best interests.
It kept the idea that a birth mother needs special protection around the birth, but said caregiving leave overall must be shared more fairly between parents of all kinds.
The Court created an interim system: any two parents in a parental relationship now share one pool of four months plus ten days’ parental leave (130 days), which they can divide and schedule between themselves.
If only one parent is employed, or there is a single parent, that parent gets the full four months; adoptive and commissioning parents are treated on the same footing as biological parents.
The Court gave Parliament three years to rewrite the Acts and fix the UIF benefits, but told employers and the state to apply this new, more equal leave regime immediately.
Source: § 25, 25-B and 25-C of the Basic Conditions of Employment Act, 1997 (last amended in 2020)
Income
Maternity leave is paid leave. These benefits are paid under the Unemployment Insurance Act. worker, contributing to UIF, is eligible for a maternity benefit of 38% to 60% of average earnings in the last six months, depending on the insured person's level of income. Maternity benefit is paid for a total of 17.32 weeks.
Earlier, the law allowed only six weeks' benefit in the event of a miscarriage or birth of a stillborn child. However, with the amended law, a contributor who has a miscarriage during the third trimester or bears a stillborn child is entitled to a full maternity benefit of 17.32 weeks. A worker is entitled to benefits under the law only if she was in employment, whether as a contributor or not, for at least 13 weeks before the date of application for maternity benefits.
Under the amended law, maternity benefits must be paid at a rate of 66% of the earnings of the beneficiary on the date of application, subject to the maximum income threshold.
Under the Amended Act, an application for maternity benefits must be made in the prescribed form at an employment office at any time before or after childbirth, provided that the application has to be made within a period of 12 months after the date of childbirth.
The adoption benefit and commissioning parental leave benefit must be paid at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum income threshold set in the Unemployment Insurance Act.
Source: § 12-13, 24, 25 & 2nd Schedule of the Unemployment Insurance Act 2001 (last amended in 2020)
Non-Standard Workers' Rights on Income Replacement during Maternity - Platform workers
Some self-employed workers can claim maternity benefits from the UIF (Unemployment Fund) if they are registered as a Closed Corporation or a Company and have been contributing to UIF. Otherwise UIF payments require proof of employment/payment from an employer, and it is unclear at this point whether any platform companies are providing these at the moment. The BCEA does state that any worker who works more than 24 hours a month is entitled to maternity leave, but whether this includes benefits is not always the case. The access to benefits hence is dependent on classification of a person as “employee” under legislation.
Pregnancy Testing / Inquiry in Recruitment
Employers are not explicitly prohibited from asking about pregnancy during recruitment. However, under the Employment Equity Act, medical testing is allowed only if required by law or if justified for specific reasons.
Section 6 of the Employment Equity Act prohibits unfair discrimination, including on pregnancy, in any “employment policy or practice”. Section 1 of the same Act includes “recruitment procedures, advertising and selection criteria” in the definition of “employment policy or practice”.
Source: §7 of the Employment Equity Act, 55 of 1998, last amended in 2025
