What The Law Says: Maternity and Adoption Leave For Mothers-To-Be, New Mothers and Fathers

What The Law Says: Maternity and Adoption Leave For Mothers-To-Be, New Mothers and Fathers

Whether the thought of a newborn or a little person  under the age of two, terrifies you or fills you with warm, parental instinctive feelings, South African law contains several important provisions protecting the rights of mothers-to-be and new mothers of either a biological or adopted child. All employers and employees should know what the law says about this. Statistics show that there are more or less 3,468 live births on an average day [1] and around seven adoptions a day in South Africa [2]. From a global perspective, the United Nations Sustainable Development Goals require effective legislation, policies, services and benefits to be in place to support family units, provide for sustainable social development [3] and ensure the fulfilment of the  promise of full gender equality visioned by 2030. Let’s take a look at how this works in South Africa.


The basics of the basics  

The Basic Conditions of Employment Act [4], one of South Africa’s main labour laws prescribes, you guessed it, basic conditions of employment that must be provided for in any agreement such as a contract of employment between an employer and employee. This is whether the employment agreement is completed orally or in writing (although it is always better to have a contract in writing).  

So any employment contract must at a minimum contain terms and conditions that match with those prescribed by the BCEA. You can always include terms and conditions that are better than the BCEA in an employment contract but never worse or less favourable. This applies to all employees and employers except for a few state entities where equivalent employment laws are in place [5]. 

The BCEA specifically provides for moms-to-be or new moms, whether of a biological child or an adopted child. In terms of the law any discrimination against an employee due to her pregnancy or on the basis of an arbitrary ground related to family responsibility may get you, the employer, in hot water. Discrimination on these grounds is prohibited and would be an unfair labour practice or an automatically unfair dismissal if the employee was dismissed for these reasons [6]. It means the employee can take their case to  the CCMA (Commission on Conciliation Mediation and Arbitration) which could result in them getting reinstated or re-employed, or getting compensation money of  an amount equal to 24 months salary [7]. 

Let’s look at the basics of maternity leave 

In short, the BCEA provides that an employee is entitled to 4 months consecutive maternity leave [8], which means it must be four months following one after the other. Untaken maternity leave can’t accrue, or be carried over [9]. 

The law doesn’t require that you pay maternity leave. Instead your employees can claim maternity benefits from the UIF[10] on condition that 1) the application for maternity benefits is made at least 8 weeks before the birth of the child, 2) it is limited to between 38% and 60% of the employee’s income, with the maximum amount that can be claimed capped at R12478 [11],  and 3) the benefits claimed cannot be more than the salary or wage that the employee would have received had she not been on maternity leave [12]. 

The Act says that maternity leave can start any time from four  weeks before the expected date of birth unless a doctor or midwife says it is necessary to take it earlier for the  health of the mother or her child [13]. An employee is also not  allowed to return to work for six weeks after the  birth of the children unless her doctor or midwife has declared that she is medically fit to work [14]. If the  mom-to-be has a miscarriage in the last three months of her pregnancy – anywhere from 28 weeks[15] – or has a stillborn child [16] she is entitled to maternity benefits from UIF for six weeks. 

Does a person who is pregnant have to tell you about this? The law doesn’t say that a mom-to-be must inform you that she is pregnant [17] but it does require her to give you at least 4 weeks written notice before starting her maternity leave and she must tell you when she intends to return [18]. 

Remember that for the period of the employee’s maternity leave and for the six months following this, you can’t change or amend her terms and conditions of employment in any way that puts her in a less favourable position regarding the job she had  before she went on maternity leave   [19].

The basics of adoption leave 

The law allows parents who are adopting a child to have 10 consecutive weeks of adoption leave,[21] or 10 consecutive days of parental leave, where the child adopted is over the age of 2,[22]. This leave can be taken  from the date when the adoption is granted or when the child is placed in the care of the adoptive parent by a court.  Just like maternity leave, the law does not require you to pay for the adoptive leave but the employee can claim for adoption benefits from UIF.

The UIF allows only one of the adoptive parents to claim for benefits per adopted child, provided that the child is adopted in terms of the Children’s Act, that the child is under the age of two and the leave taken was used to care for the child [23]. The application for adoption benefits must be made within 6 months of the adoption order being granted [24] and the benefit may not be more than the salary or wage that the employee would have received if they had been at work and not taken leave [25].   

Finishing off… 

Maternity and adoption leave is not like annual leave. It is time dedicated to recovering from a pregnancy and looking after the health of both the mom and the baby. Apart from adjusting to a new family addition a mother has to have time to recover and settle into her new role, no easy feat following a pregnancy or an adoption process. 

What is clear from the law is that a woman’s reproductive choices should not influence or negatively affect her rights to participate in the world of work or undermine her financial, economic and employment security.[26] Maternity and adoptive leave and the rights related to this are necessary not only for purposes of protecting the health of the mother and her new little person, but to protect women against unfair discrimination in the labour market, provide job security and promote gender equality, taking us closer to achieving the 2030 Sustainable Development Goals [27].


[1] Annon. “ South Africa Population” Country Metres (July 2022) accessible https://countrymeters.info/en/South_Africa (last accessed 27 July 2022) 

[2] Annon. “ Adoption Statistics” Ad-d-option (2022) accessible at https://adoption.org.za/adoption-statistics/ (last accessed 27 July 2022)

[3] Ernest and Young Advisory Services (Pty) Ltd in collaboration with Depart of Labour “ Maternity Leave Practical Experiences; Evaluating implementation and experiences of employees in accessing the benefit and knowledge of maternity leave rights. A report for Department of Labour”  (2018/2019) accessible at https://www.labour.gov.za/DocumentCenter/Research%20Documents/2018/Evaluating%20experiences%20of%20women%20in%20accessing%20maternity%20benefit%20and%20knowledge%20of%20maternity%20leave%20rights.pdf (last accessed 27 July 2022) 

[4] 75 of 1997

[5] Section 3(1)(a) 

[6] Section 186 (1)(c)(i)  187(1)(e) of the LRA

[7] Section 194(3) LRA 

[8] Section 25(1) 

[9] Annon. “Maternity Leave” Cape Labour & Industrial Consultants (09 July 2022) accessible at https://www.capelabour.co.za/maternity-leave (last accessed 27 July 2022) 

[10] Section 25(7) 

[11] Annon. “ Maternity Leave” MyWage (2022) accessible at https://mywage.co.za/decent-work/maternity-and-work/maternity-leave (last accessed 28 July 2022) ; Annon. “ General Information regarding UIF Maternity Benefits”  Rhodes University (date unknown) accessible at https://www.ru.ac.za/media/rhodesuniversity/content/humanresources/documents/academicstaffmatters/general_information_regarding_uif_maternity_benefits.doc (last accessed 28 July 2022) 

It is calculated on the rate of one day’s pay for every completed 6 days of employment, subject to maximum of 238 days of benefits

[12] Section 24(3) Unemployment Insurance Act 63 of 2001

[13] Section 25(2)(a)-(b) Basic Conditions Employment Act 75 of 1997

[14] section 25(3) Basic Conditions Employment Act 75 of 1997

[15] Annon. “ Foetal Development” Mediclinic (2022) accessible at https://www.mediclinic.co.za/en/corporate/mediclinicbaby/guide-to-pregnancy-baby-care/what-to-expect-during-pregnancy/foetal-development.html last accessed 28 July 2022 ; L Gidish “ What to expect: The third trimester” Parent 24 (22 September 2008) accessible at https://www.news24.com/parent/pregnant/pregnancy_journey/pregnancy_health/What-to-expect-The-third-trimester-20080922 last accessed 28 July 2022 

[16] Section 25(4) Basic Conditions Employment Act 75 of 1997

[17] A Claassen “ Maternity Leave” Labour Guide (2022) accessible at https://www.labourguide.co.za/conditions-of-employment/452-maternity-leave last accessed 28 July 2022

[18] Section 25(5)(a)-(b) and Section 25(6)(a) Basic Conditions Employment Act 75 of 1997

[19] Section 26(2) Basic Conditions Employment Act 75 of 1997

[20] J Truter “Parental Leave – Employee Rights as from 1 January 2022” Labourwise (6 January 2020) assessable at https://www.labourwise.co.za/labour-articles/parental-leave-employee-rights-as-from-1-january-2020#:~:text=A%20single%20adoptive%20parent%20is,parental%20leave%20(see%20above) last accessed 28 July 2022.

[21] Clause 3.6.1 Section 25B Department of Labour “ Basic Conditions of Employment Act, No 75 of 1997 Correction Notice” 17 February 2020 Regulation 2 BCEA 1A Government Gazette no 43026 NO.R 174 accessible at https://www.gov.za/sites/default/files/gcis_document/202002/43026rg11041gon174.pdf last accessed 28 July 2022

[22] Clause 3.5.1 section 25A Department of Labour “ Basic Conditions of Employment Act, No 75 of 1997 Correction Notice” 17 February 2020 Regulation 2 BCEA 1A Government Gazette no 43026 NO.R 174 accessible at https://www.gov.za/sites/default/files/gcis_document/202002/43026rg11041gon174.pdf last accessed 28 July 2022

[23] Section 27(1)(a)-(d) Unemployment Insurance Act 63 of 2001

[24] Section 28(2) Unemployment Insurance Act 63 of 2001

[25] Section 27(4) Unemployment Insurance Act 63 of 2001 

[26] Ernest and Young Advisory Services (Pty) Ltd in collaboration with Depart of Labour “ Maternity Leave Practical Experiences; Evaluating implementation and experiences of employees in accessing the benefit and knowledge of maternity leave rights. A report for Department of Labour”  (2018/2019) accessible at https://www.labour.gov.za/DocumentCenter/Research%20Documents/2018/Evaluating%20experiences%20of%20women%20in%20accessing%20maternity%20benefit%20and%20knowledge%20of%20maternity%20leave%20rights.pdf (last accessed 27 July 2022)[27] Ernest and Young Advisory Services (Pty) Ltd in collaboration with Depart of Labour “ Maternity Leave Practical Experiences; Evaluating implementation and experiences of employees in accessing the benefit and knowledge of maternity leave rights. A report for Department of Labour”  (2018/2019) accessible at https://www.labour.gov.za/DocumentCenter/Research%20Documents/2018/Evaluating%20experiences%20of%20women%20in%20accessing%20maternity%20benefit%20and%20knowledge%20of%20maternity%20leave%20rights.pdf (last accessed 27 July 2022)