Annual Leave in South Africa: What the BCEA Says

Published by the Lawly team · Published · Sources last checked

General information, not legal advice. Written by the Lawly team from the official sources listed at the end of this guide.

Under section 20(2) of the Basic Conditions of Employment Act (BCEA), you must give each employee at least 21 consecutive days' annual leave on full remuneration in every annual leave cycle. If you and the employee agree, leave can instead build up at one day for every 17 days worked, or one hour for every 17 hours worked.

How many leave days does the BCEA give?

Leave is covered in Chapter Three of the BCEA. Section 20(1) defines the "annual leave cycle" as "the period of 12 months' employment with the same employer", counted from the day the employee starts work and then from the end of each previous cycle.

Section 20(2) gives three options for the minimum. An employer must grant at least:

  1. "21 consecutive days' annual leave on full remuneration in respect of each annual leave cycle"; or
  2. by agreement, "one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid"; or
  3. by agreement, "one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid".

The second and third options apply only "by agreement" between employer and employee. Section 20(3) adds that the employee is entitled to take the leave built up in a cycle on consecutive days.

The Act gives the default as 21 consecutive days and doesn't convert it into working days. The Department of Employment and Labour's Basic Guide to Annual Leave uses the same wording: "a minimum of 21 consecutive days of annual leave each year". Neither source says how that works out in working days for a particular work pattern, so this guide doesn't convert it either.

These are minimums, and an employment contract can give more. Under section 19(2), unless an agreement says otherwise, the leave chapter doesn't apply to leave granted on top of the employee's entitlement under the Act.

Who the annual leave rules don't cover

Section 19(1) of the BCEA says the leave chapter "does not apply to an employee who works less than 24 hours a month for an employer."

That's the only group section 19 excludes from annual leave. Section 6 has separate exclusions for senior managerial employees and travelling sales staff who set their own hours, but those apply to Chapter Two of the Act (working time), not to the leave chapter.

Sick leave, maternity leave, parental leave and family responsibility leave are in the same chapter but have their own rules, and this guide doesn't cover them.

When is annual leave taken?

Section 20(4) sets the deadline: an employer "must grant annual leave not later than six months after the end of the annual leave cycle."

As for who picks the dates, section 20(10) says annual leave is taken in line with an agreement between employer and employee or, if there isn't one, "at a time determined by the employer in accordance with this section."

Section 20 also sets these rules:

  • Annual leave can't overlap with other leave or notice. Section 20(5) says an employer may not require or permit an employee to take annual leave during any other leave the employee is entitled to under the leave chapter, or during "any period of notice of termination of employment." The one exception is in section 20(6): if the employee asks in writing, the employer must allow annual leave during a period of unpaid leave.
  • If a public holiday falls on a day of annual leave on which the employee would normally have worked, section 20(8) says the employer must grant an extra day of paid leave.
  • Under section 20(9), an employer may not require or permit an employee to work for it during annual leave.
  • Section 20(7) lets an employer reduce the annual leave entitlement by the number of days of occasional paid leave it granted at the employee's request in that cycle.

The notice rules say the same thing from the other side. Section 37(5) says notice of termination given by an employer must not be given during, or run at the same time as, leave the employee is entitled to under Chapter Three, except sick leave.

How is annual leave paid?

Section 21(1) of the BCEA says leave pay must be "at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave". It's calculated at the employee's rate of remuneration immediately before the leave starts, and in line with section 35.

Which payments count as remuneration for leave pay isn't listed in the Act itself. Since the Basic Conditions of Employment Amendment Act 11 of 2002, section 35(5) has let the Minister of Labour decide, by notice in the Government Gazette, whether a particular category of payment, "whether in money or in kind", forms part of remuneration for calculations under the Act. The Minister did this in Government Notice R. 691 of 23 May 2003 (Government Gazette 24889), the determination in force when we last checked. Its schedule includes items such as a housing or accommodation allowance, a car allowance (unless the car is provided so the employee can do the work) and employer contributions to medical aid, pension or provident funds. It excludes items such as tools or transport provided so the employee can work, gratuities and tips, and discretionary profit-sharing. If your employees receive allowances or payment in kind, read the schedule, or ask the Department of Employment and Labour, before you calculate leave pay.

On timing, section 21(2) says leave pay is paid "before the beginning of the period of leave" or, by agreement, on the employee's usual pay day.

Can annual leave be paid out instead of taken?

Only when employment ends. Section 20(11) says an employer may not pay an employee instead of granting paid leave except "on termination of employment" and in line with section 40(b) and (c). The Department's guide says the same: "Employers can only pay workers instead of granting annual leave when employment is terminated."

Section 40 sets out two leave payments on termination. Under section 40(b), the employer pays for any annual leave due under section 20(2) that the employee hasn't taken, at the rate worked out under section 21(1). Section 40(c) adds pro-rata leave for the current, incomplete cycle if the employee has been employed for longer than four months: one day's remuneration for every 17 days on which the employee worked or was entitled to be paid, or remuneration on any other basis "at least as favourable to the employee".

Annual leave paperwork checklist

Each point comes from a section cited above:

  • Note each employee's start date. Under section 20(1), it sets the start of every annual leave cycle.
  • Record which basis of leave applies: 21 consecutive days, or one of the "by agreement" alternatives in section 20(2), with the agreement in writing.
  • Include leave in the written particulars. The original text of section 29(1)(l) of the BCEA lists "the leave to which the employee is entitled" among the particulars an employer gives in writing.
  • Track leave taken against each cycle, keeping the six-month deadline in section 20(4) in mind.
  • Pay leave pay before the leave starts, or on the usual pay day if that's what you agreed (section 21(2)).
  • Keep payroll records. Section 31 requires a record of time worked and remuneration paid, kept for three years from the date of the last entry.
  • When employment ends, work out untaken leave and, for employees with more than four months' service, pro-rata leave under section 40.

What to watch for

  • Paying out leave while employment continues. Section 20(11) only allows payment instead of leave on termination of employment.
  • Scheduling annual leave during a notice period, which section 20(5)(b) doesn't allow.
  • Forgetting pro-rata leave when someone leaves. For employees employed longer than four months, section 40(c) covers the incomplete cycle, on top of untaken leave from earlier cycles under section 40(b).
  • Leaving leave untaken for too long. Section 20(4) gives a six-month limit after the end of each cycle for granting it.

Frequently asked questions

How many leave days do you get in South Africa?

Section 20(2) of the BCEA sets the minimum at 21 consecutive days' annual leave on full remuneration for each 12-month leave cycle. By agreement, the employer and employee can use one day of leave for every 17 days worked, or one hour for every 17 hours worked, instead. A contract can give more than these minimums.

Can my employer decide when I take annual leave?

Section 20(10) of the BCEA says annual leave is taken in line with an agreement between employer and employee. If there's no agreement, the employer decides when, in line with section 20. Section 20(4) says the employer must grant the leave no later than six months after the end of the leave cycle.

Does annual leave expire in South Africa?

The BCEA doesn't use the word "expire". Section 20(4) says an employer must grant annual leave not later than six months after the end of the annual leave cycle, but the Act doesn't say what happens to leave that still hasn't been taken by then. If you have a dispute about untaken leave, the CCMA or an attorney can advise on your facts.

Is annual leave paid out when employment ends?

Yes. Under section 40 of the BCEA, when employment ends the employer pays for annual leave due under section 20(2) that the employee hasn't taken. If the employee has been employed for longer than four months, section 40(c) adds pay for the incomplete leave cycle: one day's remuneration for every 17 days worked, or a more favourable basis.

Do part-time employees get annual leave?

Section 19(1) of the BCEA excludes from the leave chapter only employees who work less than 24 hours a month for an employer. Section 20(2) also allows leave to build up by agreement at one day per 17 days worked, or one hour per 17 hours worked, which the Department's guide lists alongside the 21-consecutive-day minimum.

Putting leave terms in writing

Whatever leave basis you agree with an employee belongs in their written particulars from day one. Lawly's Employment Contract is drafted using South African labour law frameworks and includes a section for leave terms. Check the leave wording against sections 20 and 21 of the BCEA and your own arrangements before signing. For significant or unusual arrangements, an attorney review is sensible.

Related guides: what should be in an employment contract and notice periods in South Africa.

Sources

  1. Basic Conditions of Employment Act 75 of 1997 (sections 6, 19, 20, 21, 29, 31, 35, 37 and 40), Department of Employment and Labour
  2. Basic Guide to Annual Leave, Department of Employment and Labour
  3. Basic Conditions of Employment Act 75 of 1997 (Act page and amendments), South African Government
  4. Basic Conditions of Employment Amendment Act 11 of 2002 (section 7, which substituted section 35(5)), Department of Employment and Labour
  5. Government Notice R. 691: Calculation of employee's remuneration in terms of section 35(5) (Government Gazette 24889, 23 May 2003), Department of Labour

Disclaimer: This guide is general information about business documentation in South Africa, not legal advice. Lawly is an AI business document generation service, not a law firm. Review any document before you use it, with the depth of review matching what it carries for your business. For advice on your specific situation, speak to a qualified attorney.