Sick Leave In South Africa, The Law, The Numbers, And The Cost Of Getting It Wrong (Podcast)

In this CDH Conversations podcast, JJ van der Walt and Chantell De Gouveia in the Employment Law practice unpack the sick leave framework under the Basic Conditions of Employment Act, examine what the statistics show about how sick leave is used, consider the economic cost of absenteeism and presenteeism, and discuss the legal consequences of sick leave abuse, including a recent CCMA case involving a social media soccer pundit with 1.3 million followers who was caught on camera while booked off sick.

Transcript

JJ van der Walt: Welcome to the CDH Conversations podcast. My name is JJ van der Walt, counsel in the Employment Law department at CDH. Today's episode is about sick leave, the statutory entitlement, the statistics on how sick leave is actually used in this country, and the economic toll of absenteeism.

This is one of those topics where most people think that they know the rules, but when you dig into the detail, there are some real surprises.

We'll start with the legal framework, then look at the numbers, and finally consider what absenteeism, presenteeism, and the sick leave abuse mean in practice. Joining me today is Chantell De Gouveia, associate in our employment law department. Chantell, thank you for being here.

Chantell De Gouveia: Thank you, JJ. I'm looking forward to this one. You know, sick leave is something we deal with almost daily in practice, and it never ceases to surprise me how wide the gap is between what people assume and what the law actually says. I think some of the numbers we're going to go through today will genuinely shock people. They certainly gave me pause when I first put them together.

JJ van der Walt: Let's jump straight in. Chantell, walk us through the sick leave entitlement under the Basic Conditions of Employment Act. I think the three-year cycle is the part that catches most people off guard.

Chantell De Gouveia: It really does, and I think this is the part where people's eyes widen a little. So the starting point are sections 22 and 23 of the Basic Conditions of Employment Act.

So sick leave operates on a 36-month cycle. That is a three-year cycle, not an annual cycle. I cannot tell you how many times I've sat across from a manager who genuinely believes employees get 36 days a year. They do not. The entitlement is the number of days the employee would normally work during six weeks, a 30-day period for an employee working a five-day week, or 36 days for an employee working a six-day week over a three-year cycle. So the common misconception that employees receive 36 days every year is not correct.

JJ van der Walt: Thank you. What about the first six months? I know there are specific rules for new employees.

Chantell De Gouveia: Absolutely. So for the first six months of employment, an employee's entitlement is limited to one day of paid sick leave for every 26 days worked. Once that initial period has passed, the rest of the entitlement for the 36-day cycle becomes available, and in the first cycle, the employer may deduct the days already taken in the first six months. And look, the first six months rule trips people up constantly. The new employees think that they're covered from day one, and employers sometimes forget to apply it correctly.

The employer's not obliged to pay for sick leave where the employee has been absent for more than two consecutive days, or even on more than two occasions in an eight-week period, and where the employee doesn't produce a medical certificate where the employer asks for one. Many employer policies go further and call for a certificate for every absence.

An employer may ask for that, but the statutory minimum gives way to a contractual term only where the term is more favorable to the employee or where the act itself permits the variation. Withholding pay for a single uncertified day outside section 23 of the Basic Conditions of Employment Act triggers and therefore is open to challenge.

There are two further points. Sick leave is entirely separate from annual leave. An employer may not substitute one for the other. An unused sick leave does not pay out on termination. It simply lapses at the end of a cycle.

JJ van der Walt: That is the legal framework and already more nuanced than most people expect.
Now, Chantell, I want to shift gears a bit because this is where it gets really interesting for me personally and frankly, a bit alarming. Where does South Africa sit globally when it comes to sick leave?

Chantell De Gouveia: The international comparison mainly comes from a Morpay report published in November twenty twenty-five.

So where we also look at the World Health Organization figures supplemented by local reports, Moorepay found that Polish workers take the most sick days of all thirty-seven countries for which the World Health Organization holds data, an average of thirty-four a year. At the other end of the range, the United Kingdom averages four point four days a year, Turkey three point two, Singapore two point seven, and Malta one point eight. Moorepay also compared statutory sick pay across a hundred and thirteen countries by calculating the first value of the first week of sick leave and adjusting it for local purchasing power. On that model, a week of sick pay in South Africa is worth one thousand eight hundred and sixty-three rand and twenty-nine cents or two hundred and fifty-one dollars.

South African statutory pay is ordinarily the employee's wage paid by the employer under the Basic Conditions of Employment Act and is also separate from UIF illness benefit, which applies when an employee is off sick without pay. Moorepay 's figure places South Africa second in Africa behind Egypt and ahead of Morocco, Kenya, and Algeria.

The United Kingdom comes in at sixty-nine point nine two dollars, ninety-fifth in the world. Tunisia scores zero for the first week, as do the United States and South Korea.

JJ van der Walt: Those global numbers are striking, and I think what jumps out for me is the range from Malta under two days to Poland at thirty-four. It really shows you how different countries approach this. But what does the domestic picture look like? How many employees in this country are actually covered?

Chantell De Gouveia: So JJ's Stats SA's quarterly labor force survey answers that. For the first quarter of 2025, it estimated 14.269 million employees, of whom 10.483 million or 73.5% were entitled to paid sick leave.

About 3.569 million, roughly a quarter, were not. The split by sex is also similar. An estimated 6.5 million women employees and 4.8 million were entitled, and of 7.7 million men, 5.6 million were. On usage, HR industry estimates put an average South African employee at between four and six days a year, with higher figures in sectors such as healthcare, retail, and manufacturing.

You'll often see a claim that 15% of the workforce is absent on any given day. That figure goes back to industry estimates from around 2014. It covers all absence, and it cannot be reconciled with four to six sick days a year, which puts about 2% of the workforce off sick on any given day.

JJ van der Walt: It then seems that the 15% figure overstates the position several times over.
What does absent cost in rands and cents?

Chantell De Gouveia: The estimates vary and at most are dated, but the Occupational Care South Africa put an annual cost of absenteeism at between 12 billion and 16 billion rand in reporting from about 2014. So the Human Capital Review also puts it at about 19 billion, and more recent industry commentary puts the cost of sickness-related absenteeism at more than 20 billion rand a year.

Industry commentators also estimate that once replacement labor, overtime, lost productivity, and administration is covered, unmanaged absenteeism could add up to about 17% of the payroll-related costs. So for instance, in the public sector, KwaZulu-Natal Department of Health reported to have lost more than 300 million rand due to poorly managed sick leave over a single two-year reporting cycle.

JJ van der Walt: Now 300 million in one provincial department, and those figures relate to absenteeism in the traditional or other strict sense, people not being at the work. However, there's another phenomenon that I wanted to unpack and which I believe our listeners may or may not have heard of, and this is what has been termed presenteeism.

It is the opposite of absenteeism in a sense. That is, the employee shows up, however, they may be physically at their desk, but they're not well, whether that is with physical illness, stress, depression, as we all know, burnout, and they are not functioning anywhere near their full capacity. In a sense, they're present in the body, but absent in productivity. And Chantell, I suspect this is one that keeps HR directors up at night because it is more difficult to see an empty chair, or rather, it's more difficult to see a person who's there but not doing the work.

Chantell De Gouveia: It absolutely should, and you've put your finger on why. It is invisible. So an empty chair you can count.

An employee who is at work but operating at half capacity because they're unwell or struggling mentally does not show up on any attendance register. The estimate most often cited South African details report presenteeism at 235 billion a year. Presenteeism estimates ran far higher than the absenteeism figures because they model the output lost by everyone who works while unwell, and that group is much larger than those who prefer to stay at home or choose to stay at home.

The 235 billion estimate is several years old, but a more recent estimate from October's Health State of Mind report puts the total cost of unaddressed mental health conditions at more than 250 billion rand a year. The underlying health burden is heavy. Non-communicable diseases such as heart disease, cancer, diabetes, and chronic respiratory diseases account for more of half of the deaths in South Africa.

One national study found that employees often have a health age of up to four years older than their actual age, which is quite scary. Access is also a constraint as well. Only about 16% of South Africans are covered by a medical scheme, and close to 85% of the population depends on public health services.

So what that means is that household finances are under pressure too. Pay Inc's net salary index, which tracks about 2.1 million salary earners, put an average of nominal net salary at 21,642 rand in July 2026, which is 2.2% higher than a year earlier. But after inflation, net salaries were 2.2% lower than the year earlier, and nominal growth over the first seven months of 2026 was only 1.6%.

JJ van der Walt: That is a rather sobering picture. And I believe anyone listening to those numbers will understand that this goes well beyond human resources. Now, it brings us to something that I believe every listener would have encountered in one form or another, and that is sick leave abuse. Rather than run through a list of cases, Chantell, tell our listeners about the principle that runs through case law and perhaps the reason CCMA matter that was-- that went viral, because I think that story really brings it to life.

Chantell De Gouveia: It really does, and it's one of those cases you could actually not make up if you tried. So, JJ, a recent CCMA case involved a social media soccer pundit with one point three million followers who was booked off for three days, and he was caught on camera singing, dancing, and basically analysing soccer to screen watch sessions where he was supposedly booked off sick.

The footage was shared widely, and his employer understandably wasn't impressed. The CCMA found the dismissal to be substantively fair, and the case is useful because it brings a broader principle to life. Sick leave is for genuine incapacity and recovery, and conduct that is inconsistent with the health relied on undermines the claim.

The principle that runs through all cases is straightforward. If you are too ill to work, you should be too ill to attend rugby matches, protest marches, weddings, or in this case, soccer screenings on camera. Paid sick leave is a benefit funded by the employer on the understanding that the employee is genuinely incapacitated.
When an employee abuses that trust, the courts treat it as dishonesty. So, I mean, there is a very well-known case where the Labor Appeal Court also found a dismissal of an employee who travelled also to a rugby match to be fair, or in a similar instance where an employee was seen at a protest march despite having taken sick leave.

This was, too, seen to be a fair dismissal, despite the employee having a long service and a clean disciplinary record.

JJ van der Walt: Now, the cases you referred to and the laws provides a vivid illustration of the principle, and what about sick leave or sick note itself? Because I think there's a very common assumption out there, and I can hear it from the clients all the time, that if you have a medical certificate, you're untouchable.

Chantell De Gouveia: That's a misconception, and it is one I come across almost weekly. A medical certificate is not a blanket shield. It is an opinion, one piece of evidence. Where the surrounding circumstances suggest that the employee was not genuinely incapacitated, the employer is entitled to look beyond the certificate.
The employer needs evidence about the employee's own conduct, such as being at a rugby match or a march or something similar to that. In a 2024 judgment, again, the Labor Appeal Court held that an employer cannot disregard a certificate from a registered doctor simply because it distrusts the doctor. A complaint about a doctor belongs with the Health Professions Council.

And if the evidence doesn't stack up, the certificate alone will not save the employee.

JJ van der Walt: That's a very important point, and I believe it will be news to quite a few of our listeners. Before we close, Chantell, I do want to end on a constructive note because I think we owe it to our listeners not to leave them feeling entirely despondent. The picture is not all bleak, is it? There's evidence that getting this right actually pays dividends.

Chantell De Gouveia: It absolutely does, and this is the part I wish more employers would hear. A randomized trial in the United States found that better management of depression in primary care raises the productivity of employed patients by about 6% over two years, with absenteeism trending down by about 23%.

That supports investment in the employee wellness programs, employee assistance programs, and proactive health management. The cost of doing nothing, as we've seen today, far exceed the costs of doing something.

JJ van der Walt: Thank you, Chantell. We have certainly covered an enormous amount of ground today, and my sincere hope is that our listeners feel better armed for it.

Two things to take away. First, sick leave runs on a three-year cycle, and most people get the rule wrong. Second, the cost of absenteeism runs into billions of rands a year, and courts will back employers who act fairly against abuse. Know the framework, watch the numbers, and act as well as mitigate risk.

Chantell De Gouveia: It's a pleasure, JJ, and my message to employers is direct. Tighten your sick leave verification procedures. Invest in employee wellness before absenteeism invests in your bottom line. And remember, a sick note is not the end of the inquiry. Thanks so much.