A street vendor selling fat cakes in Gauteng. Pregnant self-employed women in South Africa’s informal economy lack access to maternity benefits, leaving them vulnerable during and after childbirth. (Photo Michelle Banda) 
If you are pregnant and selling food in townships to earn a living, you may be a self-employed woman in South Africa’s informal economy. If so, you are not entitled to maternity benefits under law.
And if you are pregnant, with a household income so low that you pass a means test for social grants, you are not entitled to state support until your child is born, even if you are struggling to buy food to meet your body’s heightened demands of childbearing.
South Africa has yet to achieve universal coverage in maternity protection through its combination of social insurance and social assistance, which take the form of contributions to the Unemployment Insurance Fund (UIF) and maternity leave, governed by the Department of Employment and Labour, and social grants, administered by the Department of Social Development.
The South African Law Reform Commission investigated this long-standing gap in maternity protections in “Project 143”, released in December 2022. To date, the government has not officially responded to these findings.
The problem is that under South Africa’s labour law framework — the Unemployment Insurance Act and Basic Conditions of Employment Act — only workers recognised as “employees” qualify for unemployment insurance, paid maternity and parental leave.
All other categories of workers — independent contractors, own-account or self-employed workers, and workers in informal work relationships (those not registered as employees by their employers) — are not allowed to contribute to the UIF.
This leaves them with no pool of funds to take paid maternity leave at 66% of their earning wage. And, if such a worker has a partner who has given birth or adopted, they are not entitled to paid parental leave either.
Factors affecting women’s work
Globally, women’s time spent on child and family care in the home is 2.5 times the rate of men. Such care work is typically not recognised as work and is unpaid, even though society and our economy cannot function without it being carried out.
The burden of unpaid care work negatively affects women’s economic participation as a result of the demands made on their time. It equally affects their career choices, like whether they are able to take on high-profile, demanding roles and juggle their domestic responsibilities.
It also affects their sexual and reproductive health choices in terms of taking time out to have children, the spacing of having children, or whether they can manage having children at all. Globally, as a result of these demands, impact and choices, women predominate in informal, insecure, low-status and part-time positions.
It’s estimated that 1.9 million people are self-employed in South Africa’s informal economy, of which more than 40% are women. Since they are excluded from maternity and parental benefits, they have to either absorb the cost of taking time off or return to work almost immediately after giving birth.
Taking unpaid leave can have a devastating effect on their income, while their early return to informal trading sites has negative implications for their health, breastfeeding and bonding with their newborn. These conditions exacerbate and perpetuate the socioeconomic problems of poverty and inequality between women and men in this country.
In Project 143, the South African Law Reform Commission clearly named such exclusion for what it is — discrimination. To address this, the commission mapped out a slate of proposed law reform measures for the Department of Employment and Labour. It drew comparative best practices from countries such as Colombia, Namibia, the Philippines and Tanzania to permit self-employed workers to contribute to the UIF.
The proposed measures would enable such workers to draw down paid maternity leave, and accord paid parental leave to their partners on the same basis as granted to currently recognised “employees”.
Maternal Support Grant
The South African Law Reform Commission also advised the state to complement the proposed law reform with a Maternal Support Grant. This would act as social protection for all eligible poor and vulnerable pregnant women, including self-employed workers in the informal economy, who fall below the means-tested levels of income.
It would take the form of a nine-month grant to be registered in the expectant mother’s name and converted into a Child Support Grant upon the birth of the child. It would enable mothers to buy food when their need for nutrition is greater, enabling their unborn babies to grow and develop optimally.
Research from 27 low- and middle-income countries shows that income and nutritional support for pregnant women can prevent low birth weight deliveries and infant deaths.
In South Africa, 13% of babies are born with a low birth weight (under 2.5kg), increasing the odds of chronic malnutrition in the form of stunting at six to 24 months. Today, more than a quarter of children under the age of five in South Africa are stunted, a condition linked to poor brain development.
The Maternal Support Grant, supported by a coalition of researchers and civil society organisations, is not a new idea. It has been on the cards for the Department of Social Development for more than a decade, before the South African Law Reform Commission’s Project 143 report was published.
Yet, a draft policy on the Maternal Support Grant remains in a state of limbo.
The state’s legal obligations
It’s unclear whether government will take up the full slate of proposals from UIF provisions to social grants. What is clear is its obligations to the Constitution and under international law to prohibit discrimination against women.
These range from the International Labour Organisation’s (ILO) Maternity Protection Convention 183, which recognises the need for the extension of social protection to all workers and calls for the gradual extension of maternity protection to women, particularly those in atypical forms of work.
Conventions ratified by the South African government, such as the International Covenant on Economic, Social and Cultural Rights, require the state to enact reasonable legislative and other measures to the maximum of its available resources to ensure the attainment of the right to social security.
The lack of social benefits for self-employed workers also goes against the UN Convention on the Elimination of All Forms of Discrimination.
In 2024, the African Commission on Human and Peoples’ Rights resolved to pass guidelines regulating workers in the informal economy by 2026, a decision that recognises that women in Africa shoulder the burden of care, while simultaneously making up the majority of the continent’s poor and dispossessed.
South Africa’s Constitution echoes these obligations. Our courts have been vigilant when tasked with ruling on the constitutionality of laws that have excluded and disadvantaged vulnerable people in accessing socioeconomic rights, and have more than once found the state wanting.
This is evident in the Mahlangu judgment, which challenged the state’s exclusion of domestic workers from occupational injury and death benefits, and in the Khosa judgment on the exclusion of foreign nationals from social security measures.
Should the state continue dragging its heels, strategic litigation might be a viable course of action for women entirely outside of the system of maternity protection, who have grown weary of waiting for the government to realise women’s rights. DM
Dr Janine Hicks is a senior lecturer at the University of KwaZulu-Natal School of Law, and project leader on the South African Law Reform Commission’s Advisory Committee for Project 143: Maternity and Paternity Benefits for Self-Employed Workers.
Dr Ziona Tanzer is a senior lawyer at the Solidarity Centre and a member of the drafting committee for developing Guidelines on the Protection of the Rights of Workers in the Informal Economy in Africa.
Rahima Essop is communications director at the DG Murray Trust, a public innovator calling for the introduction of a nine-month Maternal Support Grant, starting in the second trimester until three months postpartum.