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01 Dec 2020
BY Pareen Rogers AND Natasha Coleman

South African Constitutional Court rules on compensation for domestic workers

A landmark judgment was handed down by the South African Constitutional Court recently, ruling that certain sections of the Compensation for Occupational Injuries Act, 1993 (“COIDA”) are unconstitutional for excluding domestic workers from the definition of an “employee” and in turn denying them compensation.

The plight of domestic workers as one of the most vulnerable category of employees in society has largely gone unnoticed and remains unaddressed in South Africa. The occupation of being a domestic worker is often associated with unskilled women earning a low income with little, if any, social security and statutory protections.

Mahlangu and Another v Minister of Labour and Others

In 2012, Ms Mahlangu, a domestic worker employed by the same family for 22 years, tragically drowned in her employer’s swimming pool. Following Ms Mahlangu’s death, her daughter, who was financially dependent on her mother at the time, approached the Department of Labour for compensation for her mother’s death in terms of COIDA.

In terms of COIDA, an employee or their dependants will be entitled to compensation in the form of periodical payments if, during the course of their employment, an accident occurs or a disease is contracted resulted in the their disablement or death. COIDA operates on a “no-fault” basis regardless of whether the accident was caused by their employer or any other employee. However, compensation for injuries is based on the degree of disablement and employees may be entitled to increased compensation if their disablement is caused by the carelessness of their employer or a fellow employee.

Unfortunately, Ms Mahlangu’s daughter was denied compensation ordinarily available as section 1(xix)(v) of COIDA expressly excluded domestic workers from the definition of an “employee”. The exclusion of domestic workers under COIDA means that the only remedy currently available to domestic workers is a common law delictual claim for damages, which is fault-based.

With the assistance of the South African Domestic Service and Allied Workers Union, Ms Mahlangu’s daughter launched an application in the High Court to have section 1(xix)(v) of COIDA declared unconstitutional to the extent that it excluded domestic workers employed in private households from the definition of “employee”.

The application was successful and, on 29 May 2019, the High Court issued a declaration of constitutional invalidity. On 17 October 2019, the High Court handed down a second order stating that the declaration of invalidity must apply retrospectively and with immediate effect to provide relief to domestic workers who were injured or who had died at work prior to the granting of the order.

The Constitutional Court judgment

On 19 November 2020, the Constitutional Court upheld the High Court’s declaration of constitutional invalidity and ordered that the declaration was to have retrospective effect from 27 April 1994. Various arguments were raised as to the practicality of this order, considering that employers of domestic workers have yet to make contributions to the compensation fund, the number of potential claims and whether it would have serious budgetary implications for the compensation fund. However, the Constitutional Court found that the respondents had failed to tender any evidence that suggested that it would be unable to meet the demand, should there be no limiting of retrospectivity and thus accepted the default position that a declaration of constitutional invalidity would apply retrospectively.

In reaching this decision, the Constitutional Court, as per the majority judgment of Victor AJ, found that to regard COIDA only as a statutory mechanism to address common law claims between employers and employees is unduly restrictive. Accordingly, to divorce COIDA from other forms of social security simply because benefits payable in terms thereof are regarded as “compensation” misses the wide net of social security. COIDA must be interpreted both within the constitutional framework of the Bill of Rights (which provides that everyone has the right to social security) and through the prism of the foundational constitutional values of human dignity, equality and freedom.

The court stated that no legitimate objective is advanced by excluding domestic workers from COIDA and that, in considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds. It went on to state that “to allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu”.

Intersectionality of discrimination

Notably, the Constitutional Court endorsed the conceptual framework of intersectionality coined by Kimberlé Crenshaw, a leading legal scholar on this issue. Simply put, its theory is that intersecting and overlapping forms of oppression result in certain groups in society being subject to distinct and multiple forms of discrimination, vulnerability and subordination. Relying on this conceptual theory argument of intersectionality, Ms Mahlangu’s daughter’s contention was that section 1 of COIDA discriminated against domestic workers both directly (on grounds of race, sex and/or gender) and indirectly on numerous listed grounds given that multiple grounds of discrimination simultaneously converged, thus aggravating the discrimination. The Constitutional Court agreed with this contention.

As recorded in the concurring judgment of Honourable Mhlantla J, while domestic workers have achieved unionisation, are entitled to a minimum wage, and are covered by the Basic Conditions of Employment Act, 1997, in their lived-experiences at work, they are yet to see any fundamental and tangible change. It should not be forgotten that, even where legislation is available to domestic workers, they do not enjoy the same protections in practice as other employees in South Africa. In entering the private homes of individuals, domestic workers are often answerable to every member of the household as opposed to an individual manager. There is no human resources department to lodge grievances to, or to independently oversee disciplinary action. There are no employment equity officers to confide in and there are no performance management plans or prospects of further training and promotion. They are therefore an extremely vulnerable category of employee that should be afforded significant protection by our law.

The Mahlangu decision takes a big step in the right direction to address the inherent inequality faced by domestic workers at multiple levels. The judgment highlights the precarious and vulnerable position they find themselves in, including being unfairly denied social and statutory protection that other employees have. Whether the Mahlangu decision paves the way for other challenges to be taken up regarding the rights of domestic workers is debatable, but what it has achieved is to place the plight of domestic workers in the public eye.

Pareen Rogers

Employment | Executive

progers@ENSafrica.com

+27 82 788 0307

Natasha Coleman

Employment | Associate

ncoleman@ENSafrica.com

+27 66 487 8878