2020 has truly been a year which will be cast in the books of history and with the many challenges we have had to overcome this year, the Constitutional Court could not have chosen a better time to give South African Domestic Workers some early Christmas cheer. 

The decision of the Constitutional Court in Mahlangu v Minister of Labour and Others handed down last week, has confirmed the declaration of constitutional invalidity of Section 1 (xix)(v)of the Compensation for Occupational Injuries and Diseases Act (COIDA) in so far as it excludes domestic workers from the definition of an “employee” who are entitled to claim under the COIDA if they suffer injuries or diseases in the course of their employment.

Ms Mahlangu had been employed as a domestic worker in a private home. On one unfortunate day, Ms Mahlangu drowned in the swimming pool of her employer whilst executing her duties. Ms Mahlangu’s daughter, who had been financially dependent on her mother at the time of her death, approached the Department of Employment and Labour to establish the possibility of being compensated for her mother’s death. She was informed that she could neither receive any compensation nor any unemployment insurance benefits from COIDA as her mother was not covered by COIDA. She launched an application in the High Court of South Africa, Gauteng Division, to have section 1(xix)(v) of COIDA declared unconstitutional to the extent that it excludes domestic workers employed in private households from the definition of “employee”. The High Court declared the impugned section invalid to the extent that it excluded domestic workers from claiming under COIDA. 

The Constitutional Court was therefore confronted with an application to confirm the declaration of constitutional invalidity. The Court noted that COIDA does not offer protection for our domestic workers even with it being 26 years into our democracy.  The Court further noted that the domestic workers who are mostly black women experience discrimination on a number of intersecting grounds – which intensifies the burden on this disadvantaged group. 

The main aspiration of our Constitution is to achieve substantive equality and rectify the imbalances of the past.  The right to equality is the right that Sections 1 (xix)(v) of COIDA has violated, a which violation serves no legitimate purpose. As a result thereof, the Court confirmed the constitutional invalidity. 

The Court further held that such an order is to have immediate and retrospective effect from 27 April 1994. This ground-breaking judgment essentially entails that domestic workers can now claim for injuries sustained or diseases contracted during the course of their employment and may do so even for occupational injuries that were sustained as far back as 27 April 1994.

The Court hopes that this judgment will contribute towards repairing the pain and indignity suffered by domestic workers, and have a transformative effect in other areas of their lives.