On Thursday, 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act (COIDA) as unconstitutional.
SERI represents the surviving daughter of a domestic worker, Maria Mahlangu, in a challenge against the constitutionality of section 1 of the workmen’s compensation act which excludes domestic workers working in the home from its definition of an “employee”. Maria died at her employer’s home during the course of her employment. Under the Compensation for Occupational Injuries and Diseases Act (COIDA), her daughter was precluded from claiming from the Compensation Fund which compensates employees, or their survivors, for work-related injuries, illnesses or death.
It is alleged that Maria, who was partially blind, was washing the top windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool, which was unfenced and uncovered at the time. Maria could not swim and drowned. Her body was discovered hours later by her employer, who had been present in the home at the time of the incident. Her daughter later approached the Department of Labour to enquire about getting compensation for the death of her mother. She was informed by the Department of Labour that while compensation and unemployment insurance benefits are ordinarily covered by COIDA, she did not qualify for either.
SERI, on behalf of Ms Mahlangu, brought an application to compel the Department of Labour to amend section 1 of COIDA to include domestic workers, and to put effective enforcement mechanisms in place to ensure that employers comply with COIDA and other relevant labour legislation.
The Pretoria High Court declared section 1 of COIDA unconstitutional for intentionally excluding domestic workers working in the home from its definition of “employees”. SERI will further be arguing that the declaration of invalidity must be applied retrospectively to provide relief to our client who brought the application, or other domestic workers who were injured or died at work prior to the granting of the order.