On 10 March 2020, the Constitutional Court will hear the Mahlangu v Minister of Labour matter. Applicants Sylvia Mahlangu, the surviving daughter of a domestic worker who drowned in her employers’ home in 2012, and the South African Domestic Service and Allied Workers Union (SADSAWU) successfully challenged the constitutionality of Section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") at the North Gauteng High Court in 2019. The application challenged the constitutionality of COIDA to the extent that it excludes domestic workers employed in private households from the definition of "employee", therefore excluding them from benefits afforded to other workers and their dependents. This exclusion has meant that, unlike other workers, domestic workers and their dependents have been left with no safety net against loss of income due to workplace injury or death. To date, Ms. Mahlangu has not received compensation for her mother’s death.
In May 2019 the North Gauteng High Court declared the exclusion of domestic workers from COIDA constitutionally invalid. Later in October, it further ruled that the declaration of invalidity must be applied retrospectively to provide relief to domestic workers who were injured or died at work prior to the granting of the order, as in the case of Ms. Mahlangu. SERI, on behalf of Ms. Mahlangu and SADSAWU, supported by United Domestic Workers of South Africa and other allies, is now approaching the Constitutional Court to confirm these two orders.
If these two orders are confirmed by the Constitutional Court, it will have significant implications for employers of domestic workers. Under terms prescribed by the Department of Employment and Labour, employers would have to contribute a monthly amount to the Compensation Fund for their domestic employees from a specified date. In the event of injuries, diseases or death arising out of and in the course of employment, statutory benefits will be paid from the Fund to employees or dependents of deceased employees. Employers who have registered their employees will be protected against civil claims; employees covered by COIDA are prevented from suing their employers for damages in terms of common law.
Domestic workers and dependants who experienced work-related injuries, diseases or death prior to the confirmation of the two orders, will be able to submit claims to the Compensation Fund even though their employers were precluded from contributing to the Fund.
It is our hope that this important issue reaching the highest court in South Africa, signals a turning point for enforcement of domestic worker laws and policies. To further the gains made this far we encourage the Department of Employment and Labour to:
>> Find out more about the case here.
>> Download the full statement here.