On 5 May, SERI, Solidarity Center and Women’s Legal Centre co-hosted a webinar on worker’s rights, intersectionality and accessing justice through litigation, entitled, “Engaging Courts to Further Worker Rights: Mahlangu and Beyond”.
The webinar discussed the recent milestone judgment of the Constitutional Court of South Africa, Mahlangu v the Minister of Labour, in which the Court handed down an order declaring the constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act (COIDA) which excluded domestic workers employed in private households from the definition of "employee", precluding them from claiming from the Compensation Fund for work-related injuries, illnesses or death. The Court also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994.
The panel discussion included Kelebogile Khunou, SERI researcher; Pinky Mashiane, founder and president of United Domestic Workers (UDWOSA) of South Africa and Atlantic Fellow for Race Equity; Myrtle Witbooi, general secretary of the South African Domestic Service and Allied Workers Union (SADSAWU) and president of the International Domestic Workers Federation, Professor Cathy Albertyn, Research Chair in Equality, Law and Social Justice, School of Law at the University of the Witwatersrand; Natalia Brigagao, Brazilian human rights advocate and; Dr Manoj Dias-Abey, lecturer in Law at the University of Bristol.
The first three presenters were involved in the advocacy campaign for the Mahlangu matter since 2018. Khunou began the panel discussion by providing an overview of the litigation process in Mahlangu highlighting the challenges in implementing the order for domestic workers with retrospective claims. Mashiane, who assisted the Mahlangu family after the death of Maria Mahlangu at her workplace in March 2012, told the story of the origins of the case and the journey to the Constitutional Court. Witbooi then discussed the way forward and the need for civil society organisations to collaborate in realising access to compensation for occupational injuries for domestic workers in South Africa.
The next three presenters provided academic analyses of Mahlangu and workers’ rights issues in a comparative and global context. Professor Albertyn discussed the Mahlangu judgment, its limitations and effect on South Africa’s jurisprudence through a feminist litigation lens. The presentation by Brigagao compared Mahlangu to the Fireworks Factory case in Brazil, in a conversation about litigating with intersectionality. Lastly, Dr Dias-Abey ended the panel presentations by providing an analysis of how social movements in the UK engage with courts effectively.
While the discussion celebrated Mahlangu as a significant victory for vulnerable workers, it also emphasised the challenges ahead in implementing the judgment. Witbooi stated that Mahlangu will be considered a victory only when the one million domestic workers of South Africa are registered by employers and are able to access compensation for occupational injuries should the need arise.