On 22 April 2021, SERI made an oral submission on the Compensation for Occupational Injuries and Diseases Amendment Bill to the Portfolio Committee on Employment and Labour. SERI was represented by researcher Kelebogile Khunou and senior attorney Thulani Nkosi. The public hearings were held virtually.
The submission focuses on the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) in light of the Constitutional Court judgment in the Mahlangu v Minister of Labour matter.
In this matter, SERI represented Sylvia Mahlangu, the daughter of domestic worker Maria Mahlangu who accidentally drowned at her employer’s home in 2012, and the South African Domestic Service and Allied Workers Union (SADSAWU).
On 19 November 2020, the Constitutional Court handed down an order declaring the constitutional invalidity of section 1(xix)(v) of 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, which means that those domestic workers and dependents who have experienced work-related injuries, diseases, or death as far back as 27 April 1994 are also able to submit their claims.
In the oral submission, SERI researcher, Kelebogile Khunou described SERI’s experience in submitting a retrospective claim on behalf of Sylvia Mahlangu, which started in December 2020, for compensation for the death of Maria Mahlangu, Sylvia's mother, which occurred in March 2012. The process has revealed problems in sections of the Act, namely sections 38, 39, 41, and 44. These sections make processing Mahlangu’s claim or any other retrospective claim impossible. SERI’s interest in the COID Act Amendment Bill 2020 is to ensure that domestic workers, as a class of employees, are sufficiently protected and that the Constitutional Court judgment in Mahlangu v Minister of Labour is fully complied with.
Khunou also highlighted the interrelated challenges affecting the realisation of domestic workers rights namely 1) widespread non-compliance from employers; and 2) the challenge of enforcement, which need to be addressed to ensure domestic workers enjoy their labour rights.
Overall, the submission asserts that a mechanism must be put in place to enable the Compensation Fund to process retrospective claims from domestic workers. The submission recommends that the Department of Employment and Labour should:
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