On 24 November 2021, the Socio-Economic Rights Institute of South Africa (SERI) and the Nelson Mandela Foundation co-hosted a dialogue entitled, “One Year after Mahlangu: Taking Stock of Domestic Work in South Africa”. The event was held at the Nelson Mandela Foundation in Johannesburg, where approximately 30 people attended the event physically. An additional 72 000 people live-streamed the event. The aim of the event was to create a dialogue between government, civil society organisations representing domestic workers and employers, and members of the public about key issues in the domestic work sector on the first anniversary of the Mahlangu judgment, which was on 19 November 2021.
The event consisted of opening remarks by Nelson Mandela Foundation’s CEO Sello Hatang and SERI’s executive director Nomzamo Zondo, a keynote address by Eunice Dhladhla of the South African Domestic Service and Allied Workers Union (SADSAWU) followed by a panel discussion.
In a heartfelt reflection on his own mother’s experiences as a domestic worker, Sello Hatang spoke about the difficulties, racial prejudice and demeaning working conditions domestic workers experienced during apartheid, and explained that unfortunately for many domestic workers in post-Apartheid South Africa, this continues to be the case.
Nomzamo Zondo spoke about the case Mahlangu v Minister of Labour matter and the 2020 Constitutional Court judgment. Nomzamo argued that that as powerful as the Mahlangu judgment is, a lot of work is needed to ensure that domestic workers are covered and those who experienced injury after 1994 are compensated. Using the example of the Unemployment Insurance Fund (UIF) and the low levels of compliance by domestic employers, Nomzamo stated that, “the experience of the domestic work sector is proof that progressive laws alone do not change people’s conditions or behaviour”.
Mam'Eunice Dhladhla, assistant general secretary of South African Domestic Service and Allied Workers Union (SADSAWU),delivered the keynote address in which she shared the historical context of domestic workers organising in South Africa. Mam'Euniece also highlighted the contemporary issues and challenges affecting domestic workers including the difficulties of organising domestic workers; long working hours without adequate rest; unequal power relations between employers and domestic workers; and the issue of widespread non-compliance from employers.
The panel discussion which followed the keynote address was facilitated by SERI researcher Kelebogile Khunou and included panellists Linda Burnham, former research director at National Domestic Workers Alliance in the United States; Albert van der Merwe, assistant general secretary at the National Employers’ Labour Association (NELA); Nicolette Naylor, international program director, gender, racial, and ethnic justice at the Ford Foundation and Vuyo Mafata, Compensation Commissioner.
The panelists continued the discussion on the current state of domestic work and raised the following issues:
The panelists offered the following closing remarks about the short and medium-term goals that stakeholders in the sector should prioritise:
In a follow-up to the dialogue, the Nelson Mandela Foundation hosted an online discussion on Twitter Spaces about domestic worker rights and the Constitution. The discussion took place on 8 December 2021. SERI's Kelebogile Khunou and Asenati Tukela joined Lebogang Mokgoroane and Jade Louella Naidoo. Asenati discussed aspects of the Mahlangu judgment while Kelebogile reflected on the wider context of domestic work in South Africa. The discussion was attended by approximately 100 Twitter users.
Friday, 19 November 2021 will mark the first anniversary since the Constitutional Court handed down a monumental judgment in Mahlangu v Minister of Labour compelling the inclusion of domestic workers in legislation aimed at protecting workers. On Wednesday, 24 November 2021, SERI and the Nelson Mandela Foundation will host an anniversary event reflecting on the status of domestic work in South Africa since the Constitutional Court judgment.
In Mahlangu v Minister of Labour, the Court confirmed the constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), which excluded domestic workers employed in private households from the definition of "employee", thus precluding them from claiming from the Compensation Fund for work-related injuries, illness or death. Significantly, the Court ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means domestic workers and dependants who have experienced work-related injuries, diseases or death as far back as 27 April 1994 are also able to submit claims.
At the start of the democratic era, “servants” became “workers” through their inclusion in labour legislation like the Basic Conditions of Employment Act 75 of 1997 and the Labour Relations Act 66 of 1995. In fact, South Africa is known to have one of the most progressive legal frameworks for domestic workers globally. However, in reality, the majority of domestic workers do not enjoy the employment rights they are entitled to, such as decent working hours, overtime pay and fair dismissal procedures. Research suggests that only about 20% of the country’s 1 million domestic workers are registered with the UIF.
The Mahlangu victory offers the opportunity to take stock of domestic work in South Africa, reflect on achievements, find solutions to the challenges of employer compliance and strengthen enforcement mechanisms. Mahlangu potentially represents a turning point in the implementation of domestic worker laws in South Africa.
The event to be hosted on Wednesday will bring together domestic workers, government, civil society and private actors in conversation about key issues in the sector and the future of domestic work. The event will be livestreamed and it will also be available on the Nelson Mandela Foundation’s YouTube channel (available here).
Download the full statement here.
On 11 November 2021, the Daily Maverick published an op-ed entitled "Rapid land release for housing sounds great in theory, but well-structured delivery is key to its success", written by former SERI intern Amaarah Garda and SERI’s research and advocacy officer, Edward Molopi. The op-ed considers the claims and prospects of the land release programme and its implications for local government.
“As the dust settles on the local government elections amidst a crisis at the municipal sphere, fiscal “austerity” and deteriorating livelihoods, we need to hold government to account on where resources are spent and how. While rapid land delivery holds much promise, it could fall short without transparency, consultation, quality service delivery and timeous approvals”, they conclude.
Read the full op-ed here.
On 13 and 14 October, public interest legal services (PILS) organisations held the 2021 Public Interest Law Gathering (PILG) which was the first ever to be held virtually. At this year’s PILG, SERI’s Yvonne Erasmus shared information about the Public Interest Legal Sector website that connects the public with PILS organisations.
SERI also facilitated a panel discussion entitled, “Informal and precarious livelihoods during the COVID-19 pandemic- impacts and responses”. The panel was facilitated by SERI researcher Kelebogile Khunou and included panelists Eva Mokoena from the African Reclaimers Organisation (ARO), Thandeka Chauke from Lawyers for Human Rights (LHR), SERI’s Nerishka Singh and Kelly Kropman of Kropman Attorneys. The session was attended by approximately 30 people.
Khunou introduced and contextualised the panel’s focus by reflecting on the context and scale of informal and precarious work as a share of the world’s population and the global economy. The International Labour Organization (ILO) estimates that 61% of the world's workers earn their living in the informal economy making a majority of the world's workforce informal. In South Africa, Women in Employment: Globalizing and Organizing (WIEGO) estimated that around 30% of total employment is informal, which includes just under 5 million workers.
It was further noted that, according to the ILO, work in the informal economy is often characterised by “small or undefined workplaces, unsafe and unhealthy working conditions, low levels of skills and productivity, low or irregular incomes, long working hours and lack of access to information, markets, finance, training, and technology”. Furthermore, workers in the informal economy are not recognised, registered, regulated, or protected under labour legislation and social protection. However, despite exclusion, the informal economy is a significant component of South Africa’s national economy, contributing approximately 5% to South Africa’s GDP.
Khunou also provided a brief overview of how South Africa’s approach to the COVID-19 pandemic impacted informal and precarious workers’ ability to earn a living, namely the loss of income for non-essential workers due to the restrictions on movement in the lockdown period and the exclusion of informal workers from the COVID-19 Temporary Employer/Employee Relief Scheme (TERS). The panelists unpacked government’s support in respect of waste reclaimers, informal traders, and domestic workers in greater detail.
ARO’s Eva Mokoena reflected on some of the hardships that waste reclaimers experienced during the lockdown, in particular, food insecurity caused by their inability to earn an income due to the restrictions on movement. Thandeka Chauke expanded on the difficulties faced by waste reclaimers during the lockdown and spoke about LHR’s litigation in April 2020 on behalf of groups of informal waste reclaimers based in the City of Tshwane. The application sought to challenge the lockdown regulations in so far as they did not include reclaimers as “essential workers”. LHR emphasised the severity of this omission as it deprived reclaimers of the ability to support their families in a context where they had been excluded from all forms of government support.
Nerishka Singh discussed the legal support SERI provided to informal traders in the City of Johannesburg and eThekwini Municipality and discussed how the lockdown regulations and uneven police enforcement of municipal by-laws negatively affected their ability to earn a living. In the case of Johannesburg, she spoke about how a private actor capitalised on the municipality’s lack of involvement and support for informal trade, by attempting to use the COVID-19 health and safety protocols to prohibit trading, even though the traders had already self-imposed COVID-19 complaint practices.
Lastly, Kelly Kropman discussed how domestic workers who were not registered by their employers with the Unemployment Insurance Fund (UIF) were unable to benefit from the TERS. Kropman Attorneys worked closely with Izwi Domestic Workers Alliance, the Casual Workers Advice Office and Women on Farms to engage the Department of Labour, advocating for allowing workers themselves to apply for TERS and to remove UIF contribution as a prerequisite to benefit from TERS.
On Friday 22 October 2021, the Constitutional Court confirmed an earlier judgment by the Johannesburg High Court declaring section 13(7)(c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid insofar as it allows for warrantless searches.
In this matter, SERI represents residents of 11 buildings in inner city Johannesburg challenging the lawfulness and constitutionality of over 20 warrantless police raids of their homes which took place between June 2017 and May 2018. During the raids, which were conducted jointly by the South African Police Service (SAPS), the Johannesburg Metropolitan Police Department (JMPD), the Department of Home Affairs and the City of Johannesburg, officials forced the residents out of their homes and onto the streets where they were searched, finger-printed and commanded to produce copies of their identity documents, passports or asylum seekers’ permits. Anyone who was unable to produce a form of identification was detained.
The Constitutional Court expanded the declaration of invalidity provided by the High Court finding that even searches of people and property outside private homes violate the right to privacy. Pertinently, the court interdicted the City of Johannesburg and Department of Home Affairs from raiding two buildings raided during the same period without section 13(7) authorisations.
In its judgment, the Constitutional Court found that the raids of the residents’ homes were egregious and showed no consideration for the residents’ rights to privacy and dignity. The raids were used by officials as a way to unjustifiably violate the rights of the most vulnerable members of society. The Constitutional Court found that far from being a way of restoring public order, the raids were conducted with an ulterior purpose: “not only to seek out and arrest undocumented immigrants but also to frighten and harass the applicants into leaving their homes”.
The Court further condemned the calculated disregard of the law by officials in the misuse of written authorisations provided for in section 13(7) to enable the Department of Home Affairs to arrest those suspected of being “illegal immigrants”. The officials erroneously believed that they could get away with the blatant disregard of the rights to privacy and dignity of those they deemed to be non-citizens or undocumented. In this judgment the Court affirmed the Constitutional rights of everyone in the country.
Khululiwe Bhengu, SERI’s attorney representing the residents said: “We welcome this judgment as a necessary affirmation of the residents’ right to dignity and privacy, especially after the recent police raids in the aftermath of the unrest in July. It brings an end to intrusive and warrantless raids specifically targeting poor and marginalised groups.”
Download the full statement here.