On 19 February 2021, the Socio-Economic Rights Institute (SERI) made a submission to the Parliamentary Portfolio Committee on Employment and Labour on the Compensation for Occupational Injuries and Diseases Amendment Bill.
The submission focuses on the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) in the light of the Constitutional Court judgment on 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 dependants who have experienced work-related injuries, diseases, or death as far back as 27 April 1994 are also able to submit their claims.
The submission begins by providing context and highlights the role of domestic worker unions and allied organisations in the struggle to include domestic workers in compensation for occupational diseases and injuries, which goes as far back as the 1980s when the first domestic workers’ union South African Domestic Workers Union (SADWU) was formed. For decades, domestic workers have contended that domestic work, like all other work, is prone to accidents, injuries, diseases, and death. In a study by Solidarity Center common injuries and ailments reported by domestic workers include dog bites, back injuries, chronic spinal cord injuries, broken limbs, cuts, asthma, and bone fractures. The submission acknowledges the inclusion of domestic workers in the Amendment Bill however, asserts that the Bill does not give effect to the Mahlangu judgment which enables domestic workers and their dependents to claim for compensation for occupational injuries, diseases, and death from 27 April 1994.
The submission includes a legal analysis of the Amendment Bill which discusses how the judgment in Mahlangu v Minister of Labour can be fully complied with to ensure that domestic workers, as a class of employees, are sufficiently protected. This section of the submission does this by identifying the sections in the Bill which prevent retrospective claims from domestic workers from being processed.
Lastly, the submission highlights the need for coverage of domestic workers in COIDA to go hand in hand with enforcement and compliance, a significant challenge in the domestic work sector given its unique nature.
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:
The submission was endorsed by South African Domestic Service and Allied Workers Union (SADSAWU), United Domestic Workers of South Africa (UDWOSA), Izwi Domestic Workers Alliance and the International Domestic Workers Federation.
A Research handbook on economic, social and cultural rights as human rights which was recently published is co-edited by SERI board members Jackie Dugard and Lilian Chenwi. The Research Handbook "offers an authoritative analysis of standards and jurisprudence" and "ultimately argues that "a robust, reinforced approach and practice is needed to meet the human rights challenges of the 2020s".
"Contested and marginalized in legal research, the field of economic, social and cultural rights has experienced a bloom in scholarly attention over the past ten years. With contributions by leading scholars and practitioners, this Research Handbook represents an up-to-date and in-depth analysis of the most salient mechanisms, doctrines and cross-cutting issues in the field. It constitutes an indispensable resource for policy-makers, scholars and advocates interested in the contribution of human rights to the eradication of poverty and inequality."
– Professor Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa and Vice President, UN Committee on Economic, Social and Cultural Rights.
Part I of the Handbook includes a chapter on 'The international human rights system' by Jackie Dugard which provides a historical and contextual evolution of economic, social and cultural rights (ESCR) and the protection mechanisms provided by the various key international legal instruments and institutions. The chapter on 'The African system' by Lilian Chenwi provides an analysis of the existing human rights framework of ESCR by considering the various regional legal instruments and institutions that make up the African human rights system, relative to their mechanisms of enforcement.
Part II of the Handbook on the content of the different rights includes a chapter on 'The right to adequate housing' written by Stuart Wilson which considers the right to adequate housing in international law and includes analysis of key areas of contestation which illustrate how the right has been developed and applied in some domestic contexts including the South African context. In it, Wilson argues that,
"when concrete social struggles have reached international, regional and domestic adjudicative bodies, especially but not exclusively in South Africa, the right to adequate housing has found its greatest traction in challenges to existing property rights. It is in struggles over the upgrading of informal settlements, the eviction of illegal occupiers, the rights of residential tenants in urban areas, the rights of mortgagors and the struggles of women to access housing through, and despite, patriarchal accounts of property law, that the right to adequate housing has sharpened its teeth."
Wilson goes on to write that,
"Given the scale of housing need internationally, and given also that so much economic inequality expresses itself in skewed distributions of land, housing and property, there can be little doubt that meeting the scope and providing the content of the right to adequate housing implies a substantial revision of existing property relationships in a wide variety of contexts. It also implies a substantial redistribution of land, property and, ultimately, wealth. The right to adequate housing is, in many respects, a manifesto for a just and equal society."
On 18 February 2021, SERI will be in the Constitutional Court representing the residents of the Winnie Mandela informal settlement in an application to seek constitutional damages for ongoing breach of their constitutional rights of access to adequate housing.
Over three years ago, the High Court ordered Ekurhuleni Municipality to build houses for 133 informal settlement residents whose subsidised RDP units had been stolen from them. The residents have decided to sue the Ekurhuleni Municipality for constitutional damages, after the municipality missed a court-ordered deadline to replace the residents’ stolen houses. SERI has taken a decision by the Supreme Court of Appeal (SCA) not to award constitutional damages to the Constitutional Court and is seeking R5,000 per resident for every month that the municipality failed to provide them with the houses from 30 June 2019.
On 28 January 2021, SERI’s Alana Potter joined a press conference for the #PayTheGrants Campaign calling for the extension and increase of the COVID-19 Social Relief of Distress (SRD) Grants to at least R585-00 in line with the food poverty line. The press conference was hosted by Black Sash, C19 People’s Coalition Cash Transfers Working Group and the Institute of Economic Justice (IEJ). Potter spoke alongside affected grant claimants, Zwelinzima Vavi, Advocate Thuli Madonsela, and social justice activists.
The #PayTheGrants Campaign joint statement calls for:
In SERI’s statement, Alana spoke, in support of the joint statement, about the critical importance of ensuring that there is a continuation and increase of unconditional cash transfers to people as a bridge to a basic income grant. Given the devastating impact the pandemic has had the livelihoods of informal and precarious workers, Alana argued that the cash grant was vital for ensuring that people do not go hungry because they would ensure that local markets and informal traders can start trading again.
The informal sector is critical in generating livelihoods, providing food security, and for reducing poverty. Informal traders, for example, do not only make food accessible, but they also maximise economic and ownership opportunities, creating multiplier effects into local communities they are part of.
Alana noted that civil society and a range of CSOs have mobilised to generate valuable evidence advocating for strengthening the informal economy by:
Dineo Phalane joined SERI in 2021 as a Candidate Attorney. Prior to this, Dineo worked as a field worker on numerous SERI cases and projects since 2018. She holds BA (Political Studies and Philosophy) and LLB degrees from the University of the Witwatersrand (Wits). During her time at Wits she served in the Law School Council subcommittee as well as the Student Representative Council subcommittee. Dineo’s growing interest in the effective recognition and implementation human rights was sparked by her own lived reality and her exposure to SERI’s work.
Tebogo joined SERI as a Candidate Attorney in 2021 after having previously worked as a Research Intern in July 2020. She holds a BA Law and Bachelor of Laws (LLB) degrees from the University of the Witwatersrand. She is currently pursuing a Postgraduate Diploma in Human rights Advocacy and Litigation at the same university. She also has interests in pursuing an LLM looking into the impact of service delivery cases in addressing the harsh reality that is faced by the majority black population in South Africa.