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SERI produced a series of factsheets for employers of domestic workers. The factsheets are based on SERI and Izwi’s Employing a Domestic Worker: a Legal and Practical Guide, a user-friendly guide written for employers of domestic workers in South Africa. The guide informs employers of domestic workers of their rights and obligations in the employment relationship, provides practical advice towards creating a healthy working environment and supports them to improve their employment practices. 

The factsheets cover the following topics:

• Beginning the Domestic Employment Relationship
• Compensation for Occupational Injuries and Diseases
• Minimum Standards of Employment 
• Dealing with Poor Work Performance and Misconduct

The goal is for employers to share the factsheets, which are based on South African labour legislation, with each other via WhatsApp and other online platforms. This way employers have legal information about aspects of the domestic employment relationship on hand. 

• Download Employing a Domestic Worker: A Legal and Practical Guide (August 2021) here.
• Download Domestic Workers' Rights: A Legal and Practical Guide (June 2018) here.

This is SERI’s final newsletter for 2021. In it we present a few highlights from our work since the August newsletter which covered the May to August period. In it, we present a few highlights from our work in the four-month period (September to December) since our last newsletter in August, which covered the May to August period.

In November, SERI welcomed a Constitutional Court judgment declaring warrantless searches invalid, effectively ending intrusive raids targeting poor people. The apex court’s judgment 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. In November, we also commemorated the 1^st anniversary of the Mahlangu judgment compelling the inclusion of domestic workers in legislation aimed at protecting workers.

In October and November, SERI appeared before the Western Cape High Court on behalf of Abahlali baseMjondolo who intervened as amicus curiae in an ongoing matter challenging the City of Cape Town's use of the Anti-Land Invasion Unit to conduct unlawful evictions. In October, we participated in the 2021 Public Interest Law Gathering. 

In September, SERI represented 107 Midrand waste reclaimers in their opposition to an eviction that would render them homeless and without the ability to make a decent living. We also participated in a webinar on the memorialisation of the Marikana Massacre.

• Access the full newsletter here. 

On 18 February, SERI, representing 133 residents of the Winnie Mandela informal settlement, located in the Ekurhuleni Metropolitan Municipality appeared before the Constitutional Court for an appeal application. On 7 December 2021, the Constitutional Court handed down its judgment in the matter ‘Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others’. In a 5-4 judgment, the Constitutional Court dismissed the residents’ appeal application and rejected their claim for constitutional damages against the Ekurhuleni Metropolitan Municipality.

The residents approached the Constitutional Court to appeal a decision by the High Court denying them constitutional damages for a breach in their constitutional right to access adequate housing, after the municipality failed to provide them with houses. In December 2017, the North Gauteng High Court ordered Ekurhuleni Municipality to build houses for 133 informal settlement residents whose allocated RDP units had been given to other people as a result of fraud or negligence.

The Municipality had until 30 June 2019 to provide the residents with houses. However, on 28 June 2019, the last working day before it was due to comply with the December 2017 order, the municipality delivered a variation application to request the court to extend, by one year, the period within which it must provide the residents with plots of land and houses.

In a counter-application, the residents argued that the High Court has no power to vary orders to correct breaches of constitutional rights after those orders have come into effect. The residents also sought constitutional damages of R5 000 per resident for every month from 30 June 2019 until the date on which the municipality provides the residents with the houses to which they are entitled in terms of the December 2017 court order.

The High Court dismissed the Municipality’s variation application as well as the residents’ counter-application, to which the residents approached Constitutional Court in an appeal application. The question before the Constitutional Court was whether the award of constitutional damages is “appropriate relief” under section 38 of the Constitution, 1996, for an admitted and ongoing breach of the residents’ constitutional rights of access to adequate housing.

In the judgment handed down on 7 December, the majority held that constitutional damages could not be awarded to the residents. Three of the five justices held that constitutional damages cannot be awarded to enforce socio-economic rights because they do not impose a directly enforceable obligation upon the state to deliver by a particular date. They also held that the residents have other remedies available to them and that the only other way for the residents to enforce the 2017 High Court order is through contempt of court proceedings given that the residents had already been granted a court order in their favour.

The dissenting minority disagreed that constitutional damages are inappropriate when dealing with socio-economic rights. They also disagreed that the residents must show that constitutional damages are the only remedy available to them in order to seek them. The minority would have granted the residents an award of R 10 000 per applicant, a supervisory order to ensure that the residents received houses and an opportunity to return to the court one year later if they have not received the houses.

Despite the outcome, our clients are comforted by the recognition of the ‘sustained and egregious breach of their rights’ by the municipality. While SERI is disappointed by the dismissal of the appeal, it is also emboldened by the minority judgment which espoused a constitutionalism that can propel South Africa’s transformation into a society that is able to improve the quality of life of all citizens and free the potential of each person.

• Watch the Constitutional Court hearing here.
• Read more about the case and access all the papers here.

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:

• Domestic work is an undervalued sector; domestic workers are a dispersed and disaggregated workforce largely excluded from the enjoyment of labour laws;
• The intersecting racial, class, gender and citizenship inequalities experienced by domestic workers during apartheid persist and domestic workers remain one of the most vulnerable occupational groups;
• Employers of domestic workers need to be included in dialogues, and collaboration between associations for employers and domestic worker unions and organisations needs to be strengthened;
• There is a need for an “all of society” approach with domestic workers at the forefront to tackle issues in the sector.

The panelists offered the following closing remarks about the short and medium-term goals that stakeholders in the sector should prioritise:

• In the short-term, public awareness needs to be raised on domestic workers inclusion in COIDA, employers need to register their employees and claims processed;
• Research and data-collection on the domestic work sector needs to be prioritised;
• Consideration for the formation of a bargaining council for employers and domestic workers organisations as provided for in the Labour Relations Act;
• Collaboration between the key stakeholders needs to be sustained;
• South Africa can take a leadership role in building global solidarity around issues in the sector;
• The need for the media to change the narrative on domestic work and to change the hearts and minds of the public.

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.

• Watch the Mahlangu event here.
• Read more about the Mahlangu case here.
• Download the employers guide here.
• Read the press statement on the anniversary of the Mahlangu judgment here.