On 8 April 2021, SERI addressed a letter to the Compensation Commissioner on the subject of retrospective claims from domestic workers injured at the workplace as far back as 27 April 1994. The main concern of the letter was the cut-off date for submitting retrospective claims, 20 November 2021, as published by the Compensation Commissioner in the Government Gazette on 10 March 2021. As South Africa celebrates workers in the month of May, SERI wishes to highlight a potential challenge affecting one of the country’s most vulnerable groups of workers.
Domestic workers have been included in the Compensation for Occupational Injuries and Diseases Act (COIDA) since 19 November 2020, when the Constitutional Court of South Africa handed down a judgment in the Mahlangu v Minister of Labour matter declaring the exclusion of domestic workers from the definition of “employee” in section (xix)(v) of COIDA as unconstitutional. The Court also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means that domestic workers who have experienced work-related injuries, diseases or death as far back as 27 April 1994, or their dependents, are able to submit claims. Acting in the interest of Sylvia Mahlangu, the first applicant in Mahlangu, SERI submitted a retrospective claim for compensation for the workplace death of her mother which occurred on 31 March 2012.
In light of the Constitutional Court judgment, on 10 March 2021 the Compensation Commissioner published in the Government Gazette No. 44250 a “Notice on the Registration of Domestic Worker Employers in terms of Section 80 of the Compensation for Occupational Injuries and Diseases Act as Amended”. In terms of this notice, retrospective claims arising on or after 27 April 1994 must be brought to the attention of the Commissioner or the employer within 12 months from 19 November 2020 (i.e. 20 November 2021), failing which the right to claim will lapse.
In the letter, SERI asserts that the cut-off date is unreasonably short considering that it is to apply to a historically marginalised and disadvantaged category of workers. The letter then seeks clarity on the rationale of the cut-off date by asking six questions to the Commissioner:
The importance of retrospectivity in addressing past injustices and ameliorating poverty is explored in the Mahlangu judgment. In determining whether a retrospective order should be given, Acting Justice Victor stated,
“The fact that this case concerns intersectional discrimination is a relevant factor in determining whether a retrospective order should be granted… I am hopeful that the inclusion of domestic workers in the definition of “employee” under COIDA will contribute towards the amelioration of systemic disadvantage suffered by these women and contribute to breaking the cycle of poverty they suffer.”
While the cut-off date for retrospective claims was the main concern, the letter also enquires about the progress of Sylvia Mahlangu’s retrospective claim and invites the Compensation Commissioner to a meeting to engage in person about the queries addressed in the letter. The Compensation Commissioner is yet to respond to the letter.
On Friday, 30 April 2021, SERI made two submissions to the Special Rapporteur on the right to adequate housing in line with the special rapporteur’s call for inputs on housing discrimination and spatial segregation.
In it’s first submission, SERI highlighted the lack of viable formal rental options for inner city residents and how this exacerbates the challenges of unlawful occupations in South Africa. The submission discussed on-going unlawful evictions in spite of protective legislation preventing such, considered the reactive alternative accommodation strategies across municipalities and the relocation of evictees to distant and peripheral areas. Lastly, we discuss the failure to dismantle Apartheid spatial planning and implement progressive legislation in order to achieve spatial justice goals.
The second submission, made in collaborated with the Water Integrity Network (WIN), emphasised the links between the human right to housing and the human rights to water and sanitation, and issues of discrimination and segregation relating to informal settlements. It further emphasised how issues of lack of integrity, transparency, accountability and corruption contribute to violations of these human rights. Our main message is that a framework of water integrity, which promotes human rights and protects non-discrimination and equality, participation, transparency, accountability, and anti-corruption, would support improved delivery of water and sanitation in informal settlements. It would also allow such communities to more effectively hold government to account for failure to deliver services.
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:
Find relevant material here:
This is SERI’s first newsletter for 2021. In it we present a few highlights from our work since our last newsletter in December 2020. In the context of the COVID-19 pandemic, SERI continues to embolden individuals, social movements and CBOs to use legal and research support to exercise their rights and to inform pro-poor government policy and practice.
Subsequent to the ground-breaking judgment in the Mahlangu v Minister of Labour matter in which the Constitutional Court declared the exclusion of domestic workers from COIDA as unconstitutional; SERI worked with Black Sash to produce a fact sheet for domestic workers, paralegals and community advice offices to provide them with information about the case. In January, SERI supported the #PayTheGrants campaign in the call for the extension and increase of the COVID-19 Social Relief of Distress Grant to at least R585 in line with the food poverty line. In February, we made submissions on the Expropriation Bill and the Compensation for Occupational Injuries and Diseases Amendment Bill.
SERI appeared 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 to access adequate housing. In March, we represented 107 waste reclaimers in the High Court in Johannesburg to oppose eviction from their homes.
Access the full newsletter here.
In April 2019, the Nelson Mandela Foundation commissioned a series of papers on urban land reform. Their aim was to inform debate about and propose a feasible approach to urban land reform which could, in the near future, be implemented. In line with this, SERI authored two papers on urban land reform and urban land redistribution. SERI has recently published the revised versions of the summary reports of the papers submitted to the Nelson Mandela Foundation and will be published at a later stage.
The paper on urban land reform adopts Section 25(6)2 and Sections 26 (1), (2) and (3)3 of the Constitution as its starting points. Shortly after the Constitution was enacted, a set of tenure security laws were enacted to give immediate effect to Section 25(6), pending the development of legislation providing permanent, positive rights.4 The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which gave effect to section 26(3), is one of these laws. The long-term legislation has not yet been developed.
The summary report on urban land reform further recommends that the Department of Public Works also has a role to play in making better use of existing instruments, as it is responsible for land expropriation. Expropriation should be used to secure the tenure of a person or community living without it because of past racially discriminatory laws or practices. They should be able to request the Minister to consider whether to expropriate the land on which they reside for their benefit.
The paper on urban land redistribution adopts the redistribution clause in section 25 (5) of the Constitution as its starting point: “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” On this basis SERI argues, in line with the Presidential Advisory Panel and High-Level Panel reports, that a law should be developed and enacted which gives effect to section 25(5) and that the in order to operationalise the approach we propose a process for fine-tuning urban equitable access principles, the main legislative measure (the Framework Act) and the policy measures (the various programmes).
The summary report on urban land redistribution further recommends that expropriation should be employed as a significant mechanism in urban land redistribution. The voices of the urban landless should be heard on what land should be expropriated and when, either directly or indirectly. Ordinary South Africans and communities, who have not been able to gain access to land on an equitable basis, should be able to approach the Minister of Public Works to consider expropriation.