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[LITIGATION UPDATE] Constitutional Court dismisses Winnie Mandela informal settlement residents’ claim for constitutional damages (13 December 2021).

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.

[ADVOCACY] SERI and Nelson Mandela Foundation host dialogue reflecting on the state of domestic work in South Africa (8 December 2021).

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.

Mahlangu event SelloHatang  Mahlangu event NomzamoZondo  Mahlangu event MamEunieceDhladhla 

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.

Mahlangu_event_panel.jpgThe 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.

[PRESS STATEMENT] Domestic work in South Africa, one year after Constitutional Court victory (18 November 2021).


Press statement Mahlangu anniversaryFriday, 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).

Contact details:  

  • Kelebogile Khunou, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it., 079 135 4002.
  • Nomzamo Zondo, SERI executive director: This email address is being protected from spambots. You need JavaScript enabled to view it., 071 301 9676.

Download the full statement here

[OP-ED] SERI’s Edward Molopi and Amaarah Garda write an op-ed on the rapid land release programme (12 Nov 2021).

Op ed Rapid Land ReleaseOn 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

[ADVOCACY] SERI participates in the 2021 Public Interest Law Gathering (27 October 2021).

PILG 2021 flyer

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.

SERI PILG PanelIt 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.


  • Visit the PILS website here.
  • Visit the PILG website here.