South African Constitutional Court declares exclusion of domestic workers from occupational injury legislation to be unconstitutional

by | Dec 9, 2020

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About Geoffrey Allsop

Geoffrey Allsop is a candidate attorney at Haffegee Roskam Savage Attorneys in Johannesburg, South Africa. He holds BA LLB LLM degrees from the University of Cape Town and practices primarily in the areas of labour law, constitutional law and administrative law.

Citations


Geoffrey Allsop, “South African Constitutional Court declares exclusion of domestic workers from occupational injury legislation to be unconstitutional”, (OxHRH Blog, December 2020), <https://ohrh.law.ox.ac.uk//south-african-constitutional-court-declares-exclusion-of-domestic-workers-from-occupational-injury-legislation-to-be-unconstitutional>, [Date of access].

On 20 November 2020, the South African Constitutional Court delivered judgment in Mahlangu v Minister of Labour (“Mahlangu”). This case concerned the constitutionality of barring private domestic workers (or their dependents) from instituting compensation claims for workplace related injury, disease or death under the Compensation for Occupational Injuries and Diseases Act (“COIDA”).  

COIDA creates a system of “no fault” statutory compensation where an employee who contracts an occupational disease or who is injured in a workplace incident can institute a claim for compensation which is payable by the Department of Labour. In cases of death, dependents of the deceased employee can institute a claim for their maintenance needs.

One threshold requirement for a successful claim is that the injured, ill or deceased person falls within the statutory definition of an “employee” in s 1 of the Act. The COIDA definition, however, expressly excludes “a domestic employee employed as such in a private household. The statutory definition of “employee” therefore effectively meant that a private domestic worker (or their dependent) was completely barred from instituting a COIDA claim for any workplace related disease, injury or death. It was the constitutionality of this definition which the Constitutional Court had to rule upon in Mahlungu.  

Background

In March 2012, Maria Badanile Mahlungu, a partly blind domestic worker, fell into her employer’s pool and drowned when executing her duties. At the time of death, she supported her daughter Bongi and Bongi’s young son. Both depended on Maria to provide for their basic needs.

Bongi Mahlungu subsequently submitted a COIDA claim to provide for herself and young son following Maria’s death. The Department of Labour rejected her claim because Maria was employed as a domestic worker in a private home and therefore did not fall within the statutory definition of an “employee”. Bongi then instituted proceedings in the High Court to have the exclusion of domestic workers from the COIDA definition of “employee” declared unconstitutional.

It was argued that excluding domestic workers, or their dependents, from instituting COIDA compensation claims unjustifiably violated three constitutional rights: equality (s 9),  human dignity (s 10) and access to social security (s 27(1)(c)). In the High Court, the State conceded the constitutional challenge with the result that the statutory definition was declared retrospectively  unconstitutional to the extent it barred COIDA claims by domestic workers or their dependents.

Constitutional Court decision

The majority judgment (per Victor AJ) upheld the declaration of invalidity in its entirety. The majority reasoned in two broad parts in coming to its conclusion.

First, the court engaged in an extensive analysis of binding international human rights law to assess the dimensions of the constitutional right to equality and access to social security. Particular reliance was placed on Art 10 of the Southern African Development Community Charter of Rights, General Comment 23 of the Committee on Economic Social and Cultural Rightsand Art 3 of the Convention on Domestic Workers to conclude the exclusion of domestic workers from COIDA was inconsistent with South Africa’s obligations as a member state to these instruments. Relying on Government RSA v Grootboom and Khosa v Minister Social Security, the court further found that excluding domestic workers from COIDA unreasonably violated their right to have access to social security as there existed no justifiable reason for excluding them or their dependents (as a vulnerable socio-economic group) from accessing social security benefits in times of need.

Second, the majority expressly adopted an “intersectional” approach in considering the equality challenge. After finding there was no legitimate basis to distinguish between private domestic workers and other categories of employees insofar as COIDA claims are concerned, the court took cognisance of the fact domestic workers are invariably poor black women. The harm perpetuated by excluding domestic workers from COIDA was therefore compounded by the fact it additionally resulted in indirect discrimination based on race and gender. This harm was further compounded by the fact it reinforced the perception domestic workers are less worthy of respect and protection than other employees, violating their sense of self-worth and human dignity.

Mahlangu remedies a profound injustice South African domestic workers and their dependants suffered from more than 24 years after the Constitution’s adoption which proclaims human dignity and the achievement of equality amongst its foundational values.

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