Mahlangu and Another v Minister of Labour and Others (Commission for Gender Equality and another as amici curiae) 2021 (1) BCLR 1 (CC)

‘Domestic workers are the unsung heroines in this country and globally’, however ‘[they] have not basked in the fulfilment of [a] constitutional promise. Instead, their fate has been blighted as a result of being excluded from statutory protections’ (paras 1 and 5).

In a recent application for confirmation of declaration of constitutional invalidity, the Constitutional Court (CC) in Mahlangu had to delve into and address the constitutionality of s 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). More specifically, whether s 1(xix)(v) violates  fundamental human rights  envisaged in the Constitution of equality (s 9), human dignity (s 10), and access to social security (s 27(1)(c)).

COIDA was enacted with the purpose of providing compensation to employees for occupational injuries or diseases sustained or contracted in the course of their employment, or for death resulting from such injuries or diseases. The compensation that can be claimed consists of a percentage of an employee’s salary, which is paid monthly to the Compensation Fund. Notably and according to s 1(xix)(v) ‘domestic workers’ are not included in the definition of employees and they or their dependants are, therefore, not able to benefit from the Compensation Fund.

In this matter, Ms Mahlangu was a domestic worker who passed away during the course of her employment. Domestic workers are one of the most vulnerable and disadvantaged groups of society who are strong, predominantly black women, often breadwinners and placed at the bottom of the social hierarchy. They tirelessly work away under difficult working conditions and are many a time not treated fairly or humanly with decency and dignity in accordance with the Constitution. After Ms Mahlangu’s daughter, being wholly dependant on Ms Mahlangu, was informed that she could not receive compensation under COIDA, she launched an application in the CC to have s 1(xix)(v) declared unconstitutional.

The CC held that the effect of excluding domestic workers from the definition of employees led to indirect and unfair discrimination based on race and gender and impairs the inherent dignity of domestic workers. If further relied on a host of provisions in international conventions such as the Convention Concerning Decent Work for Domestic Workers, 2011 (arts 3, 13, and 14), the Universal Declaration of Human Rights (arts 22 and 25), the International Covenant on Economic, Social and Cultural Rights (arts 2, 3, and 9), and the Convention on the Elimination of All Forms of Discrimination against Women (arts 2 and 11) to emphasise South Africa’s obligations in respect of advancing and realising the human right to access  social security and its commitment to eradicate discrimination against women particularly.

The CC, per Victor AJ (Mogoeng CJ, Khampepe, Madlanga, Majiedt, Theron and Tshiqi JJ concurring), further held that economic, social and cultural rights,  which the right of access to social security forms part of, are indispensable for human dignity and equality and that the definition of ‘social security’ in the Constitution expressly provides that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. In its current and restrictive form, s 1(xix)(v) does not promote democratic values, social justice, and fundamental human rights. It further has the effect that children or other dependants of a breadwinner, when that breadwinner has passed away, are left utterly helpless and without any financial support to make ends meet. This goes directly against a compelling human rights ethos enshrined in the Constitution.

The CC confirmed the declaration of constitutional invalidity of s 1(xix)(v) with immediate and retrospective effect from 27 April 1994. This victorious ruling will ensure that domestic workers now have access to the Compensation Fund, are no longer excluded from the benefits under COIDA, and are recognised as employees in terms of the provisions in COIDA.

Tanya Calitz LLB (cum laude) (UFS) LLM (with merit) (The University of Edinburgh) is a legal practitioner in Johannesburg.

This article was first published in De Rebus in 2021 (March) DR 31.