Issue: February 2021

SOUTH AFRICA - Occupational Safety Statute Must Cover Domestic Employees in Private Households

By: Hilary Mofsowitz, Mediator/Arbitrator from South Africa

Judgment from the Constitutional Court of South Africa, Mahlangu and Another v Minister of Labour and Others, ZACC 2419 (Nov. 2020)

  1. The Constitutional Court handed down a judgment in an application for confirmation of an order of the High Court of South Africa, Pretoria. The High Court order declared section 1 (xix) (v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) as unconstitutional to the extent that it excludes domestic employees employed in private households from the definition of “employee”. It effectively denies domestic employees from compensation in the event that domestic employees contract diseases or suffer disablement, injuries or death in the course of their employment. All other employees in South Africa are covered by COIDA. 
  2. The employee concerned was employed as a domestic employee in a private home for twenty-two years. She drowned in her employer’s pool in the course of executing her duties as a domestic employee. Her daughter (and sole dependant) approached the Department of Labour and was advised that she could not receive compensation under COIDA, nor could she receive unemployment insurance benefits for her loss (which would ordinarily be covered by COIDA).
  3. The daughter (“the first applicant”) along with the South African Domestic Service and Allied Workers Union, brought an application in the High Court to have section 1 (xix) (v) of COIDA declared as unconstitutional to the extent that it excludes domestic employees (employed in private house households) from the definition of “employee”.
  4. The applicants argued the following; a) The exclusion of domestic employees infringes their right not to be unfairly discriminated against in terms of the Constitution on the basis of race, sex and/or gender and social origin, as the exclusion differentiates between domestic employees and other employees covered by COIDA, without any rational connection to a legitimate government purpose.  b) It deprives them of the benefits of social insurance, thus violating their right to social security in terms of the Constitution. c) The exclusion infringes their right to dignity in terms of the Constitution.   
  5. The Minister of Labour was the first respondent, the Director- General for the Department of Labour was the second respondent and the Acting Compensation Commissioner was the third respondent.
  6. The Commission for Gender Equality was admitted as the First Amicus Curiae and the Women’s Legal Centre was admitted as the Second Amicus Curiae. Both entities supported the claims of the applicants.
  7. The applicants sought confirmation of the High Court’s order of constitutional invalidity from the Constitutional Court in terms of section 172 (2) (d) of the South African Constitution. This summary deals with the Constitutional Court’s finding.
  8. The respondents conceded that the exclusion of domestic employees limits domestic employees’ rights under the various provisions of the Constitution. The respondents did not oppose the application for the confirmation of the order of invalidity. The respondents initially resisted the retrospective order due to the possible impact potential claims might have on the compensation fund, but later abandoned this argument. 
  9. The main judgment of the Constitutional Court, confirmed the order of constitutional invalidity made by the High Court and ordered that the order have immediate and retrospective effect from 27 April 1994.  It confirmed the claims of the applicants as detailed above. The main judgment included the obligation to extend COIDA to domestic employees. Applying the reasonableness test to the facts at hand, the main judgment found that it was manifestly unreasonable to exclude this category of employees who suffer from intersecting vulnerabilities based on their race, sex, gender and class. It concluded that the exclusion constitutes a direct infringement of the various provisions of the Constitution.
  10. The Court reasoned that the differentiation also amounted to indirect discrimination given that domestic work in South Africa is predominantly performed by Black women. Thus, their race, sex and gender are intrinsically bound up in the discrimination against them.
  11. The majority judgment reasoned that given the intersectional discrimination, a just and equitable order is one that does not limit the retrospective effect of the declaration of invalidity. 
  12. Consequently, it ordered that the declaration of invalidity would have retrospective effect from 27 April 1994 to provide relief to other domestic employees who were injured or died at work prior to the granting of the order. Of note is the fact, that the “new” Constitution came into effect on 27 April 1994, the day that the nation cast its vote in the first democratic election of South Africa.
  13. Although with different reasoning, the second and third judgments agreed with and supported the main judgment. The first respondent was ordered to pay the costs of the applicants. 

Hilary Mofsowitz

Mediator/Arbitrator from South Africa