The rights of South Africa’s approximately one million domestic workers was at the centre of a landmark court ruling last week.
Last Thursday, the Pretoria high court handed down an order declaring the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act (COIDA) is unconstitutional.
Domestic workers have been excluded from the Act — which compensates employees, or their survivors, for work-related injuries, illnesses or death — since it was enacted in 1993. According to Statistics South Africa’s quarterly labour survey for the first three months of 2019, there were over one million domestic workers in the country.
The matter was brought to the court in 2016 by Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria, who died at her employer’s home in Pretoria while she was working.
In an affidavit to the court, Mahlangu said her mother was washing the top windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool.
According to Mahlangu, her mother was only earning R2 500 a month at the time of her death. Her mother’s employers allegedly gave the deceased’s family less than R5 000 after her death.
Mahlangu said she approached the department of labour to enquire about compensation for her mother’s death, which left her and her son “financially destitute”. But Mahlangu was told that she could not get compensation as a result of her mother’s death.
In October last year, Labour Minister Mildred Oliphant published the proposed amendments to COIDA to cover domestic workers.
In a replying affidavit to the Pretoria high court, the labour department’s compensation commissioner, Vuyo Mafata, said the reason for the delay in extending coverage to domestic workers by COIDA was to provide the department “an opportunity to develop its institutional capacity to administer” such coverage.
In another affidavit, Mahlangu refuted this, saying that the labour department has had “well over twenty years in order to develop the institutional capacity referred to”.
“It defies logic and compensation that the department can think this is a legitimate factor to be considered when evaluating whether or not the exclusion of domestic workers passes constitutional muster,” the affidavit reads.
The Socio-Economic Rights Institute, which represents Mahlangu in the litigation, will further be arguing that the declaration of invalidity must be applied retrospectively.
This would provide relief to Mahlangu, or the families of other domestic workers who were injured or died at work prior to the granting of the order.
Mahlangu was supported in her application by the South African Domestic Service and Allied Workers Union (Sadsawu). Sadsawu, along with the United Domestic Workers of South Africa, embarked on a campaign called ‘Domestic Workers Rising’ in an effort to petition government to recognise, protect and advance the rights of domestic workers.
Domestic Workers Rising said in a statement following the high court order: “Whilst we celebrate the inclusion of domestic workers in COIDA, the journey is still long as we look
toward a positive ruling on retrospectivity.”
“We remain, resolute and determined to usher in a new era for the domestic workers movement in South Africa. We forge ahead with the struggle for equality, equity and justice for all domestic workers,” the statement added.