Authored By: Mpho Mkhonto
University of South Africa
Case Title
Mahlangu Another v Minister of Labour and Others [2020] ZACC 24
Court Name and Bench
- Constitutional Court of South Africa
- Victoria AJ (majority); Jafta J (dissenting); Mhlantla J (concurring) • Full-Bench Hearing
Date of Judgement
19 November 2020
Parties Involved
In this case, the first applicant is Sylvia Bongi Mahlangu, the daughter of the diseased, who brought an application challenging the constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), after she had made a claim to the Department of Labour which was dismissed because the dependents of domestic workers cannot claim COIDA, since they are not considered as employee’s according to section 1(xix)(v) of COIDA. Whilst the second applicant is the South African Domestic Services and Allied Workers Union (SADSAWU), who assisted the first applicant in lodging a constitutional invalidity application with the High Court of South Africa, Gauteng Division, Pretoria.
With the respondents in this case being the Minister of Labour, the Director-General of the Department of Labour, and the Acting Compensation Commission, the respondents initially argued that the application was moot, as it would serve only an academic purpose. However, they later shifted their stance, acknowledging that they do not oppose the application’s aim to confirm the constitutional invalidity of the law in question.
Facts of the case
Section 1(xix)(v) of the COIDA was declared unconstitutional and invalid by the Pretoria Division High Court on the 23rd of May 2019, for excluding domestic workers in private households as employees. The case was then brought to the Constitutional Court, upon the provision being declared constitutionally invalid, to remove the provision from the COIDA. The Constitutional Court must then assess the facts from the court of first instance to understand the reasoning behind its order. The constitutional court will then come to its own judgement, approving or disapproving the striking down of the provision, as it is the only court empowered to enforce an order of constitutional invalidity under section 172(2)(a) and section 167(5) of the Constitution.
In the course of evaluating why the court of first instances came to its conclusion, declaring constitutional invalidity, there was not much reasoning provided except for the draft orders prepared by the parties, which left the constitutional court at arm’s length in furnishing reasons for the passing of the order. Another ruling issued by the high court involved the endorsement of a retrospective application of the amendment to the Compensation for Occupational Injuries and Diseases Act, contingent upon rectification as presented by the applicants. On 17 October 2019, the high court determined that the invalidity should indeed entail retrospective effect, necessitating the constitutional court to clarify the relevant implications in this context further.
In its contemplation, the constitutional court, through the insights of Victoria AJ, examined various reasoning methodologies, including the intersectional framework, the Harksen test, alongside constitutional and international legislative frameworks concerning indirect discrimination, dignity, and social security. These elements will be further elaborated upon in the subsequent legal analysis.
An outline of the prominent issue is the unfair discrimination towards domestic workers as a group of “Black women” who are discriminated against based on gender, race and sexuality.
Issues Raised
- Should the declaration of constitutional invalidity apply both immediately and to past situations?
- Does the compensation provided under COIDA align with the social security rights guaranteed by section 27(1)(c) of the Constitution?
- How extensive or comprehensive is the right to social security, and what specific protections or entitlements does it encompass?
- Does the right to social security extend to providing support for individuals who require financial assistance due to work-related injuries, illness, or the loss of a family breadwinner resulting from these circumstances?
- Is the exclusion of domestic workers from the definition of “employee” in COIDA reasonable?
Arguments of the Parties
The applicants and the amici contended that the exclusion of domestic workers is a breach of their fundamental rights to dignity and constitutes unfair discrimination. Their contention is raised on the basis that since domestic work is predominantly done by Black women, their indirectly discriminated against based on race and gender. This is when the intersectional approach has been explored based on the rights to equality and dignity as categorised with social status, gender, race and class. They further contend that due to past injustices, hierarchies and patriarchy, which have resulted in the oppression many women found themselves face with resulting from not being equally educated, affecting their lives. The intersectional framework was sought upon because “it leads to a nuanced, purposive and socio-contextual consideration when interpreting the implementation and amendment of COID”.
The deprivation of social insurance from COIDA is a result of their work not being recognised, only affording them a common law delictual claim for damages that are fault-based. They stress that the exclusion cannot be justified by the limitations of section 36 of the Constitution, as it does not form any legitimate governmental purpose which would justify COIDA exclusion to the right of social security for domestic workers, covering cases of injury, the contraction of diseases, or death in the workplace. They further strengthen their argument with reference to the Gender Commission’s reliance on the Domestic Workers Convention, with specific reference to Article 14 which states, “in accordance with national laws and regulations and with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection”, stating that South Africa as a member state should assure to this. These arguments apply in retrospect of constitutionality and retrospectivity.
The Women’s Legal Centre Trust conveys that the generational impact of the apartheid regime on Black women is also of relevance due to the stigma associated with domestic work and its historical interpretation as being unworthy of receiving social protection in the workplace, defeating the purpose of the Preamble of the Constitution to recognise past injustices. The Women’s Legal Centre Trust continues to explain the obligation against South Africa in its commitment to eradicate extreme poverty and the inauguration of appropriate social protection systems in accordance with the prompts of the United Nations Sustainable Development Goals (SDGs). As SDG 8 serves a purpose to advance workers’ protections, making sure they have safe and secure job environments.
In retrospect, the respondents relied on sections 9, 10 and 27(1)(c) of the Constitution, conveying the limitations of domestic workers’ rights and conceded that there is no justifiable purpose that would satisfy the limit set out in section 36 of the Constitution. Further, referring that the Department can successfully administer COIDA in the domestic sector as it did with the Unemployment Insurance Act. It can be said that the respondents did not have much opposition to the applicant’s plea.
Further legal considerations that should apply to South Africa’s international and regional law:
- The interpretations of the rights enshrined in the Bill of Rights should be interpreted in line with international law.
- The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), respectively, to Articles 2 and 11(f).
- The International Covenant on Economic, Social and Cultural Rights (ICESCR), respectively, to Articles 2 and 3.
- Convention on the Elimination of All Forms of Racial Discrimination. • Convention of Domestic Workers, respectively, to Article 3.
- African Charter on Human and Peoples’ Rights (African Charter), respectively, to Article 66. • The Maputo Protocol.
Judgement
- The declaration of constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 made by the High Court of South Africa, Gauteng Division, Pretoria, is confirmed.
- The order is to have immediate and retrospective effect from 27 April 1994.
- All costs will be due to the first respondent.
Legal Reasoning
The initial step in addressing these questions is to examine the proclamation of COIDA as a social security legislation as envisioned by section 27(1)(c) of the Constitution. Reference to Joster was made in this regard, where the objective of COIDA was described in accordance with section 35(1) of the Compensation Act, while also establishing the definition of “social security” in accordance with the Bill of Rights, which includes social assistance as a means to provide support to a person and their dependents when unable to support themselves. Resulting in COIDA having to now be read and understood within the constitutional framework of section 27 to align its objectives with achieving substantive equality, while also interpreting the scope of the Bill of Rights with section 39(1)(a) calling upon measures to ensure that injustice and resulting hardships are prevented by adopting a transparent approach of a democratic society based on human dignity, equality and freedom. As this very court has held in Khosa that equality is fundamental and should guide how we understand all rights, including the right to social security.
When dealing with socio-economic rights, it is best to adapt the transformative purpose of the Constitution to heal past injustices and address the contemporary effects caused by the apartheid regime. Therefore, reasoning with the fact that social security assistance according to COIDA is a subset of the right of access to social security under section 27(1), read together with section 27(2), as they are inextricably linked.
Approaching the reasonableness of the exclusion of domestic workers from COIDA, the court observes the Grootboom case and Khosa, concerning the effect of social security and expressed that social security is to ensure that all individuals, especially the most vulnerable, have access to essential needs and can lead a dignified life and failure to observe these rights leads to a direct infringement of section 27(1)(c), read with section 27(2) of the Constitution.
Lastly, the Harkens test was put to the test in section 9 of the Constitution on the challenge of equality based on the differentiation of employees and domestic workers, further intersecting with the intersectionality analysis as it becomes unavoidable in the circumstance of evaluating how “intersecting and overlapping forms of oppression result in certain groups being subject to distinct and compounded forms of discrimination, vulnerability and subordination”. As broad and complex as the intersectional approach is, it is important in shedding light on the experiences and vulnerabilities of certain groups. Even though emphasis can be drawn on the fact that the South African Defence Force (SANDF) and the South African Police Services (SAPS) are also excluded from COIDA, it should be noted that they have their own respective funds that offer compensation and cannot be compared to the grievances of domestic workers.
In conclusion, the constitution serves a transformative purpose and enshrines the values of equality and human dignity, while section 1(xix)(v) of COIDA undermines these rights by failing to improve the material conditions of domestic workers. Therefore, invalidating this section is necessary to achieve the transformative justice required by the Constitution, benefitting domestic workers both individually and as a class.
Conclusion
This case has highlighted the importance of the role of domestic workers in the overall society, and it is commendable that it was approached with cognisance, as it provided long-awaited rectification to all the Black women who have sacrificed everything to contribute to the roles of helping others improve in their respective roles. It is about time that the past, present and future injustices be met with utmost respect and recognition within the employment sphere.
