INTERSECTIONALITY IN COIDA: LESSONS FROM MAHLANGU AND ANOTHER V MINISTER OF LABOUR AND OTHERS 26 YEARS INTO DEMOCRACY.

1. Introduction

Twenty-six years into South Africa’s constitutional democracy, the Constitutional Court was called upon to confront a legislative exclusion that rendered an entire category of workers invisible. In Mahlangu and Another v Minister of Labour and Others, the Court declared section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) unconstitutional to the extent that it excluded “domestic workers” from the definition of “employee”.¹ The case arose after Ms Maria Mahlangu, a domestic worker, drowned in her employer’s swimming pool on 31 March 2012 while on duty. Her daughter’s claim for compensation under COIDA was rejected solely because her mother’s work was considered informal.²

This article argues that the Mahlangu case is more than a compensation claim. It is a judgment about intersectionality, historical disadvantage, and the meaning of transformative constitutionalism. Like Bhe and Others v Magistrate, Khayelitsha and Others³ and S v Makwanyane and Another,⁴ it is a transformative case that amended the law and revealed that, even in this generation, the battle for equality is far from over in South Africa.

By reading “domestic worker” into COIDA with retrospective effect to 27 April 1994, the Court acknowledged that ostensibly neutral exclusions can perpetuate race, gender and class inequality.⁵ For law students and practitioners, the Mahlangu case offers a critical lesson: legislation must be measured not only by its text, but by its impact on the most vulnerable and unprivileged. In Mahlangu the Court held that “Not only should this restore their dignity, but the declaration of invalidity will hopefully have a transformative effect in other areas of their lives and those of their families, in the future”.⁶

According to data from the Q3 2024 Quarterly Labour Force Survey (QLFS), approximately 1,1 million South Africans are employed in private households, with 75,7% (or 854 000) working as domestic workers, the majority of whom are Black women.⁷ For 26 years COIDA rendered this workforce legally invisible. Mahlangu therefore forces us to measure legislation not by its text, but by whether it reaches the kitchen, the garden, and the home where this labour is performed.

The foundation of law is to protect human rights for all. It must therefore reach those who are aware of it and those who are not, and it must change lives. This is especially true in a country like South Africa, where apartheid left behind deep imbalances in how people live. For this reason, our courts hold transformative justice to a high standard, and many cases force us to look back at the past. It is therefore important to restore the principles of the Constitution in order to remedy the injustices faced by South Africa and its people.

2. COIDA and the Constitutional Framework

The purpose of COIDA is to provide a system of compensation for disablement caused by occupational injuries or diseases sustained by employees in the course of employment.⁸ It establishes a statutory compensation scheme funded by employer contributions, designed to ensure swift social security without the need for litigation.

However, section 1(xix)(v) excluded from the definition of “employee” any person “employed as a domestic worker in a private household”.⁹ On its face, the provision appears technical. In effect, it removed legal protection from a sector of work that is predominantly performed by Black women, often migrants, and historically underpaid and unregulated. The exclusion must be tested against the Constitution. Section 9 guarantees equality and prohibits unfair discrimination, while section 27(1)(c) obliges the State to take reasonable legislative measures for the progressive realisation of the right to social security.¹⁰ Section 39(1)(b) further requires courts to consider international law when interpreting the Bill of Rights.¹¹

The exclusion cannot be separated from South Africa’s labour history. Under apartheid, domestic work was deliberately placed outside the scope of labour protections. The post-1994 failure to include domestic workers in COIDA therefore meant that a constitutional democracy inherited and continued a pattern of exclusion for nearly 26 years. The consequence in Mahlangu was systemic: a worker who died in the course of employment was denied the very social security the Act was created to provide, because of the nature of her work and the identity of those who perform it.

3. The Constitutional Court’s Reasoning

The Court’s analysis centred on sections 9 and 27 of the Constitution, read with South Africa’s international law obligations. But the main driver was transformative constitutionalism, the idea that the Constitution must be used to heal past injustices and give real meaning to equality and socio-economic rights.

3.1 Equality and Intersectionality

The Court found that section 1(xix)(v) unfairly discriminated on the grounds of gender, race and social origin. Writing for the majority, Victor AJ held that domestic work is “almost exclusively performed by women, and predominantly by black women”.¹² The exclusion therefore targeted a specific group through indirect discrimination. The judgment is significant for its explicit use of intersectionality. The Court recognised that the disadvantage suffered by domestic workers is attributable not to gender or race alone, but to their convergence.¹³ This approach aligns with transformative constitutionalism, which requires the law to confront rather than entrench historical patterns of subordination.¹⁴

3.2 The Right to Social Security

By excluding domestic workers, COIDA failed to meet the obligation in section 27(1)(c). The Court held that there was no rational justification for treating domestic workers differently from other employees exposed to the same risks. The State did not advance any evidence of fiscal burden or administrative impossibility to justify the differentiation.

3.3 International Law

The Court drew on ILO Convention 102 on Social Security and ILO Convention 189 on Decent Work for Domestic Workers.¹⁵ These instruments confirm that domestic workers are entitled to the same social protection as other workers. International law was used not as an afterthought, but as a tool to interpret the Constitution’s commitments.

3.4 The Remedy

Instead of mere prospective invalidity, the Court ordered the reading-in of “domestic worker” and gave the order retrospective effect to 27 April 1994. This was to ensure that Black families like the Mahlangus were not left without a remedy for past exclusions. The remedy underscores that constitutional rights must have practical effect, not only theoretical recognition.

4. Lessons 26 Years into Democracy

The Mahlangu case teaches three key lessons:

• First, it exposes the limits of formal equality. A law that appears neutral can reproduce inequality if it overlooks context. The exclusion of domestic workers was a continuation of apartheid labour architecture, not a mere oversight. Transformative constitutionalism therefore demands that legislation be tested against lived realities.
• Second, the judgment affirms the importance of social security as a pillar of dignity. The right in section 27 is not aspirational. Where the State fails to extend protection to those most in need, courts must intervene. The retrospective remedy is a recognition that justice delayed is dignity denied.
• Third, the Mahlangu case is a reminder of the role of law in community. It underscores that rights on paper mean little if workers do not know they exist or cannot access them. Legal reform must be paired with education, outreach, and care. That is how the law moves from the courtroom to the kitchen, the garden, and the home where domestic work happens.

5. Conclusion

The Mahlangu case is not simply about compensation. It is about recognition. By declaring the exclusion of domestic workers unconstitutional and granting retrospective relief, the Constitutional Court sought to correct a historical wrong. Twenty-six years into democracy, the judgment reminds us that the project of transformation is unfinished. Laws must be continuously scrutinised for their impact on those at the margins. Parliament should urgently amend COIDA to reflect the reading-in, and the Department of Employment and Labour must conduct targeted outreach to ensure domestic workers know of their rights.

As future lawyers, our task is to ensure that constitutional promises are not confined to textbooks, but are realised in the lives of domestic workers, caregivers, and all those whose labour sustains our society. In the end, the Mahlangu case asks us what kind of equality we want as South Africa: one that looks good in the Constitution of the Republic of South Africa, 1996, or one that shows up for people. The Court chose to show up. So must we.

Footnote(S):

1 Mahlangu and Another v Minister of Labour and Others (2020) ZACC 24.

2 Ibid para 7

3 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC).

4 S v Makwanyane and Another 1995 (3) SA 391 (CC).

5 Mahlangu and Another v Minister of Labour and Others (2002)ZACC 24 .

6 Ibid para 120

7 Statistics South Africa, ‘Quarterly Labour Force Survey: Q4 2023’ (Stats SA, 13 February 2024) <https://www.statssa.gov.za/?p=17820> accessed 6 August 2026

8 Ibid para 51

9 Ibid para 35

10 Ibid para 42

11 Ibid para 42

12 Ibid para 73

13 Ibid para 102

14 Ibid para 64

15 Ibid para 9

Bibliography

Legislation

• Compensation for Occupational Injuries and Diseases Act 130 of 1993
• Constitution of the Republic of South Africa, 1996

Cases

• Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24; 2021 (2) SA 54 (CC).
• Bhe and Others v Magistrate, Khayelitsha and Others [2004] ZACC 17; 2005 (1) SA 580 (CC).
• S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

International treaties

• International Labour Organization, Social Security (Minimum Standards) Convention No 102 (adopted 28 June 1952, entered into force 27 April 1955) 210 UNTS 131
• International Labour Organization, Decent Work for Domestic Workers Convention No 189 (adopted 16 June 2011, entered into force 5 September 2013) ILCCR 2011

Internet

• Statistics South Africa, ‘Quarterly Labour Force Survey: Q4 2023’ (Stats SA, 13 February 2024) https://www.statssa.gov.za/?p=17820 accessed 6 August 2026