Authored By: Cecilia Kganakga
University of Johannesburg
CASE LAW : Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24 Date of the judgement: 19 November 2020
Parties involved
- Sylvia bongi Mahlangu
- South African Domestic Service and Allied Union
- Minister of labour
- Commission for gender and equality Women’s trust
- Director general for the department of labour
Facts of the case.
The case concerns a domestic worker, who worked in Pretoria for the same family and has been employed by them for almost 22 years. She was blind and died while executing her domestic work duties and drowned in a pool. The employer was in the house during the incident and submits that he did not hear any cry for help. Her daughter approached the department of labour to claim for compensation as her mother was the sole provider, and she depended on her. She was informed that she could not claim under COIDA nor UIf as her mother was not recognised as an employee for purposes of the acts and therefore cannot benefit from their compensation.
Issues
Whether section 1(xix)(v) of COIDA is unconstitutional because it excludes domestic workers employed in private households from the definition of “employee”.
Arguments of the parties
The applicants argued that the exclusion of domestic workers from the scope of COIDA infringes their right not to be unfairly discriminated against in terms of section 9(3) of the Constitution on the basis of race, sex or gender and social origin, as the exclusion differentiates between domestic workers employed in private households and other employees covered by COIDA, without any rational connection to a legitimate government purpose. The purpose of COIDA is to afford social insurance to employees who are injured, contract diseases or die in the course of their employment. The second argument presented by the parties is that the exclusion of domestic workers from COIDA deprives them of the benefits of social insurance, which therefore violates -their right to social security under section 27(1)(c) of the Constitution.
The last argument which was represented by the applicants is that the exclusion of domestic workers from COIDA infringes their right to dignity under section 10 of the Constitution. The respondents conceded that section 1 (xix)(v) of COIDA is unconstitutional. However, they argued that it is unnecessary to challenge the constitutionality of COIDA through a court application as the relief sought by the applicants would be of academic value because the Minister was spearheading amendments to COIDA in order to include domestic workers. he respondents conceded that the exclusion of domestic workers limits domestic workers’ rights under sections 9, 10 and 27(1)(c) of the Constitution. Given the absence of any justifiable purpose for the limitation to satisfy the requirements of section 36 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 of constitutional invalidity due to the possible impact potential claims might have on the compensation fund, but this argument was later abandoned.
Judgement
This was an appeal from the high court, The appeal was allowed. Legal reasoning
The main confirmed the order of constitutional invalidity made by the High Court and ordered that the order must have immediate and retrospective effect from 27 April 1994. It held that the exclusion of domestic workers from the definition of “employee” constitutes an infringement of the rights to: access to social security in terms of section 27(1)(c) read with section 27(2) of the Constitution; equal protection and benefit of the law under section 9(1) of the Constitution; human dignity in section 10 of the Constitution; and constitutes indirect discrimination on the bases of race, sex and gender, in terms of section 9(3) of the Constitution which proscribes unfair discrimination by the state on certain grounds.
The main judgment reasoned that social security assistance for the dependents of a person who suffers death, disability or disablement in terms of COIDA is a subset of the right of access to social security under section 27(1)(c) of the Constitution. It held that COIDA is an example of the kind of legislation that the Constitution envisages in section 27(2) as a reasonable legislative measure, within its available resources, to achieve the progressive realisation of the right. The main judgment thus found that the obligation under section 27(2) to take reasonable legislative and other measures, within available resources, includes the obligation to extend COIDA to domestic workers. Applying the reasonableness test to the facts at hand, the main judgment found that it was manifestly unreasonable to exclude this category of workers who suffer from intersecting vulnerabilities based on their race, sex, gender and class. The main judgment accordingly concluded that the failure to include domestic workers under COIDA in the face of admitted available resources is unreasonable and constitutes a direct infringement of section 27(1)(c), read with section 27(2) of the Constitution.
The main judgment further held that the differentiation between domestic workers and other categories of workers is arbitrary and inconsistent with the right to equal protection and benefit of the law under section 9(1) of the Constitution. Through an intersectional framework, it reasoned that the differentiation also amounts to indirect discrimination in terms of section 9(3) as the various grounds of discrimination against domestic workers intersect 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. Finally, the main judgment held that the exclusion of domestic workers from benefits under COIDA has an egregious and stigmatising effect on their dignity.
The exclusion shows that domestic workers are undervalued and that their work is not seen as “real work” like other jobs covered by COIDA. The court found that they face many overlapping forms of discrimination, which harms their dignity. On whether the ruling should apply to past cases, the majority said fairness requires it to apply retrospectively. This means the law was declared invalid from 27 April 1994, allowing domestic workers injured or killed at work before the ruling to also receive relief.
The second judgment also found that the law in question goes against the Constitution and is invalid, but for different reasons than the first judgment. It disagreed with the main judgment on three points. First, it said that section 27(1) of the Constitution, which protects socio-economic rights, was not violated. Second, it said that excluding domestic workers from COIDA benefits does not necessarily take away their right to dignity under section 10. Third, it said that because the main judgment did not use the Harksen test, it was hard to decide if the law was unfair discrimination.
Instead, the second judgment took a simpler approach. It showed that the law breaches section 9(1) of the Constitution, which says that everyone must be treated equally. By excluding domestic workers in private homes from workplace injury benefits, the law made an unfair difference that had no rational link to any government purpose (something the respondents admitted). For this reason alone, the second judgment said the law is unconstitutional and invalid.
The third judgment said that it’s not enough to just notice the discrimination that domestic workers face today. We also need to understand the historical importance of their work and the struggles that come with it. Domestic workers often face unfair treatment because of a mix of factors like race, gender, sex, and social class. This is made worse because they usually work in private homes, where their challenges are hidden. As a result, domestic workers are often invisible and voiceless, and their constitutional rights are overlooked, even though they play an important role in society.
Conclusion
In conclusion domestic workers must be included within the ambit of employees and they must be allowed to claim for compensation for injuries that occur during the course of the execution of their duties. Domestic workers play a very important role. Their dependants must also be given the right to claim.
