MAHLANGU AND ANOTHER V MINISTER OF LABOUR AND OTHERS

CASE NAME: MAHLANGU AND ANOTHER v MINISTER OF LABOUR AND OTHERS

Name of Court: Constitutional Court of South Africa.

Judges: The majority judgment was delivered by Victor AJ, with Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J, and Tshiqi J concurring. Justice Jafta filed a dissenting judgment (concurred in by Mathopo AJ), and Justice Mhlantla filed a concurring judgment.

Date of Judgment: 19 November 2020.

Citation: Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24.

Parties

The First Applicant was Sylvia Bongi Mahlangu, the daughter and dependent of the deceased domestic worker, and the Second Applicant was the South African Domestic Service and Allied Workers Union (SADSAWU).

The Respondents included the Minister of Labour, the Director-General for the Department of Labour, and the Acting Compensation Commissioner. The Commission for Gender Equality and the Women’s Legal Centre Trust participated as the first and second amici curiae, respectively.

Introduction

The decision by the Constitutional Court in Mahlangu v Minister of Labour in 2020 is an important landmark in transformative jurisprudence, which struck down the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act (COIDA). These workers, who were predominantly Black women, occupied a legal blind spot that denied them access to the social insurance safety net enjoyed by other workers. The judgment, arising from the death of Ms Maria Mahlangu, employs an intersectional analytical framework to address a legacy of marginalisation and to give formal and constitutional recognition to domestic work.

Facts of the Case

The matter arose from the death of Ms Maria Mahlangu, a domestic worker who had been with the same family in Pretoria for 22 years and who drowned on 31 March 2012 while working in her employer’s swimming pool.¹ Her daughter, Sylvia Mahlangu, who was financially dependent on her, lodged a claim for compensation with the Department of Labour following her mother’s death.² The Department informed her that she was not entitled to any compensation under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) because domestic workers employed in private households were excluded from its definition of “employee”.³ With the backing of SADSAWU, she challenged this exclusion as unconstitutional in the High Court.⁴ That court declared it invalid but did not provide written reasons for its decision.⁵ The case then came to the Constitutional Court for confirmation as an order of constitutional invalidity.⁶

Issues for Determination

1. Whether section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act, which excludes domestic workers in private households from the definition of an “employee,” is unconstitutional for infringing the rights to equality, dignity, and access to social security.
2. Whether the exclusion of domestic workers from COIDA can be justified under the limitation clause of section 36 of the Constitution. (Note: as the state ultimately conceded unconstitutionality, this issue was not extensively litigated at the Constitutional Court stage.)
3. What constitutes the appropriate remedy, with specific regard to the retrospective effect of the declaration of invalidity in order to ensure relief for those injured prior to the court order.

Legal Arguments of the Applicants

The exclusion of domestic workers was said to constitute unfair indirect discrimination on the grounds of race, gender, and social origin, as it was overwhelmingly a sector populated by Black women.⁷ This was presented within an intersectional framework, which argued that domestic workers are multiply disadvantaged and that these disadvantages are compounded by the law’s failure to recognise their work as “real work”.⁸ The applicants also argued that the exclusion violates the right to human dignity by rendering these workers “invisible” and stripping them of the social protections enjoyed by all other classes of employees.⁹ They further contended that while other workers enjoy a “no-fault” compensation system under COIDA, domestic workers have been relegated to the difficult and often unattainable common law delictual claim requiring proof of employer negligence.¹⁰

Legal Arguments of the Respondents

The state respondents did not oppose the declaration of invalidity but effectively conceded that it was unconstitutional and could not be justified in a democratic society.¹¹ Their earlier arguments in the lower court had raised administrative and financial concerns about the inclusion of domestic workers in the Compensation Fund.¹² Proceedings therefore turned principally to the question of remedy, with respondents expressing concern about retrospectivity and the sudden emergence of historical claims that would burden state resources.¹³

Judgment

The Constitutional Court upheld the order made by the High Court, declaring that section 1(xix)(v) of COIDA is unconstitutional to the extent that it excludes domestic workers.¹⁴ The Court found the provision invalid and ordered that the declaration of invalidity operate with immediate and retrospective effect from 27 April 1994, being the date on which the interim Constitution came into force.¹⁵ This means that domestic workers or their dependants who sustained injuries or death in the course of their employment on or after that date may claim compensation, provided they satisfy the other requirements stipulated in the Act.¹⁶

Ratio Decidendi

The Court held that the exclusion was irrational, served no legitimate governmental purpose, and accordingly violated the right to equality under section 9(1) of the Constitution.¹⁷ Applying an intersectional approach, the majority found that the exclusion amounted to unfair indirect discrimination on the grounds of race, sex, and gender under section 9(3), since it disproportionately affected Black women.¹⁸ The Court further found a breach of the right to dignity under section 10, concluding that the exclusion was indicative of a patriarchal and racist history in which domestic work was regarded as “unskilled” or a mere “labour of love,” rather than recognising it as productive labour.¹⁹ Finally, the Court found a violation of the right of access to social security under section 27(1)(c), because COIDA is one of the principal means through which the state discharges its obligation to provide social insurance for workers.²⁰

Conclusion

The Mahlangu decision is a turning point in South African transformative law and redefines the legal position of more than one million domestic workers.²¹ By striking down the last remnant of apartheid-era exclusion, the Court moved beyond formal equality towards substantive equality, recognising that the invisibility of domestic workers is an outcome of systemic marginalisation.²² The decision to make the order retrospective to 1994 ensures that this judgment is not merely a symbolic victory but constitutes a practical remedy for families like the Mahlangu family, who were left impoverished by workplace tragedies.²³

In addition to its immediate effect on compensation, the judgment sets an important precedent for feminist jurisprudence by affirming women’s lived experiences of care work. It requires the state and society to acknowledge that a private home constitutes a workplace subject to the same health and safety standards as any other employment environment. This judgment effectively “humanises” domestic workers by recognising them as legitimate employees in the workforce, entitled to full protection under the law and to the constitutional dignity they inherently deserve.²⁴

The judgment also stands as a stark reminder to the legislature that administrative convenience can never justify the perpetuation of fundamental human rights violations.²⁵ It has provided a framework for dismantling what has been described as South Africa’s long-standing “gendered and racialised system of poverty,” bridging the divide between “private” domesticity and “public” labour law. This revolution in understanding calls upon all stakeholders to ensure the effective implementation and enforcement of labour rights in intimate workspaces, so that no worker remains invisible in law’s shadows.²⁶

Bibliography

Case Law

Harksen v Lane NO [1997] ZACC 12.

Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24.

Mahlangu v Minister of Labour (CP) [2019] ZAGPPHC 146.

Legislation

Compensation for Occupational Injuries and Diseases Act 130 of 1993.

Constitution of the Republic of South Africa, 1996.

Journal Articles

Sandra Fredman, ‘Intersectional Discrimination in South Africa’ (2011) 27 SAJHR 405.

K Narotam, ‘The Impact of Transformative Constitutionalism in Addressing the Marginalisation of Domestic Workers’ (2021) 15 Pretoria Student Law Review 196.

T Zulu, ‘The Revolution of our Understanding of Domestic Work: The Constitutional Case of Mahlangu v Minister of Labour’ (2024) 45(1) Obiter 1.

Footnotes

¹ Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24 [2].

² Mahlangu (n 1) [3].

³ Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 1(xix)(v).

⁴ Mahlangu v Minister of Labour (CP) [2019] ZAGPPHC 146.

⁵ Mahlangu (n 1) [6].

⁶ Constitution of the Republic of South Africa, 1996, s 167(5).

⁷ Mahlangu (n 1) [48].

⁸ Sandra Fredman, ‘Intersectional Discrimination in South Africa’ (2011) 27 SAJHR 405.

⁹ Mahlangu (n 1) [117].

¹⁰ Mahlangu (n 1) [57].

¹¹ Mahlangu (n 1) [16].

¹² Mahlangu (n 1) [18].

¹³ Mahlangu (n 1) [123].

¹⁴ Mahlangu (n 1) Order [1].

¹⁵ Mahlangu (n 1) Order [4].

¹⁶ Mahlangu (n 1) [128].

¹⁷ Constitution (n 6) s 9(1).

¹⁸ Harksen v Lane NO [1997] ZACC 12.

¹⁹ Constitution (n 6) s 10.

²⁰ Constitution (n 6) s 27(1)(c).

²¹ T Zulu, ‘The Revolution of our Understanding of Domestic Work: The Constitutional Case of Mahlangu v Minister of Labour’ (2024) 45(1) Obiter 1, 1.

²² K Narotam, ‘The Impact of Transformative Constitutionalism in Addressing the Marginalisation of Domestic Workers’ (2021) 15 Pretoria Student Law Review 196.

²³ Mahlangu (n 1) [129].

²⁴ Zulu (n 21) 5.

²⁵ Mahlangu (n 1) [125].

²⁶ Zulu (n 21) 13.