Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

Clark Laing Inc. commemorates women’s month by reflecting on one of the Constitutional Court’s landmark judgments affirming and advancing the constitutional rights, dignity and equality of women. This is a case about a daughter’s fight for justice for her deceased mother & a majority judgment penned by a woman judge. Indeed, empowered women can empower a nation, Happy Women’s Month!!   

Almost six years ago, the Constitutional Court handed down a judgment confirming the High Court’s declaration of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (hereinafter referred to as “COIDA”), insofar as it excluded domestic workers employed in private households from the statutory definition of an “employee”, thereby depriving them of access to compensation for occupational injuries, diseases or death arising in the course and scope of their employment. 

The mother of the applicant was employed as a domestic worker in a private home for 22 years.  On 31 March 2012, the mother (deceased) drowned in her employer’s pool in the course of executing her duties as a domestic worker.  The applicant (daughter), as the sole dependent of the deceased, approached the Department of Labour to enquire about compensation for her mother’s death. She was informed that, she could neither get compensation under COIDA, nor could she get unemployment insurance benefits for her loss which would ordinarily be covered by COIDA.

COIDA creates a system of compensation which confers upon an “employee” or her/his dependents, a right to claim compensation in the event of disablement caused by an occupational injury or disease sustained or contracted by the employee in the course of her/his employment, or for death resulting from such injuries or diseases.

The majority judgment, penned by Victor AJ, commenced with a powerful observation that aptly captures the significance of the matter.

“[1] Domestic workers are the unsung heroines in this country and globally.  They are a powerful group of women whose profession enables all economically active members of society to prosper and pursue their careers.  Given the nature of their work, their relationships with their own children and family members are compromised, while we pursue our career goals with peace of mind, knowing that our children, our elderly family members and our households are well taken care of.

[2] Many domestic workers are breadwinners in their families who put children through school and food on the table through their hard work.  In some cases, they are responsible for the upbringing of children in multiple families and may be the only loving figure in the lives of a number of children.  Their salaries are often too low to maintain a decent living standard but by exceptional, if not inexplicable effort, they succeed.  Sadly, despite these herculean efforts, domestic work as a profession is undervalued and unrecognised; even though they play a central role in our society.”

The Minister of Labour conceded that indeed the provision is unconstitutional. The only issue that had to be determined, was whether the declaration order of invalidity would apply retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order.

The Minister resisted the retrospective order of constitutional invalidity due to the possible impact potential claims might have on the compensation fund.

The Constitutional Court 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 base of race, sex and gender, in terms of section 9(3) of the Constitution which proscribes unfair discrimination by the State on certain grounds. It further held that the exclusion of domestic workers from benefits under COIDA has an egregious and stigmatising effect on their dignity.  The exclusion demonstrates the fact that not only are domestic workers undervalued, but their work is not considered “real work”, the kind performed by workers who do fall within the definition of the impugned section of COIDA.  It found that the multiple intersecting forms of discrimination illustrate the indignity domestic workers endure.  

On the issue of retrospectivity, the court reasoned that, a just and equitable order is one that does not limit the retrospective effect of the declaration of invalidity.  Consequently, it ordered that the declaration of invalidity would have retrospective effect from 27 April 1994 to provide relief to other domestic workers who were injured or died at work prior to the granting of the order.

Authored by : Luzuko Jubase

Reviewed by : Sifungile Chinyamurindi