Constitutional Court victory for domestic workers, who are now covered for work-related claims

The Constitutional Court has ruled that domestic workers are covered by claims for work-related injury, illness and death.

• Domestic workers in private homes are now covered by the provisions of the Occupational Injury and Illness Compensation Act.
• A Constitutional Court judge described domestic workers as “forgotten heroines.”
• The court said including domestic workers in the act would bring them closer to “substantive freedom.”

After 26 years of democratic government, domestic workers employed in private homes are finally covered by the provisions of the Occupational Injury and Illness Compensation Act (COIDA), and damages can be claimed for injuries, illnesses and deaths related to the job.

By declaring the provisions of the law unconstitutional, the Constitutional Court ruled Thursday that the order should be applied retroactively until April 27, 1994, allowing previously injured domestic workers and their families and dependents to file claims, GroundUp reported. .

“Domestic workers are the unsung heroes in this country and around the world,” said Acting Judge Margaret Victor, writing for the majority of the court.

Victor said:

The matter before the court has its roots in a lawsuit brought by Sylvia Mahlangu, the daughter and only dependent of Maria Mahlangu who drowned in her employer’s swimming pool in Pretoria in March 2020. It was alleged that Maria, who was partially blind, He was washing windows by the pool when he slipped on the ladder and fell into the unfenced pool.

He could not swim and drowned. His body was discovered hours later by his employer.

Financially devastated

Sylvia Mahlangu was financially devastated. He approached the Department of Labor to claim compensation, but they rejected it.

With the assistance of the South African Domestic and Allied Service Workers Union, he approached the Socio-Economic Rights Institute (SERI), which filed a lawsuit in the Gauteng High Court in Pretoria, arguing that the specific exclusion of domestic workers in Coida it was unconstitutional in the sense that it violates the rights to equality and constitutes a violation of the human right to dignity.

SERI argued that domestic workers were historically disadvantaged and, in the context of the law, had been “overlooked, if not completely forgotten.”

The defendants, the minister and the Department of Labor, initially argued that it was in the process of making the necessary modifications and that a court order was not necessary, but later they retracted and consented to the constitutional nullity order.

Respondents also initially opposed the issue of hindsight, saying it would put a crippling financial strain on the bottom line with claims from domestic workers whose employers had not contributed to it, but dropped this argument in the Constitutional Court.

The law came into effect in 1994, replacing the Workers’ Compensation Act.

‘Substantive freedom’

It is essential social security legislation that protects employees by creating the right to claim compensation through a cost-effective, fast and efficient administrative process for temporary or permanent disability, medical costs, and death.

In court presentations, the Commission for Gender Equality and the Legal Trust of Women (admitted as a friend of the court) pointed out that although the State had recognized, in November 2015, that the exclusion was unconstitutional, and said that he was “building capacity” to remedy this, he had not.

The exclusion of domestic workers from the scope of the law trapped them and their dependents in a cycle of poverty.

The court said including domestic workers in the act would bring them closer to “substantive freedom.”

Víctor said that although it had been pointed out that the law also excluded members of the police and the defense force, they resorted to special internal schemes while domestic workers, mainly black women who were often breadwinners , they found themselves in a “legislative vacuum” that, for decades in a democracy, had to endure work-related injuries or death without compensation.

She said:

The court issued two other judgments, which coincided with the unconstitutionality ruling, but for different reasons.

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