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The Constitutional Court of South Africa ruled Thursday 19-11-2020 that sections of the Compensation for Occupational Injuries and Diseases Act effectively denying domestic workers compensation if they suffer disease, disablement, injuries, or death in the course of their employment are unconstitutional as they infringe on fundamental rights of domestic workers set out in the South African constitution.

Miss Mahlangu, the first applicant’s mother, was a domestic worker in a private household and drowned in her employer’s swimming pool while on duty in 2012. The first applicant was denied compensation by the labor department, notwithstanding she was solely dependent on her mother. The department made its decision on the basis that domestic employees are not covered by the act. She subsequently moved to court to challenge the department’s decision.

Section one of the act excludes domestic workers employed in private households from its definition of an employee covered under the act. This essentially denies domestic workers compensation if they suffer hurt, harm or death while doing their jobs.  In their application, the applicants alleged that this provision contravenes the right to equal protection of the law, the right not to be discriminated against unfairly, the right to dignity, and the right to access social security. Another relevant issue that the court had to handle was whether an order of invalidity would apply retroactively.

While the respondents did not contend that Section one was unconstitutional, they also argued that an order of invalidity should not apply retroactively as it would place a substantial financial burden on the state.

In their ruling, the three-judge bench concluded that the provision amounted to discrimination and violated the equality provisions in the constitution. Two judges agreed with the applicant’s submissions to the effect that the provisions violated the right to human dignity. In contrast, only one judge concluded there was a violation of the right to access social security. The court ultimately held that the provision was unconstitutional and ruled for a retroactive application of its decision from 27 April 1994. 

“Domestic workers – despite the advent of our constitutional dispensation – remain severely exploited, undermined, and devalued as a result of their lived experiences at the intersecting axes of discrimination. Yet, these Black women are survivors of a system that contains remnants of our colonial and apartheid past. These Black women are brave, creative, strong, and smart. They are committed mothers and caretakers and have the ability to perform work in conditions that are challenging both psychologically and physically. These Black women are not “invisible” or “powerless”. On the contrary, they have a voice, and we are listening. These Black women are at the heart of our society. Ensuring that they are afforded basic rights, and an avenue to vindicate these rights, is central to our transformative constitutional project. Therefore, I support the order proposed in the first judgment. ”

See the order