Constitutional Court of South Africa Declares Provisions of Domestic Workers’ Injury Compensation Legislation To Be Unconstitutional

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Moshiuzzaman holds a 2:1 LL.B degree from BPP University (UK). He is currently pursuing the CFA chartership and working as an independent legal researcher at the American Society of International Law (ASIL)

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The Constitutional Court of South Africa in Sylvia Mahlangu v Minister of Labour [2020], declared parts of the Compensation for Occupational Injuries and Diseases Act (COIDA) to be unconstitutional as it infringed fundamental rights of workers as provided under the Constitution of South Africa. 

Background

Ms Mahlangu was employed as a domestic worker in a private residence at the time of her death. She was employed, effectively as a “housemaid”, by the same family for over 22 years in Faerie Glen, Pretoria. On the 31st of March 2012, Ms Mahlangu’s body was found floating in the swimming pool of her employer; reportedly she had fallen into the pool while executing her duties at the household. Although at the time of Ms Mahlangu’s death, the employer was at the residence, he insisted that he heard “no sounds of struggle”. He rather stated that she died because she was partially blind and was unable to swim, jointly for switch she drowned to death. 

Following Ms Mahlangu’s death, her daughter, Sylvia Mahlangu, the first applicant, who was financially dependent on her mother at the time, approached the Department of Labour to enquire about compensation for her mother’s death. She was informed that she was not entitled to compensatory relief as provided under COIDA, nor the unemployment insurance benefits for her loss, which would ordinarily have been covered under COIDA. 

Assisted by the second applicant, the South African Domestic Service and Allied Workers Union (SADSAWU), Sylvia Mahlangu launched an application in the High Court of South Africa to have Section 1 (xix) (v) of COIDA declared unconstitutional to the extent that it excludes domestic workers employed in private households from the definition of “employee”.

The Constitutional Court of South Africa

The Court began its 79-page long judgment by reiterating a summary of the litigation history of the case. It noted that in May 2019, the High Court of South Africa declared Section 1 (xix) (v) of COIDA to be invalid to the extent that it excluded domestic workers employed in private households from the definition of “employee”, thereby, effectively denying them compensation in the event of injury, disablement or death in the workplace. Unfortunately, however, the High Court did not provide any reasoning behind declaring the provision to be invalid. For this reason, the matter was re-appealed to the Constitutional Court, jointly by the Minister of Labour, the Director-General of the Department of Labour, and the Acting Compensation Commissioner. In addition to deeming section 1 (xix) (v) of COIDA to be invalid, the High Court had also given a second-order, namely, declaring the provision’s invalidity to have retrospective effect with immediate effect, and to provide relief to domestic workers who were injured or who had died at work prior to the granting of the order.

The Constitutional Court reminded the authority of the Court in constitutional matters. It stated that under s.167 (5) of the Constitution of South Africa, it was the Constitutional Court which had the final say on whether an “Act of Parliament…” was valid or invalid. In this, no declaration made by any court of law in the land at any point has effect till it was the Constitutional Court that made a confirmation or a non-confirmation order. Additionally, under s.172(a) of the Constitution, it was only for the Constitutional Court to make final confirmation proceedings. The court reminded the parties that this court did not have the benefit of the reasoning of the High Court, and in that the court was a de facto (in fact) the court of first and final instance. It reiterated the words of Goldstone J from Mphahlele v First National Bank of South Africa (1999), where it was held that should a court fail to furnish reasons for their decisions, this amounts to a violation of their constitutional duty.

The court then proceeded with a reiteration of the legislative history of COIDA and the surrounding legislative principles on the issue in question. The court held that the issue in hand was a matter of social security. It stated that under Art 22 of the Universal Declaration of Human Rights and Art 9 of the International Convention on Economic, Social and Cultural Rights (ICECSR) required state parties to uphold social security as a fundamental human right. Furthermore, under Art 13 of the Maputo Protocol and Art 10 of the Charter of Fundamental Social Rights, as provided for by the South African Development Community (SADC), state parties were required to protect social security as a fundamental human right. The Court held that because South Africa was a signatory of these international instruments, the exclusion of domestic workers from the definition of “employee” as thus, the benefits under COIDA, was “inexplicable”. 

In conclusion, the three-judge Bench held that in light of the international obligations that South Africa had, and the submissions made by the applicants and amici, namely, that the exclusion of domestic workers from the ambit of “employee” amounted to unfair discrimination and impaired the fundamental dignity of domestic workers, made the aforementioned provision unconstitutional. Moreover, having the superadded fact that most domestic workers were predominately Black women, the provision had the effect of subjecting domestic works to indirect discrimination on the basis of their race and gender; thus, providing all the more reason to make the said provision unconstitutional. 

Click here to view the Court’s judgment.


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