March 4, 2021

Domestic workers can now claim compensation for workplace injuries.

Mahlangu and Another v Minister of Labour and Others

Facts of the case:

>     The mother of the applicant was employed as a domestic worker in a private household. While executing her duties, she drowned in her employer's pool.

>     The applicant, as the sole dependant of the deceased, approached the Department of Labour for compensation in respect of her mother's death.

>     She was informed that she will not be able to get compensation under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”), which deals with compensation to employees for workplace injuries.

>     The applicant sought an application declaring section 1(xix)(v) of COIDA unconstitutional to the extent that it specifically excludes domestic workers employed in private households from the definition of “employee”.

What the court said:

>     In May 2019, the High Court declared the exclusion of domestic workers from COIDA unconstitutional and invalid. The High Court then held that the declaration of invalidity will apply retrospectively so as to provide relief to other domestic workers who have been injured or died prior to the order being granted. However, the High Court's judgment had be confirmed by the Constitutional Court before it could come into effect.

>     On 19 November 2020, the Constitutional Court confirmed judgment of the High Court and held the following:

-      The exclusion of domestic workers from the definition of “employee” amounted to an infringement of their human rights to access to social security, equal protection and benefit of the law and human dignity. 

-      The differentiation between domestic workers and other categories of workers is arbitrary and inconsistent with the right to equal protection and benefit under the law.

-      Seeing as domestic workers are predominantly black women, there was indirect discrimination based on race, sex and gender.

-      The exclusion from COIDA had a stigmatising effect on the dignity of domestic workers and added to the notion that their work is not important or valuable. Acting Justice Victor said the following in the judgment:

“The idea that the duties performed by domestic workers do not constitute real work, and that they are merely engaging in an inherently feminine endeavour is deeply sexist and has a significant stigmatising effect on their dignity”

>     The Constitutional Court further stated that social security assistance for the dependants of a person who dies or suffers disablement in terms of COIDA ties in with the constitutional right to access social security.


>     The order of invalidity will now allow domestic workers who are/were injured, or their families (in cases of death), to claim relief in terms of COIDA for workplace injuries.

>     The effect of the order is far reaching as it will have retrospective effect from 27 April 1994. This means that claims for workplace injuries by domestic workers that happened before 19 November 2020 can also be instituted under the requirements of COIDA.

>     This judgment emphasises that employees, including domestic workers, must be provided with a safe working environment.

>     Domestic workers and their employees must now also take relevant procedures into account in respect of how to claim under COIDA.

Did you know…Domestic workers will now be able to make a claim in terms of COIDA for workplace injuries.

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