Maria Mahlangu had worked for the De Clerq family as a domestic worker for 22 years when she drowned in her employer’s pool. As Mahlangu’s dependents, her family were told they could not be compensated because domestic workers were excluded from the benefits of the Compensation for Occupational Injuries and Diseases Act (Coida) [PDF]. But in a victory for domestic workers on May 23, the Gauteng division of the High Court ruled that excluding domestic workers in Coida is unconstitutional.
“The victory at the High Court today signaled the beginning of positive change for over one million workers in South Africa,” the campaign Domestic Workers Rising said in a statement. As great a victory as the ruling is, there is still a while to go before domestic workers’ rights are fully realised.
What is Coida?
Mam’ Mahlangu was cleaning the outside windows of her employee’s Pretoria home when she slipped from a step ladder and drowned in their unfenced pool in 2012. After the funeral, her daughter Sylvia Bongi Mahlangu and her aunt approached the labour department to enquire about claiming compensation. But the restrictions of Coida meant that, according to the law, Mam’ Mahlangu’s dependants could not be compensated.
Coida was one of the final pieces of legislation the apartheid government passed in 1993. The legislation sets out the legal requirements for tariffs, compensation and limitations for claims for workers who are injured, or who catch diseases at work. However, it explicitly excludes domestic workers from the scope of its protection.
Domestic workers perform household work in a private household and receives or is entitled to receive pay. This includes gardeners, cleaners, drivers, people who take care of children, the sick, elderly, and people with disabilities.
The fight for inclusion in Coida
Since the incident, various allies have worked with domestic workers to challenge the constitutionality of their exclusion from Coida. These allies were the South African Domestic Service and Allied Workers Union (Sadsawu), United Domestic Workers of South Africa (Udwosa), public interest law firm Wits Law Clinic and later the Socio-Economic Rights Institute (Seri).
South Africa ratified Convention 189 on June 16, 2013 which stipulated that the law had to include domestic workers in Coida within a year. If the amendments are adopted, domestic workers will be able to claim from the compensation fund if they are injured, contract a disease or die at work.
Then, in October 2018, the department of labour announced that the Coida Act will be amended to include domestic workers. The department closed the call for public participation on the bill in December 2018.
“The exclusion of domestic workers from Coida was essentially about the exclusion of and disregard for the value of domestic labour and the dignity and rights of workers, who are predominantly Black women,” Domestic Workers Rising said.
Co-founder of the Udwosa Pinky Mashiane agitated the case since the beginning. “Whilst we celebrate the inclusion of domestic workers in Coida, the journey is still long as we look toward a positive ruling on retrospectivity,” Mashiane said. This will ensure that past and present cases of injuries, including that of Mahlangu, would be able to claim over and above future cases. This is the next step in the case.
What next for the case?
Seri brought an application to compel the department of labour to amend section 1 of Coida to include domestic workers in 2015. The application also asked for enforcement mechanisms to be instituted to ensure that employers comply with Coida and other relevant labour legislation. Seri will further be arguing for the declaration of invalidity to be applied retrospectively in further court cases.
The first part of Seri’s litigation was for the exclusion of domestic workers from Coida to be declared unconstitutional, Seri researcher Kelebogile Khunou said in an interview with The Daily Vox. This victory was won on May 23.
“The second part was that the declaration of unconstitutionality needs to apply to domestic workers who have been injured or who have died in the last couple of years since the Act was promulgated. Now we want Coida to apply it retrospectively,” Khunou said. This will help cover people like Mahlangu, whose providers have died or been injured in the past. “That could be really groundbreaking if we win that,” she added.
But there are still some barriers before the rights of domestic workers can be realised. For starters, domestic work is still not seen as work. “This work is in the private household and is actually not seen as work. It’s very difficult for domestic workers to feel the effects of the legislation that covers them,” Khunou said.
Another barrier is that a huge part of realising the rights of domestic workers falls on the shoulders of employers, Khunou said.
The Unemployment Insurance Fund (UIF), for example, covers domestic workers but the number of domestic workers registered for UIF is negligible, she said. “Employers need to register their employees which they’re not doing. “If employers don’t register their domestic workers and contribute to the fund then the law will be rendered useless,” Khunou said.
The Constitutional Court will decide on the date of the next hearing.