Why the ConCourt case for domestic workers is so important - for employers too

In May last year, the High Court in Pretoria made a landmark ruling that could change the lives of over one million domestic workers in South Africa.

That judgment allows housekeepers, gardeners, and handymen who work for employers at their homes to be able to claim from the Compensation Fund under the Department of Labour should they be injured while on duty.

But this ruling will only come into effect once the Constitutional Court cements the decision by ordering Parliament to amend the Compensation for Occupational Injuries and Diseases Act (COIDA) to include domestic workers.

The highest court in the land began hearing that case on Tuesday.

Maria Mahlangu, a domestic worker who was partially blind and worked for the De Clerq family for 22 years, was cleaning windows outside the house close to the pool on 31 March 2012. She fell from the ladder she was standing on, and into the pool, which was uncovered and had no fence at the time. Mahlangu could not swim, and drowned. Her body was found by her employer hours later.

Court papers state that Mr De Clerq was working in a different part of the house at the time of her death. In the same court papers, Mahalangu’s daughter, Sylvia Bongi, says when she went back to the home the next month to perform cultural rites, the De Clerq’s said they wouldn’t be attending her funeral as “they were scared that the black people would kill them, believing that they might have killed my mother”. According to the affidavit, Sylvia left the home with less than R5,000 from the family.

Sylvia has a child of her own, and both were dependent on Mahlangu. When the destitute woman approached the Department of Labour to receive compensation, she was informed that she could not receive compensation, and also could not get any unemployment insurance benefits, which would usually be covered by COIDA. COIDA expressly excludes domestic workers from the definition of "employee".

The Socio-Economic Rights Institute (SERI) acted on behalf of Mahlangu, along with the the South African Domestic Service and Allied Workers Union (SADSAWU). Together, they asked the court to compel the Labour Department to amend COIDA to include domestic workers, and to ensure “enforcement measures”, according to SERI, that ensure employers comply. The Labour Minister in 2018 proposed amendments to the law to include domestic workers. But the 2019 case was still significant, asking for the amendments to be made retrospectively.

If the Constitutional Court enforces the High Court ruling, employers would have to pay a portion of workers' pay packages towards the Compensation Fund each month, which the employee can claim from in the case of injury or disease.

According to the Solidarity Centre's report titled 'When the job hurts: workplace injuries and disease among South Africa's domestic workers', domestic workers reported injuries that included lacerations, major cuts or stab wounds, skin damage, brain tumours, high blood pressure, head injuries, miscarriage, death, blindness, deafness and attempted rape.

The report investigated the incidence of occupational injury and illness among domestic workers in South Africa. It included a series of case studies showing the nature, consequences and context of injury and diseases that domestic workers in South Africa are exposed to on the job. It surveyed 60 respondents out over 90,000 participants on WhatsApp and Facebook. Of the 60, five were men.

READ: When the job hurts: workplace injuries and disease among South Africa's domestic workers

When the Job Hurts Report by Janice Healing on Scribd

The stories include people who had been fired after being declared ill by a doctor, and told to only do "light work".

One woman, Buhle, whose story was told via her brother, died after years of being subjected to emotionally abusive behaviour by her employer, according to him. He said she was emotionally and psychologically stressed, and this was compounded by her low wages. She was hospitalised for work-related stress, but died there, he told the researchers.

The report stated that "injured domestic workers were reluctant to report their cases for fear of reprisal".

"Several respondents preferred to 'remain silent' for fear of reprisals such as losing jobs... Some injured workers reported unfair dismissal subsequent to their injury," the report stated.

But a key factor remained that domestic workers covered by COIDA were unable to access the claims process, telling Solidarity Centre that they were unable to get time off work to pursue their cases or that documentation and proving the allegations was "prohibitively expensive". In the case of Sylvia's, it has proven true.

Sylvia's case continues in the Constitutional Court.