The Constitutional Court, in the case of Mahlangu and Another v Minister of Labour and Others  ZACC 24], has declared that parts of the Compensation for Occupational Injuries and Diseases Act (COIDA) are unconstitutional as they exclude domestic workers from the definition of ‘employee’. Section 12(1) of our Constitution confers the right to the security of the person and freedom from violence on ‘everyone’. The existing statutory provisions specifically exclude domestic employees employed in private households from being able to claim in terms of COIDA. COIDA partially contributes to our country’s social security system. ‘Unfortunately, 26 years into our democracy and despite the constitutional promise and aspirational expectations, in the event of injury, disablement, or death at the workplace, domestic workers do not enjoy the protection under COIDA’ (directly from the judgement) .
The case considered the constitutionality of whether Following Ms Mahlangu’s death, her daughter, 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 could neither get compensation under COIDA, nor could she get unemployment insurance benefits for her loss which would ordinarily be covered by COIDA.
The Court found that the provisions precluding domestic workers and their dependants from claiming for work-related injuries, disablement or death was an unjustifiable violation of domestic workers’ rights. These provisions infringed upon domestic workers’ rights to equality and dignity as enshrined in the Constitution. This judgement by the Constitutional Court (19th November 2020) has not only opened the way for future claims but also retrospective claims from the 27 April 1994.
It was stated in the judgement that the court hoped the decision would “… contribute towards the amelioration of systemic disadvantage suffered [by domestic workers] and contribute to breaking the cycle of poverty they suffer”.
What does this judgement mean for me?
If you employ a domestic worker then you will need to contribute to the Unemployment Insurance Fund (UIF) and register for and pay towards the Compensation Fund to ensure your domestic employee(s) are covered. Employers may not deduct this fee from their employee’s wages. There are penalties for failing to make the regulated contributions. If no contributions are made the employee will be precluded from claiming.
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