The drowning of domestic worker Badanile Maria Mahlangu in her employer’s swimming pool in 2012 resulted in drawn out legal battles that ended with a court ruling that is a victory for all domestic workers.
Section 23 of the Constitution affords everyone, including domestic workers and precarious workers in general, the right to fair labour practices.
The legislative regime in South Africa can be described as generally supportive of the rights of domestic workers. The realisation of these rights require attention though, as demonstrated in a matter related to the protection of domestic workers against occupational injuries and diseases.
The case of Badanile Maria Mahlangu, who drowned in her employer’s swimming pool in 2012, highlighted a gap in Sectoral Determination 7 for domestic workers that dealt with protection against occupational injuries and diseases.
The employer, for whom Mahlangu had worked for 22 years, offered her daughter R2 500 in compensation.
The Department of Labour was unable to assist the family because domestic workers are not covered under the Compensation for Occupational Injuries and Diseases Act. Pinky Mashiane, a member of the South African Domestic Workers Union at the time, vowed to fight for the rights of Mahlangu.
Sylvia Mahlangu, daughter of the deceased, pursued the case in the High Court of South Africa, against the Minister of Labour, Department of Labour and the Compensation Commissioner with support from numerous organisations, changes in the legal team and most importantly an intensified advocacy campaign from domestic workers.
On Thursday 23 May 2019, the North Gauteng High Court, presided over by Judge President Justice Molopa, handed down a ruling that the exclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act is unconstitutional.
The Compensation for Occupational Injuries and Diseases Act defines an employee as
“a person who has entered into or works under a contract of service … with an employer …but does not include a domestic employee employed as such in a private household”.
It was argued as far back as 1997, that the exclusion of domestic workers from the scope of COIDA is unjustifiable in terms of the Constitution as well as the International Labour Organisation Convention 189 for domestic workers.
There have been many attempts since 2001 to advocate for the inclusion of domestic workers under the Compensation for Occupational Injuries and Diseases Act. The South African Law Reform Commission’s 2011 Report on legislation administered by the Department of Labour noted that the National Economic Development and Labour Council would need to advise Parliament on the matter of inclusion of domestic workers under the Compensation for Occupational Injuries and Diseases Act. To date there has been no evidence that the matter had ever been tabled at the National Economic Development and Labour Council.
The wheels of justice turn slowly, but they turn. Nine years later, there is a bittersweet victory for the Mahlangu family and a major victory for all domestic workers. The matter now rests with the 6th democratic Parliament of South Africa to promulgate the Bill, gazetted in November 2018, for amending the Compensation for Occupational Injuries and Diseases Act to cover domestic workers.
In the meantime, domestic workers under the banners of the South African Domestic Services and Allied Workers Union (aligned to the Congress of South African Trade Unions) and the United Domestic Workers of South Africa (aligned to the South African Federation of Trade Unions) have embarked on collective action to ensure that government authorities comply with the court rulings.
The Mahlangu case has galvanized domestic workers. On 17 October 2019 the High Court of South Africa, Gauteng Division ordered that the inclusion of domestic workers under the Compensation for Occupational Injuries and Diseases Act would have ‘immediate and retrospective effect upon confirmation of the orders by the Constitutional Court”. Badanile Maria Mahlangu did not die in vain.
The outcome of this case could be precedent setting for all precarious workers at a number of levels. Platform workers have much to learn from domestic workers in respect of organising for empowerment and implementation of rights. With a stronger voice, domestic workers have started a process of collective bargaining with government, mediated by the courts.
Awarding compensation for occupational injuries and diseases to domestic workers retrospectively and going forward could take many years before it sees the light of day, especially if left to government to ‘sort out’. Hence, domestic workers have vowed to lead the way in driving the process for ensuring adequate and appropriate coverage under the Compensation for Occupational Injuries and Diseases Act.
A victory for domestic workers, a victory for all workers.
This article was originally published in The Reporter on 27 October 2019.
About the author: Fairuz Mullagee is the coordinationar of the Social Law Project at the Faculty of Law at UWC. Read more