In a judgment hailed as a victory for domestic workers, the Constitutional Court has confirmed a lower court’s order that a piece of legislation is constitutionally invalid on the grounds that it excludes them from the definition of an employee.

This means employers will have to pay Compensation Fund contributions for their domestic workers, on top of the national minimum wage of R15.57 per hour, along with  Unemployment Insurance Fund contributions that employers already pay for their domestic workers.

The high court in Pretoria ruled in 2019 that a section of the Compensation for Occupational Injuries and Disease Act was constitutionally invalid and that domestic workers must be able to apply to the fund retrospectively, with effect from April 27 1994.

This was after Sylvia Mahlangu, the surviving daughter of deceased domestic worker Maria Badanile Mahlangu, approached the court to challenge the constitutionality of the legislation. The employment & labour department had told her she was not entitled to any compensation as a result of her mother's death.

In a majority judgment penned by acting justice Margie Victor, the Constitutional Court said the exclusion of domestic workers from the protections under the act had resulted in a situation where they “have for decades into our democracy, had to bear work-related injuries or death without compensation”.

“They are a category of workers that have been lamentably left out and been rendered invisible. Their lived experiences have gone unrecognised. It took the tragic death of Ms Mahlangu to bring this egregious form of discrimination into vivid focus.”

Pinky Mashiane, president of the United Domestic Workers of SA, hailed the victory as one for all domestic workers. “What this means is that all domestic workers in SA, beginning from April 27 1994, are now eligible to claim from the Compensation Fund for injury on duty.”



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