Picture: THE TIMES/ALON SKUY
Picture: THE TIMES/ALON SKUY

The Constitutional Court justices have criticised orders by a lower court on legislation governing domestic work, describing them as “drastic” and scant on detail.

They also questioned whether the government could afford to pay retrospective claims by domestic workers who were injured or died at work.

On Tuesday, SA’s highest court heard an application for confirmation of orders delivered by the high court in Pretoria in May 2019 and October 2019.

The high court declared a section of the Compensation for Occupational Injuries and Diseases Act (Coida) 130 of 1993 constitutionally invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”.

In October, the same court further ruled that the declaration of invalidity must be applied “retrospectively” to provide relief to domestic workers who were injured or died at work before the granting of the order.

This came after Sylvia Mahlangu, the surviving daughter of deceased domestic worker Maria Badanile Mahlangu, successfully challenged the exclusion of domestic workers from Coida at the high court.

Maria Mahlangu worked for the De Clercq family for 22 years. On March 31 2012, she drowned in her employer’s pool during the execution of her duties. The De Clercqs offered the bereaved family less than R5,000, prompting Sylvia to approach the department of employment and labour to lodge a grievance.

However, the department advised her that she was not entitled to any compensation as a result of her mother’s death, leading to her mounting a legal challenge on the constitutionality of the act.

On behalf of Sylvia and the SA Domestic Service and Allied Workers Union (Sadsawu), the Socio-Economic Rights Institute of SA (Seri) approached the top court to confirm the two orders granted by the high court in 2019.

On Tuesday, the justices locked horns with the legal representatives of the domestic workers, while taking potshots at the orders granted by the Pretoria high court in 2019.

At issue was whether the Constitutional Court's declaratory order should be retrospective and whether the Compensation Fund could afford that. The top court also wanted to make sure the process was foolproof.

Advocate Kgomotso Moroka SC, representing the domestic workers union, argued that Coida did not pass the provisions of the constitution and “has no place” in a democratic society.

Moroka said they were in the Constitutional Court to defend the right of domestic workers to claim from the Compensation Fund in the event of an injury from work.

Justice Chris Jafta wanted to know how a Compensation Fund commissioner would determine the veracity of a claim for something that happened 15 years ago. “That's my worry,” he said, adding that this could open the flood gates for fraudulent claims against the fund.

Jafta also criticised the high court's orders, saying: “The order doesn’t tell us which sections of Coida are inconsistent with the constitution. I think the high court order should have given us a summary of reasons why certain provisions of Coida are inconsistent with the Constitution ... We can’t be in a court of first instance.”

Justice Zukisa Tshiqi described the order as “drastic”, while chief justice Mogoeng Mogoeng wanted to know if their declaratory order would be enforceable, and whether there resources would be adequate for that.

“Can we rest assured that ... should domestic claimants lodge claims [against Compensation Fund] they should have nothing to worry about on the state’s ability to pay?” Mogoeng asked.

The domestic workers' representatives told the Constitutional Court that the government would have to pay and “if there are no available funds the state will have to approach the Treasury”.

Mogoeng reserved judgment.

mkentanel@businesslive.co.za