South African Domestic Workers – no longer invisible: The Constitutional Court “is listening “in Mahlangu v Minister of Labour and Others
By Ziona Tanzer
In November 2020, the South African Constitutional Court passed a historic judgment recognizing that injury and illness arising from work as a domestic worker in a private home is no different to that occurring in other workplaces, and equally deserving of compensation. Yet, the significance of the judgment goes further than recognizing the occupational hazards in the home; it gives recognition to the broader harm wrought by the invisibility of gendered, racialized work in the privacy of homes in the context of post-colonial and post-Apartheid South Africa.
In the case of Mahlangu and Another v Minister of Labour and Others,[1] the South African Domestic Workers Union (SADSAWU) challenged the constitutionality of provisions of the Compensation for Occupational Injury and Illness Act (COIDA), which precludes domestic workers employed in private homes from claiming compensation from the Compensation Fund in cases of illness, injury, disablement or death at work. The Constitutional Court agreed that this exclusion violates rights to social security, equality and dignity, and it made this finding retroactively applicable from 1994, the date the Constitution was enacted. In so doing, the Court took the opportunity to articulate a theory of intersectional discrimination and move forward its own jurisprudence on indirect discrimination, as well as infusing its socio-economic rights, dignity and retrospective application with an intersectional analysis. It also reframes the narrative on domestic workers: no longer invisible but “unsung heroines in this country and globally”. [2]
This post describes (1) the background to the Mahlangu litigation; (2) global and local advocacy to support the case; and (3) outlines the Constitutional Court judgment.
- Background to Litigation
The facts of the case center on Ms Maria Mahlangu, who was employed as a domestic worker in a private house for 22 years. It was alleged in the case that she was partially blind and could not swim.[3] In March 2012, she fell into her employer’s swimming pool and drowned in the course of her duties as a domestic worker. Although the employer was home at the time, she maintained that she heard no sounds of struggle. Her dependent daughter approached the Department of Labour to get compensation and was advised that she was precluded from doing so under COIDA. Then SADSAWU organizer, Pinky Mashiane read about the drowning in a newspaper and approached the family to see how she could assist.[4]
In 2013, the legal department of the Solidarity Center embarked on a research project under a USAID grant on Domestic Workers and Socio-Economic Rights, in which it explored different paradigms for conceptualizing domestic worker rights under the ICESCR and the ILO[5]. The paper culminated in a list of domestic worker issues requiring urgent law reform: Top of this list was inclusion of domestic workers in COIDA. It was fortuitous that Solidarity Center were looking for a litigant to challenge COIDA’s constitutionality, at the same time Pinky Mashiane – after having been turned down by multiple lawyers and law centers – was looking for a remedy to assist the family of the late Maria Mahlangu. And so, Solidarity Center approached lawyers in South Africa as well as SADSAWU leadership with the proposal to litigate this case in constitutional terms and to provide financial support for the litigation.[6] Beginning in 2015, the case wound its way through the South African court system and was ably litigated before the Constitutional Court by lawyers from the Social and Economic Rights Institute (SERI).[7]
Initially, the government respondents opposed the application, arguing that the legislature and not the court was the appropriate institution to address the issue, and further that efforts were underway to legislatively amend COIDA to include domestic workers. Indeed, the issue has been on the agenda since 2001, without legislative reform ever being passed.[8] After, the respondents conceded the unconstitutionality of the exclusion, the question of retrospective operation, remained opposed, with the respondent asserting that there would be a floodgate of claims if it retrospective claims were permitted. In the High Court case of May 2019, the respondent conceded both points and the court made the agreement a court order.[9]
- Sustained Global and Local Advocacy
The case also benefitted from sustained advocacy at global and local levels Solidarity Center and partners brough the issue of domestic workers’ exclusion from COIDA before the United Nations Committee on Economic, Social and Cultural Rights, which was considering South Africa’s compliance with treaty obligations, for the first time in 2019.[10] In its concluding observations, cited in the CC decision, the Committee recommended that SA include domestic workers in COIDA. Similarly, in the early stages of litigation, the amicus, the Gender Commission expressed frustration at the almost complete absence of information on the types of injuries and illness arising in the context of domestic work in private homes. To this end, Solidarity Center commissioned qualitative research consisting of in depth interviews with domestic workers around the country, describing the types of injury and illness occurring in the context of the home.[11] The paper was widely reported on in South African media. After the Covid 19 pandemic broke out, which had severe consequences for domestic workers, domestic worker unions and partners also put together a petition to try and propel the legislature to move forward with the inclusion of domestic workers in COIDA.[12] Most significantly, at each of the numerous court hearings, the domestic worker unions and groups maintained a constant presence at the court, and in the media, insisting that the death of Ms Mahlangu not be in vain. [13]
- The Constitutional Court Decision
The Constitutional Court judgment gives a central role to international law, and quickly establishes that “in assessing discrimination against a group or class of women of this magnitude that a broad national and international approach be adopted in the discourse affecting domestic workers. “[14] It continues, that, under international law conventions, such as ICESCR, the exclusion of domestic workers from COIDA is inexplicable. The court makes reference to the finding by the Committee on Economic, Social and Cultural Rights that domestic workers often labor under exploitative conditions and the Committee recommendation that South Africa strengthen the legislative framework applicable to domestic workers by extending the benefits of COIDA to this class of workers.[15]
The Right to Social Security: The majority judgment finds that COIDA is a form of social security which must be understood within the framework of section 27 of the constitution and its objective to achieve substantive equality. This is because the inability to work and or the loss of support after the death of a breadwinner as a result of the exclusion from COIDA, traps domestic workers and their dependents in cycles of poverty. In determining whether this exclusion is reasonable, the court needs to determine whether that policy takes into account the needs of the most vulnerable members of society; and if it does not, it would fail the test of reasonableness.[16] The court sees this reasonableness enquiry as necessarily contextual since “the social security legislation serves a remedial purpose: namely undoing the gendered and racialized system of poverty inherited from South Africa’s colonial and apartheid past.”[17] In considering those who are most vulnerable or in need, a court should take cognizance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds. The court finds that there is no legitimate objective to the exclusion, and if anything, their exclusion has a significant stigmatizing effect which entrenches patterns of disadvantage.
Non-discrimination and Equality: This case could be easily disposed on grounds of direct discrimination, since the majority finds the exclusion serves no rational purpose and is arbitrary and constitutionally invalid. However, it decides that “in light of the unique circumstances of domestic workers, this case provides an unprecedented opportunity to expressly consider the application of 9(3) through the framework of intersectionality.”[18] Consequently, it proceeds to explain that the particular differentiation also constitutes indirect discrimination, because “domestic worker are predominantly black women …and discrimination against them constitutes indirect discrimination on the basis of race, sex and gender.” The Court goes on to find that discrimination on the grounds of race, gender and sex are not only presumptively unfair “but the level of discrimination is aggravated”. [19]
The court takes the opportunity to articulate and apply a theory of intersectionality, which allows it to consider the social structures that shape the experience of marginalization, including the convergence of sexism, racism and class stratification.[20] This requires an examination of the “nature and context of the individual or group at issue, their history, as well as the social and legal history of society’s treatment of that group”.[21] ‘The court views the unravelling the multiple layers of discrimination as a tool which will enable “a decisive break from the past towards the establishment of a democratic, compassionate and truly egalitarian society.”[22]
Viewed historically, the racial hierarchy established by apartheid placed Black women at the bottom of the social hierarchy which often required them to do the “least skilled, lowest paid and most insecure jobs”[23]. Domestic workers, the majority of whom are-Black women, were denied both a family life and social life; lived in poor conditions devoting more time to caring for the children of their employers, than their own. [24]The court explains that domestic work is still the third largest employer of women in the country and the marginalization has continued, since “much like their apartheid counterparts… Domestic workers remain shackled by poverty, because the salaries they earn are low and not nearly enough to take care of all their daily needs and those of their families…” [25]
As a result of the analyses the court finds that domestic workers are a category of worker that have been “lamentably been left out and rendered invisible. Their lived experiences have gone unrecognized.”[26] It concludes that they “critically vulnerable group of workers,” and declaring the section of COIDA invalid will fulfil the transformative mandate set out by our Constitution, at both an individual and group-based level”. [27]
Dignity: The judge finds that the exclusion violates their right to dignity because domestic work is undervalued precisely because it is poor Black women who perform the work, and the exclusion from COIDA reflects gendered and patriarchal values which determine what counts as real work. Further, the “often exploitative relationship between domestic workers and their employers is also relevant to the dignity enquiry in that it demonstrates how the labor of domestic workers has been commodified and how they have been objectified to that end.”[28] This the judge finds to be contrary to the Constitutional commitment to human dignity which “prohibits the idea that people can be reduced to objects and treated as a means to achieve an end”.[29]
Justification and Remedy: Although the state no longer sought to justify these constitutional violations, the court finds that the respondents have put up little evidence of financial and administrative burdens and “the fact that case concerns intersectional discrimination is a relevant factor in determining whether a retrospective order should be granted”.[30] With this the court dismisses any argument that the state is unable to include domestic workers based on a lack of available resources, and makes the order backdated to 27 April 1994, when the interim constitution was enacted.[31]The majority judgment concludes that the invalidation of the relevant sections of COIDA “will contribute significantly towards repairing the pain and indignity suffered by domestic workers…and will hopefully have a transformative effect in other areas of their lives…”
Conclusion: When Solidarity Center initially proposed constitutional impact litigation on COIDA, it was with the hope that a successful outcome in this case would serve three purposes; (1) obtain much needed relief for domestic workers who were outside of COIDA’s purview; (2) strengthen the domestic worker unions and (3) create an important precedent that would lay the foundation for a jurisprudence on domestic workers that could serve as a global marker.
Mahlangu will clearly achieve (1) in that it removes the legal obstacle to domestic workers claiming compensation, with immediate and retrospective effect. [32] With respect to (2) the long road to Mahlangu has also strengthened a growing coalition of unions and NGO’s who have articulated their claims effectively in all forms of media. The fact that after 26 years of democracy, Mahlangu is the first case brought by the domestic worker union to the apex Court of the South African judiciary and guardian of constitutional values, is itself a significant milestone.
Yet, it is perhaps in (3) that the greatest import of Mahlangu might lie. Using international human rights norms as a reference point, the court establishes an approach and a discourse on domestic workers as a category, which stands to have import for domestic workers in South Africa and beyond. It re-asserts the goals of transformative constitutionalism as “undoing gendered and racialized poverty” and insists that an intersectional and historic lens is essential to the achievement of structural and systematic transformation.[33] Indeed, the adoption of a historical lens allows the Court to reframe the narrative of domestic workers and their place in this constitutional democracy: no longer invisible, silent and powerless, but the bedrock of South Africa, whose vindicated rights are “central to our transformative constitutional project.” This reframing is captured powerfully and eloquently in the concurring judgment of Mhlantla who asserts that these Black women are “brave, creative and smart,” mothers and caretakers working in psychologically and physically challenging environment; and “survivors of a system that contains remnants of our colonial and apartheid past.”[34] She concludes with what may be the swan song of the judgment: “On the contrary, they have a voice”[35]and according to Justice Mhlanthla (as well as the substance of majority judgment), the Constitutional Court is “listening”.[36]
[1] http://www.saflii.org/za/cases/ZACC/2020/24.html
[2] Para 1 of the judgment, “Domestic workers are the unsung heroines in this country and globally”.
[3] Para 7 o
[4] https://headtopics.com/za/pinky-s-promise-domestic-workers-will-rise-up-8294104.Pinky Mashiane is currently the founder and president of the United Domestic Workers of South Africa (UDWOSA)
[5] https://www.solidaritycenter.org/wp-content/uploads/2014/11/South-Africa.Domestic-Worker-and-Socio-Econ-Rights.WIEGO-.2014.pdf
[6] The financial support was provided by the National Endowment for Democracy (NED)
[7] https://www.seri-sa.org/index.php/19-litigation/case-entries/846-mahlangu-coida-constitutional-challenge-sylvia-bongi-mahlangu-v-the-minister-of-labour
[8] https://www.seri-sa.org/index.php/19-litigation/case-entries/846-mahlangu-coida-constitutional-challenge-sylvia-bongi-mahlangu-v-the-minister-of-labour
[9] The court it failed to provide reasons for its decision, which was criticized by the Constitutional Court.
[10]https://mail.google.com/mail/u/1/#inbox/FMfcgxwKjfDJhZXgZsHbLxLnLRdKQDGf?projector=1&messagePartId=0.1
[11] https://www.solidaritycenter.org/wp-content/uploads/2020/01/Rule-of-Law.When-the-Job-Hurts-Workplace-Injury-and-Disease-among-South-Africas-Domestic-Workers.1.20.pdf
[12] https://www.change.org/p/the-minister-of-employment-and-labour-to-introduce-compensation-for-occupational-injuries-and-deseases-coida-to-include-domestic-workers-in-the-protection
[13] For example, https://www.csmonitor.com/World/Africa/2019/1218/The-backbone-of-this-economy-Fighting-for-housekeepers-rights-in-South-Africa; https://www.newframe.com/pinky-mashianes-fight-for-all-domestic-workers/;
[14] Para 42. Since under Section 39(1)(b) the Constitution requires the Court to have regard to international law when interpreting the Bill of Rights
[15] Para 44.
[16] The Court quotes the Grootboom decision, which sets out that a law or policy that fails to take into account the most vulnerable members of society and those in most desperate need, would not be considered reasonable.
[17] Para 63
[18] Para 75
[19] Para 73
[20] Para 102. However, the Court is clear that there is nothing foreign about the concept of intersectional discrimination in South African constitutional jurisprudence (para 76).
[21] Para 95
[22] Para 97
[23] Para 99; para 102
[24] and which is the third largest employer of women in the country,
[25] Para 104
[26] Para 103
[27] Para 106
[28] Para 113
[29] Para 120. In a dissenting judgment, Judge Jafta finds that the exclusion of domestic workers working in private homes from COIDA violates the tight to equality and nondiscrimination, because it has no rational relationship to a legitimate government purpose; he disagrees that the exclusion violates dignity, because they are not excluded on the basis of human attributes, “but on the grounds of occupation.”
[30] Para 128
[31] Para 118.
[32] However, since the Constitutional Court did not invalidate the sections of COIDA setting out time constraints for claims, it is not clear how retrospective claims will be able to meet these timelines.
[33] Accordingly, a policy that does not take into account the needs of those who fall under the intersection of compounded vulnerabilities due to intersecting oppression, would not satisfy a reasonableness inquiry; similarly, indirect discrimination on the basis of race, sex and gender, is not only presumptively unfair, but also “aggravated.”
[34] Para 195
[35] Para 195
[36] Para 195
