Labour department ready to pay domestic workers’ compensation claims, court told

Constitutional Court hears argument on Compensation for Occupational Injuries and Diseases Act

Domestic workers demonstrated outside the Constitutional Court, which was hearing argument on whether the law excluding them from workers’ compensation was unconstitutional.
Image: GroundUp/Zoë Postman

The department of employment & labour is ready to pay compensation for injuries, illness and death at work to domestic workers, the department told the Constitutional Court on Tuesday.

The court has been asked to rule on whether parts of the Compensation for Occupational Injuries and Diseases Act (Coida), which exclude domestic workers from claiming from the Compensation Fund, are unconstitutional.

The case was taken to court by Bongi Mahlangu, daughter of Maria Mahlangu, a domestic worker who drowned in her employer’s swimming pool in March 2012, while on duty.

When Mahlangu approached the department of employment & labour to inquire whether she could claim compensation, she was informed that because her mother was a domestic worker, she was not entitled to claim.

Mahlangu, with the Social Economic Rights Institute (Seri) and the South African Domestic Service and Allied Workers Union (Sadsawu]), took the matter to the Pretoria high court, which ruled in May 2019 that the legislation that excluded domestic workers was unconstitutional because it violated their rights to equality, dignity and access to social security. In October, the court ruled that the declaration of invalidity must be applied retrospectively.

Seri sought to get both orders confirmed by the Constitutional Court. The department of employment & labour did not oppose the application.

Justice Nonkosi Mhlantla raised concerns about the financial effect of a retrospective judgment on the Compensation Fund. However, advocate Kgomotso Moroka, representing the applicants, said the department of employment & labour had not provided sufficient evidence that there would be a significant financial impact on the fund which could lead to claims not being paid.

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