Groundbreaking ruling for Domestic workers
Thewoman whose application to the Constitutional Court led to a groundbreaking judgment granting domestic workers the right to claim for injuries in the workplace believes it was the spirit of her late mother that gave her the courage to fight it.
Yesterday, the Constitutional Court delivered a historic judgmentwhich upheld a Pretoria high court decision that found the section of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (Coida) which deals with the definition of employees was unconstitutional.
But the apex court did not end there, it also opened a new era where domestic workers who were injured on duty after April 27 1994 can now also claim for compensation through the act.
It was the death of Maria Mahlangu that started the legal battle that ended in the ConCourt yesterday.
Mahlangu slipped and fell at her employer’s home and drowned in 2012.
Her body was found floating in the swimming pool hours later by her employer, who had been present in the home at the time of the incident but asserts that he heard no sounds of a struggle. Her daughter Sylvia Mahlangu approached the department of labour to enquire about getting compensation for her mother’s death.
She was informed that she could not receive any compensation because Coida did not cover domestic workers. With the help of Pinky Mashiane, who was the organiser in the SA Domestic Workers and Allied Workers Union then, Mahlangu sought help for her mother in the courts.
Yesterday, Mahlangu rejoiced when acting justice Margie Victor delivered the judgment that now paves the way for domestic workers to claim for compensation.
I am so happy. It has been a long journey. I think that where my mother is, she is proudof me. I amsure that everywhere we went she was present, ever with us. She fought for us,” she said.
Mahlangu said she still remembered the day when she was informed by the department of labour that she could not be compensated for her mother’s death. “I was with sisi Pinky and it was painful but in my heart I had a feeling that I should not quit. Something refused inside of me that I should let go and not fight. I told myself that I should fight until the end for my mom.”
Handing down the judgment, Victor said there was no legitimate objective in excluding domestic workers from Coida.
If anything, their exclusion has significant effect which entrenches patterns of disadvantage based on race, sex and gender Domestic workers despite the advent of our constitutional dispensation – remain severely exploited, undermined and devalued as a result of their lived experiences at intersecting axes of discrimination. Yet, these black women are survivors of a system that contains remnants of our colonial and apartheid past,” Victor said.
Mashiane, who has now founded United Domestic Workers of SA, said she learnt about Maria’s death from an article in a newspaper.
Even though I knew little about law, I knew that somethingwasnot right aboutwhat had happened,” said Mashiane. In 2014, Mashiane met attorney Thulani Nkosi, who was with the Wits Law Clinic, and helped her take the matter to court.
The Commission for Gender Equality also welcomed the ruling, saying “it affirms the rights of domestic workers”.
Compensation Fund commissioner Vuyo Mafata said it was difficult to tell whether or not the fund will be able to handle the claims.
“At this stage we don’t know how the volumes are going to be like. In the event that the volumes are excessive, we’ll have to source additional capacity. For now we can handle any claims that come through, ” Mafata said.
For the domestic worker that will be submitting a claim, the employer will have to register to enable us to process the claim. One other challenge will be the issue of availability of documentation. We need the medical reports to be able to make a determination on the claim.”
I think that where my mother is, she is proud of me