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Victory for South Africa’s Domestic Workers

South Africa’s Constitutional Court has ruled that parts of the Compensation for Occupational Injuries and Diseases Act (Coida) are unconstitutional in that it excludes domestic workers employed in private households from the definition of ’employee’.

In a judgement handed down on Thursday (19 November), the court said that this effectively denies these domestic workers compensation in the event that they contract diseases or suffer disablement, injuries, or death in the course of their employment.

The ruling follows after the 2012 case of a domestic worker who was found dead in her employer’s pool.

The applicant, who was the daughter and sole dependent of the deceased, approached the Department of Labour for compensation for her mother’s death, but was informed that her mother did not qualify for Coida compensation.

The applicant, who was joined by the South African Domestic Service and Allied Workers Union (SADSAWU), initially approached the High court to have the Coida section declared unconstitutional under S9 (3) of the Constitution as it discriminated on the basis of race, sex, gender and social origin as it differed between domestic workers and other employees.

While the Department of Labour acknowledged that the section was unconstitutional, it contended that the matter should not head to court as it is currently being revised under new legislation.

The High Court had declared the sections unconstitutional, but the applicants sought further confirmation in the Constitutional Court.

In its main judgement, the Constitutional Court held that the exclusion of domestic workers from benefits under Coida has an egregious and stigmatising effect on their dignity.

The exclusion demonstrates the fact that not only are domestic workers undervalued, but their work is not considered real work: the kind performed by workers that do fall within the impugned section of the Coida, the court said.

It further found that the judgement should apply retrospectively given the ‘intersectional discrimination’.

Consequently, it ordered that the declaration of invalidity would have retrospective effect from 27 April 1994 to provide relief to other domestic workers who were injured or died at work prior to the granting of the order.

Government is currently in the process of amending the Coida to include the extension of coverage to domestic workers.

The Compensation for Occupational Injuries and Diseases Amendment Bill calls for the change to the definition of “employee” to end the exclusion of domestic employees.

This is the first major overhaul of the act which was passed in September 1993, and last amended in 1997.