Constitutional challenge - COIDA - High Court - Pretoria
SERI represents Sylvia Mahlangu, the daughter and sole dependent of a Maria Mahlangu, a domestic worker who died in her employers home, in an application challenging the constitutionality of section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") to the extent that it excludes domestic workers employed in private households from the definition of "employee". COIDA provides for employees to claim compensation from the Compensation Fund for injuries, illensses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases. COIDA therefore creates a social insurance system in terms of which employers pay a certain percentage of their employees wages into the Compensation Fund each month, which employees or their dependents can claim from in the case of sustaining occupations injuries, illnesses or in the event of death. COIDA expressly excludes domestic workers from the definition of "employee".
Ms Mahlangu is the daughter and sole dependent of Maria Mahlangu, a domestic worker, who on the morning of 31 March 2012, died at her employer’s home in Faerie Glen, Pretoria. It is alleged that Maria, who was partially blind, was washing the top windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool which was unfenced and uncovered at the time. Maria could not swim and drowned. Her body was discovered hours later by her employer, who had been present in the home at the time of the incident.
Ms Mahlangu later approached the Department of Labour to enquire on getting compensation for the death of her mother. She was informed by the Department of Labour that she could neither get any compensation or unemployment insurance benefits for her loss which are ordinarily covered by COIDA. SERI, on behalf of Ms Mahlangu, with the South African Domestic Service and Allied Workers Union (SADSAWU) as the second applicant, brought an application to compel the Department of Labour to amend section 1 of COIDA to include domestic workers, and to put effective enforcement mechanisms in place to ensure that employers comply with COIDA and other relevant labour legislation. Further, SERI argued that a declaration of invalidity must be applied retrospectively to provide relief to Ms Mahlangu who has brought the application or other domestic workers who were injured or died at work prior to the granting of the order.
On 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers from COIDA as unconstitutional. On 17 October 2019, the North Gauteng High Court handed down a second order declaring that the declaration of invalidity must be applied retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order. On 6 November 2019, SERI, on behalf of Ms Mahlangu submitted an application for confirmation with the Constitutional Court. The matter was heard on 10 March 2020 in the Constitutional Court. Judgment was reserved.