CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 306/19
In the matter between:
SYLVIA BONGI MAHLANGU First Applicant
SOUTH AFRICAN DOMESTIC SERVICE AND ALLIED
WORKERS UNION Second Applicant
and
MINISTER OF LABOUR First Respondent
DIRECTOR-GENERAL FOR THE DEPARTMENT OF
LABOUR Second Respondent
ACTING COMPENSATION COMMISSIONER Third Respondent
and
COMMISSION FOR GENDER EQUALITY First Amicus Curiae
WOMEN’S LEGAL CENTRE TRUST Second Amicus Curiae
Neutral citation: Mahlangu and Another v Minister of Labour and Others [2020]
ZACC 24
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Victor AJ (majority): [1] to [131]
Jafta J (dissenting): [132] to [182]
Mhlantla J (concurring): [183] to [196]
Heard on: 10 March 2020
Decided on: 19 November 2020
Summary: Compensation for Occupational Injuries and Diseases Act
130 of 1993 — constitutionality of section 1(xix)(v) — provision
is unconstitutional
ORDER
On application for confirmation of an order of constitutional invalidity granted by the
High Court of South Africa, Gauteng Division, Pretoria:
1. The declaration of constitutional invalidity of section 1(xix)(v) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
made by the High Court of South Africa, Gauteng Division, Pretoria is
confirmed.
2. The order is to have immediate and retrospecti ve effect from
27 April 1994.
3. The first respondent must pay the applicants’ costs in this Court.
JUDGMENT
VICTOR AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, T heron J, Tshiqi J
concurring):
VICTOR AJ
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Introduction
Domestic workers are the unsung heroines in this country and globally. They
are a powerful group of women 1 whose profession enables all economically active
members of society to prosper and pursue their careers. Given the nature of their work,
their relationships with their own children and family members are compromised, while
we pursue our career goals with peace of mind, knowing that our children , our elderly
family members and our households are well taken care of.
Many domestic workers are breadwinners in their families who put children
through school and food on the table through their hard work . In some cases, they are
responsible for the upbringing of children in multiple families and may be the only
loving figure in the lives of a number of children. Their salaries are often too low to
maintain a decent living standard but by exceptional, if not inexplicable effort, they
succeed. Sadly, d espite these herculean efforts, domestic work as a profession is
undervalued and unrecognised; even though they play a central role in our society.2
At issue here is social security for domestic workers. The cornerstone of any
young democracy is a comprehensive social security system, particularly for the most
vulnerable members of society. Although passed before the advent of our constitutional
democracy, the Compensation for Occupational Injuries and Diseases Act3 (COIDA)
partially contributes to our country’s social security system. Unfortunately, 26 years
into our democracy and despite the constitutional promise and aspirational expectations,
in the event of injury, disablement, or death at the workplace, domestic workers do not
enjoy the protection under COIDA.4 By stark contrast, all other employees are.
1 In a report by the Interna tional Labour Organisation titled Domestic Workers Across the World: Global and
Regional Statistics and the Extent of the Legal Protection (2013) (ILO Report) it points out that in South Africa,
more than three quarters of domestic workers are women.
2 See further Clarke “Domestic Work, Joy or Pain? Problems and Solution of the Workers” (2002) 51 Social and
Economic Studies: Vulnerability and Coping Strategies 153.
3 130 of 1993. COIDA was enacted on 24 September 1993 and commenced on 1 March 1994.
4 This despite there being an opportunity to bring COIDA in line with the Constitution. T he South African Law
Reform Commission (Law Reform Commission) published a report in which it detailed the outcome of its review
of national legislation with a view to align it with the right to equality entrenched in section 9 of the Constitution.
VICTOR AJ
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Section 1 of our Constitution, which sets out our founding values, provides that:
“The Republic of South Africa is one sovereign , democratic state founded on the
following values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms;
(b) Non-racialism and non-sexism.”5
Arising from the founding values, o ne of the aims of the Constitution is to heal
the divisions of the past, improve the quality of life of all citizens and free the potential
of each person.6 Unfortunately domestic workers have not basked in the fulfilment of
this constitutional promise. Instead, their fate has been blighted as a result of being
excluded from statutory protections.
This Court is required to consider the con stitutionality of section 1(xix)(v) of
COIDA, which expressly excludes domestic workers from the definition of an
“employee”, thus excluding them from the social security benefits provided for under
COIDA.7 This case turns on the social security system enshrined in section 27(1)(c) of
Despite the Law Reform Commission’s mandate, it unfortunately left in place this m ost egregious exclusion of
domestic workers from the definition of “employee” in COIDA. The reason for this exclusion was ascribed to
policy considerations and that this “ exclusion is not necessarily discriminatory or unfair ”. It vaguely promised
that sometime in the future a review of the exclusion of domestic workers would be considered.
5 Section 1(a) and (b) of the Constitution.
6 Preamble of the Constitution. Notably this Court has stressed that this principle in the Preamble imposes a
constitutional obligation to eradicate all systems of subordination and oppression inherited from South Africa’s
colonial and apartheid past. In Tshwane City v Afriforum [2016] ZACC 19; 2016 (6) SA 279 (CC ); 2016 (9)
BCLR 1133 (CC) at para 8 this Court remarked on this obligation as follows:
“As a people who were not only acutely divided but were also at war with themselves primarily
on the basis of race, one of several self-imposed obligations is healing the divisions of the past.
The effects of the system of racial, ethnic and tribal stratification of the past must thus be
destroyed and buried permanently. But the healing process will not even begin until we all
make an effort to connect with the profound benefits of change. We also need to take steps to
breathe life into the underlying philosophy and constitutional vision we have crafted for our
collective good and for the good of posterity.”
7 Section 1 of COIDA defines an “employee” as follows:
“‘employee’ means a person who has entered into or works under a contract of service or of
apprenticeship or learnership, with an employer, whether the contract is express or implied, oral
VICTOR AJ
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the Constitution and its application to domestic workers who are not currently protected
in the event of injury, disablement or death in the workplace. In addition, the rights to
equality and dignity are also at the heart of this matter.
Background
Ms Mahlangu was employed as a domestic worker in a private home at the time
of her death. She was employed by the same family for 22 years in Faerie Glen,
Pretoria. On the morning of 31 March 2012, Ms Mahlangu drowned in her employer’s
pool in the course of executin g her duties . Her body was found floating in the
swimming pool by her employer who had been present in the home at the time of the
incident, but assert ed that he heard no sounds of a struggle. It is alleged that
Ms Mahlangu was partially blind and could not swim, which resulted in her drowning.
or in writing, and whether the remuneration is calculated by time or by work done, or is in cash
or in kind, and includes—
(a) a casual employee employed for the purpose of the employer’s business;
(b) a director or member of a body corporate who has entered into a contract of service or
of apprenticeship or learnership with the body corporate, in so far as he acts within the
scope of his employment in terms of such contract;
(c) a person provided by a labour broker against payment to a client for the rendering of a
service or the performance of work, and for which service or work such person is paid
by the labour broker;
(d) in the case of a deceased employee, his dependants, and in the case of an employee
who is a person under disability, a curator acting on behalf of that employee;
but does not include—
(i) a person, including a person in the employ of the State, performing military
service or undergoing training referred to in the Defence Act, 1957 (Act 44
of 1957), and who is not a member of the Permanent Force of the South
African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force while
on ‘service in defence of the Republic’ as defined in section 1 of the Defence
Act, 1957;
(iii) a member of the South African Police Force while employed in terms of
section 7 of the Police Act, 1958 (Act 7 of 1958), on ‘service in defence of
the Republic’ as defined in section 1 of the Defence Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages other
persons to perform such work;
(v) a domestic employee employed as such in a private household.”
VICTOR AJ
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Following Ms Mahlangu ’s death, her daughter, the first applicant , who was
financially dependent on her mother at the time, approached the Department of Labour
(Department) to enquire about compensation for her mother’s death. She was informed
that she could neither get compensation under COIDA, nor could she get unemployment
insurance benefits for her loss which would ordinarily be covered by COIDA.
Assisted by the second applicant, the South African Domestic Service and Allied
Workers Union (SADSAWU) ,8 she launched an application in the High Court of
South Africa, Gauteng Division, Pretoria (High Court) to have section 1(xix)(v) of
COIDA declared unconstitutional to the extent that it excludes domestic workers
employed in private households from the definition of “employee”. The Commission
for Gender Equality 9 (Gender Commission) and the Women’s Legal Centre Trust10
were granted leave to intervene as first and second amici curiae, respectively, in these
proceedings. Both amici work tirelessly to advance the rights of women.
Litigation history
On 23 May 2019 the High Court declared section 1(xix)(v) of COIDA invalid to
the extent that it excluded domestic workers employed in privat e households from the
definition of “employee” , thereby denying them compensation in the event of injury,
disablement or death in the workplace.11 The High Court failed to provide reasons for
8 SADSAWU has advocated for domestic workers over many years and was active in the process in South Africa
for the adoption in 2011 of the International Labour Organisation (ILO) Convention Concerning Decent Work for
Domestic Workers, No. 189, 16 June 2011 (Domestic Workers Convention).
9 The Commission for Gender Equality is a state institution established in terms of section 187 of the Constitution.
The Gender Commission’s mandate is “ to promote respect for gender equality and the protection, development
and attainment of gender eq uality” and to do so through, inter alia, legislative initiatives, effective monitoring
and litigation.
10 The Women’s Legal Centre Trust is a juristic person created in terms of a Trust Deed dated 3 August 1998.
Clause 4 of its Trust Deed provides that the Women’s Legal Centre Trust’s core objective is to advance and protect
the human rights of women and girls in South Africa, particularly those women who suffer multiple and
intersecting forms of disadvantage, so as to contribute to redressing systematic d iscrimination and disadvantage.
The Trust fulfils its main objective by providing free legal assistance to women, advocacy, education and outreach,
and through public interest litigation, which includes amicus submissions to assist courts in constitutiona l and
public interest matters that concern women’s rights and gender equality.
11 Section 172(1)(a) of the Constitution provides:
VICTOR AJ
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its declaration of constitutional invalidity . The issue of retrospectivity of the order of
constitutional invalidity was postponed by the High Court to allow the parties to file
further submissions on this aspect.
On 17 October 2019 the High Court , having considered the submission s from
the parties on retrospectivity, handed down a second order declaring that the declaration
of invalidity must appl y retrospectively and with immediate effect to provide relief to
domestic workers who were injured or who had died at work prior to the granting of the
order.
Before us is an application for confirmation of that declaration of constitutional
invalidity.
The High Court’s failure to furnish reasons
The High Court granted an order declaring section 1(xix)(v) of COIDA
unconstitutional, but unfortunately did not furnish any r easons for making such an
order. The High Court merely made its orders on the basis of draft orders prepared by
the parties, who had “settled” the issue of the unconstitutionality of section 1(xix)(v) of
COIDA. This failure to furnish full reasons is regrettable as this Court does not have
the benefit of the High Court’s reasoning. This Court has held on numerous occasions
that it is always helpful to consider the reasoning of the court of first instance.12 Reasons
provide a window into the basis of the judgment and are a valuable tool as they highlight
“(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency.”
12 In Tiekiedraai Eiendomme (Pty) Limited v Shell South Africa Marketing (Pty) Limited [2019] ZACC 14; 2019
JDR 0719 (CC); 2019 (7) BCLR 850 (CC) at para 20 Cameron J held that—
“[r]elated is the respect this Court pays to the views of the High Court and for the Supreme Court of
Appeal. Our precedents say that this Court functions better when it is assisted by a well-reasoned judgment
(or judgments) on the point in issue”.
See also Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs [2005]
ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) at para 39; Carmichele v Minister of Safety and
Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 55; and Amod v Multilateral
Motor Vehicle Accidents Fund [1998] ZACC 11; 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207 (CC) at para 33.
VICTOR AJ
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the process of reasoning in a transparent way.13 This gives members of the public
insight into and understanding of their constitutional rights.
Section 167(5) of the Constitution provides that this Court makes the final
decision whether “an Act of Parliament, a Provincial Act . . . is constitutional, and must
confirm any order of invalidity made by the Supreme Court of Appeal, a High Court,
or a court of similar status, before that order has any force”. It follows that in doing so
the reasoning of the High Court or the Supreme Court of Appeal is of fundamental
importance. The same section also provides that such an order will not come into force
unless this Court confirms the order.
Section 172(2)(a) of the Constitution provides for confirmation proceedings. In
Von Abo14 Moseneke DCJ held as follows:
“This Court is the highest court on all constitutional matters and is clothed with both
exclusive and concurrent jurisdiction. It enjoys exclusive jurisdiction in regard to
specified constitutional matters and makes the final decision on other constitutio nal
issues that are also within the jurisdiction of other superior courts and in particular, the
Supreme Court of Appeal and the High Court. The exclusive and supervisory
jurisdiction of this Court may be properly gathered by three constitutional provisions.
They are sections 172(2)(a) and 167(5) of the Constitution, which regulate concurrent
jurisdiction with the High Court and the Supreme Court of Appeal, and section 167(4)
which carves out jurisdictional exclusivity for this Court.”15
Von Abo makes it clear that in respect of confirmation proceedings, this Court
exercises its supervisory jurisdiction on orders of constitutional invalidity made by the
High Court and the Supreme Court of Appeal. Our supervisory task becomes more
challenging when the High Court, as in this case , does not provide well -reasoned
13 The Supreme Court of Canada in R v Shephard [2002] 1 SCR 869 stated that “[j]ustice ca nnot be seen to be
done if Judges fail to articulate the reasons for their orders”.
14 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009 (10) BCLR
1052 (CC).
15 Id at para 27.
VICTOR AJ
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judgments but merely rubber stamps draft orders prepared by parties. This renders this
Court a de facto (in fact) court of first and last instance.
Furthermore, in Mphahlele16 Goldstone J held that if courts of first instance fail
to furnish reasons for their decisions, this may amount to a violation of a constitutional
duty.17 In Strategic Liquor Service s this Court state d that “[i]t is elementary that
litigants are ordinarily entitled to reasons for a judicial decision following upon a
hearing”.18 It is important to stress that the High Court ordinarily bears a constitutional
duty to provide reasons for its decisions. F ailure to do so is an abdication of this
constitutional duty.19
In this Court
The applicants and amici submit that the exclusion of domestic workers amounts
to unfair discrimination and impairs the fundamental dignity of domestic workers. They
submit that, because domestic workers are predominantly Black women, this means that
the discrimination against them constitutes indirect discrimination on the basis of race
and gender. Both the applicants and amici describe the intersectional impact of
discrimination on domestic workers as a result of a breach of their rights to equality and
dignity on grounds of social status, gender, race and class. They also argue that the
effect of patriarchy and lack of access to education has equally had an impact on their
16 Mphahlele v First National Bank of South Africa Limited [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3)
BCLR 253 (CC).
17 Id at para 18. See also Stuttafords Stores (Pty) Ltd v Salt of the Earth Creations (Pty) Ltd [2010] ZACC 14;
2011 (1) SA 267 (CC); 2010 (11) BCLR 1134 (CC) (Stuttafords Stores) at para 10 where the Court held as follows:
“This Court has stated that furnishing reasons in a judgment—
‘explains to the parties, and to the public at large which has an interest in courts being
open and transparent, why a case is decided as it is. It is a discipline which curbs
arbitrary judicial decisions.’”
18 Strategic Liquor Services v Mvumbi N.O. [2009] ZACC 17; 2010 (2) SA 92 (CC); 2009 (10) BCLR 1046 (CC)
at para 15.
19 This concern was recently echoed by Khampepe J in Chisuse v Director-General, Department of Home Affairs
[2020] ZACC 20; 2020 (6) SA 14 (CC) ; 2020 (10) BCLR 1173 (CC) at paras 18 -20. Khampepe J heeded a
warning that “[t]his duty to provide reasons is a vital strut to the Judiciary’s legitimacy in our constitutional
democracy, which is based on a culture of justification”.
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rights and lived realities . In order to conclude that their exclusion from COID A is
indirect discrimination on the basis of gender and race, the amici submit that an analysis
within an intersectional framework is appropriate because it leads to a nuanced,
purposive and socio-contextual consideration when interpreting the implementation and
amendment of COIDA. The cumulative effect of intersectional discrimination
exacerbates the already compromised position of domestic workers in soci ety and
marginalises them further.
The applicant s and amici assert that domestic workers are one of the most
vulnerable groups in society.20 They suffer past and present disadvantages on the basis
that their work is not taken seriously. The fact that they are deprived of the benefits of
social insurance provided under COIDA is an apt example of this. They also argue that
the exclusion of domestic workers under COIDA means that the only remedy currently
available to domestic workers is a common law delict ual claim for damages which is
fault-based. On the other hand, those employees covered by COIDA are afforded a
remedy, regardless of fault and independent of the financial means of the ir employer.
It also precludes domestic workers from equal access to social security protection.
They further argue that the exclusion cannot be justified under the limitation
clause in section 36 of the Constitution. There is no apparent legitimate government al
purpose for any of the provisions of COIDA that justifies thi s impairment of the rights
of domestic workers. The applicants assert that the exclusion of domestic workers from
COIDA is not rationally connected to the ends sought to be achieved by COIDA, which
are to afford social insurance to employees who are injured, contract diseases, or die in
the course of their employment.
20 In the ILO Report above n 1 it records Africa as the third largest employer of domestic workers, after Asia and
Latin America. Approximately 5.2 million domestic workers are employed throughout the region, of which 3.8
million are women. Domestic workers account for at least 4.9 % of wage employment, and women domestic
workers represent 13.6% of all female paid employees. In Southern Africa domestic work is more common than
in other parts of the continent, with South Africa having the highest number of domestic workers in the region.
More than three -quarters of all domestic workers in South Africa are female. It further records that the racial
distribution of domestic workers is highly uneven, with the vas t majority classified as “black” (91 %) and the
remainder as “coloured” (9%).
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The Gender Commission relies on the Domestic Workers Convention , which
emphasises that—
“[d]omestic work continues to be undervalued and invisible and is mainly carried out
by women an d girls, many of whom are migrants or members of disadvantaged
communities and who are particularly vulnerable to discrimination in respect of
conditions of employment and of work, and to other abuses of human rights.”21
The Gender Commission argues that Article 14 requires South Africa, as a state
party to the Domestic Workers Convention, to ensure that domestic workers enjoy equal
protection and have access to social security. Article 14 obliges member states to take
appropriate measures—
“in accordance with national laws and regulations and with due regard for the specific
characteristics of domestic work, to ensure that domestic workers enjoy conditions that
are not less favourable than those applicable to workers generally in respect of social
security protection.”
These considerations apply equally to this Court’s decision in respect of
constitutionality and retrospectivity. The Women’s Legal Centre Trust submits that
women who are employed as domestic workers are also often the financial head s of
their families. These families, within an African context, often include extended family,
where domestic workers provide for the financial needs of their children. They also
provide for the financial needs of their grandchildren, as well as the children of other
relatives within the broader family unit. Cycles of generational poverty are difficult to
break. Women have long been viewed as matriarchs , whose indomitable strength
ensures that both their immediate and extended families are able to respond to
hardships. Ms Mahlangu is an example of such a woman.
The Women’s Legal Centre Trust submits that the generational impact of
South Africa’s apartheid history on Black women is als o relevant. The values in the
21 Preamble to the Domestic Workers Convention above n 8.
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Preamble of the Constitution recognise the injustices of our past and that respect should
be shown to those who have worked to build and develop our country, such as domestic
workers. It further submits that historically the occupation of domestic work has been
stigmatised and that stigma continues to this day. The Women’s Legal Centre Trust’s
argument continues that the fact that domestic workers were viewed as unworthy of
receiving s ocial protection in the workplace , and that this remains unchanged, is an
example of how this stigma continues to permeate within our constitutional
dispensation.
The respondents initially contend ed that it is unnecessary to challenge the
constitutionality of COIDA through a court application on the basis that the relief sought
by the applicants would only be of academic value, because the Minister is spearheading
the drafting of amendments to COIDA in order to include domestic workers. In oral
argument, the respondents concede that the provision should be struck from COIDA.
Furthermore, the respondents concede that the exclusion of domestic workers
limits their rights under sections 9, 10 and 27(1)(c) of the Constitution. Given the
absence of any justif iable purpose for the limitation which would satisfy the
requirements of section 36 of the Constitution, the respondents do not oppose the
application for the confirmation of the order of invalidity.
The Department has the capacity to successfully adminis ter COIDA in the
domestic sector, following its successful administration of the Unemployment
Insurance Act22 in the sector.
22 63 of 2001.
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Issues
The applicants contend that section 1(xix)(v) is irrational and infringes a number
of constitutional rights: the right to equality,23 the right to human dignity24 and the right
to have access to social security .25 The applicants and amici also raise the effect of
intersecting forms of discrimination on these rights, referred to in more detail below.
The respondents accepted in the High Court and accept in this Court that the provision
is unconstitutional on the bases listed by the applicants.
In Phillips26 this Court explained that it will not merely confirm an order of
constitutional invalidity made by the High Court and the Supreme Court of Appeal; this
Court must satisfy itself that the impugned provisions are indeed inconsistent with the
Constitution.27 Despite the respondents’ concessions, it remains necessary for this
Court to analyse all the issues raised prior to confirming the High Court’s order.
A further issue is that of an appropriate remedy. Should the order of
constitutional invalidity have immediate and retrospective effect?
23 Section 9 of the Constitution, in relevant parts, provides:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.”
24 Section 10 of the Constitution provides:
“Everyone has inherent dignity and the right to have their dignity respected and protected.”
25 Section 27(1)(c) of the Constitution provides:
“Everyone has the right to have access to . . . social security.”
26 Phillips v Director of Public Prosecutions , Witwatersrand Local Division [2003] ZACC 1; 2003 (3) SA 345
(CC); 2003 (4) BCLR 357 (CC).
27 Id at para 8.
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Legislative history of COIDA
On 1 March 1994 the enactment of COIDA repealed the
Workmen’s Compensation Act. COIDA made several significant changes to the system
of statutory compensation for employees involved in occupational accidents or who
contract occupational diseases, regardless of their earnings level.
In Jooste28 Yacoob J described this compensation as follows:
“[COIDA] is important social legislation which has a significant impact on the sensitive
and intricate relationship amongst employers, employees and society at large. The state
has chosen to intervene in that relationship by legislation and to effect a particular
balance which it considered appropriate.”29
An analysis of how COIDA achieves its objectives
The Director-General is entitled in terms of section 15 of COIDA to collect levies
from employers, the amount of which is determined by the actuarial risk profile of the
relevant sector in which these employees are employed . The levies collected from
employers form one part of the contributions to the Compensation Fund.30 The
Compensation Fund consists of assessments and other payments (including penalties
paid by employers), interest on investments, amoun ts transferred from the
Reserve Fund31 and contributions by individually liable employers and mutual
associations.32
Section 16 of COIDA describes how money in the Compensation Fund must be
applied. The Compensation Fund is the central institution for the financial
28 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) [1998] ZACC 18; 1999 (2) SA
1 (CC); 1999 (2) BCLR 139 (CC).
29 Id at para 9.
30 The Compensation Fund is established by section 15 of COIDA. The purpose of the Compensation Fund is to
provide compensation to employees who are injured, disabled or die during the course and scope of their
employment. The Compensation Fund has several sources of revenue including levies, assessments and penalties.
31 The Reserve Fund is established by section 19 of COIDA.
32 Section 15 of COIDA.
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administration of COIDA. It is administered by the Director -General who receives all
monies payable to the Compensation Fund and is responsible to account for their receipt
and utilisation.
Section 19(3) of COIDA states that the object of the Reserve Fund is to provide
for unseen demands on the Compensation Fund and to stabilise the tariffs of assessment.
Section 22(1) provides that if an employee meets with an accident resulting in
disablement or death, that employee (or in the event of death, their dependent) shall be
entitled to benefits provided by COIDA. The exclusion of domestic workers from the
definition of an “employee” means that they and/or their dependents are not entitled to
claim compensation under this section.
South Africa’s obligations in respect of social security
Social security is recognised as a human right in the Universal Declaration of
Human Rights (Declaration).33 Article 22 of the Declaration provides that “[e]veryone,
as a member of society, has a right to social security”. Article 25(1) of the Declaration
provides that “[e]veryone has the right . . . to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond [their] control”. In addition, Article 9 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR)34 provides that “[t]he state parties
recognise the right of everyone to social security, including social insurance”.
Article 13 of the Maputo P rotocol35 entitled “Economic and Social Welfare
Rights” requires states parties to—
33 Universal Declaration of Human Rights, 10 December 1948.
34 International Covenant on Economic, Social and Cultural Rights, 16 December 1966.
35 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women i n Africa
(Maputo Protocol), 11 July 2003.
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“adopt and enforce legislative and other measures to guarantee women equal
opportunities in work and career advancement and other economic opportunities. In
this respect, they shall:
. . .
(f) establish a system of protection and social insurance for women working in the
informal sector and sensitise them to adhere to it.”
Furthermore, the Southern African Development Community (SADC) requires
states parties to recognise the provision of social security as a human right. Article 10
of the Charter of Fundamental Social Rights in SADC provides:36
“Member states shall create an enabling environment so that every worker in the
Region shall have a right to adequate social protection and shall, regardless of status
and the type of employment, enjoy adequate social security benefits.”
The Women’s Legal Centre Trust submits that South Africa’s obligations go
further. South Africa has committed itself to the eradication of extreme poverty and the
implementation of appropriate social protection systems for all in terms of the
United Nations Sustainable Development Goals (SDGs). SDG 8 seeks to promote the
protection of labour rights including safe and secure working environments. In the face
of SDG 8, there is no basis for COIDA ’s exclusion of domestic workers from the
definition of “employee” in section 1(xix)(v).37
Because South Africa is a signatory to these international instruments, the
exclusion of d omestic workers from COIDA benefits is inexplicable. The provisions
of these international instruments call for domestic workers to benefit from the same
protections as other employees.
36 Charter of Fundamental Social Rights in SADC, 1 August 2003.
37 By amending our legislation to ensure that there is no discrimi nation against domestic workers, this will
demonstrate that South Africa is one of the countries in Africa that is already taking steps to implement the
ambitions articulated in the 2030 Agenda into tangible outcomes for their people a nd also integrating t he SDGs
into their national visions and plans.
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When interpreting rights in the Bill of Rights, courts must prefer an interpretation
which is consistent with international law.38 Evidently, the various instruments alluded
to above would regard benefits in terms of COIDA as a component of the fundamental
right to social security. This is based on the interdependence of rights and how such an
interpretation will further South Africa’s international obligation s to advance gender
equality and just and favourable conditions of work for vulnerable groups. As will be
seen from the analysis below, international and regional benchmarks must be attained
for domestic workers, and their continued exclusion as employees under COIDA means
that South Africa is not compliant with these obligations.
South Africa’s international law and regional law obligations
The applicants and the amici urge this Court, when considering the constitutional
challenge of unfair discrimination against domestic workers, to consider South Africa’s
international and regional legal obligations. Section 39(1) (b) of the Constitution
requires this Court to have regard to international law when interpreting the rights in
the Bill of Rights. This applies to the interpretation of the right of access to social
security guaranteed in section 27(1)(c) of the Bill of Rig hts: in other words , do the
COIDA benefits constitute social security as envisaged in section 27(1)(c)? It is
important and helpful in assessing discrimination against a group or class of women of
this magnitude that a broad national and international app roach be adopted in the
discourse affecting domestic workers.
South Africa has ratified various conventions to eliminate all forms of
discrimination against women. These include the Convention on the Elimination of All
38 See section 233 of the Constitution which states:
“When interpreting any legislation, every court must prefer any reasonable interpretation of the
legislation that is consistent with international law over a ny alternative interpretation that is
inconsistent with international law.”
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Forms of Discrimination Against Wom en39 (CEDAW), ICESCR,40 the Convention on
the Elimination of All Forms of Racial Discrimination 41 and the Convention on
Domestic Workers.42 Article 2 of CEDAW requires states parties to adopt appropriate
legislative measures to protect women against discrimination. Article 11(f) of CEDAW
makes specific provision for equality in the workplace.
Article 2 of ICESCR requires states to introduce legislative measures in a manner
that does not result in discrimination on grounds of race, sex or social origin. Article 3
of ICESCR provides for equal enjoyment of economic and social rights by men and
women.43 It is noteworthy that in the first report of the Concluding Observations to
39 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979.
Notably, CEDAW adopts an intersectional vision of gender equality by referencing the relationship between
racism and gender equality. This is recognised in its Preamble as follows:
“Emphasising that the eradication of apartheid, all forms of racism, racial discrimination,
colonialism, neo-colonialism, aggression, foreign occupation and d omination and interference
in the internal affairs of States is essential to the full enjoyment of the rights of men and women.”
40 To this end, in expanding on the meaning of the obligations under the ICESCR, the Committee on Economic,
Social and Cultural Rights adopted General Comment No. 23 on the right to just and favourable conditions of
work on 27 April 2016. Notably, regarding domestic workers, at para 47(h), the Committee stresses the following:
“The vast majority of domestic workers are women. Many belong to ethnic or national
minorities or are migrants. They are often isolated and can be exploited, harassed and, in some
cases, notably those involving live-in domestic workers, subject to slave-like conditions. They
frequently do not have the right to join trade unions or the freedom to communicate with others.
Due to stereotyped perceptions, the skills required for domestic work are undervalued; as a
result, it is among the lowest paid occupations. Domestic workers have the right to just and
favourable conditions of work, including protection against abuse, harassment and violence,
decent working conditions, paid annual leave, normal working hours, daily and weekly rest on
the basis of equality with other workers, minimum wage coverage where this exists,
remuneration established without discrimination based on sex, and social security. Legislation
should recognise these rights for domestic workers and ensure adequate means of monitoring
domestic work, including through labour inspection, and the ability of domestic workers to
complain and seek remedies for violations.”
41 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965.
Notably, the Committee on the Elimination of Racial Discrimination has emphas ised the gendered implications
of racism in its General Recommendation No. 25 on the gender -related dimensions of racial discrimination, 20
March 2020. It is also noteworthy t hat the Special Rapporteur on Contem porary forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance has also called for an intersectional approach in addressing
racial discrimination. See for example her following reports: UN Doc A/HRC/38/52; UN Doc A/74/321; and UN
Doc A/HRC/41/54.
42 Domestic Workers Convention above n 8.
43 Notably, the Committee on Economic, Social and C ultural Rights found that this A rticle calls for an
intersectional vision of gender equality. See for example, General Comment No. 16 on the equal right of men and
women to the enjoyment of all eco nomic, social and cultural righ ts, 11 August 2015 at para 5 which states the
following:
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South Africa submitted in terms of ICESCR, the Committee on Economic, Social and
Cultural Rights pointed out that “domestic workers . . . often labour under exploitative
conditions.”44 To this end, the Commit tee recommended that South Africa strengthen
the legislative framework applicable to domestic workers by extending the benefits of
COIDA to this class of workers. 45 In its view, this would be consistent with ensuring
just and favourable conditions of work in terms of the ICESCR.46
The Domestic Workers Convention recognises the vulnerabilities of domestic
workers and Article 3 places a duty on the state to promote and protect them. Article 13
of the Convention further provides that states must ensure the health and occupational
safety of workers.
At a regional level, it is necessary to consider the impact of Africa n-based
initiatives on the treatment of women in employment. In terms of Article 66 of the
African Charter on Human and Peoples’ Rights ( African Charter), to which
South Africa is a signatory, special protocols may be adopted to supplement its
provisions. In line with Article 66 of the African Charter, the Maputo Protocol was
adopted.47 Today, the Maputo Protocol constitutes a model framework and an endless
“Women are often denied equal enjoyment of their human rights, in particular by virtue of the
lesser status ascribed to them by tradition and custom, or as a result of overt or covert
discrimination. Many women experience distinct forms of discrimination due to the intersection
of sex with such factors as race, colour, language, religion, political and other opinion, national
or social origin, property, birth, or other status, such as age , ethnicity, disability, marital,
refugee or migrant status, resulting in compounded disadvantage.”
44 Concluding observations on the initial report of South Africa, UN Doc E/C12/ZAF/CO/1.
45 Id.
46 Id.
47 Portions of the Preamble of the Maputo Protocol provide as follows:
“Considering that Article 2 of the African Charter on Human and Peoples’ Rights enshrines the
principle of non -discrimination on the grounds of race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune, birth or other status;
. . .
Further noting that the African Platform for Action and the Dakar Declaration of 1994 and the
Beijing Platform for Action of 1995 call on all Member States of the United Nations, w hich
have made a solemn commitment to implement them, to take concrete steps to give greater
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source of inspiration for women in Africa. It aims to put an end to gender stereotypes
and discrimination against women and bring about the economic emancipation of
women in the fields of civil, political, and reproductive health rights.
Social Security Challenge
The Constitution brought with it f undamental reforms to social security.
Section 27(1)(c) and (2) of the Constitution provide:
“(1) Everyone has the right to have access to—
. . .
(c) social security, including, if they are unable to support themselves and
their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of each of these
rights.”
This right covers social secu rity assistance for those in need of support and
sustenance due to an injury or disease that is work-related or the death of a breadwinner
as a result of such injury or disease .48 Economic, social and cultural rights , of which
the right of access to social security is a part, are indispensable for human dignity and
equality. It is important to note that although COIDA predates the Constitution and that
this may steer COIDA away from social security as envisaged in section 27 of the
attention to the human rights of women in order to eliminate all forms of discrimination and of
gender-based violence against women;
Recognising the crucial role o f women in the preservation of African values based on the
principles of equality, peace, freedom, dignity, justice, solidarity and democracy;
. . .
Concerned that despite the ratification of the Afric an Charter on Human and Peoples’ Rights
and other inte rnational human rights instruments by the majority of States Parties, and their
solemn commitment to eliminate all forms of discrimination and harmful practices against
women, women in Africa still continue to be victims of discrimination and harmful practices.”
48 I explain this shortly.
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Constitution, item 2 of Schedule 6 makes it clear that “old order legislation” continues
in force subject to its consistency with the Constitution.49
COIDA therefore must be interpreted through the prism of the Bill of Rights and
the foundational values of human dignity, equality and freedom. To interpret COIDA
as a mere enactment of the common law would constrain the objectives of the
Constitution and have anomalous results. This Court has warned that to limit the reach
of the Constitution because law or conduct took place before its enactment would negate
its fundamental objectives and aspirations.50 In interpreting COIDA through the prism
of the Bill of Rights, it is noteworthy that in Khosa51 this Court considered the now
repealed Social Assistance Act52 against the provisions of section 27(1)(c) and (2); even
though that Act also predated the Constitution. This Court found that the denial of
access to social grants to permanent residents did not constitute a reasonable legislative
measure as contemplated by section 27(2) of the Constitution.53
What is the reach or scope of the right of access to social security? Does it
include social security assistance for those in need of support and sustenance due to an
injury or disease that is work -related or the death of a breadwinner as a result of such
injury or disease?
In answering these questions, one must first consider whether COIDA is social
security legislation as envisioned by section 27(1)(c) of the Constitution. In Jooste this
49 Item 2 of Schedule 6 of the Constitution provides that:
“(1) All law that was in force when the new Constitution took effect, continues in force,
subject to—
(a) any amendment or repeal; and
(b) consistency with the new Constitution.”
50 S v Mhlungu [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) at para 8.
51 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development [2004] ZACC 11; 2004
(6) SA 505 (CC); 2004 (6) BCLR 569 (CC).
52 59 of 1992.
53 Khosa above n 51 at para 82.
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Court described COIDA as “important social legislation ”.54 It went on to describe
COIDA’s objectives as follows:
“Section 35(1) of the Compensation Act is therefore logically and rationally connected
to the legitimate purpose of the Compensation Act, namely a comprehensive regulation
of compensation for disablement caused by occupational injuries or diseases sustained
or contracted by employees in the course of their employment.”55
The definition of “social security” in the Bill of Rights expressly includes social
assistance to provide s upport to persons and their dependents whe n they are unable to
support themselves.56 In circumstances such as these, where a breadwinner has died or
cannot work due to injury or illness, her dependents may be left destitute and unable to
support themselves. Evidently in these circumstances , the benefits provided to those
dependents by COIDA serve a similar purpose to the social grants which are provided
in terms of the now Social Assistance Act57 insofar as they intend to ameliorate the
circumstances of those who would otherwise be condemned to living in abject poverty.
To regard COIDA only as a statutory mechanism to address former common law claims
between employers and employees is , in my view , unduly re strictive. To divorce
COIDA from social security because it amounts to “compensation” misses the wide net
of social security, which section 27 provides for and seeks to address. For the reasons
that follow , COIDA must now be read and understood within th e constitutional
framework of section 27 and its objective to achieve substantive equality.
In determining the scope of the right to social security , one must have regard to
section 39(1)(a) of the Constitution which requires that an interpretation of the Bill of
Rights must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom.
54 Jooste above n 28 at para 9.
55 Id at para 17.
56 See section 27(1)(c) of the Constitution.
57 13 of 2004.
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In Khosa this Court held that equality is a foundational value which must inform
the interpretation of the Bill of Rights , including the right to have access to social
security.58 The Constitution itself makes it clear that socio -economic rights must be
bestowed on an equal footing by declaring that those rights are held by “everyone”.59
The approach to interpreting the rights in the Bill of Rights and the Constitution
as a whole is purposive and generous and gives effect to constitutional values including
substantive equality.60 So, when determining the scope of socio -economic rights, it is
important to recall the transformativ e purpose of the Constitution which seeks to heal
the injustices of the past and address the contemporary effects of apartheid and
colonialism.61
It is unassailable that the inability to work and sustain oneself , or the loss of
support by dependents as a result of the death of a breadwinner subjects the worker or
dependents to a life of untold indignity. The interpretative injunction in section 39(1)(a)
of the Constitution demands that this indignity and destitution be averted. Surely then,
social assistance that seeks to heed this injunction falls within the ambit of that right.62
58 Khosa above n 51 at para 42.
59 Id.
60 S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 ( CC) at para 15 and S v Makwanyane
[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 9.
61 Minister of Health v Treatment Action Campaign [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR
1033 (CC) (TAC) at para 24 and Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001
(1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (Grootboom) at para 25.
62 Underscoring the importance of coming to the aid of the needy and vulnerable, Mokgoro J said in Khosa above
n 51 at paras 52 and 74:
“The right of access to social security, including social assistance, for those unable to support
themselves and their dependents is entrenched because as a society we value human beings and
want to ensure that people are afforded their basic needs. A society must seek to ensure that the
basic necessities of life are accessible to all if it is to be a society in which human dignity,
freedom and equality are foundational.
. . .
There can be no doubt that the applicants are part of a vulnerable group in soci ety and, in the
circumstances of the present case, are worthy of constitutional protection. We are dealing, here,
with intentional, statutorily sanctioned unequal treatment of part of the South African
community. This has a strong stigmatising effect.”
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More importantly, the amici submit that the exclusion of domestic workers from
COIDA’s reach traps both them and their dependents in a cycle of poverty which is a
direct legacy of the country’s colonial and apartheid past . It is that very system of
racialised and gendered poverty that the Constitution seeks to undo.
Lastly, this Court is enjoined to interpret rights in the Bill of Rights consistently
with international law. The international instruments alluded to above certainly demand
that the type of benefits provided by COIDA be considered a component of the right to
social security.
For all these reasons, I find that social security assistance in terms of COIDA is
a subset of the right of access to social security under section 27(1) (c) of the
Constitution. But that is not the end of the enquiry.
Section 27(1)(c) and 27(2) must be read together.63 Section 27(1)(c) guarantees
everyone a right to have access to social security. Section 27(2) enjoins the state to take
reasonable legislative and other steps to progressively realise this right. It is clear that
these sub-sections are inextricably linked: section 27(2) is a n internal limitation which
qualifies the section 27(1) right.64 COIDA is an example of the very type of legislation
that the Constitution envisages as a “reasonable legislative measure, within its available
resources, to achieve the progressive realisation of [the] right”. The fact that COIDA
predates the Constitution does not take it outside of the state’s obligation to enact
legislation and take other measures. Nor does it allow that legislation to be immune
63 In TAC above n 61 at para 39, this Court held:
“We therefore conclude that section 27(1) of the Constitution does not give rise to a self -
standing and independent positive right enforceable irrespective of the considerations
mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the
scope of the positive rights that everyone has and the corresponding obligations on the state to
“respect, protect, promote and fulfil” such rights . The rights conferred by sections 26(1) and
27(1) are to have “access” to the services that the state is obliged to provide in terms of
sections 26(2) and 27(2).”
64 Khosa above n 51 at para 83.
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from the section 27(2) requirement of reasonablen ess. The question , therefore, is
whether the exclusion of domestic workers from the definition of “employee” in
COIDA is reasonable.
In Grootboom this Court expounded upon the reasonableness standard of judicial
review that applies to measures taken to give effect to socio-economic rights.65 Notably,
in both Grootboom and Khosa this Court remarked on the interdependence of rights in
the Bill of Rights and the task of evaluating the reasonableness of a policy against its
impact on the rights to dignity and equality .66 To that end, a core aspect of the
reasonableness enquiry is whether a law or policy takes cognisance of the most
vulnerable members of society and those in most desperate need.67 A law or policy that
fails to do so would be considered unreasonable.
In Khosa this Court was faced with a similar exclusion to that found in COIDA,
also in respect of the right of access to social security. There, this Court pointed out
that context is indispensable in determining the reasonableness of such an exclusion.
Mokgoro J expounded upon this as follows:
“In dealing with the issue of reasonableness, context is all -important. We are
concerned here with the right to social security and the exclusion from the scheme of
permanent residents who, but for their lack of citizenship, would qualify for the benefits
provided under the scheme. In considering whether that exclusion is reasonable, it is
relevant to have regard to the purpose served by social security, th e impact of the
exclusion on permanent residents and the relevance of the citizenship requirement to
that purpose.”68
The purpose of social security is to ensure that everyone , including the most
vulnerable members of our society, enjoy access to basic necessities and can live a life
65 Grootboom above n 61 at para 39.
66 Id at paras 23-4 and Khosa above n 51 at paras 40 and 44.
67 Grootboom above n 61 at para 44 and TAC above n 61 at para 68.
68 Khosa above n 51 at para 49.
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of dignity.69 Moreover, social security legislation serves a remedial purpose: namely ,
to undo the gendered and racialised system of poverty inherited from South Africa’s
colonial and apartheid past.
In the present matter, it is clear that no legitimate objective is advanced by
excluding domestic workers from COIDA. If anything, their exclusion has a significant
stigmatising effect which entrenches patterns of disadvantage based on race , sex and
gender. The amici have highlighted the lived experiences of domestic workers, the
majority of whom are Black women , and the structural barriers which they and their
dependents continue to face.
In considering those who are most vulnerabl e or most in need, a c ourt should
take cognisance of those who fall at the intersection of compounded vulnerabilities due
to intersecting oppression based on race, sex, gender, class and other grounds. To allow
this form of state-sanctioned inequity goes against the values of our newly constituted
society namely human dignity, the achievement of equality and ubuntu. To exclude this
category of individuals from the social security scheme established by COIDA is
manifestly unreasonable.
For all these reasons, I find that t he obligation under section 27(2) to take
reasonable legislative and other measures, within available resources, includes the
obligation to extend COIDA to domestic workers. The failure to do so in the face of
the respondents’ admitted available resources constitutes a direct infringement of
section 27(1)(c), read with section 27(2) of the Constitution.
Section 27(2) contains an internal limitation whereby t he state may defend its
failure to give effect to a socio-economic right listed in section 27(1) based on a lack of
available resources to do so. I consider this at the end of this judgment where I discuss
the appropriate remedy, the actuarial report and the issue of retrospectivity.
69 Id at para 52.
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This leads me to consider the right to equality that the applicants also rely on in
their constitutional challenge to section 1(xix)(v) of COIDA.
Equality challenge
The Constitution, through its founding values and section 9 makes it peremptory
for both racial and gender equality to be advanced. Section 9 provides:
“(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
The respondents correctly concede that there is no basis for the differentiation
between “employees” and the disadvantaged group of domestic workers. The
applicants submit that failing to include domestic workers under the protection of
COIDA constitutes unequal treatment in breach of section 9(1). While the
constitutional attack is based on both sections 9(1) and 9(3), the attack on section 9(1)
was not strongly pressed by counsel for the applicants or the amici. It is necessary,
however, to consider section 9(1) briefly within the context of these facts.
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Section 9(1) challenge
In Prinsloo70 Ackermann J stated that:
“It is convenient, for descriptive purposes, to refer to the differentiation presently under
discussion as ‘mere differentiation’. In regard to mere differentiation the constitutional
state is expected to act in a rational manner. It should not regulate in an arbitrary
manner or manifest ‘naked preferences’ that serve no legitimate government purpose
for that would be inconsistent with the rule of law and the fundamental premises of the
constitutional state. The purpose of this aspect of equality is, therefore, to ensure that
the state is bound to function in a rational manner.”71
Prinsloo was concerned with section 8 of the interim Constitution. What I have quoted
applies equally to section 9(1) of the Constitution. For completeness, let me add only
that part of the “Harksen test”72 that is relevant to the present enquiry. In Harksen this
Court held:
70 Prinsloo v Van Der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).
71 Id at para 25.
72 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC). The full Harksen
test is as follows:
“(a) Does the provision differentiate between people or categories of people? If so, does
the differentiation bear a rational connection to a legitimate government I purpose? If
it does not then there is a violation of s ection 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a two -stage
analysis:
(i) Firstly, does the differentiation amount to ‘discrimination? If it is on a
specified ground, then discrimination will have been established. If it is not
on a specified ground, then whether or not there is discrimination will depend
upon whether, obj ectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a
comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found to have been on a specified ground, then
unfairness will be presumed. If on an unspecified ground, unfairness will
have to be established by the complainant. The test of un fairness focuses
primarily on the impact of the discrimination on the complainant and others
in his or her situation. If, at the end of this stage of the enquiry, the
differentiation is found not to be unfair, then there will be no violation of
section 8(2).
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“Does the provision differentiate between people or categories of people? If so, does
the differentiation bear a rational connection to a legitimate government purpose? If it
does not then there is a violation of s ection 8(1). Even if it do es bear a rational
connection, it might nevertheless amount to discrimination.”73
Yet again, this finds application to section 9(1) of the Constitution.
A question that arises then is whether the differential treatment of not affording
domestic workers benefits under COIDA serves any rational government purpose. In
their submissions the applicants correctly answer this question in the negative . As
indicated, the respondents who are conceding the challenge understandably d o not
proffer a basis for the dif ferentiation. In these circumstances , the differentiation
between domestic workers and other categories of workers is arbitrary and inconsistent
with the right to equal protection and b enefit of the law under section 9(1). As such ,
even on the first stage of the Harksen test, COIDA would be constitutionally invalid.
Section 9(3) challenge and the application of intersectionality
In this case however, the differentiation between domestic workers and other
categories of workers also amounts to discrimination albeit indirectly. I say indirectly
because, as the applicants and amici submit, domestic workers are predominantly
Black women. This means discrimination against them constitutes indirect
discrimination on the basis of race , sex and gender. Section 9(3) proscribes unfair
discrimination by the state on certain specified grounds, which include race , sex and
gender. Clearly the race, sex and gender of domestic workers is woefully apparent in
the discrimination against them. In terms of section 9(5), which is quoted above, these
grounds are presumptively unfair. As I will demonstrate below , with these grounds
(c) If the discrimination is found to be unfair then a determination will have to be made as to
whether the provision can be justified under the limitations clause (s ection 33 of the interim
Constitution).”
73 Id at para 54.
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30
intersecting, not only is the discrimination presumptively unfair but the level of
discrimination is aggravated.
In their written submissions, the applicants contend that “section 1(xix)(v) of
COIDA discriminates on the grounds listed in section 9(3) of the Constitution,
specifically the grounds of race, sex and/or gender ”. They also include social origin.
As such , they argue that the exclusion discriminates against domestic workers both
directly (as a class of workers) and indirectly on numerous listed grounds. They contend
further that the section 9(3) analysis should consider how the implicated grounds
intersect. Section 9(3) defines the grounds of discrimination by enumerating a defined
list which is by no means a numerus clausus (closed list) of grounds of discrimination.
This proscribed discrimination can be direct or indirect, but importantly, it also provides
that there may be more than one ground of discrimination ,74 thus anticipating multiple
grounds of discrimination simultaneously converging. It is in this no tion of multiple
grounds of discrimination that the importance of an intersectionality analysis becomes
unavoidable.
In my view, even though COIDA is invalid on a section 9(1) analysis alone, it is
in the interests of justice to also deliberate on the unf air indirect discrimination
challenge. In light of the unique circumstances of domestic workers, this case provides
an unprecedented opportunity to expressly consider the application of section 9(3)
through the framework of intersectionality. This Court has also had the benefit of
hearing full oral argument on the benefits and implications of the intersectional
approach.
There is nothing foreign or alien about the concept of intersectional
discrimination in our constitu tional jurisprudence . It means no thing more than
acknowledging that discrimination may impact on an individual in a multiplicity of
ways based on their position in society and the structural dynamics at play. There is an
74 Section 9(3) also states “on one or more grounds”.
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31
array of equality jurisprudence emanating from this Court that has, albeit implicitly,
considered the multiple effects of discrimination.
At the early stages of our constitutional dispensation, Sachs J pertinently invoked
it in so many words in National Coalition for Gay and Lesbian Equa lity where he
explained:
“One consequence of an approach based on context and impact would be the
acknowledgement that grounds of unfair discrimination can intersect, so that the
evaluation of discriminatory impact is done not according to one ground of
discrimination or another, but on a combination of both, that is globally and
contextually, not separately and abstractly. The objective is to determine in a
qualitative rather than a quantitative way if the group concerned is subjected to
scarring of a sufficiently serious nature as to merit constitutional intervention. Thus,
black foreigners in South Africa might be subject to discrimination in a way that
foreigners generally, and [ Black people] as a rule, are not; it could in certain
circumstances be a fatal combination. The same might possibly apply to unmarried
mothers, or homosexual parents, where nuanced rather than categorical approaches
would be appropriate. Alternatively, a context rather than category -based approach
might suggest that overlapping vulnerability is capable of producing overlapping
discrimination. A notorious example would be African widows, who historically have
suffered discrimination as [Black people], as Africans, as women, as African women,
as widows and usually, as older people, intensified by the fact that they are frequently
amongst the lowest paid workers.”75
Although this was a concurring judgment, the ma jority judgment by
Ackermann J concurred in by all other Justices expressed agreement with it.76
Furthermore, in Hassam77 this Court looked at sameness and difference in group
disadvantage on the question of intestacy between Muslim women in polygamous
75 National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC);
1998 (12) BCLR 1517 (CC) at para 113.
76 Id at para 78.
77 Hassam v Jacobs N.O. [2009] ZACC 19; 2009 (5) SA 572 (CC); 2009 (11) BCLR 1148 (CC).
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marriages and other women. Such textured analysis in relation to discrimination is an
indispensable legal methodology and, using the intersectionality framework as a legal
tool, leads to more substantive protection of equality. Adopting intersectionality as an
interpretative criterion enables courts to consider the social structures that shape the
experience of marg inalised people . It also reveals how individual experiences vary
according to multiple combinations of privilege, power, and vulnerability as structural
elements of discrimination. An intersectional approach is the kind of interpretative
approach which will achieve “the progressive realisation of our transformative
constitutionalism”.78
Two further examples stem from Van Heerden and Brink.79 Here is how
Moseneke J in Van Heerden recognised the intersectional effects of different forms of
disadvantage:
“This substantive notion of equality recognises that besides uneven race, class and
gender attributes of our society, there are other levels and forms of social differentiation
and systematic under -privilege, which still persist. The Constitution enjoins u s to
dismantle them and to prevent the creation of new patterns of disadvantage. It is
therefore incumbent on courts to scrutinise in each equality claim the situation of the
complainants in society; their history and vulnerability; the history, nature and purpose
of the discriminatory practice and whether it ameliorates or adds to group disadvantage
in real life context, in order to determine its fairness or otherwise in the light of the
values of our Constitution. In the assessment of fairness or otherw ise a flexible but
situation sensitive approach is indispensable because of shifting patterns of hurtful
discrimination and stereotypical response in our evolving democratic society.”80
O’Regan J in Brink in dealing with the dynamic of sameness and difference in
patterns of group disadvantage and discrimination, did not characterise it using the word
“intersectionality”, but nevertheless described multiple and intersecting forms of harm:
78 Id at para 28.
79 Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) (Van
Heerden) and Brink v Kitshoff N.O. [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC).
80 Van Heerden id at para 27.
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“Section 8 was adopted then in the recognition that discrimination against people who
are members of disfavoured groups can lead to patterns of group disadvantage and
harm. Such discrimination is unfair: it builds and entrenches inequality amongst
different groups in our society. The drafters realised that it was necessary both to
proscribe such forms of discrimination and to permit positive steps to redress the effects
of such discrimination. The need to prohibit such patterns of discrimination and to
remedy their resul ts are the primary purposes of section 8 and, in particular,
subsections (2), (3) and (4).”81
Recently, albeit in different contexts, this concept was endorsed in the concurring
judgment of Khampepe J in Tshabalala in the context of the causes and effects of rape
on Black women.82 In the majority judgment in Centre for Child Law, when discussing
agency and stigma, Mhlantla J noted the presence of “intersecting axes of
discrimination”.83
The intersectional approach is evident in other jurisdictions. For ins tance, in
2012 the European Court of Human Rights introduced for the first time an intersectional
interpretation of discrimination in the case of BS v Spain.84 Analysing discrimination
within the framework of intersectionality proved to be a useful tool in determining the
presence and extent of the discrimination. That Court considered ways in which gender
intersects with other identities and how these intersections contribute to unique
experiences of oppression and privilege. A single-axis comparison by contrast, may
not yield the full extent of the discrimination . For example, assessing discrimination
against women in general does not consider the differing impact s of certain
discrimination on Black women as compared to that experienced by White women.
81 Brink above n 79 at para 42.
82 S v Tshabalala [2019] ZACC 48; 2020 (5) SA 1 (CC); 2020 (3) BCLR 307 (CC) at paras 68-9 and fn 38.
83 Centre for Child Law v Media 24 L td [2019] ZACC 46; 2020 (4) SA 319 (CC) ; 2020 (3) BCLR 245 (CC) at
para 86.
84 BS v Spain no 47159/08, ECHR 2012-III.
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It is undisputed between the parties that domestic workers who are in the main
Black women , experience discrimination at the confluence of intersecting grounds.
This simultaneous and intersecting discrimination multiplies the burden on the
disfavoured group. It is now apt to consider how scholars have developed and grappled
with the intersectional lens and how it is a helpful framework in determining the nature
of the discrimination in the current matter.
Crenshaw,85 who coined the concept of the “intersectional” nature of
discrimination, writing as a Black feminist on women studies, recognised and
demonstrated how overlapping categories of identity (such as gender , sex and race)
impact individuals and institutions. Intersectionality aims to evaluate how intersecting
and overlapping forms of oppression result in certain groups being subject to distinct
and compounded forms of discrimination , vulnerability and subordination.86 As such,
at times Black women may experien ce compounded forms of discrimination as
compared to Black men or White women. In other cases, they may experience forms
of discrimination and vulnerability that are qualitatively different from both these
groups.87 The power of an intersectional approach lies in its capacity to shed light on
the experiences and vulnerabilities of certain groups that have been erased or rendered
invisible. Unless there is recognition and an articulation of intersectional
discrimination, the enormous burden experienced by, in this case, domestic workers
will not be sufficiently acknowledged.
Intersectionality has been described as one of “the most important theoretical
contributions that women studies has made thus far”.88 Intersectionality is an approach
85 Crenshaw “Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Anti -
Discrimination Doctrine, Feminist Theory, and Anti-Racist Policies” (1989) University of Chicago Legal Forum
139. Crenshaw is a pioneer and leading scholar on intersectionality. Intersectionality as a concept has been used
and developed by legal scholars and lawyers in the field of discrimination law.
86 Id at 149. See also Crenshaw “Mapping the Margins: Intersecti onality, Identity Politics, and Violence against
Women of Color” (1991) 43 Stanford Law Review 1241 at 1249-50.
87 Id at 148.
88 McCall “The Complexity of Intersectionality” Signs: Journal of Women in Culture and Society (2005) 30 at
1771.
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that recognises that different identity categories can intersect and co -exist in the same
individual thus creating a qualitatively different experience when compared to that of
another individual. These overlapping burde ns can lead to excessive hardship for an
individual.89
The discrimination in this case illustrates what Albertyn posits as the need for
the concept of equality to be developed beyond the idea of equal concern and respect.
In discussing the plasticity of the concept of equality, she reminds us that—
“the goal of equality . . . is to remove systemic barriers to substantive freedom and
actively to create conditions of equality, including attention to restructuring relations
of equality at individual, institutional and societal inequalities. It is also to take account
of the intersectional nature of inequalities in comprehending the problem and
identifying its solutions”.90
By including domestic workers in the definition of “employee” under COIDA,
the goal of substantive equality is advanced at a structural level by granting the remedy
sought. To this end, it empowers domestic workers and brings them closer to the kind
of “substantive freedom” that Albertyn persuasively argues should be the main object
of equality jurisprudence.
Atrey explains that intersectionality consists of several strands, such as sameness
and difference of experiences within the context of multiple forms of discrimination. 91
This is the notion that individuals within the same group may simultaneously experience
discrimination in the same way , and also differently. One cannot generalise. The
applicants and amici submit that not recognising these patterns of intersecting grounds
of discrimination , exacerbates patterns of group disadv antage. The outcome of an
89 Smith “Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective”
The Equal Rights Review (2016) 16 at 73.
90 Albertyn “Contested Substantive Equality in the South African Constitution: Beyond Social Inclusion Towards
Systemic Justice” (2018) 34 SAJHR 441 at 462.
91 Atrey Intersectional Discrimination (OUP, United Kingdom, 2019) at 36 . Atrey discusses sameness and
difference as well sameness and difference in group disadvantage.
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intersectional analysis, on the other hand, results in a transformative outcome which
addresses systemic disadvantage. This will hopefully remove, rectify and reform the
disadvantage suffered as a result of intersectional discrimination.
This brings to the fore the need to consider patterns of group disadvantage and
discrimination along intersectional lines. Multi ple axes of discrimination are relevant
to the case of domestic workers. Domestic workers experience racism, sexism,
gender inequality and class stratification. This is exacerbated when one considers the
fact that domestic work is a precarious category of work that is often undervalued
because of patronising and patriarchal attitudes. 92 The application of an intersectional
approach helps us to understand the structural and dynamic consequences of the
interaction between these multiple forms of discrimination.
Atrey, in referring to the concept of group disadvantage as raised by O’Regan J
in Brink, explains that this phrase requires some analysis:
“First of all, intersectionality conceives of ‘disadvantage’ broadly, including every kind
of harm, oppression, powerlessness, subordination, marginali sation, deprivation,
domination and violence. M oreover, the disadvantage is defined not by isolated or
stray incidents but by systemic or structural nature. It represents a pattern of historic
motifs of disadvantage which have been entrenched over time. Such disadvantage is
also not personally towards random individuals but suffered by individuals because of
their membership to a social group.”93
Some may contend that because COIDA only excludes certain categories of
workers such as domestic workers, this only amounts to an irrational differentiation, as
opposed to unfair discrimination in terms of section 9(3). I disagree. First, this Court
has already established that a seemingly benign or neutral distinction that nevertheless
92 See for example , Mantouvalou “Human Rights for Precarious Workers: The Legislative Precariousness of
Domestic Labour” (2012) 34 Comparative Labour Law & Policy Journal 133 at 138.
93 Atrey above n 91 at 41.
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has a disproportionate impact on certain groups amounts to indirect disc rimination.94
Secondly, this Court has established that for the purposes of a section 9(3) enquiry, there
is no qualitative difference between discrimination that occurs directly or indirectly. 95
Once indirect discrimination on a listed ground has been est ablished, then the law or
conduct in question is presumed to be unfair.96
In the present case, the uncontested evidence is that the overwhelming majority
of domestic workers are women, and Black women for that matter. It is also noteworthy
that the domestic work sector is the third largest employer of women in the country. 97
In addition, as I will demonstrate below, these various grounds of discrimination
intersect, thus rendering domestic workers amongst the most indigent and vulnerable
members of our society. In my view, there is no doubt that although the distinction in
COIDA could be said to refer to a category of worker which, on the face of it, would
not trigger a section 9(3) enquiry, the same cannot be said of the historical and
contemporary marginalisation of domestic workers , and the various listed grounds of
discrimination that intersect where discrimination is made between domestic workers
and other workers.
While it is true, as pointed out by my brother Jafta J in the second judgment, that
COIDA also excludes members of the South African National Defence Force (SANDF)
and the South African Police Service (SAPS) from its provisions, this omits to take into
account that, because domestic workers are predominantly Black women, their
exclusion indirectly discriminates against them on grounds of sex, gender and race. In
terms of section 9(5) that discrimination is presumptively unfair. That is all that is
relevant. It is noteworthy that the omission of members of the SANDF and SAPS is not
94 Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) (Walker) at
paras 31-2.
95 Id at para 35.
96 Id.
97 ILO Report above n 1 at 33.
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the same as that of domestic workers. Section 57 of the Defence Act 98 establishes a
fund for SANDF members to claim compensation for death or injury. In the case of the
SAPS, a special medical scheme has been established of which only members of the
SAPS can become members .99 In terms of this scheme , SAPS’ members can lodge
claims for death, injury or disability to this scheme the way they would have lodged
claims under COIDA. Hence, it is only domestic workers who are in a legislative
vacuum without any coverage whatsoever. In addition, the histori cal exclusion
domestic workers have faced , which I outline below , demonstrates that an analogy
between them and members of the SAPS or the SANDF is inapposite.100
Intersectionality requires that courts examine the nature and context of the
individual or gro up at issue, their history , as well as the social and legal history of
society’s treatment of that group. Thus, this Court is required to consider the particular
history of social security in South Africa, as it relates to domestic workers.
Furthermore, this Court must consider the historical disadvantage that Black women
have faced as a group.
It is often said that Black women suffer under a triple yoke of oppression based
on their race, gender and class.101 The racial hierarchy established by apartheid placed
Black women at the bottom of the social hierarchy.102 During apartheid, Black women
were oppressed both by codified apartheid laws and a patriarchal form of customary
98 42 of 2002.
99 South African Police Service Medical Scheme (POLMED) is a closed medical scheme registered under the
Medical Schemes Act 131 of 1998 . Only employees of the SAPS, appointed under the South African Police
Service Act 68 of 1995 and their dependants are eligible to be members of POLMED. “POLMED” available at
http://www.polmed.co.za/about-us/. Also see sections 34 (1)(f) and (g) of the South African Police Service Act
68 of 1995.
100 To the extent that the exclusion of labour brokers is similar to that of domestic workers, this Court need not
make any pronouncement on it, because the question of its constitutionality is not properly before this Court.
101 Nolde “South African Women Under Apartheid: Employment Rights with Particular Focus on Domestic
Service and Forms of Resistance to Promote Change” (1991) Third World Legal Studies 203 at 204.
102 Wing and de Carvalho “Black South African Women: Toward Equal Rights” (1995) 8 Harvard Human Rights
Journal 57 at 60.
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laws and norms, which rendered them perpetual minors who were at the mercy of White
men and women as well as Black men.103
This Court has on a number of occasions stressed the importance of “the need to
make a decisive break from the ills of the past”.104 This constitutional imperative stems
from the Constitution’s commitment to establishing a non-racist and non-sexist society
based on human dignity, equality and freedom. At the heart of the constitutional project
is an aspiration to achieve substantive equality and undo the burdens of our past.105
But ensuring that the vestiges of our racist past are eradicated, also requires an
exploration of the lingering gendered implications of apartheid’s racist system. 106 The
combination of influx control laws and the migrant labour system also had a particularly
onerous effect on Black women. 107 Taken together , they restricted the ability of
Black women to seek and obtain employment opportunities , thus rendering them
dependent on absent husbands or sons. 108 Essentially, this all sedimented a gendered
and racialised system of poverty, that was particularly burdensome for Black women.
Being at the bottom of the social hierarchy meant that Black women were often
required to do the “least skilled, lowest paid and most insecure jobs ”.109 The case of
domestic workers was particularly severe. Domestic workers, the majority of whom
103 Id.
104 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration [2016] ZACC 38;
2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC) at para 5 and see further Tshwane City above n 6 at para 6.
105 Minister of Justice and Constitutional Development v SA Restructuring and Insolvency Practitioners
Association [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) at para 61.
106 See for example Poinsette “Black Women Under Apartheid: An Introduction” (1985) 8 Harvard Women’s Law
Journal 93 at 105 where she discusses the implications of the Immorality Act for Black women. Amongst other
things she points out that that most prosecutions under the Immorality Act were against White men having sex
with Black women . Also, b ecause White men were often Black women’s employers, Black Women were
effectively pressurised into these sexual relationships.
107 Andrews “From Gender Apartheid to Non -Sexism: The Pursuit of Women ’s Rights in South Africa ” (2001)
26 North Carolina Journal of International Law and Commercial Regulation 693 at 695.
108 Id at 696.
109 Wing and de Carvalho above n 102 at 67.
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were – and still are – Black women, were denied both a family life and social life. 110
They lived in poor conditions devoting more time to caring for the children of their
employers, than their own.111
The marginalisation that domestic workers currently face is therefore historical.
During apartheid, domestic workers had a tenuous form of employment which was
excluded from fair labour standards including compensation for workplace injuries,
minimum wage standards and un employment insurance. 112 Their employment
conditions were not formali sed and their lives were often based on the whims of their
White employers.
Poinsette captures the tragic lives of domestic workers during apartheid with the
following remarks:
“Black women who work as servants in white homes sometimes describe themselves
as ‘slaves’. Their typical living conditions are restricted, bare, and cramped. Amenities
basic to any white home are often denied to the servants who work in such homes. One
commentator tells of a domestic servant who was forced to wash in the toilet in her
servant’s quarters.”113
Because Black women found themselves at the intersection or convergence of
multiple oppressions, some argue that the indignities they face can tell us something
about the “grand design” or brutality of apartheid.114 Intersectionality indeed becomes
a useful analytical tool to understand the convergence of sexism, racism and class
stratification and the discriminatory logic embedded in these systems. Unravelling the
multiple layers of discrimination that Black women faced and still face might aid us in
110 Poinsette above n 106 at 116-7.
111 Id. Poinsette goes on to argue that the state targeted Black women to destabili se African families and
undermine their “procreative capacity” in order to keep the black population under control .
112 Wing and de Carvalho above n 102 at 68.
113 Poinsette above n 106 at 116.
114 Id at 118.
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the quest to make a decisive break from our past towards the establishment of a
democratic, compassionate and truly egalitarian society. 115 An intersectio nal
framework therefore enables this Court to shift its normative vision of equality and the
“baseline” assumptions embedded in anti -discrimination law.116 The marginalisation
that domestic workers and Black women in general faced during apartheid has
regrettably been extended to the present day.
The exclusion of domestic workers from the protections under COIDA has
resulted in a situation where domestic workers have for decades into our democracy ,
had to bear work-related injuries or death without compensa tion. They are a category
of workers that have been lamentably left out and been rendered invisible. Their lived
experiences have gone unrecognised. It took the tragic death of Ms Mahlangu to bring
this egregious form of discrimination into vivid focus.
Much like their apartheid counterparts, domestic workers today remain in an
unenviable position. Domestic work is a circumstance -driven employment decision,
driven by financial need. 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. In some instances, they are single parents who do not have an
additional salary to help support them and their children.
115 See Makwanyane n 60 at para 262 where Mahomed J describes the transformative nature of the Constitution
as follows:
“In some countries, the Constitution only formali ses, in a legal instrument, a historical
consensus of values and aspirations evolved incrementally from a stable and unbroken past to
accommodate the needs of the future. The South African Constitution is different: it retains
from the past only what is de fensible and represents a decisive break from, and a ringing
rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and
repressive and a vigorous identification of and commitment to a democratic, universalistic,
caring a nd aspirationally egalitarian ethos, expressly articulated in the Constitution. The
contrast between the past which it repudiates and the future to which it seeks to commit the
nation is stark and dramatic.”
116 For a more comprehensive discussion on how in tersectionality shifts the normative vision of anti -
discrimination law by interrogating its baseline assumptions see Crenshaw (1989) above n 85 at 145 and further
Carbado and Crenshaw “An Intersectional Critique of Tiers of Scrutiny: Beyond Either/or Appro aches to Equal
Protection” (2019) 129 Yale Law Journal Forum 108.
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Section 1(xix)(v) of COIDA differentiates between employees as defined and
domestic workers employed in private households who are excluded f rom th at
definition. It is evident from the above discussion that the state has discriminated
against domestic workers indirectly in ways already referred to. They are a critically
vulnerable group of workers. It is this very right to equality that the state has violated.
If the equality breach is analysed through an intersectional lens with all the multi -axes
of indirect discrimination taken into account, this can have an impact on achieving
structural systemic transformation.
The Constitution serves a transformative purp ose that is advanced through our
equality and dignity jurisprudence. It recognises that the values of equality and human
dignity, although linked, each serve as independent rights and constitutional values
which must be given specific content. Section 1(xix)(v) of COIDA doe s not advance
the material well-being of domestic workers. Declaring that section invalid will fulfil
the transformative mandate set by our Constitution, at both an individual and a group-
based level.
To conclude on equality, the exclusion of domestic workers and, therefore, their
dependents from deriving benefits under COIDA limits the rights to equality before the
law and equal protection and benefit of the law under section 9(1) and the right not to
be discriminated against unfairly guaranteed in section 9(3).
Human dignity challenge
It is undisputed in this case , that the dignity of domestic workers is being
impaired by their exclusion from the definition of “employee” in COIDA . Section 10
of the Constitution provides that “[e]veryone has inherent dignity and the right to have
their dignity respected and protected”. The exclusion of domestic workers from benefits
under COIDA has an egregious discriminatory and deleterious effect on their inherent
dignity. The exclusion demonstrates the fact that n ot only is domestic work
undervalued, it is also not considered to be real work of the kind performed by workers
that do fall within the definition of the impugned section of COIDA . One can only
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imagine the pain of these women who work graciously, hard and with pride only for
their work and by consequence them, to go unrecognised. This amounts to domestic
workers themselves not being treated with dignity.
Counsel for the respondents properly concede the constitutional values a nd
principles that apply in this case and that these include the dignity of domestic workers.
Mogoeng CJ in Freedom of Religion South Africa 117 dealt with the right to human
dignity and explained:
“There is a history and context to the right to human dignity in our country. As a result,
this right occupies a special place in the architectural design of our Constitution, and
for good reason. As Cameron J correctly points out, the role and stressed importance
of dignity in our Constitution aim ‘to repair in dignity, to renounce humiliation and
degradation, and to vest full moral citizenship to those who were denied it in the past’.
Unsurprisingly because not only is dignity one of the foundational values of our
democratic state, it is also one of the entrenched fundamental rights.”118
Historically, in varying contexts across the world, domestic work has generally
not been regarded as real work and has been undervalued for that reason. 119 In the
American context , it has been argued that the historical undervaluation of domestic
workers stems primarily from the gender ed and racialised nature of those who have
traditionally done this work, namely African -American women.120 To this end,
domestic work there has been undervalued for two reasons. First, it has been described
as work done by a “despised race”.121 Second, it has been regarded as “women’s work”
or a “labour of love” having no economic currency.122 In my view, the same rings true
117 Freedom of Religion South Africa v Minister of Justice and Constitutional Development [2019] ZACC 34;
2020 (1) SA 1 (CC); 2019 BCLR 1321 (CC).
118 Id at para 45.
119 See for example, Mantouvalou above n 92.
120 Shah and Seville “Domestic Worker Organizing: Building a Contemporary Movement for the Dignity and
Power” (2011) Albany Law Review 413 at 416.
121 Id.
122 Id.
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in the South African context, where domestic work has been undervalued precisely
because of who performs this work: poor Black women. The injury to dignity hence
stems from the same intersectional harms elaborated upon above.
The reasons for undervaluing this work and not according it the necessary dignity
are deeply gendered and reflect the patriarchal values which inform what counts as real
work. In one of its reports, the International Labour Organi sation captures this point
succinctly:
“Domestic work, however, is still undervalued. It is looked upon as unskilled
because most women have traditionally been considered capable of doing the
work, and the skills they are taught by other women in the home are perceived
to be innate. When paid, therefore, the work remains unde rvalued and poorly
regulated.”123
The idea that the duties performed by domestic workers do not constitute
real work, and that they are merely engaging in an inherently feminine endeavour is
deeply sexist and has a significant stigmatising effect on their dignity.
The often exploitative relationship between domestic workers and their
employers is also relevant to the dignity enquiry. This exploitative relationship, coupled
with the undervaluation of their work demonstrates how the labour of domestic workers
has been commodified and how they have been objectified to that end. 124 But, the
Constitution’s commitment to human dignity prohibits the idea that people can be
reduced to objects and treated as a means to achieve an end. 125 The Constitution
123 International Labour Organization Report: “Decent Work for Domestic Workers” Report IV (1) International
Labour Conference 99th session (2010).
124 Mantouvalou above n 92 at 161.
125 Steinmann “The Core Meaning of Human Dignity” (2016) 19 Potchefstroom Electronic Law Journal 1 at 17.
This particular understanding of human dig nity is neatly summed up in the following quote in Prinsloo above
n 70 at para 31 where this Court said the following:
“We are emerging from a period of our history during which the humanity of the majority of
the inhabitants of this country was denied. They were treated as not having inherent worth; as
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unequivocally confers self-worth on and demands respect for each individual, which
must be protected and jealously guarded by courts.
It is apparent that the exclusion of domestic workers from COIDA calls for a re-
examination of the legal and moral foundations of the discrimination against them. The
multiple intersecting forms of discrimination illustrate the indignity domestic workers
have endured for so long. When this case is measured along an intersectional
framework, it is plainly evident that there are still disadvantaged groups who have not
benefitted from democracy, or from the transformative constitutional project and whose
dignity remains impaired and unprotected.
For all these reasons, it is clear that the exclusi on of domestic workers from
COIDA is an egregious limitation of their right to dignity , alongside its infringements
on the ir other constitutional rights. It extends the humiliating legacy of exclusion
experienced during the apartheid era into the present day, which is untenable.
Justification analysis
The limitation of the rights I have dealt with is quite egregious and far -reaching
in nature. No reasons were tendered to justify it pursuant to a section 36 limitation
analysis.126 The intersectional discrimination could not be objectively justified by the
state on any criteria. This is understandable because the state is conceding
objects whose identities could be arbitrarily defined by those in power rather than as persons
of infinite worth. In short, they were denied recognition of their inherent dignity.”
126 Section 36(1) of the Constitution provides:
“The rights in the Bill of Rights may be limited only in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedo m, taking into account all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
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unconstitutionality. That notwithstanding, this Court must satisfy itself that the
limitation of the affected rights is not justified.127
Unquestionably, the right to equal protection of the law, the right not to be
discriminated against unfairly and the right to dignity are of singular importance in our
constitutionalism. Unsurprisingly they even feature in our Constitution’s founding
values.128 Equally, the right of access to social security is important. It seeks to uplift
the vulnerable and marginalised from destitute conditions and for that reason, it is also
closely linked to the value of and right to dignity.
On the other hand, the limitation serves no government al purpose whatsoever.
That much has been conceded by the state. All the state has said is that the continued
exclusion of domestic workers from the enjoyment of benefits under COIDA was
simply a matter of timing. It explained that it needed to prepare itself for handling the
increased numbers of beneficiaries that would result from an extension of the benefits.
Without suggesting that this was an acceptable reason, the state contends that it is now
prepared to handle the numbers.
The justification analysis must end here. The limitation s on the fundamental
rights outlined above are neither reasonable nor justifiable in terms of section 36(1).
Conclusion
The invalidation of section 1(xix)(v) of COID A will contribute significantly
towards repairing the pain and indignity suffered by domestic workers. It should result
in a greater adjustment of the architectural focus as to their place and dignity in society.
Not only should this restore their dignity, but the declaration of invalidity will hopefully
have a transformative effect in other areas of their lives and those of their families, in
the future.
127 Phillips above n 26 at para 20.
128 See [4].
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Remedy
The starting point on the issue of an appropriate remedy is found in section 172
of the Const itution. S ection 172(1)(b) empowers this Court, when deciding a
constitutional matter within its power, to declare any law or conduct that is inconsistent
with the Constitution invalid to the extent of its inconsistency. This Court is further
empowered to make any order that is just and equitable, which may include an order
limiting the retrospective effect of the declaration of invalidity or its suspension
with the aim of allowing Parliament to correct the defect.129
The applicants seek an order confirming the High Court’s order of constitutional
invalidity of section 1(xix)(v) of COIDA with immediate and retrospective effect.
Jafta J held in Mvumvu:130
“Unless the interests of justice and good government dictate otherwise, the applicants
are entitled to the remedy they seek because they were successful. Having established
that the impugned provisions violate their rights entrenched in the Bill of Rights, they
are entitled to a remedy that will effectively vindicate those rights. The court ma y
decline to grant it only if there are compelling reasons for withholding the requested
remedy. Indeed, the discretion conferred on the courts by section 172(1) must be
exercised judiciously.”131
129 Section 172(1) provides:
“When deciding a constitutional matter within its power, a court–
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including–
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any
condition, to allow the competent authority to correct the defect.”
130 Mvumvu v Minister for Transport [2011] ZACC 1; 2011 (2) SA 473 (CC); 2011 (5) BCLR 488 (CC).
131 Id at para 46.
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The default position in the law is that a declaration of co nstitutional invalidity
will apply retrospectively. When the declaration is made in relation to a statutory
provision, it will be retrospective from the date that the Constitution came into effect,
or in the case of post-constitutional legislation, from the date that the statutory provision
came into force. This principle is based on the doctrine of objective constitutional
invalidity.132 The question then is whether the declaration of constitutional invalidity
should be qualified to limit the retrospective effect of the order or whether this order of
invalidity should be effective from the date the Constitution took effect.
The respondents concede that the applicants are entitled to effective relief. While
they do not oppose the relief sought by the appl icants in respect of retrospectivity of
any order this Court may make, they faintly put up two justifications in support of
limiting the retrospective effect of the order being: the administrative and financial
burdens this may have on the Compensation Fund. Without any evidence, the
respondents claim that such burdens will arise from old injuries or diseases. In
particular, if claims arising from old injuries or diseases are to be met, that will impact
on the Compensation Fund’s ability to meet future claims.
132 Id at para 44, where Jafta J held as follows:
“In terms of the doctrine of objective constitutional invalidity, unless ordered otherwise by the
court the invalidity operates retrospectively to the date on which the Constitution came into
force. But if the legislation in question was enacted after that date, as was the present Act, the
retrospective operation of invalidity goes back to the date on which t he legislation came into
force.”
See also Ferreira v Levin N .O.; Vryenhoek v Powell N .O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1)
BCLR 1 (CC) where this Court stated at para 28:
“A pre -existing law which was inconsistent with the provisions of the Constitution became
invalid the moment the relevant provisions of the Constitution came in to effect. The fact that
this Court has the power in terms of section 98(5) of the Constitution to postpone the operation
of invalidity and, in terms of section 98(6), to regulate the consequences of the invalidity, does
not detract from the conclusion th at the test for invalidity is an objective one and that the
inception of invalidity of a pre -existing law occurs when the relevant provision of the
Constitution came into operation. The provisions of s ection 98(5) and (6), which permit the
Court to control the result of a declaration of invalidity, may give temporary validity to the law
and require it to be obeyed and persons who ignore statutes that are inconsistent with the
Constitution may not always be able to do so with impunity.”
VICTOR AJ
49
Actuarial Report
The respondents filed an abbreviated actuarial report , dubbed a high -level
assessment. A more detailed actuarial report would have been helpful. The respondents
are in possession of their own financial information and this would have assisted the
actuary in producing a full report on the effect of the retrospectivity of the order. It is
incumbent on the respondents to place cogent evidence before this Court on why this
Court should limit the retrospectivity of the order of constitutional invalidity.
Reverting to the abbreviated actuarial report on the question of retrospectivity,
the actuary states that her mandate was limited to simply perform a high-level
consideration report.133 No basis was laid as to why the actuary was given this specific
and very limited mandate. The state is not a naïve, inexperienced and impecunious
litigant that had to limit the actuarial report to a high-level assessment for costs or other
reasons which has resulted in an unhelpful report full of u nsupported generalisations.
This chosen approach is a curious one when it comes to the state assisting the Court on
something as important as domestic workers’ rights. Its presumed intention was to
assist the Court regarding the practical realities faced by the state, and to assist it in
determining a viable way forward on the important issue of domestic workers’ rights
under COIDA. The respondents tender no evidence which suggests that the Reserve
Fund would be unable to meet the demand should there be no limiting of retrospectivity.
Importantly, one of the objects of the Reserve Fund is to provide for unforeseen
demands on the Compensation Fund.134
The fact that this case concerns intersectional discrimination is a relevant factor
in determining whether a retrospective order should be granted.135 As discussed above,
133 High-level means “general” or “big picture”. Some may consider a “ high-level overview” to be redundant,
like saying “brief summary”. A “high-level overview” is one that does not cover details. It provides a very basic
and general explanation or presentation of the material/subject.
134 Section 19(3)(a) of COIDA.
135 In this case a retrospective order will address the systematic disadvantage faced by domestic workers and their
dependents. Crenshaw (1991) above n 87 at 1250 argues that intersectional discrimination cannot be a ddressed
unless the remedy is designed to address the “intersectional location” of the affected women.
VICTOR AJ
50
I am hopeful that the inclusion of domestic workers in the definition of “employee”
under COIDA will contribute towards the amelioration of systemic disadvantage
suffered by these women and contribute to breaking the cycle of poverty they suffer.
The above discussion dismisses any argument that the state is unable to include
domestic workers based on a lack of available resources.
I conclude that a just and equitable order is to not limit the retrospective effect
of the declaration of invalidity. The impugned provision has been in place since before
the advent of our constitutional democracy. During the hearing, the parties agreed that
in the event of the retrospective effect of the order no t being limited, the cut -off date
should be the date of the interim Constitution which took effect on 27 April 1994. I
agree with that cut-off date.
Costs
The applicants have been successful, and costs must follow the result.
Order
The following order is made:
1. The declaration of constitutional invalidity of section 1(xix)(v) of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
made by the High Court of South Africa, Gauteng Division, Pretoria is
confirmed.
2. The order is to have immediate and retrospective effect from
27 April 1994.
3. The first respondent must pay the applicants’ costs in this Court.
JAFTA J
51
JAFTA J (Mathopo AJ concurring):
Introduction
This matter concerns the validity of a statutory exclusion in the COIDA, 136 of
domestic workers from receiving compensation for injuries sustained in employment.
The background against which the claim arises is t he following. The mother of
Ms Sylvia Bongi Mahlangu was a domestic worker and Ms Mahlangu was her
dependant. Ms Mahlangu’s mother sadly died in an accident that occurred in the course
of her employment. Consequently, Ms Mahlangu lost the financial support she had
received from her mother.
Following this loss, Ms Mahlangu duly submitted a claim for compensation to
the Director-General for the Department of Labour. The claim was lodged in terms of
COIDA. She was advised that her claim was not successful because she was not eligible
to claim compensation on the ground that domestic workers and their dependants were
excluded from compensation payable in terms of COIDA. Dissatisfied with this
decision, Ms Mahlangu and the trade union, South African Domestic Service and Allied
Workers Union instituted proceedings in the Gauteng Division of the High Court. They
challenged the validity of the exclusion. The Minister of Labour, the Director-General
for the Department of Labour and the Compensation Commissioner were cited as
respondents.
By agreement between the parties, the High Court issued an order declaring the
impugned provision invalid, without rendering a judgment. The Court merely
converted the parties’ draft order into a court order.
I have had the benefit of reading the judgment of my colleague Victor AJ
(first judgment). I agree that the impugned provisions are inconsistent with the
136 Above n 3.
JAFTA J
52
Constitution and invalid for reasons that differ materially from those contained in the
first judgment. First, I do not think that the socio -economic right guaranteed by
section 27(1) of the Constitution is at all violated137. Second, I do not think that in this
matter it has been shown that denying domestic workers the COIDA benefits enjoyed
by other workers impairs the right to dignity. It is not shown how the denial, of itself
alone, degrades domestic workers or lowers their digni ty, especially because the
exclusion applies to police, soldiers and other workers.
Third, although the first judgment invokes section 9(3) of the Constitution 138 to
decide the equality claim, it does not follow the test laid down in Harksen139. And since
the applicants did not rely on a ground listed in section 9(3) for their unfair
discrimination claim, the unfairness of the discrimination could not be presumed. The
failure to apply the Harksen test makes it difficult to determine whether the applicants
have established that the impugned provision constitutes unfair discrimination.
It was incumbent upon the applicant s to prove by way of evidence that the
discrimination was indeed unfair. The first judgment mentions that the impugned
provision violates the equality right of domestic workers under section 9(3) and
proceeds to conclude that “the State has discriminated a gainst domestic workers
indirectly . . .”.140 The actual act of discrimination is the Director-General’s failure to
137 Section 27(1) provides:
“Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.”
138 Section 9(3) of the Constitution provides:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.”
139 Harksen above n 72.
140 See the first judgment at [105].
JAFTA J
53
compensate domestic workers for injuries sustained at work on the basis that COIDA
does not authorise him or her to pay compensation. It is not clear to me how this
constitutes indirect discrimination.
But I think there is a simpler and straightforward pathway to the outcome reached
in the first judgment. That is section 9(1) of the Constitution which guarantees equality
before the law and e qual protection and benefit of the law 141. But before illustrating
how the impugned provision breaches section 9(1), I must address the process followed
by the High Court in declaring the impugned provision invalid.
Process in the High Court
The High Court followed an unusual and impermissible procedure in disposing
of this matter. At the hearing of the matter, it appears that the High Court was presented
with a draft order, declaring the impugned provision invalid. That Court approved and
granted the order requested by consent by the parties and postponed the determination
of whether the declaration of invalidity should operate retrospectively, to a date
approximately six months later. The Court failed to render a judgment on the matter.
Therefore, it is not clear from the record which sections of the Constitution the
High Court had found the impugned provision to be inconsistent with. It will be recalled
that the applicant had invoked sections 9, 10 and 27 of the Constitution as the
benchmark against which the impugned provision was to be tested. Consequently, there
is no indication whatsoever why the High Court has declared the provision in question
invalid. This is unacceptable, more so in view of the fact that the High Court was alert
to the princi ple that its order could not be effective until confirmed by this Court 142.
141 Section 9(1) provides:
“Everyone is equal before the law and has the right to equal protection and benefit of the law.”
142 Section 172(2)(a) of the Constitution provides:
“The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may
make an order concerning the constitutional validity of an Act of Parliament, a provincial Act
JAFTA J
54
This is so because this Court occupies a special place in our constitutional order and is
at the apex of the Judiciary arm of the state. The orders that have to be confirmed by it
under section 172 relate to decisions of the highest organs in the other arms of the state.
In Pharmaceutical Manufacturers this Court stated:
“This is the context within which s 172(2)(a) provides that an order made by the
[Supreme Court of Appeal], a High Court or a Court of similar status ‘concerning the
constitutional validity of an Act of Parliament, a provincial Act or any conduct of the
President’ has no force unless confirmed by the Constitutional Court. The section is
concerned with the law –making acts of the legislatures at the two highest levels, and
the conduct of the President who, as head of state and head of the Executive, is the
highest functionary within the State. The use of the words ‘any conduct’ of the
President shows that the section is to be given a wide meaning as far as the conduct of
the President is concerned. The apparent purpose of the section is to ensure that this
Court, as the highest Court in constitutional matters, should control declarations of
constitutional invalidity made against the highest organs of State.”143
Declaring an Act of Parliament invalid is a serious intrusion into the domain of
Parliament but that intrusion is permitted by the Constitution. However, it remains a
serious matter which must be done only where a competent court is persuaded that the
impugned legislation is inconsistent with the Constitution and a declaration of invalidity
should be limited to the extent of the inconsistency. It is the duty of the court itself and
not the litigants, to determine whether an inconsistency with the Constitution has been
established. A court may not abdicate this responsibility to litigants, as happened here.
It is explicit from section 172(1) that it is the court which is vested with the power to
decide whether a law is inconsistent with the Constitution144.
or any conduct of the President, but an order of constitutional invalidity has no force unless it
is confirmed by the Constitutional Court.”
143 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 56.
144 Section 172(1) of the Constitution provides:
“When deciding a constitutional matter within its power, a court—
JAFTA J
55
Although procedurally it is permissible to cite only the Minister responsible for
the administration of the impugned law, the consent order presented to the High Court
here was not shown to have been supported by Parliament. Yet the order struck down
an Act of Parliament. Without reasons being furnished by the High Court, Parliament
and other parties affected by that order would have no knowledge of reasons why the
Act was declared invalid. This Court has emphasised that reasons in a judgment explain
to the parties and the public at large why a particular decision in a case was taken 145.
Those reasons are also helpful to a higher court which is called upon to consider the
decision of the court of first instance, either on appeal or in confirmation proceedings.
Without those reasons it is impossible for the higher court to determine whether the
decision of the court of first instance was correct. Here this Court was driven to
approach the matter as if it is a court of first instance.
In Stuttafords Stores 146 this Court also pointed out that the discipline of
furnishing reasons prevents arbitrary judicial decisions. It was stated that reasons reveal
whether the decision taken was correct. 147 If the High Court had given reasons, it
probably would have realised that the application has not established the inconsistency
between the impugned provision and some of the sections of the Constitution relied on
by the applicants. I illustrate this below.
The High Court erred in failing to furnish reasons for the order it issued. As the
declaration of invalidity was granted, which could not come into effect unless confirmed
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.”
145 Mphahlele above n 16.
146 Stuttafords Stores above n 17.
147 Id at paras 10 and 11.
JAFTA J
56
by this Court, we must consider the matter and determine whether a proper case has
been made out for the declaration. Otherwise the validity of the impugned p rovision
would be left in limbo and this would generate considerable uncertainty.
Invalidity
After the death of her mother the f irst applicant, Ms Sylvia Bongi Mahlangu,
who was the deceased’s dependant at the time of her accidental death, sought
compensation from the compensation fund under the control of the Director -General
for the Department of Labour. The Director -General rejected her request because her
mother was a domestic worker in a private household. The Director -General is
mandated to pay com pensation from the Fund in respect of damage suffered by
employees or their dependants as a result of injuries sustained at the workplace or during
the course and scope of employment. Ms Mahla ngu did not accept the
Director-General’s decision. She challe nged the validity of the statutory provision on
which that decision was based.
The attack mounted against that provision in the High Court was three-pronged.
The first ground on which the provision was impugned was based on section 9 of the
Constitution. The applicants contended that the provision was irrational and that it
authorised unfair discrimination against domestic workers. The second ground was that
the impugned provision violated the dignity of domestic workers in breach of section
10 of the Constitution. Lastly, it was contended that the provision concerned infringed
domestic worker’s right of access to social security enshrined in section 27(1)(c) of the
Constitution.
It is necessary to consider the terms of the impugned provision with a vi ew to
determining whether it unjustifiably limits the rights on which the applicants rely.
JAFTA J
57
Impugned provision
In declining to compensate Ms Mahlangu for her loss, the Director -General
relied on section 1 of COIDA. Section 1 defines an employee and tabula tes categories
of workers wh ich constitute employees as defined in COIDA. It goes further to list
classes of workers who are excluded. The exclusion mentions the following:
“(i) a person, including a person in the employ of the State, performing militar y
service or undergoing training referred to in the Defence Act, 1957
(Act 44 of 1957), and who is not a member of the Permanent Force of the South
African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force while
on ‘ service in defence of the Republic' as defi ned in section 1 of the
Defence Act, 1957;
(iii) a member of the South African Police Force whi le employed in terms of
section 7 of the Police Act, 1958 (Act 7 of 1958), on service in defence of the
Republic' as defined in section 1 of the Defence Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages other
persons to perform such work;
(v) a domestic employee employed as such in a private household…”
The effect of this exclusion with regard to domestic workers is that they do not
enjoy the statutory entitlement to compensation for injuries sustained during the course
and scope of employment. In so doing, COIDA differentiates between domestic
workers, members of the South African National Defence Force and members of the
South African Police Service, on the one hand and other workers on the other. It also
differentiates between domestic workers who are not employed in private households
and those who are so employed. The question that arises is whether that differentiation
is consonant with the three sections of the Constitution on which the applicants rely.
The answer to this question requires consideration of the relevant sections of the
Constitution. The first is section 9.
Equality Claim
Section 9 of the Constitution provides:
JAFTA J
58
“(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or in directly against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfai rly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
This is one provision of the Constitution which has frequently received the
attention of our courts, including this Court, on numerous occasions. Almost all of its
terms have been interpreted and here ours is to apply those constructions to the present
matter. Importantly, in Harksen this Court laid down the test to be applied in
determining whether the impugned provision amounts to unfair discrimination148. That
test applies to every claim based on unfair discrimination.
In the context of an equality claim, the rationali ty test is sourced from
section 9(1) of the Constitution. This section guarantees three distinct rights. First, the
right to equality before the law. This rig ht has been construed by this Court in
Prinsloo149 as meaning that everybody is entitled to equal treatment by our courts of
law. The second one is the right to equal protection under the law and the third is the
right to equal benefit of the law.
148 Harksen above n 72 at para 43.
149 Prinsloo above n 70 at para 22.
JAFTA J
59
This Cou rt had to determine quite early in its existence that not every
differentiation should be the subject of judicial scrutiny. Otherwise courts would be
“compelled to review the reasonableness or the fairness of every classification of
rights”.150 In Prinsloo, it was held that the State must act in a rational manner:
“It should not regulate in an arbitrary manner or manifest naked preferences that serve
no legitimate governmental purpose, for that would be inconsistent with the rule of law
and the fundamental premises of the constitutional State. The purpose of this aspect of
equality is, therefore, to ensure that the State is bound to function in a rational
manner”.151
Consequently this Court concluded that for an equality claim to succeed, the
claimant must prove either that the differentiation is irrational in the sense that there is
no rational link between the differentiation and a legitimate governmental purpose or
that the differentiation amounts to unfair discrimination. It is not enough to show that
the differentiation constitutes discrimination, for section 9(3) proscribes unfair
discrimination only. Having identified these two types of constitutionally objectionable
differentiation, this Court proceeded to lay down the test for determining
unconstitutional differentiation. The test has sequential stages and in Prinsloo it was
stated:
“Accordingly, before it can be said that m ere differentiation infringes s 8, it must be
established that there is no rational relationship between the differentiation in question
and the governmental purpose which is proffered to validate it. In the absence of such
rational relationship the differentiation would infringe s 8. But while the existence of
such a rational relationship is a necessary condition for differentiation not to infringe s
8, it is not a sufficient condition; for the differentiation might still constitute unfair
discrimination if that further element . . . is present”.152
150 Id at para 17.
151 Id at para 25.
152 Id at para 26.
JAFTA J
60
Later in Harksen, this Court laid down a more detailed test for determining an
equality claim. The Court proclaimed:
“[I]t may be as well to tabulate the stages of enquiry which become necessary where
an attack is made on a provision in reliance on s 8 of the interim Constitution. They
are:
(a) Does the provision differentiate between people or categories of people?
If so, does the differentiation bear a rational connect ion to a legitimate
government purpose? If it does not then there is a violation of s 8(1). Even
if it does bear a rational connection, it might nevertheless amount t o
discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly, does the differentiation amount to 'discrimination'? If
it is on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or
not there is discrimination will depend upon whether,
objectively, the ground is based on attributes and
characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.
(ii) If the differentiation amounts to 'discrimination', does it
amount to 'unfair discrimination'? If it has been found to have
been on a specified ground, then unfairness will be presumed.
If on an unspecified ground, unfairness will have to be
established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination on the
complainant and others in his or her situation. If, at the end of
this stage of the enquiry, the differentiation is found not to be
unfair, then there will be no violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified under the limitations
clause (s 33 of the interim Constitution)”.153
153 Harksen above n 72 at para 54.
JAFTA J
61
It bears emphasis that this test applies in full where the claim for equality is based
on both subsections (1) and (3) of section 9. Where the claim is limited to section 9(3)
the first stage relating to rationality would be inapposite. This is because s ection 9(3)
is dedicated to anti-discrimination claims. In Walker this Court said:
“I am satisfied that the differentiation in the present case was rationally connected to
legitimate governmental objectives. Not only were they measures of a temporary
nature but they were designed to provide continuity in the rendering of services by the
council while phasing in equality in terms of facilities and resources, during a difficult
period of transition. This is, however, not the end of the enquiry as differentiation ‘that
does not constitute a violation of s ection 8(1) may nonetheless constitute unfair
discrimination for the purpose of section 8(2)’”.154
Applying the Harksen test
As mentioned here the applicants relied on section 9(1) and (3) of the
Constitution. This means that the entire test including rationality is applicable. It will
be recalled that in sequence the rationality test applies at the very first stage. And it is
important to recall what this test requires. In Law Society of South Africa 155 we are
reminded of what rationality entails. There it was stated:
“It remains to be said that the requirement of rationality is not directed at testing
whether legislation is fair or reasonable or appropriate. Nor is it aimed at deciding
whether there are other or even better means that could have been used. Its use is
restricted to the threshold question whether the measure the lawgiver has chosen is
properly related to the public good it seeks to realise. If the measure fails on this count,
that is ind eed the end of the enquiry. The measure falls to be struck down as
constitutionally bad”.156
154 Walker above n 94 at para 27.
155 Law Society of South Africa v Minister of Transport [2010] ZACC 25; 2011 (1) SA 400 (CC); 2011 (2) BCLR
150 (CC).
156 Id at para 35.
JAFTA J
62
Here the differentiation arising from excluding domestic workers from
compensation and benefits payable to employees and their dependants for injuries
sustained at work has no rational link to any government purpose. Let alone any
legitimate one. This is because no purpose has been identified by the respondents as
the objective of the exclusion. On the contrary, the respondents have conceded, rightly
so, that the exclusion serves no purpose. Accordingly, the impugned provision fails the
rationality standard and as a result it is inconsistent with section 9(1) of the Constitution.
For this reason alone it should be declared invalid to the extent of the inconsistency.
Other grounds of invalidity
For various reasons it is not necessary to determine whether the other grounds
on which the applicants relied, for challenging the validity of the impugned provision,
were established. First, the conclusion on rationality is sufficient for striking the
provision down. Second, the respondents have conceded that the provision is invalid.
Third, the rationality issue which is the easiest of them all to determine, shows that the
impugned provision is indeed inconsistent with the Constitution. Fourth, in the context
of an equality claim, rationality falls to be determined first under the Harksen test. Fifth,
there are no reasons compelling that the unfair discrimination claim and the other two
grounds also be adjudicated in this matter. If these issues were not addressed in the first
judgment, I would not mention or consider them.
Unfair Discrimination
As mentioned, it is not clear from the first judgment whether this claim was based
on the discrimination against domestic workers, as a class of workers or n ot. This is
important as it determines how the Harksen test should be applied. For example, as
‘domestic worker’ is not one of the grounds listed in section 9(3), it does not trigger the
presumption in section 9(5). The effect of this is that the burden was on the applicants
to establish not only that the differentiation rises to discrimination but also that it
amounts to unfair discrimination.
JAFTA J
63
The fairness of the discrimination would have to be assessed in the context of
COIDA. COIDA abolishes the emp loyees’ common law claim against employers for
compensation for injuries suffered in the course and scope of work. The abolished claim
is replaced with a statutory claim against the compensation f und controlled by the
Director-General. Classes of workers excluded from COIDA, retain their common law
right but they do not enjoy the COIDA statutory right. Domestic workers are not the
only class excluded. The exclusion also applies to members of the South African
National Defence Force and members of the South African Police Service, Black and
White. In addition, it applies to labour brokers, regardless of their race just as it covers
all domestic workers in private households, Black and White. The true position is that
COIDA creates two categories of employees who enjoy compensation for injuries
sustained at work. One category benefits from the statutory right and the other is
entitled to compensation under the common law.
It is in this context that it must be established whether the differentiation
constitutes discrimination and if it does, whether that discrimination is unfair. The first
judgment overlooks this inquiry which entails the application of the Harksen test. In
the view I take of the matter, it is not necessary to evaluate the evidence to determine
whether the unfair discrimination claim has been proved. The breach of the rationality
requirement suffices for declaring the impugned provision invalid.
Right to Dignity
The first judgment finds that domestic work is undervalued. Proceedin g from
this premise, it holds that the failure to recognise domestic work as real work in the
impugned exclusion amounts to “domestic workers themselves not being treated with
dignity”.157 This is mistaken. The dignity of domestic workers is not bound up w ith
the type of work they do. If that work is not recognised as real work, it does not follow
as a matter of course that the dignity of those who perform the work is undervalued.
157 First judgment at [108].
JAFTA J
64
Dignity attaches to individuals regardless o f the work they do which is not a personal
attribute of an individual.
But even if it is true that domestic workers are undervalued, this does not flow
from the exclusion from COIDA benefits. It is difficult to appreciate how COIDA, by
the exclusion alone, can be regarded as impairing the dignity of domestic workers. The
real issue is that the exclusion treats domestic workers and other workers, including
members of the South African National Defence Force and the South African Police
Service, differently to other workers who receive statutory compensation. It may well
be that the advantages of the statutory compensation outweigh those of the common law
claim. But this does not lower or degrade the dignity of the soldiers, the police, labour
brokers and domestic workers.
The exclusion does not target domestic workers on the basis of human attributes.
Instead, they are excluded on the ground of their occupation just like members of the
South African National Defence Force, South African Police Service and labour
brokers. Of itself, the exclusion does not have a dehumanising or degrading effect on
the groups of workers to whom it applies. Nor does it reduce their worth as human
beings.
With regard to members of the South African National Defence Force, the
exclusion is apparently ju stified because they enjoy the same right under a different
statute. Consequently, the COIDA exclusion has no impact on them. This illustrates
the simple point that the impugned exclusion does not inherently have an effect that
impairs the dignity of tho se it excludes from the COIDA benefits. Therefore, the
exclusion in these circumstances may impair the dignity of domestic workers only if
there is proof that it accords them a status inferior to the one enjoyed by the workers
entitled to COIDA benefits. In other words, it must be established that the common law
claim retained by the excluded groups is inferior to the COIDA statutory right.
JAFTA J
65
All this has not been established here. Instead , what we have is that employers
undervalue domestic workers. But as mentioned the employers’ conduct in this regard
does not stem from the impugned exclusion. If employers violate the domestic workers’
dignity, this can be stopped by enforcing the workers’ right to dignity against
employers. The removal of the exclusi on cannot protect domestic workers from the
employers’ abuse. More so because under COIDA it is not the employers who pay
benefits. Therefore, there is no correlation between the abuse and the benefits
concerned.
Right of access to social security
The first judgment holds that the impugned provision infringes section 27(1)(c)
of the Constitution. It reasons that by failing to extend the benefits of COIDA to
domestic workers employed in private households, the impugned provision violates
section 27(1)(c).158 The reasoning is based on the proposition that section 27(1)(c) read
with (2) requires the state to take reasonable legislative and other measures to achieve
progressive realisation of access to social security, including appropriate social
assistance.
In determining whether COIDA is legislation contemplated in section 27(2) of
the Constitution, the first judgment holds that COIDA benefits payable to dependants
of a deceased employee serve a similar purpose to social grants. Therefore, th e
first judgment concludes from this that COIDA provides for social security envisaged
in section 27 of the Constitution159.
I disagree. This reasoning proceeds from an incorrect premise. The question
whether COIDA regulates the section 27(1)(c) right may be determine d with reference
to the text of section 27. There is nothing in the language of the section suggesting that
158 Id at [67].
159 Id at [53].
JAFTA J
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some of the conditions to enjoying the right guaranteed by section 27(1)(c) are that there
must be harm suffered as a result of bodily injuries sus tained by an employee in the
course of her employment 160. The section confers on everyone the right of access to
social security which includes access to social assistance if the person concerned cannot
support herself and her dependants. The condition for social assistance is the right
bearer’s inability to support herself and nothing else.
Incorporating COIDA into section 27 of the Constitution leads to new and further
conditions being introduced for the enjoyment of the right in section 27(1)(c). In
addition, that interpretation is not supported by the text of the section. But more
importantly, that interpretation creates a separate right of access to social security which
is limited to only employees and their dependants. This is contrary to the ex press
provision that the right is available to everyone unable to support themselves and their
dependants.
Moreover, a claim for compensation under COIDA is not subject to limitations
in section 27(2)161. The enforcement of the statutory right in COIDA is not subject to a
progressive realisation requirement. Nor is it contingent upon available resources.
Once it is established that an employee is injured at work, the Director -General of the
Department of Labour must pay compensation. All this illustrates the distinction
between the statutory right in terms of COIDA and the constitutional right in
section 27(1)(c).
160 Section 27(1) of the Constitution provides:
“Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.”
161 Section 27(2) of the Constitution provides:
“The state must take reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of each of these rights.”
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As the facts on record show that Ms Mahlangu depended solely on financial
support from her late mother, it appears that she cannot support her self and this alone
qualified her for social assistance from the State. And if she had demanded such
assistance, the State would have been obliged to provide it. The State could not have
resisted her claim on the ground that she does not meet COIDA requirements or that her
mother, as a domestic worker, was excluded from having access to COIDA benefits.
COIDA has no bearing on the enforcement of the right in section 27(1)(c) of the
Constitution. Consequently, it cannot be inconsistent with that section.
Ms Mahlangu’s right which was contingent upon her mother’s death, is her claim
for loss of support. That is her common law right which she still has. Because it was
her mother who lost the right to life as a result of the accident, no constitutional rig ht
under section 27(1) of Ms Mahlangu was affected. This means that she retained all her
rights under this section which she could enforce without any reference to her mother’s
death.
When an employee sustains an injury in the course of her employment, t he
constitutional rights affected are those of the employee alone. One of them is the right
to security of the person, which includes freedom from all forms of violence guaranteed
by section 12(1)(c) of the Constitution 162. In Mankayi, Khampepe J held that COIDA
implicates this right:
“The issue that the High Court was required to deci de was whether section 35(1)
of COIDA extinguishes the common law claim of an employee, who is not entitled to
162 Section 12(1) of the Constitution reads:
“Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.”
JAFTA J
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claim for compensation under COIDA but only under [Occupational Diseases in Mines
and Works Act]. If AngloGold‘s contention is correct then this provision extinguishes
Mr Mankayi‘s common law right to sue it for negligence. This issue ineluctably
implicates the right to freedom and security of a person as enshrined in section 12 of
the Constitution. The right in section 12(1)(c) confers on everyone the right to be free
from all forms of violence from either public or private sources.”163
And after referring to Law Society of South Africa , my colleague proceeded to
say:
“The protection of the right to the security of the person may be claimed by any person
and must be respected by public and private entities alike. Neither counsel addressed
specific argument on whether the alleged extinction of a common law right infringed
upon section 12(1)(c). Despite the absence of pointed argument on this issue, in my
view the question whether this Court entertains jurisdiction to decide a case does not
depend on counsels’ approach. What is evident is that the right to security of the person
is engaged whenever a person is subjected to some form of injury deriving from either
a public or a private source. This is because the common law rig ht to claim damages
for the negligent infliction of bodily harm constitutes an effective remedy required by
section 38 of the Constitution in order to protect and give effect to the section 12(1)(c)
right, as in Law Society.”164
The conclusion reached in th e first judgment is at odds with the decisions in
Mankayi and Law Society of South Africa. In the latter case, Moseneke DCJ observed:
“A plain reading of the relevant constitutional provision has a wide reach. Section
12(1) confers the right to the secu rity of the person and freedom from violence on
‘everyone’. There is no cogent reason in logic or in law to limit the remit of this
provision by withholding the protection from victims of motor vehicle accidents.
When a person is injured or killed as a r esult of negligent driving of a motor vehicle ,
the victim‘s right to security of the person is severely compromised. The state, properly
163 Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 13.
164 Id at para 15.
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so, recognises that it bears the obligation to respect, protect and promote the freedom
from violence from any source.”165
The rights to security of the person and freedom from violence entrenched in
section 12 of the Constitution also exist under the common law. These rights have
received statutory protection in COIDA and its predecessors. The history of that
legislation is comprehensively set out in Mankayi and as a result, there is no need to
repeat it here 166. Unlike the socio -economic rights which were introduced by the
Constitution, the right to have compensation for bodily injuries has been part of our law
since time immemorial. This illustrates that the right regulated by COIDA differs from
the socio-economic rights in section 27(1) of the Constitution.
The approach preferred in the first judgment would also lead to anomalies. The
first anomaly is that, having co ncluded that COIDA was legislation envisaged in
section 27(2) of the Constitution, the first judgment holds that section 27(1)(c) is
infringed. This is at variance with our jurisprudence which states that measures adopted
in compliance with section 27(2) may be challenged only on the ground of
reasonableness.167 If a legislative measure is found to be unreasonable, it constitutes a
violation of section 27(2) and not 27(1).
The other anomaly is that under COIDA, compensation is payable on demand and under
section 27 social security assistance is not. With regards to payment of compensation
under COIDA, if the Director-General fails to compensate a claimant who is entitled to
compensation, a court of law may intervene, determine the amount payable and order
the Director-General to pay with immediate effect. This is not the position in relation
to socio-economic rights. This was made plain in Mazibuko:
165 Law Society of South Africa above n 155 at para 63.
166 Mankayi above n 165 at paras 41-55.
167 Mazibuko v City of Johannesburg [2009] ZACC 28; 2010 (4) SA 1 (CC); 2010 (3) BCLR 239 (CC) at paras 59-
67.
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“Secondly, ordinarily it is institutionally inappropriate for a court to determine
precisely what the achievement of any particular social and economic right entails and
what steps government should take to ensure the progressive realisation of the right.
This is a matter, in the first place, for the legislature and executive, the institutions of
government best placed to investigate social conditions in the light of available budgets
and to determine what targets are achievable in relation to social and economic rights.
Indeed, it is desirable as a matter of democratic accountability that they should do so
for it is their programmes and promises that are subjected to democratic popular
choice.”168
Evidently, payment of co mpensation under COIDA is not subject to the
reasonableness of measures taken by the state. Nor is it contingent upon available
resources. Yet, it cannot be gainsaid that the right in section 27(1)(c) is subject to all
these constitutional conditions, in cluding progressive realisation of socio -economic
rights.169 Therefore, the COIDA claim for compensation for bodily injuries does not
constitute a socio-economic right enshrined in section 27(1) of the Constitution. And a
failure to pay compensation does not amount to a breach of that section.
With regard to remedy, I embrace the first judgment’s analysis and for all these
reasons I support the order proposed in the first judgment.
168 Id at para 61.
169 Grootboom above n 61.
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MHLANTLA J:
Introduction
“What amazed me as a worker is that she is a woman just like me. But when she
want[s] to shout at me, she will shout at me. Then it seems to me that I am a child.
And one day I stood up and I said to her that she must remember and she must also
respect me as a worker and as a woman, because I am a woman just like she is.”170
I have had the pleasure of reading the two judgments by my colleagues ,
Victor AJ (first judgment) and Jafta J (second judgment). I agree that the impugned
provision is unconstitutional and thus support the order. I support the judgment of my
sister Victor AJ when it comes to her reasoning on equality, unfair discrimination and
dignity. However, I depart from her approach and support my brother Jafta J when it
comes to the particular issue of social security for the reasons he gives. I agree that,
based on the plain reading of the section coupled with other key differences between
the statutory right juxtaposed against the constitutional right, one cannot merely
incorporate COIDA into section 27(1)(c).171
I write this concurrence to underscore the historical significance of this matter
coupled with its intersectional nature. Importantly, it is to recognise the fundamental
role domestic workers play in building and nurturing our society that has often gone
unacknowledged due to the informal and private nature of their role.
170 Fish “Engendering Democracy: Domestic Labour and Coalition -Building in South Africa” (2006) 32 Journal
of Southern African Studies 107 at 112 quoted from a domestic worker interview, February 2001.
171 See second judgment at [171] to [173].
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Historical perspective
The ro le of the domestic worker, and failure to deem them – by them,
predominantly Black women172 – worthy of COIDA’s protection, is a manifestation of
our past that seeps through to our present. This is a complex history entrenching racism,
sexism and social class.
I accept the warning lamented by Cameron J in Daniels that “it is not within the
primary competence of judges to write history”. 173 An attempt to write history or
overcome the “perils of writing history” 174 is not the aim of this concurrence. Rather,
this concurrence wishes to “give voice to history” 175 and afford “recognition of the
historical injustice that underlies” 176 the plight of domestic workers in this matter.
Considering this issue through a historical lens is particularly relevant – and necessary
– given the injustices experienced by domestic workers, and tha t they are labelled as a
ghost;177 “invisible”;178 plagued with “historical silence”; 179 and rendered
“powerless”.180 But, why is this so?
172 In South Africa, domestic work represents a sizeable segment of the employment base. Of those employed in
this sector, the majority are female. See Department: Statistics South Africa Quarterly Labour Force Survey
(P0211, February 2020). It is worth noting that the inescapable cycle that has led to black women making up the
majority of domestic workers comes from the fact that some black women were and are systematically excluded
from contributing to the economy, and as a result, are left to take up domestic responsibilities in their own homes.
See further Department: Women The Status of Women in the South African Economy (1 August 2015).
173 Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) at para 150.
174 Id at para 152.
175 Id at para 147.
176 Id at para 116.
177 Baderoon “The Ghost in the House: Women, Race and Domesticity in South Africa” (2014) 1 Cambridge
Journal of Postcolonial Literary Inquiry 173 at 179.
178 Cock Maids and Madams: A Study in the Politics of Exploitation (Ravan Press Johannesburg 1980) at 278.
179 Gaitskell et al “Class, Race and Gender: Domestic Workers in South Africa” (1983) 27/28 Review of African
Political Economy 86 at 107.
180 Gwynn “Overcoming Adversity from All Angles: The Struggle of the Domestic Worker du ring Apartheid”
South African History Online (10 June 2015) , available at https://www.sahistory.org.za/article/overcoming-
adversity-all-angles-struggle-domestic-worker-during-apartheid-bennett-gwynn. See further Cock above n 178
at 232.
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The reasons originate from the grinding together of the tectonic plates of racism,
sexism, and social class, which are all exacerbated by the private nature of their place
of work – the household. This intersectional picture of discrimination is not novel . It
was also painted by the scholar Cock. In the 1980s, she reported that “domestic workers
are situated at the convergence of three lines along which social inequality is generated:
sex, class and race”.181 She went on to state that domestic workers’ experiences typify
“ultra-exploitation” and that:
“Domestic service in South Africa is a social institution that has a special significance,
firstly in the sense that it constitutes the largest single source of employment for Black
women after agriculture. Secondly, domestic service constituted an ini tial point of
incorporation of Black women into colonial society . . . while domestic service until
1890 was a kaleidoscopic institution [that involved various races], men as well as
women, it has gradually been transformed into a predominantly black female
institution. As such, it reflects changing patterns of sexual and racial domination.
Thirdly, domestic service is a microcosm of the existing pattern of inequality in
South Africa, and contributes to these inequalities in important ways. Fourthly,
domestic service is significant in that it is an important route of incorporation into
urban-industrial society for many Black women.”182
It is worthwhile to further unpack the patterns of race, sex, gender and class from
a historical perspective. First, there is the discriminatory notion that domestic work,
with its low wages and poor working conditions, should be performed in most instances
by black people, as a form of slavery, servitude, subordination and oppression. 183
Through white settlers and colonialism, the role of the domestic worker shifted from
181 Id at 263.
182 Id at 307. See also Women in Informal Employment: Globalizing and Organizing (WIEGO) “Domestic
Worker’s Laws and Legal Issues in South Africa” ( November 2014), available at
http://www.wiego.org/sites/default/files/resources/files/Domestic-Workers-Laws-and-Legal-Issues-South-
Africa.pdf.
183 Gaitskell et al above n 179 at 88 states that:
“[A]s has already become clear, domestic service, especially in colonial societies, has a racial
character. Almost everywhere in the world it is performed by ‘socially infer ior’ groups:
immigrants, blacks, and ethnic minorities. In South Africa, from the turn of the century,
household-based domestic service has been above all a black institution”.
MHLANTLA J
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white women to women of colour , again with the majority being Black women.
Initially, b lack men conducted domestic services and in certain areas, black men
dominated the domestic services space. 184 However, over time the domestic work has
increasingly been done by a black female -dominated workforce. This has been
attributed to black male labour being absorbed by growing industrial sectors such as
mining and manufacturing,185 coupled with the concomitant increase in the demand for
domestic workers.186
This is where the intersection of sex, gender and class is pertinent. It is said that
“domestic service for [B lack women] above all meant access to a wage ” and that
“[Black women] stayed in domestic service becaus e of a lack of alternative job
opportunities”.187 The disparities in the relationship between domestic workers and
their employers were formalised and further entrenched by the apartheid regime. 188 In
addition, the plight of domestic workers is ignored because the work these women
perform is seen as inferior and not as challenging as a traditional man’s job. 189 That
view perpetuates the gendered character of domestic work and the notion that household
work – such as washing, cleaning, cooking and child-care – is naturally women’s work,
and is not as psychologically challenging, physically strenuous, and socially productive
as men’s work. It also fails to acknowledge the long-hours, quiet monotony, and close
184 Id at 100, in which Gaitskell et al note that “the labour of African so-called ‘houseboys’ was in great demand
and well-paid”.
185 Id at 101. Gaitskell et al state that:
“In the context of a racially segregated job market, domestic service for African women above
all meant access to a wage. They got a foothold in the domestic serv ice market when women
of other races were not available or had escaped its low wages and poor conditions; or when
employers found men more expensive to employ or hard to recruit, or when men were
considered unsuitable”.
186 Id at 100.
187 Id at 101.
188 See Lund and Budlender “Research Report 4: Paid Care Providers in South Africa: Nurse, Domestic
Workers, and Home-Based Care Workers” United Nations Research Institute for Social Development
(April 2009), available at
https://www.unrisd.org/unrisd/website/document.nsf/8b18431d756b708580256b6400399775/57355f8bebd70f8
ac12575b0003c6274/$FILE/SouthAfricaRR4.pdf.
189 Gwynn above n 180.
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supervision that domestic work entails. All the se cruel injustices tend to go unnoticed
simply because they operate in the private sphere.190
Post-apartheid
Let us consider the plight of domestic workers since the advent of the
Constitution. While domestic workers have achieved unionisation, minimum wa ges,
and are included in the Basic Conditions of Employment Act, 191 according to a study
many domestic workers report that despite ongoing and abundant regulation to secure
their rights the reality in their lived-experiences at work is that they are yet to s ee any
fundamental and tangible changes .192 They claim that some employers “remain
uninformed about domestic labour laws” and others are defiantly reluctant to abide by
them.193 One of the reasons may stem from the “severe power asymmetries that
continue to privilege employers and to protect the private household employment
space”.194 This is experienced despite the fact that our post-apartheid households have
changed, and domestic workers are employed in households of diverse races, religions,
cultures and varying socio-economic classes.
The impact of this judgment must go beyond a symbolic victory for domestic
workers, and should also, practically speaking, cement their rights and place in our
society. Domestic wor kers have for many years reported being unable to vindicate
rights through legislative protection;195 this may, to an extent, be attributed to traditional
attitudes towards domestic workers. Generally speaking, women have been expected
to shoulder cooking a nd cleaning as well as caring for children, the elderly, and the
disabled, among others. And this has notoriously come without real recognition under
190 See further Cook Human Rights of Women: National and International Perspectives (Penn Press, Pennsylvania
2016) at 70.
191 75 of 1997.
192 Fish above n 170 at 117.
193 Id. One interviewee reported that: “after employing the same woman for over eighteen years . . . she had no
knowledge of the labour legislation nor any intention of implementing it in her household work context”.
194 Id at 117.
195 Id at 116.
MHLANTLA J
76
the women’s own household and a similar lack of acknowledgement in the professional
sphere. The perceptions about the innate nature, as opposed to the formal acquisition,
of skills and competencies required to perform these tasks persist. In turn, this feeds
into the reason why the exclusion of domestic workers from COIDA has gone
unremedied for far too long.
That domestic workers are afforded protection by COIDA is critical for various
reasons. Women conducting domestic work are often the financial head of their
families. In our African context, this is often an extended family where one provides
for her children, grandchildren, other relatives and, at times, others who are not even
relatives. Whilst they deserve to be lauded as family matriarchs who respond to
situations of hardship by providing aid, they remain stuck in the historical cycle of
poverty.196 To add to their plight, apartheid, and further discrimination , resulted in
Black women being historically and generationally impacted, such women were often
singlehandedly providing the foundation to their family, and, collectively, to millions
of families.197
Furthermore, the working hours for domestic workers have been described as
long and unpredictab le. In reality, this class of B lack women dedicates a substantial
amount of time to provide support to another family while being away from their own
196 In addition, female-headed households suffer a greater incidence of poverty than male-headed households
and the women in the former tend to be the main earner despite earning significantly less than men. See Nwosu
and Ndinda “Female Household Headship and Poverty in South Africa: An Employment Based Analysis ”
Economic Research Southern Africa (August 2018), available at
https://econrsa.org/system/files/publications/working_papers/working_paper_761.pdf .
197 Gywnn above n 180. Further, this trend is seen in other countries as well, where women commonly from
comparatively lower socio-economic statuses are the ones who gravitate towards domestic work. Thus, having a
large and crucial yet silent role in being foundational to supporting the pr ogression of the economy in countries
all over the world. See ILO Report above n 1: in Asia, domestic work is one of the most important sources of
employment for Asian women, comprising predominantly women (at 82%) and up to 7.8% of all women in paid
employment. In the Middle East, domestic work, often taken up by migrant workers, accounts for almost 6% of
employment, but in specific countries accounts for up to 21%. The gender demographic differs, however, as men
make up a third of domestic workers. Th is is in part due to the low employability of women; 32% of all female
wage workers in the Middle East are domestic workers. Africa has 5.2 million domestic workers employed
throughout, with 3.8 million being women. Figures in European nations vary drastically with women in countries
such as France, Italy and Spain making up 80 -90% of the sector, versus 60% in the United Kingdom. Still the
trend dictates that it is a highly female -saturated field, where many are “migrants or members of historically
disadvantaged groups” at 28-39.
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77
children.198 Cock aptly captures this tragic bind as follows: “cheap, black, domestic
labour is the instrument whereby white women [today, women of any colour]” escape
from some of the constraints of their domestic roles. They do so at a considerable cost
to Black women, especially mothers. 199 This pattern, largely created by the apartheid
system that perpetuated migrant labour, is said to have dismantled the family unit. The
tragic consequence is felt to this day. This lived reality of predominant time sp ent in
their employers’ household s coupled with the pressure of being the breadwinner,
demonstrates th e importance of COIDA’s protection and the assurance of safe and
decent working conditions.
The plight of domestic workers has a unique and entrenched hi story in the
South African context and these battles persist to this day. Yet, this problem transcends
our borders. It is a global phenomenon fought by many women of vulnerable,
disadvantaged and minority backgrounds. 200 The International Labour Organisat ion,
through the Domestic Workers Convention, 201 recognises that part of what lends to
vulnerability and the precarious situation is the private and informal nature of the job.202
The International Labour Organisation further recognises that domestic work is work
like no other and that it has special characteristics which lead to domestic workers
facing particular vulnerabilities, warranting specific responses to ensure the vindication
of their rights.203
Concluding remarks
Domestic workers – despite the advent of our constitutional
dispensation – remain severely exploited, undermined, and devalued as a result of their
198 Cock above n 178 at 75.
199 Id at 259.
200 See further United Nations Sustainable Development Goals; CEDAW above n 39; and ICESCR above n 34.
201 Domestic Workers Convention above n 8.
202 Id.
203 Id at 43 states that “[e]xtending the reach of labour law is a means of bringing domestic workers within the
formal economy and into the mainstream of the Decent Work Agenda”.
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78
lived experiences at the intersecti ng axes of discrimination. Yet, these B lack women
are survivors of a system that contains remnants of our colonial and apartheid past.
These Black women are brave, creative, strong, and smart. They are committed mothers
and caretakers and have the ability to perform work in conditions that are challenging
both psycholo gically and physically. These B lack wom en are not “invisible” or
“powerless”. On the contrary, they have a voice , and we are listening. These
Black women are at the heart of our society. Ensuring that they are afforded basic
rights, and an avenue to vindicate these rights, is central to our transformative
constitutional project.
Therefore, I support the order proposed in the first judgment.
For the Applicants:
For the Respondents:
For the First Amicus Curiae:
For the Second Amicus Curiae:
K Moroka SC and M Lekoane instructed
by the Socio-Economic Rights Institute
of South Africa
N H Maenetje SC and R Ramashia
instructed by State Attorney, Pretoria
E Webber and L P hasha instructed by
Norton Rose Fulbright South Africa
Incorporated
P Khoza instructed by the Women’s
Legal Centre