The Mahlangu Case and The Recognition of Women’s Work as Work

This judgment realises the rights of domestic workers in South Africa

Cape Town, 19 November – Domestic workers in South Africa have historically been discriminated against by not having their care work recognised as work, and by being excluded from social security benefits that other workers benefit from. Today, the Constitutional Court has taken a critically important step to realise the rights of domestic workers in the case of Sylvia Mahlangu v The Minister of Labour.

The Court found that section1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is unconstitutional because it specifically excludes domestic workers from the protection that the Act affords other workers. The Court found that the order of invalidity should take immediate and retrospective effect from 27 April 1994.

The case asks the important question of why and how the government can justify excluding domestic workers from social security benefits in the form of occupational health and safety protection. The Compensation for Occupational Injuries and Diseases Act 130 of 1993 specifically excludes domestic workers from benefitting from compensation for injuries of diseases that they may have contracted through their employment.

The Women’s Legal Centre (WLC) was admitted as a friend of the court by the Constitutional Court. Earlier this year, we argued that there can be no justification for the ongoing discrimination that domestic workers face. We advocated that the Court should apply an intersectional and gender lens to the facts before it – even though the matter concerned a specific domestic worker who drowned in her employer’s swimming pool while at work – the risk, prejudice and discrimination is not unique to her and her family left behind.

We placed before the Court that women make up the majority of domestic workers not only in South Africa, but internationally. In South Africa, we have a very particular context to domestic work and we therefore cannot look past the fact that the majority of domestic workers in our country are black women. Black women have historically been discriminated against in our society and in the workplace. In South Africa, black women were excluded from contributing to the formal economy and were relegated to performing what was considered menial tasks such as cooking, cleaning and caring for children. The gendered nature of care work in the home and the lack of value that is afforded by society and in law can therefore not be overlooked by government. The government has an obligation to address this discrimination and not to perpetuate it.

The Constitutional Court relied on our evidence of racial inequality and the discrimination that black women face, as well as our arguments on the importance of the recognition of domestic workers and the financial contribution that they often make to extended families in its deliberation of the facts before it.

Intergenerational poverty can be addressed if the work that women do as care workers are recognised, adequately valued, rewarded and if the women who do the work are afforded the social security insurance benefits that they are entitled to. The judgment is even more important against the backdrop of COVID-19, where domestic workers are at high-risk working in homes with little to no protection. We welcome the decision of the Court to recognise a category of women who are far too often overlooked in our society. We further express our gratitude to Advocate Palesa Khoza who represented the WLC in the Constitutional Court and to Bowmans Attorneys who acted as our correspondents in the matter.

For more information on the Mahlangu Case and to view the judgement, visit the link below.



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