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Inclusion of domestic workers under COIDA

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Domestic workers were previously not entitled to compensation for disablement caused by occupational injuries or diseases sustained or contracted by them in the course of their employment and dependants of domestic workers who died as a result of such injuries and diseases were also not entitled to compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (“COIDA”).

In 2015, Sylvia Mahlangu, with the backing of the Socio-Economic Rights Institute (“SERI”) and the South African Domestic Service and Allied Workers Union, decided to take the fight to the Department of Labour by seeking the inclusion of domestic workers under COIDA. Ms Mahlangu’s mother she drowned in a pool at her workplace in 2012. Ms Mahlangu attempted to claim benefits under COIDA as a dependent, and was informed that domestic workers were excluded from COIDA. As a result, she launched an application in the North Gauteng Division of the High Court seeking to declare the provisions of COIDA that exclude domestic workers from its ambit unconstitutional and that the declaration of unconstitutionality apply retrospectively.

On 23 October 2018, the Minister of Labour published the COIDA Amendment Bill, 2018 which sought to amend COIDA to extend coverage to domestic workers and thereby address the challenge to COIDA brought by Ms Mahlangu. On 23 May 2019, Molopa J granted an order, by consent, declaring section 1(xix)(v) of COIDA unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”. The High Court postponed the question of whether the declaration of unconstitutionality should apply retrospectively, to a later date. The question of retrospectivity was argued on 12 June 2019. We await the order in this regard.

A declaration of constitutional invalidity issued by the High Court has no force and effect until it is confirmed by the Constitutional Court. On 6 November 2019, SERI submitted an application for confirmation with the Constitutional Court and the matter was heard on 10 March 2020, however, judgment was reserved. Effectively, pending the confirmation of the High Court’s order by the Constitutional Court or pending any interim order granted by the High Court, the exclusion of domestic workers from COIDA remains in force.