Maria Mahlangu had been a domestic worker for two decades when she drowned in her employer’s pool. She was employed by the De Clercq family for 22 years. But when she died, they offered her daughter, Bongi Mahlangu, R5 000 as compensation.
Her mother’s death was the catalyst for the Socio-Economic Rights Institute of South Africa (Seri) to represent Mahlangu at the North Gauteng High Court in Pretoria.
After the funeral, Mahlangu and her aunt approached the Department of Labour to enquire about claiming compensation. They were told they could not be compensated as Maria Mahlangu’s dependants because domestic workers were excluded from the benefits of the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 (Coida).
With help from the South African Domestic Service and Allied Workers Union (Sadsawu), Mahlangu approached public interest law firm Wits Law Clinic and later Seri to challenge the constitutionality of domestic workers being excluded from Coida.
The matter was postponed indefinitely, but it was during this postponement, late last year, that the department published an amendment bill to Coida for public comment.
If the amendments are adopted into law, for the first time in history domestic workers will be eligible to claim from the compensation fund if they are injured, contract a disease or die at their place of work.
This change of heart by the department, a respondent in the case, rendered it moot. Seri told New Frame that the case is now on hold because of the amendment.
What is Coida?
For years, Coida has been the only piece of legislation that excludes domestic workers from the definition of the term “employee”. The Labour Relations Act and Basic Conditions of Employment Act consider domestic workers as employees.
Coida is a social insurance structure that requires employers by law to register employees with the compensation commissioner and make contributions towards the central fund.
In an event that an employee gets injured or contracts an occupational disease, they can claim from the compensation fund. In terms of Coida, if an employer fails to comply they can be held criminally liable.
Coida is based on “no fault compensation”, meaning employees can claim whether they are at fault or not.
For years, domestic workers have been expressly excluded from claiming from the compensation fund for work-related injuries, illness or death.
Not ‘real work’
Florence Sekolane, 46, a domestic worker of almost 18 years and member of Izwi Domestic Workers Alliance, told New Frame that domestic workers rely on the sympathy of employers if they get sick or injured at work.
The United Nations’ International Labour Organization (ILO) quotedIsabel Ortiz, the director of the ILO’s social protection department, as saying that 80% of domestic workers are women and that “most of their work is undervalued and unprotected, when domestic workers become old or injured, they are fired, without a pension or adequate income support.”
South Africa is often described as the most unequal society in the world and has the highest number of domestic workers in the southern tip of Africa. The ILO says there are almost 1.1 million domestic workers and the majority are women.
“Domestic workers go through a lot of stuff. You work more hours, but you get paid less. As domestic workers we are not respected, because we are those people who are undervalued … They don’t see the importance of you in life,” said Sekolane.
Seri researcher Kelebogile Khunou echoed Sekolane’s sentiments, saying that most people think domestic work is not real work and that they are doing domestic workers a favour. As a result, it’s difficult for domestic workers to challenge their employers, with class, gender, race and at times nationality often adding to the difficulty.
Sadsawu views Coida’s exclusion of domestic workers as irrational and unconstitutional because it limits domestic workers to civil claims against an employer.
Some, like Khunou, say the implementation of the amendments will be slow and further prejudice domestic workers. The department’s lack of enforcement and employers’ lack of compliance in paying Unemployment Insurance Fund (UIF) contributions on behalf of their domestic workers erodes confidence that Coida will benefit domestic workers.
Khunou raised the question that, because “the place of work for domestic workers is someone else’s private home, is an employer required to allow a labour inspector to enter their home [to check working conditions and compliance]?”
She welcomed the inclusion of domestic workers within the definition of employees, but asked “how can it take so many years” to change the law. Khunou also questioned “what happens to the domestic workers who have lost their lives and have gotten injured and lost their livelihoods in the past, because it does not seem Coida amendments will apply retrospectively”.