What the Constitutional Court's injury on duty ruling means for domestic workers

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Domestic workers can now claim from the compensation fund.
Domestic workers can now claim from the compensation fund.
GALLO IMAGES: Jacques Stander

They are often seen as the backbone of households. Things would ground to a halt without them and they've raised millions of kids that are not their own, without complaining. 

But when they got injured at their place of work, there wasn't a recourse for them. 

Domestic workers have been attacked, have been bitten by dogs and have died on the job and there was no compensation for them. 

Until now. 

In a David beat Goliath case, domestic workers can now claim for injury on duty. The Constitutional Court has ruled in favour of a woman whose mother drowned while she was working as a domestic worker in 2012.

Maria Mahlangu died in her employer’s pool in Pretoria and her daughter, Syliva, went to court after she was not able to claim from the Department of Labour. She was assisted by the South African Domestic Service and Allied Workers Union (SADSAWU). Her mother had been employed by the same family for 22 years and was the breadwinner.

In the judgment, the ConCourt judges said it was important to amend the Compensation for Occupational Injuries and Diseases Act (COIDA).

“The invalidation of section 1(xix)(v) of COIDA 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.”

Read more3 domestic workers share how Covid-19 severely impacted their livelihoods

Not only does the ConCourt judgment deal the amendment of the act, but also the unfair discrimination women are often at the receiving end of as domestic workers.

“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 workers have for many years reported being unable to vindicate rights through legislative protection; this may, to an extent, be attributed to traditional attitudes towards domestic workers. 

“Generally speaking, women have been expected to shoulder cooking and cleaning as well as caring for children, the elderly, and the disabled, among others. And this has notoriously come without real recognition under 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 . . . Furthermore, the working hours for domestic workers have been described as long and unpredictable. In reality, this class of Black women dedicates a substantial amount of time to provide support to another family while being away from their own children.”

The court found that domestic workers have for too long not been given the recognition they deserve and as a result, they have been exploited.

“Domestic workers – despite the advent of our constitutional dispensation – remain severely exploited, undermined, and devalued as a result of their lived experiences at the intersecting axes of discrimination. Yet, these Black 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 psychologically and physically. These Black women 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.”

Read moreWATCH | Lockdown: Cape Town domestic worker feeds hungry children in her community

Zanele Diniso, the managing director of Periwinkle Home Executives, says this ruling is a major win for women.

“By amending COIDA for domestic workers, we are really standing alongside one another, supporting every women from the lowest level of employment. After all, someone helping you take care of a home is the highest calling of service. Therefore, I hope the government will open more doors for home executives.

"This is no means to catch anyone out, but we should be unified in our thinking that we are building one another. We are not just talking about gender equality but we also support it,” she says.

“It is with sadness though that someone had to die so that its importance could be acknowledged by and approved by the courts. This may scare some employers of home executives [because] they might argue that they too do not get enough salaries at work, so they will no longer afford a home executive at home with the COIDA implemented.

"I think we should look at this with understanding that we are truly employment creators and if you were to be injured at work, you too would request compensation."

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