Mahlangu and Another v. Minister of Labour and Others, ZACC 24

Sylvia Bongi Mahlangu, the daughter of a South African domestic worker, Maria Mahlangu, sued the government’s labour office when she was denied benefits under the Compensation for Occupational Injuries and Diseases Act (COIDA) after her mother’s death in a work accident. The court found that the denial of benefits to individuals employed as domestic workers (and to their families) under COIDA was unconstitutional. The court relied upon Sections 9, 10 and 27(1)(c) of the South African Constitution and South Africa’s obligations under regional and international law.

Date of the Ruling: 
Nov 19 2020
Constitutional Court
Type of Forum: 

At the time of her death, the deceased, Maria Mahlangu, was a domestic worker in a private home in South Africa. Ms. Mahlangu’s daughter and grandchild were financially dependent upon her at the time of her death. Ms. Mahlangu’s daughter asked the Department of Labour for help in the form of compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA) or unemployment insurance benefits. The Department of Labour denied both because Ms. Mahlangu was a domestic worker, and domestic workers who work in private homes were specifically excluded from the definition of employee in terms of COIDA. Ms. Mahlangu’s daughter petitioned the court to have the definition of “employee” in COIDA and her mother’s exclusion declared unconstitutional.

The Court found section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) unconstitutional under Sections 27 and 9 and 10 of the Constitution. The definition of “employee” in the COIDA text created an exception for domestic workers in private households that excluded them from coverage. All other workers in South Africa receive coverage under COIDA and have been covered since the law was passed in 1993.

Sections 27(1)(c) and (2) of the Constitution protects everyone’s right to access social security, and it requires that the State take reasonable measures to realize this right. In its decision, the Court identified two purposes of social security. First, it said that social security exists to ensure that everyone enjoys access to basic necessities and lives with dignity. It also identified a second purpose: “to undo the gendered and racialized system of poverty inherited from South Africa’s colonial and apartheid past.” The Court interpreted the right to social security to apply to all individuals who have lost their source of income because of the inability to work or the loss of a family breadwinner. It highlighted that the exclusion of domestic workers from the right to social security traps domestic workers and their families in cycles of poverty, and that such injustices are a direct legacy of the country’s past.

Under Section 39(1)(b) of the Constitution, the Court must regard international law when interpreting the rights in the Bill of Rights. The Court invoked the social security provisions of the Universal Declaration of Human Rights (Art. 22), the International Covenant on Economic, Social, and Cultural Rights (Art. 9), the Maputo Protocol (Art. 13), and the Charter of Fundamental Social Rights in the Southern African Development Community (Art. 10), which are all international and regional instruments that South Africa has ratified, to support its conclusion that COIDA includes domestic workers.

Additionally, the Court addressed the plaintiff’s equality challenge under Section 9 of the Constitution, which prohibits unfair discrimination. It evaluated whether the COIDA exclusion of domestic workers serves any rational purpose and determined that the provision is arbitrary and discriminatory under Section 9(1), which prohibits discrimination generally.

However, because of the Applicant’s own intersectionality arguments, and the supporting arguments of the amicus curiae, the Court took a step further and found the discrimination unconstitutional under Section 9(3) as well. The Section 9(3) provision uses the phrase, “[t]he state may not unfairly discriminate directly or indirectly against anyone on one or more grounds...” The court afforded considerable discussion to an analysis of how domestic workers experience discrimination, and have historically been discriminated against, because they are often women, because they are often Black, and because they are often Black women. It found that the phrase “on one or more grounds” demands an analysis of discrimination under each identity, and an intersectional analysis of how overlapping identities exacerbate oppression and discrimination. The Court then found the COIDA provision unconstitutional under Section 9(3) in addition to other constitutional provisions.

Enforcement of the Decision and Outcomes: 

In addition to having immediate effect, the striking of COIDA's section 1(xix)(v) as unconstitutional was given retrospective effect back to 27 April 1994. The Department of Labour was required to pay the applicant's costs.

Groups involved in the case: 
Significance of the Case: 

This case is significant in its call for the value of domestic workers’ labor to be recognized and not subject to discrimination, a key demand of domestic workers around the globe. This case also integrates the concept of intersectionality into legal precedent. It argues that domestic workers are not solely oppressed because they are most often women, or because they are most often Black, but also because they are most often Black women and that the case cannot be adjudicated without a deeper look into the lived reality of Black women who conduct domestic work and the manner in which the COIDA exclusion discriminated against them in multiple and intersecting ways.