Pretoria - In yet another victory for domestic workers, the Gauteng High Court in Pretoria on Thursday ruled that those injured in the past while on duty will be able to claim damages.
The court ruled in May this year that the exclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act (COIDA) is unconstitutional.
Judge Colleen Collis now confirmed that the section of COIDA which excludes domestic workers employed in private households is invalid and unconstitutional. But this time, the court went a step further and ordered that the invalidity will be of immediate and retrospective effect. However, it first had to be confirmed by the Constitutional Court, which is expected to only happen next year.
Thursday's order brings those domestic workers who were in the past injured while on duty a step closer to receive compensation and justice.
This includes the family of Maria Mahlangu, who died while on duty. She fell into her employer’s pool while she was cleaning windows and she drowned.
Her family was told at the time that they could not claim compensation as the dependents of domestic workers were excluded from COIDA benefits.
The May ruling meant that domestic workers and their families would be eligible for compensation if injured on duty, once the Constitutional Court endorsed the high court ruling. But the issue of retrospective was not addressed, which would ensure that past cases would also be eligible for compensation.
Pinky Langa, founder of the United Domestic Workers of South Africa (UDWOSA) said this issue was also important to them because many domestic workers were injured and even died in the past, among others, though dog bites while on duty.
“This is a victory for us and we will now approach the Constitutional Court with confidence that it will also rule in our favour. Government had denied domestic workers their right for a long time as it discriminated against us. We will move forward with the confidence that those injured on duty and the families of those who had died, will at long last receive compensation, “ Langa said.
Thursday's ruling was made following an agreement between Sylvia Mahlangu, one of Maria Mahlangu’s daughters, who was cited as the first applicant and the minister of labour and his department. This department from the start did not oppose the proceedings, as it was undisputed that COIDA’s exclusion of domestic workers is unconstitutional. COIDA was promulgated in 1993 and it remained in force for 25 years.
Government in 2015 already stated that an amendment had been drafted which sought to include domestic workers under the ambit of COIDA, but it never at the time produced this draft bill or provide details on how far it was.
It now said that the minister of labour had already started working on the process of amending COIDA to ensure that it complies with the Constitution. Government’s stance was that it preferred to enter into a dialogue with the applicants and other stakeholders regarding the orderly phasing in of the amended COIDA, while agreeing on realistic timelines, rather than following the legal route.
But counsel for the Mahlangu family and the South African Domestic Service and Allied Workers Union, cited as 2nd applicant, felt it was important for the court to pronounce on the issues, including this last matter of retrospectivity.