Mahlangu and Another v Minister of Labour and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
• Judgment Date: 19 November 2020
• Court: Constitutional Court
• Hearing Date: 19 November 2020
• Counsel: K Moroka SC (with M Lekoane) for the applicants. NH Maenetje SC (with R Ramashia) for the respondents. E Webber (with L Phasha) for the first amicus curiae. P Khoza for the second amicus curiae.
• Docket Number: 306/19 [2020] ZACC 24

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring):

Introduction

[1] Domestic workers are the unsung heroines in this country and globally. They are a powerful group of women [1] whose profession enables all economically active members of society to prosper and pursue their careers. Given the nature of their work, their relationships with their own children and family members are compromised, while we pursue our career goals with peace of mind, knowing that our children, our elderly family members and our households are well taken care of.

[2] Many domestic workers are breadwinners in their families who put children through school and food on the table through their hard work.

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

In some cases, they are responsible for the upbringing of children in multiple families and may be the only loving figure in the lives of a number of children. Their salaries are often too low to maintain a decent living standard but by exceptional, if not inexplicable, effort they succeed. Sadly, despite these herculean efforts, domestic work as a profession is undervalued and unrecognised, even though it plays a central role in our society. [2]

[3] At issue here is social security for domestic workers. The cornerstone of any young democracy is a comprehensive social security system, particularly for the most vulnerable members of society. Although passed before the advent of our constitutional democracy, the Compensation for Occupational Injuries and Diseases Act [3] (COIDA) partially contributes to our country's social security system. Unfortunately, 26 years into our democracy and despite the constitutional promise and aspirational expectations, in the event of injury, disablement or death at the workplace, domestic workers do not enjoy the protection under COIDA. [4] By stark contrast, all other employees do.

[4] Section 1 of our Constitution, which sets out our founding values, provides that:

'The Republic of South Africa is one sovereign, democratic state founded on the following values:

(a)

Human dignity, the achievement of equality and the advancement of human rights and freedoms;

(b)

Non-racialism and non-sexism. . . .' [5]

[5] Arising from the founding values, one of the aims of the Constitution is to heal the divisions of the past, improve the quality of life of all citizens and free the potential of each person. [6] Unfortunately domestic workers have not basked in the fulfilment of this constitutional promise. Instead,

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

their fate has been blighted as a result of being excluded from statutory protections.

[6] This court is required to consider the constitutionality of s 1xix(d)(v) of COIDA, which expressly excludes domestic workers from the definition of an 'employee', thus excluding them from the social security benefits provided for under COIDA. [7] This case turns on the social security system enshrined in s 27(1)(c) of the Constitution and its application to domestic workers who are not currently protected in the event of injury,

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

disablement or death in the workplace. In addition, the rights to equality and dignity are also at the heart of this matter.

Background

[7] Ms Mahlangu was employed as a domestic worker in a private home at the time of her death. She was employed by the same family for 22 years in Faerie Glen, Pretoria. On the morning of 31 March 2012, Ms Mahlangu drowned in her employer's pool in the course of executing her duties. Her body was found floating in the swimming pool by her employer who had been present in the home at the time of the incident but asserted that he heard no sounds of a struggle. It is alleged that Ms Mahlangu was partially blind and could not swim, which resulted in her drowning.

[8] Following Ms Mahlangu's death, her daughter, the first applicant, who was financially dependent on her mother at the time, approached the Department of Labour (Department) to enquire about compensation for her mother's death. She was informed that she could neither get compensation under COIDA, nor could she get unemployment insurance benefits for her loss which would ordinarily be covered by COIDA.

[9] Assisted by the second applicant, the South African Domestic Service and Allied Workers Union (SADSAWU), [8] she launched an application in the High Court of South Africa, Gauteng Division, Pretoria (High Court), to have s 1xix(d)(v) of COIDA declared unconstitutional to the extent that it excludes domestic workers employed in private households from the definition of 'employee'. The Commission for Gender Equality [9] (Gender Commission) and the Women's Legal Centre Trust [10] were granted leave to intervene as first and second amici curiae, respectively, in these proceedings. Both amici work tirelessly to advance the rights of women.

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

Litigation history

[10] On 23 May 2019 the High Court declared s 1xix(d)(v) of COIDA invalid to the extent that it excluded domestic workers employed in private households from the definition of 'employee', thereby denying them compensation in the event of injury, disablement or death in the workplace. [11] The High Court failed to provide reasons for its declaration of constitutional invalidity. The issue of retrospectivity of the order of constitutional invalidity was postponed by the High Court to allow the parties to file further submissions on this aspect.

[11] On 17 October 2019 the High Court, having considered the submissions from the parties on retrospectivity, handed down a second order declaring that the declaration of invalidity must apply retrospectively and with immediate effect to provide relief to domestic workers who were injured or who had died at work prior to the granting of the order.

[12] Before us is an application for confirmation of that declaration of constitutional invalidity.

The High Court's failure to furnish reasons

[13] The High Court granted an order declaring s 1xix(d)(v) of COIDA unconstitutional, but unfortunately did not furnish any reasons for making such an order. The High Court merely made its orders on the basis of draft orders prepared by the parties, who had 'settled' the issue of the unconstitutionality of s 1xix(d)(v) of COIDA. This failure to furnish full reasons is regrettable as this court does not have the benefit of the High Court's reasoning. This court has held on numerous occasions that it is always helpful to consider the reasoning of the court of first instance. [12] Reasons provide a window into the basis of the judgment and are a valuable tool as they highlight the process of reasoning in a

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

transparent way. [13] This gives members of the public insight into and understanding of their constitutional rights.

[14] Section 167(5) of the Constitution provides that this court makes the final decision whether 'an Act of Parliament, a Provincial Act . . . is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force'. It follows that in doing so the reasoning of the High Court or the Supreme Court of Appeal is of fundamental importance. The same section also provides that such an order will not come into force unless this court confirms the order.

[15] Section 172(2)(a) of the Constitution provides for confirmation proceedings. In Von Abo [14] Moseneke DCJ held as follows:

'This court is the highest court on all constitutional matters and is clothed with both exclusive and concurrent jurisdiction. It enjoys exclusive jurisdiction in regard to specified constitutional matters and makes the final decision on other constitutional issues that are also within the jurisdiction of other superior courts and in particular, the Supreme Court of Appeal and the High Court. The exclusive and supervisory jurisdiction of this Court may be properly gathered by three constitutional provisions. They are ss 172(2)(a) and 167(5) of the Constitution, which regulate concurrent jurisdiction with the High Court and the Supreme Court of Appeal, and s 167(4) which carves out jurisdictional exclusivity for this Court.' [15]

[16] Von Abo makes it clear that in respect of confirmation proceedings, this court exercises its supervisory jurisdiction on orders of constitutional invalidity made by the High Court and the Supreme Court of Appeal. Our supervisory task becomes more challenging when the High Court, as in this case, does not provide well-reasoned judgments but merely rubber-stamps draft orders prepared by parties. This renders this court a de facto (in fact) court of first and last instance.

[17] Furthermore, in Mphahlele [16] Goldstone J held that if courts of first instance fail to furnish reasons for their decisions, this may amount to a violation of a constitutional duty. [17] In Strategic Liquor Services this court

Victor AJ (Mogoeng CJ, Khampepe J, Madlanga J, Majiedt J, Theron J and Tshiqi J concurring)

stated that '(i)t is elementary that litigants are ordinarily entitled to reasons for a judicial decision following upon a hearing'. [18] It is important to stress that the High Court ordinarily bears a constitutional duty to provide reasons for its decisions. Failure to do so is an abdication of this constitutional duty. [19]

In this court

[18] The applicants and amici submit that the exclusion of domestic workers amounts to unfair discrimination and impairs the fundamental dignity of domestic workers. They...