Domestic Workers and COIDA: The Right to Compensation for Occupational Injuries and Diseases in South Africa

This changed following the landmark Constitutional Court judgment in Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24. The judgment marked a significant development in employment law, affirming that domestic workers are entitled to the same protection against the financial consequences of work-related injuries, diseases and death as other employees.

The Position before Mahlangu

The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) establishes a statutory compensation scheme for employees who suffer occupational injuries or diseases, as well as dependants of employees who die as a result of such injuries or diseases. However, section 1(xix)(v) of COIDA expressly excluded domestic employees employed in private households from the definition of an “employee”. Consequently, these workers and their dependants could not claim compensation under the Act when a workplace accident resulted in injury, disability or death.

Although domestic workers enjoyed protection under other labour legislation, including the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Act 75 of 1997, the exclusion left a significant gap in their social protection. An injured domestic worker could potentially pursue common-law damages claim against an employer, but this required establishing the necessary elements of liability and pursuing litigation. For workers with limited financial resources, this was often an inadequate alternative to a statutory compensation scheme.

Mahlangu v Minister of Labour: A Landmark Constitutional Judgment

The case arose from the tragic death of Maria Mahlangu, who had worked as a domestic worker in a private household for approximately 22 years. On 31 March 2012, she drowned in her employer’s swimming pool while performing her duties.

Her daughter, Sylvia Mahlangu, who had been financially dependent on her mother, approached the Department of Labour to claim compensation following her death. She was informed that compensation was unavailable under COIDA because domestic workers employed in private households were excluded from the definition of an employee.

With the support of the South African Domestic Service and Allied Workers Union (SADSAWU), the exclusion was challenged in court. The Gauteng Division of the High Court declared the exclusion unconstitutional. The matter proceeded to the Constitutional Court for confirmation of that order.

The Constitutional Court confirmed the declaration of constitutional invalidity in Mahlangu and Another v Minister of Labour and Others. The Court ordered that the declaration operate immediately and retrospectively from 27 April 1994.

The majority judgment recognised that excluding domestic workers from COIDA denied them and their dependants access to an important form of social protection. The exclusion infringed the constitutional rights to equality and equal protection of the law under section 9, dignity under section 10, and access to social security under section 27(1)(c) of the Constitution of the Republic of South Africa, 1996.

The judgment also acknowledged the discriminatory impact of the exclusion on a sector predominantly composed of Black women. The Court rejected the notion that domestic work was less deserving of legal protection than other forms of employment. The retrospective effect of the order was particularly significant: it opened the possibility of compensation for qualifying work-related injuries, diseases and deaths dating back to 27 April 1994, subject to the applicable statutory requirements and procedures.

The International Labour Organization and Domestic Workers’ Rights

The judgment also reflects broader international developments in the protection of domestic workers. South Africa ratified the International Labour Organization’s Domestic Workers Convention, 2011 on 20 June 2013. The Convention recognises domestic work as work deserving of legal protection and addresses the vulnerability of domestic workers to discrimination, exploitation and inadequate working conditions. Article 13 recognises domestic workers’ right to a safe and healthy working environment. Article 14 requires ratifying states to take appropriate measures to ensure that domestic workers enjoy social security protection, including maternity protection, on terms no less favourable than those applicable to workers generally.

These provisions support the principle that domestic workers should not be excluded from essential social protection merely because their work takes place in private households. South Africa’s extension of COIDA protection to domestic workers is consistent with these international commitments. The Mahlangu judgment further demonstrates how constitutional rights and international labour standards can inform the interpretation and development of domestic law.

The Current Legal Position under COIDA

Following the Constitutional Court’s order and subsequent legislative and administrative developments, domestic workers employed in private households are covered by COIDA. The Act must be read in light of the Mahlangu judgment, which invalidated the exclusion with immediate and retrospective effect. The Compensation for Occupational Injuries and Diseases Amendment Act forms part of the subsequent legislative framework.

A domestic worker who sustains a qualifying injury or contracts an occupational disease in the course of employment may claim compensation from the Compensation Fund. Where a domestic worker dies as a result of a work-related injury or occupational disease, eligible dependants may also claim benefits.

Depending on the circumstances and the applicable statutory requirements, benefits may include:

• Temporary disablement benefits: Compensation for qualifying periods of temporary incapacity.
• Permanent disablement benefits: A lump sum or pension, depending on the assessed degree of permanent disablement.
• Medical expenses: Payment of qualifying medical costs associated with the occupational injury or disease.
• Rehabilitation and assistive devices: Assistance where the applicable requirements are met.
• Death and dependency benefits: Qualifying funeral expenses and benefits for surviving spouses, children and other eligible dependants.

The nature and extent of compensation depend on the circumstances of the claim, the medical evidence and the requirements of COIDA. Not every workplace illness or injury automatically qualifies for every category of benefit. Importantly, domestic workers do not lose their right to claim simply because their employers have failed to register with the Compensation Fund. Registration and payment of assessments are obligations imposed on employers; an employer’s non-compliance does not, by itself, extinguish a worker’s entitlement to claim.

Registration Requirements for Domestic Employers

The extension of COIDA protection places an important compliance obligation on employers of domestic workers. Under section 80 of COIDA, read with the applicable registration requirements, employers must register with the Compensation Fund, submit the required annual returns and pay the assessments determined by the Fund.

The Department of Employment and Labour’s Notice 106 of 2021, published in Government Gazette 44250 on 10 March 2021, provides specific guidance on the registration of domestic-worker employers.

Employers should take the following steps:

1. Register with the Compensation Fund.
   Employers should register within seven days of appointing an employee, in accordance with the Department’s registration guidance. Registration can be initiated through the Compensation Fund’s online services or by submitting the applicable registration documentation.
2. Prepare the required documents.
   The domestic-employer registration process has included the CF-1E application form and supporting documents such as:

    

   • The employer’s identification document, passport or applicable work permit.
   • The domestic worker’s identification document, passport or applicable work permit.
   • Proof of the employer’s residential address.
   • A copy of the employment contract.

   Employers should confirm the current form, submission method and supporting-document requirements with the Compensation Fund before submitting an application.

3. Submit an annual Return of Earnings.
   Registered employers must declare the relevant earnings of their domestic workers annually. The declaration is used to determine the employer’s assessment. The earnings reported must reflect the applicable requirements, including relevant overtime payments, bonuses and other earnings where required by the Fund.
4. Pay the assessment.
   Once the Compensation Fund issues a Notice of Assessment, the employer must pay the assessed amount within the prescribed period. Employers should retain proof of registration, returns and payments and attend to any outstanding compliance requirements.

The Compensation Fund’s online services and the Department of Employment and Labour’s labour centres provide channels through which employers can obtain assistance with registration and related obligations.

What Happens if an Employer Fails to Register?

Failure to register or comply with the applicable assessment and reporting requirements can expose an employer to financial consequences, including penalties and liability provided for under COIDA.

The absence of registration does not, in itself, prevent an injured domestic worker or eligible dependants from submitting a claim. However, an employer’s non-compliance can create additional complications and financial exposure.

Employers should therefore not regard registration as optional or assume that employing someone in a private home places them outside the compensation framework. Domestic work remains employment, and the legal responsibilities associated with occupational injuries and diseases apply accordingly.

Conclusion

The Mahlangu judgment represents a significant step towards equality, dignity and meaningful social protection for domestic workers in South Africa. By invalidating the statutory exclusion, the Constitutional Court recognised that the location in which work is performed should not determine whether a worker receives protection against the consequences of an occupational injury, disease or death.

The subsequent inclusion of domestic workers within COIDA reinforces the principle that domestic work is real work and deserves the same fundamental protections afforded to other employees.

For domestic workers, the development provides an important avenue for seeking compensation when qualifying work-related harm occurs. For household employers, it underscores the importance of registering with the Compensation Fund, submitting annual returns and complying with assessment requirements.

Ultimately, effective protection requires more than recognition in law. It requires awareness, compliance and practical access to the compensation system so that domestic workers and their dependants can exercise the rights secured through this landmark legal development.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.