Domestic workers (“dw“) and their contributions toward the growth of South Africa and its economy has previously not been recognised. Unfortunately, most dw are faced with poor employment conditions, are not properly remunerated for their work and generally undervalued. There does now however appear to be a shift in the manner in which dw are viewed and should be treated. In a landmark Constitutional Court (“CC”) decision, Sylvia Bongi Mahlangu vs Minister of Labour CCT 306/19, handed down on 19 November 2020, the CC has held that dw who suffer from injuries or contract illnesses while they are on duty at their employer’s private residence may apply for compensation in terms of the Compensation for Occupational Injuries for Diseases Act 61 of 1997 (“COIDA”).

In a nutshell, the judgment states the exclusion of dw from the definition of an employee in section 1 (xix)(v) of COIDA is unconstitutional. The CC further held that dependants of a dw should be able to claim compensation from COIDA in the event the breadwinner’s death while on duty. Therefore, Sylvia’s dependants are now able to claim from the Fund for the loss of the family breadwinner. More importantly, this judgment and related orders will be applied retrospectively from 1994. This effectively means that dw’s, who suffered from work related injuries or illnesses, will be eligible to claim relief from the Fund. Dependants of the dw may also be eligible to claim from the Fund in the case of a breadwinner’s death.

Clarity on the CC’s order of retrospective application is to be provided by the Department of Labour and Compensation Commissioner in the future. While we await such clarity, it is important for employers to note the order’s implications and the need to comply with the new COIDA amendments, i.e. employers and dw, for private households, have to be registered with the Fund and the employer is liable for the payment of the yearly fee.

Coupled with the important change to the abovementioned legislation, the National Minimum Wage Commission has called for the national minimum wage (“nmw”) to be increased from R20.76 to R21.68 per hour. The call for the increase appears to be based on the need to assist lower income households to keep up with general inflation rates. Unfortunately, the current nmw is below the poverty line. The increase is now needed even more so in the wake of the national lock downs. Unfortunately, the current minimum wage legislation also differentiates between dw as well as farm workers, who are paid a lower rate than the existing nmw by nearly 25%. The Commission is calling for the nmw for dw to increase in 2021 by at least R350 per month which the majority of the Commission appeared to approve. There are also discussions regarding a four-year phase-in plan which will allow both dw and farm workers to earn the actual nmw as opposed to only a percentage thereof.    

Based on the CC’s judgment and order with proposed amendments to legislation, there definitely appears to be a shift in the mindset of the courts, legislatures and society that the role the lower level or blue collar workers play in the South African economy is not given sufficient recognition or protection but, that the right steps have started to be taken to rectify this historically disproportionate position.