The plaintiff in the case is Bongi Mahlangu, the daughter of Maria Mahlangu, a domestic worker who is deceased. Maria worked for the De Clerq family for 22 years. On 31 March 2012, she drowned at the De Clerq’s family home while on duty.
Bongi and her son were financially dependent on her and sought compensation. The De Clerq family offered them R5,000, according to court papers. Bongi approached the department of employment & labour to ask whether there was any possibility of compensation. However, she was informed that because her mother was a domestic worker she was not entitled to any claim in terms of the applicable legislation.
Mahlangu argued that the legislation was unconstitutional because it was irrational. Also, that it violated the rights to equality, dignity and access to social security.In terms of the constitution, any order declaring legislation unconstitutional must be confirmed by the Constitutional Court to have a final effect. It is for this reason that the decision has been referred to the that court.
Domestic workers are a historically disadvantaged group. Furthermore, their disadvantage is not an accident; it was created by a system of racial discrimination and patriarchy which has resulted in socio-economic inequality. The exclusion violates the right to social security. The legislation which establishes the Compensation Fund is social security legislation which aims to protect employees against economic and social distress. The exclusion of domestic workers is inconsistent with the state’s obligation to respect, protect and fulfil the right of access to social security.
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