Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular, repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.
In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.
Equality and Non-Discrimination
It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.
Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:
… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)
Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:
It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)
It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):
Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)
Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:
The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)
Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.
The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:
Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)
This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)
The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.
The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.
This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).
The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.