In proceedings in the North Gauteng Division of the High Court an application was brought seeking to declare the provisions of COIDA that exclude domestic workers from its ambit unconstitutional.
On 23 May 2019, Judge Molopa granted an order declaring section1(xix)(v) of COIDA unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee” and further directed that the section be severed from COIDA.
A declaration of constitutional invalidity issued by the High Court has no force and effect until it is confirmed by the Constitutional Court. Effectively, pending the confirmation of the High Court’s order by the Constitutional Court, or pending any interim order granted by the High Court, the exclusion of domestic workers from COIDA remains in force.
The COIDA Amendment Bill does not define which workers fall within the term “domestic worker”. However, domestic workers are defined in the National Minimum Wage Act, 2013, as any worker who performs domestic work in a private household and who receives or is entitled to receive a wage and includes a gardener, a person employed by a household as a driver of a vehicle, a person who takes care of children, the aged, the sick, the frail or the disabled, and also includes domestic workers employed or supplied by employment services. This definition may serve as guidance in interpreting the term “domestic worker” when applying and administering the amended COIDA.
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