A small group of domestic workers gather outside the entrance of the Constitutional Court in Johannesburg. They sing a piercing refrain drawn from the apartheid struggle song, amaKomanisi: “My mother was a kitchen girl. My father was a garden boy. That’s why I’m a unionist.”
Last year, the high court in Pretoria ruled that the exclusion of domestic workers from the Act was unconstitutional and invalid. The court also ruled that the declaration of invalidity must be applied retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order.
In his heads of argument, Ngwako Maenetje SC, for the department, said: “Given the fact that the impugned provisions mostly affected poor people, and the absence of a clear crippling effect upon the fund, it would not have been justifiable to limit the retrospective application of the declaration of invalidity.”
Jafta said the purpose of this section is to ensure that the commissioner “can investigate the authenticity of the claim”. She added: “I cannot see how you can bar a person who unconstitutionally was barred from claiming 15 years ago … The unfairness of it prevails.” Acting Justice Margaret Victor intervened, saying “this is where intersectionality comes in. If there is a time bar in terms of section 44 — and if the high court didn’t give a full judgment — it just seems to me that it is the domestic worker that must bear the brunt of all these multifaceted aspects where not only must she face race discrimination, gender discrimination, class discrimination … Intersectionality, as I understand, it should cut through technicalities.
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