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Professor Cathi Albertyn cited in ground-breaking judgment


The School of Law’s SARChI Chair, Professor Cathi Albertyn, has been cited in a ground-breaking judgment on equality for domestic workers.

On Thursday 19th November 2020, the Constitutional Court handed down judgment in Mahlangu v Minister of Labour, confirming that domestic workers in private households should be included in the definition of ‘employee’ for the purpose of receiving compensation for diseases, disablement, injuries or death in the course of their employment. The Court agreed that the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) was unfair discrimination based on race, gender and social origin or class.

This judgment is ground-breaking in several ways, not only because it powerfully affirms important rights for a particularly vulnerable and disadvantaged group of women workers, but also because it signals potentially important developments in equality jurisprudence. Two features stand out. First, it recognises that the achievement of equality in our society goes beyond treating people with equal concern and respect to actively remove social and economic barriers to substantive freedom and empowerment. Second, it develops the legal understanding of intersectional discrimination to recognise that domestic workers are a distinctive group whose disadvantage has overlapping origins in race, sex/gender and class inequalities.

In making this important shift, the Court draws directly on the work of the School of Law’s SARChI Chair, Professor Cathi Albertyn, published in the South African Journal on Human Rights

The discrimination in this case illustrates what Albertyn posits as the need for the concept of equality to be developed beyond the idea of equal concern and respect. In discussing the plasticity of the concept of equality, she reminds us that— “the goal of equality . . . is to remove systemic barriers to substantive freedom and actively to create conditions of equality, including attention to restructuring relations of equality at individual, institutional and societal inequalities. It is also to take account of the intersectional nature of inequalities in comprehending the problem and identifying its solutions”.

By including domestic workers in the definition of “employee” under COIDA, the goal of substantive equality is advanced at a structural level by granting the remedy sought. To this end, it empowers domestic workers and brings them closer to the kind of “substantive freedom” that Albertyn persuasively argues should be the main object of equality jurisprudence. (Mahlangu v Minister of Labour paras 87-88).

Albertyn comments that the judgment is significant for the theoretical and jurisprudential development of a more transformative understanding of equality, which has been at the centre of her own research. In addition, it will have practical and strategic value in providing legal ammunition for social justice lawyers seeking to use law to advance social and economic equality for those who have been marginalised, excluded and left behind in our society.

Albertyn’s research is published as: ‘Contested substantive equality in the South African Constitution: beyond social inclusion towards systemic justice’ (2018) 34 South African Journal on Human Rights 441-468.