CONSTITUTIONAL COMMENTARY AND EVENTS

On 27 June 2019, the Constitutional Court declared section 16(3) of the Superior Courts Act 10 of 2013 (the Act) constitutional. Section 16(3) of the Act states that spouses cannot appeal maintenance pending litigation, costs of pending matrimonial actions, interim custody of a child, or interim access to a child. Further, the Constitutional Court held that Rule 43 of the Uniform Rules of Court – regarding spousal relief for maintenance pending litigation, costs of matrimonial action, interim custody of child, and interim access to child – can be read expansively in light of section 16(3) of the Act.

According to Statistics South Africa – as cited by Nicholls AJ in the present case – 25 326 divorce orders were granted in 2016, 55% of which involved children. Applicants in Rule 43 cases most often involve low-income women. Nicholls AJ notes that gender imbalances at home are often exacerbated by courtrooms, when institutional failures prevent the enforcement of maintenance orders. This lack of enforcement has a very negative impact upon the health and financial wellbeing of women and children. The Constitutional Court proceeded with the present case with an awareness of the infringement of women and children’s rights, to protect and uphold the interests of vulnerable sectors of society. 

On 23 May 2019, the North Gauteng High Court (the Court) issued an order declaring section 1(xix)(v) of the Compensation for Occupation Injuries and Diseases Act of 1993 (COIDA) unconstitutional and invalid to the extent that it explicitly excludes domestic workers employed in private households from the definition of “employee”. The Court also ordered that the section be severed from section 1 of COIDA, and under consideration is whether the amendment will apply retrospectively. 

For over 25 years, domestic workers have been excluded from COIDA’s protections. There are over one million domestic workers in South Africa, 96% of whom are women and 91% of whom are black. Domestic work is one of the lowest paying occupations in the labour market, due in large part to wage discrimination and limited bargaining power. The low status of domestic workers in society and their limited bargaining power in the labour market renders them susceptible to exploitation and abuse. The deprivation of benefits of social insurance under COIDA only serves to further marginalise them and entrench pre-existing inequalities.