Intersectionality and equality: a view from the Constitutional Court of South Africa

26 November 2020 by Michael Rhimes

Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation). 

The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality  (see here), and, by majority, the rights to dignity and to social security.  What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other.  In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee.  What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves. 

Domestic work in South Africa

The backdrop to the Constitutional Court’s discussion of intersectionality is the nature of domestic work in South Africa. 

The overwhelming majority of domestic workers in South Africa are Black women (Judgment, [93] (all references to the Judgment, unless otherwise stated)). It is difficult work, as discussed in Justice Mhlantla’s judgment. It is not just that the hours are long, and the work is physically demanding [189]. It is also that domestic workers dedicate substantial time to support other families at the expense of their own [193]. Further, the work is poorly paid. As of March 2020, the minimum hourly wage for a domestic worker is roughly 75 pence (R15.57). A weekly job, working 9 to 5, five days a week, would give a minimum salary of 30 pounds. 

This modest sum must also be spread thinly.   

One of the many hangovers of apartheid is that South African cities are divided between poorer townships and more affluent suburbs. As a result, domestic workers will often have to travel far to get to work. Soweto (a large township in South West Johannesburg) is, for example, 40 kilometres from the Northern suburbs of Johannesburg. There is no real, reliable public transport; minivans (called ‘taxis’) will shuttle workers around the city. Yet, even in a taxi, to travel from Soweto and back again – each working day – leaves very little left of an already paltry wage. 

To this it must also be added what is colloquially referred to in South Africa as a “black tax”. This refers to the expectation that a person who has an income will share it to meet family needs. In a country with high unemployment, a single individual will often have multiple dependents. Domestic workers are not just breadwinners for themselves, but often “responsible for the upbringing of children in multiple families” [2] (see also [192]).

Equality under section 9 of the Constitution 

Section 9 of the South African Bill of Rights, entitled “Equality”, provides as follows:

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

[…]

(3)  The state may not unfairly discriminate directly or indirectly against anyone on one 

or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 

There are two relevant rights under section 9 for our purposes. The first, under section 9(1), is what may be called the ‘right to equality’. This is a broad-ranging right to have like cases treated alike. As Lord Hoffmann famously explained in the Privy Council, such a rule is an axiom of rational behaviour (Matadeen, [8] (but see also [9]). Under this ‘right’, the state cannot lawfully fail to treat similar situations in a like manner, unless there is a rational justification for doing so. 

The second, under section 9(3), is a right which may be called the ‘right against unfair discrimination’. This is a right to not be subjected to unfair discrimination on one or more of the listed grounds in section 9(3). Two points are of note. 

First, the list of grounds is not closed (see s9(3) “including”). The Constitutional Court has, for example, held that a person’s HIV status is a protected ground under section 9(3). This is relevant because Ms Mahlangu was poor. Social status is not listed in terms under section 9(3), but it was considered by the Constitutional Court as one of the grounds on which Ms Mahlangu was discriminated against. 

Second, and critically for the discussion of intersectionality, section 9(3) does not require an individual to point to only one ground for unfair discrimination; an individual might establish unfair discrimination on “one or more grounds” (emphasis mine). This is relevant because Sylvia Mahlangu argued that her mother had been discriminated against on the combined grounds of “gender” and “race” ([18], [74]). 

The opinions of the individual judges 

The ‘dissenting’ judgment of Justice Jafta is limited to the right to equality under section 9(1). The state conceded that there was no legitimate purpose in excluding domestic workers from compensation under the statutory fund. It had failed to proffer any justification for refusing to treat like cases (namely domestic workers, on the one hand, and all other workers, on the other) alike. The legislation was therefore unconstitutional under section 9(1) [159]. On this view, it was not necessary to consider the unfair discrimination claim under section 9(3) [163]. 

The judgments of Victor AJ and Mhlantla J explored the unfair discrimination claim under section 9(3) in some detail. Victor AJ’s judgment relies heavily on the concept of intersectionality. Atrey, writing in 2019, explained that intersectionality relies on a broad conception of prejudice as follows (cited [91]):

First of all, intersectionality conceives of ‘disadvantage’ broadly, including every kind of harm, oppression, powerlessness, subordination, marginalisation, deprivation, domination and violence.  Moreover, the disadvantage is defined not by isolated or stray incidents but by systemic or structural nature.  It represents a pattern of historic motifs of disadvantage which have been entrenched over time.  Such disadvantage is also not personally towards random individuals but suffered by individuals because of their membership to a social group.

The term was first coined by Kimberlé Crenshaw in a highly influential paper in 1989 (cited [85]). Her philosophy of intersectionality sought to respond to the “problematic consequences of the tendency to treat race and gender as mutually exclusive categories of experience and analysis”.  It recognises that individuals may be disadvantaged by overlapping – or intersectional – grounds of discrimination. Intersectionality allows us (indeed, requires us) to reckon with the fact that Black women as discriminated against not only as women (gender), and not only as Black people (race), but, rather, as Black women (race + gender). Intersectionality can lead to  a more nuanced understanding of discrimination. White women, for example, may be discriminated against as women, but may still also enjoy certain privileges as a result of their race. 

Victor AJ recognises intersectionality as a “useful analytical tool to understand the convergence of sexism, racism and class stratification” that Ms Mahlangu faced [102].  She found herself “at the intersection or convergence of multiple oppressions” [102], saddled by a “triple yoke” of gender, race and class [93].  To understand how Ms Mahlangu experienced discrimination – on the axes of race and gender and class – was necessary to fulfil the ambitious constitutional project of redressing past inequalities [76].

Mhlantla J does not in terms refer to the concept of intersectionality, but wrote separately to “unpack the patterns of race, sex, gender and class” [188]. Her judgment explores the reasons why the domestic work that Ms Mahlangu provided has historically been undervalued. She explains that this is in part due to racism (“the discriminatory notion that domestic work […] should be performed in most instances by black people” [188]), and in part due to sexism (“the gendered character of domestic work” [189]). The learned judge goes on to note that, post-apartheid, the make-up of households has changed, and domestic workers are employed “in households of diverse races, religions, cultures and varying socio-economic classes” [190]. The historical prejudice, however, explains why, today, Black women are for a large part expected to shoulder the responsibilities that form the heart of domestic work. This anchors the exclusion of domestic workers from the statutory definition of employee in the broader context of sexism, racism and class prejudice. 

One might, as a final point, contrast this intersectional approach to understanding the nature of the discrimination that Ms Mahlangu’s faced, with the way the dissenting judgment deals with the dignity claim. This claim failed on the grounds that:

Of itself, the exclusion [of domestic workers form the statutory definition of employee] does not have a dehumanising or degrading effect on the groups of workers to whom it applies. Nor does it reduce their worth as human beings [166]

On the dissenting view, there is nothing inherently degrading in excluding a “grou[p] of workers” from certain statutory benefits. 

By contrast, the intersectional approach advocated for in the judgments of Victor AJ and Mhlantla J would recognise that that “grou[p] of workers” were Black women excluded from protection because of long-standing prejudices rooted in racism, sexism and class prejudice. To view the exclusion of such workers simply as an irrational case of refusing to treat like cases alike does not necessarily capture the full picture. By contrast, to recognise their exclusion as an unfair discrimination rooted in overlapping prejudices perhaps better captures why Ms Mahlangu’s work was not considered real enough to earn her the status of employee under the legislation.

Conclusion 

The facts underlying Ms Mahlangu’s death sharply – if not shamefully – illustrate existing inequalities in South African society. The judgments of Victor AJ and Mhlantla J in the Constitutional Court’s show the value of intersectionality as a means of understanding the inequalities (plural) that those in Ms Mahlangu’ shoes face. I leave the final words with Victor AJ on this point:

[…] Such textured analysis in relation to discrimination is an indispensable legal methodology and, using the intersectionality framework as a legal tool, leads to more substantive protection of equality.  Adopting intersectionality as an interpretative criterion enables courts to consider the social structures that shape the experience of marginalised people.  It also reveals how individual experiences vary according to multiple combinations of privilege, power, and vulnerability as structural elements of discrimination.  An intersectional approach is the kind of interpretative approach which will achieve “the progressive realisation of our transformative constitutionalism [76]