The Constitutional Court justices have criticised orders by a lower court on legislation governing domestic work, describing them as ‘drastic’ and scant on detail.

They questioned whether the government could afford to pay retrospective claims by domestic workers who were injured or died at work.

A Business Day report notes the court heard an application yesterday for confirmation of orders delivered by the Gauteng High Court (Pretoria) in May 2019 and October 2019. The justices locked horns with the legal representatives of the domestic workers, while taking potshots at the orders granted by the High Court.

At issue was whether the Constitutional Court’s declaratory order should be retrospective and whether the Compensation Fund could afford that.

The top court also wanted to make sure the process was fool-proof.

Advocate Kgomotso Moroka SC – representing the domestic workers’ union – argued that the Act does not pass the provisions of the Constitution and ‘has no place’ in a democratic society. Moroka said they were in the Constitutional Court to defend the right of domestic workers to claim from the Compensation Fund in the event of an injury at work.

Justice Chris Jafta wanted to know how a Compensation Fund commissioner would determine the veracity of a claim for something that happened 15 years ago, noting this could open the flood gates for fraudulent claims against the fund.

Chief Justice Mogoeng Mogoeng wanted to know whether their declaratory order would be enforceable and whether resources would be adequate.

‘Can we rest assured that ... should domestic claimants lodge claims they should have nothing to worry about on the state’s ability to pay?’ Mogoeng asked.

The domestic workers’ representatives told the court that the government would have to pay. If ‘there are no available funds the state will have to approach the Treasury’.

Judgment was reserved.

Full Business Day report