Protecting women migrant workers’ rights in South Africa: the need for a gender-responsive framework

Abstract

This study, titled “Protecting Women Migrant Workers’ Rights in South Africa: The Need for a Gender-Responsive Framework,” addresses the critical issue of the increasing feminisation of migration and the unique vulnerabilities faced by women migrant workers, particularly in South Africa. Despite migration offering opportunities, these women often encounter exploitation, discrimination, and abuse. The study highlights how South Africa's historical exclusionary policies and current gender-neutral legal frameworks fail to adequately protect these workers, leading to issues like inadequate pay, lack of contracts, long working hours, and gender-based violence. The core problem lies in the inadequacy of existing legal and policy frameworks to address the intersectional vulnerabilities of women migrant workers, resulting in a significant gap between theoretical legal protections and practical realities. Enforcement mechanisms are weak, especially in informal sectors where these women are concentrated, exacerbating their precarious situation and limiting their access to justice.

The central research question guiding this thesis is: What factors contribute to the violations experienced by women migrants in South Africa, and how can a gender-responsive legal framework be developed and implemented to protect their rights effectively? Drawing upon feminist legal theory, intersectionality theory, and migration theories, the research critically examines international, regional, and domestic legal instruments to assess their gender sensitivity and effectiveness. A significant contribution of this study is the application of the Gender Legislative Index (GLI) as a methodological tool to evaluate the gender responsiveness of South African legislation. Through a comparative analysis of international and regional instruments against domestic laws, the findings highlight a substantial disparity between theoretical legal protections and the lived realities of women migrant workers, necessitating the urgent need for a transformative approach. The findings demonstrate that South African legislation, although formally inclusive, does not address the intersectional vulnerabilities of women migrants and fails to align with international laws. The study recommends using the GLI to ensure gender-responsive migration, labour laws, and policies, and to strengthen monitoring mechanisms. It also recommends aligning South Africa’s migration policy with constitutional and international human rights standards.