Regulatory Innovation in the Governance of Decent Work for Domestic Workers in South Africa: Access to Justice and the Commission on Conciliation, Mediation and Arbitration

Abstract

This study seeks to provide a close and textured inquiry into the assessment of domestic workers’ rights, in the South African context. The South African constitutional and legislative framework is rightly hailed as progressive and labour-friendly, and was the basis of significant, optimistic theorizing on the potential of a transformative constitutionalism, including as it relates to domestic workers. Yet domestic workers continue to face poor working conditions, impoverishment and isolation. In a generation of “born free” South Africans, the labour regulatory framework’s ability to redress persisting structural inequalities observed in South African society is increasingly called into question. This compels an assessment of the role and impact not only of the specific regulatory instrument, Sectoral Determination 7, but of the enforcement of labour rights by the labour administration and judicial structure. The focus is particularly placed on an institution that has been at the core of regulatory innovation on labour law enforcement, the CCMA. This study strives to complement rather than duplicate the important legal and statistical analyses that have emerged about the CCMA’s functioning, drawing on qualitative, participant interviews and observations of domestic work conciliations undertaken in Cape Town in March 2014. Furthermore, this study is concerned with the quality of the justice rendered by the CCMA. The preliminary findings of this study suggest that the high degree of respect enjoyed by the institution in the domestic work sector is linked at least in part to its attentiveness to bringing the “rule of law” to the home workplace, and to the mediating role played by its commissioners. On the other hand, this study forces attention to the CCMA’s limits. It questions how much the CCMA manages to shift the domestic work framework, in a context in which broad societal redistribution may be blocked. The qualitative research methods provide a unique opportunity to explore how those limits are experienced.