55 buses to ferry Malawians

The Malawian government's recent initiative to repatriate its citizens from South Africa, following a resurgence of xenophobic attacks, underscores critical legal obligations for both host and home states. This development highlights South Africa's ongoing struggle to uphold its constitutional and international human rights commitments to protect foreign nationals, as well as Malawi's duty to provide consular assistance and ensure the safety of its citizens abroad. The article examines the relevant South African domestic legislation, including the Constitution and the recently enacted Prevention and Combating of Hate Crimes and Hate Speech Act, alongside international human rights instruments. It further explores the implications for legal practitioners navigating issues of human rights, immigration, and state responsibility in the context of regional migration and recurring xenophobic violence.

The recent deployment of 55 buses by the Malawian government to repatriate thousands of its citizens from South Africa, fleeing renewed xenophobic attacks, brings into sharp focus the complex interplay of international human rights law, domestic constitutional obligations, and state responsibility in the Southern African region. This significant logistical undertaking by Malawi is a direct response to a persistent and deeply troubling phenomenon in South Africa, where foreign nationals, particularly from other African countries, frequently become targets of violence and discrimination. The incident not only highlights the immediate humanitarian crisis but also compels a deeper examination of the legal frameworks intended to protect vulnerable populations and the efficacy of their enforcement.

This article will delve into the legal duties incumbent upon both South Africa, as the host state, and Malawi, as the home state, in such circumstances. It will explore South Africa's constitutional and international commitments to prevent and address xenophobia, including its legislative efforts and judicial pronouncements. Concurrently, it will consider Malawi's sovereign responsibility to protect its citizens abroad and facilitate their safe return. The analysis aims to provide legal professionals with a comprehensive understanding of the legal landscape governing the protection of foreign nationals and the challenges inherent in combating xenophobia within a regional context.

South Africa's legal framework is anchored by the Constitution of the Republic of South Africa, 1996, which enshrines a comprehensive Bill of Rights applicable to "everyone" within its borders, including non-nationals, with certain exceptions limited to citizens. Key provisions include Section 9 (equality and non-discrimination), Section 10 (human dignity), and Section 12 (freedom and security of the person, including freedom from violence). These constitutional guarantees are reinforced by international human rights instruments to which South Africa is a state party, notably the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples' Rights (ACHPR).

Despite this robust legal architecture, South Africa has grappled with recurrent waves of xenophobic violence since at least 2008. In response, the South African government launched the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) in March 2019, a policy framework aimed at addressing these issues through various programmes and strengthening enforcement measures. Furthermore, the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023, assented to in May 2024 but not yet in force, specifically criminalises hate crimes and hate speech, providing a dedicated legislative tool to prosecute acts motivated by prejudice or intolerance. This legislative development is crucial, as courts previously noted the absence of a specific law against xenophobia, often relying on existing criminal statutes with xenophobia as an aggravating factor. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) also provides civil remedies against unfair discrimination and hate speech.

South Africa's legal obligations to protect foreign nationals from xenophobic violence are multifaceted, stemming from both domestic and international law. The Constitution unequivocally extends fundamental human rights to all persons within the Republic, irrespective of nationality or immigration status, except for rights explicitly reserved for citizens. This places a clear duty on the state to respect, protect, promote, and fulfil these rights, including the right to life, dignity, and security of the person. The *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others* [2025] ZAGPJHC 1102 case highlighted the state's alleged failure to prevent and address xenophobic conduct by vigilante groups, underscoring the ongoing challenge of enforcement.

The *Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023*, once in force, will provide a direct legal mechanism to prosecute acts of xenophobia as hate crimes, with specific penalties. This is a significant step, as prior judicial decisions, such as *Gila v S* [2023] ZAWCHC 8, demonstrated courts treating xenophobic motivation as an aggravating circumstance in sentencing for existing crimes like murder or assault. The Act aims to give effect to South Africa's obligations under international human rights instruments, particularly ICERD, which mandates states to adopt all necessary measures to eliminate racial discrimination in all its forms.

From Malawi's perspective, the repatriation effort is an exercise of its sovereign duty to protect its citizens abroad. International law recognises a state's right and responsibility to provide consular protection to its nationals, which includes offering assistance in emergencies and facilitating their return when their safety is at risk in a foreign country. The voluntary nature of the repatriation, as highlighted by the Malawian government, is crucial, ensuring adherence to principles of non-refoulement for those who might have legitimate claims to remain in South Africa under refugee or asylum law. The collaboration between the South African and Malawian governments in facilitating this repatriation demonstrates a practical, albeit reactive, approach to managing the consequences of xenophobic violence.

However, significant gaps and contradictions persist. The recurring nature of xenophobic attacks suggests a failure in preventative measures and effective prosecution, despite the existence of legal frameworks and policy initiatives like the NAP. While President Ramaphosa has condemned xenophobia and affirmed that immigration enforcement is solely a state responsibility, the actions of vigilante groups continue to pose a threat. Furthermore, regional instruments like the SADC Protocol on the Facilitation of Free Movement of Persons, intended to foster regional integration and protect migrants, have not been fully ratified or implemented, limiting their effectiveness in addressing cross-border migration challenges and associated discrimination.

The mass repatriation of Malawian nationals from South Africa underscores the persistent legal and humanitarian challenges posed by xenophobia in the region. For legal practitioners, this situation highlights the critical importance of understanding both domestic human rights law in South Africa and the international obligations of states to protect all individuals within their jurisdiction, regardless of nationality. The South African government's commitment to combat xenophobia, as evidenced by the new Hate Crimes and Hate Speech Act and the National Action Plan, must translate into robust enforcement and proactive measures to prevent future violence.

Practitioners advising foreign nationals in South Africa must be acutely aware of their constitutional rights, avenues for legal recourse against discrimination and violence, and the evolving immigration landscape. Conversely, legal professionals in home countries like Malawi may be called upon to assist with consular protection, repatriation logistics, and potential claims arising from human rights violations suffered abroad. Moving forward, sustained regional cooperation, effective implementation of existing laws, and a concerted effort to address the socio-economic drivers of xenophobia are essential to ensure the safety and dignity of all individuals in Southern Africa. The effectiveness of the newly enacted Hate Crimes and Hate Speech Act, once proclaimed, will be a crucial indicator of South Africa's progress in tackling this entrenched issue.