More Than 7,000 Malawians in Durban Have Been Sent Home, Says Leon Schreiber

The recent repatriation of over 7,000 Malawian nationals from Durban, with thousands more awaiting processing, highlights the ongoing complexities and legal challenges surrounding immigration enforcement in South Africa. This development underscores the Department of Home Affairs' intensified efforts to manage undocumented foreign nationals, raising critical questions about the procedural fairness, constitutional rights, and international obligations governing such large-scale repatriations. For legal practitioners, this scenario necessitates a thorough understanding of the interplay between the Immigration Act 13 of 2002, the Refugees Act 130 of 1998, and the constitutional protections afforded to all persons within South Africa's borders, irrespective of their immigration status. The article delves into the legal framework, relevant jurisprudence, and the practical implications for foreign nationals facing deportation.

The recent announcement regarding the repatriation of over 7,000 Malawian nationals from Durban, with an additional 8,000 awaiting processing, signals a significant escalation in South Africa's immigration enforcement efforts. This mass movement of people, while framed as a necessary measure to manage undocumented foreign nationals, invariably brings to the fore complex legal and human rights considerations. The scale of these operations demands scrutiny of the underlying legal framework and its application, particularly concerning the rights of individuals caught in the administrative machinery of deportation.

South Africa's immigration landscape is primarily governed by the Immigration Act 13 of 2002, which regulates the admission, residence, and departure of persons from the Republic. The Act's objectives include promoting efficient immigration control, facilitating economic growth, and preventing xenophobia. It grants the Department of Home Affairs (DHA) extensive powers to detect, detain, and deport individuals deemed "illegal foreigners" – a term used in the Act, though often criticised for its problematic connotations. Complementing this is the Refugees Act 130 of 1998, which gives domestic effect to international legal instruments concerning refugees and asylum seekers, establishing a framework for their reception, status determination, and protection, including the crucial principle of non-refoulement.

The Immigration Act stipulates that any "illegal foreigner" shall depart or be deported, unless authorised by the Director-General to remain pending an application for status. An immigration officer may arrest an alleged "illegal foreigner" without a warrant if there are reasonable grounds to believe they are in the country unlawfully. Crucially, the Constitution of the Republic of South Africa, 1996, extends fundamental rights to "everyone" within its borders, including undocumented foreign nationals. These rights include the right to dignity, freedom and security of the person (which prohibits detention without trial), and access to courts. The Constitutional Court, in cases such as *Lawyers for Human Rights v Minister of Home Affairs and Others*, has affirmed that sections of the Immigration Act relating to detention must align with constitutional provisions, particularly the right to challenge the lawfulness of detention. This means that individuals detained for immigration purposes must be brought before a court within 48 hours (or the next working day if arrested on a weekend or public holiday) for a magistrate to assess the legality of their detention and their status. Detention periods are generally limited, with a right to release if not deported after 120 days. The *Dawood and Another v Minister of Home Affairs and Others* [2000] ZACC 8 judgment further underscored the constitutional right to dignity and family life, requiring that discretionary powers exercised by immigration officials be guided by clear legislative parameters. More recently, *Beneyam Deselegn Ashebo v Minister of Home Affairs and Others* [2023] ZACC 16 clarified that an "illegal foreigner" expressing an intention to seek asylum is entitled to an interview with an immigration officer to ascertain valid reasons for their undocumented status and must show good cause for illegal entry or stay before applying for asylum. This jurisprudence highlights the delicate balance between state sovereignty in immigration control and the protection of fundamental human rights, even for those without legal status. The mass repatriation efforts must therefore strictly adhere to these procedural safeguards and constitutional imperatives, ensuring individual assessments and access to legal recourse, rather than collective expulsions.

The ongoing repatriation of Malawian nationals from Durban serves as a stark reminder of the complex legal and practical challenges inherent in immigration enforcement. For legal practitioners, it is imperative to remain vigilant regarding the strict adherence to procedural fairness and constitutional rights during such operations. Foreign nationals, even those deemed "illegal foreigners," retain fundamental rights, including the right to challenge their detention and deportation, and to seek asylum if applicable. Practitioners advising clients in these situations must ensure that the Department of Home Affairs complies with the 48-hour rule for court appearances, the limits on detention periods, and the right to legal representation. The emphasis on individual assessment, as opposed to blanket repatriations, remains a cornerstone of South African constitutional and international law obligations. Future developments will likely focus on how the DHA balances its mandate of immigration control with its constitutional and international human rights commitments, particularly as the number of individuals awaiting processing continues to grow.