MPs turn spotlight on migrants fleeing South Africa

The recent surge in xenophobic attacks in South Africa has led to a significant number of Malawian nationals seeking repatriation, prompting the Malawi Parliament to address the issue. This article examines the complex legal landscape governing migrant rights and xenophobia in South Africa, juxtaposed with Malawi's response to its returning citizens. It delves into South Africa's constitutional and statutory obligations under domestic and international law to protect foreign nationals, highlighting key legislation such as the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998, as well as relevant international human rights instruments. The analysis also considers the role of regional frameworks like the SADC Protocol on the Facilitation of Movement of Persons and the practical implications for legal practitioners advising on immigration, human rights, and repatriation matters.

The reopening of the Malawi Parliament for its Third Meeting of the 52nd Session was quickly dominated by a pressing humanitarian and legal crisis: the mass return of Malawian citizens from South Africa, fleeing renewed waves of xenophobic attacks. This development underscores the persistent challenges of migration, integration, and the protection of foreign nationals within the Southern African Development Community (SADC) region. The emotional and practical implications for thousands of individuals, coupled with the diplomatic and legal responsibilities of both host and home countries, demand a thorough examination of the underlying legal frameworks.

This article aims to provide legal professionals with a comprehensive overview of the legal obligations and protections pertinent to this situation. It will explore South Africa's domestic and international commitments to safeguarding the rights of migrants and refugees, the judicial interpretations that have shaped these protections, and the gaps that continue to fuel xenophobic violence. Concurrently, it will touch upon Malawi's legal and logistical response to the repatriation of its citizens, offering insights into the multifaceted legal challenges faced by both states and the affected individuals.

South Africa, a signatory to numerous international human rights instruments, operates under a constitutional democracy that enshrines human dignity, equality, and human rights for all persons within its borders, irrespective of citizenship status. This foundational principle is buttressed by specific legislation governing immigration and refugee protection. The Immigration Act 13 of 2002 regulates the admission, residence, and departure of foreign nationals, explicitly aiming to prevent xenophobia and foster inter-departmental cooperation. Complementing this is the Refugees Act 130 of 1998, which domesticates the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol, and crucially, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

The 1969 OAU Convention, to which South Africa is a party, broadens the definition of a refugee to include those fleeing external aggression, occupation, foreign domination, or events seriously disturbing public order, a critical provision in the African context. Both the Refugees Act and the OAU Convention uphold the principle of non-refoulement, prohibiting the return of individuals to territories where their lives or freedom would be threatened. Furthermore, South Africa's Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Protection from Harassment Act 17 of 2011 provide additional legal avenues to combat discriminatory practices and hate speech, which are often at the root of xenophobic incidents. Regionally, the SADC Protocol on the Facilitation of Movement of Persons, adopted in 2005, aims to progressively eliminate obstacles to free movement, including visa-free entry and pathways to residence, though its full operationalization remains hampered by insufficient ratifications.

Despite a robust legal framework, South Africa continues to grapple with pervasive xenophobia. The country's Constitution guarantees human rights to all, a principle affirmed in cases like *Kiliko and Others v Minister of Home Affairs and Others* 2006 (4) SA 114 (C), which held that the state is obliged under international law to respect the basic human rights of any foreigner. The *Abdi and Another v Minister of Home Affairs and Others* 2011 (3) SA 37 (SCA) judgment further reinforced the right of foreign nationals not to be deported to dysfunctional home countries in the face of xenophobic attacks.

However, the enforcement of these protections remains a significant challenge. The International Commission of Jurists (ICJ) has consistently highlighted state failures to prevent and address xenophobic conduct, as seen in the recent *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others* (2023/044685) [2025] ZAGPJHC 1102 case. In this landmark ruling, the High Court found Operation Dudula and its leadership guilty of intimidation, harassment, and incitement of hate speech and violence, and crucially, made the implementation of the government's National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance a binding legal obligation. This judgment signals a judicial push for greater accountability and proactive measures from the state.

While South Africa has ratified key international human rights treaties like the ICCPR, ACHPR, and CERD, which impose obligations to protect against discrimination and violence, it notably has not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This non-ratification leaves a gap in the explicit legal protection framework for migrant workers, although many of the rights are covered by other instruments and the Constitution. The Immigration Act 13 of 2002, while aiming to prevent xenophobia, also contains provisions for the detection, detention, and deportation of undocumented foreign nationals, which, if not carefully managed, can be exploited or contribute to a climate of fear among migrant communities.

From Malawi's perspective, the immediate concern is the safe and orderly repatriation of its citizens. The Malawian Ministry of Foreign Affairs has announced a voluntary repatriation exercise, providing consular support and logistical arrangements for those wishing to return. Malawi's Immigration Act of 1964 governs entry and departure, and its Citizenship Act defines the rights and responsibilities of its nationals. The challenge for Malawi lies in effectively reintegrating these returnees, many of whom may have lost livelihoods and property, and ensuring their access to social amenities and economic opportunities, as highlighted by the Malawi National Land Policy's emphasis on equitable access to land for citizens.

The SADC Protocol on the Facilitation of Movement of Persons, while aspirational in its goals of free movement, has not been fully implemented, limiting its effectiveness in addressing the root causes of irregular migration and protecting migrants across borders. This regional gap places a greater burden on individual states to manage migration flows and protect foreign nationals, often leading to uncoordinated responses to crises like xenophobic attacks.

The ongoing repatriation of Malawian nationals from South Africa due to xenophobic attacks presents a critical juncture for legal professionals in both countries and across the SADC region. For practitioners in South Africa, the recent *Kopanang* judgment underscores the increasing importance of litigating against xenophobic violence and holding the state accountable for its constitutional and international obligations, including the implementation of the National Action Plan. Advising clients on immigration status, refugee protection, and human rights violations, particularly in the context of discriminatory practices and unlawful detentions, will remain paramount.

In Malawi, legal professionals will be crucial in assisting returnees with issues related to identity documentation, property claims, and reintegration into local communities, potentially navigating complex cross-border legal challenges. The incident also highlights the urgent need for SADC member states to accelerate the ratification and implementation of regional protocols aimed at facilitating orderly migration and protecting migrant rights, moving beyond mere policy commitments to tangible legal protections. All stakeholders must watch closely for sustained efforts by the South African government to enforce its laws against xenophobia and for regional initiatives to create a more secure and rights-respecting environment for all migrants within Southern Africa.