Malawi Says Its People Fled Vigilante Attacks As Buses Finally Roll Out of Durban

Thousands of Malawian nationals have been displaced from their homes in Durban, South Africa, following a surge in vigilante attacks targeting foreign nationals. The Malawian Ministry of Foreign Affairs and International Cooperation has confirmed these attacks, leading to a mass repatriation effort as buses transport citizens back to Malawi. This development underscores the persistent challenge of xenophobia in South Africa and highlights the legal obligations of both the host state to protect all individuals within its borders and the home state to ensure the safe and dignified return of its citizens. The situation calls for a critical examination of South Africa's domestic and international human rights commitments and the practical enforcement mechanisms in place to prevent such violence.

Recent reports from Durban, South Africa, detail a distressing humanitarian situation where thousands of Malawian nationals have been forced to flee their residences due to escalating vigilante attacks targeting foreign nationals. The Malawian Ministry of Foreign Affairs and International Cooperation has formally acknowledged these 'ongoing vigilante attacks,' prompting a significant repatriation operation to transport its citizens back home. This incident is not isolated but rather a stark reminder of the recurrent waves of xenophobic violence that have plagued South Africa, challenging its constitutional commitments to human rights and regional stability.

This article aims to provide legal professionals with a comprehensive overview of the legal frameworks implicated by these events. It will delve into South Africa's domestic and international obligations to protect foreign nationals, the responsibilities of Malawi towards its citizens abroad, and the broader implications for regional migration governance. By examining relevant statutes, case law, and international instruments, the article will highlight the existing protections, identify gaps in enforcement, and discuss the imperative for robust legal and policy responses to prevent future recurrences of such violence.

South Africa's legal landscape, shaped by its post-apartheid Constitution, is generally considered progressive in its protection of human rights. The Constitution of the Republic of South Africa, 1996, enshrines fundamental rights for 'everyone,' explicitly extending protections against discrimination, violence, and ensuring human dignity and equality to all persons within its borders, including non-nationals. Section 12, for instance, guarantees the right to freedom and security of the person, which includes protection from all forms of violence.

Complementing the Constitution are specific legislative instruments. The Refugees Act 130 of 1998 gives domestic effect to international refugee law, including the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol, and crucially, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969. The OAU Convention notably broadens the definition of a refugee and emphasizes the principle of non-refoulement, prohibiting the return of individuals to a place where their life or freedom would be threatened. The Immigration Act 13 of 2002 regulates the admission, residence, and departure of foreign nationals, with a stated aim to prevent xenophobia within state departments. Furthermore, the recently assented Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 (Act 16 of 2023), criminalizes offences motivated by prejudice, including on grounds of nationality, addressing a previous lacuna where xenophobia itself was not a standalone crime. South Africa is also a signatory to various international human rights instruments, such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, all of which impose obligations to protect individuals from discrimination and violence.

The recent events in Durban highlight a critical disjuncture between South Africa's robust legal framework and the lived reality of foreign nationals. Despite constitutional guarantees and legislative protections, the state's failure to adequately prevent and respond to xenophobic violence by non-state actors remains a significant concern. The South African Human Rights Commission (SAHRC) has consistently emphasized the state's obligation to protect all persons within its territory from such violations. President Cyril Ramaphosa has unequivocally condemned xenophobia and reaffirmed that immigration enforcement is solely the responsibility of the state, not private individuals or vigilante groups. This statement is crucial, particularly in light of groups like 'Operation Dudula' that have been implicated in violent anti-migrant activities.

South African courts have, on several occasions, affirmed the rights of foreign nationals. In *Kiliko and Others v Minister of Home Affairs and Others* 2006 (4) SA 114 (C), the court held that the state is obliged under international law to respect the basic human rights of any foreigner, who is then entitled to all fundamental rights in the Bill of Rights, save those expressly restricted to citizens. More recently, in *Gila v S* (A93/2022) [2023] ZAWCHC 8, the court underscored the deterrent value of appropriate sentencing in crimes underpinned by xenophobia, acknowledging that such violence is a 'real and common reality' in South Africa. The *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others* [2025] ZAGPJHC 1102 case further highlighted state failures to protect non-citizens from vigilante actions.

However, challenges persist. While the new Hate Crimes and Hate Speech Act, 2023, is a welcome development, its effective implementation and the prosecution of offenders remain paramount. Historically, convictions for xenophobic violence have been low, with perpetrators often charged with common law crimes rather than specific xenophobia-related offences. The state's capacity to protect foreign nationals, particularly in informal settlements where attacks often occur, continues to be tested. Furthermore, the government's White Paper on Citizenship, Immigration and Refugee Protection, adopted in 2024, has raised concerns among civil society organisations regarding its potential to restrict refugees' constitutional rights and violate international obligations.

From Malawi's perspective, the repatriation efforts, while necessary for the immediate safety of its citizens, also underscore its responsibility to protect its diaspora. Malawi has a Diaspora Engagement Policy, which aims to leverage contributions from Malawians abroad, implying a reciprocal duty of care. The rapid increase in the number of Malawians seeking repatriation, from 170 to nearly 7,000 in days, indicates the severity of the threat perceived by those affected. The logistical and financial strain of such an operation also highlights the need for greater regional cooperation and burden-sharing in managing migration and addressing humanitarian crises.

The mass displacement and repatriation of Malawian nationals from Durban serve as a critical reminder of the enduring challenge of xenophobia in South Africa and the imperative for robust legal and governmental action. For legal practitioners, these events highlight the ongoing need to advocate for the full realization of human rights for all individuals, irrespective of nationality or immigration status, as enshrined in the South African Constitution and international law. The recent enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, offers a new avenue for accountability, but its efficacy will depend on diligent enforcement and prosecution.

Practitioners should remain vigilant in monitoring the implementation of these laws and challenging instances where the state fails to uphold its obligations to protect foreign nationals. Furthermore, the situation underscores the importance of regional legal frameworks, such as the OAU Convention, in guiding responses to forced migration within Africa. Moving forward, sustained efforts are required from both South African and Malawian authorities, alongside regional bodies, to address the root causes of xenophobia, ensure accountability for perpetrators, and establish effective mechanisms for the protection and dignified treatment of migrants and refugees.