Finding legal support in an overused term: Reconsidering the term ‘community’

October 1st, 2020

Picture source: Gallo Images/Getty

In our earlier article ‘Revisiting the term “community” in the South African context’ 2018 (Dec) DR 18, we offered an account of the term ‘community’ in Western society and argued that the term is mostly used in a positive sense. We noted that while the term enjoyed a Western focus, there might be a need to explore and review interpretations of ‘community’ in developing countries – such as those found in southern Africa. In that article we cited a Land Claims Court (LCC) matter, Elambini Community and Others v Minister of Rural Development and Land Reform and Others (LCC) (unreported case no LCC88/2012, 30-5-2018) (Meer AJP). We only referred to the term ‘community’ as it appeared in the judgment.

In the article, we concluded that the use of the term ‘community’ in the South African legal context draws heavily on a conception that ‘community’ refers to a bounded group determined by historical links (p 20). We also noted that such interpretation is more precise than that often found in more popular parlance. In being precise, it draws on and reiterates a particular interpretation of what constitutes legitimate forms of association (or at least those forms deemed legitimate enough to be ascribed land rights).

Land restitution claim by the Luhlwini Mchunu Community

We now again focus our attention on the term ‘community’ as it appears in the context of South African law (with specific focus on the Restitution of Land Rights Act 22 of 1994 (the Act)) and a recent LCC matter Luhlwini Mchunu Community v Hancock and Others (LCC) (unreported case no LCC121/2017, 16-3-2020) (Meer AJP). The LCC application by the Luhlwini Mchunu Community was a claim against 23 families and companies in KwaZulu-Natal’s Lions River region. This claim was a community claim.

Section 2(1)(d) of the Act states as follows:

‘2. Entitlement to restitution

(1) A person shall be entitled to restitution of a right in land if –

(d) it is a community or part of a community dispossessed of a right in land after 19 June, 1913 as a result of past racially discriminatory laws or practices’.

In order to succeed in its claim, the plaintiff (the Luhlwini Mchunu Community) was, therefore, required to first and foremost prove that it was a community as defined in the Act.

The word ‘community’ is defined in s 1 of the Act as ‘any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group’.

Context to the definition of ‘community’ has been given in various judgments, including judgments in the Constitutional Court (CC). The CC established an ‘acid test’ to determine what constitutes a group of persons whose rights in land are derived from shared rules determining access to land held in common by a group. The acid test, therefore, remains whether a community derived their possession and use of the land from common rules. Furthermore, it was firmly established that no rights in land vested in labour tenants as a community.

The evidence of the plaintiff’s eight lay witnesses and two expert witnesses did not establish prima facie or on any basis that they or their ancestors were a group of persons whose rights in land were derived from share rules determining access to land held in common by them. Interestingly, the one expert witness (a PhD-historian) preferred to use his own definition of ‘community’ as opposed to the definition employed by the Act and ‘with which he took issue’ (the Luhlwini Mchunu Community case at para 17). As an expert witness he should have been aware that in scholarly work there is a multiplication of definitions. As Vered Amit (ed) Realising Community: Concepts, Social Relationships and Sentiments (London: Routledge 2002) at p 1 notes, there is a ‘multitude of definitions, descriptions and claims of community which occur in quotidian conversation as well as within a variety of scholarly work’.

Since the plaintiff failed to first and foremost prove that it was a ‘community’ as defined in the Act, the application for the land restitution claim in the Luhlwini Mchunu Community case was dismissed. As we noted in our previous article, the use of the term ‘community’ in the South African legal context draws heavily on a conception that ‘community’ refers to a bounded group determined by historical links and subjected to a present-day acid test.

Sociological critiques of such constructions of ‘community’ often note how contemporary articulations are often unmindful of the flows of power present in the development and establishment of the meaning of words. Such analysis simultaneously throw light on the historical existence of concepts and the reason why terms have such concurrent yet different polysemic meanings.

Some concluding remarks

The term ‘community’ is so overused both in everyday language in South
African society, that it can easily be dismissed as a truism. Two recent examples in the South African print media illustrate the point –

  • ‘protesting refugees should either be re-integrated back into communities’ (Mayibongwe Maqhina ‘They must return to communities’ Cape Times 11 March 2020); and
  • ‘we tend to ignore the greater good of the community’ (James Lappeman ‘Why coronavirus panic buying is on a roll among shoppers’ TimesLive 22 March 2020).

The persistence of the term itself shows that the idea continues to resonate powerfully in our South African lives, especially in the South African legal context. Community is a multi-faceted concept with numerous contemporary meanings yet it underpins and supports numerous legal judgments.  We argue that use of greater awareness be deployed of the historical and contemporary politics surrounding the term when we use it and that we remain mindful that as a term community has multiple meanings.

Udo Richard Averweg M.IT (cum laude) MSc MCom (UKZN) is a retiree in Durban. Marcus Leaning (PhD) (University of Luton) is a professor at the University of Winchester.

This article was first published in De Rebus in 2020 (Oct) DR 14.