Is it Possible to Define the Impossible – What is a ‘Community’ for Purposes of Section 235 of the Constitution of South Africa?

Abstract

The Constitution of South Africa contains the promise in Section 235 that any community that shares a common language and cultural heritage may be granted self-determination. The Constitution does not give any guidance about who the communities are that qualify for this self-determination. Terms such as minority, nationality and peoples have been notoriously difficult to define. The term ‘community’ has now been added to this list. In this article, consideration is given to international law and state constitutional law to ascertain how the term ‘community’ can be applied in South Africa; whether the term ‘culture’ should be used to expand or restrict the composition of the language community; and whether the community should be organised at a national level or whether local and regional communities could also qualify for a form of self-determination.