INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIv.SOUTH AFRICA;
LIBERIAv. SOUTH AFRICA)
VOLUME X
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIAc. AFRIQUE DU SUD)
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AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE Dû SUD;
LIBÉRIA c. AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIv.SOUTH AFRICA;
LIBERIAvSOUTH AFRICA)
VOLUME X
1966
COUR INTERNATIONALE DEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPŒc.AFRIQUE DU SUD;
LIBÉRIc.AFRIQUE DU SUD)
VOLUME XPRINTED IN THE NETHERLANDS The present volume contains the continuation of the oral arguments
on the merits and the evidence of witnesses and experts in the South
West Africa cases and covers the period r5 June to 14 July 1965. The
beginning of the oral arguments on the merits (15 March to 15 June 1965)
is published in Volume VIII, pages ro5-712, and Volume IX, pages 1-658.
The proceedings in these cases, which were entered on the Court's General
List on 4 November 1960 under numbers 46 and 47, were joined by an
Ortler of the Court of 20 May 1961 (South West Africa, Order of 20 May
r96r, I.C.J. Reports r96I, p. 13). Two Judgments were given, the first
on 21 December 1962 (South West Africa, Preliminary Objections, ]udg
ment, I.C.J. Reports r962, p. 319), and the second on 18 July 1966 (South
West Africa, Second Phase, Judgment, I.C.J. Reports r966, p. 6).
Cross references correspond to the pagination of the present edition,
the volume being indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume contient la suite des plaidoiries sur le fond et les
dépositions des témoins et experts dans les affaires du Sud-Ouest africain;
il porte sur la période allant du 15 juin au 14 juillet 1965. La première
partie des plaidoiriessur le fond {15mars-15 juin 1965) est publiéedans
le volume VIII, pages ro5 à 712, et le volume IX, pages 1 à 658. Ces
affaires ont étéinscrites au rôle généralde la Cour sous les n°• 46 et 47
le 4 november 1960 et les deux instances ont étéjointes par ordonnance
de la Cour le 20 mai 1961 (Sud-Ouest africai·n, ordonnance du 20 mai r96I,
C.I.J. Recueil r96r, p. 13). Elles ont fait l'objet de deux arrêts rendus
le 21 décembre 1962 (Sud-Ouest africain, exceptions préliminaires, arrêt,
C.l.J. Recueil r962, p. 319) et le 18 juillet 1966 (Sud-Ouest africain,
deuxième phase, arrêt, C.l.J. Recueil r966, p. 6).
Les renvois tiennent compte de la pagination de la présente édition,
un chiffre romain gras indiquant le numéro du volume auquel il est
renvoyé.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PART IL ORAL ARGUMENTS (continued)
DEUXIÈME PARTIE. PLAIDOIRIES (suite)
ANNEXES TO THE MINUTES (continued)
ANNEXES AUX PROCÈS-VERBAUX (suite)
Page
20. Rejoinder of Dr. VerLoren van Themaat (South Africa),
15 VI 65 . . . . . . . . . . . . . . . . 3
Creations of International Customary Law . . . . . . . . . 3
General-requirements . . . . . . . . . . . . . . . . 3
Concordant practice as regards a matter within the domain
of international relations. . . . . . . . . . . . . . 4
Repetition over a period of time . . 7
Opinio J uris . . . . . . . . . . . 8
General acquiescence by other States 9
DissentingState . . . . . . . . 9
Asylum case . . . . . . . . . 9
Fisheriescase . . . . . . . . 9
2I. Rejoinder of l\Ir. de Villiers (South Africa), VI658 12
Application of the above requirements to Applicants' conten-
tion regarding law creating process . . . . . . . . . . . 12
Concordant practice . . . . . . . . . . . . . . . . . . 12
Speech can seldom amount to practice. . . . . . . . . 13
Inconsistency between viewing activities of United
Nations as amounting both to negotiation and to
norm-creation . . 14
1962 Judgment . . 15
Inconsistency (cont.) 17
Judge Bustamante 17
Judge Jessup. . . 17
Judge Morelli . . 17
Summary . . . . 18
Observations . . . 18
Conclusion as to concordant practice 19
Matter within domain of international relations. 19
Slavery and genocide . . . . . . . . . 20
Distinction with apartheid . . . . . . . 23
Repetition over a period of time . . . . . 23
Purpose of requirement-testing process . 24
Opinio Juris . . . . . . . . . . . . . 25
Resolution 1702 (XVI) on South West Africa. 25
General acquiescence . . . . . . 28
Position of a dissenting State 29
Judge Sir Gerald Fitzmaurice . . . 29
Article 38 does not require unanimity . 29
Reasonable to regard collective acts of international
institutions as evidence of general practice. . . 29X SOUTH WEST AFRICA
Page
Goodrich and Harnbro. 30
R. Higgins. . . . . . 3r
Jenks . . . . . . . . 32
Whcther Respondent qua mandatory can rely on its
own dissent . . . . . . . . . . . . . . . . . 33
Standards contention . . . . . . . . . . . . . 34
i\fandatory could establish binding international
legal relation for mandated territory 35
Terms of ]Vlandates 35
Bentwich . . . . . . . . . . . 35
Wright . . . . . . . . . . . . 36
Permanent Mandates Commission . 36
Hall . . . . . . . . . . . . . 36
Traditional mles not meshed with organized inter-
national community's processes. . . . . . 38
Whether centralization of normative processes 38
Distinction between competing interests of States and
promotion of common interests . . . . . . . . . 39
Applicants' contentions have revolutionary implica-
tions . . . . . . . . . . . . . 40
Article 38 (r) (c)-General Principles of Law. 41
Effect of Article 38(r)(c) . . . . . . . . 42
Lauterpacht . . . . . . . . . . . . . 42
Cheng. . . . . . . . . . . . . . . . 43
Matters of secondary and auxiliary nature 44
Cor/u Channel case 44
Schwarzenberger 45
Parry . . . . . 45
Cavaré . . . . 45
Guggenheim . . 45
Relates to underlying principles 46
Presence of laws against discrimination in municipal law. 47
In fact not universal . . . . . . . . . 47
Not a correct analogy . . . . . . . . . 47
Internationalconsensus as general principle 48
Incorrect analogy. . . . . . . . . . . 48
Effect ofactive opposition of a State . . 48
History of drafting . . . . . . . . . 48
Association of general principles with i<leas of equity and
natural justice . . . . . . . . . . . . . . . . . . 49
Drafting history . . . . . . . . . . . . . . . . . 49
Article 38 (r) (d)-Judicial decisions and teachings of
publicists . . . . . . . . 50
Judge Spiropoulos . . . . . . . . . . . . . . . . . 50
Sabbatino case . . . . . . . . . . . . . . . . . . . 5r
Conclusion-no norm-creating process of the sort contended
for by Applicants can exist. . . . . . . . . . . . . . 52
Whether Applicants have established the existence of a norm
with the content defined by them . . . . . . . . . . . . 53 CONTENTS XI
Page
What is its content?. . . . . . . 53
Distinction with minorities provisions . 54
Whether a member can quit his group. 55
Respondent will test on a dual basis. . . . . . . . 56
The nature of a qualification to the norm affects the case
Respondent has to meet . . . . . 57
Article 38 (r) (a)-Convcntions. . . . . . . . . . 59
Articles55 (c) and 56 of the Charter . . . . . . . . . 59
Presuppose existence of human rights and fonda-
mental freedoms . . . . . . . . . . . . . 60
Distinctions as to race, sex, Janguage or religion 60
Article 73 . . . . . . . . . . . . . . . . . 61
Article 76 . . . . . . . . . . . . . . . . . 6I
Do Articles 55 (c) and 56 create legal obligations? 62
Yearbooko/ l .L.Cr949 62
Bentwich and l\Iartin . 64
De Visscher . . . . . 65
Goodrich . . . . . . 65
Yearbook o/ l.L.C. r949 65
European Convention of Human Rights . 66
Does not prohibit differentiation as such . 66
Universai Dcclaration of Human Rights . 66
Relied upon as an interpretation of the Charter. 68
Not intended as such . . 68
Wording. . . . . . . . . . 68
Not intended as binding . . . . . . 68
Not intended as a reflection of existing State
practice . . . . . . . . . . 68
Debates in the General Assemblv . . 68
Conclusion . . . . . . . . . ~ . . . 71
Not intended to prohibit differentiation 71
Article 2 (6) of the Charter. . . . . . . 72
No obligations on non-members of United Nations 72
I.L.O. Constitution . . . . . . . . . . . . . . . 74
Contemplation of differentiation . . . . . . . . 74
Authoritative interpretations. . . . . . . . . . 74
Convention on discrimination in employment (1958) 75
Article 38 (1) (b) . . . . . . . . . . . . . . . 76
Evidence and furthcr material will be presented 76
Consequences of applying norm. 77
Processes of international bodies 77
Article 38 (1) (c)-general principles 77
Evidence to be led . . . . .78
Article 38 (1) (d)-judicial decisions and teachings of
publicists . . . . . . . . . . . . . . . . . . 78
No authority quoted by Applicants . . . . . . . 78
Wengler . . . . . . . . . . . . . . . . . . . 78
The role of the Court as an organ of the United Nations 79
OpeningStatement in regardto the evidence . . . . 82
Submissions r, 2,7 and 8 have been disposed of . . 82XII SOUTH WEST AFRICA
Page
Submissions 3 and 4 . . . . . 83
Existence of norm or standard 83
Purpose of evidence . . . . . 83
No international custom. . . . . . . . . 83
Circumstances which require differentiation 83
Activities in international bodies . . . . . 83
No evidence to show good faith. . 84
Ali witnesses will be experts as well . 85
Scheme of presentation of witnesses. 85
Possibility of depositions.. . . . . 86
Subnùssion 5-unilateral incorporation 87
Submission 6-militarization . . . . . 87
Submission 9-unilateral modification . . 87
Further reference to documentary sources 87
22. Hearing of the witnesses and experts (18-23 vr 65) 88
Evidence of Mr. Eiselen (witness and expert) . 88
Examination by Mr. Muller . . . . . . . . . 88
\Vitness questioned by Judge Jessup . . . . . 124
Witness questioned by Judge Koretsky . . . . 126
Witness questioned by Judge Sir Louis Mbanefo 126
Witness questioned by the President . . . . . 129
Evidence of Mr. van den Haag (expert) . . . . . 130
Examination by Mr. de Villiers on qualifications 133
Examination-in-chief by l\Ir. de Villiers . . . . 135
23. Replies to questions put by the Court on 22 June 1965 183
Reply by Mr. Gross . . . . . . . . . . . . . 183
Reply by l\Ir. de Villiers . . . . . . . . . . . . . . 188
Criticism of the Applicants' contentions . . . . . . . . . 188
The Court cannot decide a case on the basis of facts not
raised in the pleadings; illustrations from municipal law. 191
Anglo-American system of procedure. . . . . . . . . . . 194
Continental system of procedure. . . . . . . . . . . . . 201
Procedure in international tribunals: commenta tors and
case-law . . . . . . . . . . . . . . . . . . . . . . 202
Amendments to the submissions and interpretation of the
new submissions . . . . . 204
Further reply by Mr. Gross . . . . . . . . 228
Further reply by Mr. de Villiers . . . . . . 233
24- Hearings of the witnesses and experts (cont.) . 238
Evidence of Mr. Bruwer (witness and expert). 238
Examination by Mr. Muller. . . . . . . . 238
Cross-examination by Mr. Gross . . . . . 265
Witness questioned by Judge Jessup . . . . . 325
Witness questioned by Judge Sir Louis Mbanefo 330
Evidence of Professor Logan (witness and expert) 335
Examination by j\fMuiier. . . . . . . . . . . . . . 336
Preliminary cross-examination by 'Mr. Gross concerning
witness's qualifications . . . . . . . . . . . . . . . 341
Examination by Mr. Muller (cont.) 346
Cross-examination by Mr. Gross . . . . . . . . . . . . 375 CONTENTS XIII
Page
Evidence of Mr. van den Haag (cont.) 427
Statement by Ilfr. van den Haag . . 427
Cross-examination by Mr. Gross . . 428
Witness questioned by the President 466
Question by Mr. Gross. . . . . . . . 468
Witness questioned by Judge Koretsky 469
Witness questioned by Judge Forster . . . . . 473
Witness questioned by Judge Sir Louis Mbanefo 476
Evidence of Professor Logan (cont.) 479
Statement by Professor Logan giving certain population
data . . . . . . . . . . . . . . . . . . . . 479
Cross-examination by Mr. Gross (cont.) . . . . . . 480
Witness questioned by Judge Sir Gerald Fitzmaurice 499
Witness questioned by the President . . 503
Evidence of ilfr. Cillie (witness and expert) 505
Examination by Mr. de Villiers . . . . . 505
Cross-examination by Mr. Gross . . . . 529
Witness questioned by Judge Forster . . . . . 548
Witness questioned by Judge Sir Louis Mbanefo 548
Witness questioned by the President . . . . . 555' PART II (continued)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held /rom I5 March to I4]ul20September to
I5 November and 29 November I965, 2I Marchand
on I8 July I966, the President, Sir Percy Spender, presiding
(continued)
PARTIE II (suite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues du I5 mars au I4 juillet, du 20 septembre
au I5 novembre, le 29 novembre I965, le 2I mars
et le I8 juillet I966, sous la présidencede
sir Percy Spender, Président
(suite), ANNEXTOTHE MINUTES (continued)
ANNEXEAUX PROCÈS-VERBAUX (suite)
20. REJOINDER OF DR. VERLOREN VAN THE:MAAT
AGENT FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC HEARING
OF 15 JUNE 1965
1\frPresident, this rcview will deal with the sources of rules of inter
national customary law as well as the process of creation of such laws, in
as far as this is relevant to the present case made by the Applicants.
Special attention will be givcn to points arising in connection with
Applicants' contention that the norm is a rule of customary international
law which binds Rcspondent.
Now the Iatc Judge Manlcy O. Hudson commentcd as follows on
customary law in gcneral; he stated, and I quote from his book The
Permanent Court of International Justice I920-I942, New York, 1943, at
page 609, the following:
"International Custom. Article 38 of the Statute also directs the
Court to apply 'international custom, asevidence of ageneral practice
accepted as law'. This might have been cast more clearly as a provi
sion for the Court's applying customary international law. It seems
to emphasize the general law, as opposed to the spccial law embodied
in conventions accepted by the parties. It is not possible for the
Court to apply a custom; instead it can observe the general practice
of States,and if it fmds that such practice is due to a conception that
the law requires it, it may declare that a rule of law exists and
proceed to apply it. The elemcnts necessary are the concordant and
recurring action of numerous States in the domain of international
relations, the conception in each case that such action was cnjoined
by law, and the failurc of othcr States to challenge that conception
at the time. The apprcciation of these elements is not a simple
matter, and it is a task for persons trained in law."
Thcn I procecd to the·following comment by Oppenheim in his well
known work on International Law, Volume I, Eighth Edition, at page 26.
He states there:
"International jurists speak of a custom when a clear and contin
uous habit of doing certain actions has grown up under the aegis of
the conviction that these actions are, according to International
Law, obligatory or right."
I may further refer to the dissenting opinion of Judge Read in the
Anglo-Nonvegian Fisheries case, I.C.J. Reports I95r, at page 191, where
he said: "Customary international Jaw is the generalization of the practice
of States."
There are various theories as to the basis upon which customary inter
national law becomcs binding. Most of thcm fall into one of two groups.
The first theory seeks the binding nature of the rules of international
customary law in the express or tacit consent of States; this is often
referred to as the consensual theory. The second theory bases the binding 4 SOUTH WEST AFRICA
force of such rules on a conviction of the States concerned that they are
applying existing international law. Other theories are mostly variants
upon these basic ones.
Mr. President, there is a vast amount of literature on the subject. To
quote a few examples of authorities which refer to these various theories
we may mention Judge Spiropoulos, Théorie généraledit Droit inter
national, Paris, 1930, at pages 91 and 92; former president Basdevant,
"Règles généralesdu Droit de la Paix'', to be found in the Recueil des
Cours of the Hague Academy, Volume 58, 1936, Volume IV at pages
504-520, and then especially at page 518. I may also refer to Judge
Morelli's Nozioni Di Diritto lnternazionale, Padua, sixth revised edition,
1963, pages 25-31, and Professor Verdross, "Das volkerrechtliche Ge
wohnheitsrecht", to be found in the J apanese Annual of International
Law, 1963, at pages 1-3.
Mr. President, we do not intend to take sides in the theoretical con
troversy as to whether custom derives its legal effect from tacit consent
or from conduct which presupposes the existence of a legally binding
obligation or right. For the purpose of our contentions, and having regard
to the general agreement whîch exists in regard to practical aspects of the
principles which are indeed germane to this case, it is unnecessary for us
to make a choice between the respective theories.
Most authorities require the presence of two elements before a rule of
international customary law can be said to have been established: in the
first place a clear and consistent practice, and in the second place what is
usually referred to as the opinio juris sive necessitatis.
It does not appear necessary to refer to all the numerous authorities on
the subject. We may refer, for instance, to Professor Delbez, Les principes
généraux du Droit international public, Paris, 1963, at page 47; the editorial
comment by Joseph L. Kunz in the American Journal of International
Law, Volume 47, 1953, at page 665. There is plenty of other authority on
the point but it does not appear to be necessary to quote it to the Court
at this stage.
Now these two elements were split for practical purposes into four by
Judge Hudson when he was President of the International Law Com
mission in r950. In the Yearbook of the International Law Commission,
r950, Volume 2, at page 26, we find a summary by Judge Hudson of the
elements which must be present before a principle of international law
can be found to be established, and he stated these four principles as
follows.
In the first place, there must be a concordant practice by a number of
States with reference to a type of situation falling within the demain of
international relations.
Secondly, there must be a continuation or a petition ofthe practice over
a considerable period of time.
Thirdly, there must be a conception that the practice is required by or
consistent with prevailing international law.
Fourthly, there must be a general acquiescence in the practice by other
States.
For the sake of convenience, this order of dealing with the subject will
also be followed herc.
As to the firstthat is the concordant practice by a number of States
with reference to a type of situation falling within the domain of inter
national relations, I may quote in the first place Joseph L. Kunz, in his REJOINDER OF DR. VERLO!ŒN VAN THEMAAT
5
editorial comment on the nature of customary law, in the work I have
already referred to, American Journal of International Law, 1953, page
666. He states there:
"There must be a 'practice', whether of positive acts or omissions,
whether in time of peace or war. This practice must refer to a type of
situation falling within the domain of international relations."
This Court, in the Colombian/Peruvian Asylum case, l.C.f. Reports
I950, page 276, required a "constant and uniform usage practised by the
States in question" for the creation of a rule of customary law. The
passage in question was approved in the case concerning Rights of
Nationals of the United States of America in Morocco, I.C.J. Reports I952,
at page 200. The relative requirement of international customary law was
previously defined in various ways. In the S.S. Wimbledon case, 1923,
P.C.!.]., Series A, No. I, at page 25, mention is made of a "consistent
international practice". In the Advisory Opinion on Article 3, paragraph
2, of the Treaty of Lausanne-this is regarding the frontier between
Turkey and Iraq-P.C.l.J., Series B, No. J2,at page 30,mention is made
of an "unvarying tradition". Then in Judge Anzilotti's dissenting opinion
in the Legal Status of Eastern Greenland case, 1933, P.C.!.]., Series A/B,
No. 53, at page 91, the definition of this element of customary law is
"the constant and gencral practice".
The next authority I wish to refer to is the President of the Soviet
Association of International Law, Professor Tunkin. He states in an
article entitled "Remarks on the Juridical Nature of Customary Norms
of International Law", in the Californian Law Review of August 1961,
Volume 49, at page 421:
"Customary norms of international law stem from international
practice. The practice of States may consist in their taking definitc
action under certain circumstances, or, on the contrary, abstaining
from action."
Then, Professor Guggenheim, in Traité du Droit international pitblic,
Geneva, 1953, at page 49, adopts the requircment of the Wimbledon case
that therc must be a "consistent international practice".
The Fisheries case was commented on by Judge Sir Gerald Fitzmaurice
in "The Law and Procedure of the International Court of Justice", in the
British Yearbook of International Law, Volume 30, 1953, at page 68, and
in that passage Judge Sir Gerald Fitzmaurîce discussed Judge Read's
dissenting opinion in the Fisheries case, in which the latter stated that
daims which have not been maintaincd by the actual assertion of sover
eignty cannot establish a practice of States. In this regard Judge Sir
Gerald Fitzmaurice wrote, and I quote from page 68-
"... it is believed to be sound principle tha t,in the long run, it is
only the actions of States that build up practice, just as it is only
practice ('constant and uniform' as the Court has said), that con
stitutes a usage or custom and builds up eventually a rule of customary
international law".
It follows from the authorities quoted that resolutions of organs of
international organizations by themselves cannot create rules of custom
ary law. The accent falls on the acts of the States concemed, their
practice or conduct.
The next authority I wish torefer to is Max Hagemann, ''Die Gewohn-6 SOUTH WEST AFRICA
heit als Vôlkerrechtsquelle in der Rechtssprechung", Schweizerisches
J ahrbuch für internationales Recht, Volume X, 1953, at page 65. He states
that although acts and declarations of organs of international organi
zations are regarded as possible evidence of an inter-State practice, the
Court does not give them much weight. He quotes, in this respect, the
Reservations to the Convention on Genocide, Advisory Opinion, I. C. J.
Reports r95r, at pages 24 and 25.
In this case it was argued and I quote from page 24: "that there
exists a rule of international law subjecting the effect of a reservation to
the express or tacit assent of all the contracting parties."
This argument was based on a report adopted by the Council of the
League of Nations on 17 June 1927, and the Court stated, in regard to
this argument, at page 2 5:
"At best, the recommcndation made on that date by the Council
constitutes the point of departure of an administrative practice
which, after being observed by the Secrctariat of the League of
Nations, imposed itself, sa to speak in the ordinary course of things
on the Secretary-General of the United Nations in his capacity of
depositary of conventions concluded under the auspices of the
League. But it cannot be concluded that the legal problem of the
effect of objections ta reservations has in this way been solved."
Now, in the same case, the joint dissenting opinion of Judges Guerrero,
Sir Arnold McNair, Read and Hsu Mo referred to the Secretary-General's
practice which "is a continuation of that constantly followed by the
League of Nations" (p. 36). They fclt that they were unable to agree
to the doctrine that reservations would be permitted as far as they
might be compatible with the object and purpose of the Convention
because it "propounded a new rule". (The actual quotation is "propounds
a new rule"-p. 42.)
It was, however, the actual practice, not the report or resolution,
which led to that conclusion.
Now, Mr. President, that resolutions of organs of international
organizations are not a source of international customary law may also
be inferrecl from the report of the International Law Commission of
1950. I referta General Assembly, Official Reports, Fifth Session, Supple
ment No. 12, Document A.1316.
Part II of that report discussecl "ways and means for making the
evidence of customary international law more available". In that Part II
of the report resolutîons of organs of international organizations were
not mentioned as evidence of customary international law. Practice of
international organizations was mentioned as possfüle evide11ce of
international law and it was recommended that, in order ta make such
aspects of international law more readily ascertainable, a répertoireof
the practice of the organization of the United Nations be made available.
The distinction here is clear. Customary rules may be created within
an organization such as the United Nations or the International Labour
Organisation on procedural matters. Examples thereof are, for instance,
whether the matter is an important question in terms of Article 18 of
the Charter (a matter on which this Court bas also given an Opinion),
the man11er of voti11g,what matters are to be placed on the agenda, and
so forth. But, apart from this, as Professor Tunkin wrote in the California
Law Review (I am again quoting from the same article in Vol. 49, August REJOINDER OF DR. VERLOREN VAN THEMAAT 7
1961, p. 426): "... there is no international body in existence with
authority to give a customary rule of conduct juridical power."
May I also refer to an article under the title "InternationJus Cogens"
which Professor Schwarzenberger wrote in the Texas Law Review of
March 1965. I quote from pages 471-472:
"\Vhile sovereign States are free to create jus cogens on a con
sensiml footing it is not the function of the doctrine of international
law or the international judiciary to transform discretionary powers
into legal duties. [Then cornes the important part.] Thus, in matters
which under the Charter of the United Nations are the subject of
recommendations by the General Assembly, no repetition, however
insistent, can transform the right of individual Member States not to
take action on such recommendations into an abuse of such freedom and
so into a legal duty to accept such a recommendation."
This brings me to the second of the elements into which Judge Manley
Hudson has divided this concept of customary law. The second elemcnt
is the continuation, or repetition, of the practice over a considerable period
of time. Now, in the first place, I quote fram the Panevezys-Saldutiskis
Railway case in the 1939, P.C.!.]., Series A/B, No. 76, at page 36. In
that case a consideration was that the relevant "rule of conduct has
been observed for a very long time".
Then I may also quote from an article by Kopelmanas, "Custom as a
means of the creation of an International Law", which is to be found in
the British Yearbook of International Law, No. 18, 1937, at page 127, in
which the author mentions the "repetition of similar acts".
Then Professor Delbez-the work already referred to, Les Principes
générauxdH droit international piiblic, Third Edition, 1964, at page 47-
requires for the existence of a rule of customary law: "un élémenm t ateriel
(consitetudo), consistant dans la répétitionprolongéeet constante des mêmes
actes extérieurs", in other words "a material element (consuetudo) con
sisting in the prolonged and consistent repetition of the same extemal
acts".
The degree of emphasis laid upon this requirement may conceivably
vary in accordance with the theory supported by the particular com
mentator as to the basis of creation of customary law. On the basis of the
consensual theory, the length of the period may possibly, in itself, be
lessimportant than other elements relied upon as showing tacit consent
or acquiescence. On the basis of theories which view the subjective
element on the part of States concerned as a conviction that such rule is
a legally binding provision, a lengthy period of practice will usually be
necessary before the existence of such a conviction can be established.
Yet even a support of the consensual theory, Professor Tunldn writes
in the same article in the California Law Review-I am quoting from
page 424: "The crcation of a customary norm of international law is a
historical process;the elements of the norm of law evolve gradually."
Judge l\forelli, in the work already referred to, Nozioni Di Diritto
Internazionale, which strongly supports the theory which I might call,
perhaps, the opinio juris theory, in the sense of a conviction that a
binding norm exists, states at pages 29 and 30, in paragraph 18, and I
translate from the Italian-it is our translation:
"The element of long continuance (diurnitas) which, moreover, is
historically connected with a psychological element since it is only8 SOUTH WEST AFRICA
constant and prolonged usage that can give rise to the conviction
of the obligatoriness of the norm-is necessary in international
custom no less than in custom in the sphere of municipal Iaw."
Then, I would like to refer the Court to the Advisory Opinion on the
Free City of Danzig and the International Labour Organisation, 1930,
P.C.!.]., Series B, No. I8, at pages 12 and 13. There practice was applied
which had gradually emerged "from the decisions of the High Com
missioner and from the subsequent understandings arrived at between
the Parties under the auspices of the League".
In that case, exceptionally, a ten-year period was considered suffi.dent
to establish a rule of international customary law. But this was a special
practice, only referring to one area,and only as between Poland (Danzig)
and the Commissioner. Moreover, the participants in the alleged custom
were agreed as to the existence thereof.
It is only natural, Mr. President, that in the case of suggested estab
lishment of a general customary rule of international law-that is not a
local rule or a rule applying only between a few parties-the period of
crystallization required would usually be a lengthy one.
Mr. President, this leads me to the third element mentioned by Judge
Hudson, the conception that the practice is required by, or consistent with,
prevailing international law.
Oppenheim, in the work already referred to-his welJ-known work on
international law, at page 26-distinguishes between a custom and a
usage: a usage exists "when a habit of doing certain actions has grown
up without there being the conviction that these actions are, according
to international law, obligatory or right". Such usage does not create a
binding rule of international law. On the other hand, he says, and I
quote again from a passage which I have already quoted at the beginning
of this review:
"International jurists speak of a custom when a clear and con
tinuous habit of doing certain actions has grown up under the aegis
of conviction that these actions are, according to international law,
obligatory or right."
Then, may I also quote from Professor Delbez-the work already
referred to, at page 47-where he states in respect of the so-called opinio
juris sive necessitatis:
"C'est sur la nature de cet élémentpsychologique que se heurtent
les doctrines. Les positivistes ramènent l'opinio juris à un acte de
volonté de plusieurs Etats, à un accord tacite (conception volon
tariste). Les objectivistes posent que l'opinio constitue la recon
naissance obligatoire d'un droit préexistant {conception intellec
tualiste)."
ln other words, as regards the nature of the psychological element,
doctrines are in conflict-the positivists reduce the opinio juris to an act
of will of numerous States to be bound by a tacit agreement (the volun
tarist conception). The objectivists state that the opinio constitutes the
obligatory recognition of a pre-existing right (the intellectualist con
ception).
1 have already referred to Judgc Hudson's necessary element of
customary law, namely "the conception in each case that such action
was enjoined by law". REJOINDER OF DR. VERLOREN VAN THEMAAT 9
On the basis of the consensual theory, this element means, as Professor
Tunkin puts it in the cited article at page 423, that the practice "has
been accepted or recognized by the States as juridically binding as a
norm of law". He continues to state that such acceptance or recognition
"is, inits juridical sense an expression of the will of the State of its
agr~;ment to regard this or that customary rule as a norm of international
law .
The fact that General Assembly resolutions of the type in issue here
are not legally binding, and that this body has no normative powers
under Article ro, has alrcady bccn referred to by my learned colleague,
and I need not therefore deal with it here.
That is. then, the conclusion of this third element referred to by Judge
Hudson.
I now corne to the /ourth element; the fourth is the general acquiescence
in the practice by other States.
Now, l\IrPresident, the question which arises here is whether a State
can be bound by a rule of customary international law if such State has
consistently voiced its objection to such rule, and resisted it in its
formative process. It must be emphasized at the outset that this question
has to be distinguished from another question, namely whether a general
rule of customary law needs either the express or the tacit consent of all
States, or a conviction on their part that such rule is a legal norm,
according to the particular theory adhered to. Many authors require
nearly unanimous consent, acquiescence, or recognition for the creation
of a rule of customary law. They thereupon deal generally with the
question whether such rule can be established in the absence of unanim
ity; and this usually brings them to the conclusion that such unanimity
is not necessary for the creation of such a rule of international customary
law. But this does not answer the other question, namely whether a
State which has consistently voiced its dissent from a general rule of
customary law during the process of its creation can be bound thereby,
even if such rule may exist as binding upon other States. As far as we
could ascertain, this Court, and all authorities who have dealt specifically
with this particular question-not with the other question-hold the
view that a State cannot be bound by any rule of customary law from
which it has dissented, at the stage of its generation, actual or alleged.
As regards the attitude of this Court, it only appears necessary to
quote two cases in which this view was clearly expressed, and that is the
Colombian/Pemvian Asylum case, to be found in the I.C.J. Reports r950,
page 266, and the Fisheries case, that is, the Judgment of 18 December
1951 (I.C.J. Reports r95r, p. n6).
In the Asylum case, a case which was also referred to by the Applicants,
at IX, pages 350 and 351 of the verbatim record of 19 May, it was
stated, and I quote from pages 276-277 of the I.C.J. Reports r950:
"The Party which relies on a custom of this kind must prove that
this custom is established in such a manner that it has become
binding on the other Party. The Colombian Government must prove
that the rule invoked by it is in accordance with a constant and
uniform usage practised by the States in question, and that this
usage isthe expression of a right appertaining to the State granting
asylum and a duty incumbent on the territorial State. This follows
from Article 38 of the Statute of the Court, which refers to inter
national custom 'as evidence of~- gencral practice accepted as law'.'IO SOUTH WEST AFRICA
Then I refer the Court also to the well-known passage in the Fisheries
case (I.C.J. Reports I95I, at p. n6), and I quote from page 131:
"In any event the ten-mile rule would appear to be inapplicable
as against Norway inasmuch as she has always opposed any attempt
to apply it to the Norwegian coast."
This case was quoted in our Rejoinder, V, at page 141. It was also
referred to by the Applicants in the verbatim record of 19 May, at IX,
pages 350-352.
Now, the Applicants submit that this particular passage from the
Fisheries case is irrelevant; they say so at page 350, and they say so
because, at page 351 (I quote from the same verbatim record)-
"... the Court emphasized many other factors as well, including
Norway's long historical daims, its peculiar economic dependence
on fisheries,the gcncral toleration of other States, and the acqui
escence by Great Britain, the other party, itself over a long period
of time".
Judge Lauterpacht, however, although he considered that this judg
ment limits the field of custoniary law too much, understands the
Fisheries case to mean-and l quote from a part of a sentence at page 370
of his Development of the International Law by the International Court,
London, 1958-"that the Court found itself unable to give to a practice
which was preponderant, though not universal, the status of a binding
rule of international law". The particular sentence proceeds, but that
is not relevant for our purposes. The passage from Judge Lauterpacht at
pages 191-192, referred to by the Applicants and also quoted by them
in the verbatim record of 19 May, at IX, page 352, should, in our sub
mission, be regarded in the light of what the judge said at page 370.
The next authority, Mr. President, to whom I should like to refer, is
Professor Verzijl, who wrote in the Nederlands Tijdschrift voor Inter
nationaal Recht, Volume I, page 260 (that is the volume dealing with the
years 1953-1954), as follows:
"The Court had a strong additional ground for this finding in the
Norwegian case: 'In any event the ten-mile rule would appear to
be inapplicable as against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast'."
Judge Sir Gerald Fitzmaurice, in "The Law and Procedure of the
International Court of Justice, 1953" (British Yearbook of International
Law, Vol. 30, pp. 24-26) referred to the fisheries case, especially the
passage at page 131, in connection with the question whether a State is
bound to a rule of customary law which it has not accepted; and then
he stated at page 26:
"The effect of the Court's finding in the above-quoted passage is
therefore an acceptance of the Norwegian contention that Norway
had always dissented from certain rules even at their inception, and
had therefore acquired an exemption from them. The essence of the
matter is dissent from the rule white it is in process of becoming one,
and before z'has crystatlized into a definite and generally accepted rule
of law."
I skip a fairly long passage,and then the quotation continues:
"Consent can indeed be withheld, but this can only be in the
formative period, when general consent is still necessary to the REJOINDER OF DR. VERLOREN VAN THEMAAT II
validity of the rule. That is why dissent must be expressed at that
stage in order to confer exemption: otherwise it is too late."
I may refer also to the Rejoinder, V, at page 141, in this connection,
where another quotation is given from Judge Sir Gerald Fitzmaurice's
article, with the same tenor. I should further like to quote the author I
have already referred to, Joseph L. Kunz, in the American Journal of
International Law, Volume 47, 1953, at page 667. The author there
states, in the same editorial comment on the evolution of a practice
into a general rule of customary law:
"Protests by other States or declarations that they, even if
submitting to this practice do so only ex gratia, protests against the
norm on which an international decision is based, even in carrying
out this decision prevent the coming into existence of a new norm
_ofcustomary general international law."
And Professor Tunkin in the same article in the Californian Law Revie.w
goes even further than that-I quote from pages 428 and 429-when
he says:
"The concept that customary norms of international law re
cognized as such by a large number of States are binding upon ail
States not only has no foundation in modern international law but
is fraught with grave danger." (Italics added.)
Finally, l\fr.President, I should like to quote from the work by
Professor A. Verdross, Volkerrecht, Fifth Edition, 1964, at page r4r.
I shall give our translation from the German. Professor Verdross states
as follows:
"But an analysis of the decisions of the International Court shows
us that it has constantly held the view that the norm which has
arisen from customary law cannot bind a State which has regularly
resisted it. Thus, this Court states, for instance, in the case of
Diplomatie Asylum that a certain usage cannot be held against a
State which has refused to ratify an agreement which intended to
codify such usage (I.C.J. Reports I950, page 277 and following).
Although this only deals with a case of regional international law,
the principle expressed there is of general significance. It is also
confirmed by the International Court in the British Norwegian
Fisheries case ... "
Mr. President, this concludes my review of the authorities relating to
customary law in as far as it is relevant to the present case. I thank the
Court for the courtesy shown and I respectfully request that Mr. de
Villiers be allowed to address the Court in continuance of the argument.12
21. REJOINDER OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFIUCA AT THE PUBLIC
HEARINGS OF 15-18 JUNE 1965
Mr. President, let us then consider these elements mentioned by my
learned friend, Dr. verLoren van Themaat. as dealt with in the author
ities, in order to apply them to the Applicants' submissions before the
Court. For convenience I shall take them also in the way jn which they
were divided into four elements by Judge Hudson. This division does not
appear to be affected by the differences there are in theories. We shall
have regard to those differences as far as may be necessary in the ap
plication of each of those elements.
The basic question is, Mr. President, can these elements ever be estab
lished by referring only to activities of international organizations? Can
the activities of such organizations ever have sufficient weight and can
they ever be comprehensive enough to be sufficient in themselves with
a view to complying with these essential elements for the generation of
a rule of customary law?
Let us take the first element. Let us take them one by one. The ftrst
one, the Court will recall, consists of "the concordant practice by a
number of States with reference to a type of situation falling within the
domain of international relations". That is as it was paraphrased by
Dr. Clive Parry in his recently published work, The Sources and Evidences
of International Law, at page 62. Here we have the following essentials
of the concordant practice by a numbcr of States with reference to a type
of situation falling within the domain of international relations. Now
let us see-how do the activities carried on in international organizations
like the United Nations and its organs and the International Labour
Organisation-how do those fit into a picture of this kind?
The only practice carried on in these organizations, substantially
speaking, is that of talking and of voting. It is true that for the purposes
of talking, of making proposais, of voting, of coming to conclusions and
so forth, it is necessary to apply certain procedural rules, procedural
practices, procedural approaches and so forth and that in that respect,
it may be possible, as my learned friend Dr. verLoren van Themaat,
pointed out by reference to some of the authorities quoted by him, that
within that organization, for that limited purpose, certain customs may
originate which are regarded as being binding within that limited sphere.
But when it cornes to the sphere ofsubstantive Iegal relationships be
tween States relating to their substantive rights and obligations inter se
and as between themselves and the United Nations or the organizations
concerned, it would seem, Mr. President, that the only practice (in the
sense in which that term is understood by the authorities) which one
could have in these international organizations, could be of a very
limited nature only. If one applies the test very literally to the fact that
the only conduct which could have a bearing on a question of this kind,
is only talking and voting, then one might be able to say that on satis
fying the other requirements for the creation of customary law, one REJOINDER OF MR. DE VILLIERS 13
could eventually land up with an obligation in law, to speak and vote in
international organizations.
But, Mr. President, more seriously, the fact is that normally the
activities, the practice, of the States themselves, as distinct from the
collective acts of the organ or organization in coming to a decision, the
practice of the States themselves consists of talking and of voting, of
making proposais. Rarely, there may be something in the nature of a
legal act involved in a statement. The Court knows the examples, the
type of thing where there may be a formal legal act, a pledge, for in
stance,or an admission against a party. Something of that kind, although
consisting of speaking, is also in law regarded as a formai act, for in
stance, the act of entering into an agreement, the act of legislating in
cases where that might occur-I am speaking generally now. It is
possiblethat to a limited extent one may have that sort of thing within
the speaking activities of States in the organs concemed.
But again, l\fr. President, having regard to what we know of these
activities, the scope for that type of act would be very limited indeed.
Sometimes, it might well be possible that what States may say in these
deliberations may afford eviclence as to what their actual practice is,
outside of these bodies, but again, Mr. President, the evidential weight
of such statements would be slight. Sometimes they could be of the
nature of an admission against a State and, I suppose, that could have a
greater evidential value than where a State daims, in its own favour,
that a certain practice is being conducted.
But, Mr. President, in view of the fact that the purpose of the organs
concerned is directed at recommendations and, within a very limited
sphere, at decisîons in ad hoc situations, and not at the creation of norms
and not at seeking to establish general legal norms, rights and obligations
to obtain as between States, it will become quite evident that the scope
for something of that nature to occur is very limited. I may refer the
Court to a passage in the work by Dr. Parry to which I have rcfcrred, at
page 63. Dr. Parry there cites a passage from the Fisheries case, dealing
exactly with this question of proof of practice, as follows:
"This cannot be established by citing cases where coastal States
have made extensive daims, but have not maintained their daims
by the actual assertion of sovereignty over trespassing foreign
ships ... The only convincing evidence of State practice is to be
found in seizures, where the coastal State asserts its sovereignty
over trespassing foreign ships ... ''
The author continues:
"Judge Fitzmaurice, in his literary capacity, has summed up this
passage, which occurs in an individual dissenting opinion as sug
gesting 'that the essential element in the practice of States [is] their
overt actions, rather than such things as daims, declarations,
municipal legislation, etc.' And he comments [citing then from the
article by Judge Fitzmaurice in the British Yearbook of International
Law, XXX (r953), pp. r, 67-68]: 'While this point of view must
probably not be pressed so far as to rule out the probative value,
and the contribution to the formation of usage and custom, of State
professions in their various· forms (legislation, declarations, diplo
matie statements, etc., it is helieved to be a sound principle that, in
the long run, it is only the actions of States that build up practice, SOUTH WEST AFRICA
just as it is only practice ("constant and uniform" as the Court has
said) that constitutes a usage or custom and builds up eventually a
rule ofcustomary international law'."
The leamed author proceeds to comment further on this statement.
In certain respects not germane to our purposes, he points out that the
verdict can be considered to be a narrow one and that strictly, it should,
in some respects, be still further narrowed.
But the emphasis again falls, Mr. President, not on drawing an absolu te
line and saying "... well, statements in themselves can never be relevant
to the question of practice"; that is not the purpose of drawing the line;
statements can be relevant, but all the indications are that they could
be so in a very limited sphere only, since the accent falls so heavily on
what is the actual practice.
Therefore, the value which they could have, could, at most, be some
thing additional, something auxiliary, something ancillary. They could
be something on the sidelines, but the real issue relates to what practice
is. Consequently one would suppose that the vital evidence in each case
would have to be directed at what is being done, and not at what is being
said, so that at least one can say that it must always be open to a party
against whom it is asserted that a practice of States has originated and
that such practice has developed into a custom, to refer to the whole
evidential field and, particularly, to the actual actions of the States
concerned-the actual practice.
One knows, Mr. President, from the authorities-the commentators
to whom I referred earlier this morning, that the activities of these
various organs are gencrally directed at solving a particular problem
either by decision or by recommendation. Usually that problem is of a
political nature and the attempts made by the body concerned may be
to arrive at a compromise; in other cases the purpose may be a demon
stration of a propagandistic nature, as one of the commentators said;
very often the purpose is the settlement of a dispute. Very often, Mr.
President, one finds that the respective approaches of the various States
to such a problem coming before these bodies are completely divergent.
\Ve saw this repeatedly in the various debates to which we referred on
the other issue before the Court, the issue about accountability, and the
attitudes taken by the various States on that issue as it came before them
from time to time. Sorne States take up an attitude that there is a legal
obligation to do something; some States take the opposite view that there
is no legal obligation; some say there is no legal obligation but there is
a moral obligation; and others say that it does not matter what the law
is,let us see whether we can find something expedient in order to arrive
at a solution. So, how can one then say that what goes into the eventual
resolution is evidence of an attitude on the part of States as to what
their practice is, as to what they consider to be the substantive obliga
tions and rights as among the various States or between a particular
State and the Organization?
Very often, because of the fonctions of these organs, the emphasis
falls heavily on attempts towards settlement of a dispute, and it is
interesting, Mr. President, to note how the Applicants initially relied
upon events in the organs of the United Nations, particularly with a
view to showing that there existed a dispute between the Parties to
these proceedings-a dispute which could not be settled by negotiation.
Last week, my leamed friend, Mr. Grosskopf, traced the development REJOINDER OF MR. DE VILLIERS
15
and the alterations in the Applicants' case in this respect-how they
moved frorn reliance upon the United Nations resolutions and reports,
for this purpose of showing a dispute which could not be settled by
negotiation, to reliance thereon as authority possessing great weight,
and finally, as evidence of a normand standards binding upon the Court
itselfand upon the Respondent. The purpose of referring to it at this
present stage, Mr. President, is to go back to the first of these three
attitudes and to contrast that with what we have at the moment.
We find, Mr. President, that the Applicants' contention which they
advanced to the Court in 1962 in the Preliminary Objections proceedings,
and the findings of the Court on that question, are directly in confüct
with this norm theory which is now prescnted to the Court on the basis
of those sarne events, largely, coupled with some others, in the activities
of the United Nations bodies.
The Court will recall that Article 7 (2) of the Mandate stated as a
prerequisite for jurisdiction the existence of a dispute "which cannot be
settled by negotiation", and that our fourth preliminary objection was
worded to this effect: "The alleged conflict or disagreernent is not a
dispute which cannot be settled by negotiation in the meaning of Article 7
of the Mandate." It was with particular reference to this issue that the
nature of the fonctions of the United Nations came under discussion in
the 1962 proceedings, and, Mr. President, the judgment of the Court on
this question is an instructive one. The judgment accorded, to a large
extent, with the line of argument presented to the Court on behalf of the
Applicants. At page 345, the Court stated:
"... behind the present dispute there is another and similar dis
agreement on points of law and fact-a similar conflict of legal views
and interests-between the Respondent on the one hand, and the
other Members of the United Nations, holding identical views with
the Applicants, on the other band. But though the dispute in the
United Nations and the one now before the Court may be regarded
as two different disputes,the questions at issue are identical. Even a
cursory examination of the views, propositions and arguments
consisü:ntly maintained by the two opposing sides, shows that an
impasse was reached before 4 November 1960 when the Applications
in the instant cases were filed, and that the impasse continues to
exist." (I.C.]. Reports r962.)
Later, on the same page, the Court said this:
"It is immaterial and unneccssary to enquire what the different
and opposing views were which brought about the deadlock in the
past negotiations in the United Nations, since the present phase
calls foretermination of only the question of jurisdiction. The fact
that a deadlock was reached in the collective negotiations in the past
and the further fact that both the written pleadings and oral
arguments of the Parties in the present proceedings have clearly
confirmed the continuance of this deadlock, compel a conclusion that
no reasonable probability exists that further negotiations would lead
ta a settlement."
Then, at page 346, Mr. President, the Court said:
"It is, however, further contended by the Respondent that the
collective negotiations in the United Nations are one thing and direct16 SOUTH WEST AFRICA
negotiations between it and the Applicants are another, and that
no such direct negotiations have ever been undertaken by them. But
in this respect it is not so much the form of negotiation that matters
as the attitude and views of the Parties on the substantive issues of
the question involved. So long as both sides remain adamant. and
this is obvious even from their oral presentations before the Court,
there is no rcason tothink that the dispute can be settled by further
negotiations between the Parties.
Moreover, diplomacy by conference or parliamentary diplomacy
has corne to be recognized in the past four or five decades as one of
the established modes of international negotiation. In cases where
the disputed questions are of comnwn interest to a group of States
on one side or the other in an organized body, parliamentary or
conference diplomacy has often been found to be the most practical
form of negotiation. The number of parties to one side or the other
of a dispute is of no importance; it depends upon the nature of the
question at issue. If it is one of mutual interest to many States,
whether in an organized body or not, there is no reason why each of
them should go through the formality and pretence of direct nego
tiation with the common adversary State after they have already
fully participated in the collective negotiations with the same State
in opposition."
Now, Mr. President, the point I want to emphasize is that in these
passages the proceedings in the United Nations were seen as negotiations
between the Respondent and various other States, negotiations which
had as a fact broken down, thus leading the Court to the conclusion that
the Court had jurisdiction, that the matter was not capable of being
settled by negotiation. But the whole concept of negotiation of a dispute
presupposes that there are parties standing on the same level, parties of
the same status, that they wish to scttle that dispute between themselves.
For instance, in the expression used by the Court "So long as bath sides
remain adamant", the Courtis talking of two sides, two parties. In other
places the Court refers to a "common interest" of a "group of States"
vis-à-vis the "adversary State" in these "collective negotiations".
So, Mr. President, viewing the matter in that light, the presupposition
is that either of the two sides to this dispute may be right and the other
one may be wrong. Itis, in essence, something different from saying that
the one party has the authority to lay down its will, to impose its will on
the other party, and to say toit: "Here I create a norm by which you will
be bound-you, and other States falling within the compass of this norrn."
The presupposition of a dispute bctween parties standing on the same
footing is further emphasized by the factthat there is an idea that that
dispute may well have been capable of solution by negotiation, in prin
ciple, but that in this particular case that has proved to be impossible,
bath parties remaining adamant. That factor is further emphasized by
the stress laid on the fact that no reasonable possibility exists that
further negotiations would lead to a settlement.
Mr. President, if the contemplation was that the one party, this
collectivity, could lay down its will as a binding norm not only for South
Africa, but also for other States, how strange would be this very idea
that there could possibly have bcen a thought even of further negotiation
between one Statc, South Africa, and this law-giver which is insisting
on applying its law to al! the States to which this might apply. REJOINDER OF MR, DE VILLIERS
17
[Public hearing of I6 June I965]
Mr. President and honourable Members, at the conclusion yesterday
I was dealing with certain extracts from the Judgment of the Court in
1962 on our Preliminary Objection No. 4, relating to the question
whether there was a dispute which could or could not be settled by
negotiation, and I pointed out that the very same material and the very
same events in the organs of the United Nations now relied upon by
the Applicants as showing the origin of their alleged norm through
custom and through practice as a rule of customary law were then relied
upon by them in argument and by the Court in its finding on the question
of a dispute, as showing that such a dispute existed, and that the events
in the United Nations were to be seen as negotiations with a view to a
settlement of that dispute. Those negotiations proved abortive and, on
that basis, the Court found it had the necessary jurisdiction.
We pointed out, Mr. President, that viewing the events as negotiations
between the Respondent and varions other States, presupposed that
there were two parties to this dispute standing on an equal footing with
cach other, that one or the other might have been correct in the attitude
it took in that dispute, and that that was the exact antithcsis of the
relationship for which the Applicants now contend-that of a law-giver,
on the one hand, able to enforce its will upon the subject, on the other
band.
Proceeding from there, Mr. President, I may point out that the same
approach emerges from the separate opinions of Judges who agreed with
the conclusion arrived at by the Court- Judges who gave opinions on
the majority sicle.
In the opinion of Judge Bustamante we find at page 385 that he
said the following:
"In the present case, the voluminous documentation put in by
the Parties and especially the annexes relating to the activities of
the United Nations in this case constitute, in my opinion, over
whdming proof not only of the fact that repeated and reiterated
negotiations took place, in which the Applicants and the Respondent
participated, but also that all the efforts made to find a conciliatory
solution resulted in failure." (l.C.J. Reports I962, p. 385.)
And, Mr. President, one finds a similar reasoning in the opinion of
Judge Jessup, at pages 433-436 of the same volume.
Then, Mr. President, when we turn to the minority opinion of Judge
Morelli, we find a similar conclusion, i.e., one of antithesis between what
the Applicants are contending for now and the way in which the events
in the United Nations were looked upon at the time-although for
different reasons, because Judge Morelli took a different view from the
majority as to the sense in which those negotiations in the United
Nations were to be seen.
Judge Morelli's view was, and he emphasized at page 573 of the same
volume that the statements in, and resolutions by, the organs of the
United Nations "are guided, not by the individual interest of each State
Member of the United Nations, but rather by the collective intercst of
all the States Members as a group".
Now, Mr. President, I submit that the considerations arising in the
present context are analogons to the considerations expressed here by18 SOUTH WEST AFRICA
the leamed Judge. They emphasize how difficult it would be to say that
because of events in the United Nations bodies there could have been
generated a norm in regard to these individual relationships between
States. The learned Judge emphasized here that the interest there
represented by the events which took place, was not an individual interest
of each State Member of the United Nations, but a collective interest
of allthe States Members as a group, and that led him ta certain divergent
conclusions from those of the majority on the question whether there
was a dispute which had proved to be incapable of settlement by
negotiation.
Mr. President, it is, therefore, quite evident that this question of the
manner in which the events in the United Nations were ta be seen-the
signifi.cance to be attached to them-was very pertinently in the mind
of the Court. It was a matter on which, as these passages show, there
were divergent opinions between different Members of the Court, and
yet one fmds that, despite the pertinent attention given ta the matter,
not a single Member of the Court came upon this thought that those
events were to be seen possibly as laying down a norm-that those
events were to be seen as generating a new rule of customary law under
which the relationship between the participants in the events was to be
seen,not as that of equally negotiating parties at all, but as that of a
law-giver, on the one hand, imposing its will on a subject, on the other
hand.
It is true that nothing of that kind was presented to the Court, but,
Mr. President, where a court is composed of 15 members as it was-15
members versed, with respect, in the principles and the application of
international law, and where they pertinently gave their attention to
the signifi.cance to be attached to the cvents connected with the issue to
which I have referred, then surely, ifthere was any semblance of merit
in this contention of the Applicants, one or other Member of the Court
would have had a thought that perhaps this other view was ta be taken
of the situation-another view which could have had a very pertinent
consequence on the conclusion to which the Court came on the question
whether it had jurisdiction, but one finds that there is no reference by
a single Member of the Court to even a possibility of the events having
to be seen in that Iight.
This, Mr. President, is a factor which adds to the significance of the
fact that the Applicants did not raise this contention until this very last
stage of these proceedings-quite obviously as an afterthought.
If we go back by way of contrast to what they said at the time of the
Preliminary Objections as to the manner in which United Nations
proceedings were to be seen, we find that they said the following in the
written Observations, 1,at page 454:
"The essence of the United Nations and its role in international
affairs are weH described in the words of Goodrich and Simons:
'The United Nations is fundamentally a voluntary association of
states,with a set of organs and procedures through which its Member
states have agreed to co-operate, under stated conditions, for
common purposes. Like the League of Nations before it, the essence
of the United Nations [and, if I may interrupt here the words were
underscored in the Observations themselves] is that techniques
previously used in international relations-the concert of powers, the
international conference, peace/ul methods of settling disputes-have REJOINDER OF MR. DE VILLIERS 19
been institutionalized and made part of the established and recognized
process of conducting international affairs'."
That was the quotation from Goodrich and Simons, and the passage
in the Observations proceeded: "Indeed, if the above description is not
accurate, one wonders what the United Nations is ail about."
lt seems, Mr. President, that one need wonder no longer; one has now
discovered that the United Nations is really a quasi legislative body.
I referred to this matter, Mr. President, under the heading of the
first of the essential elements for the generation of a norm, or an obliga
tion, or a principle of international customary law, i.e., the requirement
of a concordant practice in relation to a type of situation falling within
the domain of international relations, and my whole argument was
directed to that first part of the essential element, the concordant
practice, to show that, in so far as a practice contemplated in the prin
ciples and by the authorities existed, in so far as there could be said
to be a practice in the United Nations at all, it could be something which
could really just exist on the sidelines.It would not be the main essence
of the evidence at which one looks in order to see whether such a rule of
customary law bas been generated. The whole tenor of what occurs in
the organs of the United Nations, having regard to the purposes of those
organs as one finds them stated in the constitutional documents, and
having regard to the limitations upon the powers of those organs, is
something different: it is something standing almost in contrast, in most
respects, to what one would expect for purposes of a practice which
could generate a norm of customary international law.
I should like to deal now with the second aspect of that first element,
that is, the aspect which requires the concordant practice to deal with
a type of situation falling within the domain of international relations.
Mr. President, one will recall that the norm upon which the Applicants
rely is one which concerns the allotment of rights and obligations to
inhabitants of a stated territory or country on the basis of membership
in a race, class or group. Although my argument is on the whole, at this
stage, directed not at the suggested content of the norm, at dcaling with
the question whether a norm of such a content can in fact be said to
have been practised-1 am dealing only now with the suggested processcs
of generation of such a norm, independently of what its content might
be-1 must nevertheless, for purposes of dealing with this aspect of the
first essential, refer to the fact that here we have a situation, having
regard to the suggested content of the norm, which would, prima /acie
at Jeast, not fall within the domain of international relations. It would
fallprima facie within the domain of domestic relations within a State
the relationshlp between the authority and the inhabitants, the subjects,
or the citizcns of the State, as the case might be.
So again, Mr. President, it becomes so much more difficult to say-1
should not say impossible, but it becomes so much more difficult to say
that there has been an international practice, which can be said to be
relied upon with a view to generation of a norm of that kind. Itbecomes
a factually difficult proposition,and it becomes evcn more difficult if that
factual proposition is to relate purely, as my learned friends contcnd,
to the evcnts in international organizations, and if it is not to have
regard at ail to other aspects of inter-State practice and of actual practice
within States.
My learned friend in that regard referred to analogies which he said20 SOUTH WEST AFRICA
could usefully apply or be referred to in this respect. He referred to the
analogies of slavery and genocide. Now, Mr. President, slavery, as the
Court will recall, is a matter which could have an international aspect
but it is a matter which could have a purely domestic aspect. The
international aspect would relate to slave trade, international slave trade
and traffic and activities; the domestic aspect would relate to what one
might term domestic slavery within a State.
If I recall correctly-probably Members of the Court may be more
specifically and more widely read on the subject that I am-in the
history of the generation of rules of international law in regard to
slavery, one fi.rst found conventions for a long time in respect of the
international traffic in slavery, before the question of domestic slavery
was touched upon at ail in international relationships. Domestic slavery
existed for a long time in certain countries, long after the fi.rstinternation
al conventions were made in regard to the international slave traffic,
and then the matter of domestic slavery was dealt with not by way of
generation of a general rule of customary law applicable all over the
globe but it was tackled piece by piece through specific treaties and
conventions between particular States, and from there the resistance
against domestic slavery as a matter of international Iaw grew out. But,
Mr. President, even to this day, there are commentators who say that
if it were to be contended that there is a customary rule of international
law prohibiting domestic slavery, it might still be difficult to establish
that. I do not say that it would be impossible; I am merely pointing out
what the real situation would appear to be in regard to slavery-some
thing which started to receive attention as·early a~. I think, the previous
century, and yet we still have that situation of uncertainty concerning
the international legal aspects.
My leamed friend says that although in the League time it was per
fectly in order to differentiate-it was expected of mandatory and other
States to differentiate-suddenly in the last decade or so a completely
new and a completely opposite norm has generated in international
society, which prohibits such differentiation in this particular field
completely. And then he says one can look at the analogy of the case of
slavery.
Oppenheim, the Lauterpacht edition, 1955, says the following in
Volume I, at page 733:
"It is difficult to say that customary International Law condemns
two of the greatest curses which man has ever imposed upon his
fellow men, the institution of slavery and the traffic in slaves."
Earlier,in 1945. the same learned author had stated in An International
Bill of the Rights of Man, at page 100;
"The International Bill of the Rights of Man must be used as an
opportunity-long overdue-for the final and absolute prohibition
of the institution of slavery both in the domestic sphere and as a
matter of international law. It is a grave reflection on the modem
law of nations, in which the individual is said to be the mere object
of law, that the attempts ta abolish slavery by international agree
ment and to vindicate the freedom of man in its primary and most
fondamental aspects as part of international law have so far re
mained unsuccessful." REJOINDER OF MR. DE VILLIERS 2I
Schwarzenberger states at page 51, with reference to elementary
considerations of humanity, the following:
"It would be equally difficult to found the admissibility of such
considerations per se on a general principle of law recognized by
civilized nations. If reasons for such hesitation were required, they
would be furnished by one example alone: the network of treaties
which were thought necessary to bring about the international out
lawry of the slave trade." (International Law, p. 51.)
One finds, Mr. President, that even as recently as the European
Convention on Human Rights it was found necessary to make an express
provision in regard to slavery.
Coming to genocide, again one finds the possibility of a dual outlook.
A question of genocide may be purely domestic, in the sense that the
particular national or ethnie or religions group concerned forms an
entirely separate part of a domestic population, that it is entirely con
fined to the limits of one particular State, or it may have international
aspects-there may be questions in law about the treatment of foreigners,
subjects of other States, and so forth. So that, again, one could have the
two possibilities-a purely domestic aspect and an international aspect.
Coming to the purely domestic aspect, Mr. President, again one has
this difficulty, viz., how could an international practice generate in
respect thereof, unlessthe practice must consist of certain States making
formai demands as if as of right, and the other State accedes to those
demands as if acceding to an obligation upon it to desist because those
other States say: "we have a right to demand that you are not to practise
genocide in any form in respect of a domestic population"? How else
could one expect to find an international practice in that regard, as
distinct from the possibility of international conventions?
And, Mr. President, if the practices of United Nations organs and
bodies were solely to be relied upon, how often would one expect some
thing of that kind to happen, viz., that a daim be stated on behalf of
a State or a group of States with a view to desistance from genocide
within a community or within a State and that the other State accedes
toit, the other State says: "yes, I agree: there is a rule of customary
international law which prohibits me from doing so"?
The Applicants in various respects compare the policy against which
they say their norm operates, the policy of apartheid as they describe it,
with genocide. We find that they do that in the verbatim record of
13 May, at IX, page 260; in the verbatim record of 14 May, at IX,
pages 272 and 273; în the verbatim of 19 May, at IX, pages 355 and
356. This last passage is of note because the Applicants quote from
the case on the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, and they suggest that in that case
this Court "regarded genocide as violative of international law even
without the convention then before it". Those were the words used by
the Applicants at page 356 of that verbatim record.
Mr. President, it is, in my submission, at least questionable whether
the Court ever had such a contemplation, that genocide as described in
that convention was to be regarded as violative of international law
even without the convention then before it. The context in which the
particular passage occurred was something different. The Court was
dealing with the question in how far there could be reservations con~,22 SOUTH WEST AFRICA
sistent with the main purposes of the convention, and it made an analysis
of circumstances as a basis for dealing with that question. ln the course
of that analysis the Court spoke of the "principles underlying the
convention"-that was the expression it used. And the Court said that
those were principles "which are recognized by civilized nations as
binding on States, even without any conventional obligation".
Now, ifwe look back at the passage quoted in the verbatim record of
19 May, at IX, page 355, we see what the Court probably had in mind
in speaking of these underlying principles. The Court said:
"The origins of the Convention show that it was the intention of
the United Nations to condemn and punish genocide as 'a crime
under international law' involving a denial of the right of existence
of entire human groups, a denial which shocks the conscience of
mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations ... "
In that broad sense then, Mr. President, the Court spoke of the back
ground considerations which underlay the Convention, because it goes
on immediately to say:
"The first consequence arising from this conception is that the
principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without
any conventional obligation."
It will be observed that the Court, in this particular passage, was
careful to speak of "principles". It was not speaking of particular
obligations or particular rights, the Court was speaking of those broad
underlying principles, and particuJarJy one finds amongst them this
broad concept of the "right of existence of entire human groups"-the
very general concept and principle said to be an underlying one and one
recognized in international law.
So, Mr. President, what does one find? One finds that the words
"binding on States" indicate a contemplation of a principle of inter
national law, probably as part of international customary law. Alter
natively, the matter can be viewed in the sense propounded by Schwar
zenberger, in his International Law, 3rd edition, at pages 51-52, where
he stated the following: .
"If due emphasis is put on the words 'from this conception', the
Court merely meant to interpret the intentions of a recommendation
of the General Assembly. As, however, this recommendation was
unanimously adopted by the General Assembly, its contents may
be considered to have become binding on all the members of the
United Nations by way of estoppel. It is also possible to infer that
the Court identified itself with this conception. Then the Court may
be understood [then, in that event] to have held that the principles
underlying the Genocide Convention are based on the third of the
law-creating processes available to the Court."
In other words, general principles of law recognized by civilized
nations.
This same view was propounded by the author of an article in the
March 1965 issue of the Texas Law Review, at page 455. The article was
entitled "International jus cogens". What is important, Mr. President, REJOINDER OF MR. DE VILLIERS 23
from the comment and from the analysis, is that neither of the two
methods which suggest themselves as a proper interpretation of what
the Court had in mind, support the Applicants' contention that the Court
contemplated a law-creating process, a process of creation of rights and
obligations which would be binding upon a party without its consent
and, in particular, that something happening in international forums
could be regarded as creating a practice which would, even as regards the
domestic aspects of a concept like genocide, create international rights
and obligations.
There is a very important consideration in regard to genocide which
the Applicants very lightly brush aside. We fmd that in the verbatim
record of 19 May, where they say:
"It is, of course, true that when the Genocide Convention came
before the Court no State was defending the practice of genocide.
Respondent, of course, today stoutly defends the practice of apart
heid.'' (IX, p. 356.}
Mr. President, that is not a consideration which is so lightly to be
brushed aside. It is of fundamental importance. In the case of genocide,
the Court could find itself on very safe ground in considering that all
civilizedStates would join in their abhorrence of something of that kind,
even if practised on a domestic basis, and that that could genuinely be
regarded as a general principle of international law underlying the
Convention.
In the case of the policies here under consideration, Mr. President,
how could that ever be said? Those policies do not relate to a moral
concept, as such. They relate to a question of method-a question of a
method of seeking to achieve the same lofty purpose as may be held in
mind by those who say that this policy is to be outlawed. It is a differ
ence, as I emphasized before, on questions of method, not on questions
of principle or of purpose. Therefore, how could it ever be said that,
when there is this fundamental difference where those who de/end the
policy say that they are the only possible policies that could work in the
interests of ail concerned, without those policies and without their basic
approach there would be absolute chaos and that the peoples involved
would suffer to an extent which is almost unpredictable? If we have
those circurnstances, Mr. President, then surely all analogy between the
case of genocide-between the situation contemplated by the Court in
that particular passage-and the case of the policies here under con
sideration, must fall away.
That brings me, Mr. President, to a consideration of the next element
of importance in the generation of a rule of custornary international law,
and that is the continuation or repetition of a practice over a considerable
period of tirne. Here again, one starts with the conception of what is a
practice, a rnatter with which I dealt under the previous head. It is the
practice that is to be repeated over a period of time, not statements and
resolutions reflecting what the views of particular States might be.
Those statements and resolutions, as I have said, might perhaps be used
to throw light upon practice, to dernonstrate what practice really is, to
show in what light it is to be seen, but mere repetition of statements,
particularly in the face of opposition and resistance to them, could never
qualify as showing an international practice inthe sense as contemplated.
In the case of the norm, as suggested by the Applicants, they would,24 SOUTH WEST AFRICA
in order to comply with this requirement of the generation of a mie of
customary law, have to show that that norm, with the content they
purport to assign to it or attempt to assign to it, was practised over a
long period of time. Actually, the significance of that, Mr. President,
as I conceive it with respect and submission, is that in the generation of
customary international law there is a large element of testing something
out in practice. One finds it not only in regard to customary international
law, but also in regard to multilateral conventions particularly, sometimes
even ordinary bilateral treaties. There is first a testing out of the stan
dards involved-the standards which are prima facie in existence or
contemplated which, in themselves, are non-binding, and which are to
be first tested out properly.
If we take it under the first head-the creation of law, of obligations,
by treaty or convention-what is the common practice in that regard?
One finds that the matter is discussed tentatively for some time. Later
on, a conference may be organized, and at this confcrence there may be
discussions-if necessary, there may be technical advice, expert advice
and assistance-and if the conference cannot corne to a conclusion, it
adjourns and cornes back toits task later, or the effort is abandoned and
taken up again at a later stage, depending upon how difficult a particular
problem may be. Sometimes success is achieved easily and quickly, but
sometimes it is not. Eventually, when the whole matter has bcen thor
oughly thrashed out, when the processes of drafting have been gone
through, when everybody concerned has seen that there are ·certain
qualifications to be inserted, when ail those processes have been gone
through one has a draft document or perhaps something resolved upon
at this particular conference, and that, normally, has to be referred back
to the various participating States for their further detailed consideration
with a view to ratification or non-ratification. So, Mr. President, it is a
carefu\ly devised process, providing every opportunity for testing
whether these standards, sought to be elevated to the Jevel of an inter
national legal norm, are really worthy of being so elevated, whether one
can be satisfied that they will serve the purpose intended for them-a
good purpose~and that they will not have opposite or deleterious effects.
In the case of the generation of rule by practice, a rule of customary
law, a fortioriMr. President, the testing out processes become even more
important, and this would seem to be the type of case where it has been
particularly impossible to achieve general international agreement upon
the subject, or where it has not been considered worth-while to take up
the matter, or where it seems that the prospects of attaining such
complete unanimity may not be too good unless the matter has been
testcd out for Sorne time. The regular practice over periods of years
would indicate to States to what extent the suggested standard is a
good one or to what extent it is not-to what extent there may or may
not have to be qualifications in such a standard if it is to be elevated to
a norm of international law.
This process of testing under both these main heads of creation of an
international obligation my learned friends wish to short-circuit with this
contention of theirs. They say that the mere fact that large majorities
have been found, on what basis does not really matter, for a proposition
which would bear some resemblance to the norm which they suggest has
corne into operation must, in itself, be regarded as sufficiento bring that
norm into operation, even in the face of opposition, and as being binding REJOINDER OF MR, DE VILLIERS
upon those who have opposed it. It is, Mr. President, also in that sense a
complete evasion and a complete refutation, I should say, of the principles
of the approach involved and contemplated in international law.
We corne to the case of the third suggested element, the third necessary
element, the opinio juris sive necessitatis. Here again, Mr. President, it
is an element which links up very closely with the first one we discussed,
namely that of a concordant practice. It is from the concordant practice
that the law is to make its inferences, its generalizations; where the
Court is to draw an inference in the case of a disputed proposition. It is
from that concordant practice that one has to see whether the practice
has been one which involved this element of acknowledgment of obliga
tion, or whether it was merely one of courtesy or one wh.ich in some
other way did not acknowledge any obligation at all.
And again, having regard to the possible divergencies of approach to
a particular matter coming before organs of the United Nations, it must
be so very difficult to say that the ultimate conclusion arrived at, even
though by a large majority, even though by an agreement which ap
proached unanimity, rested on the same view of the law. I mentioned
the various possibilities yesterday, which we have seen in the records
time after time-various possible divergent approaches to a draft
resolution coming before a body of the United Nations-with the result,
therefore, Mr. President, that it is not sufficient just to have regard to
an accumulation of resolutions upon a particular subject. ln order to
see whether they really involved this particular element, one would have
to analyse those resolutions themselves; one would have to start with
the resolution, have regard toits contents and see whether that in itself
involved any indication of what the opinion of the participant States
-States who voted for the resolution-was on the questions of their
rights and obligations inter se. or the rights and obligations of a particular
State vis-à-vis the United Nations.
Let us take one resolution as an example, but before I do so, may I
point out that a further element of investigation might also be necessary:
the provisions of the resolution themselves may be insufficient to indicate
whether the participant States-the States which voted for it-had a
particular view of the law or not; one may have to look back into the
debates; one may have to see why did they vote for this resolution, why
some abstained from voting, and so forth; why some·voted against. One
would have to look into those points in order to see what the real attitude
of the States was with reference to this requisite of the law. My learned
friend cannot simply bypass it and say: "We look at an accumulation of
resolutions, and they provide the answer."
I should like to refer the Court, just by way of example, to a very
well-known resolution, and one which is strenuously relied upon by the
Applicants in the list which they give in their Reply. It is resolution
No. 1702 of the Sixteenth Session of the General Assembly (19 December
1961) on the question of South West Africa. That was the resolution,
the Court might recall, which was taken shortly before the visit of the
Carpio Committee to South Africa and South \Vest Africa. It was on the
basis of this resolution that the further steps were taken which made
that event possible.
Now let us start with the Preamble. The very first paragraph referred
back toprevious resolutions, particularly the declaration on the granting
of independence to colonial countries and peoples; and then the third SOUTH WEST AFRICA
one "Notes [correct text : "N oting"] with approval the special report of
the Committee on South West Africa", and the next one says this:
"Bearing in mind the findings, conclusions and recommendations
of the special report of the Committee on South West Africa on the
measures to be taken to ensure the institution of the rule of law
and such democratic processes, reforms and programmes of assis
tance as will enable the Mandated Territory of South West Africa to
assume the full responsibilities of sovereignty and independence
within the shortest possible time."
Just pausing there for a moment, Mr. President, a very important part
of the reasoning is involved here-"findings, conclusions and recom
mendations of the special report of the Committee"-those are to be
gone into to see what was the ratio of what goes into this resolution, what
really moved the various States to vote for this resolution.
We go on, and we have some indication. The question related to what
the Committee considered to be necessary for the institution of the rule
of law and such democratic processes, reforms and programmes of
assistance as were apparently considered desirable. Again, there is no
indication whatsoever of a view on the part of the participating States in
regard to an obligation of a particular kindon the part of the Government
of the Republic of South Africa.
The next paragraph in the preamble reads:
"Noting with deep regret that the Government of the Republic of
South Africa has prevented the Committee on South \Vest Africa,
with threats, from entering the Territory."
Mr. President, here is a reference to an allegation, a dispute, of fact
nothing which appears to be relevant to the context of what we are
discussing.
The following paragraph reads:
"Noting with increased disquiet the progressive deterioration of
the situation in South West Africa as a result of the ruthless inten
sification of the policy of apartheid, the deep emotional resentments
of all African peoples, accompanied by the rapid expansion of South
Africa's military forces, and the fact that Europeans, bath soldiers
and civilians, are being armed and militarily reinforced for the
purpose of oppressing the indigenous people, all of which create an
increasingly explosive situation which, if allowed to continue, will
endanger international peace and security."
Mr. President, this paragraph contains factual allegations-factual
allegations with regard to this policy of apartheid alleged to be ruthlessly
intensified; references to "deep emotional resentments"; references to
alleged "rapid expansion of ... military forces" and of the creation of
"an increasingly explosive situation which, ifallowed to continue, will
endanger international peace and security", and in the course thereof
the allegation that the Europeans were being "armed and militarily
reinforced for the purpose of oppressing the indigenous people"-in
cidentally, Mr. President, some of the very allegations with which the
Joint Communiqué after the visit dealt, and indicated that those were
not found to be justified by the two members of the Committee who
visited South West Africa. But again, Mr. President, it is part of this
case which my leamed friends have now abandoned, part of this case REJOINDER OF MR. DE VILLIERS 27
brought against South Africa to the effect that "you are engaged on a
policy of oppression", not that "you are engaged upon a policy which
violates a conceived obligation on your part not to discriminate at all in
the field of allotment of rights and obligations''.
Then, ~fr. President, the next paragraph proceeds to say:
"Considering that the Government of South Africa has persistently
failed in its international obligations in administering the Territory
of South West Africa on behalf of the international community."
Now that is just about as vague as it could be. The "international
obligations" are not identified, and various States could have various
ideas as to what these international obligations were that were being
referred to in this part of the Preamble. Probably they referred to the
aspect of submitting to supervision by the United Nations, because it
was generally in that context that the international obligations were
spoken of. but, as I say, various States may have interpreted that in a
different way.
The following paragraph reads:
"Reafferming that it is the right and duty of the United Nations
to discharge fully its obligations towards the international Territory
of South West Africa."
Again, this is a statement wholly neutral as far as this particular
question is concerned.
The final paragraph reads as follows:
"Convinced that the implementation of resolution 1514 (XV) and
the discharge of the responsibility of the United Nations under the
Charter towards the international community and the people of
South West Africa require the taking of immediate steps by the
United Nations."
And then cornes the operative part of the resolution. We see the
reasoning, therefore-it all works up to this: that the United Nations
considers itself to have a responsibility "towards the international
community and the people of South West ·Africa", and therefore it
becomes desirable to take certain steps.
Those stcps are then set out in the operative part, and I should like to
refer to a fcw (it is unnecessary to go through the whole process):
Firstly,the General Assembly "~olemn!Y proclaims the inalien.able right
of the people ·of South West A.inca to mdependence and nat10nal sov
ereignty"-a statement, therefore, Mr. President, of a policital aim for
the particular people-no reference whatever to a concept, to an opinio
juris,in relation to the suggested norm.
Secondly:
"Decides to establish a United Nations Special Committee for
South West Africa, consisting of [a certain number of members-I
am not reading all thatJ, whose task will be ta achieve, in consulta
tion with the Mandatory Power, the following objectives:
(a) A visit to the Territory of South West Africa before IMay
19(b) The evacuation from the Territory of all military forces of
the Republic of South Africa;
(c) The release of all political prisoners without distinction as to
party or race."28 SOUTH WEST AFRICA
I might remind the Court in passing that no political prisoners were
found.
" (d) The repeal of ail laws or regulations confi.ningthe indigenous
inhabitants in reserves and denying them all freedom of movement,
expression and association, and of ail other laws and regulations
which establish and maintain the intolerable system of apartheid."
Then it goes on, Mr. President:
"(e) Preparations for general elections to the Legislative As
sembly, based on universal adult suffrage, to be held as soon as
possible under the supervision and control of the United Nations."
I do not think there was any suggestion that there was a norm binding
upon the Government of the Republic of South Africa to have such
elections as soon as possible in the Territory.
But to corne back to the condemnation which we there find of "the
intolerable system of apartheid". \Ve are not told what the reasons are
for finding it to be "intolerable", except that we get some idea of the
view taken of the factual situation, rightly or wrongly, by those who
voted for this resolution, or the sponsors of the resolution: a contem
plation of a denial of "al! freedom of movement, expression and associa
tion". If we read this condemnation of apartheid, as being an "intolerable
system", with the condemnation which was expressed in the previous
resolution of the very same kind adopted at the previous session, then
we find what the authors of the resolution probably had in mind. At
page 222 of the Reply, IV, the Applicants quote this resolution 1596 of
the previous Session, and if I am not mistaken it is one of those referred
to in the Preamble of the resolution with which we are dealing. There
the Assembly noted:
"with grave concern the continuing deterioration in the situation in
South West Africa resulting from the continued application, in
violation of the letter and spirit of the Mandate of tyrannical policies
and practices, such as apartheid".
There, Mr. President, we find, again, a contemplation of fact-a
contemplation of tyrannical and oppressive policies and practices.
So ail that relates in part to the case which the Applicants first brought
against us, that of deliberate oppression, a case which is no longer being
brought. And, Mr. President, we corne back to the question: how does
one infer from a collection of motivations of that kind, a collection of
various things sought to be achieved in resolutions of that nature, how
does one infer from that the opinio juris sive necessitatis with reference
to such a highly technical norm as now contended for by the Applicants?
Finally, there is the element of general acquiescence, the most im
portant one from the point of view of the present discussion of the issue
between the Parties. One must again emphasize that the general acqui
escence should relate to conduct, not to words. Words could at most
constitute evidence of conduct, or they could, in a particular situation
of the kind I have mentioned before, constitute an act in themselves, an
act of demand to which there could be a reaction indicating a submission
to an obligation. But one wmtld have to have very unequivocal acqui
escence of that nature if such a proposition were to be established with
reference to words. And, of course, the whole case is brought by the
Applicants on the basis of an admission that on the part of the Respon- REJOINDER OF MR. DE VILLIERS 29
dent, there has certainly nevcr been acquiescence of that kind, but that,
on the contrary, the Respondent has been an objecting, a dissentient, a
protesting State. That is the crux, the nub of this whole issue. That is the
major obstacle which the Applicants must attempt to by-pass, and which
they attempt to by-pass in all these devious ways.
We referred, Mr. President, to the position of a dissenting State in our
Rejoinder, V, at page 140, and it may be useful, for purposes of the
present discussion, ta refer back very briefly to the passage which we
quoted there from an article by the honourable Sir Gerald Fitzmaurice:
" ... if(i)at some time in the past ... any other 'dissenting' State
had in fact, under international Jaw as it then stood, enjoyed rights
wider than those conferred by international law in its present form,
and (ii)on the emergence of a new and more restrictive rule, had
openly and consistently made known its dissent, at the time when
the new rule came, or was in process of coming, into otherwise
general acceptance, then the dissenting State could claim exemption
from the rule even though it was binding on the community generally
and had become a general rule of international law".
I may point out, Mr. President, that the honourable author discusses
the same principle also in the Recueil des Cours, 1957, II, at pages 99 to
IOI.
Now, how do the Applicants attempt to meet this vital difficulty, this
vital difficulty of principle, relating to the very foundation of an inter
national obligation. Surely. Mr. President, this is the crux, and the
Applicants' case must stand or fall by the way in which they seek to
meet it-by the measure of success or otherwise which they attain in the
attempt at meeting this problem. Let us see how they attempt to deal
with it, and let us see what merit there is in any of those attempts. They
begin to say that Article 38 (1) (b): "... says nothing about unanimous
consent as a prerequisite to the coming into being of a customary norm."
That is in the verbatim of 19 May, at IX, page 347.
Certainly, Mr. President, Article 38 (1) (b), of course, says nothing
about that, but Article 38 (1) (b) or any part of Article 38 was not
intended to set out in detail the varions requisites of law-to bring into
being rules or principles or obligations or rights in international law. It
referred under certain broad headings to methods known to international
law, of bringing such obligations and rights into existence. Article 38 (1)
(a) says nothing about the requirements for having a valid treaty. It
says that conventions can give rise to international obligations, and the
Court is to apply those that arise from such conventions. But it does
not say how the Court is to interpret the conventions, it does not say
when a convention arises; it does not say when a convention may be
said to be violated; it does not say what are the requisites for bringing
those conventional obligations into being. Ail that the Court has to
decide by applying the law, and the law is not intended to be codified in
Article 38. I do not think I need say anything further about this attempt
at meeting the obvious requirements of the law, the law as contemplated
by reference, by incorporation, by reference as it were in Article 38 (1).
Next the Applicants say, at the same page, "it is reasonable to regard
the collective acts of the competent international institutions as evidence
of a gencral practice accepted as law". Now, Mr. President, if the sug
gestion is that the collective acts of the competent international organs30 SOUTH WEST AFRICA
are to be seen as the exclusive and conclusive evidence of what might
be regarded as a general practice accepted as law, then this is a purely
1egis1ativeargument, because it does away with all the known princip1es
of the approach of international law to the field of evidence to which
one looks in order to determine whether a principle of customary inter
national law has corne to form part of the law. Even, Mr. President, in
so far as the suggestion is that one must look at those acts as evidence
bearing much weight in such an enquiry I have already dealt with all the
considerations why we have said of these acts that to the extent that
they could be relevant at all, the wcight to be assigned to them could
be very little, itmust depend on particular circumstances. The circum
stances of this case do not seem to support any suggestion that much
weight could be attached to them, any more than in any normal or other
situation where the whole effect of the practicc in the international
institution could really be merely of an auxiliary or an ancillary nature
where it could be additional to what must really be considercd, namely
the actual consistent practice.
Next, we find, at IX, page 348, of that record of rg May "... a veto
power over the process by which customary law emcrges undermines the
capacity of international society to develop international law to meet
developing needs ... ". l\!r. President, this is, again, a purely legislative
argument-an argument which presupposes the desirability of a capacity
on the part of international society to dcvelop international law to meet
developing needs.
It may well be that there is a need in that direction; it may well be
that some think that that need is to be fulfilled by advancing further in
the direction of the creation of an international legislature. But there are
others who do not think so. The capacity of international Society to
develop law must always be measured by the willingness of the various
States comprising international society on the basis of equality to subject
themselves to such law-generating processes, and when my learned friend
is contending for a process which falls clearly outside that which is
desired by the States now forming international society, then he is
bringing a pure legislative consideration to the Court and not a legal
argument. He is arguing for reform, even for revolution, if one wishes, but
not for application of law.
Then, Mr. President, the Applicants seek to rely-at page 347 in
the record of 19 May-on Goodrich and Hambro. The passage is the
following:
"All the various organs of the United Nations will simultaneously
be engaged in thus interpreting different provisions of the Charter
and will build up the practice which wll1 gradualJy assume the
character of customary law."
Now, Mr. President, in the context it is perfectly clear that all the
authors were dealing with was a possibility of generation of custom with
in the internal organization of the United Nations itself relating to
matters of procedure and the like, and not relating to substantive obliga
tions and rights as between States or as between a State and the or
ganization. In any event, Mr. President, the problem of the dissenting
State is not referred to in any way in this discussion in Goodrich and
Hambro. So that does not help the Applicants as far as their fundamental
problcm is concerned. REJOINDER OF MR. DE VILLIERS 31
Next, the Applicants quote certain passages from a work by i\frs.
R. Higgins. We find quotations in the verbatim record of r9 May, at IX,
page 348 and 358, in support of their contention. The passage at
page 348 is a very general one, speaking of flexibility possible in regard
to the generation of international custom; then at the same page we
find this passage:
"Re.solutions of the [General] Assembly are not per se binding
though those rules of general international law which they embody
are binding on Member States, with or without the help of the
resolution, but the body of resolutions as a whole, taken as indica
tions of a general customary law, undoubtedly provide a rich source
of evidence. These resolutions of the Assembly, which deliberately
rather than incidentally providc declarations on international law
are invariably based on other quasi judicial forms of support."
Mr. President, that passage in itself appears to be quite innocuous. It
acknowledges the basic proposition that the resolutions are not per se
binding, but then it assigns to such resolutions the possibility of providing
evidence of a custom. It puts the possible weight to be attributed to this
source of evidence somewhat higher than I should be prepared to do so,
with the greatest respect and submission, for the reasons which I have
already adduced to the Court, but further than that the passage does
not take the matter. It does not help the Applicants in their fondamental
problem-the problem of the dissenting State. The Applicants rel y more
directly on the passage at page 347. I think it may be as wcll to refer to
the wording of that after all:
"Of all these sources, that is [those mentioned in Article 38 (r)) ...
international custom is the most flexible, the most fluid and as such
is exceedingly responsive to the changing necds of the international
community. Customary international law is thercfore perhaps the
most 'political form of international law reflecting the consensus of
the great majority' [of States]."
Now, l\fr.President, the Applicants emphasized these words "the
consensus of the great majority" of States. However, Mr. President, they
did not quote the passage immediately following upon this one. It is in
the work of Mrs. Higgins-The Development of International Law through
the Political Organs of the United Nations, at pages r-2 and reads: "The
emergence of a customary rule of law occurs where there has grown up a
clear and continuous habit of pcrforrning certain actions in the conviction
that they are obligatory under international law." Later on the samc
page, Mr. Pre$ident, there occurs the further passage which is relied
upon by the Applicants, namely: "Collective acts of States, repeated by
and acquiesced in by suffi.cient numbers with suffi.cient frcquency,
eventually attain in the status of law" (p. 2).
Now, Mr. President, taking this whole context it seems perfectly clear
that the authoress did not purport to propagate a new basis for the
generation of customary law, but that she was mercly seeking to apply
well-recognized principles. Her references to "great majority" and to
"suffi.cient numbers" clearly do not imply any view that a great majority
could impose its will on a small dissenting minority. She certainly says
nothing of the kind. She speaks of giving effect to a clear and continuous
habit of performing certain actions in the conviction that they are
obligatory under international law.32 SOUTH WEST AFRICA
So, what she says, Mr. President, in regard to these collective acts by
States, the weight to be attributcd to them, the inferences to be drawn
from them, certainly does not mean that she suggests that ifthere is
opposition by a State or by a minority group of States, until the coming
into existence of such a mie of customary law, any collective will or even
collective acts by other States can bind such an opposing minority. What
she says is perfectly compatible with the widcly held view that customary
international law can arise among certain States, although not binding
dissentients.
Indeed, lVlr.President, the passages relied upon are compatible even
with the elementary proposition that the active consensus of all States
is not required for the coming into existence of a mie ofrnstomary law,
but that such a mie wi11be binding also on non-consenting States which
did not expressly dissent from the mie during its period of gestation. She
merely puts the proposition in general when she speaks of "collective
acts ... by sufficient numbers with suffi.dent frequency" by the great
majority of States. It is a general proposition; it does not purport to
deal with the problem which arises when there is active opposition.
Mr. President. in concluding my remarks on the Applicants' attempted
reliance on the work of Mrs. Higgins, I may point out to the Court, in
no unkind sense, that the work is a research student's thesis. As I have
said, I do not rnean that in an unkind sense as far as Mrs. Higgins is
concerned-I have certainly not read through the whole work to see
what merit it has or what it mav not have as a work of its kind. The
point I want to make is this, that that mere fact shows the lcngths to
which the Applicants find it necessary to go in order to try to find Sorne
support for this revolutionary contention which they are putting to the
Court and trying to substantiate; they have to rely on phrases ambig
uously worded in the thesis of a research student and then, on proper
analysis, one finds that those phrases do not support them.
Next, :\Ir. President, the Applicants attempted to rcly on certain
extracts from the works of Dr. Wilfred Jenks. That we find in the ver
batim record of 19 May, at IX, page 350, and at page 358; but again,
none of thesc passages even remotely implies that any process of law
exists whereby a majority in international society can impose its will on
a dissenting minority.
In particular, we find the Applicants rely on a passage which reads as
follows (it is quoted at IX, p. 358, of the verbatim record of 19 May):
"The will of the community constitutes the basis of obligation but
the law of the community cornes into being by ail the proccsses of
legal development and growth known to mature legal systems."
I should like to pause for a moment at that sentence, because it is the
key to the whole passage. A contrast is drawn between the distinctions
"the ,vill of the community" and "the law of the community". The
will of the community constitutes the basis of obligation but the law
of the community comes into being by the known processes.
Then the passage proceeds:
"It is the will of the community that principles and mies evolved
in accordance with these processes of growth shall be regarded as
binding. Treaty, custom, the general principles of law recognized
by civilized nations, judicial precedent and the opinions of the most
highly qualified publicists, ail fall naturally into place as rnethods REJOINDER OF MR. DE VILLIERS 33
by which, in accordance with the will of the community, the law is
developed to meet the changing and growing needs of an evolving
society."
Now, Mr. President, the Applicants say that this passage appeared "in
the context in which Dr. Jenks was demonstrating the possibilities ... for
accommodating law-creating by the organized international community
within the three main subsections of Article 38 (1) of the Statute". I
state it again-"for accommodating law-creating by the organized
international community", for accommodating that within the three
sections of Article 38 (r) of the Statute.
Mr. President, on any reading of this passage, careful as we can try to
make it, there seems to be not the least justification for this reading of it,
the reading suggested by the Applicants. Dr. Jenks was quite clearly
dealing with the ultimate sources of law, the ultimate source of legal
obligation, in a jurisprudential sense. He was comparing in that respect
what he regarded as being the ultimate source, viz., the will of the world
community, with other alternatives that corne to mind in the theories
and the discussions of academic lawyers, namely the theories of natural
or fondamental rights of States, or the consent of States, or other theories
that have been suggested. It is in this will of the community that he
sees the ultimate source of the obligation, and he says that it is in terms
of that will of the community that the present known processes of law
generation exist; it is because the community does not want any less or
any more than those law-creating processes that they are there. It fits in
perfectly with the situation so forcibly stressed by other commentators
too, namely that it is because many of the States of the world, particularly
the major States, but also the smaller ones, do not want an international
legislature, that we have not got such a legislature, and that the extent
to which binding powers given to international organizations, are so
limited as they in fact are. At no stage of the essay, Mr. President, does
Dr. Jenks appear to touch on the problem which is here in issue, namely
whether a majority of the world community, employing that term in a
philosophical sense, can bind a dissentient minority. Consequently, he
also provides no support whatever for the Applicants' contention.
Next we find, at IX, page 348, of the verbatim record of 19 May, that
the Applicants said the following:
"... Respondent cites an article by Judge Sir Gerald Fitzmaurice,
which suggests that a State dissenting from a general norm being
formed in the international community, may enjoy an exemption
therefrom even if the norm is brought into being for international
society as a whole. Respondent's reasoning, however, ignores the
role and the capacity in which Respondent appears before this
honourable Court; it is a Mandatory. Respondent's citation of
Judge Sir Gerald Fitzmaurice's apt summary of the traditional
doctrine would be relevant only if the subject of this litigation were
apartheid within the Republic of South Africa itself."
At an earlier stage, Mr. President, the Applicants said, and I quote
now from the verbatim record of 17 May:
"The Applicants, as part of their argument under Article 38 of
the Statute, suggest that the Court could conclude that a norm of
non-discrimination has emerged, but that the Respondent, as sover
eign within the Republic of South Africa itself, might conceivably34 SOUTH WEST AFRICA
daim an exemption under familiar doctrine-might itself daim an
exemption from its application on the ground of its dear, open,
consistent opposition to the norm. This conceivably might be daimed
by Respondent with respect to its domestic jurisdiction as sover
eign.
With respect to the mandate institution, however, the Respondent
is not before the Court qtta sovereign but as mandatory, and even if
Respondent qtta sovereign could exercise a veto over the inter
national norm creating processes, which the Applicants do not
concede, Respondent nonetheless, as a mandatory, may not daim
exemption from a legal norm which has been created by the over
whelming consensus of the international community, a consensus
verging on unanimity." (IX, p. 305.)
Now, as a matter of first comment, Mr. President, it will be observed
that the later admission which came on r9 May-in the passage which I
read first-is a more explicit one than the earlier in so far as it concems
the position of the Republic of South Africa with respect to its own
policiesin its own country.
The earlier admission in the second passage is put more tentatively:
"This conceivably might be daimed by Respondent with respect to its
domestic jurisdiction as sovereign", but, in the later passage, it is
put more explicitly: "Respondent's citation of Judge Sir Gerald
Fitzmaurice's apt summary of the tradibonaJ doctrine wouJd be relevant
only ifthe subject of this litigation were apartheid within the Republic
of South Africa itself."
No attempt was made, Mr. President, to reason in support of the con
tention that it might not be possible for Respondent to daim that
exemption in respect of its own policies in its own territory.
But, Mr. President, in addition, we find that no reasoning, apart from
what I have just read to the Court, was suggested in support of the
distinction sought to be drawn between Respondent's position in its own
territory and Respondent's position as Mandatory, because that now, in
the final analysis, appears to be the manner in which Applicants seek to .
meet this basic, this fondamental difficulty about the dissentient State.
They attempt to meet it, Mr. President, apparently, by conceding that
no norm binding on Respondent could arise in the face of its dissent, as
far as South Africa is concemed, and by seeking to draw this distinction.
It really amounts to this, that, for the purposes of their norm argument,
they now fall back again upon a distinction which they sought to draw
for purposes of their standards argument. The Court will recall that the
sole distinction which they sought to draw between the norm argument
and the standards argument was this, that the standards, although not
binding in themselves, became binding upon Respondent because of
Respondent's position as a Mandatory. Its relationship as Mandatory to
the so-called organized international community, or to supervisory bodies
in that community, was why standards could become binding upon
Respondent as Mandatory, i.e., because of that particular relationship.
We have dealt with that argument and we have shown, in my submission,
that it has no substance.
Now we corne back to the norm argument. That was said to be some
thing which constHutes legal obligations qulte independently of the
Mandate-legal obligations which would be binding upon Respondent
quite independently of the operation or the content of the Mandate. But REJOINDER OF MR. DE VILLIERS 35
we find that, in the ultimate result, having to meet their fondamental
difficulty in that respect, the Applicants find it necessary to fall back
upon an argument relying upon Respondent's position as Mandatory, an
argument then, in essence and on analysis, the same basic one as we
have already controverted in respect of the standards theory.
This is,in effect, what the Applicants say here. As I have said, we have
really disposed of that suggestion before. I think I could usefolly add
something as to the merits of this distinction especially, within the
sphere of international relations, the fonction that could be assigned to
the Mandatory in respect of the external international relations of the
mandated terri tory, in order to see whether there is any merit whatsoever
in the distinction which is sought to be drawn between Respondent's role
as a Mandatory, in that respect, and its role in respect of its own territory,
particularl y in so far as its relationship with the so-called organized
international community is concerned.
There is ample authority, Mr. President, for the proposition that the
Mandatory was in Iaw capable of entering into binding international
legal relations on behalf of the mandated territory. This, indeed, appears
from the terms of the mandate instruments themselves. The B mandate
instruments, except that for Tanganyika, stipulated, in general, that the
Mandatory should apply to the territory "any general international
convention applicable to his contiguous terri tory", without qualification.
(Mandates Dependencies and Trusteeship, p. 234.) That was for all the B
Mandates, except Tanganyika. In the case of Tanganyika there was a
more qualified formulation. Article 9 of that Mandate replaced the words
"applicable to his contiguous territory" by the phrase "already existing,
or which may be concluded hereafter, with the approval of the League
of Nations, respecting the slave trade, the traffic in arms and ammunition
[and some other matters mentioned]'' (p. 234). This formulation, with
the approval of the League of Nations, came, as I have said, in the case
of the Tanganyika Mandate; it did not occur at all in the formulation in
the case of the other B Mandates.
Duncan Hall, in his well-known work Mandates Dependencies and
Trusteeship (Iquote the wording at p. 234) points out that in the case
of two of them, the A Mandates, those for Palestine and for Syria, the
corresponding articles were to the same effect as that relating to Tan
ganyika.
But, as I have said, that qualification even of "with the approval of
the League of Nations" does not occur in the case of the other formula
tions in the B Mandates.
The important point which emerges from these provisions is that the
authors of the mandates system, by obliging the Mandatory to apply
certain types of conventions to the mandated territories, recognized that
the Mandatories possessed the general competence to enter into inter
national conventions, subject, of course, to the provisions of the man
date.
That would, indeed, Mr. President, in my submission, be a natural
consequence flowing from the grant of the full power of legislation and
administration described by Mr. Hymans in his report as something
involving a full exercise of sovereignty.
Now that recognition, Mr. President, of the general competence of the
manda tory in this respect appears also from the League practice. Norman
Bentwich says, in his well-known work, at page ro5: SOUTH WEST AFRICA
"As regards the cognate question of the application to the man
dated territories of Treaty rights existing between the Mandatory
and foreign States, effective action has been taken at the instance,
again, ofthe Mandates Commission. Itwas manifest that the treaties
did not apply as of right to the mandated territory even where it
was administered as an integral part of the Mandatory's territory,
since in Jaw the mandated area was a separate entity. It bas, how
ever, become the regular practice for the Mandatory to provide in
any commercial treaties with foreign States, and other conventions
affecting the rights and privileges of its subjects abroad, that the
instrument shall apply to any territories in respect of which it holds
a Mandate in the same way as it does toits Colonies. The inhabitants
of mandated territories obtain, therefore, rights of trading and
carrying on their business or profession in foreign countries, and
enjoy rights with regard to industrial property under the same terms
as the subjects of the Colonies. ln passing, it may be mentioned that
extradition treaties of a Mandatory are now regularly extended to
mandated territories." (The Mandates System, p. 105.)
Then Quincy Wright, at page 122 of his well-known work, states that
"... on advice of the Commission and most of the mandatories, the
Council took the position that the mandatory is primarily respon
sible for the observance of the mandate and has power, not as
sovereign but in the capacity of mandatory, to make treaties or
agreements with respect to mandated territory or to pledge its
resources for loans without prior Council consent". (Mandates Under
the League of Nations, p. 122.)
As regards treaties providing benefits, the Permanent Mandates
Commission in its Sixth Session in 1925, at page 172 of the relevant
records, suggested to the Council that it might (these are suggestions to
the Council as to what it might do):
"r. Recommend that the mandatory Powers, and also all States,
whether Members or not of the League of Nations, which have
concluded special treaties or conventions with the mandatory Po
wers, should agree to extend the benefits of such treaties or con
ventions to mandated territories if possible and expedient and if the
provisions of these international agreements are consistent with the
stipulations of the Covenant and the mandate;
2. Request the mandatory Powers, subject to the above reser
vations, to insert in any special treaties or conventions they may
conclude hereafter a clause providing for their application to
mandated territories;
3. Request the mandatory Powers to indicate, in their annual
reports the reasons and circumstances which have prevented the
application to mandated territories of the special treaties or con
ventions which they may have concluded with other Po,vers during
the period under review."
Those were the recommendations.
And according to Duncan Hall, in the work to which we have referred
at page 235,
"By 1931 the Mandates Commission, the Council, and the man
datory powers had reached a working rule that treaties of this kind REJOINDER OF MR. DE VILLIERS 37
should be extended regularly to the mandated terri tories." (Man
dates Dependencies and Trusteeship, p. 235.)
Mr. President, the conclusion then is-resulting from the wording of
the instruments, their ordinary legal consequences, the comments and
the practice in the League time-that bath as regards the incurring of
obligationsand as regards the acquisition of benefits, the manda tory was
entitled to act on behalf of the mandated territory as far as its inter
national relations were concerned. There were, of course, qualifications
which it was necessary to state, qualifications ensuring consistency with
the Covenant and the mandate instrument. The exceptions which arose
in that regard in practice were, as far as we could ascertain, generally
found to relate only to one particular matter, narnely settlement of
boundaries of mandated territories. One could quite understand that that
would be a matter which could be said to relate to the provisions of the
mandate instruments themselves. The provisions indicated, in a descrip
tion,what was to be regarded as the mandated territory: if that territory
was, or might be, altered by a new boundary adjustment, that might
well involve a possible question of alteration or modification of the terms
of the Mandate, and that modification would have to be dealt with in
terms of the specific provîsion therefor, in Article 7, paragraph r, of our
Mandate and corresponding articles of other mandates, by agreement
between the mandatory and the Council.
But with that necessary qualification-and as I say, as far as we could
ascertain this was apparently the sole type of case of practical application
that arose-in regard to the ordinary processes of international inter
course the authority to act rested in the mandatory, and the League
organs merely exercised their normal supervisory or co-operative fonc
tions. That was something the mandatory had to do in the exercise of
its discretion; there was, of course, a power of supervision, a power on
the part of the supervisory organs of seeing whether good use was made
of power or of discretion, and that would lead to the normal discussions,
co-operation, suggestions and so forth in that respect, but no binding
imposition of the will of a supervisory organ upon a mandatory which
did not wish ta agree. This was all in accordance with the principles and
practice we discussed before.
So, for instance, one finds during the Thirty-seventh Session of the
League, 1939, according to page 56 of the records of the Permanent
Mandates Commission, that in discussing the report for Ruanda Urundi:
"Count de Penha Garcia expressed the hope that the annual
report would in future contain a table showing all the intemationa
Conventions in force in the territory. Tables of that kind were given
in the annual reports for other terri tories, for instance, Tanganyika.''
So, Mr. President, once it is accepted that it is part of the mandatory's
power of government to regulate the external relations of the terri tory,
then it becomes confinned that the purported distinction which the
Applicants draw between the Respondent acting qua mandatory and its
acting qua sovereign State is without any substance; that it is completely
untenable. Both in regard to the mandated territory and in regard ta
South Africa itself, Respondent would be the responsible authority to
decide whether to incur, or to decline to incur, rights and obligations
which are being generated in international society. Respondent would be
the authority whose volition would in this respect be the decisive factor, SOUTH WEST AFRICA
both in regard to agreeing to specific treaties and to their extension to
the mandated territory, and in regard to the principles and processes
relating to the generation of rules of customary law.
There could, in our submission, in principle, be no distinction between
the right to conclude, or to refuse to conclude, a treaty, and the right to
assent to or dissent from the establishment of a custom binding upon
the territory as such. In both cases the manda tory would be deciding as
to which obligations should be binding in international law on the
mandated territory. Itwould be the fonction of the mandatory to do so,
Mr. President, because the mandatory is entrnsted not only with the
power of government but also with the obligation of using that power for
the purpose of promotion of well-being and progress. If it is not for the
mandatory to judge whether a particular practice which seems to be
arising in some circles in international society would or would not be
beneficial for the mandated territory, and whether it should or should
not join in a norm-generating process in that respect, who else can take
tha t decision?
The contrary attitude suggested by the Applicants, Mr. President,
would indeed lead to absurd results. If the mandatory could not take
these decisions to which I just have rcferred, no other State or organiza
tion could conclude or ratify a treaty on behalf of the territory. No other
State or organization could participate in the evolution of a custom, could
entertain a relevant opinio juris sive necessitatis, could, in appropriate
cases, dissent from or protest against the generation of a customary rule
of law. The effect would then be that the mandated territory would be
entirely outside the confines of international intercourse, because there
would be no responsible authority which could make the developing
international law applicable to the territory, in so far as it depends on
volition, or render it inapplicable to the territory.
So, 1\fr.President, that purported distinction again shows the utter
lack of any legal basis for the Applicants' contention in respect of norms.
Apart from being devoid of merit for these very reasons I have just in
dicated, because it is the task of the mandatory to decide in this respect
whether it wishes to co-operate or not in creating new international legal
relationships with respect to the mandated territory; the lack of merit is
also shown by the fact that in the ultimate result the Applicants, in
effect, have to fall back here on their standards argument, which has
already fallen away for other reasons, in my submission.
Finally, Mr. President, and we are still discussing the attempt of the
Applicants to rneet their fondamental difficulty about a dissenting State,
we find that the Applicants make a frontal attack on the applicability of
traditional rules regarding the generation of custom. They say at IX,
p~ge 350 of the verbatim record of 19 May that the traditional formula
tion-
"... is meshed with the emergence of customary international law
as a consequence of State practice, rather than as a result of the form
standard and norm-setting processes of the organized international
community, acting through its competent organs".
May I pause there. The word "form" appears to be a mistake in the
sentence; apparently it should either not be there at all or it should be
the word "forrnal", or something similar. The ernphasis is on the emer
gence of customary international law as a consequence of State practice REJOINDER OF MR. DE VILLIERS 39
rather than as the result of the standard and norm~setting processes of
the organized international community. It may be that the intention
was to speak of formal processes in that regard, through its competent
organs. The quotation proceeds:
"As such, the staternent just quoted overlooks the centralization
of the normative process in international Society resulting from the
existence and the expanding role and the ever-increasing importance
of a decisive nature of the international institutions themselves."
Mr. President, taking this passage by itself as a suggested argument in
support of the general contention, it is entirely question begging. The
two factors relied upon in this Iast sentence as I read them are, "the
centralization of the normative process in international society", that is,
a centralization which is saidto have arisen from the other factor, namely
"the existence and the expanding role and the ever-increasing importance
of a decisive nature of the international institutions themselves".
Mr. President, is that not the very issue, namely whether there has
now been such a centralization of normative processes in international
society, as is contended for by the Applicants, that one is precluded from
looking at what States do in contrast with what they say, as distinct
from what they say, or in addition to what they say? Is it not the very
crux of the issue whether it can now be said that importance of a decisive
nature is to be attached to the international institutions themselves? But,
Mr. President, apparently the Applicants do not rest on the mere assertion
contained in this passage; they argue further in the record, in passages
which would appear to be relevant to this contention, espccially at
pages 351 and 352, that a distinction should be drawn between cases
involving, firstly, "an adjustment of directly competing interests of
States" and, secondly, those involving "promotion of common interests
and collective interests of States, and of the organized international
community taken as a whole". Both those phrases are quoted from IX,
page 351, of the verbatim record of 19 May.
Apparently, the Applicants say there is the type of case which was
considered by this Court, in the Asylum and Fisheries cases for instance
-a case of the adjustment of directly cornpeting interests of States-and
with that they contrast the case of promotion of cornmon interests and
collective interests of States and of the organized international com
munity taken as a whole.
I should Iike to referthe Court tothe passage, in the record of 19 May,
in which the Applicants then apply this suggested distinction:
"The proof of custom appropria te to the evolution of a custornary
norm of international law of this character is a consensus manifest
from the forrnal acts of the cornpetent organs of the international
community ['of this character' refers to the later category where
there is said to be a common interest and a collective interest]. Such
a law-creating procedure [the Applicants say] is a functional re
quirement of the contemporary order, even given the rudimentary
nature of the collective processes now existing. Such a procedure
parallels the evolution of custom hy State practice, which is ascer
tained by the inter-action of States. Here it is generated through
expressions manifesting a collective judgment, a collective will."
(IX, p. 352.)
So, l\:IrPresident, it is a matter of considering what merit there is in40 SOUTH WEST AFRICA
this suggested distinction. In our submission, there is none and there can
be none. The distinction, indeed, cornes very strangely from the Ap
plicants who have consistently urged upon this Court that there is a
conflict of interest between themselves and the Respondent conceming
the subject-matter of this litigation-the dispute now before the Court.
That is the contention which they bring to the Court in order to show
that there is a dispute which cannot be settled by negotiation; it is
something upon which the Court must adjudicate. They then say there
is a conflict of interest,ut when it cornes to the drawing of this distinc
tion they say this matter of the application or otherwise of the suggested
norm relates to a sphere whcre there is a Collectivity of interest, a
promotion of common interest and collective interests of States and of
the organized international community taken as a whole.
Apart from that, Mr. President, as to the distinction itself, no author
ity whatsoever is quoted for that suggested distinction or for the legal
effect attributed toit. Indeed, the Applicants would appear to be asking
the Court to apply revolutionary principles of law with far-reaching
implications only on the basis of the asserted desirability of doing so,
which is expressed in various ways in their argument at pages 351-353
of that record.
What is this suggestion of a "law-creating procedure" in the latter
type of situation which is said to be vested in the "collective judgment",
the "collective will" of the organized international community? Is that
not entirely revolutionary, Mr. President? The understanding I have of
the international legal order is that which emerged from discussions such
as those contained in the book of Judge Morelli which I cited yesterday,
that it is an individualistic approach; that there are various States
standing to one another on a paritative basis, a basis of equality, in a
relationship of equality in what might be called a society merely because
it comprises these various entities or elements. It is, in that sense, only
a society; it has no hierarchical structure superimposed upon it. The
approach in this society has always been an individualistic one, and if
there is to be generated a Jaw applicable to the relationship between
these entities in the international society, it is a law which they create
themselves by their will, by their co-operation and agreement. That is
the way in which it is brought into being.
That stands in marked contrast to the situation which obtains within
a domestic municipal society, in which the individual is born into an
order where the collective will, acting through the legislature or whatever
the authority may be, is imposed upon individuals whether they like it
or not, and where those 1aws are to be accepted by the individuals be
cause the collective will stands behind it, the collective will in this
centralized organization in this highly organized domestic-law entity,
which is organized on the collective basis. Is not my learned friend in
effect suggesting to the Court now, Mr. President, that the collectivistic
approach is to be applied to international society, and that there is to
be a bowing on the part of individual States to the collectivistic will
which is expressed not by unanimity, but on the majority principle? It
is true he says itmust be a vast majority; it must be something ap
proaching unanimity, but it still falls short of unanimity. And he says
that the collectivistic will is now to be applied in this sphere of common
interests, the common interests of the States concerned and of the
international society itself. REJOINDER OF MR. DE VILLIERS
Mr. President, what would be the implications of doing that? It may
be worth-while to pause for a moment and consider one or two possible
examples.
Suppose all the nations in the world were to agree~all the nations that
is except for the two large Powers, the Soviet Union and the United
States of America-that it is absolutely necessary to have international
control over the production of nuclear weapons or upon attempted space
travel, or upon both. Could that collective will now be imposed as a
matter of law upon the Soviet Union and the United States in this matter
of common concern to the whole of humanity, in view of the implications
which those matters might have on its future and upon its existence?
Is not that the effect of what my learned friend is contending for? And
what would be the reaction of the Soviet Union and of the United States
of America if such a suggestion were made to them on the basis of a
proposition urged upon this Court and which this Court is asked to
endorse and apply in this case?
Ifthe major portion of the world were to turn Communist, Mr. Presi
dent, and only the United States of America and some other States in
America were to hold out, could the Communist part of the world then
impose its will by this preponderant majority on the rest of the world;
so that this is a matter of common concern, this collectivistic will decides
that it is a matter of common concern, and the whole world is now to
become Communist, that there is to be now a norm of non-capitalism?
Mr. President, it becomes absurd. Is not this the very negation of the
order which does exist, and in which this Court itself finds its own
existence as part of that order, which this Courtis asked to apply as the
international legal order? Does that not run counter altogether to the
carefully devised checks and balances which we have in the organizations
of the international community providing, for instance, for the veto
right of the two large States I have mentioned in the Security Council?
I do not think I need say any more, Mr. President, to show that the
suggested distinction and the suggested merit of the application of the
so-called collective will or general combined interest is entirely without
merit or substance.
That concludes what I wanted to sayon the process of the generation
of a rule or obligation in customary international law, within the con
templation of paragraph (b) of Article 38 (1) of the Statute, but before
I proceed to paragraph (c),I should just Iiketo say this in general before
leaving these two main, primary sources of international obligation, as
contained in (a) and (b):
The Applicants' contention avoids entirely and seeks to short-circuit,
in the manner which I indicated this morning, that testing process which
is inevitably involved in both of the heads contemplated in (a) and (b),
both with respect to the formation of international treaties or conventions
and the generation of rules of customary law. The traditional rules
applicable to those two sources of law do not assist in any way to solve
the Applicants' problem about imposing the will of a majority, however
large, upon that of a minority who insists that its will is not to be bound
by this new suggested norm in international Society.
Now the Applicants attempt to overcome that difliculty, with reference
to the third of the paragraphs, i.e., in Article 38 (1) (c), the paragraph
which authorizes the courts to apply "the general principles of law
recognized by civilized nations".42 SOUTH WEST AFRICA
Mr. President, the meaning and the scope of this paragraph have been
discussed by various authors. Sorne of them have suggested certain
difficulties, certain uncertaintiesabout aspects of the meaning and the
scope of the paragraph and the provision. But again, it is a case where
the differences between the views of these authors do not seem to matter
at all for the purposes of this present case. There is a substantial measure
of agreement underlying all these various different formulations upon
the matters which do seem to be relevant and decisive for purposes of this
case and it is with a view thercto that I should like to refer the Court to
a few expressions of view and of comment by certain of the well-known
writers.
I should like to refer first to Sir Hersch Lauterpacht, in his work
Private Law Sources and Analogies of International Law, which appeared
in 1927. At page 68 of that work, the learned author quoted the cor
responding provision of the Statute of the Permanent Court which in its
sub-paragraph 3 referred to "the general principles of law recognized by
civilized nations". And then, at page 69, the learned author proceeds:
"The will of States as expressed in treaties, or, failing that, in
international custom, remains thus the primary sources of law. If,
however, these sources are silent, the Court, far from having to
declare its incompetence, is bound to pronounce on the basis of
general principles of law which are thus definitely recog'nizcd as a
subsidiary source of international law. What remains now is to
answer the question: What is the exact meaning of those 'general
principles of law as recognizedby civilized nations'? Bearing in mind
that they are not identical with decisions ex aequo et bono, which are
dealt with separately, we may point to three sources from which
the answer to the question may be drawn. (a) It may be drawn,
fi.rstly. from the study of international arbitration before the
establishment of the Permanent Court of International Justice. Such
an investigation, to which the last part of this monograph is devoted,
shows that whenever international tribunals have recourse to
'general principles of law' they apply, as a rule, a general principle
of private law, i.e. a principle not belonging to the system of law
prevalent in one country, but expressing a rule of uniform applica
tion in allor in the main systems of private jurisprudence.
(b) The query may be answered, secondly, on the ground of a·
simple logical inference drawn from the context of Article 38 (3).
The Statute refers here to such gencral principles of law as are
neither international law proper nor considerations ex aequo et bono.
This means that although the Court may apply, for the purpose of
a partkular case, a rule of criminal or administrative law of sufficient
generality, it is of general rules of private law that, on the whole,
we must needs think in this connection. For it is, as a rule, private
law which gives shape and definite form to those general sources.
Here lies the organising and ordering part played by it. Those
'general principles' threaten otherwise to degenerate into altogether
subjective natural Iaw or legal philosophy.
(c) Thirdly, the utterances of jurists drafting the Statute do not
fail to throw some light on the meaning of the clause in question.
Thus the Chairman of the Committee, from whom the substance of
the clause originated, explained its meaning by reference to the
principle of n;s iudicata adopted by the tribunal in the Pious Fund REJOINDER OF MR. DE VILLIERS
43
case; and another member suggested, while referring to that case,
that this was a rule which had the same character of law as any
written law, and that all such general .principles of common law,
being a part of international law, are applicable to international
affairs."
In the footnote No. 3, Mr. President, there is a reference to what Lord
Phillimore said at page 316 of the relevant records of the preparatory
work, and the footnote continues:
"He [that is Lord Phillimore] pointed out in another place,
(p. 335), that the general principles of law were those accepted by
all nations in faro domestico, such as certain principles of procedure,
the principles of good faith, of res iudicata, etc." (pp. 70-71).
I should like to refer next to the work by Dr. Cheng-General Princip/es
of Law as Applied by International Courts and Tribunats. After saying
that "principles are to be distinguished from rules", at page 24 of this
work, the learned author stated the following:
"This part of international law does not consist, therefore, in
specific rules formulated for practical purposes, but in general
propositions underlying the varions rules of law which express the
essential qualities of juridical truth itself, in short of Law."
May I pause there for a moment? The distinction drawn here between
rules and principles, Mr. President, is of course, a matter of a use of
words which is not uniform-the distinction which the author appears
to have in mind is this-that he speaks of a rule as something which is
specifically binding in a particular relationship, such as an obligation as
between particular persons or parties, whereas a general principle is
something more general. It is something which underlies that rule and
other rules and may serve in helping to interpret and apply the rules. As
I say, that usage of distinction between rules and principles is not univer
sal, but I am merely explaining in what sense the distinction is being
drawn here.
The author proceeds:
"Thu:;, Lord Phillimore, who proposed the formula, explained that
by general principles of law he meant 'maxims of law'. But how is it
possible to ascertain whether a given principle is a principle of law
and not of another cognate social discipline, such as religion or
morality? The recognition of its legal character by civilized peoples
supplies the necessary element of determination. Lord Phillimore
also explained tha t the principles referred to in Article 38 I (c) were
those which were 'accepted by all nations in faro domestico'. M. de
La Pradelle took them to mean that general principles of law were
the basis of the municipal law of all or nearly all States. The recog
nition of these principles in the municipal law of civilized peoples,
where the conception of law is already highly developed, gives the
necessary confirmation and evidence of the juridical character of the
principle concemed.''
So, Mr. President, what do we find so far? We find an emphasis upon
this matter that when there is a reference to "general principles of law"
that is something subsidiary to the main sources of rights and obligations
found under heads (a) and (b). They are general principles of law
applied by civilized States in faro domestico-in other words, in their own44 SOUTH WEST AFRICA
domestic legal systems. They are the underlying general principles in
those domestic systems and they are applied in so far as they are general
in the sense of being common to these various systems, common as
general principles.
That, in itself, indicates that their mode of application in international
law is of a secondary and auxiliary nature. They are taken from the
realm of municipal law, they are elevated by analogy from that law into
international law relationships and applied there; and they are applied
not because they in themselves define a right or an obligation or bring
about the origination of a right or an obligation on the part of a State,
a subject of the international law. They relate to the definition of legal
relationships in domestic law, to the relationships between individuals in
that law, i.e., persons in that law, individual persons, corporations, the
person, or the subject and the State-all the various types of relationships
which one gets in domestic law; and from those relationships they are
then taken by way of analogy applied in the sphere of relationships as
they obtain in international law-relationship between States (A) and
(B) or between various States or between a particular State and an
international organization.
They are therefore ancilliary in the sense that one first has to determine
the existence of a possible right or obligation said to apply under the
main headings of sources of international obligation and right-treaty
on the one hand, and custom on the other-and they corne into play
when certain questions arise about matters which have not received
particular attention in customary practice as between States or indeed
in the practice or jurisprudence of courts of law and international
tribunats. Then the analogy drawn from domestic law assists. It assists,
for instance, in the interpretation of the treaty, in bringing to bear upon
the interpretation of a treaty or a convention the general principles
recognized in the legal systems of the various nations. It could assist in
giving effect to a treaty, in assigning certain effects to certain situations
that may arise in treaty relationships. Let us suppose there is a violation
of a treaty obligation. The question may arise: "is that violation such as
to make it possible for the other party now to cancel that treaty or to
reject it entirely-to repudiate it?" The situation may be of such a
nature that an exact precedent does not exist in international custom,
but there is a fund of general principles of the law of contract, in domestic
relationships, from which the Court can draw.
And so, Mr. President, the same applies with regard to the generation
or the effect or the interpretation of international customary law.
Questions may arise which have never been settled in an exact sense in
relation to a suggested custom, and the answer may be supplied by these
general principles of Iaw. In the Corfu Channel case the Court was con
cerned with a concept known to international customary law, namely
that of an international delinquency. The Court had to decide whether
particular acts in the particular case could be said to constitute an inter
national delinquency. It could not rely on an exact precedent in ail
respects, or it was suggested that it could not rely on an exact precedent
in all respects in the international custom, and therefore it drew upon
the general principles applied in the various domestic systems in order:
to supply the answer.
But there must first be something basic,· Mr. <President, something
upon which it is said there is a concept already recognized in international REJOINDER OF MR. DE VILLIERS 45
law-a treaty, or a rule of customary law-and that is said to apply in
this particular case. Then there is something on which, as it were, one
can post the bull; there is something for the purposes of which one can
draw on this additional, this subsidiary source, with a view to assisting
the application of that particular principle or the exposition of that
particular obligation. That is the way in which it seems to have been
contemplated by these authors and also by the jurists who were respon
sible for the drafting of this provision originally. It seemed to them that
subsidiary assistance could be derived from this source, and that is the
way in which it appears to be applied in practice.
I may refer the Court further to Schwarzenberger, at page 43-just a
brief passage, referring to Article 38 (r) (c), which is to the following
effect:
"In order to be applicable, a principle of law must fulfil three
conditions.
First, it must be a general principle of law as distinct from any
more specialized rule of law. It remains for comparative lawyers to
elaborate the exact contents of such general principles of law. Until
this task has progressed very much further than, so far, has been
the case, a sympathetic but reserved attitude to this law-creating
process appears advisable." (International Law, p. 43.)
The emphasis is on the generality of the principle as something which
could be of assistance in a subsidiary, in an auxiliary, in an ancillary way.
I should like to refer also to the following passage in the work of Dr.
Parry, to which I referred yesterday, at page 83:
"The general object, then, of inserting the phrase in the Statute
seems to have been, essentially, to make it clear that the Court was
to be permitted to reason, though not to legislate, and by, for
instance, the application of analogies from the law within the State,
to avoid ever having to declare that there was no law applicable
to any question coming before it."
Then, Mr. President, I refer to Louis Cavaré, Le Droit international
public positif,Volume I, wdedition (Paris), 1961. At page 220 he elim
inated from this source of law first the concept of equity, then general
principles of justice, ornatural sentiment of justice-he eliminated those
:possible constructions and said they were obviously not what was
rntended; and thereafter he said (I quote our free translation): "All that
remains ... is a rational interpretation: general principles of law signify
general principles of internal law [internai meaning domestic, municipal
law]. It concerns rules common to the majority of legislations, principles
above all controversy, which constitute the legal heritage common to ail
civilized nations."
Next, I refer to Paul Guggenheim, Traitéde Droit international public,
Volume I, r953, at pages 151-153. I read only a passage at pages 15r
and r52, again a free translation:
"This disposition [that is, as regards Article 38 (r) (c)] was
inserted in the Statu te of the Court because the Committee of jurists
which drafted it agreed in declaring the customary and treaty law
contained many gaps. In order to fill these, it should therefore be
necessary to create legal nonns such as those accepted in foro
domestico by all civilized States. The overwhelming majority of SOUTH WEST AFRICA
members of the committee were in any event of opinion that general
principles of law should not be applied by The Hague Court unless
they were universally--or quasi-universally-accepted by the inter
nai legislations of civilized States."
So, Mr. President, again on this general survey it becomes clear that
this concept, defined in Article 38 (1) (c) of the Statute, cannot assist
the Applicants in any way as regards their basic problem, their problem
of bringing into effect in international law some new type of norm, some
thing which did not exist before, but which is now said to be binding
even upon a State which has dissented from it-which has made it clear
that it opposes the generation of a norm of that kind and that it does not
want it to govern its relationships.
How can that proposition, Mr. President, of applying a suggested
norm against the protests of the State on which it is sought to be applied,
how can that in any way be said to accord with the basic considerations
here, the basic underlying princ.iples of municipal Jaw of all or nearly all
States which are to be applied to fill the gaps that there may be in inter
national legal situations?
Itis clear, Mr. President, that it is merely by analogy that one cornes
from those basic principles into the sphere of international law, and that
one cannot use that as a source for saying that there has now been
generated something new, a new obligation, a specific obligation of a
certain substantive content as between certain States in international
law. It arises merely in order to serve to interpret or in order to assist in
interpreting and giving effect to an existing or a suggested obligation
falJing under the heads (a) and (b) of Article 38 of the Statute.
Under those circumstances, Mr. President, it seems to us that there
can be no assistance for the Applicants to be derived from the source
of law contemplated in Article 38 (1}(c).
[Public hearing of I7 June I965]
Mr. President and honourable Members, just before the adjournment
yesterday I dealt with certain authorities and commentators on the
concept of general principles of law recognized by civilized States or
nations. I need not repeat what I said then. The upshot of it was that,
in the context of the present case particularly what are required to be
applied are principles which can be said to fom1 the underlying basis of
municipal law of ail or nearly ail States-the basic underlying principles.
Therefore, Mr. President, they could never include somethini;: which is
possibly now in the process of being incorporated in the leg1slation of
some States because it is necessary to have legislation in order to bring it
about at all in the municipal systems of States-something which is now
being incorporated, or may have been incorporated, in the legislation of
some States but not of others-something to which certain States agree
and those States are now takfog steps towards making it a part of their
municipal system, but certain States do not agree and emphatically
abject to any attempts at enforcing such a rule upon themselves.
That fondamental difficulty in my learned friend's case cannot be
overcome by attempting to apply a concept derived from these general
principles. The fact is that my learned friend has to contend with the
dissentient State and that his contention amounts to this that an
obligation can be imposed upon a State against its will and despite its REJOINDER OF MR. DE VILLlERS 47
protests. î\fr. President, this is exactly the way in which the Applicants
attempt to apply this concept. They say, in the verbatim record of 19
May, at IX, page 353:
"There is no tradition, as with customary international law, of
premising the existence of a general principle of law upon evidence
of universality, or the absence of any protest, or upon a sense of
obligation with respect to duty. As such, it is the source of law
least closely tied tothe ideas of legal obligation associated with the
approach of legal positivism."
Mr. President, all I need say about that is that according to the
authorities I have referred to, the general concept, the underlying idcas
with regard to this source of law, make it perfectly clear that we are
dealing ,vith underlying principles which must be general and, in so far
as they are not general, they do not assist the Applicants.
More specifically, the Applicants suggest that there are two ways in
which Article 38 (r) (c) might establish their contention that a legal
nonn of non-discrimination and non-separation has corne into being, and
we find it put in this way in the record of 19 May:
"The first would be to regard the presence of laws and regulations
against racial discrimination and segregation, in the municipal
systems of virtually every State, as establishing, by comparative law
analysis, an essential precondition for the assertion of the norm of
non-discrimination and non-separation as a 'general principlc of law',
within the meaning of Article 38 (r) ( c)." (IX, p. 353.)
If I may pause there for a moment, Mr. President. In the first place,
we shall endeavour to show later that it is not true to say that there is a
"presence of laws and regulations against racial discrimination and
segregation in the municipal systems of virtually every State" -certainly
not, Mr. President, in the scnse in which my leamed friend uses the terms
"discrimination" and "separation" for purposes of his norm of non
discrimination and non-separation; certainly not in the sense that there
is to be an abstention from differentiation in the sphere of allotment of
rights and duties of which he speaks. But that is a matter to which I shall
corne later. We shall show, Mr. President, that, in so far as there are
attempts in this direction, such principles arc still in the process of being
incorporated-such principles in the municipal legal systems. Thcrefore,
the principle itself can never be said to be the basis of the Jaw in such
municipal systems.
Secondly, we want to point out that this suggested application of a
principle by civilized nations is nota correct analogy and application as
contemplated by Article 38 (1) (c). As I pointed out yesterday with
reference to the authorities, the suggested analogy and application
involve, that one takes something from the relationships between subjects
of municipal law-persons, individuals, corporate persans and individ
uals, or the persan and the State-relationships in municipal law, and
they are then transferred from municipal law by anaJogy into the
situations which obtain in international law. If one were to apply that
method of application in this particular instance, one would have to say
that if there were a norm of non-differentiation as between i.ndi.viduals
within a State on the basis of membership in a race, class or group, as a
relationship exîsting between those individuals and the State authority,
then the analogous position in intP.rnational law would be that an SOUTH WEST AFRICA
organization Iike the United Nations is not entitled to differentiate as
between various nations on the basis of their belonging to one race or
the other, but that all nations are to be treated equally. That would be
the type of analogous application. One could never say that, because
there is legislation dealing with the domestic relationships between a
State and its citizens or subjects in particular systems, therefore that
legislation ought to be elevated to a rule of international law and made
applicable in the domestic systems of various other countries. That would
be a form of application of these principles which could never have bcen
contemplated, and, indced, it is clear from the history and background
that it was never contemplated by the authors of tlus Article of the
Statu te.
I proceed with the Applicants' second suggested approach. They say
at page 353 of that same record: "The second approach might be to
regard the international consensus, as, for example, evidenced in the
Reply at IV, pages 493-5ro, as a general principle of law recognized by
civilized nations evervwhere in the world."
Again, Mr. President, this is a completely wrong analogy and approach.
If we adopt the correct approach, along the lines I have just suggested
to the Court, then we would have to see what happcns within a municipal
system. Then it would be true to say that in some municipal communities
such consensus, as spoken of by my learned friend, may have a normative
effect-such consensus, although not a real consensus in the sense of
involving unanimity, but in the sense in which my leamed friend uses
the term, of a preponderant majority, such a preponderant majority
might be able to impose its will upon a dissentient minority and that
dissentient minority might be bound. That is the position in some
municipal societies, depending, of course, upon the organic structure of
the particular society.
But, Mr. President, one could never take that as a general principle of
law which could, as such, be taken from a municipal system and trans
planted into the international system because that is the very essence of
the difference between the international society and municipal law
society, the very essence of the difference to which I referred yesterday,
namely that in the municipal societies one very often has this collectiv
istic approach under which there is an authority which can impose its
will by way of legislation, because that is constitutionally provided for,
whereas in international society that authority is lacking; it is not there.
And, therefore, my learned friend cannot rely on that analogy. That
particular analogy is impermissible because of the very basic structure
of the law of nations.
Now, Mr. President, in this sphere of the application of Article 38 (1)
(c), also, the active opposition or objection on the part of a particular
State or States against the generation of a rule of international law or
against the application of a so-called "principle" in terms of the said
Article would also be a fatal defect, a fatal objection to a contention that
such a suggested principle or rule is to be applied. That appears very
clearly not only from the analysis I have given but also, in this particular
case, from the history of the preparation of this specific provision in the
original Statute of the Permanent Court. Itappears, Mr. President, that
the actual contemplation of the authors of this provision was that it
could not operate to bind a State against its will.
The first drafting occurred in the operations of the 1920 Committee REJOINDER OF MR. DE VILLIERS 49
of Jurists. The proposer of the original formula was Baron Descamps who
originally proposed that this sub-paragraph 3, as it then was, now sub
paragraph c, should read: "The rules of international law as recognized
by the legal conscience of civilized nations." However, that formula
immediately met with very strong opposition, especially from l\fr. Root
of the United States, and from Lord Phillimore of the United Kingdom.
In a very brief summary of the proceedings at the Thirteenth Meeting
of the Committee Mr. Root is reported to have said that he could not
understand the exact meaning of this proposed clause. We find this
passage-as I say, a very brief summary-in the proces-verbaux of the
proceedings of the Committee at pages 293 to 294:
"Did it refer to something which had been recognized but never
theless had not the character of a definite rule of law? It was the
same with clause 4- These two clauses constituted an enlargement
of the jurisdiction of the Court which threatened to destroy ît. If
these clauses were accepted, it would amount to saying to the
States: 'you surrender your rights to say what justice should be.'
Was it possible to compel nations to submit their disputes to a
Court which would administer not merely law, but also what it
deems to be the conscience of civilized peoples.''
A later statement, Mr. President, by M. Fernandez, which was
attached as an annex to the summary report of the Fifteenth Meeting,
shows somewhat more extensively what the nature of the issue was in
this respect. As I say, the report of what Mr. Root actually said was a
very brief condensation. M. Fernandez said the following:
"It seems tome essential to find at any cost a basis for conciliating
the views expressed on the one hand by the President and on the
other by Mr. Root. The question merits the effort because the whole
future of the Court depends upon it. For very good reasons Mr. Root
opposes granting to the judges-in addition to their ordinary task
of applying international law-the power to some extent to create
it. He believes that a great Power could never agree to a system
which would lay it open to having its disputes settled by the appli
cation of a rule which had not been approved by it; or, what will be
more serions, of a rule whose legalityit had systematically contested
at all times.
I think that Mr. Root might say the same thing of any State
whatever, and perhaps with even more reason of those not provided
with military power.''
That was at page 345 of the same record, Mr. President.
That could hardly have put more clearly what the underlying intention
of the authors of the formulation was which eventually went into the
Statute. That formulation was a Root-Phillimore amendment, in respect
of which the explanations were given by Lord Phillimore, which we have
already noted, to the effect that the general principles referred to in the
new formulation, which went into the Statute in point 3, were these
which were accepted by all nations in foro domestico, such as certain
principles of procedure, the principle of good faith and the principle of
res judicata. That is at page 335. His further explanation was that by
"general principles of law" he had intended to mean "maxims of Iaw".
Mr. President, the Applicants say, further, that a restrictive inter-50 SOUTH WEST AFRICA
pretation of Article 38 (1) (c) (by which they apparently mean an inter
pretation which differs from theirs)-
"... would also ignore the close association of general principles
with the ideas of cquity and natural justice which have been present
since 1920 ... ". (IX, p. 354.)
And, in purported substantiation, thcy refer to something said by
Baron Descamps, to the effect that he referred to this source of law (i.e.,
"general principles") as "the legal conscience of civilized nations", and
they say that M. de Lapradelle said that the general principles
would enable the International Court to "judge in accordance with law,
justiceand equity". But they failed to explain to the Court, Mr. President,
that those expressions were used in respect of the initial formulation as
proposed by Baron Descamps, and that they did not relate to the formula
eventually agreed upon and inserted into the Statute, but that the
formula which eventually went into the Statute indeed arose becausc of
a reaction, an objection on the part of the other members, to the idea of
allowing the Court to judge on this vague basis of justice, conscience
and equity.
One of these objections was made by M. Hagerup, immediately after
M. de Lapradelle had spoken. M. de LapradeHe's statement is to be
found in the procès-verbauxat page 295, and it is quite clear that there
he was speaking be/ore the Root-Phittimore proposai came before the
meeting at all. The objection immediately expressed by M. Hagerup, at
pages 296 to 297, read that, "equity was a very vague conception and
was not always in harmony with justice".
So, Mr. President, that history further confirms that the Applicants,
in attempted reliance on this subsidiary head of principles or rules of
international law applicable in this form, are not assisted at ail by
Article 38 (1) (c), and it fortifies the conclusion already reached by
reference to the concept contained in the Article and its purpose.
That brings me then to Article 38 (r) (d) of the Statute which refers
to judicial decisions and the teachings of the most highly qualified
publicists of the various nations as subsidiary means for the determi
nation of rules of law. It is interesting to see, Mr. President, in this
respect, that Applicants do not quote any authors, or, for that matter,
judgments of courts to establish that their nonn exists. They quote
authors in purported support of the procedures whereby they seek to
establish the existence of the norm: that we find in the verbatim record
of 19 May, at IX, pages 357 to 359, and they particularly attempt to
rely upon authors in order to bolster up their contention that consensus,
in the sense in which they use that term, would be sufficient to estab1ish
custom.
Mr. President, I have already dealt with the authors on whom they
rely-Mrs. Higgins, Dr. Schacter and Dr. Jenks-and indicated that
they, in truth, provide no support whatever, even for the contentions of
the Applicants. The only other author to whom they refer in this respect
is Judge Spiropoulos, the honourable Member of this Court, that is at
IX, page 357 of that record, and the quotation was to this effect, "natural
law sets off the ethical conscience of mankind against the will of a sover
eign State". That is all-"natural law sets off the ethical conscience of
mankind against the will of a sovereign State". Now my Ieamed friends
seek to apply it in ihls way; they say- REJOINDER OF MR. DE VILLIERS 51
"... consequently, the collective will of the organized international
community becomes endowed with a law-creating competence which
can overcome the defiance of a non-conforming State, particularly
one which stands alone".
Mr. President, all I need say is that the honourable author of the
particular passage would, with respect, probably be most surprised to
hear that that is a true application of what he said.
Those are the only authors on whom my learned friends seek to rely in
support of any of their propositions, but, as I have said, these authors
do not support them as to the law-creating process, and they do not even
attempt to rely on any author in respect of the existence of the norm
itself.
In regard to the law-creating process there is reference to only one
decision of a court and that is in the Sabbatino case. The reference we
find in the same verbatim record of 19 May, at IX, page 358. That was
a decision by the United States Supreme Court in 1964, and my learned
friends say in that respect~
"... it is a case, and it is cited here only as, bearing upon the
proposition that juridical relevance was accorded to the concept of
consensus in construïng the existence of an obligation under inter
national law".
Now, Mr. President, when one has regard to that decision itself, it
becomes very clear that there is consensus and consensus. My learned
friend speaks of consensus in the sense of an overwhelming majority
within a group, and contends that "consensus" in the international
community may be said to have a law-creating or a normative effect of
a semi-legislative kind. When one refers to the decision one sees that the
term "consensus" was used there in a completely different sense. The
Court used the term to indicate the measure of agreement which existed
amongst commentators on international law in regard to a particular
proposition of international law, and said that that consensus could be
a relevant factor in determining the applicability of a suggested rule.
That was all, and that is the only reference I could find in the whole
judgrnent to the concept of consensus. Itis nevertheless interesting to
refer to the case because it goes on to another proposition which is
pertinent, but Iam afraid notas supporting the Applicants' case indeed
it tends in the opposite direction.
The Court was concerned there with a question-! need not go into
the details of the facts-of the application of international law in some
instances by municipal courts. The Court dealt with one instance where
it was suggested that international law should be applied. In particular,
the Court was concerned with suggested limitations which were said to
exist in international law, viz., limitations upon the powers of a State to
expropria te the property of aliens, and it was urged upon the Court that
such suggested limitations were to be applied in the particular case
before it.
Now, on the consensus question, the Court said, at page 807, paragraph
22, of the head-note:
"The greater the degree of codification or consensus conceming
a particular area of international law, the more appropriate it is
for the judiciary [the Court will recall this decision concerns the
judiciary in municipal systems] to render decisions regarding it,52 SOUTH WEST AFRICA
since the courts can then focus on the application of an agreed
principle to circumstances of fact rather than on the sensitive task
of establishing a principle not inconsistent with the national interest
or with international justice." (U.S. Supreme Court Reports, II
L/Ed. 2d. U.S. 376, p. 807.)
It will be inunediately evident how completely different the sense is
in which the Court speaks there of consensus, from the sense suggested
by Applicants. The portion of the head-note is derived from the portion
of the judgment reported at page 823 and I have checked on it; it would
seem to be a word for word rendering of the particular portion of the
judgment.
But the judgment goes on now to apply this concept in the particular
case, and it states, at page 824:
"There are few if any issues in international law today on which
opinion seems to be so divided as the limitations on a State's power
to expropriate the property of aliens."
This fact, viz., that opinion in international law amongst commentators
and publicists and authorities was so divided in that respect influenced
the Court in coming toits conclusion that it was not to apply the sug
gested limitation in that particular case.
The Court, in further discussion of this matter, said, at page 825, after
looking at the practical implications involved:
"It is difficult to imagine the courts of this country ernbarking
upon adjudication in an area which touches more sensitively the
practical and ideological goals of the varions rnembers of the
community of nations."
That was a major consideration why the Court decided to stay its
hand.
So again, Mr. President, that is an authority which does not support
my learned friend, it goes the other way.
This. Mr. President, brings me to the conclusion of the review of these
varions sources of international law mentioned in Article 38 (r) (c) in
their application to what one might call the suggested "norrn-creating
processes" relied upon by the Applicants. The Court will recall that I
dealt with them in the context of saying "let us forget for the moment
about the actual content of the suggested norm, let us assume any
content-content x-and then we shall still see that these suggested
procedures could not, as a matter of norm-creating processes, bring about
the desired result of a binding rule of law, binding upon a dissentient
State". That proposition was supported, I submit, entirely in regard to
the heads (b), (c) and (d). In regard to (a), conventions, I had to
draw a distinction, Mr. President, between the two aspects of the
Applicants' contention; that relating to wording, or content, of particular
provisions of the Charter of the United Nations and the Constitution of
the International Labour Organisation. I said I would have to deal later
with the question whether the content of those particular provisions
constituted an obligation according to the suggested norrn relied upon
by my learned friends. As far as the second aspect is concerned I dealt
with the atternpted reliance upon the so-called process of "authoritative
interpretation", authoritative interpretation at later stages by the
organs, or by majorities in the organs, of the particular organization, REJOINDER OF MR. DE VILLIERS 53
and I showed to what extent the attempt to fmd a basis for the Appli
cants' case in such "interpretation" has failed and how dangerous would
be the implications of acceding to a contention of that kind.
ln regard to all other suggested sources of law, other than the actual
content of the various provisions in the Charter and in the I.L.O, Con
stitution relied upon by my learned friend, I submit that we have shown,
that no norm could possibly have become binding upon the Respondent
in the manner suggested by the Applicants. There is not one shred of
support for their contention, their revolutionary contention in this
respect. On the contrary the review I have given has shown, in my sub
mission, that all the traditional rules and principles of international law
make it perfectly clear thatthat is not the method by which an obligation
can be imposed upon a State.
I therefore turn now to deal with the matter on the basis of having
regard to the content of the norm itself-of the suggested norm. It is, for
the reasons I have mentioned, really unnecessary to do so except in
relation to the particular provisions of the Charter and of the I.L.0.
Constitution, but I shall nevertheless, Mr. President, also consider the
possible effect of other sources of law. I shall attempt to demonstrate to
the Court that, with reference to all these various sources of international
law, and, having regard to the actual practice of States and to actual
principles of law generally recognized by civilized nations, there is no
such generally accepted norm. We commence with a consideration of
that question in relation to the particular provisions of the two instru
ments I have mentioned.
However, before I can proceed to this demonstration, it is necessary
to revert to the question of what exactly the content is of this norm
sought to be relied upon.
The Court will recall that my learned friend, M.r.Grosskopf, dealt with
that matter quite extensively in his argument which is reported in the
verbatim record of 9 June, particularly at IX, pages 534-542, and I
need not repeat what he said to the Court. I merely want to refer to
certain salient features as the basis for the part of the argument which
is to follow.
My learned friend pointed out, Mr. President, that the defmitions
given by the Applicants in their submissions and in their formal expia
nations of their submissions are absolute in terms, absolute in the sense
that upon analysis the content of the suggested norm involves a pro
hibition against all differentiation or distinction on the basis of member
ship in a race, group or class in a particular sphere, namely in the sphere
of allotment of rights and obligations, privileges and burdens. In other
words, in that particular sphere, the sphere of allotment of those rights
and obligations, the suggested content of the norm is that there is to be
no differentiation or distinction at all, be it for good or bad. That is all
one can infer if one has regard to those, shall I say, formai definitions
given of the norm. One finds it actually in the wording of Submission 3,
where the word "distinguishes" is used: "has practised apartheid, that it,
has distinguished" as to racial, tribal origin and so forth in this allotment.
(IX, P· 374.)
One finds this feature also in the definition given at IV, page 493 of
the Reply, which definition is incorporated by reference in the formal
explanation tendered of the submission, where again we fmd that all
that is stated is that the allotment of rights and obligations on the basis54 SOUTH WEST AFRICA
of membership in such a group, etc., is prohibited, if that allotment
proceeds on the basis of such membership, rather than on the basis of
individual merit or capacity. Therefore, again, it becomes clear that the
objection to a distinction or a differentiation is absolute in that sphere
of allotment.
In other ways the Applicants have made it clear-there are other
statements on the subject-that they are not relying upon alleged un
favourable effects of differentiation, that they are not relying upon
suggestions of improper motives or purposes attached to differentiation.
That is, in our submission, because they realize that if they were to do so
that would open up an area of factual dispute and enquiry in this case
which they want to avoid, and so they have made it perfectly clear that
we have correctly reflected the position when we said that, on the basis
of their suggested norm, differentiation in that particular sphere would
be prohibited and would be proscribed (and the admitted differentiation
which is practised in terms of South Africa's policies would be in conflict
with the norm) whether or not that differentiation is intended to enure
or in fact enures, for the benefit of the population.
That, Mr. President, is the only inference which one can reach-the
only conclusion to which one can corne, whether from the fom1al ex
planations-the formal expositions-in the Applicants' submissions, or
from their formal explanations of those submissions, or from these
informa! explanations given repeatedly in the course of the argument.
Yet, Mr. President, when one takes them up on their basis, and when
one considers that suggested norm in its implications in various situations,
then my leamed friends say: No, you are ascribing tous something that
we do not say, which is not our contention. You are distorting what we
say. You are ascribing tous extreme attitudes and then trying to make
them ridiculous. You are really presenting a caricature of what our case
is and you are really indulging in a" sleight ofhand" -thatis an expression
also used by them in tha t respect.
But, Mr. President, they make these protestations, they say they are
not relying upon differentiation but upon what they call "discrimina
tion"-the norm of non-discrimination and non-separation-and yet,
when it cornes to defining and explaining what the distinction is, they fall
back upon that self-same definition. The definition as we have said refers
simply and solely to allotment of rights and obligations-and is not
limited to an allotment with a disadvantageous effect, with an irnproper
purpose or anything unfavourable attached to it, or any qualification
attached to it whatsoever. The allotment on the differential basis
indicated~is said to be proscribed in itself, and the reason for its being
proscribed is because of differentiation and not because of improper
discrimination. That is the only conclusion one can arrive at. ·
Then my learned friends have difficulty in explaining that attitude
with reference to cases where they are forced to admit that differentiation
is legally permissible and, indeed, desirable. They were confronted time
and again with this situation in regard to the minorities treaties. And
how do they attempt to get out of that? They say: "Well, they must
admit that there is this differentiation", but they say: "of course, that
is permissible. differentiation, whereas in the case of apartheid the
differentiation is impermissible-that happens to be imperrnissible", they
say. But then, when they go into a further explanation, one finds that
they corne back to this again: that in the case of apartheid one has this REJOINDER OF MR. DE VILLIERS 55
differential allotment. On the other hand, they say in the case of the
minorities treaties: "The purpose is a good one, the purpose is one of
protecting the individual rather than the group", and that "you have a
situation there where the Treaties were perceived of as a means of
assuring that the individual does not suffer by reason of membership in
a group, amongst others, because of the consideration that he is normally
free to quit his group". That was the way in which my learned friends
sought to distinguish the two positions.
But, Mr. President, as my learned friend, .Mr.Grosskopf, pointed out
to the Court, that distinction does not relate to the factor of allotment
allotment on the basis of membership in a group, allotment of rights and
obligations. The allotment aspect applies in both cases, i.e., in the case
of the policy of separate development and in the case of the minorities
treaties. In the latter case also there existed a situation where the
allotment of rights and obligations was a differential one, and my
learned friend does not explain, with reference to any qualification attach
ed to the allotment as such, why these provisions would be permissible
but with qualifications suggested to apply to the purpose of the provisions
and to the factor that the individual might not suffer hardship in the
particular case by reason of his ability normally to renounce membership
in the group.
My learned friend, Mr. Grosskopf, also pointed out that in fact these
factors bring about no distinction whatsoever; that, where the abject of
differential provisions is an abject of protection, as it is in the case of
separate development as well as in the case of the minorities treaties,
that protection surely operates for the individuals as well as for the
groups. It, therefore, becomes artificial to say that the protection, in the
one instance, is meant for the individual, and, in the other instance, for
the group, because in bath instances it applies to the whole of those
groups and to all individuals within those groups.
It may well be, Mr. President, that the differential measures affect
some individuals in a different way from that in which they affect other
individuals, but that does not mean that the protection involved is not
intended for the groupas a whole, and for all members of that group.
Then again, Mr. President, on tlus. question of assuring that the indi
vidual does not s.uffer by reason of his membership in a group; surely
it is a matter which requires a weighing-up in cases where there is a
differential measure, because of the fact that some individuals in a group
may be affected c!ifferently from others. Consequently, one has to weigh
up and say "Now, on the whole, what is better-the individual may
suffer in some respects, some particular respects where he may want to
do something, but on the whole, do the ac!vantages which he derives
from being a member of this group, and which the group of which he is a
member, derives from the differential measure-do they not outweigh
the particular disac!vantages which might apply in some marginal
cases?" Surely that is a factor which applies equally in the case of the
minorities treaties as in that of a policy such as separate development,
except only for this factor to which my learned frienc! refers, and that is,
in the case of the minorities treaties, the individual may be able to quit
his group. But my learned friend does not put that absolutely; he says:
"Normally, in cases of such permitted differentiation, the individual may
quit his group." So he does not make that an absolute criterion of
distinction between what is permitted and what is not permitted. And SOUTH WEST AFRICA
indeed, Mr. President, one can see that he could have difficulty about
making that an absolute criterion, becausc how could it possibly be
seriously suggested that it is a factor of relevance to say to a member of
a religious group: "You can escape the differential situation applying in
respect of your religious group by forfeiting your religion" (I am dealing
of course with the case where such differential measures are conceived of
as beneficial). Surely, Mr. President, as soon as one differentiates, and
says a certain group is to be treated in a certain way-they are to have
special rights, special obligations-whereas another group is to have
different rights and different obligations, then one finds that the element
of compulsion cornes into it automatically. Members of the one group are
not allowed to share the special benefits stipulated for the members of
the other group, and vice versa. And therefore, Mr. President, in situa
tions of this kind, is it realistic to say that it can be a factor of distinction
that in some instances it may be possible for a member to quit his
particular group and to join another one?
I have mentioned only an example of forfeiting one's religion-that is
one instance which shows how completely unrealistic this suggestion is.
Take another instance-take land reservations in favour of members of
the Indian community in various American states. The situation may
well be that there is protection for members of the lndian groupas long
as they stay within that reservation, as long as they participate in the
benefits of what that reservation might mean for them-the use of the
ground, the making of a living, and so forth. But, Mr. President, there is
an element of compulsion on them which is intended for the protection of
the group, and that is that they may not sell those rights to outsiders
because otherwise the protection will fall away. Therefore that element
of compulsion is there in order to enable them to enjoy the protection,
and is it realistic to say: "Yes, but the member of the group can escape
that-he can be taken up in the large community if he wishes"? It is
certainly true that he can, Mr. President, but then he forfeits the eco
nomic value of what he had-that is the price he must pay.
So in all these instances it is not so easy to say you must draw your
dividing line on the basis of ability to quit a group, or a facility to quit a
group, because it is, in truth, not a realistic basis at all. And that is
probably the reason why my learned friends say, not that that is to be
an absolute criterion or that it applies in all cases, but that in these
other cases of what they admit to be permitted differentiation, the
individual is normally free to quit his group. .
My learned friend, Mr. Grosskopf, therefore demonstrated to this
Court that the contrasts which we have here are really contrasts without
a difference, and that these drove the Applicants into the position where
they eventually, in effect, abandoned the attempt to formulate a clear
definition of, a clear dividing Iine between, what is permissible differen
tiation and what is impermissible differentiation, and said that the deci
sive factor is that the organized international community has applied
the suggested norm specifically in its judgments to the case of the
Respondent in South Africa and in South West Africa by condemning
its policies there, and that ought to be enough for this Court. That is the
shield behind which they eventually tried to take refuge.
That being so, Mr. President, how do we test this alleged norm against
specific provisions ofinternational instruments and against international
practice-the actual practice of States-in order to see whether or not REJOINDER OF MR. DE VILLIERS 57
it can claim the existence claimed for it by my learncd friends? How do
we do it in respect of such a nebulous thing, in regard to which we in
effectin the end have no definition, because there is first an absolute
definition,then certain qualifications are suggested, but in the end those
qualifications are not defined and we do not know where we stand?
It seems to me that the only practical way of setting about it is by
having two strings to one's bow: to do the testing on a dual, alternative
basis.
First, we shall test on the absolu te basis; we shall test on the basis of
taking the Applicants at their word when they say that the alleged norm
means that the allotment of rights and duties on the basis of membership
in a race, class or groupis impermissible everywhere and anywhere in the
world. That they said several times. That is, after all, the signification of
their Submissions; in No. 3 this signification appears from the wording
of the Submission itself, and in Submission No. 4 from the wording of
the Submission read with the formai explanation; and those definitions
and that explanation contain no qualification whatsoever; it is differen
tiation per se in this defined sphere that is struck at by the suggested
norm.
At the same time, Mr. President, and alternatively, we shall also
consider the matter with reference to the factors which have been
mentioned hy the Applicants, not as clearly defined qualifications, but
as possible factors which could distinguish permissible from impermissible
differentiation-factors mentioned by them in relation particularly to
their discussion of the case of the minorities treaties. We shall deal with
these factors on the assumption, for purposes of this argument, that they
were intended to be qualifications attached to the suggested norm. We
have given a good deal of thought to this matter and it seems tous that
the only fair way of doing this would be to assume that the qualifications
involve that differential allotment of rights, etc., in the sphere as defined
by the Applicants, would nevertheless be permissible if such differen
tiation could be said, fi.rstly, to serve the purpose of protecting the
individual rather than the group, and, secondly, if it could be said to
avoid the consequence that the individual might suffer hy reason of
membership of his group, inter alia, by having regard to his facility, or
otherwise, to quit the group.
Those seem to be the considerations which one must bear in mind as
possible features of qualification, and we are quite prepared to do that,
in testing the suggested content of this norm against the processes by
which it is said that the norm has been brought into existence.
I may point out, Mr. President, that in approaching the matter in
this way, we are going very far in avoiding a technicality of approach.
We might well have been entitled to say, technically, that we are required
to look only at the submissions and the formai explanation of the sub
missions, in order to see what the case is which we have to meet, and that
if the submissions, as formally explained, rely on the existence of a norm
unqualified with reference to anything which is not stated or incorporated
in those submissions and in that explanation, then we need only dem
onstrate that such an unqualified nonn does not exist. It would not be
necessary for us to chase possible qualifications which may, or may not,
have been intended by the Applicants. I say it might well have been
possible for us to approach the matter in that way-to look only at the
submissions and the forma! explanation with a view to demarcation of58 SOUTH WEST AFRICA
what the case is which we have to meet, because, Mr. President, the
presence or the absence of qualifications is very important from a
practical point of view and from a point of view of fair procedure, and
this I must, with respect, emphasize to the Court. The presence or the
absence of a qualification in the suggested norm can make ail the practical
difference to the case which one has to meet as a matter of fact and,
therefore, to the case which one_has to present to this Court on issues of
fact.
Itwould be apparent to the Court that if there had been a qualification
rendering the allotment impermissible only if it was practised with an
oppressive or injurions intent towards some or ail of the inhabitants, or
if it was practised with an oppressive or injurious effect for some or all of
the inhabitants, then the whole nature of the case on the facts wotùd
change. Then we would be called upon to demonstrate, and we would
wish to demonstrate, and it would be open tous to demonstrate, that the
differentiation in fact has no such intent attachcd toit, and that in jact
it does not have the consequence assigned toit.
But, Mr. President, ifthat is the case which we are called upon to
meet, then it must be fairly so stated so that wc can know it.
Similarly, Mr. President, these possible qualifications, which I have
just referred to as they emerged from the discussion in regard to the
minorities treaties, would also, if they arc seriously suggested as qualifi
cations to the norm, alter the type of sitµation which, either by descrip
tion in a document, or by existence in practice, could be relied upon as
a fact to show the absence of such a qualified norm. and therefore it
would again alter the field of enquiry which we are called upon to under
take in order to refute the case being made against us.
If the Court should find (I am just postulating a theoretical possibility)
that there has been established against the Respondent a case on the
basis of a qualification which is not expressed in the case brought against
us by the Applicants, then it would, in effect, mcan there has been a
faiJure of the principles of natural justice because it would, in effect, mean
that the finding is being made against a party in respect of a matter in
which it has not had a fair opportunity of putting its case to the Court.
That is what it would amount to. That emphasizes the importance of a
clear intimation, whether formally or informally or both, by the dominus
litis,the Applicants in this particular case, to the other side of what
exactly the case is which the other side is called upon to meet. That is the
purpose which is served as a matter of natural justice, or is intended to
be served, by formal submissions in proceedings of the kind before this
Court-the purpose which is intended to be served by formai pleadings
and the formai prayers in pleadings of the more concise nature with
which we are acquainted in our normal municipal practices.
We are quite prepared, Mr. President, as I have said, to take the non
technical line of approach. \Ve are quite prepared to doit to the extent
of looking, not only at the letter of the Submissions and the formal
explanation, but to go further and to look also at the other explanations
which have been offered by the Applicants' representatives, provided
-and this is an important proviso-that those explanations are clear
and fair, that they are not ambiguous and obscure, or inconsistent, or
concealed, so as to be likely or calculated to mislead-so that we do not
know what it really is that we are called upon to meet. In so far as they
are clear and they tell us fairly what it is that we are called upon to REJOINDER OF MR. DE VILLIERS 59
meet, we are prepared to meet that, even if it does not corne in the formai
part of the case.
On the basis of facts which I have already referred to, we understand
the Applicants to have informed us and the Court very clearly, not only
in their formal submissions and explanations, but also in a series of
informa! but emphatic ones which I have cited to the Court, that they
are not bringing or asking us to meet any case of alleged oppressive,
injurious, or otherwise unfavourable purpose or effect. That is why I
said that we regard ourselves as being in a position that we no longer
have to meet a case of that kind. That does not seem to be a qualification;
it seems perfectly clear that that is no longer, and it defmitely is not at
this stage, a qualification which is said to attach to the Applicants'
suggested norm-to the differentiation which they say is proscribed.
But now, as to the possible qualifications to the norm, which I men
tioned this moming, as arising from the discussions on the minorities
treaties, the Applicants have not been equally clear, and, as I have said,
we are really going out of our way in taking cognizance of those possible
qualifications, but we are, nevertheless, doing so on the alternative basis
of the possibility that such qualifications may be intended to form part
of the Applicants' case.
So, Mr. President, we traverse again-we can doit much more quickly
now than before-the various sources of international law referred to in
Article 38 (1) with a view to dealing with this aspect of the application
of the issue.
The Court will recall that under paragraph (a) the Applicants rely on
the Charter and on the I.L.O. Constitution. We dealt in the Rejoinder,
V, at pages 131 to 133 with the particular provisions of the Charter and
the I.L.O. Constitution which the Applicants intended to rely upon, and
which they intimated tous that they were relying upon as at the stage
of the Reply. Substantially, those are still the same provisions relied upon
by the Applicants. We demonstrated in the Rejoinder, firstly, th~t no
"norm of non-discrimination or non-separation" was contained in e1ther
of these two instruments, and. in anv event, neither of these instruments
purported to amend or supplement the provisions of the Mandate.
I shall now, Mr. President, because the Applicants have reverted to
this area of controversy in the oral reply, revert briefly to these matters.
Firstly, I shall deal separately with the Charter where the reliance is
mainly on the Human Rights provisions and particularly those contained
in Articles 55 (c) and 56 of the Charter. Let us then see what their con
tent is, and then how that content can be said to compare with the sug
gested content of the norm, with or without the qualifications which I
have mentioned.
If one reads those two provisions together, Mr. President, for present
purposes, beginning with Article 56 and then reading from that on to
Article 55 (c), the effect is as follows:
"Ail Members pledge themselves to take joint and separate action
in co-operation with the Organization for the achievement of the
purpose ... " to "promote ... universal respect for, a!1d obse1:v3:nce
of, human rights and fondamental freedoms for all Without d1stmc
tion as to race, sex, language, or religion."
Now, Mr. President, for present purposes what are the important
features there? If we look for words of legal obligation, we fi.nd them60 SOUTH WEST AFRICA
only in these words "Ali Members pledge themselves to take joint and
separate action in co-operation with the Organization for the achievement
of a purpose". That is the gist of obligation that may be intended to be
referred to because the rest of the provision, that contained in Article
55 (c), does not take the form of a legal definition of obligation. It takes
the form, Mr. President, of referring to certain things which, it is ob
viously, in terms of the language, presupposed, do exist. They are not
brought into existence by this language; the language does not purport
to bring them into existence or to give them any legal content. Those
things are "human rights and fundamental freedoms . . . without
distinction as to race, sex, language or religion". The purpose is the
promotion of universal respect for, and observance of, those human
rights and fondamental freedoms.
So,Mr. President, it is quite clear that there is a presupposition that
those human rights and fondamental freedoms exist. The authors of the
Charter gave no indication whatsoever-I am speaking now merely on
the basis of the language employed-whether they regarded those rights
and freedoms as being a concept existing in Jaw in any sphere such as
municipal law or international law; or whether they considered them as
being something existing outside the sphere of law, strictly so-called,
perhaps in the sphere of natural law, falling somewhere in between, or
mercly falling in the sphere of philosophical concept. They may have
been any of those, as far as the language of this Article is concerned. The
language merely presupposes that they exist and the purpose of the
Article is to promote respect for them and observance of them.
Soit is clear that the Charter did not purport to create those human
rights and freedoms; it did not purport to define them either or to clothe
them with legal validity.
And that brings us to the phrase "without distinction as to race, sex,
language or religion". Again in the context, i\Ir. President, it becomes
clear that that phrase relates to the observance of these human rights
and fundamental freedoms (whatever they might be) for all people. It
does not, in general, relate to the aliotment of rights, burdens, privileges
and so forth, outside the sphere of what might be termed human rights
and, in particular, Mr. President, it does not prescribe a rule of mechanical
abstention from differentiation under ail circumstances. The effect of
what is said is, that in promoting respect for and observance of these
fondamental rights and freedoms, you are to do so for ail persons; you
are not allowed to say "I am doing so for some of my citizens and not
for others, bccause some are of th.israce and others are of a different race
or because some are of this religion and others are of a different religion
or sex, or group, as the case may be". That you are not allowed to do.
You are not aliowed, therefore, to discriminate unfairly or unfavourably
towards some. in seeking to promote the observance of these rights. You
are to have the same concern for all of them, irrespective of what race or
colour or group or sex or language group, or religion they belong to.
But there is no statement of any norm, of any rule-that there is to be
a mechanical abstention from differentiation in seeking to promote this
purpose.
!'frP.resident, I submit that that is not only abundantiy ciear from
th1s language but it becomes clearer when one has regard to other aspects
of the Charter, because, after all, the Charter forms a unit. It is one
instrument and the mies of logic and basic principles of interpretation REJOINDER OF MR. DE VILLIERS 6r
enjoin us very forcibly to have regard to the whole of an instrument in
its context, in order to determine what the intent of its authors might
have been. One is not to presume that the authors intended to have
various parts of an instrument in conflict with one another or irrecon
cilably inconsistent; and that is why it becomes so important to have
regard to some of the provisions of Articles 73 and 76 of the Charter.
With regard to Article 73, as we pointed out in the Rejoinder, V, at
page 132:
"... at least the possible need for such differentiation in particular
instances appears to be contemplated in the Article itself, partic
ularly in paragraphs (a) and (b) thereof, which require administer
ing authorities to observe 'due respect for the culture of the peoples
concerned', and to have regard to 'the particular circumstances of
each territory and its peoples and their varying stages of advance
ment'."
Ail that, Mr. President, is in a programme of promoting their well
being and progress. Surely those words, if they have any meaning at all,
have the meaning that the administering authority is to have regard to
those varying circumstanccs pertaining to the peoples concerned,
various cultures, varions circumstances and varying stages of advance
ment, so the only inference that can be drawn is that the necessity, the
desirability, of differentiation in view of those varying circumstances
was considered an essential by the authors of the Charter, and was
intended to be taken into account by the administering authority.
Asto Article 76, regard should be had to paragraph (b) which qualifies
the general objective of promoting political, economic social and ecluca
tional advancement with the words "... as may be appropriate to the
particular circumstances of each territory and its peoples and the freely
expressed wishes of the peoples concerned".
Again, Mr. President, here and in Article 73, one finds this concept of
"each territory" in the singular, and "its peoples", in the plural, indi
cating a contemplation of a plurality of peoples within one political unit,
and therefore the neecl of possible differentiation on that basis. If it were
not, Mr. President, for this clear meaning of these Articles, then it
would have been quite impossible for the Union of South Africa to
become a signatory to the Charter, because of its insistencc at ail times
that a method of mechanical abstention from differentiation in dealing
with the problems arising from the plurality of its peoples could never
be subscribed to bv it.
l\IrPresident, for the reasons I indicated just before the adjournment,
as to the proper interpretation of Article 56 read with Article 55 (c) of
the Charter, we saicl at V, page 131 of the Rcjoinder:
"Thus, on Applicants' argument, a Member of the United Nations
would not be entitled to provide special protection or special public
conveniences for women, or would not be cntitled to grant separate
public holidays for different religious communities on their respective
religions days, or to establish different public schools for varions
language groups or even for the two sexes. ln the words of Sir Hersch
Lauterpacht (commenting on a provision in a proposed International
Bill of the Rights of Man)-
'... it must be borne in mind that "equal treatment in ail re-62 SOUTH WEST AFRICA
spects" ... does not imply identical treatment ... A purely
mechanical absence of differentiation may result in inequality and
injustice'."
And we referred to a similar pronouncement of the Permanent Court
in the Minority Schools in Albania case.
So, in answering this, Mr. President, in the Oral Proceedings the
Applicants said that here is an example now of the Respondent's at
tributing an extreme position to them, something which they never
intended.
But, Mr. President. is that really so? Even if we bring into play the
suggested, the possible, the postulated qualifications we discussed this
morning, which the Applicants raised with reference to the minorities
treaties, how do they affect the position? Would the question of being
concerned more with the individual than with the group, apply, for
instance, in the case of making separate provisions for women and men
in the sphere, say, of public conveniences, or in schools for children?
Would that be a consideration at all? Would one say that that is for the
individual rather than for the group? Would one say, Mr. President, that
the individual who might find himself or herself affected by this, could
clearly escape the adverse effects by simply quitting the group? I have
heard of certain opcrations that could be conducted to make a woman
out ofa man, but I have never heard of the opposite type of operation as
a possibility, even in modem science. Again take the different provisions
for different religious communities; there is a complete Jack of realism in
saying that the individual can escape that position by quitting his group.
Mr. President, the interpretation I have suggested to the Court as
being the natural one, the only one, that could have been intended,
having regard to the language of the particular Articles and to the
Charter as a whole, and to the implications I have mentioned, fmds
considerable support from commentators and also from indications in
the history of these provisions both before and after they came into
existence.
There was a divergence of view shown at various stages on the question
whether Articles 55 (c) and 56 could be said to bring about legal obliga
tions at all. Of course, it is a matter with which I am not particularly
concerncd. As far as I am concerned there is an obligation, in so far as
one can call it a lcgal obligation, to co-operate with a view to the pro
motion and encouragement of respect for these basic rights and freedoms.
My contention is that the method by which the objective is to be pursued
was not laid down with reference to a mechanical abstention from
differentiation,and that position does not affect my argument in this
case at al!.
As I say, some commentators differed on the question whether legal
obligations were intended at all in these provisions, and indications on
that subject are afforded bv a reference to the discussions in the Inter
national Law Commission on the draft declaration on rights and duties
of States, which discussions appear in the r949 Yearbook of the Com
mission.
The views regarding the legal effect of the relevant Charter provisions
were expressed by some members in a debate, on a proposed provision
(Art. 7) for a draft declaration on the rights and duties of States. That
proposed Article 7 would read: . REJOINDER OF MR. DE VILLIERS
"Every State has the duty to treat all the persons under its juris
diction with respect for human rights and fondamental freedoms
for all,without distinction as to race, sex, language, or religion."
(Yearbook of the International Law Commission, I949, p. 164.)
So the proposa! here was that it should be stated specifically that every
State has that duty.
The Chairman, Judge Manley O. Hudson, after discussing the various
Charter provisions on human rights, said at pages 167-168 of that
record:
"... that Member States had not, by signing the Charter, assumed
a legal obligation to treat persans under their jurisdiction with
respect for human rights and fondamental freedoms without
distinction as to race, sex, language or religion. They had merely
agreed to promote international co-operation to that end. Article 7
of the Declaration went beyond the Charter in attempting to lay
down a legal duty for Member States, and much beyond anything
so far known in existing international law in attempting to lay down
a legal duty for both Member and non-member States. Moreover,
the term 'human rights and fondamental freedoms' was not defined
either in the Charter or in the Universal Declaration of Human
Rights."
Mr. Brierly said the following at page 168:
"To say, however, that no distinction could be made on ~ny of
the four grounds as they stood was anoth:er matter altogether. That
went far beyond anything in the Charter or in the rules of general
international law outside the Charter. He felt that it went beyond
anything that present-day world opinion would be prepared ta
accept. Probably more than half the Members of the United Nations
made a distinction between the sexes, and if the Declaration were
to state that they were violating the Charter by so doing, it would
not be taken seriously and the members of the Commission would
be considered with some reason as academically-minded doctri
naires."
That was Mr. Brierly's objection.
A view to some èxtent to the contrary was expressed, inter alia, by
Mr. Scelle, at page 169. He said:
"He disagreed with the Chairman's view that the Charter did not
impose any positive obligations in the matter. \Vhile it did not
establish specific obligations or specific rights, in Article 55, for
instance, certain real obligations were implied, though vaguely
expressed. The Charter provision that }'l.embers of the United
Nations should promote respect for human rights constituted an
obligation, though nota very strict one."
Therefore, to that limited extent, there was an indication by him of
an obligation, Mr. President, but as I say, that is a matter which does
not affect the real issue between the Parties here. What is important is
the very positive support from the previous speakers on the points that
do matter.
In the result, after this discussion, the draft article was approved,
first by six votes to four, and subsequently by seven votes to five. One
finds that in documents A/CN-4/SR.23 and 25 and in the Yearbook of SOUTH WEST AFRICA
the International Law Commission, r949, at pages 170and 179.The voting,
of course, was not necessarily decisive as to what view the various
Members took on the question of the interpretation of the Charter
because other considerations also entered into the mat ter.
For completeness sake, the subsequent history of the Drajt Declaration
on Rights and Duties of States, which was considered by this Commission,
may be very briefly noted. It is summarized as follows in Everyman's
United Nations, Sixth Edition, 1959, at page 410:
"At its 1949 session the General Assembly commended the draft
Declaration to the continuing attention of member states and of
jurists of ail nations. It also invited the suggestions of member
states on: (1) whether any further action should be taken by the
Assembly on the draft Declaration; and (2) ifso, the exact nature
of the document they wished drafted and the future procedure to be
adopted in relation to it. As the number of replies received from
governments was considered too small to form the basis of a definite
decision regarding the Declaration on Rights and Duties of States,
the General Assembly at its sixth session in 1951 decided to postpone
further consideration of the matter, but in any case to undertake
its consideration as soon as a majority of member states had answered.
Eighteen member states by October, 1952, had sent in their com
ments. No comment has been received since that date and no further
development has taken place."
This was written, Mr. President, in 1959, and, as far as we are aware,
no further development has taken place since that date, that is on this
Draft Declaration on Rights and Dulies of States which was one of the
consequential steps envisaged when the subject of human rights was
first mooted in international circles. That (it is one illustration of
showing) the wide distance to be covered between a stage where one
begins to discuss a matter in terms of suggested standards and the long
way one has to go before one ends up with an international legal obli
gation.
A number of authors on international law have also expressed the
view that the provisions of Articles 55 (c) and 56 do not impose binding
obligations. So we find Bentwich and Martin in A Commentary on the
Charter of the United Nations, London, 1951, at pages 8 and 9, wrote the
following:
"Article I (3)[of the Charter] does not amount to a guarantee
that the United Nations will presently enforce the undisturbed
enjoyment of human rights and fondamental freedoms. That is the
ultimate purpose, but the Charter only asserts that the organization
will strive to promote, and encourage respect, for human rights, e.g.,
by studying the state of these rights in various countries, by trying
to find a common denominator acceptable to al!, or at Jeast to the
majority of States, and by endeavouring to secure the adoption of
suitable international conventions."
That was the basis on which the Charter started, Mr. President-this
process of striving towards a study of the matter, trying to find a corn
mon denominator acceptable to the various countries, or at least by the
majority, and endeavouring to secure the adoption of suitable interna
tional conventions. REJOINDER OF MR. DE VILLIERS
At page nS of the same work, specifically regarding Article 56 of the
Charter, the author stated:
"A promise to take joint and separate action 'in co-operation with
the Organization' reduces the responsibility of Members to giving,
separately or jointly, such support as they think fit. Even if on a
stricter view the Article does not permit Members to remain inactive
in the face of. positive recommendations, they have no direct
responsibility forthe achievement of the purposes stated in Article
55. They need not act unless the Organization takes the initiative."
As I have said before, Mr. President, I am not concerned with the
question of the exact scope or otherwise of the obligation of co-operating
with the Organization, except to this extent, that it does not involve
any obligation to abstain mechanically from differentiation.
Charles cle Visscher, Theory and Reality in Public International Law,
Princeton, 1957, wrote, at page 126:
"The Charter envisaged human rights as a source of moral
inspiration and a principle of collective action for the organs of the
United Nations. That is why in a series of articles it assigns to the
United Nations the fonctions of promoting the ideal of such rights
and stimulating respect for them but the Charter nowhere defined
the rights of man. Leaving them undetermined in object and scope,
it could not have intended to impose upon States Members the legal
obligation to grant or guarantee them to their nationals by internal
legislaion.''
Then Goodrich, The United Nations, 1959, at page 246, after referring
to Articles 1, 13,55, 56, 62 and 76 of the Charter, remarked:
"It is to be noted, however, that nowhere in the Charter is the
phrase 'human rights and fondamental freedoms' defined. Sorne
delegations at San Francisco desired such a definition but recognized
that time did not permit attempting it. Furthermore, it is to be
noted that while there are repetitive enumerations of United
Nations purposes and fonctions, the key words are 'promoting',
'encouraging' and 'assisting in the realization of', not, 'protecting,
safeguarding and guaran tecing'."
Then there was another interesting facet of the discussions in the
International Law Commission in 1949, if we may go back to that for a
moment. }1r. Cordova said, as reported in the 1949 Yearbook, at page
168: "The instances which had been quoted concerned political rights,
but those were not fundamental human rights." In other words, Mr.
President, he laid stress on this aspect that there is another limit to the
scope of these articles-they concern human rights and fundamental
freedom only, and matters which fall outside the scope of that concept
could not be said to be touched upon by these articles at all, and in the
view of the learned speaker, Mr. Cordova, political rights were not
fondamental human rights. This was confirmed by Mr. Scelle. He said
at page 169 that:
"... fhe] thought that a clear distinction should be drawn between
political rights and the fondamental human rights. Until recent
years vmmen had not had the right to vote in such civilized countries
as France and England in which the fondamental human rights had
yet been fully respected and recognized constitutionally."66 SOUTH WEST AFRICA
Now, Mr. President, subsequent events confirmed bath that the
Charter provisions were not intended to be binding, in so far as laying
obligations in respect of human rights on States in their own domestic
sphere was concerned, and that they did not refer to differentiation as
such, but that they only concerned the promotion of certain postulated
fondamental freedoms and the equal concem for everybody, independ
ently of race, colour, group, religion, sex, and so forth.
The European Convention on Human Rights provides an interesting
illustration on all these aspects. In the first place, the fact that it was
considered necessary to have a convention falls in entirely with the
contemplation that the Charter did not make sufficient provision in that
respect and that one required a specific convention. Secondly, it is
noteworthy that when it came to this Convention, which now contem
plated legal obligations on the part of States, it was considered necessary
and found essential to have a much clearer definition than one had in the
Charter-a specific definition-as to what fondamental freedom and
human rights were contemplated, and to define them exactly so that
everv State could know where it stood. lndeed, a recent commentator,
G. L. Weil, quoted by us in the Rejoinder, V, at page 152,referred to the
rights protected by the Convention as "rights which States were willing
to enforce because of their precise definition".
The Convention, like the Charter, does not prohibit official differentia
tion as such. That becomes clear from its whole tenor and in particular
also from Article 14, which provides for non-discrimination but not for
non-differentiation as such. The Article is quoted in the written Reply of
the Applicants at IV, page 509, and it reads as follows:
"The enjoyment of the ri~hts and freedoms set forth in this
convention shall be secured w1thout discrimination on any grounds
such as sex, race, colour, language, religion, political or other
opinions, national or social origin, association with any national
minority, property, birth or other status."
So, Mr. President, it i~a criterion of discrimination, and the gist of the
Article is the securing of the enjoyment of these rights and freedoms.
It enjoins that the rights and freedoms set forth in this Convention shall
be secured and that in securing them there is to be no discrimination
on the basis of race, sex, etc. This, on the one hand, again confirms that
outside the scope of these particular rights there is no norm of non
differentiation or even non-discrimination contemplated in this particular
instrument in regard to othcr subjects or other aspects of life. On the
other hand, it makes the fact clear that in regard to these fondamental
rights and freedoms the line of partition is not one of non-differentiation
but of non-discrimination.
Consequently, Mr. President, in practice one finds that it has been
held lawful for aparty to the Convention, a State party to the Convention,
to discriminate between the sexes on matters falling outside the scope
of the Convention, for instance, as regards prohibitions on homosexual
practices. That matter is commented upon in the European Convention
on Human Rights M anual, published at Strasbourg in 1963, at page 67.
It mav be useful, Mr. President, in this context, to say some more also
on the Üniversal Declaration of Buman Rights. The Applicants in their
written Reply relied on this Declaration as affording "evidence for the
proposition that official non-discrimination has become a generally REJOINDER OF MR. DE VILLIERS
accepted international human rights norm" (IV, p. 501). They apparently
meant to describe it as a legally binding undertaking in the form of a
declaration (IV, p. 493). So that is the basis of their discussion of this
Universal Declaration, that is, affords evidence for the proposition that
official non-discrimination, in the sense contemplated by them, has
become a generally accepted international human rights norm.
The contention did not make it perfectly clear what the basic nature
of the Applicants' case was. If they intended to suggest that the Universal
Dedaration of Human Rights had created binding legal obligations they
were clearly wrong. That was succinctly stated by us in the Rejoinder,
V, at page 130.
Now when it cornes to the Applicants' oral reply in these proceedings
they have been more specifi.c. They now use this Declaration under the
rubric of Article 38 (1) (a) of the Statute of the Court as one of "the
formai acts of the constituent organs of the United Nations which have
produced an authoritative construction of Articles 55 (c) and 56 of the
Charter". That we fi.ndin the verbatim record of 19 May. at IX, page 347.
And they further contend, in the verbatim record of 18 May, at IX,
page 337, as follows:
"... the declarations and draft declarations undertaken under the
auspices of the United Nations and within the context of the United
Nations Charter, although not binding in themselves, constitute
evidence of the correct interpretation and application of the relevant
Charter provisions".
And the Applicants continued further on:
"It is possible ...for the Respondent to take up one or the other
of these resolutions or declarations and parse them and analyse them.
The central point is that, taken in their totality as well as severally,
they establish overwhelmingly the interpretation placed upon the
relevant Charter provisions by the Members of the United Nations,
speaking with a consensus which approaches unanimity. This is the
significance of these resolutions and declarations."
Mr. President, I have dealt before with the merit or otherwise, in
general, of this contention regarding so-called "authoritative inter
pretation" by organs, by majorities, even by large majorities, of the
United Nations. I need not repeat what I said in general about the
complete demerit of such a process as something relied upon in support
of the Applicants' contentions; that is, in regard to the norm-creating
process in general. We could further demonstrate what I have said there
with reference also to the specific content of this norm, on the basis on
which we are now discussing it, and with reference to what actually
happened in this particular aspect of so-called authentic interpretation.
We shall do so with a purpose not confined to Article 38 (1) (a) of the
Statute, because the purpose of this authentic interpretation would seem
to extend beyond merely relying on convention: the contention again
speaks of 1his so-called consensus approaching unanimity as a force to
be taken into account in this respect.
We look at the matter with a view to these questions: firstly, does the
Universal Declaration purport to "interpret" the actual provisions of the
Charter, or was the intention something totally different, namely to
create something new, that is, a political platform for further political
action, or something similar? Secondly, Mr. President, was the Declara-68 SOUTH WEST AFRICA
tion intended to reflect or does it in fact reflect a "general practice" of
States "accepted as law", or, put in other words, was it intended that
its content should be regarded as binding customary law? Does it contain
any evidence tending in that direction? Thirdly, was the Declaration
intended to create binding obligations in any other way?
Now, Mr. President. even a cursory glance at the Declaration itself,
and at the discussions which preceded its adoption in the General
Assembly, is sufficient to supply a very clear answer. The wording and
the content of the Declaration itself make it plain that neither an
"interpretation" of the Charter nor a codification of "general practice
accepted as law" was intended. The preamble makes it abundantly clear
that the Declaration was intended as a political platform for future
action. Each and every one of the preambular paragraphs contain what
could be called "lcgislative arguments" of the type I have mentioned
here, arguments dealing with the desirability of having certain things
rather than with a contemplation that there is legal obligation already
existing in that regard. And after this preamble, the content of the
Declaration is [proclaimed]-
"... as a common standard of achievement for all peoples and ail
nations, to the end that every individual and every organ of
society... shall strive by teaching and education to promote respect
for these rights and freedoms and by progressive measures, ... to
secure their universal and effective recognition and observance ... ".
In other words it provides, Mr. President, for striving by teaching
and education to promote, and in consequence thereof to have progres
sive measures for implementation of an ideal, a common standard of
achievemen t.
If we turn to the background and the discussions which preceded the
adoption of the Declaration, we immediately fine! that it was intended
as the first step in a process which contemplated the subsequent drafting
of a convention to be ratified in the ordinary way, and the ultimate
creation of methods of implementation of such a convention. So ail those
steps still lay in the future, before one could reach the stage which my
leamed friend says has been reached by some short-circuiting process.
The first step, the Declaration, was never intended to create binding
obligations. In tact, when a proposai was made that the discussions
should be postponcd to the next year in order to improve the contents
of the Declaration, that proposai was rejected. A number of States ad
vanced as the reason for their rejecting of the proposai that the Declara
tion was not binding in any evcnt, and that improvements could just as
well be made to its contents at a Iater stage. The discussions also show
that the Declaration was never intended to be a reflection of an existing
practice of States accepted as law. On the contrary, the whole process
was intended to influence the development of State practice in future.
The discussion therefore carriedthe explicit and the implicit acknowledg
ment that current State practice did not accord with what was visualized
in the Declaration, which is directly contrary to the basic principles on
which my learned friend would have to establish a norm of customary
law.
On a reading of the discussions in the General Assembly these facts
I have mentioned, become immediate1y apparent, and we shaH give on1y
a few examples to illustrate this. \Ve commence with l\1r. \Vatt of REJOINDER OF MR. DE VILLIERS
Australia-this is in the General Assembly, Otficial Records, Third Session
Part 1,Plenary, page 876:
"Whatever its importance, however, the declaration did not by
itself constitute an international charter of human rights. The
working plan of the Commission on Human Rights had laid down
that such a charter should also include a covenant relating to human
rights and measures of implementation. The declaration represented
a common ideal to be attained by all peoples of the world; it had no
legally binding character. The General Assembly should see to it
that the rights listed in the declaration did not remain a dead letter
and should ensure effective respect of those rights."
Next, Mr. Davies of the United Kingdom in the same record, at page
883, said:
"That declaration was, however, only a first step. \Vhile in no
way wishing to minimize its moral force, the United Kingdom felt
strongly that the Commission on Human Rights should continue its
work on the draft covenant and on the measures for implementation
of the declaration."
And then there is a further quotation from the same speaker, at
page 885:
"Finally, the new article which the Soviet Union proposed for
inclusion after article 30 would have the effect of transforming the
declaration into a pact which would be legally binding upon the
signatory States; it was in contradiction to the last paragraph of the
preamble."
Next, Mr. Aikman of New Zealand in the same record, at page 888,
said:
"It was true that the universal declaration of human rights, as a
statement of principles, had moral force only. It imposed no legal
obligations.It was for that reason that the New Zealand delegation
had insisted on the draft resolution according to which the Com
mission on Human Rights should continue to give priority to the
preparation of a covenant on human rights and measures of im
plementation.
Mr. Aikman recalled that the international bill of human rights
should eventually consist of three parts: first, the declaration which
was before the Assembly; secondly, a covenant or convention im
posing on States obligations that would be legally binding; and
lastly, effective measures of implementation. The New Zealand
delegation considered that the covenant on human rights would be
a more important document than the declaration itself, in view of
the fact that it would impose legal obligations on the States ratifying
it.Itwas to be hoped, moreover, that a series of international con
ventions would progressively elaborate and define the principles set
forth in the universal declaration of human rights; a beginning had
been made by the preparation of three draft conventions on the free
dom ofinformation which the Third Committee had now on its agenda.
ln the opinion of the New Zealand delegation, the Commission on
Human Rights in its work on the covenant should in the first instance
concentrate on only some of the rights set forth in the Declaratio_n.
The other rights would be dealt with later.'' SOUTH WEST AFRICA
Mr. President, this again emphasized the amount of work to be done in
the future in order to achieve the ideals-to achieve what my learned
friend says was done almost as if by fiat.
We find that in the same record, at page 867:
"M. Cassin [of France]-outlined the work that remained to be
done and stressed that the declaration must constitute a beacon of
hope for humanity. It must pave the way for the covenant, to which
States would consign their undertakings in order to make them
legally binding."
General Romulo of the Philippines in the same record at page 868 said:
"The declaration, it should be borne in mind, constituted the first
step towards a universal bill of human rights. The covenant would
constitute the next step; then there would be measures of im
plementation which would reinforce the declaration. The imperfec
tions of the universal declaration of human rights in themselves did
not constitute an adequate reason why the Assembly should not
adopt it. It could always be improved later."
Mr. Campos Ortiz of Mexico said at page 885 of the same record:
"... his delegation considered that the universal deciaration of
human rights was a truly fondamental document. Although it was
not a legal document with binding force, that declaration would
serve as the basis for the realization of one of the highest aims of the
United Nations, that of developing and encouraging universal re
spect for human rights."
Mr. Pearson of Canada, at page 898 of the same record, remarked that:
"... his Government regarded the universal declaration of human
rights as inspired by the highest ideals and as expressing the most
noble principles and aspirations. It believed that each nation would
endeavour to implement it, in its own way and according to their
own traditions."
We found a statement along the same lines by the representative of
Paraguay in the same record, at page 901-I do not think I need read it
allto the Court.
Mr. Katz-Suchy of Poland said, at page 904 of the same record:
"The Polish delegation had welcomed the formation of the Com
mission on Human Rights. In the Economie and Social Council it
had expressed its disappointment at the fact that the Council had
only prepared the draft declaration and not the draft convention
nor the measures of implementation which should have been
elaborated simuJtaneously, especially in view of the fact that the
declaration, as presented, was only an expression of principles nith
no legal force, with no provisions for implementation, and with only
moral value."
He said further, at page 909:
"... he would not have hesitated to vote for it, in spite of its many
imperfections. Ithad however been clearly established that it was
merely a declaration of principles, which no Government would be
obliged to implement. Under those conditions, its adoption did not
seem to be a matter of any apparent urgency."
Then, Mr. President, I might point out that the President of the REJOINDER OF MR. DE VILLIERS JI
General Assembly, immediately after the Declaration was adopted in the
General Assembly, summed up what had been achieved and stated at
page 934 of that record:
"As had been pointed out, however, the Declaration only marked
a first ;,tep since it was not a convention by which States would be
bound to carry out and give effect to the fondamental human rights;
nor would it provide for enforcement; yet it was a step forward in a
great evolutionary process."
Mr. President, ta suggest, as the Applicants do, that in these circum
stances the Declaration amounted ta an "interpretation" of the provi
sions of the Charter, and accordingly falls under the rubric of Article 38
(I) (a) of the Statu te of the Court, is completely untenable. Equally
untenable, Mr. President, would be any suggestion that the contents of
the Declaration reflect a general practice accepted as law which could
bring into operation the law-creating source of international custom in
terms of Article 38 (I) (b) of the Statute. Indeed, nearly 17 years have
elapsed since the adoption of the Declaration, and still no agreement has
been reached on the contents of the proposed Convention.
Finally, the whole tenor of the discussions showed that there was no
general intention to formulate a fondamental norm of mechanical non
differentiation, either absolu te or with the slight qualifications which we
postulated this morning. The delegates in the debates expressed them
selves against oppression, against tyranny and against unfair discrimina
tion, clearly exhibiting their intentions in that respect. The words
"without distinction of any kind" in Article 2of the Declaration, there
fore, tend to create a wrong impression as to what the real intentions of
the speakers were, as one finds them expressed in the debates. ln fact,
Mr. President, the Soviet Union and certain other delegations exerted
every effort to insert clauses which, they said, were designed to assure to
ethical or religions groups the use of their mother tangue, the right to
have their own schools and the right to develop their own culture, which
proposais would, if inserted, have involved differentiation on those bases,
on the basis of membership in a group. There were arguments against
those proposais at that particular stage, but those arguments in not a
single instance suggested that such forms of diflerentiation on the basis
of membership in a group were contrary to the contents and spirit of the
Declaration. Instead, Mr.President, the gist of the argument employed
against the inclusion of such ideas was expressed by Mrs. Roosevelt, the
representative of the United States, who said that-
"... it was clear from the USSR amendment ... that the aim was
to guarantee the rights of certain groups, and not the rights of
individuals, with which alone the declaration was concerned".
(P. 861 of that record.)
Mrs. Roosevelt, emphasizing the distinction, said that they were
concerned with the "rights of individuals" in this Universal Declaration;
they were not concerned with a guarantee of the "rights of certain
groups". That was what the Soviet Union proposais were concerned with.
How, Mr. President, does this stand by comparison with my learned
friend's contention, with his suggested line of delimitation between what
is permissible and what is impermissible, by saying: "you could differen
tiate in order to protect the rights of individuals but not in order to
protect the rights of groups"? Itdoes not :fiin, Mr. President.72 SOUTH WEST AFRICA
i\1r.Davies, of the United Kingdom, stated, with regard to one of these
amendments:
"Paragraph 2 of the USSR amendment to article 3, was a new
version of an article on minorities which had alreadv been discussed
and rejected by the Third Committee. It was betfer not to insert
such an article in the Declaration for the time being, since the Sub
Commission on the Prevention of Discrimination and the Protection
of Minorities was inthe process of examining the question. Moreover,
the USSR amendment was concerned only with national minorities.
There were, however, also cultural minorities. Draft resolution C
of the Third Committee showed that the Assembly, as the United
Kingdom delegation had already pointed out, was not indifferent to
the fate of minorities."
That statement was at pages 884-885 of that record.
Sa, Mr. President, the review shows very clearly that there is no basis
whatsoever for relying on the events in regard to this Universal Declara
tion, either on its contents or on its history as to how it came into being,
to support the Applicants' contention in regard to the existence of a
suggested nonn of non-differentiation in that sphere of allotment of
rights and obligation, either in its absolute form or with the suggested
qualifications we mentioned.
The question of differentiation is a question not of ideal, not of the
principles with which these bodies were concerned, it is a question of
method towards attainment of a common ideal. That is the basis upon
which the Respondent has to stand, and is standing, in this respect, and,
Mr. President, these e\'ents do not help in the least towards showing that
a binding norm to the contrary has been established.
I think that should suffi.cein regard to the human rights provisions in
Articles 55 (c) and 56.
l\Iy learned friend, still under Article 38 (r) (a) of the Statute of the
Court, sought to rely also on the provisions of Article2 (6) of the Charter.
On 19 Mny, at IX, page 346 of the verbatim record, aftcr referring to the
"normative capacities of the General Assembly"-those were my learned
friend's words-inter alia, as regards interpretation of Articles 55 (c)
and 56, my learned friend stated:
"Further evidence of the law-creating competencc of the United
Nations is dramatically evidenced by Article 2, paragraph 6, of the
Charter which I quote:
'The Organization shall ensure that States which are not
l\Iembers of the United Nations act in accordance with these
principles so far as may be necessary for the maintenance of
international peace and security.'
This provision in itself makes dear the extcnt to which the inter
national legal order has found it necessary to abandon the strict
requirements of universal sovereign consent."
Now, what is the implication there, l\Ir. President? ls it an implication
that, by makin~ this agreement amongst themselves, the Members of
the United Nations have imposed obligations on non-members of the
United Nations? If that is the suggestion, it is certainly not borne out
either by the wording of the provision, or by the Jogic of the situation,
or by the comment of eminent commentators. REJOINDER OF MR. DE VILLIERS 73
Itmay suffi.ce,Mr. President, to refer to one or two of these comments:
the honourable Member of the Court, Judge Jessup, said in A Modern
Law of Nations, at page 135:
"It is to be noted that the language employed does not suggest
that non-Member States are under obligation to comply with the
Charter, but rather indicates a warning to non-Members that, under
certain circumstances the Organization will use the combined power
of its Members to exact compliance with the Charter in the interest
of the world community as a whole. Surely the Members intend to
assert their legal right to take such measures, but to admit also that
the right flows from their assumption of the role of guardian of the
world's peace rather than from any theory of an obligation on non
Members derived from a treaty to which they are not parties. In a
sense, therefore, the United Nations assumes a legislative role; but
the frank assertion of the fact must wait on the creation of an actual
world legislature."
In a very recent work, Mr. President, cntitled The Authority of the
United Nations to Control non-M embers, by Richard A. Falk, of Princeton
University, a work published in 1965, the learned author stressed the
following arguments which militated against an extensive interpretation
of Article 2 (6)-extensive in the sense of imposing obligations outside
the scope of the contracting parties. I quote from pages 38-39:
"r. It [it refers to the extensive interpretation] tends to abolish
the distinction between Membership in so far as obligations are
concerned; this seems plainly inconsistent with other parts of the
Charter, such as Articles 4 and 25, and with the assumed consequence
of rejecting a proposa! to make membership in the United Nations
compulsory.
2. It makes the choice not to join the United Nations illusory,
and it makes a non-member potentially as fully subject to duties as
is a Member, without sharing with Members the decision-making
power of the Organization.
3. It undermines any consensual basis that the Charter possesses
by virtue of its character as an international agreement and fully
disregards the right of non-members to be immune from an obliga
tion to which they have not consented.
4. It goes beyond the plain language of Article 2 (6) by presuming
that all the obligations of Membership are necessary to ensure the
maintenance of international peace; if this was intended, why was
it not so stated?"
The learned author does not state that these arguments are, in his
view, conclusive; he does not say so explicitly, but the whole tenor of
them implies that that is his view, because he does not advance any
arguments to the contrary.
In the result, Mr. President, Article 2 (6) makes provision for action
to be taken against non-members for the maintenance of international
peace and security. It renders it constitutional for the United Nations
organs to decide upon such action. It makes it impossible for a Member
to get up in a debate and say: "what is now being proposed is outside
the scope of our Constitution, because our Constitution does not.enable
us to take action outside of·the sphere of membershîp." That is ail. It
binds M.embersagainst raising an objection of that kind. It does not apply74 SOUTH WEST AFRICA
to any possible obligation on the part of non-members at all, and certainly
not any under Artides 55 (c) and 56 of the Charter. How it could assist
the Applicants in the present case is, in my submission, completely
obscure. It certainly does not bestow any legislative function, in the
ordinary sense, either as regards Members or as regards non-members.
That brings me, Mr. President, to the end of consideration of provisions
of the Charter in the sense under consideration. What remains under
Article 38 (r) (a) of the Statute is the Applicants' reliance on certain
provisions of the International Labour Organisation Constitution.
Mr. President. we dealt with the provision relied upon by rny learned
friends, actually one in the Declaration of Philadelphia, in the Rejoinder,
V, at page 133, where we set out its wording, as follows:
"' ... ail human beings, irrespective of race, creed, or sex, have the
right to pursue both their material well-being and their spiritual
development in conditions of ... equal opportunity .. .' ".
The same question arises here as in regard to the articles we have dealt
with in the case of the Charter. Is the implication one of an absolute
mechanical abstention from differentiation, or a prohibition of unfair
discrimination? \Ve pointed out in the Rejoinder that the latter was quite
obviously the correct interpretation, and that the use of the words "equal
opportunity", as distinct from "identical opportunity", supported our
argument in that respect.
We pointed out further that there was in the Declaration itself a
provision which, in the context of the present argument, serves the same
purpose as Articles 73 and 76 of the Charter did in the context of that
argument, in that it shows positively that there was a contemplation
that, in certain circumstances, there would have to be differentiation.
That section is also quoted at V, page 133, and its import is perfcctly
clear. I need not read it again to the Court.
Yet, Mr. President, in response to this argument, what do we get from
the Applicants on 18 :May,in the verbatim record, at IX, pages 337, and
the following? We get a long tirade again to the effect that we attribute
extreme situations to them, that we present a caricature of their argu
ment, that we are practising a sleight-of-hand in substituting identical
opportunity for equal opportunity and then ridiculing the idea. That is
not what we did at al!.
If we test again on the basis of what the Applicants really say their
norm amounts to in their formal definitions of that norm, if we test it
on that absolute basis, or even if we test it with reference to the suggested
qualifications, we corne to the same answer that here this document did
clearlynot contemplate that there was to be either an absolute abstention
from differentiation, or even an abstention subject to qualifications
mentioned by the Applicants. And that is ail we are concemed with, and
that is again the full answer to what the Applicants say.
The Applicants go on, in this same record, to deal with so-called
''authoritative interpretation" of these provisions by organs of the
International Labour Organisation.
And again, Mr. President, if we go into the matter to see whether there
was such an authoritative interpretation, something which really pur
ported to interpret what was already in the Constitution as distinct from
attempts at creating something new, then we find there is nothing of
the kind in the whole history referred to by my leamed friend. REJOINDER OF MR. DE VILLIERS 75
I referred the Court before to the clause in the I.L.O. Constitution,
which makes it clear that a dispute as to the interpretation or application
of provisions would be referred to the Court for adjudication; it would
not be the fonction of the organs of the Organisation themselves.
My learned friends say, in the verbatim record of 18 May, at IX,
page 339:
"All conventions, reports, resolutions and conclusions emanating
from the International Labour Organisation or its Governing Body
must necessarily be consistent with the Constitution of the Organi
zation ... "
May I pause there for a moment, Mr. President. \.Vhyis that so? Does
one presuppose that if a board of directors of a company takes a resolu
tion, that thatmust necessarily be intra vires the Constitution? If that is
so,why does one ever have litigation on a question of ultra vires? But,
be that as it may, in the case of this Organisation this is even further from
the truth for another reason, namely because those organs are entrosted
with functions that could go beyond what is already agreed to in the
Constitution, i.e., fonctions relating to the preparation of draft conven
tions forthe future, which could then be referred back to the members
for ratification.
The statement by my leamed friend continues-with reference to the
conventions, reports, resolutions and conclusions-
"... where adopted unanimously there would hardly seem to be any
room for doubt on that score-unanimously, that is, except for
Respondent. If, then, such material discusses policy and practice
relevant to the 'equal opportunity' provision of the Constitution,
such discussion must, in turn, be consistent with the provisions."
I think there may be a mistake in the quotation. In any event, the
reference is to " 'the equal opportunity' provision in the Constitution",
and it is said that such resolutions, etc., provide an authoritative inter
pretation of this provision:
"Being consistent, the substance of the respective conventions,
reports, resolutions and conclusions of the I.L.O. must, in so far as
they relate to the principle of non-separation and non-discrimina
tion, be illustrative (illustrativet least) of the significance of the
'equal opportunity' clause of the Constitution of the I.L.O. In the
Applicants' view they are far more than illustrative, they form
authoritative interpretations of the Constitution ... " _ ___,....._.
Mr. President, I think enough has been said to show that this line of
reasoning is totally unfounded. The "equal opportunity'' clause contained
no provision in regard to the question of method involved in the sug
gestion that there is to be a mechanical abstention from differentiation.
To say that later suggested conventions, moving in that direction, could
be taken as an authoritative interpretation, binding upon the Respon
dent, despite the fact of non-participation by the Respondent, and of its
known objections to any such line of development, is just another form
of assigning legislative powers to that Organisation by a large majority
capable of binding an opposing and contesting minority.
I may, in passing, say that the Applicants rely in the verbatim of
18 May, at IX, page 338, particularly on a specific Convention,
which is there referred to as the "Convention and Recommendation SOUTH WEST AFRICA
conceming discrimination in respect of employment and occupation,
adopted by the Conference in 1958".
Mr.President, according to up-to-date information which we specially
asked for and obtained officially, we understand the situation is that out
of a total of n3 Members of the international organization, up to now
only 50 have ratified that particular Convention-a Convention which
was drafted, prepared and finalized by the Organisation itself as far as
its work was concerned, in 1958-seven years ago. Yet my learned friend
says that one must not look at what people actually agreed upon; one
must not look at the practice of States and so forth; one must regard this
process, this so-caIIed consensus, approaching unanimi ty, as in itself
norm-creative. I submit that argument also refutes itself.
Mr. President, that concludes then what I have to say by way of
application to the Applicants' specific norm of the provisions of the
Charter and of the I.L.O. Constitution-the provisions relied upon by
my learned friends for purposes of bringing, or attempting to bring,
the matter under Article 38 (r) (a) of the Statute.
In regard to the other heads of generation of rules of international law
contained in (b), (c), and (d), I need not say much at this stage. We
could, for instance, in regard to Article 38 (1) (b), have rested upon the
submissions I have already addressed to the Court, namely that the
Applicants have made it plain that they do not bring before the Court
any evidence as to actual practice of States, but that they rely purely on
what has been happening, they suggest, in these international organiza
tions. in the organs of these international organizations, and they say
that that in itself is suffi.dent as a norm-creating process under this head,
even in the face of active opposition by the Respondent.
It could suffi.cefor my purposes entirely to rest on our answers that
contention, without having regard to the application of Article 38 (1) (b)
or the principles contemplated therein, to the specific norm, with the
content as relied upon by my learned friends.
But we prefer, Mr. President, to take the matter further. We should
like to demonstrate by evidence, evidence both by witnesses and by
further material which we may be able to put before the Court in com
ments on the evidence that has been given, materials abstracted from
documentary sources available to the Court, that, in fact, there has been
no consistent practice whatsoever of the kind relied upon by the Ap
plicants, and upon which they would have to rely in order to say that
there has been the generation of a norm as contemplated in Article 38
(1) (b) of the Statute.
Before leading the evidence, we shall indicate in more detail, Mr.
President, what the evidence will be about. I shall at this stage merely
indicate very broadly what some of the aspects of that evidence will be.
It will be directed at showing how far the actual tacts in practice are
removed from a general concordant practice of a type which could form
the basis of the norm contended for by the Applicants. We shall dem
onstrate to the Court, Mr. President, that in a sense and for this pur
pose it might be said that various parts and countries of the world fall
into two categories: firstly, the category of those which have peculiar
problems arising from the co-existence of different racial, ethnie, and
national groups, co-existence in close contiguity with one another, and
in sufficiently substantial numbers to create a problem. That is the one
category of the world and its countries; another category of,the world REJOINDER OF MR. DE VILLIERS 77
and its countries is that which does not have that problem, either because
there are not suffi.dent nwnbers of a divergent population group to
create any real problem, or because, substantially, there is no plurality
at all.
One will see from the evidence I submit, Mr. President, that the
approach in these two parts of the world to questions of differentiation
and non-differentiation in fact varies very greatly, and it must neces
sarily do so when regard is had to the facts. Itmust do soin the interests
of the peoples concerned. It is quite impossible to expect uniformity of
approach and practice along the lines of a norm as suggested by the
Applicants. An attempt to do so would necessarily amount to an attempt
on the part of the world which does not have the problem, to impose its
views on the part of the world that does have the problem, just as if the
non-maritime States of the world were to say to the maritime States how
they are to solve their coastal problems.
We shall endeavour to show by this evidence, Mr. President, how
chaotic the results would be of attempting to apply such a norm in some
parts of the world, including South \Vest Africa, but not confined to
South West Africa. It will be relevant, Mr. President, to the contention
advanced by the Applicants regarding suggested standards which are
now said to have crystallized into a norm by this short-circuiting process
which I have described before.
We shall endeavour to demonstrate by evidence that if those standards
were properly putto the test, how calamitous the results would be, and
that therefore, in so far as any standards may exist in the conceptions
and theories of some people, time must necessarily show in practice that
those standards require substantial adjustments, in some respects at
least complete reversai, and that when the Courtis asked to short-circuit
the normal testing processes, it is in effect asked to endorse a legislative
process, or to indulge in a legislative process which can have the most
disastrous consequences for a very large portion of mankind.
[Public hearing of I8 June I965]
Mr. President and honourable Members, I was dealing at the con
clusion yesterday with some of the purposes, the main purposes, to which
the evidence to be called will be directed, particularly in the context of
the provisions of Article 38 (r) (b) of the Statute and the attempt of the
Applicants to bring their case under that heading.
To what I said yesterday I might add this aspect, that not only in the
evidence, but also, and in particular, in further material to be put before
the Court after the conclusion of the oral evidence, we shall attempt to
analyse somewhat the processes of the international bodies relied upon
by my learned friends as being the processes which have generated a
norm of customary international law, in order to demonstrate, Mr.
President, that when regard is had to the necessary elements for the
generation of such a norm they certainly do not exist in respect of the
proceedings of those bodies.
That I think ought to suffi.ceat this stage, with respect, in regard to
our case as t will be further presen ted with reference to Article 38 (I) (b) .
In regard to Article 38 (r) (c) we have already shown in principle,
Mr. President, and with submission, that that head could not assist the
Applicants with a view to the creation of an obligation of the kind. They SOUTH WEST AFRICA
could not rcly on it as binding the Respondent without its consent and
despite its opposition.
Nevertheless, the evidence of the tenor which I have indicated will
also further demonstrate, in our submission, that there is in fact no
generally recognized principle which accords with the Applicants' norm.
That brings me to Article 38 (1) (d). Now the mere fact that my
learned friends could cite no authority at a11in support of their suggested
norm, that Mr. President, is, in itself, in my submission, a si~nificant
feature. Surely, if they could contend even plausibly that there 1ssuch a
norm which has just corne info existence, or which must be regarded as
being in existence, then there must have been commentators on these
processes in international law, particularly those who have interested
themselves in the sphere of human rights and analogous subjects. There
must have been at least one to comment to the effect that such a norm
must now be regarded as having corne into existence; but they have not
been able to find one.
On the contrary, we have found an authority stating very definitely
that in his opinion no such norm has corne into existence. Of course, he
does not direct himself to the question in those terms, because nobody
had suggested to him that such a norm had corne into existence, but what
he says aboutit makes it very clear that in his opinion therc could be no
substance whatever in a contention to the effect that such a norm exists.
The authority is Professor Wilhelm Wengler, a German authority in
international law, and I refer to his work Volkerrecht 1964, Volume II,
pages l028-rn29.
There is, in the 1961 (III) Volume of Recueil des Cours, at page 275, a
brief bibliographical note of Professor Wengler, which indicates that he
was then Professor of International and Comparative Law at the Free
University of West Berlin. The bibliographical note indicates that he is
a man of standing in his subject, it gives his previous history, which
appears to be an impressive one.
I quote then from this work at the pages indicated:
"The vagueness of the contents of many of the human rights
formulated in the U.N. Declaration is particularly apparent in the
Right of Equal Treatment by the State. It cannot be accepted that
the question concerning the extent of the prohibition of discrimina
tory treatment on the basis of sex, which is the subject of heated
dispute in the constitutional law of many States, has to be answered
uniformly in aH countries since, and because, the human rights
protected by International Law include the right of equal treatment
of the sexes. But even the differential treatment of the inhabitants
of a State in accordance with their origin, their standard of educa
tion, and even their race, etc., is clearly notas stringently forbidden
by the principles of International Law in respect of human rights
as in the case where the relevant precepts are entrenched in the
constitutions of individual States or are embodied in special treaties.
\Vhat is prohibited in terms of the legal views currcntly held by
most States, is the deliberatc placing in a worse position, or the
deliberate retardation of the development of certain population
groups because of race, religion or language, or because of their
ethnically determined desire to form a community of their own. On
the other hand, it can obviously not unconditionally be regarded
as a violation of the human rights recognized in general International REJOINDER OF MR. DE VILLIERS 79
Law if a State does differentiate between persons who are regarded
as its citizens for the purpose of International Law, by granting
certain groups lesser political rights than others, or when it does not
permit the inhabitants of different parts of its country to participate
equally in the government of the whole State."
Then the author says that that. in his view, could not unconditionally
be regarded as a violation of the human rights recognized in general
international law. He proceeds:
"Nor does the human right of equal treatment place States under
an obligation to apply the same civil and criminal law in respect of
ail its citizens recognized as such in terms of International Law.
They are, in fact, under no obligation to apply the principles of their
own jurisdiction to all population groups."
Then, in a footnote, at page rn28, the author states:
"Conversely, the question may be put whether members of popu
lation groups who differ in respect of language, religion or socio
historic affinity from other groups in the State, can daim a human
right of protection of their group identity, in particular by the grant
of special legal rights to them."
The author proceeds;
"The displacement of the protection of particular minority rights
by the legal recognition of universal human rights, could be used as
an argument tending in this direction. The question must probably
be solved in conjunction with the right of self-determination. If a
population group, whose feeling of affinity appears to entitle it to
self-determination as a potentially independent people of an inde
pendent State is denied the creation of such a State because expe
diency dicta testhat in the interests of all the inhabitants a particular
territory should, notwithstanding the diversity of its inha,bitants,
remain one single State, then the group consciousness of those who
are denied the opportunity of creating an independent State must
be taken into consideration in the legislation of the greater whole.
On the other hand, as regards for instance the members of religions
groups, who do not want to constitute a potentially independent
population, there does indeed exist a human right to the free exercise
of religion, but no human right to a position which is privileged by
comparison with that of the rest of the population."
I have read, Mr. President, our own translation from the German. I
emphasize that this was a work which appeared in 1964, last year, and
it refutes entirelyin these various ways the suggestion of the existence
of a norm as relied upon by the Applicants.
Itremains for me, Mr. President, only to refer to certain invitations
extended to this Court by the Applicants to act in what I could perhaps
conservatively describe as a rather peculiar and unconventional way for
a court of law.
I have referred, Mr. President, to formulations by the Applicants in
regard toapproval being sought for nove! law-creating processes attrib
uted to organs of the international political bodies. But the Applicants,
as I understand them, go further than that. They also ask this Court to
perform a novel and completely unconventional task.80 SOUTH WEST AFRICA
ln the verbatim record of 18 l\fay, at IX, pages 328-329, they place
special emphasis on the fact that this Courtis the principal judicial organ
of the United Nations, or of the Charter, as they put it.
Then on 19 May in the relative verbatim, at IX, pages 353-354, there
is a significant passage which I should like to read to the Court. There
my learned friend urges upon the Court an approach which-
"... would view the interpretation of the sub-divisions of Article 38
in the light of the needs of the developing international legal order,
giving to Article 38 a dynamic content, and thereby giving full scope
to the fact that the Statute of the Court is an integral part of the
Charter of the United Nations and is itself capable of, and entitled
to, the same flexible principles of interpretation as have been applied
to the remaining provisions of the Charter itself. This of course
applies with even greater force to the mandate instrument, an
international regime. The Statute of the Court, as an integral portion
of the Charter, underscores the point that this Court itself is formally
constituted as an institutional component of the organized inter
national community, thereby making it highly appropriate to give
effect to the law-creating processes active in other segments of this
same international community, ofwhich the Courtis the high judicial
tribunal.''
Mr. President, this must mean and can mean only one of two things:
either the Court is asked to fulfil its function of applying the law, or it
means more than that. If the Courtis merely asked to fulfil its function
of applying the Iaw, why is all the verbiage necessary? What does it all
mean? Why is there all this reliance upon the Court being an integral part
of this structure of organized international society, and, as such, required
to give effect by dynamic and flexible means to the concepts which are
now being urged upon the Court? There is, Mr. President, urged upon
the Court what might in effect be called an invitation to decide this case
not on justice in accordance with law, but on what might be termed, for
these purposes, revolutionary justice. There is urged upon the Court the
same dynarnic approach and flexible principles of interpretation in
accordance with which so many States which are diagnosing the present
position of the United Nations, have contributed to such a vital extent to
present difficulties.
They are in effect assigning to this Court a most unworthy role in this
whole process, viz., that of a revolutionary tribunal to aid and abet,
and to rubber-stamp, the usurpation, by the political majorities in
international organs, of legislative powers which have not been granted
to them in the constitutive instruments or with the consent of the States
which have created them. That is in effect what they are asking this
Court to do, and the role they are asking this Court to fulfi.L
That stands, Mr. President, in marked contrast to the attitude taken
by my learned friend on behalf of the Applicants in the 1962 Oral
Proceedings. At the opening of his address then be struck a note which
he considered so appealing at that stage, that he found it desirable to
repeat it again at the conclusion of his oral rejoinder in those proceedings.
We find it referred to at VII, page 261 of the Oral Proceedings on the
1962 Preliminary Objections. It is the second sentence on that page of
the record, as I say, at the opening stage, and then at the concluding
stage, at page 368, of that record. I should like to refer to the latter REJOINDER OF MR. DE VILLIERS 81
passage, at page 368, because it gives the effect. My learned friend, Mr.
Gross, there stated:
"Mr. President and Members of the Court, may I conclude in
thanking the Court for its attention, with a staternent with which
Iopened rny comrnents:
'lt is possible to achieve the Rule of Law only because this
Court sits.' "
Mr. President, that again demonstrates the change which bas corne
over this case. Apparently the rule of Iaw is now no longer good enough.
My learned friend could hardly have indicated in a more significant way
his realization that he is asking this Court for sornething to which he is
not entitledin law. In our submission, Mr. President, only time can bring
a solution to the political aspects of this dispute which has found itself
in the proceedings before this Court. It is with respect to finding a political
solution that dynamics and flexibility can and will undoubtedly play
their part if allowed to take their course.
The evidence which we intend to produce and lcad to the Court will
undoubtedly reveal to the Court the enormous fund of goodwill still
existing throughout Africa arnongst all her peoples, arnongst Black,
White and Brown, across colour and ethnie lines, a fund of goodwill
waiting to be tapped in circumstances in which one people does not feel
itself threatened by another. ·
My learned friend speaks of qualitative versus quantitative aspects of
development, contrasting those features with one another. J-le speaks of
moral versus material progress. Mr. President, does he really think that
South Africa's policies are concerned only with quantitative and material
results? Could he really seriously think that? Could tens and hundreds
and hundreds of thousands, and even millions, of Native children be
educated on the basis of having true respect for what is good in their own
culture, and could it then be said that that has produced nothing good
for their souls ?
Mr. President, does the concept of development of an own homeland
have no moral or qualitative aspects? And when the White man assists
in this development. and he sees that the Black man is rising to a position
not of domination but of equality, of friendship and co-operation, can
that leave tlle soul of the \Vh.ite man unstirred in these circumstances?
Surely, Mr. President, these are the ingredients which are required to
work, which are to be left to do their work, towards finding a positive
solution in which the past and present mistakes can be rectified, and
sore points can be eliminated or eradicatcd. Surely that is where dyna
mics and flexibility are to play their part, but then at history's own pace.
My learned friend, by asking this Court to be dynamic and flexible
in the sense for which he contends, is really asking this Court to arrest the
developing course of history in this respect, He is asking the Court to
introduce into the situation an element of rigidity, and thus a removal of
the elasticity which exists. He is asking the Court to introduce that
element which is so strongly resisted by the mandatory power, by the
administrating authority, and which would undoubtedly be as strenu
ously resisted and resented by the peoples themselves. And therefore,
11-Ir.President,the following of this course by the Court would have a very
good chance, to put it at its Iowest, of spelling disastrous revolution rather
than constructive evolution.82 SOUTH WEST AFRICA
My concern has been to show that there is no merit whatsoever in this
suggested substantive legal ground for achieving the result contended
for by my learned friend; and also, Mr. President, that there is an
equally complete lack of merit in the suggestion that this Court should
assume the revolutionary non-judicial role urged upon it, rather than, as
its Statute provides, decide, in accordance with international law, such
disputes as may be referred toit by the parties.
I thank the Court. That brings me to the conclusion of the rejoinder
on the legal argument and it brings me to the next stage of the pro~
ceedings which is the presentation of our case on the facts, with reference
to the evidence to be lead.
I shall present to the Court a brief opening statement in regard to that
evidence and my learned friend, Mr. Muller, will then present the first
witness to the Court. This opening statement in regard to the evidence
can now be much shorter than we visualized at first. \Vhen we were
thinking of a different type of dispute to be canvassed in the evidence,
we contemplated dealing fairly extensively with the facts which are
already on record in the pleadings with a view to analysing the issues,
and how they have developed up to this present stage, and of thus
indicating what precise points there are in the various aspects of the
matter to which we desire to direct evidence, and what the significance
of the evidence would be in relation to those particular points.
But, now, Mr. President, that situation has largely changed. The facts,
as relied upon by the Respondent in its pleadings, are largely admitted
by the Applicants. The dispute about Article 2, paragraph 2, of the
Mandate is different, and the purpose for which the evidence is to be
adduced is very substantially different from what it was before.
I have already indicated in my legal argument-the rejoinder on the
law-what the broad purposes will be of the evidence to be led and this
explanatory introductory statement will therefore be relatively brief.
First, it may be useful to take note of the fact that certain of the
Applicants' Submissions have now been entirely disposed of-the case in
respect of Submissions Nos. r, 2,7 and 8. Nos. 1and 2, of course, concern
the continued existence of the Mandate and the alleged supervisory
functions and powers of the United Nations, and Nos. 7 and 8 are con
sequential on No. 2.It has always been corrunon cause that Respondent
refused, in fact, to render reports and to transmit petitions to the
United Nations and the only issue with respect to Submissions 7 and 8
and the relevant part of Submission 2 has, therefore, concerned the
question of a legal obligation or otherwise to submit reports and transmit
petitions. That issue, together with the question pertaining to the lapse
br otherwise of the Mandate, has been disposed of in the legal argument.
Of course, Mr. President, the Applicants, in their attempt to establish
charges formulated in their other submissions, still attach great signif
icance to the alleged failure on Respondent's part to comply with the
alleged duty of accountability, and it may therefore be necessary for us
in dealing with the other submissions to make some further reference to
this aspect of the matter, but only in the way in which the Applicants
have sought to apply to these other submissions a contention on ac
countability taken from its case on Article 6. That would be in the cases
concerning militarization-Submission No. 6--concerning unilateral in
corporation-the Applicants' Submission No. 5-and in some aspects also
concerning Article 2,paragraph 2,itself-their Submissions Nos. 3 and 4. REJOINDER OF MR. DE VILLIERS
Our further conduct of tlùs case is, therefore, direéted at meeting the
charges involved in Submissions Nos. 3, 4, 5, 6 and 9.
Now, first, in regard to Submissions 3 and 4, we have already demon
strated that these submissions, as now formulated, constitute in effect
one submission only and can, for all purposes in the further proceedings
in this case, be treated as one. We have also demonstrated that the
Applicants' whole case on tlùs subject now rests on the single proposition
that there is in existence the alleged norm and/or standards which pro
hibit the Respondent from distinguislùng as to race, colour, national or
tribal origin, in establishing the rights and duties of the inhabitants of
the Territory.
We of coiuse admit, Mr. President, that Respondent's policies and
practices in South West Africa do distinguish as ta racial or ethnie origin
in establislùng the rights and duties of the inhabitants, and, therefore, if
a legal normand/or standards, as contended for by the Applicants, were
in existence and were binding upon the Respondent under the Mandate,
then it would follow that Respondent's policies would be in conflict with
such a norm and/or standards.
Consequently, the only matter on wlùch questions of fact now arise
regarding Submissions 3 and 4 is the alleged existence of the norm and/or
standards and their alleged applicability to South West Africa.
I have already indicated broadly the abject of the oral testimony
which will be directed to this question. It is, if I may put it briefly again,
to demonstrate that there is no international custom evidencing a general
practice by which a norm and/or standards, as contended for by the
Applicants, are accepted as law, and that there is no support for the
existence of such a norm in the principles of law recognized by civilized
nations. ln other words, it is directed in that sense, at paragraphs (b)
and (c) of Article 38 (r) of the Statute of the Court, that is, the Ap
plicants' case sought ta be made under those heads.
In particular, Mr. President, I can indicate very briefly that we want
ta show, firstly, that there is no evidence of a general practice accepted
as law, in accordance with the norm and standards contended for, but
that, in truth, there is a very substantial amount of practice to the
contrary.
Secondly, we should like to explain by this evidence the underlying
considerations which in certain circumstances render it desirable to
apply policies and practices which differentiate between persans on the
basis of membership in a group, race and so forth, and to demonstrate,
Mr. President, that the application in such circumstances of a norm or
standards as contended for by the Applicants, would not only militate
against peace, order and good government, and thus also against the
whole concept of promotion of well-being and progress to the utmost, but
also, in effect, strike at the very concepts which underly the principles of
law recognized by civilized nations, namely the concepts of reason,
equity, justice, and so forth. In other words, we want to show that the
standards, in so far as there may be any standards existing in the world
today suggesting the application of such a norm, have not been tested in
practice and we want ta show that if they should be tested in practice
then the need for revision and reversai would become manifest in respect
of particular parts of the world.
Tlùs, Mr. President, would, in our submission, therefore, assist ta
demonstrate how impossible it is, in fact and in law, to regard activities SOUTH WEST AFRICA
in international bodies, as relied upon by the Applicants, as an adeguate
substitute either for convention or for actual practice in the generation
of international legal obligations, or as enunciative of general principles
of law recognized by civilized nations.
Thirdly, Mr. President, by the means which I have already indicated
plus other evidence and demonstration from available records, we want
to show in what light the activities in the international bodies, as relied
upon by the Applicants, are really to be seen. We want to show what
influences and motivations were really at work. The evidence will tend
to show that these bodies were not concerned with usages and practices
which are, in fact, operative in different countries ofhe world and which
are regarded as being binding. The evidence will show that, in criticizing
and expressing condemnation of Respondent's policies and practices,
these bodies did so without due regard to the particular circumstances
and to the considerations underlying those policies and practices. More
over, we shall show that the organs and the agencies of the United
Nations concerned in passing the judgments do not appear to have
applied a norm of the nature suggested by the Applicants but, on the
contrary, rather appear to have condemned Respondent's policies on an
entirely different basis, namely as being tainted with improper motives,
or as being oppressive of certain groups-findings which were largely
based on incorrect or distorted facts or assumptions or on deliberate
misrepresentation. This will show, in our submission, that the so-called
collective judgment or collective will in these bodies cannot reliably serve
as standards against which Respondent's policies and practices should
be measured, let alone as a norm binding upon the Respondent.
Mr. President, then, as regards the actual evidence and the witnesses
concerned, inasmuch as the nature and the purpose of the contemplated
evidence has changed in the way I have indicated. the position of pro
posed evidence of individual witnesses has also been affected. The list of
witnesses which was originally filed with the Court in terms of the rules,
was compiled on the basis of the issues raiscd in the pleadings, as we
understood them, and the contemplated evidence would therefore have
been directed specifically at showing that the Respondent's policies
could, and should, be regarded as being designed in good faith to promote
to the utmost the well-being and progress of ail the inhabitants. This has
now become unnecessary and, in so far as the witnesses may still refer to
Respondent's policies, it will now no longer be for the purpose of showing
the Respondent's good faith, of showing that the policies are so designed
to promote, and are having the effect of promoting, to the utmost well
being and progress and that a reasonable mandatory government could
decide upon those policies as being the best suited to the circumstances.
That approach has become unnecessary and, as I have said, in so far as
the witnesses may still refer to the policies, it will not be for that purpose.
Itwill now only be for the purpose and in the context of illustrating and
demonstrating the untenability of the norm and the standards relied
upon, to demonstrate, for example, the need for differentiation in partic
ular circumstances such as exist in South Africa and in South West
Africa and also in other parts, to demonstrate the positive values of
differentiation in such circumstances, and to demonstrate the compen
sations which these positive values have for adverse aspects that might
exist in regard to differentiation. And the accent will particularly be on
the conseguences of doing away with differentiation under such circum~ REJOINDER OF MR. DE VILLIERS 85
stances. The impossibility of applying qualifications of the kind I
postulated yesterday which arose in the discussion of the minorities
treaties,ill also receive consideration, Mr. President.
A certain number of the witnesses originally contemplated will, in
these circumstances, now fall away because of the altered situation. In the
case of other witnesses, some of them will omit evidence which was
originally contemplated for them and they will adapt their presentations
along the lines which I have already indicated. And also it has been
necessary to add new witnesses to cope with particular aspects of tlùs
altered situation.
We shall indicate as we go along, Mr. President, which of the witnesses
will, in these circumstances, now no longer be required. The names of
most of the new witnesses contemplated have already been submitted
to the Court in supplementary lists.
In view of the fact that these alterations came in the Applicants' case
so late, and the need on our part to adapt ourselves very quickly and
within a relatively short time to those alterations, I am unfortunately
not in a position, Mr. President. to indicate definitely now that those
listsare finally and necessarily complete. In fact, we are still in contact
with a few potential witnesses whose names have not been submitted in
lists, and it may be that we may have tçipray the indulgence of the
Court to add their names in due course; but I can assure the Court that
we shall exert every effort to be as expeditious as possible, to notify any
intention of this kind as timeously as possible, and in doing that, to
obviate inconvenience for the Court as far as possible.
I can also give the Court the assurance that as we contemplate the
situation at the moment, as we see it, the number of such witnesses could
not be large, maybe two or three, maybe four or five; I could not see
anything substantially in excess of that as at present advised, but the
probabilities are that it would be less than the limit I have indicated.
That matter will, however, have to be dealt with if and when it arises.
Now, Mr. President, the Court will recall that in earlier discussions
there was a contemplation of indicating a broad classification of wit
nesses, that is, witnesses falling into particular categories dealing with
particular subjects. Before I deal with that, may I first indicate that ail
the witnesses can, broadly speaking, be classified as experts, in the sense
that by reason of academic qualifications or special study, and/or years
of practical experience in particular fields, they are competent to express
opinions on certain aspects relevant to the issues before the Court.
It is not intended, Mr. President, that the witnesses should establish
facts which are dealt with in the Respondent's pleadings. Such facts, as
the Applicants have intimated to the Court, are not disputed by them.
The witnesses may, in the course of their testimony and probably will,
refer to facts which are already on record, but they will do so only as a
basis for expressing their opinions or for the purposes of illustration, or
the like. In so far as they may in the course of their evidence testify to
facts which are not already on record, they should be regarded also as
witnesses of fact.
Therefore, Mr. President, we contemplate and suggest, with respect,
that each of the witnesses be regarded as coming within the dual capacity
of witness and expert, and that therefore both the declarations prescribed
at Article 53, paragraphs 2 and 3, of the Rules of Court, ought to be
taken by them.86 SOUTH WEST AFRICA
Therefore, in so far as we speak of witnesses in this context, we intend
to refer to them in,their dual capacity as witnesses and experts, and not
only as witnesses in the distinctive sense intended in the Article.
Now, with regard to the question of a scheme of presentation of the
evidence, Mr. President, here also our earlier ideas have been affected
by the change which has corne about. \Ve thought formerly that we
could have the witnesses in particular categories; that is, general aspects
of Respondent's policies, and particular appliecl aspects thereof in the
spheres of political life, economic life, education, and so forth.
Now, that again has largely been affected, as I say, by the altered
circumstances and the altered nature of the issues. We propose, there
fore, to make only one broad classification, and that is to <livide the
witnesses into the two groups of those whose testimony will be of a
general nature, and those whose testimony will relate to a particular,
more specific field such as, for instance, education, influx control, or
something of that kind, which will be dealt with for illustrative purposes
and the other purposes I have already indicated.
We shall present the witnesses on the general aspects first. Broadly,
that will be the scheme; but for reasons which will be obvious to the
Court, it will not be possible to adhere strictly and absolutely in every
case to this division.
I can mention some of those reasons: in the first place, there are a few
witnesses whose testimony will fall in both of these compartments; in
other words, they will present testimony of a general nature, but also
concerning particular subjects. Secondly, Mr. President, the witnesses
corne from all over the world-we have to make practical arrangements
with respect to their availability at particular times, arrangements also
about travelling and accommodation, and although these are planned
in advance, they are sometimes upset by unforeseen circumstances and
we may have to adapt ourselves to that. Then, in the third place there is
also a complication which arises from the fact that there will have to be
special interpretation in the case of witnesses who do not speak either
French or English, and the sequence in which such witnesses are to be
called has therefore also been affected-it will have to depend on the
arrangements that have been made, or will be made to have interpreters
available for those witnesses. That is a practical arrangement to which
attention has been given, but it can also to some extent affect the order
of presentation.
We shall, however, Mr. President, adhere as far as we practicably can
to this order of presentation, and in so far as it may become necessary
for us to depart from the scheme in relation to a particular witness, we
shall in advance inform the Court accordingly.
Then, Mr. President, there is one further matter to which reference
may be made at this stage, and that is the suggestion earlier made by my
Iearned friend on behalf of the Applicants-the possibility of adding
testimony by way of written depositions rather than oral testimony. We
have again given consideration to this suggestion, but for the reasons
which we indicated before, it seems to us that we cannot agree to that
proposal as a general course; but we are still giving consideration to the
possibility of availing ourselves of such a procedure in perhaps a few
particular cases, and if we decide accordingly, we shall raise the matter
in Court after discussion with the representatives for the Applicants.
Now, up to this point I have dealt with the matter of evidence only REJOINDER OF MR. DE VILLIERS
with regard to the issue now before the Court in respect of the Applicants'
Submissions 3 and 4. In regard to their Submission No. 5, concerning
alleged unilateral incorporation, the Applicants have hardly addrcssed
any oral argument to this Court, as the Court will recall, and in view
thereof and of the fact that the Applicants do not dispute the statements
of fact contained in our pleadings, we do not intend to adduce any oral
testimony in regard to these issues raised undcr the Applicants' Sub
mission No. 5.
I have virtually fmished this, Mr. President. If you could give me, say,
two or three minutes more I could finish it before the adjournment.
With regard to Submission No. 6, that is, militarization, the Appli
cants, although accepting for purposes of these proceedings the statement
of fact contained in our pleadings, persist in their charge that Respondent
has established military bases in South West Africa, but here also they
advance only very brief argument to the Court in these Oral Proceedings.
\Ve propose to adduce expert testimony of only one witness in support
of our denial of the Applicants' charge regarding militarization of the
Territory. The evidence will be very short, and it will consist of the
expression of expert opinion on the question whcther any installations in
South West Africa are of the nature of military bases. Itwill be given by
an expert witness who is in any case called to testify in regard to matters
which arise under the Applicants' Submissions 3 and 4-
The Applicants' final Submission No. g, which concerns modification
of the terms of the Mandate, rests entirely of course on charges made by
them regarding their other Submissions 3, 4, 5 and 6, and therefore no
separate testimony will be adduced by us conccrning issues raised under
Submission g. But the evidence led in regard to 3, 4and 6 will of course
then indirectly serve also as an answer to the Applicants' Submission
No. g.
Then, Mr. President, after the oral testimony has concluded we shall,
in accordance with the directive of the Court, present our address to the
Court with regard to the issues raised under the Applicants' Submissions
3, 4, 5, 6and 9, and as I have said before, we may then supplement the
record, in so far as it may be necessary, with a reference to documentary
sources which are in any event available to the Court.88
22. HEARING OF THE WITNESSES AND EXPERTS
AT THE PUBLIC HEARINGS OF 18-23 JUNE 1965
Mr. MULLER::Mr. President, as indicated to the Court yesterday, by
my learned friend, Mr. de Villiers, the first witness for the Respondent
will be Dr. Eiselen. His evidence is relevant to the issues raised under
Applicants' Submissions Nos. 3 and 4, that is, whether a legal norm of
non-discrimination or non-separation and/or standards of that nature,
do exist,and apply to South West Africa. The points to which his evi
dence will be directed will be the following: the particular circumstances
and considerations which influence governmental policies and practices
in territories such as South Africa and South West Africa, which are
inhabited by different population groups, the objects of the policy of
separate development and whether, in the interests of the inhabitants, it
would be reasonable, just and equitable to require that a norm and/or
standards of the nature suggested by the Applicants, should be applied
in South West Africa.
Further, Mr. President, in particular, the witness will deal with the
subject of education.
May I, Mr. President, call the witness and ask that he be allowed to
make both the declarations prescribed in Article 53 of the Rules, that is,
sub-paragraphs 2 and 3.
The PRESIDENT:I will be glad if Dr. Eiselen will corne forward and
make the solemn declaration of witness and expert, as provided for in
the Rules of Court.
Mr. ErsELEN: Mr. President, and honourable Members of the Court,
in my capacity as a witness, I solemnly declare on my honour and
conscience that I will speak the truth, the whole truth and nothing but
the truth. In my capacity as an expert, I solemnly declare upon my
honour and conscience that my statement will be in accordance with my
sincere belief.
The PRESIDENT:Mr. Muller-you may keep your seat if you prefer.
Mr. MULLER:I shall later. Thank you Mr. President. Dr. Eiselen, your
full names are Werner Willi Max Eiselen. Is that correct?
Mr. ErsELEN: That is correct, Mr. President.
Mr. MULLER;I shall state your academic qualifications and ask you
to say whether I have correctly stated them. You hold a Bachelor of
Arts degree of the Pretoria University. Is that not so?
Mr. EISELEN:That is correct.
Mr. MULLER:Master of Arts degree of the Stellenbosch University?
Mr. EisELEN: Correct.
Mr. MULLER;And a Doctor of Philosophy of the University of Ham-
burg.
Mr. EISELEN:Correct.
Mr. MULLER:What was your special field of study, Dr. Eiselen?
Mr. EisELEN: My special field of study, Mr. President, was African life
and languages, linguistics and social anthropology as well as physical
anthropology.
Mr. MULLER:What office do you hold at present? WITNESSES ANDEXPERTS 89
l\ir. EISELEN:At present, I hold the office of Commissioner-General for
the Northern Sotho ethnie unit in the Republic of South Africa.
Mr. MULLER:\.Vhat are the fonctions of a Commissioner-General of
one of the ethnie groups in South Africa-very briefly stated?
Mr. ErsELDT: Mr. President, the fonction of the Commissioner
General is, inthat area, to be the representative of the Government that
has to receive from territorial authorities existing for that ethnie unit
such submissions as they wish to bring to the notice of the Government
of the Republic-he has to convey those to the Governmcnt of the
Republic of South Africa. Beyond that, it is expected of a Commissioner
General that he sees to the fostering of good relations between the
Government of the Republic and the emergent government of the ethnie
unit, and in that capacity he has to meet various deputations from these
people, see, and try to understand the difficulties that are placed before
him, and to act as their adviser in all the fields of the contemplated
developmen t.
Mr. MULLER:Am I right, Dr. Eiselen, in stating that you have a
particular and intima te knowledge of the Ban tu peoples of South Africa?
Mr. EISELEN:Mr. President, in reply to that question I would say that
I have spent really the whole of my life in the service of the Bantu
people of the Republic of South Africa, Ihave endeavoured to obtain an
intimate knowledge of the circumstances of the people there, and my
life's work has been devoted to helping the people, the Bantu people of
South Africa, in their efforts to attain a higher standard of civilization.
I do not know whether I should at this stage give you a full résuméof
the various contacts which I have had with the Bantu people; they begin
with my early youth as I was born as a son of a missionary and, as a
matter of fact, on my mother's side as a grandson of a missionary, and
I grew up among the Bantu people, speaking the language of that
particular section, as whose Commissioner-General I have been appointed
by the Govemment, speaking their language from early youth. I have,
in taking an interest in the work of my father, of course learnt to deal
with both sections of the Bantu community-both the Christian section
of the community and the heathen community-so that I should be in
a position to know something about the people, their particular circum
stances, their ambitions, their desires, and such development as they
have been successful in making during my lifetime.
Mr. MULLER:Dr. Eiselen, you have already explained to the Court
what your particular field of study was as a student. Now, after obtaining
your doctorate, what appointments did you hold in South Africa?
Mr. ErsELEN: Mr. President, after coming back to the then Union of
South Africa, I was appointed to a post in the University of Stellenbosch
after a short time as a teacher in various high-schools; I was appointed
to this post in Stellenbosch with a special task of building up there a
department of African life and studies. You would perhaps know, Mr.
President, that it was pretty late in the day before we started paying a
great deal of attention to the circumstances of our Bantu people from
the scientific point of view. That is to say, in our universities at that time,
there existed no chairs for that particular study, for anthropology, or
for African languages; just before the chair in Stellenbosch was estab
lished, there was one in Cape Town a little earlier,t those were the fi.rst
two that came into being in this country for the purpose of doing research
work into and doing tuition work on the question of the way of life, the90 SOUTH WEST AFRICA
problems, and so forth, of the Bantu people, of Africain general, and of
those of the Republic, then Union, in particular.
Mr. MULLER:What position did you eventually hold at the University?
Mr. E1SELEN: I started as a lecturer, working in bath directions, in the
field of teaching Bantu languages and doing social anthropology. As the
department grew I was able to withdraw from the linguistic side and to
concentrate on the line of social anthropology, and in due course I
became Professor in that subject, and held that chair from 1933 to 1936.
Mr. MULLER:What position did you hold after 1936?
Mr. ElsELEN: Mr. President, after I had been at the University of
Ste11enbosch for almost ten years, doing work in the academic field, I
feltvery strongly that I might be of more use to my country if I gave
my attention to some more practical work; it was just at that time that
various people who had given this matter consideration, various educa
tionalists, propagated very strongly their idea that the education of the
Bantu people was not receiving as much attention as it should receive,
because it was always being dealt with by the same persans who were
attending to the education of the white people, and being white people
themselves, they sometimes tended perhaps to pay less attention to the
second part of their task, and it was, therefore, contended that it was in
the interests of the Bantu people that education should be handled by
people who would have no other task, but whose task would be entirely
that of trying to put the education of the Bantu people on a sound
footing and to take all the necessary steps for its development. At
the invitation of these people, I undertook to take upon myself the
post of organizing and directing this effort in the Province of the
Transvaal.
i'lfr. MULLER:Dr. Eiselen, just before the adjoumment you were
explaining to the Court there were certain reasons why you left the
University of Stellenbosch to take up another appointment. Do you wish
to add to the reasons given, or will you just tell the Court what appoint
ment did you assume?
Mr. EISELEN: Mr. President, the appointment that I assumed was
then known as that of the Chief lnspector of Native Education. The real
reason why these posts were established was that advisers of the Govem
ment in this respect, among whom Dr. Loram ranked highly together
with many educational experts, were of opinion that what we required
in the Republic for the Bantu population, as elsewhere in the world for
the younger nations, were people grounded in the particular circum
stances, the way of life and the language of these people to take charge
of education. and, as I said, I did so at the special invitation of Dr. Loram
whose name may perhaps be known, because he was afterwards called
to a Chair of International Race Relationships in one of the foremost
U.S.A. universities.
Mr. MULLER:ln your capacity as Chief Inspector of Native Education
in the Transvaal, did you corne into close contact with the Native
peoples, the Bantu people, of the Transvaal?
Mr. E1sELEN: Yes, Mr. President, I came into very close contact,
especially with those who had already received education-that is to
say, the teaching personnel of the various schools, but I also came into
contact with a great number of church people who were at that time
conducting the schooJs as managers, and perhaps more important than
that, I was able to corne into contact with many of the people whom we WITNESSES AND EXPERTS
91
were trying to persuade to make the necessary arrangements for the
schooling of their children, namely the chiefs and the tribal aristocracy,
so that I think that during that period of my life I made contact with
various, all the more important, categories of the Bantu populationin
that area of South Africa.
Mr. MULLER: For how long did you hold the appointment of Chief
Inspector of Native Education?
Mr. ErSELEN: I held that appointment for II years, from 1936 to
1947, and perhaps I should explain why I turned away from Bantu
education. That was owing to some sense of frustration. You will notice,
Mr. President, that the date was 1947, and that was shortly after the
Second \Vorld War had corne toits conclusion and there were a number of
new ideas in regard to the further development of the coming young
nations of the world. With these ideas, I may say here, I was in complete
sympathy, but I felt that in South Africa they were being applied in the
wrong way, and that we did not get the opportunity-I, in my particular
office-of building on those foundations which had been laid, but that
there was a tendency to break away from that firm foundation basing
your educational efforts on the needs, on the circumstances, on the
talents, on the gifts of the people, and turning from that evolutionary
process into a rather revolutionary process of making the education serve
not the needs of the people so much, but serve the education trends and
the needs, of an ideology, namely the ideology of integrating the Bantu
people as soon as possible-of making them accept the values of a
culture, of a people, not their own-a way of life not their own-without
allowing them the necessary time or the free choice whether they wanted
to do so; and it was for that reason that I handed in my resignation and
returned to the University, in this case the University of Pretoria,
where I occupied the Chair for Social Anthropology.
Mr. MULLER: How long were you at the University of Pretoria?
Mr. ErSELEN: I was at the University of Pretoria only for two years.
As I was no longer in direct government service at the university I had
ample opportunity of expressing my views, writing articles on the
situation, writing articles on the development of the Ban tu people, on the
whole question of the policy as between the various sections of the
population in South Africa. I made full use of those two years and at the
end of those two years I was called away from that post and asked by
the Government-there had been a change of Government at that time
to undertake the task of Native affairs. I was made Secretary, that is to
say, Head of the Permanent Department of Native Affairs in the then
Union.
Mr. l\ULLER: How long did you hold tha t position?
Mr. ErsELDI: I held that position for II years, until I retired on
reaching the age limit.
Mr. .MULLER: ln what year?
1\frEISELEN: That was in 1960. In 1960 I rctired and that was after I
had been able to extend the knowledge which I had in particular of the
northern part of the then Union of South Africa to various other parts,
to all the varts of the Union. In the course of my visits to the various
officesof my Department and visits to the various population groups in
the Bantu areas of the Union, I could build up closer contact in practice
with those other portions of the population whom I had not known so
well, not from youth upwards. And I also had the opportunity then of92 SOUTH WEST AFRICA
visiting several times the Territory of South West Africa, and of visiting
the various population groups there.
Mr. President, it is on the strength of such experience that I have had
that I venture to say that I should be expected to know a little about the
Bantu people and their particular circumstances in the Republic of
South Africa.
Mr. MULLER:In addition to the positions held, as described to the
Court, have you served on any Commissions relative to Bantu affairs or
Bantu education?
Mr. E1SELEN:Yes, Mr. President, in 1945, at the invitation of the
British Government I became a member of a three-man Education
Commission for Basutoland. The Chairman of that Commission was a
well-known man. Sir Frederick Clark, who had been Professer in his
younger years in Cape Town, then at one or two universities in Canada,
and after that at the University of London. It was at the request of Sir
Christopher Cox, with whom I had contacts and who knew a lot about
my work in the Union of South Africa as educationist, that I was invited
to serve on tlus Commission which visited Basutoland and spent some
time there in 1945, and also published its report on Education for Basuto
land in the same year, making various recommendations, recommenda
tions which I still today believe were very sound and on the Iines of which
the education in Basutoland was reorganized at the time.
J\frMULLER:Did you serve on any other Commissions in South Africa
itself?
Mr. E1SELEN:In South Africa itself, while Iwas still Professorat the
University of Pretoria, I was asked by the Government to serve as
Chairman of the Native Education Commission, to investigate the
q_uestionof the history and the development of Bantu, of Native educa
tron, as it was called at that time, in the Union of South Africa and to
report to the Government whether, in the opinion of our Commission,
we would recommend changes, changes to make the education process
more effective than in the past. The Commission sat from early in 1949
and worked on this project off and on until 1951 when the report was
published. The report was quite well received by the Government, debated
in Parliament, and most of the recommendations were accepted, although
it took some time before the Govemment was able to act on the major
recommenda tions.
Mr. MULLER:Dr. Eiselen, I will ask you questions later relative to
education as a particular subject, but before doing so I would Iike you
to deal with the policy of separate development applied in South Africa
and South West Africa.
First of all, with regard to South Africa, will you tell the Court whether
there are particular circumstances which have to be appreciated in
order to understand the policy of separate development and to eval
uate it.
Mr. EISELEN:Mr. President and honourable Members of the Court. I
have the fi.rm belief that in South Africa, in the present Republic of
South Africa and also in the Territory of South West Africa, we have
those particular circumstances which make it necessary to have a
definite policy, should I say an educational policy in a broad sense, of
leading the black people, the Bantu people, to a higher stage of civiliza
tion: that we have those particular circumstances which I would like to
putto you, Mr. President, in a little more detail, explaining why we refer WITNESSES AND EXPERTS 93
to our country as a multi-community country. We have a number of
different communities living within the borders of the Republic of
South Africa and the Territory of South West Africa. I shall presently
return to this matter and say why we rather insist on not calling our
country a multi-racial country, but speak of our country as a country
whose inhabitants form a plural community, or form a number of
communities.
Perhaps I must say, at this stage, that of course race means very little
to most of us, very little that can be proved or disproved. We can see
with our eyes that certain people are dark, certain people are a lighter
colour, yet we know very little about any connection of these racial
characteristics with their mental make-up. That is why the existence of
various races in South Africa does not interest us over much, but what
is of very great concern to us is that the people living in South Africa,
the white people and the Bantu people, have a different way of life, that
they have different traditions, that they have different customs, and so
forth.
I would like to say, first of ail, that we call these people, all of them
together, Bantu people-the black people of South Africa-that is
because they all speak a language belonging to one and the same family
of languages, which have the same kind of morphology, the same kind of
syntax, and also to a large extent the same vocabulary. Once one has
got used to applying their laws of sound shifting which corne into play,
then you can readily recognize that their vocabulary cornes from a
common source. These languages are very different from the Germanie,
Romanic, Indo-Germanic languages that we are used to, they belong to
the agglutinating languages (with a prefix pronominal structure of the
sentence, with no grammatical gendcr and an entirely different concept
of the use of the verb), but I am not going to weary you, Mr. President,
with such details, I merely want to say that they ail speak languages
belonging to that type and which are very different indeed from English
or Afrikaans spoken by the white people. It would interest you, Mr.
President, and Members of the Court, that these languages are, looking
at them from an objective point of view, very much more involved
languages than either English or Afrikaans, they require far more
study----one would almost say they require more intelligence if you want
to speak them properly.
I want to say this, that they are not primitive languages at all and
that I think is very important. I want to stress right from the beginning
that we look upon the Bantu people in South Africa not as speaking an
inferior language, or as being naturally inferior people, but, on the
contrary, we simply know that they are different and that, in this
particular connection, they speak a very fine type of language, a very
well developed and, from our point of view, difficult language, the Ban tu
type of Ianguage.
Now there are certain other things which are common toall the Bantu
people. They all have their subsistence economy, hoe culture and animal
husbandry; they all have their patrilineal structure of society (I am
speaking of the Union of South Africa, now the Republic of South
Africa-as regards South West Africa I will presently have to add some
thing to that); furthermore, it is common to the Ban tu people that their
political life is Iinked with respect for their aristocracy and the chief as
the head of the aristocracy, and also linked with their belief in fore-94 SOUTH WEST AFRICA
fathers-the worship of their forefathers whose living representative
among the people is their chief.
On the social side, those things which are common to the Bantu
people are their custom of polygamy, of having more wives than one,
ifthey can afford it; their custom of lobola, or bogadi, that is to say that
instead of a bride being expected to bring a dowry, as is done in our
European life, it is, on the contrary, expected of the groom that he has
to give compensation for the member of the family that he takes away
from another family group, he has to pay something-a large number
of cattle, as a matter of fact-by way of compensation.
Then the last common factor that I would like to name characterizing
the Bantu is their custom of initiation, when the people reach adoles
cence.
Now I have tried, Mr. President, to indicate that the Bantu people,
in a way, belong together-the same branch of the human family, the
same branch of the Janguage family-but I have now to add that in
addition to that, or as against that, they differ in man y ways so that they
cannot be regarded just as one single people. They cannot, for instance,
just offhand understand the Ianguage of another population group. With
your permission, Mr. President, I would like to name the various popula
tion groups which we have in the Republic of South Africa, the Bantu
population groups. They are the Xhosa people in the Eastern Cape; the
Zulu people in Natal and Zululand; the Basuto people in Basutoland and
parts of the Free State which border on Basutoland; the Bechuana living
partly in the Bechuanaland Protectorate and partly in the Republic of
South Africa; then we have the Bapedi, or Northern Sotho, the people
with whom I am now serving as link with our Government, in the
Northern Transvaal; and then, finally, two smaller groups, the Bavenda
of the far north and the Shangaan of the north eastern part of the
Transvaal. All these people have their own language and a Zulu person
cannot understand a Suto person any better than a German can under
stand an Englishman, but their languages are related in the same way.
Nor can a person speaking Venda easily understand a person speaking
Chuana.
I think that it is important that it should be realized, Mr. President,
that we are dealing with different peoples in South Africa. I might, if it
will interest you, Mr. President, and the Members of the Court, just
mention certain other things in which these various peoples of South
Africa differ.
I have mentioned language. The next that one sees readily is that they
differ in the way in which they dress, they all have their national way of
dressing.
They also have theü own national way of building their houses, some
of them building the beehive hut, the hut made of wattle and mud; then
those that have the round hut, the rondavel, but of more conical type
than the beehive.
They also have a different way of living together. Their kraals, that is
the term that was applied to their villages, are very different, the Be
chuana people living in sometimes big villages with up to 50,000 people
living in a village, while Xhosa people inthe Eastern Province you would
hardly ever find living in dusters where the numbers who belong to that
cluster would exceed, say, 20 or 30 families.
You furthermore have other differences, snch as the preparation of WITNESSES AND EXPERTS 95
food-the staple diet is not at all the same for the various people-the
way in which they store their grain, and generally in connection with
arts and crafts.
But, coming now to the social and political side, I would like to say
that they do not have the same laws of inheritance. As we cannot deal
with all of them, Iwould like to quote just one example. With the Xhosa
people, those are the people that are now in the Transkei who have
received independent government, their inheritance and law of succesion
worked on the principle of the big houses of the chief-the big house,
the right-hand house, and the left-hand house-and they each came into
consideration for succession if there was no descendant in the big house,
but even then the matter was sa involved that it was seldom before the
death of the reigning chief that it was really known who his successor
would be. That is because of the belief, Mr. President, that it is not a
good thing to have a persan designated as your successor whilst you are
still alive, because he might take the necessary steps to remove you
before your time had really corne.
As against that, you have amongst the Basotho an entirely different
practice; the successor of their chief is designated and well known to
everybody long before the death of his father, because on the marriage
ofthe young chief they drill a new tire, a new fire, in a ceremonial way,
and everybody has to fetch fire from this sacred fire of theirs which
represents the new chief who will reign in his father's stead. They actually
calltheir most important woman, who is bought, to use a short term, with
the money of the tribe as a whole the candie of the tribe, their represen
tative, the one at whose wedding their sacred tire was made.
Now, I am mentioning these matters only, Mr. President, to show you
the difference between these people, and that not one of them would like
to have the traditions and the customs of others imposed upon him. ln
the same way, we have certain of the peoples with totemism-the prac
tice of totemism-of naming their tribe after some animal usually, and
regarding this animal as the emblem of their tribe, and very often as
something which has to be worshipped, something that certainly must
not be eaten.
Now, we do not find totemism with everybody, we do not find totem
ism with the Xhosa people, we find it with the Basotho people, we
find it with Ndebele people; but, then again, with some it is bound up
with exogamy, with others it is not, so that it is far easier to find great
and important diffcrcnces between these population groups than the
matters in which the one resembles the other. The last one, except their
ordinary history and traditions which bind the people together-I would
like to mention in this connection is that the various peoples have
entirely different customs of divination, the way of finding out, by way
of supernatural help, what has caused certain difficulties, what has
caused calamities, illness, and so forth. The Zulu do it by smclling out
by the witch-doctor; Basotho people do it by using the astragali bones
of their totem animals, casting them as <liceand interpreting from the
way in which they fall; and the Bavenda people have the ceremonial
wooden bowl which is ornamented with various totem animais, in which
they allow a light fruit kernel to float on water, and it will float to
indicate the cause of their difficulty in connection with which the
question is putto this divination apparatus.
I hope I bave not wearied you with this exposition, 11fr. President,96 SOUTHWEST AFRICA
but that is how our Bantu peoplcs, in the Union of South Africa-now
the Republic-differ.
Mr. MULLER:Dr. Eiselen, having described these differences between
the Ban tu groups of South Africa, there are, of course, also other groups,
other than Bant~ groups. Which are they?
l\frErsELEN: In the Republic of South Africa?
Mr. MULLER:Yes.
Mr. ErsELEN: In the Republic of South Africa there are white people,
naturally, we also have the Indians, and the Coloureds-those are the
other population groups in the Republic of South Africa, but I would like
to point out that my own persona! contacts have been with the Bantu
people in particular.
Mr. MULLER:Now, you have already indicated that you regard South
Africa as being a multi-community country. in the sense that one has
different population groups inhabiting the country. Do they inhabit
separate portions of the country, or do they live as one unit?
Mr. EISELD!: Mr. President, they live in·different parts of the country,
traditionally, and that, of course, is one of the reasons why they have
kept apart in other ways too.
Mr. MULLER:Living apart. Has that come about by govemmental
fiat,or is it a matter of historie evolution?
Mr. EISELE:N:That is a matter of historical evolution.
Mr. MULLER:Will you describe to the Court, Dr. Eiselen, the historical
evolution which has brought about the circumstance that we do find in
South Africa of the groups occupying, largely, separate areas.
Mr. ErsELEN: Mr. President, if Imay request the opportunity, before
answering Mr. Muller's question, of just explaining why I putbefore you
a description of the various Bantu population groups, it is because I
wanted to make clear that we have, in the Republic of South Africa, a
multi-community country, that while these people are also different in
race, the race is not of great concem to us. \Ve do not think that it is
correct, we think as a matter of fact that it is misleading to refer to our
country as having a race problem, because that always causes a confusion,
because we are then confused with the countries that have only a racial
problem. At later stages I will again probably have to refer to this, but
at this initial stage 1just want to point out that in the United States of
America you also have African Black people living there, and they live
there merely as a different race, but certainly not as a different corn~
munity. They differ from the white people there not to any marked
extent in their community and in their cultural life, they speak the
same Janguage, they have the same religion, they have the same belief,
they have the same pursuits, and in every manner of way lead, or try to
lead. the same life as the white people-the white Americans-of the
United States to such an extent that, tous, it is sometimes a matter of
surprise that they should still be referred to as Negroes and not merely
be called Americans. But perhaps that is just unnecessary comment at
this stage.
Mr. MULLER:Good. May I repeat my question, and that is will you
describe briefly to the Court the historical events which brought about
the circumstance in South Africa that the different population groups
occupy, largely, different areas?
Mr. EISELEN: Mr. President, the area which is now known as the
Republic of South Africa was not orîgînally inhabited by the people who WITNESSES AND EXPERTS 97
now live there. The original inhabitants did not include any white
people or any Bantu people; both of them are newcomers, if you take the
very long \'iew, to this part of the world-to South Africa, and curiously
enough they came the one not very long after the other. Sometimes it is
held that they seemed to have arrived simultaneously, but I do not think
that is quite correct. I think that the Bantu people arrived in the present
Republic of South Africa earlier than the white people, but they only
arrived in the northern part, in the part which I would like to call the
Trans-Orange part; and that happened at about the same time that both
South Africa and North America were first settled by Europeans; so that
while you had the Bantu people coming from the north, you had white
people coming from the south.
Now the country was not entirely uninhabited. You had living in the
countrv at that time the Bushmen and various Hottentot tribes. It is
rather 'difficult to reconstruct the picture--onhas to rely very much on
guess-work in doing so; one can only judge by the various relies which
the Bushmen have left in varions parts of the country, in the northern
part of the country, and also by various language traits which have been
adopted from the Hottentot languages by the Bantu languages, showing
that there must have been some type of inter-marriage, probably taking
this course: that in their wars the Ban tu people gradually eliminated the
Hottentots, but did not kil] off the womenfolk, but kept those and lived
with them, added some ncw blood to the Bantu blood, and also adopted
some of their language characteristics-the strange click in the language
which we white people find so difficult to pronounce, which bath the
Bushmen and the Hottentots practise in their languages. The Bantu
people probably came from somewhere round about the Great Lakes of
Africa. and it is of course well known where the Europeans came from;
the Europeans were all, more or less, of Germanie stock, West European
stock. And now the interesting part is that the Bantu occupied the
northern, the Trans-Orange, part and the white people gradually
occupied the area to the south of that. The Bushmen and the Hottentots
clisappeared in various ways; there were certain of the diseases-small
pox-which overwhelmed the Hottentots in the European area, but they
also mingled with the slaves who were imported at one stage into the
Cape Colony, and also with white people, and formed the coloured people
of toclay-part of the coloured people. How exactly, as I say, the original
inhabitants in the northern areas occupied by the Bantu disappeared we
cannot say. The ÎlllJlortant point is that neither of those original peoples
living inSouth Afnca play any important part there now-they are just
a few, tiny remnants, and some larger remuants which have been
preserved in South West Africa.
I should like to add something, Mr. President, about the way of
occupation. If one says that the Bantu people occupied the northern part
of the present Republic of South Africa, the northern and the eastern
part, then one is inclined to think that they now occupied that country
as a whole. But that is not so, because of their way of life, their economic
pursuits, their way of subsistence. They were only interested in those
parts of the country which hacl a fair rainfall, and which were well
wooded, because that type of country with their implements they were
able to till. They were not interested in the extensive grass-veldt of the
Republic; what is known as the high-veldt and the rniddle-veldt, and
which forms by far the larger portion of the country, was not occupied98 SOUTH WEST AFRICA
by them because they did not like that type of country. They also occu
pied this land in very close clusters and, because they did not produce
for trade but only for their own 'needs, they tilled only sm?-llparts of the
country; they used somewhat larger parts for their animal husbandry,
but also round about those particular areas which they occupied.
And now, Mr. President, if you will look at the map of South Africa,
with the present Bantu homelands indicated on that map, you will find
that they are in the shape of more or less a horse-shoe following the
contours of the land, along their rnountain ranges, to the east of those
mountain ranges, with a good rainfall, the well-wooded country; and
then in the north, in what we call the low-veldt and the bush-veldt and
the thorn-veldt, where they also had the type of country which appealed
to them, especially with the numbers of small hillocks, mountains, which
the Bantu preferred as their residential sites. I am saying this to explain
that they did not occupy land in the same way as we white people are in
the habit of occupying land, of occupying large tracts of land and culti
vating that land, not for ourselves only but for other members of our
community who live in other circumstances, who live in the towns, or
even for export; that they did not, naturally, have those ideas in their
primitive way of life, and therefore they occupied those areas only and,
as I was trying to point out, Mr. President, these are still the areas in
which they live today which are still regarded as their homelands, that
is to say the areas they themselves picked on migrating into the country
which later came to be known as British South Africa.
Itshould perhaps be pointed out here, too, that the areas which they
occupied were not therefore very extensive. Furthermore at the beginning
of the previous century there came about in South Africa great up
heavals; while the Bantu people had before been more or less peaceful
people, doing nothing much more than cattle-raiding their neighbours
from time to time, you find that at the beginning of the last century a
certain Zulu chief by the name of Chaka was able to set himself up as a
war-lord, that he trained his people into armies, and that he made use of
them to ravish the country, to exterminate his less-powerful neighbours
and ta make himself master of the whole country now known as Natal,
and beyond that, send his armies into other areas of the now Republic of
South Africa. In the course of these invasions certain of his generals also
made themselves independent from Chaka himself-the one who is best
known in history is Mzilikazi, who set himself up as the war-lord in the
Transvaal. 'Weil,the effect of these wars of extermination, were such that
the period is described by our Ban tu authors as the time of the cannibals
in South Africa-cannibals because those of them who remained were
often reduced to such sad circumstances that they, for the first time,
adopted something which had never been a custom with the Bantu-they
adopted the habit of cannibalism, of hunting down their even less
fortunate fellow-men. During this area of general upheaval and inter
tribal warfare, the area occupied by the Bantu people shrank even further
than those rather small parts which were occupied at an earlier date.
Now I would like to point out, Mr. President, that it was at this stage
when these things were at their highest level, the high tide of inter-tribal
warfare, that the white men moved in from the south across the Orange
River, and they found there a people who very soon opposed them, name
Iy on the one hand the brother of Chaka, who had taken over from him
after Chaka had been murdered-he was murdered by his brothers; they WITNESSES AND EXPERTS 99
encountered Dingaan as a war-lord of the Zulu peoples in the eastern
part of the country, and in the northern part of the country Mzilikazi as
the war-Iord of that area, and although it had been their desire, as ex
pressed in the manifesta issued by one of the important leaders of the
white trekkers to the north, by Piet Retief, to live in peace and in
harmony with their Bantu neighbours, their attempts to corne to terms
with these two war-lords proved to be abortive. In bath cases there arase
very serions trouble in which, first of all, Mzilikazi on the one hand and
Dingaan on the other overran a number of the camps of these trekkers
on their way and exterminated, killed off, everybody in the camps.
That led to this counter-action of these white trekkers from the south,
that they consolidated their strength as far as they could and they joined
battle with these two and defeated them, the one fleeing the country into
the Rhodesias with his followers-Mzilikazi-and the other trying to
flee the country but being killed by his own people on the way out.
Well, you find then that into this sparsely populated country, ravaged
by wars, uever very fully occupied, the Europeans came in and they
settled there and they brought into the country-and that perhaps is
something that is not generally realized-peace. They brought about that
those many population groups that had fled from the country returned
to the country when they heard that the white man had corne and that
there was peace once more. They returned to the country and they took
up their abode in their traditional homelands. That is how this part of
the country came to be occupied in this particular way.
Mr. MULLER:Dr. Eiselen, did the European population group, on the
one hand, and the Bantu groups, on the other, respect the rights of
occupation of the groups to separate areas in South Africa?
Mr. ErsELEN: Mr. President, as I tried to point out, the Bantu people
were at that time, after their war-lords had been removed, once more
residing in orreturning to the areas which they had originally choscn for
themselvcs an~ in which they had traditionally lived and they were Jeft
in those areas undisturbed according to the promise, given by the leader
Piet Retief, that it wâs the desire of the European people to live with
them in peace as neighbours. There were exchanges of land to some
extent afterwards but in no really radical way was the occupation of the
Ban tu people in South Africa ever changed, except in this way that at a
subsequent stage, as I will probably have the occasion to point out later
on, the white people added to the areas occupied by the Bantu to a very
considerable extent so that they are now, I would say, very much larger
than at any time in the history of South Africa.
Mr. MULLER:At the formation of the Union in rgro what was the
position in regard to what is now known as the Transkei?
Mr. EISELEN:The position of the Transkei, Mr. President, was that it
was part of the British Colony of the Cape before union and the historical
events which I have described here did not apply to the same extent to
them because their contacts were largely with the British people of the
Eastern Province and not contacts with the trekkers, the people who
set out to forma new nation towards the north.
\Vell, now in the Transkei the British Government had, in the course
of the history of this particular area, attempted to introduce various
policies,the one after the other. Those of you, l\frPresident, who per
haps know a little of our South African history, will know that to the
grcat annoyance of our school pupils thcy have to learn about so manyIOO SOUTHWESTAFRICA
Kaffir wars. There were so many that I cannot quite remember the
number, I think there were about eight, where the people who now
reside in the Transkei-Xhosa people-and the British authorities in the
Cape Colony clashed. That is because there was always a movement
across the border. There were treaties, they agreed to certain borders
being recognized in future and then in their hunger for land, and more
particularly for cattle, the Bantu people would corne across those borders
and that would start another Kaffir war. Great Britain first tried to have
direct rule. They tried to establish offices-almost military occupation
in that area and to abolish Bantu chieftainship and to run this country
as a complete dependency of the Cape Colony.
Well, that broke down after some time-after one of the further wars
they took the step to say they would try indirect rule now, recognize the
people there as chiefs and aIIow them to govern themselves provided
they respected the border, that they respected the treaties made. They
were not successful in that either, so that at the time of the Union you
fmd a sort of a mixture of two things in the Transkei. Yon will find a part
of the country organized into districts run by local councils and district
councils, with no chiefs, and then you find the northcrn part of the
country with paramount chiefs, and you find both these groups-the
representatives of the local councils and the district councils and the
people appointed by the paramount chiefs-together meeting as an
authority for that whole area and being a local goveming body in the
whole of the Transkei.
That was the position round about 1910.
Mr. MULLER:The Transkei was then maintained as a portion of the
Union of South Africa, was that not so?
Mr. EISELEN: It was a portion of, was looked upon and regarded as a
part of, the Union of South Africa.
Mr. MuLLER: At the time were any other portions, occupied by the
Bantu at the time, excised from the area which became the Union of
South Africa?
Mr. ErsELEN: Mr. President, in answering this question we now corne
to a very important stage in the development of South Africa and in the
development of the concept of Bantu homelands.
The PRESIDENT:I thînk we will corne to ît on Montlay, at 3 o'clock in
the afternoon. Before we adjoum, Mr. Muller, I wonder whether it is
necessary to go into all the detail that you have extracted from Dr.
Eiselen. I am sure the Respondent's regard this important to their case
but we are, after all, concerned with South West Africa, and I am
wondering whether it is necessary to go into all the detail that we have
heard so well expressed by Dr. Eiselen this morning.
Mr. MuLLER: With respect. Mr. President, 1 did not expect so much
detail myself but it can be considered to be shortened in so far as South
Africa itself is concerned.
[Public hearing of ZI June I965]
Mr. MULLER:Dr. Eiselen, just before the adjournment on Friday I
had putto you a question which then rernained unanswered. I will repeat
the question to you. At the time-this is rgro, the time of the Union
were any other portions occupied by the Bantu at the time excised frorn
the area which became the Union of South Africa? You then indicated WITNESSES AND EXPERTS 101
that you would be answering the question, and as a result of the adjourn
ment it is to be answered now.
Mr. EISELEN: Mr. President and honourable Members of the Court,
at the time when the Union of South Africa was established, three Bantu
areas were excluded from the Union of South Africa, namely Basutoland,
Bechuanaland and Swaziland. Those were areas which were clearly
inhabited almost solely by Bantu, with very few Europeans, and the
traditional chiefs were running these countries in their own way. It was
therefore the intention of the British Government to allow these partic
ular areas to remain without the Union, outside the Union, until such
time that the Union would itself have made up its mind in regard to the
other areas-Bantu areas-in the Union. It was suggested that in due
course they might again be handed over, but always on the mutual
understanding that they would nevertheless remain independent Native
areas.
Mr. MULLER:What was the policy applied, after Union, with regard
to the areas occupied by the Bantu in South Africa? '
Mr. EISELEN: After the Union of South Africa had been established,
the first Government, fully representative of the new South African
nation thai: had been built up, was formed and this Government wasted
no time in applying its mind to the question of the South African
traditional policy, to which I have referred previously, and how the
Bantu areas and the Bantu people should be dealt with. Accordingly, in
1913, legislation was passed to set apart those areas actually occupied
and traditionally in possession of the various Bantu population groups,
as inalienable property of those Bantu people. At the same time, an
undertaking was given that the Govemment of the Union of South
Africa would endeavour to extend the area of these territories. So you
had the Government of South Africa following the lead given by Great
Britain and setting apart these homelands for the Bantu people, really
consolidating the position as it existed in practice, but promising to
extend the areas.
Mr. MULLER:Could you tell the Court, very briefly, what was done
in practice to implement the policy just described?
Mr. E1SELEN:A Commission, known as the Beaumont Commission,
was appointed, Mr. President, to go into the question of how these Ban tu
areas could be extended. Unfortunately, the First World War intervened
and, for the time being, this matter was shelved. After the First World
War had corne to an end, there was a change of government in the Union
and the new Govemment had the desire to make this extension of the
Bantu territories part and parcel of comprehensive legislation. It was
not at first possible to obtain the necessary support in Parliament-a
two-thirds majority being required-so the matter did not corne to
fruitionuntil the year 1936, when legislation was passed to set aside very
large additional areas-seven-and-a-quarter million morgen. Then at the
same time tlus was ernbodied in other legislation, forrning part of what
was then called the policy of segregation. Provision was made for the
development of these Bantu areas, not merely the fencing off of those
areas, but real development of the areas, and therefore a Native trust
was set up to undertake this work, as well as a Native development fund
into which all the monies which accrued to the Government from Native
taxation were paid. I just want to make this point, l'vlr.President, that
the monies required for buying the additional land were voted direct by102 SOUTH WEST AFRICA
Parliament from ordinary State fonds, but that the monies used for the
development came at that time from Native taxation, the whole of which
was handed over to the trust and to the development fund.
Mr. MULLER:How was this programme affected by the Second World
War?
Mr. ErsELEN: Unfortunately, three years later we had the Second
World War, and again the whole process was held up. Very much land
had already been bought, but not nearly the required acreage; various
development projects had been begun, but had by no means corne
to finality; and then, after that, came the all-out effort during the
Second World War, so that once again the programme was held up for
a long time. As a matter of fact, we only reached the next stage in this
story in the year 1948.
Mr. MULLER:Will you please explain to the Court the next stage of
development?
Mr. J:1sELEN: The next stage, Mr. President, was when, after the
War-as sooftenhappens after wars-a new Government took over and
this government decided to apply seriously the whole legislation of 1936,
to make it quite clear that it was going to continue to irnprove the Bantu
homelands and to give to the Ban tu people a development of their own.
As a matter of fact, they set out their policy in a statement which I
would like to quote to you, Mr. President, and which I have therefore
translated into English. It states, inter alia, that the policy of the
Nationalist Party, which then came into power-
"... has as its objective the preservation and protection of the
indigenous race groups as separate ethnie communities, entitled to
develop in their own territories as self-supporting ethnie units, and
to foster national pride and self-respect which, in tum, will ,leadto
mutual respect of the various races of the land".
And it goes on to say that it offers to the Bantu-
"... full opportunities of development and self-realization in their
own areas, obviating any clash of interests, and guaranteeing that
the development and progress of any one group will not be regarded
as a potential danger and threat to any other group".
Mr. MULLER:What were the particular abjects of the policy just
stated?
Mr. ErSELEN: The particular objects of this policy, which was then
called the Apartheid Policy, were to give the Bantu people the opportu
nity of parallel development, that is why this policy was further called
the Policy of Distinctive Development. This has been very much mis
understood, especially the name "apartheid", and therefore I think I
should just say a few words, Mr. President, about the question of ter
minology.
What is quite clear from this statement which I have read to the
Court is that it was the abject of the Government to initiate in South
Africa a development which would enable the different population
groups-the different communities-to live side by side in peace,
coexistence with friendship, in the same country, and it is unfortunate
that so much has been said about separation and so little has been said
about their development programme, because it was obviously the in
tention to indicate by the new name that the Government wished to go
further than was done under the previous name of segregation, and to WITNESSES AND EXPERTS !03
enable the Bantu neighbours to become independent, self-respecting,
self-supporting communities, with the help of the white man.
Mr. MULLER:Can you tell the Court, briefly, what legislative measures
were enacted to implement the policy which you have described.
Mr. ErsELEN; Mr. President, the first steps which the Government
took, after it came into power, was to appoint two commissions-the one
to go into the question of the education of the Native people, because it
was realized that in order to become bearers of a culture, of a development
programme above all education was required; the second commission
which was appointed was a socio-economic commission to investigate the
viability of the Ban tu homelands, and to go into the question of how this
could be accelerated. The varions enactments, to which I\fr.Muller
referred just now, were first of all the Act on Bantu Authorities, which
was passed in 1951-that was after the Government had examined the
recommcndations of the Education Committec-which was to give form
and shape to the local authorities of the Bantu people in their homelands.
As I have explained, these hornelands were ruled by tribal aristocracy,
and the feeling of the Government was that the tribal authority had to
be modernized, had to be brought into line with, and had to be har
nessed to, a programme of development, and that the old traditional
authorities should therefore be reorganized in such a way that they could
take a real and a progressive part in shaping the future of their areas.
Then the second law which was passed was the law on Ban tu education,
in 1954, I shall not deal with the contents of that because we will be
coming to that later on, Mr. President. Then in 1957, there was the Ban tu
Investment Corporation Act to enable the Government to invest manies
in the pump-priming of the development of the Ban tu areas. In the year
1959, we see a very important announcement made by the Prime Minister
in which he stresses that the Government is prepared to go the whole way
in allowing the Bantu homelands to become free, self-ruling, self
supporting countries developing to, if possible, entire autonomy, and
then, perhaps, fonning part and parcel of a South African commonwealth
of peoples.
And that was followed by a further law in the same year, 1959, namely
the Law on Promotion of Self-Government for the Bantu Homelands.
Mr. MULLER:Has the law on self-government of the Bantu homelands
been applied to any portions in South Africa itself?
Mr. ErsELEN: Very soon after that the Transkei Territorial Authority,
meeting in session, asked the Government to act in accordance with its
promises and to give it independence. The Government granted this
request and in co-operation with the Transkei Territorial Authority the
necessary documents and Jegislation were prepared and, in due course,
passed by Parliament so that the Transkei is now an independent part of
South Africa. still belonging in certain ways to the Republic of South
Africa but independent in most ways; and, of course, having the right to
daim still further independence also, in respect of those matters in con
nection with which it still fmds it more profitable, at the moment, to
remain under the wing of the Government of the Republic.
Mr. MULLER:Would you state shortly what is being done in regard to
the development of the Transkei as a Bantu homeland?
Mr. ErsELEN: The Commission to which I referred a few minutes ago,
Mr. President, the Socio-Economic Commission, produced the volumi
nous report making many recommendations and asking the Government SOUTH WEST AFRICA
to spend great sums of money on the development of these areas. The
Governmcnt acccpted this, in principle, and in 1960 drew up a five-year
plan for the development of the Ban tu areas, bath the Transkei and other
Bantu areas and this has now been under way for the best part of five
years, and very substantial sums of money are being spent on the pump
priming of the development of schemes, programmes, projects in Bantu
areas, and in tlùs connection I feel it should be said, Mr. President ...
The PRESIDENT:I recognize the representative for the Applicants.
Mr. GROSS:Mr. President, with deference and reluctance to intervene
while the testimony is being presented, the Applicants regard it as
necessary to record in open court, thé objection to the testimony now
being presented, and would be prepared, with the President's permission,
to make a brief statement as to the basis of the objection.
The PRESIDENT:If you will state, Mr. Gross, the grounds of your
objection.
Mr. GRoss: The Applicants would first respectfully reaffirm the letter
1
of 20 June 1965 to the Deputy-Registrar ,to which the honourable
President has referred, as reflecting their views as now in the record of
the Court. In conformity with the general objection set forth in the letter,
also now reaffirmed in Court for the record, the Applicants find it neces
sary to object to the presentation of evidence as to which due notice has
not been given in advance concerning the identity of the witness, with
particularity the nature of the evidence sought to be adduced, and with
reasonable clarity the scheme upon which the Respondent proceeds in
presenting a particular witness for a line of evidence as to which more
than one witness or expert may be led to direct his views. Furthermore,
the specific testimony now being presented-and this is the immediate
reason for the intervention by the Agent for the Applicants-has no
co1ourab1econnection so far as the Applicants perceive, with respect, to
the allegation of the violation of Article 2 of the Mandate and Article 22
of the Covenant in accordance with the application and the pleadings
before the Court.
For the rest, Mr. President, the Applicants would respectfully reaffirm
and stand upon the considerations reflected in paragraphs 3, 4 and 5 of
the letter of 20 June 1965 which are likewise reaffirmed in open court
and these reservations and observations relate not only tothe testimony
now in progress, but to other witnesses that may be called under the
same conditions. Thank you sir.
The PRESIDENT:Mr. Gross, in the transcript of Frida y last, the points
to which the evidence of Dr. Eiselen is to be directed, at page 88, supra,
are stated by Mr. Muller to be:
"The points to which his evidence will be directcd will be the
fol1owing: the particular circumstances mid considerations which
influence governmental policies and practices in territories such as
South Africa and South West Africa, which are inhabitcd by differerit
population groups, the abjects of the policy of separate development
and whether, in the interests of the inhabitants, it would be reason
able, just and equitable to require that a norm and/or standards of
the nature suggested by the Applicants, should be applied in South
West Africa."
1 See Vol. XII, PartIV. WITNESSES AND EXPERTS IOS
In what sense is it that you seek to indicate to the Court that that
was not sufticient information as to the nature of the evidence to be
given by the witness?
Mr. GRoss: Mr. President, with respect, the fi.rst element to which
objection would be taken, and strenuously, is the characterization of the
testimony proffered, whether as witness or as expert. which includes the
reference to the phrase "norm and/or standards of the nature suggested
by the Applicants"-1 quote that language, Mr. President, from page 88,
supra, to which the honourable President has referred, frorn this ver
batim. A prirnary objection perceived by the Applicants to the scheme
or line of evidence which is sought to be adduced by the Respondent
under this characterization, is what the Applicants respectfully had in
mind in referring, in their letter to the Deputy-Registrar,to the charac
terization or reformulation by the Respondent of a position or theory
said to be advanced by the Applicants, in connection with evidence
purported to be adduced thereto.
That, with respect, has been further confused by references repeatedly
made in the course of the Respondent's oral argument. which again
purported to characterize and reformulate the Applicants' true theory
and position. This formula, both in the letter of 16 June from the
Respondent's Agent and in the statements made by the learned counsel
forthe Respondent, is a mere reflection or echo of the reformulations
erroneously presented to the Court by the Respondent. That, therefore,
isthe fi.rst point oî objection and speciftcally, as I say, the proffering by
Respondent of evidence which purports to be directed toward a norm
and/or standards of the nature suggested by the Applicants, which are
notof that nature.
Secondly and finally, very briefly, Mr. President, with your forbear
ance, the influence or considerations which purport to influence Govern
ment policy with respect to South Africa are not, in the Applicants'
respectful submission, relevant to the complaint or applications now
before this Court.
Thirdly, with respect to South West Africa, the Territory in question
here, the circumstances and considerations which are said to influence
governmental policies and practices in the Territory are, with respect,
regarded by the Applicants as having been placed before the Court in the
evidence in the written pleadings. The case is before the Court; it has
been submitted by the Applicants on the basis of decisively relevant facts
which are not in dispute between the Parties, and which, as has been
repeatedly pointed out by the Applicants, consist of laws and regulations
and methods for their implementation, the existence of which is conceded
by the Respondent and which are the basis of the Applicants' case. These
are the considerations upon which the objections are based and upon
which the rights of the Applicants are reserved.
The PRESIDENT:Mr. Gross, so that the Court may fully understand
precisely the grounds on which the objection is taken-the Court is
aware of the normand standards which have been put forward by the
Applicants, so we are not concerned-in determining relevancy-what
interpretation is placed upon your presentation of the case by the
Respondent. There seem to be two positions from which it can be seen
-the question of the admissibility ·Ofthe evidence. The fi.rst is whether
it does, in any way, bear upon the question of the establishment of an
international custom evidenced by general practice which has been partro6 SOUTH WEST AFRICA
of the Applicants' case under Article 38 of the Court Statute; and it also
has to be considered from the point of view of the case which has been
sought to be made out by the Respondent. The Respondent has argued
that Article z of the Mandate must be construed so as to give it a discre
tion and that there can be no breach of it on its part unless it has been
exercised mala fide, or for a purpose other than Article z of the Mandate.
The Court would first have to determine as between those two conten
tions, among other things, which, if either, would be accepted by the
Court and that would be a matter which could only be determined upon
its final deliberations. Are you able to say, or do you say, that the evi
dence which is presented is not relevant to either the Applicants' case or
to the Respondent's case?
Mr. GROSS: Mr. President, may I take the second point first, by your
leave, Sir? The Applicants would see no reason for interposing an
objection either of relevancc or materiality or propriety with respect to
any evidence which the Respondent considers it necessary to lead for
its own case or in support of its own theories or legal positions. When,
however, the evidence is proffered-whether expert or other evidence is
proffered-on the basis of a purported interpretation of the Applicants'
case, the Applicants have regarded it, respectfully, as their duty to make
certain that, by their silence, there is no acquiescence in the formulation
or reformulation of their case, of their theory or their position. It has
been noticeable to the Applicants, with respect, that in the presentation
of oral argument by Respondent's learned counsel, when references were
firstmade tothe case as presented by the App1icants, there were numer
ous statements made which purported to interpret, to define, to refor
mulate the Applicants' theory. It does not seem necessary to burden the
Court further with this reservation in view of the honourable President's
statement that the Court indeed is able to appreciate the contentions of
the respective Parties, but there was a sense of duty which impelled the
Applicants to register this point lest there be any question of acquies
cence by silence in the course followed by the Respondent in presenting
evidence on the basis of the purported reformulation of the Applicants'
case. And, Mr. President, with respect to the first point, if it was
understood correctly by the Agent for the Applicants, the testimony
with regard to the generat~on of a legal norm (in the sense of Article
38) does perhaps involve questions of factual predication upon which
legal conclusions are based. There is a problem which is respectfully
and candidly presented to the Court, a problem which arises in the
Applicants' mind, concerning the line, ifany, to be drawn regarding so
called expert testimony which, regarding the existence of a rule of law,
may be more in the nature of argument by counsel or perhaps by legal
experts.
But the situation with which Applicants are confronted arises in large
part-and part of the difficulty, with respect, which I exhibit in respond
ing to the honourable President's question also arises-from the fact that
the very general method by which the Respondent has presented its
scheme does raise serious questions conceming where questions of issues
of law begin and issues of fact end, where the witness is speaking as a
witness concerning fact or as an expert concerning legal theory, for
example, as to whether or not a rule of international law has actually
been generated in the sense of Article 38 (r) and various sub-sections. It
does, therefore, underscore, in the Applicants' respectful submission, the WITNESSES AND EXPERTS IOJ
added necessity of sharp clarity and timely notice with respect to the
scheme of testimony proffered.
Finally, Mr. President, ifImay tax the patience of the Court for just a
very few more moments, we do notas yet know what witnesses, if any,
are to follow Mr. Eiselen. We have a tentative Iist. We do not know from
day to day the identity of the witnesses and, as the experience of last
Friday shows, we are called upon to respond immediately, automatically,
and in a precautionary sense in order to preserve our rights on the basis
of statements made by leamed counsel regarding the very basic scheme
of their testimony, and it is for this reason, with respect, that the
Applicants, regretfully concluding that the best course in the circum
stances, in order to avoid the possibility of the construction of a waiver
in the premises by reason of silence, addressed a letter to the Deputy
Registrar which has now been reaffirmed in open court.
It would, therefore, be urgently submitted and requested that the
Respondent be directed forthwith to set forth a list of witnesses it now
proposes to call with a comprehensible scheme of the points, legal or
factual, to which their testimony is to be addressed and, with reasonable
particularity, the evidence which it is prqposed that they present, so
that the Applicants can give studied consideration to these matters at
least 24 hours before.
The PRESIDENT: Mr. Gross, the last observation that you have made is
probably for consideration by the Court and will be dealt with.
Mr. GROSS:Thank you, Mr. President.
The PRESIDENT:Mr. Muller, would you indicate to the Court how the
evidence which you are presenting is relevant to the issues in this case?
Mr. MULLER:Yes, with respect, Mr. President. As already explained
by my learned colleague, Mr. de Villiers, the Applicants' case, as inter
preted by the Respondent, is one that there is in existence a normand/or
standards against which the Respondent's obligations with regard to
South West Africa should be measured. Respondent contends that no
such norm is in existence or applies to South West Africa. In disproving
the existence of such a normand the application thereof to South West
Africa, we contend that evidence of the nature given, for instance, by
Dr. Eiselen, is relevant.In so far as the evidence concerns the practice in
South Africa, we say, Mr. President, that that is relevant in so fa:r as
practice and usage generally in the world may be testified to, to show
that there is no such norm in existence. Moreover, in so far as concepts of
reasonableness, equity, and so forth, must play a part in the formation
of any norm, we contend that evidence as to the purposes of the policy
which is applied and-on this Dr. Eiselen will be asked ultimately to
testify-his opinion relative to the application of a norm and/or stan
dards suggested by the Applicants and to the effect that that would have
in South West Africa, are relevant.
We contend, therefore, with respect, Mr. President, that the evidence
which is before the Court is relevant to the issues before the Court.
The PRESIDENT:Mr. Gross, I think the better course to pursue is to
permit the evidence tobe given. The objection of the Applicants is noted.
The Court at the appropriate time will consider the relevance of the
whole, or any part, of the evidence given in its deliberations.
Mr. GROSS:Thank you, Mr. President. May Imake one further obser
vation most bricfly with respect to one rather puzzling feature of the
proffer (which has been referred to in the letter as well). I think it isroS SOUTHWEST AFRICA
sufficiently important to cal1 to the Court's attention at this point, for
whatever consideration the honourable President and Members of the
Court see fit to give toit. It is the reference in the letter of 16 June which,
as yet, the Applicants do not understand (I am referring to the verbatim
of 18June 1965,at pp. 83-84, supra). Respondent's counselreferred to "the
activities in the international bodies"; a special reserve must be taken
until further clarification is given with regard to the intendment of that
suggestion and the nature of the evidence which is proposed to be
advanced in regard thereto, because that does involve, or sait seems to
the Applicants, the interests of international bodies which are not
represented at this time before this honourable Court.
The PRESIDENT:That is another matter, Mr. Gross, and the objection
then is to be taken at the appropriate time when we reach that stage in
the evidence.
Mr. GROSS:All right, Mr. President.
The PRESIDENT:The witness will proceed.
Mr. MULLER: Dr. Eiseien, you were dealing with developments in
South Africa, particularly with regard to developing the Bantu home
lands. Have you finished your answer to that question or do you wish to
add anything to it?
Mr. E1SELEN:There was one observation that I wished to make, Mr.
President, and that is that very substantial monies that were being used
for the purpose of developing the homelands all came from the State
Treasury, and that it was not required of the Native population itself to
make a contribution. Obviously, the hope does exist that, if this initial
help has been given by way of pump-priming, in due course the economy
of the Bantu areas will be sufficiently advanced that they themselves
willbe able to continue with less support than at present.
The further and final observation with regard to the development of
this policy from the more or less negative policy of segregation to a
dynamic policy of development is this, that it is not something that has
been thought out by any one particular statesman, as it were, but that
it follows a long line of historical development, of acting on the saying
which I have already quoted which one of the leaders of the trekkers
used when he said that: "we move northwards where we wish to reside
in peace and friendship with the Bantu as our neighbours." All policy
in South Africa has been built up on that original concept.
Mr. MULLER: I wish to ask you certain questions relative to policy in
South West Africa. You have indicated that South Africa itself should be
described in your view as a multi-community country. How would you
describe South West Africa?
Mr. EISELEN: Mr. President, the term "multi-community" applies to
an even greater extent to the Territory of South West Africa. When we
spoke of South Africa we were able to speak of the presence in South
Africa only of the Ban tu-the various population groups of the Bantu
the Coloured people, the lndians and the White people, but in the Ter
ritory of South West Africa there are many more population groups and
they differ far more wide1y than the population groups in South Africa.
You have,in addition to the closely related White people related tothose
of the Republic, Bantu in South West Africa who are not of the same
type. They do not belong to the same type. There also exists a great
difference between the Ovambo and the Herero in their social structure
and in many other respects. WITNESSES AND EXPERTS 109
The Ovambo people belong to a matrilineal society, which I take it,
Mr. President, is a well-known form of society and everybody knows that
it means something very different from a patrilineal society; not that the
one can be regarded as inferior or superior, but it merely means that
people who adhere to the one cannot get on so well with people who are
used to the other kind of social structure.
But the difference between the Bantu and the other groups is even
greater. I spoke of Sorne of the remnants of the original inhabitants of
South Africa, still existing in fairly considerable numbers in South West
Africa. These are the Hottentots and the Bushmen. The Hottentots are
generally known now by the name of the Nama, and belong to a people
speaking a differentkind of language, speaking a Hamitic language, not
a Bantu language, and being racially very different from the Bantu, a
yellowish people nota black people, not having the same form of life as
the Bantu people of the Republic but living from animal husbandry only.
Then, last but one, you have the Bushmen, who belong to the Stone
Age in their culture in this way, that they have evento this day remained
hunters and collectors of food; who have never settled down, who have
never endeavoured to produce. but live merely by collecting, who are
physically very different from the other people and also in their social
structure, in their traditions, in their way of life. They are resembled to
some extent by a black people, not of Bantu origin, called Dama or
Bergdama. The latter are also of small stature, very much like the Bush
men, but resemble the pygmies of Central Africa more closely, physically,
than the Bushmen. These Bergdama are the only ones who have given
up living as an independent people because they were enslaved, partly
by the Hottentots and partly by the Herero.
So, Mr. President, these are the various indigenous groups of South
West Africa. There is another group which is not indigenous but which
moved up from the Cape Province during the nineteenth century, known
as the Basters of Rehoboth, being a mixture of Hottentot and European
stoc~, who have lived there for a long time and who call themselves the
Nasie, a separate entity speaking not a Native language but speaking a
type of Afrikaans.
You will appreciate therefore, Mr. President and honourable Members
of the Court, that in South West Africa we have all those same factors,
only much more pronounced, that we have described in South Africa
which have given rise to the policy there; and it therefore stands to
reason that when the Union of South Africain 1920 undertook to be the
Mandatory of South West Africa, it obviously proceeded along the same
lines, because it recognized a similarity and of course at the same time
the greater difficulty confronting it in connection with building up a
progressive scheme of development for the indigenous people of South
West Africa.
Mr. MULLER:At the time when the Mandate was assumed, Dr. Eiselen,
how were the different groups occupying South West Africa? Would
you briefly describe it to the Court.
Mr. EisELEN: Mr. President, you will remember that during the period
when the German Empire was governing South West Africa as its colony
or protectorate it did not have a very free hand to proceed along a
definite line of action, because there were constant wars between the
then Government of the South West colony and various tribes, partic
ularly the Herero and the Nama. Eventually, these wars came to an end,IIO SOUTH WEST AFRICA
the German Government put it this way, that the revolts had been
suppressed and by way of punishment or retaliation it took away the
homelands from the Herero people, and also took away their cattle from
them, and to some extent the areas occupied by the Nama people were
reduced. Sothat when the Union of South Africa took over as Mandatory,
firstas military Government in 1914 and then as Mandatory in 1920, it
found a position where the people were partly very much unsettled and
partly had never been touched by the German administration at ail.
Those that were badly unsettled were the Herero and the Hottentots, the
Nama, and together with them the Dama people. Those that had hardly
been affected in any way, on whom no impression had been made by the
German Colonial Government, were the various Ovambo tribes in the
northern area and also the people in the Caprivi strip.
The very first step which the Government of the Union took, therefore,
was to restore peace and order by giving back, in as far as possible, what
could be established tobe their old homelands to the Herero people and
to the Nama people, and to define and demarcate the areas to which the
various peoples were entitled.
Mr. MULLER:How were the areas demarcated for the various groups
developed?
Mr. EISELEN:The same scheme that was thought out for the Union
was applied in South West Africa too, but the diffi.culties there, Mr.
President, are very much greater than in South Africa.
The land is very dry, great parts of it are semi,desert, and you require
people who are able to deal with that type of country to tame it, to make
1t habitable. It was for that purpose, in order to ensure employment,
labour, and the possibility of earning money, that white immigrants
from the Union were encouraged to go there and to help to develop the
area. That was to improve the eccinomic life in general, but in addition
to that special steps were taken to "make water", as they call it in South
West Africa, in the Bantu areas; to enlarge those areas where necessary;
to help with the introduction of the preservation of water by dams and
irrigation schemes; and, on the other hand, by fencing into camps all
the pastoral areas of the Herero and the Nama people. A branch of the
Native Trust was established in South We5t Africa to assist the Bantu
people in this matter.
Mr. MULLER:To what extent has the policy of separate development
been applied in South West Africa?
Mr. ErSELEN: The policy of separate development was applied in
South West Africa by giving to the people there local authorities which
were given the right to run their various areas, they were called Tribal
Authorities in the compact Ovambo area in the northern part of South
West Africa, while they were usually given the name of Welfare Com
mittees in the smaller Reserves for the Herero, for the Nama, the Dama,
and the Basters and the Bushmen. I must say, !\Ir. President, that in
respect of the Bushmen, no great strides were made in making them
development-conscious and they still remain much as they have been
ever since we came to know them centuries ago. They do not take kindly
to leading a settled life and to becoming a productive people.
Now the development of the areas in South West Africa was under
taken by the Government without imposing any taxation; the money was
not collected from the Bantu people, but was given freely by the Govern
ment for that purpose, and so, during the past 40 years, considerable WITNESSES ANDEXPERTS III
progress has been made in that area although this progress has not corne
up to expectations because the people, more primitive than in the
Republic of South Africa and less inclined to change in the direction of
higher standards of civilization, responded very slowly to the efforts of
the Govemment to develop their areas-they clung to the customs of
their forefathers in that respect-so that, while there has been progress,
it has been exasperatingly slow in South \Vest Africa; not because the
Government would not prefer it otherwise, but because the people them
selves had not yet become culture-conscious in this sense of higher
civilization.
Mr. MULLER:\Vhat is the most recent development with regard to the
Bantu areas, the Native areas, in South West Africa?
Mr. ErsELEN: The most recent development is that the Government
appointed a Commission, called the Odendaal Commission, which had
to go very carefully into ways and means of making the Bantu areas in
South ·west Africa more viable, more productive, and of making the
people participate to a greater extent in the efforts to make the country,
as a whole, move forward.
This report, which has been published and which was debated in the
South African Parliament, is a very, very voluminous report, but,
briefly, it recommends that the methods which have been applied success
fully in South Africa should be applied to South West Africain the same
way and, unlike South Africa, South West Africa would require a greater
percentage of the funds for this purpose from the white Government as
they themselves were as yet not far enough advanced to make these
substantial contributions.
But beyond that, of course, the Odendaal Commission made further
recommendations as to developing the government of the areas giving
the Bantu people a far greater share in the development of their areas
towards ultimate independence. It was realized that the progress could
not be as rapid as in South Africa, but that in certain parts, in particular
the area of the Ovambo, which is also the most densely populated, a
definite beginning could be made at this stage.
Mr. MULLER:Dr. Eiselen, having dealt with the policy of separate
development in South Africa and South West Africa and its application
the~e, I want to put to you certain criticisms that have been levelled
agamst the policy and I want you to answer very shortly whether such
criticisms are justified.
In the first place, it has been said that the policy of separate develop
ment is based on the concept that certain groups are inherently superior
and others inherently inferior.
Mr. ErsELEN: Mr. President, I have endeavoured to explain that dif
ferences which existas between the various population groups have not
been imported foto South Africa by Government action, but they have
existed from time immemorial; that it is part and parce! of the South
African Bantu policy to respect the culture and the traditions of these
people, to respect their different way of life, but certainly not to regard
it as irremediably inferior as against that of the European. And if we
did so, if we did regard the people themselves as irremediably inferior and
the culture which they have produced as to be inferior for ever and ever,
then we would not take all the trouble of trying to allow them to develop
on the foundation of their own mores, their own traditions, their own
socialstructure, their own culture.II2 SOUTHWESTAFRICA
Mr. MULLER:Dr. Eiselen, is there any substance in allegations that
the object of separate development is to discriminatc against the Bantu
people?
Mr. EISELEN:i'llr.President, I can see no substance in that allegation,
because what the policy tries to bring about is that the Bantu people
and the other indigenous population groups of South West Africa should
have the same deal as the white people wish to have for themselves,
that of being able to build on their own traditions, on their own way of
life, on thcir own culture and to become an independent people not sub
servient in any way, and to become wholly respected ncighbours o[ the
white people in South Africa and in South West Africa.
Mr..MULLERW : hat would your reply be to an allegation that the policy
of separate development fosters tribalism?
Mr. EISELEN:Tribalism, Mr. President, is something which exists at
the moment; it is not something that, for the white man, has any par
ticular meaning, but it means a great dcal to the Bantu people and to
the other indigenous population groups, and it is not something that
could be discarded; therefore the efforts of the Government are not
directed towards fostering tribalism, but to make tribalism, in as far as
it still has to be reckoned with, a progressive force instead of being a
retarding factor, as it was in the past and as I shall perhaps have occasion
to explain when we deal with education.
Mr. MULLER:I want you to state to the Court your opinion relative
to the application in South West Africa of a rule and norm or a standard
which would prohibit the allotment of rights or duties on the basis of
membership in a group, race, or tribal or etlmic group.
Mr. EISELEN: Mr. President, I find it rather difficult to answer this
question in a reasonable way, because I do not fully understand what is
meant by this term; to me, non-separation seems to be a vague term.
What strikes one as a layman, immediately, is that it should be in a
negative garb. Now, tome it has these possible meanings: that you must
not take to pieces a natural whole, because that would obviously be a
separation; but as no such natural whole has ever existed in South
West Africa, as Ovambo and the Herero, the Dama, the Bushmen and
all the others have never formed a natural whole, this cannot surely refer
to taking to pieces a natural whole. Therefore it is perhaps the next
possible meaning of this concept, namely to aiiow to corne together
again those who have been separated by historical events, who did form
a unit atone time or other. In this respect I can think of, say, the Ovam
bo, of whom a portion live in Portuguese Angola and another portion
perhaps the major portion-in South West Africa; these people were at
one time a unit, and they have been taken apart by action of the so
called colonial powers,but it is not something in which the South African
Government could take action unilaterally, although everybody would
of course be pleased to sec that, ifthese people so desired, they could
once again fonn a whole. Similar questions have arfaen in regard to, say,
the Somali people, who I understand are living in various portions of
Abyssinia, Ethiopia, and in what used to be British Somaliland, in
Italian Somaliland, and they have been separated. One could agree
with the idea that it is not right to let them remain apart if they desire
to be united-once·more: These·things corne-about" as a result of wars,
when the conqueror takes, probably, more than his share, and in that
way people are separated. We know that that has led to the trouble WITNESSES AND EXPERTS
n3
about minorities even in Europe. Looking at the alleged norrn from
this angle one can understand it very well, but this plays no important
part in South West Africa at all; the only way in which action could be
taken would be in collaboration with the Portuguese Government in
respect of the Ovambo.
But then there is apparently this third possible meaning: that you
must not allow units who in the opinion of people of greater wisdom
should form a unit ta remain apart, although they had never formed a
unit before-that apparently is the meaning of this alleged norm in
regard to South West Africa: that the population groups should now
become a unit, apparently because they had been included in one area
by the people who carved up Africa in the time of colonial expansion;
that the Herero, the Ovambo and others had been included in the same
area and were therefore, by virtue of that action of the colonial powers,
now expected to become a unit; that they would not have the same right
as people who had not been so included to have an independent future
of their own. That, Mr. President, is something that seems ta be entirely
against the feelings not only of the Government, but something that
would definitely not be welcomed by the people.
Mr. MULLER:What would be the effect of enforcing such an abject of
measure in South West Africa?
Mr. EISELEN: It is very difficult to visualize what would happen.
Jf one speaks in terms of the majority, the people who are unfortunate
enough to be the smaller groups would in forrning a new unit-an artificial
new unit-be obliged to accept the precept and example of the most
numerous group. For instance, if everybody were given political rights
the vote-in the same way in South West Africa, then the Ovambo
people would, by being the vast rnajority in that area, obviously be the
people called upon to form the Government, and I take it that their
language would become the official language unless they would choose
to rnake English or Afrikaans the official Janguage, which does not seem
to be very likely. To the other tribes, the Herero for instance, whose
narne is perhaps better known than that of any other people of South
Africa but who are numerically only about 12 percent. as strong as the
Ovambo, this would rnean a terrible thing that they, being a proud
people, should now be forced to live according tothe ideas of the Ovambo
people.
There is this other possibility, of course, that you would say, well,
give them all equality by taking away the rights which the Euro
peans have-which the white people have-the political rights and the
right of government which they have, and rnake them all equal in that
way and govern them frorn a central place, that is to say, from the
capital of the Republic-from Pretoria-but in this connection one has
to remember that, even now, the white people in South \Vest Africa do
not form a legislative council for the whole area of South \Vest Africa,
they govern only that portion which is inhabited by the Whites, and
they have jurisdiction and power over the white population only; all
the Bantu areas are governed directly from Pretoria by the Department
of Ban tu Affairs, so that to a certain extent you already have that posi
tion there now, but it is being handled by people who have experience
of helping people, developing people who have not had the same op
portunities to make their way towards civilization, which would not be
the case if the vote was given ta every single inhabitant of South West SOUTH WEST AFRICA
Africa in the same way. Therefore, we consider it to be a far better
scheme of things if you give to them the vote to each in his own com
munity, to each in his own part of the country, so that they can there
practice and learn the art of government and administration.
Mr. MULLER: In addition to the effect in the political sphere, what is
your opinion with regard to the effect of applying such a norm and
standards in other spheres, for instance, the economic sphere?
Mr. ErsELEN: l\Ir. President, in the case of the economic sphere, it is
very difficultto think that anything could result from this except chaos.
I have tried to put before the Court information in regard to the state of
civilization-the state of advancement-of the varions population groups
in South West Africa, and to explain that they have not so far responded
very well, and that applies particularly to the field of economics where,
on the one hand, they have shown great reluctance to depart from their
own primitive customs in agriculture and animal husbandry, and where,
on the other hand, they have shown no initiative so far in developing
commerce and industry in their own areas, but have relicd in all thcse
matters upon the initiative of the White people. It requires training of
the people to prepare them for a life of independence.
That is the course upon which the Republican Government has now
embarked and which, in the way which has been recommended by the
Odendaal Commission, it desires to guide the further progress of the people
~nd to give the material help which they will require; but to give to them
1mmediate power as a government chosen by the people of South \Vest
Africa just on the strength of thcir numbcrs, to give to such a govern
ment the power of dealing with substantial achicvements in the economic
sphere, in the mining sphere, in the fishing industry, in the diamond
industry, in the wool industry, the meat industry, and so forth, would
be asking for trouble.
There is this, Mr. President, that the policy of non-separation which
is advocated in certain quarters can be putto the test and has been put
to the test as an evolutionary measure. We used to cal! it integration,
and it was practised both by the French Government in its colonies and
by the Portuguese Government, as it is still being done today, namely
encouraging people who were prepared to corne over the line, who had
discarded their own traditions, their own culture, their affinities with
their m-vnpeople, and had become what is called in the Portuguese ter
minology "assimilados", who had been allowed by the Portuguese to
corne over and to be integrated into the society of the white people there.
That was a possible way of doing it, an understandable way, but a way
which is not in keeping with the temper of the times at all, because no
evolutionary measure is desired but integration, integration not evolu
tjonary but revolutionary.
Mr. MULLER: Thank you Dr. Eiselen. I want to go over to the particular
subject of education. \Vill you tellhe Court whether there has ever been
in South Africa or South West Africa an integrated school system, that
is, a school system in which the Europeans, the Bantu and the other
population groups attend the same schools.
Mr. EISELEN: Mr. President, we have never had, neither in the country
now known as the Republic of South Africa nor in South West Africa,
an integrated system in which all the varions groups participated, having
the same syllabus, the same courses of training, the same buildings in
which they attended school: they have always been dealt with separately. WITNESSES AND EXPERTS II5
In this way, the European part of the population was naturally educated
in the same way as their cousins in South Africa, in Germany and Great
Britain, the countries from which they had corne, because this was the
system to which they had been accustomed, in which they believed, in
which they could be educated in a reasonable way, working from the
background which they had because of their being members of the
European community.
Now with our indigenous population groups the position was entirely
different.Education was, of course, in the initial stage, something entirely
unknown tothem. We had among them initiation schools in which they
were taught when they became young men and young women to know
what was expected of them as grown-up people of the various communi
ties,but the whole idea of teaching them in a school was something new
to them and it was brought to them by the mission people who had corne
to convert, to convert the various African population groups to Christian
ity, and they had to use for that purpose an instrument, a means, which
the people would understand. They had to use their home Ianguage,
the vernacular of the people.
Therefore the missions were the first people in the field who reduced
their various languages to writing and, because they were in practically
all the areas much earlier in the field as Protestants than as Catholics,
they considered it very important that their disciples should be able to
read the holy scriptures themselves, and in their own language, because
they would not be able to worship in the real true sense of the word if they
had to do so through the medium of a foreign language. Because of this
desire of the mission churches to bring Christianity and the knowledge
of the scriptures to them in this way they had to establish schools. And
therefore we find everywhere that the missions were the first people to
establish schools, which of course is nothing really foreign even to our
way of thinking because the Church, after all, for a very very long time
was even in European countries the source and fountainhead of all edu
cation; so we merely had a natural repetition of that history-that the
European education could be handled by the Government, by the ad
ministration but, on the other hand, the education of the indigenous
population group could not be handled by the Government but could
be handled by the people who had learnt the languages, who had devised
an orthography and a way of writing those languages, and who had seen
to the translation of the Bible and religions books into the languages
concerned.
Mr. MULLER: Did the State later share in the responsibilities of the
education of the Bantu people?
Mr. ErsEI.EN: As the number of children in the schools increased the
cost naturally became greater. The church which served as the school
building at the same time could no longer fulfil that purpose: additional
classrooms had to be provided, additional teachers had to be found, and
the cost became ever greater, and therefore the mission bodies asked
for help from the Government, which was readily given. The schools
were then called registered schools and subsidized schools. The money
paying for the salaries and the books usually came from the provincial
administrations or the Colonial Governments, but in the initial stages
this subsidization was subsidization in the true sense of the word, in
that the Government nev_erpaid the whole account. But that was gradu
ally changed in South Africa and also in South West Africa, so that inn6 SOUTH WEST AFRlCA
due course the Government footed the whole bill, paid for everything,
but the control of the schools was nevertheless left with the mission
churches.
Mr. MULLER:Did the system as now described work properly, in the
sense that the control was with the mission stations and the Govern·
ment supplying the necessary funds by way of subsidy?
Mr. ElsELEN: Mr. President, it naturally developed in a particular
direction, in the sense that the missionary and his congregation always
formed a sort of opposition party within the community, an opposition
party to the Chief and the tribal aristocracy. As I have explained in my
evidence previously, the Chief depends for his authority very much on
the idea that he is representative of the forefather gods within his partic
ular population group, and that does not go very well with Christianity,
so that you find that by and large the Chief and aristocracy of the tribe
remained outside the sphere of mission influence. ·
The schools became congregation schools and they were never com
munity schools. They did not serve the community as a whole: on the
contrary, they gradually developed into instruments for making it pos
sible for individuals to escape from their community instead of staying
with their community and building up their community. That was one
of the disadvantages of this mission control.It was a system which was
easy to apply by the governments, because here they had people who
knew and who were on very friendly terms with the Bantu population,
who spoke their languages, who had initiated the whole school system
and who were therefore naturally the people who could manage these
schools much better than government officials, and that is why this
system from that angle, the easy administration, was welcomed by the
provincial authorities and by the administration in South West Africa
as well.
Mr. MULLER:Were the mission schools eventually taken over by the
State in South Africa?
Mr. ErsELEN: It came about in this way, Mr. President: that when
the new, dynamic approach of our Bantu policy, our Native policy, in
South Africa took shape it was felt that your Bantu people could not
fonction properly, could not take part properly, could not develop a
dynamic approach unless they were given the opportunity to take part
in the processes of administration of schools, of controlling education,
of controlling the teaching personnel, and therefore the Government
thought it wise to appoint the Education Commission which has already
been mentioned to go into this matter and to say how the defects in the
system could be remedied.
Mr. MULLER:Before you proceed, Dr. Eiselen, is the Commission to
which you refer now, called the Eiselen Commission? ·
Mr. ErsELEN: That is that Commission.
Mr. MULLER:Of which you were the Chairman?
Mr. EtsELEN: That is correct, Mr. President.
Mr. MuLLER:Would you proceed.
Mr. ErsELEN: This Commission, Mr. President, found that main
defects in the education of the Native people was, on the one hand, that
locally the school was nota community school, that there was locally no
interest by the parent population as a whole, but that the schools were
controlled by an outside body.
It was furthermore found that the control by various provinces of WITNESSES AND EXPERTS IIJ
Native education was not in the interests of that education for the simple
reason that the monies required were not provided by the provincial
authorities but by the central Government.
Now what happened was this, Mr. President, the provincial administra
tions did not take any live interest because no money of theirs was in
danger of being misappropriated or spent in an extravagant manner, or
not for the right purpose, therefore Native education was hardly ever
debated by the provincial councils. On the other hand, neither was the
education of the Native people debated in the Parliament of the Union, ·
because they had, after all, handed ovcr this matter together with the
neccssary funds and they now expected the provinces to get on with the
job, and so Native education fell between two stools with nobodygiving
the proper attention.
That is in the field of control. The local control by the mission manager
retarded the participation of the Bantu community as a whole and the
central control by the various regional administrations retarded the
development, the building up of the whole system by Government
agencies, because no Govemment department took that live interest
which was necessary.
Mr. MULLER: What recommendations did the Commission make with
regard to control, both central control and local control, of Ban tu educa
tion?
Mr. EISEJ.EN: The Commission made these recommendations. That
the central control should be handed over by the provincial administra
tions to the Union Govemment at that time and to the department
which was, in any case, dealing with Native development as a whole,
because the Commission regarded education to be just one of the aspects
of development, of the broad development in all the spheres of life, of a
backward community.
Mr. MunER: With regard to local control. what recommendations
were made?
Mr. ErsELEN: And in regard to the local control the recommendation
was that Bantu bodies able to deal with these matters be set up. Now
your tribal rule, in the old sense of the word, did not make provision for
that kind of tlùng because the people themselves were not educated.
As I have ventured to explain, they stood aloof from the whole project
of education by the missions and so, in dealing with this matter, the Com
mission proposed that special boards be set up-school committees,
school boards-wlùch would be elected by the parents in the case of
school committees, by the school committees in the case of school boards,
but that they would fonction in close co-operation with the bodies which
the Government now brought into being by its Bantu Authority Act.
I could perhaps just revert, once more, to the criticism that this policy
was fostering tribalism. On the contrary, what was needed for the policy
was a progressive tribal rnle and not a retarded, not a stagnant, tribal
way of ruling; so it was not fostering tribalism, but gradually hamessing
them to progressive co-operation by making them take part in the control
of schools, helping them or by appointing a number of educated members
on the schools committees and school boards. The Govemment took the
very essential step to make the school not one for the Bantu people,
but one that was really ofthe Bantu people, belonging to them and that,
of course, applies not merely to the Republic of South Africa but also
to South West Africa.II8 SOUTHWESTAFRICA
Mr. MULLER:Do the parent communities under the system of Ban tu
community schools play a meaningful part in the education of their
children?
Mr. EISELEN: The parent communities, which under mission control
had very little say in these matters, now play quite an important part.
Obviously not in the teaching process as such, but they have to see to
the provision of the buildings, to the equipment of the schools, to the
appointment of the teachers and they now find themselves in the position
of appointing teachers who are not brought to that school just because
they belong to any particular denomination, but because being of the
same language group or the same culture group, they under?tand the
people, and can act as a real representative of the parents in bringing
in a new education, a new form of education, built on the background,
the historical background, of the Ban tu people and the other indigenous
groups respectively.
Mr. MULLER:Did the Commission make recommendations relative to
the use of mother-tongue in the Bantu schools?
Mr. E1SELEN:The Commission was very much concemed about the
use of mother-tongue in the schools because that had been neglected.
I have explained that the missionaries themselves were anxious to in
troduce a vernacular for the sake of their religions teaching and that,
therefore, in the initial school years the vernacular also playèd an im
portant part but that was dropped very soon because, beyond regarding
it as a vehicle for religious instruction, the mission bodies, by and large,
favoured the introduction of their official languages as early as possible,
that is to say of their own Ianguages-that isa system which they found
easier to apply.
There were differences, of course, what one would call the foreign
missions, who came from countries like Finland (the Finnish missionaries
working among the Ovambo) and German missions working .in South
Africa, you found that they were far more enamoured of the idea of
carrying on in the vernacular because the official languages. were not
their own languages either. But, in the case of the majority who had
English as their own home language a rapid change-over from the ver
nacular to the European language, and in particular English, was favoured
and this had a rather detrimental effect on the schools in this way that
we found the holding power of the schools to be very weak; the pupils
just completed two or three years in the school and then they left the
school. They lost interest because very often they did not kiww what
was really going on in the school. One almost got used to speaking of the
Bantu schools as sub-standard schools, because as soon as the children
had absorbed the sub-standards they would move away from the school
and, more often than not, very soon lose the knowledge which they had
acquired during this very elementary tuition that they had received.
Mr. MuLLE~: What are the advantages, very briefly put, of mother
tongue education?
Mr. ErsELEN: Mother-tongue education, Mr. President, is, of course,
ba~c. :
You will nowadays not consider teaching people in any other but their
own home Ianguage if you really want them to understand and to follow
what the teacher wishes to convey to them. Otherwise, we very often
find that what they do achieve is merely a certain parrot-way facility
of repeating the terms that they have heard in school without, knowing WITNESSES AND EXPERTS ng
what they really mean. To ensure education you must employ the home
language of the pupils because that is also the link with their background,
with the way of life of the people, with the respect in which they should
hold their elders, and, in any case, it is the only way to get them in
terested. That is not an opinion which only a few of us hold, that is not
an opinion which is only held in South Africa, it is an opinion which is
held very strongly by Unesco which has trained teams ail over the world
to bring education to the people who have been left out, and have re
mained, educationally speaking, in the dark up to the present moment.
Y ou will know, Mr. President, that it is not only the experience of
South Africa but of all the countries in Africa that the school bas not
proved very attractive in the past. If you examine the attendance
figures, the enrolment figures. in the schools in South Africa, and the
enrolment figures in the schools in other States of Africa, you will find
that the enrolment figures in South Africa are very much higher than
elsewhere. That is not only because education has been going on for
perhaps a longer period but, particularly, because the home language
is being stressedand because the pupils now have learned to stay longer
in the schools. They know what is going on, they understand and they
acqufre a knowledge which enables them to make judgments of their
own, to act in a reasonable way which develops their powers of intellect
because they need not leam two things at the same time, the con
tents and a foreign language. That is where they so often failed because
they only learned certain words which conveyed no particular meaning
instead of following the lesson itself.
Mr. MuLI.ER: Are there any difficulties with regard to the use of the
mother-tongue in Bantu schools arising from difficulties in terminology,
bibliography?
Mr. ErsELEN: There are no great difficulties, Mr. President, in the
primary schools. I think I have already spoken about the Bantu lan
guages being very versatile languages. I would not say that in regard to,
say, the Bmhmen language, but the Bantu languages are very versatile
languages, have a very big vocabulary and the words can easily be used
for a certain purpose ifa certain meaning is assigned to them, or new
words can be coined. Obviously, that has to be undertaken by expert
bodies and under our education system su.ch expert bodies have been
appointed, various language boards which draw up terminology to be
used in the schools, and they have made fair progress in that respect.
I do not think that the teachers, on the whole, have much difliculty in
teaching the whole primary course through the medium of the home
Ianguage.
Mr. MULLER:Does the Bantu education system provide a separate
syllabus for the Bantu schools?
l\Ir. ErSELEN:The Bantu Education Commission did not really provide
a separate syllabus. I have referred to some of the weaknesses in the
system which \Verechanged on the recommendations of this Commission
and you have perhaps noticed that I did not refer to the syllabus in
particular because after ail the people who had, under their provincial
regime, drawn up those syllabuses for the Native schools knew fairly
well what they were doing. They were mostly experts in the field. As a
rule their syllabi presented joint efforts of the Government offices and of
representatives of the various mission societies who acted as advisory
boards to the provincial administration. And so they had drawn up!20 SOUTH WEST AFRICA
syllabuses which were quite useful but this was changed to some extent
by the recommendations of the Education Commission which were ac
cepted by the Government. I would say that the syllabuses were changed
in this way, that more stress was laid on the home language as a medium
of instruction. Curiously enough, religious training in christian civiliza
tion, for the first time, became a compulsory subject because previously
when the missions controlled education they could not agree as to a
syllabus and so it was never possible to really conduct inspection and
examination in religious training, while that at the present moment is
being done. ·
In regard to other matters, the teaching of the ordinary subjects,
there was no real change; Ihold that there was nevertheless improve
ment as the central government, its education department; now had
the benefit of all the experience of the various provinces to build on, and
that out of this pool of knowledge they built up a syllabus which has
been described by various experts as one of the best of its kind in the
world. I take it that Mr. Muller has asked me this particular question
because the fact that Bantu education brought about rather radical
changes in control and administration, has not been attacked very much,
that has not been made the butt of criticism to any extent. We have
been subjected to criticism in an entirely different direction, criticism not
deserved. We have been criticized for trying to bring the Bantu people
an education which would condition them for subservience, for being
servants, an education which would make them inferior for all times,
and that was the thinking behind the term "Ban tu education", as though
here was something completely new, different from education elsewhere.
Now, Mr. President, I would like to put it this way, that after all
education over the whole world does not differ as regards principles of
education. We speak of French education or German education, of
British education, not because we have a different way of. educating
people in those countries but merely because you use the universal
principles and apply them to those countries and in the application to
the particular circumstances they naturally require a coloùr of their
own. If you were to make the practice the same everywhere, then of
course you would violate the principles. \Ve could easily illustrate that
by referring to the position in South West Africa. Ifyou wère to say,
well, we have to give to them their true education, that is to say, the
best education that we know of, in their most modem and highly devel
oped language that plays a part in that area, namely the English lan
guage, then ifwe were to give them English education, if we were to
import a syllabus from England into South West Africa, then we would
be doing a ridiculous thing because the human right of the English
speaking pupil is respected in this way,hat he is allowed to learn through
his own language, that is the basic principle. He is given the opportunity
of acquiring knowledge readily because it is presented to him in his lan
guage. This istrue of SouthAfrica also that youcan only present subject
matter successfully by applying the same principle as applied by the
French, by the German, by the British, namely by applying the universal
principles adapted to the circumstances of their country and of their
community.
Mr. MULLER:Dr. Eiselen, will you explain to the Court whether the
pattern of development of Bantu (Native) education in South \Vest
Africa has been very much the same as in South Africa? WITNESSES AND EXPERTS 121
Mr. ErSELEN: The pattern, Mr. President, in South West Africa is
very much the same, only there is this important difference, not in re
gard to principles but concerning the stage of development, because we
started much later in South West Africa; after all, it was only in 1920
that serious thought was given to these matters by the Government of
South Africa. We encountered exactly the same problems in South West
Africa. \Ve had the same mission schools there, and the training of the
white children was being conducted by the local South West administra
tion, which had no power over the Bantu areas, of course.
Now, as I have stated, there are so many different languages in South
West Africa, and there were fewer workers; there was a very sparse
population; the cost of producing books in the vernacular is very high,
because the population groups are relatively small. So it was much
slower progress to the stage where mother-tongue tuition above the
lowest standards could really be effectively applied. There has been an
Education Committee in South West Africa which has gone into these
matters, and which has recommended that the same basic approach be
adopted as in the Republic, and that the production of books, literature,
be accelerated so as to make it possible for the children of all the groups
to enjoy that which every white pupil takes to be his birthright, and
which many Ban tu people in the Republic have also now corne to regard
as their birthright, namely to receive their education through the medium
of their home language.
Mr. MULLER:Dr. Eiselen, will you express your opinion on the ap
plication in the educational sphere in South West Africa of a rule, or a
norm, or a standard which would prohibit differentiation between the
population groups?
Mr. EisELEN: Mr. President, I take it that when we deal with this
norm in regard to education, it is really a combination of the two, non
separation and non-discrimination, which have both been so frequently
mentioned. If we were to do away with what is called differentiation in
the schooling of the children in South West Africa, then we would en
counter enormous diffi.culties. We would do things that were entirely
unfair by trying to do something good for the population as a whole,
because we would then again have to adopt a procedure of taking one
of the languages as medium and as a main dish of instruction and school
ing, and it would be difficult to decide whose language was to be taken,
whose background was to be taken as a starting point for educational
development.
Mr. MULLER:\Vould it be realistic at all to apply such a rule, norm or
standard?
Mr. ErsELEN: I think it would not be realistic because, as I pointed
out in the political sphere, if you were to make the language of the Ovam
bo people the official school language, the Herero people, who do not
even know the Ovambo people, or if they do know them, regard them
as very inferior people to themselves, although they speak a Bantu
language and for that reason could be expected to regard such an in
novation with less suspicion and less aversion than the others would
nevertheless not accept this change. But if you were to pass on from that
to the Nama, speaking partly Hottentots' language, partly Afrikaans,
and if you were to suggest to them that in future they should not remain
separate, there should be no differentiation, that they should now adopt
the language of the majority-then these people would rise up in revoit,I22 SOUTH WEST AFRICA
and I think everybody has great sympathy with that attitude, because
after allthat is what was promised to them by South Africa when South
Africa was appointed .M.andatory of South West Africa; that was one of
the promises that they gave them, that they said: "We have been in
structed by the League of Nations to see to it that all the minorities
get their rights, that none of them are suppressed." And ifwe were to
go back on that, and to say: "No, we now think that because you live
in a country which was put together in this way-because it happened
to be put together in this way, not by a people who had given the matter
serious thought but who were merely acting in their own selfish interests
-therefore we are now going to force you to givc up your minority rights
and to bow to the majority", they would definitcly think that we had
gone back upon our promises and broken our word. The other alternative,
and the alternative which most people would probably think of, would
be to abolish all the Bantu languages and to use one of the European
Ianguages-by preference, of course, the one which is a world language,
that commands the greater respect in the world, namely English and
not Afrikaans. But, Mr. President,. would that not, more than anything
else, provc that we regard these people as inferior, that we regard the
contribution which they have been able to make so far to the civilization
and to the culture of the world as entirely ncgligiblc, as something that
could be removed with nobody being harmed? That may be the view
of many people, but I take it it is not the view of the people concerned.
It bas surely always been looked upon as a good and an honourable
code of behaviour to honour your past, to respect your traditions, and
it would be a strange thing indeed if we had to say to the people now:
"You must give up these things; you must accept our way of.life, our
civilization, which is a superior civilization." Now. Mr. President, I
would like to say in this regard that really this norm of non-separation,
the norm of non-discrimination, has a very small percentage that support
it.
l\fr. GROSS:Mr. President.
The PRESIDENT:Mr. Gross?
Mr. GROSS:May I be permitted to be heard? Mr. President, it w:iIIbe
apparent that in this Court rules of procedure and of evidence are not
as easy to corne by as in municipal courts; the line that is sought to be
drawn between cross-cxamination, objection and comment will therefore
present serious difficulties which may be prejudidal to the Applicants.
\Vith respect, it seems to the Applicants that it is above all necessary
in this Court that counsel in leading witnesses do not confront opposing
connsel with the necessity of constant interposition, ifpermitted by the
Court, with respect to testimony, which reflects opinion and insinuation,
and which is of doubtful relevance at best because of the difficulty of
understanding the ground upon which it is laid. In view of the difficulty
of comprehending the nature of the nonn and or standards. as described,
the Applicants have respectfully rccorded a general objection to the
relevance of this evidence, but are now impelled to add to their objection
the fact that (without clarifying whether testimony on a particular
point is being givcn by the witness as an expert, as a non-expert regarding
facts or as a Government official) Respondent has led insinuations with
regard to the case of the Applicants, implications with respect to benefits
or otherwise of certain policies on the basis of opinion, which bear no
relationship perceptible to the Applicants to facts of record, to say noth- WIDIESSES AND EXPERTS 123
ing of allegations truly made by the Applicants. It is therefore with
the utmost respect that the Applicants add to their previous objections
with respect to the evidence adduced by this witness, an objection to
the unsupported opinions and to the insinuations with regard to allega
tions or complaints made by the Applicants, and with regard to the at
titude (or professed or purported attitude) of unidentified individuals,
organizations or groups.
The PRESIDENT:Mr. Gross, the procedure before this Court is not
greatly different from any other court. The counsel direct questions to
the witness; either their question is a leading question, in which event
objection can be taken to the question, or the answer of the witness is
not responsive to the question which is put, in which event again objec
tion can be taken toit. If, on any particular matter, the witness who is
giving an expert opinion has not qualified as an expert, again objection
can be taken toit, and it seems to the Court that there is no prejudice to
either side in the way in which the evidence is taken before tlus Court.
It is not possible, it sèems tome, for a witness who has been sworn as an
expert and also as a witness of fact to,as he goes along, indicate: now I
am speaking as to fact, now I am giving an expert opinion; and it is
inevitable that the person who is giving evidence as an expert will both
deal with facts and also express his opinion upon the facts. It is not
easy, particularly in a case such as this, and that is recognized. There
is, moreover, no reason why that person should not give evidence as an
expert, notwithstanding the fact that he happens to be a governmental
official.hat may bear upon the weight to be given to his evidence, but
it does not bear upon the admissibility of his evidence. At the moment
I see no reason at all for the Court to intervene, in the giving of Dr.
Eiselen's evidence. The general nature of your objection in toto to his
evidence oJ being inadmissible or irrelevant is one matter and has been
noted, but the question as to whether the particular point at which you
interject-you take the exception, as you are very properly entitled to
take the exception-that that portion of his evidence was in any way
different from any preceding portion of his evidence is a matter which
at the prescnt moment the Court does not see, but it will have a look at it
over the evening.
Mr. GROSS:lt is understood, Mr. President, then, that the Applicants
respectfully reserve rights to abject on the general line being pursued on
the basis of improperly laid foundation for the evidence now being
adduced?
The PRESIDENT:Most certainly, Mr. Gross-those matters are under
stood, and as I indicated ear]ier, it is for the Court ultimately to examine
the admissibility and the weight of any evidence which is given in the
course of this hearing, and your general objection will be noted. and there
will be no need to take the general objection again.
Mr. GRoss: Thank you, Sir.
The PRESIDENT:The Court will now adjourn until three o'clock to
morrow afternoon.
Mr. MULLER:I am sorry, Mr. President-may I indicate that I have
no further questions to ask the witness, and that the next witness to be
called tomorrow would be Professor van den Haag.
The PRESIDENT:Mr. Muller, I think that it is important to indicate
to the Applicants as early as you can the point or points to which the
cvidence will be directed; I think that the Court will have somethingl24 SOUTHWEST AFRICA
more to say upon the question of this subject-matter tomorrow, but
since you are calling another witness tomorrow, I think you should
overnight indicate to the Applicants the point or points to which his
evidence willbe directed.
Mr. MuLLER: As the Court pleases, that will be done, Ilfr. President.
[Public hearing of 22 June r965}
The PRESIDENT:The hearing is resumed. Would Mr. Eiselen take his
place at the podium, please.
Mr. Muller, I understand that you have completed your examination
in chief?
Mr. MULLER:That is so, Mr. President.
The PRESIDENT:I call upon the Agent for the Applicants to ask him
whether he desires to exercise his rights to cross-examination.
Mr. GRoss: No questions, Mr. President. .
The PRESIDENT:Certain Members of the Court desire to ask questions,
and I call upon Judge Jessup fi.rst.
Judge JESSUP:Mr. Eiselen, please correct me if I make any misstate
ment in trying to repeat extracts from your testimony.
On r8 June you spoke of your fonctions (this is at p. 89, supra, of the
transcript) as Comrnissioner-General, and spoke of receiving such sub
missions as the people in your territorial area v,ished to pass on to you.
Could you give the Court two or three examples of such submissions
what kinds of matter they dealt with, and the nature of them?
Mr. E1sELEN: Mr. President, they meet as a territorial authority at
the present time, and they have an agenda, of course; offharid I could
remember that one submission was that they desired the Government to
band over to the territorial authority a number of farms on which they
could themselves now carry on experimental work, because they said
that the work done by white agricultural officers did not carry the
same weight; that lwork, if it were carried on under the auspices of
the territorial council and by Bantu officers, would carry with these
people.
Another submission that I remember, Mr. President, is in connection
with the language. As I said yesterday, certain boards have been set
up by the Education Department, and one of the tasks of the Education
Department is to prepare proper terms in the vernacular language.
Now, one of the weaknesses of the Bantu languages is that they have a
great deal of difficulty in expressing figures; they have got a roundabout
way of expressing figures, even more roundabout than the old Romans,
and the experts on the board have seen fit to use shortened terms for the
figures used in arithmetic and mathematics, and there were objections;
they required the Government to set up, or to get permission themselves
to set up a committee to go into this matter, and I may say that both
these requests were submitted and granted.
Judge JESSUP: May I ask you, Mr. Eiselen, to whom you convey
these submissions-to what official or department?
Mr. EISELEN:I convey these submissions, Mr. President, to the Min
ister of Bantu Affairs.
Judge JESSUP:Mr. Eiselen, would there be the same kind ofprocedure
and machinery in South West Africa for conveying submissions to
governments? WITNESSES AND EXPERTS 125
Mr. ErsELEN: Mr. President, I take it that the procedure would be
exactly the same.
Judge JESSUP: And in each case you attach a recommendation with
the submission, either for or against?
Mr. EISELEN: Mr. President, the experts of the department do that.
My fonction is merely to transmit those submissions to the Minister of
Native Affairs. I will say this, Mr. President, that I do have discussions
with the executive of the territorial authority beforehand, and I will
then give them my opinion and advise them in what way they should
put their submissions to the Government, but once they have passed
a resolution formulating their submission, I do not alter that, nor do I
add any comment, but merely transmit.
Judge JESSUP: You spoke, Mr. Eiselen, of serving on an educational
commission for Basutoland, I believe, and also as chairman of a com
mittee which bore your name, to consider educational problems in
South West Africa.
Mr. ErsELEN: Mr. President, may I just correct this-not a commission
foreducation in South West Africa, but the Republic of South Africa.
Judge JESSUP: I am sorry, but I would still like to ask whether your
analysis of the educational problems and your recommendations for
the solutions of those problems were by and large identical for the two
cases.
l\Ir.ErsELEN: Mr. President, they were by and large the same, but
this was some years later, and I had in the meantime had the opportunity
of seeing something of the educational work done in the Rhodesias, in
what was then called Tanganyika, Kenya, and the Belgian Congo, and
we learned there quite a great deal about the functioning of the various
Bantu authorities set up by the governments responsible for those areas;
and in that way I would say, Mr. President, that we went further in our
report, recommending greater powers for the local Bantu authorities.
Judge JESSUP: Another question if I may, Mr. Eiselen. I understood
from your comments on 18 June (I am referring to pp. 95 and 96,
sitpra, of the record of 18 June), I understood you to express the view
that the peoples of the areas in which the native Africans were living
! quote here: "They would not like to have the traditions and the customs
of others imposed upon them." I got the impression here and elsewhere
that you felt that they desired to remain in their own traditions and
customs and did not wish to share in the traditions, customs, or practices
-what you referred to once, I think, as the "white civilization". May
I ask you whether you personally know, or know of, any NativeAfricans
who personally desired to leave their customary habits, traditions, tribal
life, if you will, and would prefer to join in the "white civilization", if I
may use that expression?
Mr. ErsELEN: Mr. President, what I wished to convey-1 may not
have put it into the proper words-was this, that they certainly had no
wish to have imposed on them anything of the culture, or the traditions,
of other Bantu population groups. I think that all the Bantu people do
desire to adapt themselves in very many ways to the civilization of the
white people. Now, one might, when speaking of civilization, differentiate
between what we call culture, in the ordinary sense-that which belongs
to a definite people-and the present-day industrial, technological,
commercial civilization, which is universal, which belongs to all the
civilized people together. It is the latter which they all desire, but they126 SOUTHWESTAFRICA
would not like to shed that which they consider to have been their own
particular contribution to the growth of culture so far; but I would, in
reply to the second part of the question, Mr. President, say this, that
there are obviously quite a number of African people whom I know who
would like to shed entirely everything that is African and to become
completely European.
Judge JESSUP: And thls would not be possible at the present time?
Mr. ErsELEN: It would be possible, as far as they themselves are
concemed they could in everything become just as European, with this
difference, that they would not be really happy, they would not be
accepted by the Europeans in that area, but more important from the
point of view of our Government is this, that the good services which
could be expccted of them would be lost to their own people.
Judge JESSUP: Thank you, Mr. President.
The PRESIDENT:Judge Koretsky.
Judge KORETSKY:I shall speak to you in English. It might be more
convenient for you. You have mentioned in your answer that the ques
tions from the Respondent's Agent have some trends in political life in
South West Africa and my question is such-what is done and has been
done for the development of political institutions in South \Vest Africa
in which the people of South West Africa irrespcctive of their race have
taken and take part on an equal basis in these institutions in order to be
prepared for self-government or for self-determination? Thank you,
Mr. President.
i'.\Ir.ElsELEN: Mr. President, the attitude of my Government has
throughout been that the most promising way of taking a share in the
running of a country as a whole, is to prepare youself for that task by
first of ail running your own particular population group. That is to say,
that if you belong to the Herero, for instance, that you should first of all
within the Herero community, have that right of participating fully in
the local or regional government of that population group, learning the
ways of administration, learning the progressive ways, learning to under
stand democracy, because what they practise today is democratic in a
certain way, but not the democracy which is practised by the Western
Powers. As to the democracy practised elsewhere, Mr. President, I am
afraid that I have not sufficient knowledge in that regard to say how
they would be able to adapt themselves to that ideology. Then, passing
on from that, Mr. President, it is the policy of my Govemment that the
people, once they are able to express themselves and to state their views
and wishes clearly, should have the right to say of their own free will
whether they desire to join in a Iarger whole, and to govern that, no
longer as separate bodies but as a united people of South West Africa,
but the question would be that liberty would be given to them at a stage
when they could be expected to make their choice fully knowing what
the implications of such a choice wcre, and not merely by being compelled,
being called upon on a certain day to make a cross somewhere or another
sign behind some picture, or some sign to indicate what their desires
were, but fully understanding what the question was that was really
putto them.
The PRESIDENT:Judge Sir Louis Mbanefo.
Judge Sir Louis MBANEFO:My question links up from the answer you
have just given, and I would like first to refer you to your statement on
21 June; at page III, supra, of the record, you stated: WITNESSES ANDEXPERTS 127
"But beyond that, of course, the Odendaal Commission made
further recommendations as to developing the government of the
areas giving the Bantu people a far greater share in the development
of their areas towards ultimate independence."
I take it, that you are talking of political independence.
Mr. ErsELEN: That is correct, Mr. President.
Judge Sir Louis MBANEFO:And then, you continue:
"It was realized that the progress could not be as rapid as in
South Africa, but that in certain parts, in particular the area of the
Ovambo, which is also the most densely populated, a definite
beginning could be made at this stage."
And then, further on, you said;
"... what the policy tries to bring aboutis that the Bantu people and
the other indigenous population groups of South West Africa should
have the same dealas the white people wish to have for themselves,
that of being able to build on theirown traditions, on their own way of
life, on their own culture and to become an independent people not
subservient in any way, and to become wholly respected neighbours
of the white people in South Africa and in South West Africa".
(Supra, p. II2.)
That is your evidence, your statement. Do you mean by that, that they
become neighbours, when ultimately they obtain independence they
become independent states, living side by side with white South Africans,
white settlers, in South West Africa?
Mr. E1SE1.EN:Mr. President, the example that we have before us and
that guided our thoughts and deliberations in regard to this matter was
the shape and form the British Commonwealth had taken, on a much
larger scale than here, but we thought that in this country of ours with
its many communities, we should attempt as a microcosm of the bigger
British Commonwealth to build up a commonwealth of different com
munities in South Africa, each being independent, but belonging to
gether, having largely the same interests, especially in the economic
field.
Judge Sir Louis MBANEFO:Let us be quite clear about it-you mean
independent States of the Commonwealth?
Mr. ErsELEN: Yes.
Judge Sir Louis MBANEFO:How many states do you allege to have in
South West Africa?
Mr. ErsELEN: That, Mr. President, would be very difficult to say,
some of the units are very small. Unfortunately, the smallest one of the
indigenous ones is also the most primitive, namely the Bushmen, so
that it would be difficult to think in terms of such groups being viable
communities if they once become independent.
Judge Sir Louis MBANEFO:I am sorry to interrupt. You see, the
question of viability does not corne into it yet-you are talking of states,
states which have independence within their own unit so that as a political
unit they are states. \Vhether they are viable or not, and they decide to
join the neighbouring states-that is a separate issue, and even if they
join, they will become sovereign states~is that what you have in mind,
or are you thinking of a glorified local government?
Mr. ErsELEN.:Mr. President, the policy in regard to the further devel
opment of South West Africa with a number of these small units has not128 SOUTHWESTAFRICA
becn so fully worked out yet by the Government that I am in a position
to give a definite answer to tbis question. My own persona! view is, of
course, as I was saying, that you would hardly be able to think of Bush
men or the Dama or even of such people as the Herero as being inde
pendent states. Therefore, one does think-and now I am speaking of
my own persona! vicws only-that it would be good and proper if these
people who have been thrown together, although they have so very
little in common, should, in due course, of their own free will, decide to
forma larger whole. I am afraid that is ail that I could at this stage say,
Mr. President.
Judge Sir Louis MBANEFO:You see, yesterday you were very cate
gorical in your statements. What I understand you to say now is that
you really do not know where it is going to lead you to.
Mr. ErsELEN":Mr. President, I may have been categorical, I am, of
course, not free here to speak so long on every point. [f I had had the
time and opportunity I would then probably have given this same further
explanation of what I meant by what I said in regard to the independent
development of the various population groups in South West Africa.
Judgc Sir Louis MBANEFO:The last question I would like to ask,
Mr. President, is this: now, I do not know if you are familiar with
Article 22 of the Covenant of the League of Nations. Paragraph 1 of
Article 22 reads:
"To those colonies and territories which as a consequence of the
late war have ceased to be under the sovereignty of the States which
formerly governed them and which are inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the
modern world, there should be applied the principle that the well
being and development of such peoples form a sacred trust of civiliza
tion and that securities for the performance of this trust should be
embodied in this Covenant."
Do you accept that the authors of the Covenant in that statement were
thinking of the Native inhabitants of South West Africa when they
created the Mandate-the Ovambos and the Bushmen that you talked
about-and not the comparatively few white settlers who happened to
be there?
Mr. E1SELEN: I believe, Mr. President, that they had in mind all
the different population groups-the Bushmen, the Ovambo, the Herero,
the Dama, the Nama, the Rehoboth Basters, and the whites also.
Judge Sir Louis MBANEFO:And when you talk of independence, the
policy that you have explained to us-is it envisaged that the territory
of these people would ever as one territory have a sovereign, independent
status in which ail groups will participate fully in the government?
l\1r. EtsELEN: ~fr. President, with respect, may I ask whether this
question could be repeated, because I am not quite certain whether I
understood it correctly-to mean what I think the League had in mind,
or what the Government of the Republic has in mind?
The PRESIDENT:Weil, I hope you will not try and tell us what the
League had in mind, because no-one will know that.
Judge Sir Louis MBANEFO:I v,rillput it shortly. Does the policy of
separate dcvclopment as understood and expounded by you envisage
that a terri tory would ever attain full sovereign status, independent of
the Union-a status in the government of which ail the peoples of WITNESSES AND EXPERTS I'29
the territory, irrespective of race or colour, would freely participate?
i\lr. EISELEN: l\'lr. President, in answering this question I must again
say that I can only express a persona! opinion, and that is that it would
of course be possible, and in view of the wide-flung areas in which the
various population groups live, that they would remain together and
that they would not be deprived of those people-the geese that really
lay the golden eggs at the moment, the whites there-so that it would
be, tomy mind, a very excellent thing if the whole population of that
country, including the whites, were to form together a defi.nite unit
which might either become completely independent, or otherwise seek
to become a part of the Republic.
Judge Sir Louis MBANEFO:Do I understand by that answer that it is
the ultimate goal that they should have that status?
The PRESIDENT:The ultimate goal of~?
Judge Sir Louis l\1BANEFOT : he Republic of South Africa.
i\Ir. ErsELE.N:I would not go further, Mr. President, than to say that
the ultimate goal of the Government is that this question should be
shelved, and it should be considered at the time when each of the com
ponent parts of this artificial unit of South West Africa is sufficiently
advanced to express an opinion with reasonable clarity, and of its own
free will.
Judge Sir Louis MBANEFO:Lastly, Isuppose it would be difficult for
you to say in point of time when it is envisaged that this situation would
be reached when that decision could be taken?
Mr. EISELEN:Mr. President, Icannot venture a guess in that respect;
I can only say that the Government has embarked now on a programme
of accelerating the process of making the people in South West Africa
culture-conscious, and has voted very considerable sums of money for
the implementation of development programmes, so that. as far as the
Govemment of the Republic is concerned, it wishes to bring that day
doser-as close as possible; it will largely be in the hands of the various
population groups and their response to this to determine when that day
will arrive.
The PRESIDENT:Does any other Member of the Court desire to put a
question to Dr. Eiselen? If not, I have one question, Dr. Eiselen: as
between the various groups that you have spoken about, what are the
media of intercommunication, and what steps have been taken to develop
those media?
Mr. ErsELEN: The media of intercommunication in South West Africa,
Mr. President, are at the moment English and Afrikaans. Afrikaans, I
think I am correct in saying, bas been given preference in the past
because the majority of the white people in that area are Afrikaans
speaking, but it is prescribed that both languages should be used in the
schools. Now, going beyond the schools-when the Government offi.cers
visit those areas they speak either in English or in Afrikaans, and they
still have to make use of interpreters. One may assume that if they
want to make direct contacts, not through Government officers, they
will use either of those two languages. There is this to be said for the
English language-that it is a more universal language, a very much
more universal language; there is this to be said for Afrikaans-that
it is the home language not merely of most of the white people but also
of two of the non-white groups, of the coloured people and of the Rehoboth
Basters.130 SOUTHWESTAFRICA
The PRESIDENT:I call upon Mr. Muller to call his next witness.
Mr. MULLER:No further questions. May I ask, with respect, Mr.
President, that Dr. Eiselen be excused from further attendance?
The PRESIDENT:I will let you know after the recess, Mr. Muller. I do
not desire to ask Dr. Eiselen anything in reply.
Mr. MULLER:As the Court pleases. \Vith the Court's permission,
Mr. de Villiers will introduce the next witness.
The PRESIDENT:I call upon Mr. de Villiers.
Mt. DE VILLIERS:Mr. President, I should Jike now to call Dr. Ernest
van den Haag. As we notified the Applicants yesterday, in res'ponse to
the directive issued by you, Sir~I quote from our letter;
"We wish to confirm that Dr. Ernest van den Haag will testify
tomorrow, 22 June r965. Dr. van den Haag is a Professor of Social
Philosophy covering psychology and sociology. He has conducted
extensive research into the subject of human group formation,
group relations, group reactions, relations between individuals and
groups, the phenomenon of prejudice, factors tending to increase or
decrease prejudice, and merits and demerits of separation or at
tempted integration in particular circumstances. On the basis of
such researches and general principles recognized in his fields of
study, he will testify to the effect that a norm and/or standards of
non-discrimination or non-separation as contended for by Appplicant
are not applied in some parts of the world and could, if attempted
to be so applied, lead to unfavourable results for the well-being and
progress of the peoples concerned." .
So far the letter, Mr. President. I may say that the subject-matter
corresponds a great deal with that dealt with in Chapters VIII-XI of
Part III, Section E, of our Rejoinder, V, pages 400-461, although the
testimony will extend beyond the limits of what is dealt with there, and
will not serve to repeat what is stated. I may say also, Mr. President, that
as a matter of order of presentation we would have preferred to call
Dr. van den Haag after Professor Bruwer and Professor Logan had
testified more particularly as to the circumstances in South West Africa
pertaining to the various population groups, but unfortunately, as a
matter of practical arrangement, it was necessary for us to call Dr. van
den Haag now because he isa teaching professor and he willnot be~vailable
tous later.
Professor van den Haag will refer in the course of his testimony to a
certain number of books and articles which are not yet on record. He
will in each case make available after his testimony to the Registrar
either a copy of the book itself or a photostatic copy of the entire article
concerned. In addition, Mr. President, I may mention that after con
sideration itseems unnecessary that Dr. van den Haag take the dedara
tion as a witness in accordance with Article 53 (2). and I suggest that it
will be sufficient for him to take the declaration as an expert under
Article 53 (3) of the Rules of Court.
The PRESIDENT:Mr. de Villiers, I think it is convenient, when you
propose to refer to material which has not previously been b~fore the
Court, at the same time as you inform the Applicants as to the nature
of the evidence to be given by your witness, you should inform the
Applicants of the particular documents to which your witness intends to
refer; that practice should be followed in the future. WITNESSES ANDEXPERTS 131
Mr. DE VILLIERS:Certainly, Mr. President.
The PRESIDENT:I recognize the Agent for the Applicants.
Mr. GROSS:Mr. President, in accordance with the instructions of the
Court I should like to enter an objection for grounds which I should
like to state. \Vhether or not to do so prior to the making of the declara
tion of the witness, or immediately thereafter, I would request guidance
from the honourable President.
The PRESIDENT:That depends, Mr. Gross, what is the nature of the
objection~if it goes to the witness's evidence, you can hardly object
before he makes his affirmation. . ·
Mr. GRoss: I should like to reserve the right to make a statement of
objection following the swearing of the witness.
The PRESIDENT:Certainly. The witness will make the affirmation
Mr. VAN DEN HAAG:In my capacity as an expert, I solemnly declare
upon my honour and conscience that my statement will be in accordance
with my sincere belief.
The PRESIDENT:I call upon Mr. Gross.
Mr. GROSS:Mr. President, the basic objection of the Applicants to the
proffered testimony now to be adduced by this witness in accordance
with the statement of the counsel for the Respondent goes to the im
proper foundation laid for the testimony of this witness, which is couched
in terms set forth in the letter dated 16 June 1965 from Respondent to
the Dcputy-Registrar (which has been read into the record of the Oral
Proceedings of 21 June 1965t). specifically, the statement which I
quote from the letter as follows:
"The testimony of all the witnesses to be called will be directed
solely to the questions whether a norm and/or standards such as
contended for by Applicants exist and are applicable to South
West Africa."
Secondly, in the Applicants' respectful submission, such a foundation
for the proffered testimony is unintelligible, illusory and argumentative.
Thirdly, the testimony offered, or adduced, on such a foundation is
prejudicial to the rights of the Applicants to fair, timely and intelligible
notice of the nature and purpose of the evidence actually sought to be
introduced and to the presentation of the theory of the Respondent's
case, upon which such proffered evidence is based, rather than upon an
ambiguous and erroneous formulation by the Respondent imputed to
Applicants as their case.
Fourthly, in the Applicants' submission, such an improper foundation
is not only inherently confusing to the w:itnesses, to the Applicants, and,
with respect, to the Court itself, by purporting thus to direct evidence
at a position falsely attributed to the Applicants, but Respondent thereby
evades and conceals the basis upon which its own theory and position
rest, and the purpose of the evidence sought to be adduced in support
thereof, if any.
Fifthly, cross-examination cannot adequately be prepared when the
foundation upon which the evidence is proffered is illusory, ambiguous
and obscure.
Sixthly, in the Applicants' submission, such error and obscurity not
only arise from the fact that the evidence is based upon an unintelligible
1 See XII, PartIV.!32 SOUTH WEST AFRICA
rnisrepresentation of the Applicants' theory and position, but also from
the fact that there is complete Jack of clarity in the scheme or plan upon
which evidence is proposed to be introduced and a failure, both of timely
notice and of substance, in respect of the point, or points, or the issue,
or issues, in respect of the evidence to be proffered.
Seventh, the Applicants submit that they have been, and are further,
prejudiced by reason of the fact that the qualification of this expert to
express an opinion with respect to "the existence of a norm" is a state
ment of legal theory and legal conclusion more properly the subject of
argument than of testimony, and, from what has been stated by counsel
in introducing this witness, the witness has not been qualified as a legal
expert nor has he been presented as a member of the delegation to present
legal arguments in support of the existence or otherwise of a rule of inter
national law.
Finally, the question of the applicability, and again I quote "the ap
plicability of the rule of international law contended for by the Appli
cants to the Mandate of South West Africa" is a conclusion of law, and
nota matter of evidence, as to which this witness has not been qualified
as a legal expert, or otherwise competent, to address himself.
For these reasons, the Applicants are constrained to abject generally
to the line of questioning, which may be adduced or led, or any line of
response which may be offered by the witness based upon such a foun
dation, which, for the reasons which have been mentioned, prejudice
the rights of the Applicants in the circumstances. Unless the Court
directs otherwise, Mr. President, this general line of objection will be
considered by the Applicants as relevant to ail questions propounded
to this witness, and all answers made by him, reserving, however, with
the permission of the Court, the right to comment upon the testimony
given at an appropria te time without waiving the objections to relevance
thereof.
Thank you, Mr. President.
The PRESIDENT:i\Ir. Gross, before you resume your seat, could you
make clear to the Court the reasons that you aclvance why no evidence
can be given in relation to practice, in terms of cstablishing, or,refuting,
the existence of the customary rule of law evidenced by practice in
terms of Article 38 (b) of the Statute. Do I understand you to say that
no evidence whatever can be adduced before the Court in relation to
the general practice existing in other countries?
Mr. GROSS:Mr. President, the Applicants' answer to the President's
question is that the Applicants have not taken such a position, but that
the Applicants have not understood from the evidence proffered by
counsel that the questions to be addressed to this witness, or indeed to
any other witness, relate to questions of practice or other facts that are,
if I may again quote, as part of the response to the honourable Presi
dent's question, "whether a norm and/or standards such as contended
for by Applicants exist". The existence of a legal norm, or legal rule, or
rule of international law, is the question-and sole question-ta which
these witnesses are said to be offered for evidence of an expert nature.
This is in addition to, and cumulative of, the objection by the Applicants
based upon the fact that the questions are being led on the basis of a
false and inappropriate foundation, which does not state the Respon
dent's theory of its case or legal position but states, without specifica
tion-and from what we have observed from comments made by counsel WITNESSES ANDEXPERTS 133
during oral proceedings misstates, and misrepresents, the Applicants'
true position.It is the confusing aspects of the latter which are of par
ticular concern to the Applicants and which they feel to be prejudicial.
If the Respondent desires to proffer evidence based upon, and in sup
port of, its own theory or contentions in the case, it is the Applicants'
respectful submission that it should state its theory, and indicate with
clarity the points which tend to support its theory. But it is, with respect,
evading that responsibility by a line of evidence said tobe responsive
to. a theory and position falsely attributedtothe Applicants, which is
m1sunderstood by the Applicants themselves.
The PRESIDEKT:Well, Mr. Gross, the witness has taken the affirma
tion as an expert.I think we first should hear the qualifications of the
expert and then, as the evidence is produced, it will be open to you to
indicate to what extent you find the questions put unintelligent, un
intelligible, argumentative,or embarrassing to the Applicants, by the
nature of the question which is put and in relation to the issues in this
case. I think that is the proper course to pursue. We first should hear
the qualifications and then Mr. de Villiers can, before he goes on to ask
any questions in relation to the case, indicate again to the Court, in
rdence.o the observations made by Mr. Gross, the relevance of the evi
Mr. DE VILLIERS:Dr. van den Haag, you are an American citizen
resident in New York, but you were born, and you grew up, on the con
tinent of Europe. That is correct?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:\Vere you born of Dutch nationality?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:And did you spend the best part of the first six years
of your life in Germany?
Mr. VANDENHAAG:Yes, sir.
Mr. DE VILLIERS: Did you thereafter move with your parents to
Italy?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:Did you study in Italy?
!\fr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS;At school and at the university?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:Which universities did you attend?
Mr. VANDENHAAG:The University of Naples and the University of
Florence.
Mr. DE VILLIERS:And did you obtain a law degree?
Mr. VANDENHAAG:Yes, sir.
Mr. DE VILLIERS:Did you thereafter study at the University of the
Sorbonne in Paris?
Mr. VANDENHAAG:Yes, for about a year.
Mr. DE VILLIERS:And then you went to the United States, did you?
Mr. VANDENHAAG:Yes, sir.
Mr. DE VILLIERS:What further studies did you pursue there?
Mr. VANDENHAAG:I studied sociology at the University of Iowa and
at New York University; received a degree of Master of Arts at the
University of Iowa and Doctor of Philosophy from New York University.
Mr. DE VILLIERS:After the law degree you obtained in Italy, your
studies were confined to the social sciences were they?134 SOUTHWESTAFRICA
Mr. VAND " ENHAAG:Sociology, and later on also psycho-analysis.
Mr. DEVILLIERS:And your professional activities for the last 15 years
have been entirely in the field of sociology and psychology, together re
ferred to as social philosophy. Is that correct?
Mr. VANDENHAAG:That is correct.
Mr. DEVILLIERS:Now you are what is termed a "full professor" in the
United States?
Mr. VANDENHAAG:At New York University.
Mr. DEVILLIERS:Would you explain to the Court what is meant by a
"full professor".
Mr. VANDENHAAG:There are, in American universities, instructors,
assistant, associate and full professors. Full professor is the highest
academic rank to be obtained.
Mr. DEVILLIERS:And you are Professor of Social Philosophy at New
York University?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:Do you teach elsewhere too?
Mr. VAN DENHAAG:I am also Lecturer in Psychology and Sociology
at the new school for social research in New York.
Mr. DEVILLIERS:Have you taught elsewhere?
Mr. VANDENHAAG: I have taught in a number of universities in the
United States; I have taught at the University of Minnesota, at the
City College of New York, Brooklyn College (in the graduate division),
and at a variety of other places, usually as a guest professor, but my
normal occupation is as a Professorat New York University.
Mr. DEVILLIERS:Also outside the United States?
Mr. VANDENHAAG:I have taught at the American Seminar in Salz
burg, Austria, and lectured in Munich and other places.
Mr. DEVILLIERS:Have you delivered lectures as a guest lecturer?
Mr. VANDEN HAAG: Yes, I have lectured at Harvard University,
Yale University, the University of Chicago, Columbia University, and
quite a number of others.
Mr. DE VILLIERS:Besides teaching, on what else are you engaged?
Mr. VANDENHAAG:I am engaged in the private practice of psycho
analysis.
Mr. DE VILLIERS:Psycho-analysis; and do you write?
Mr. VANDENHAAG:I think I do, yes, I have written about 40 articles
inthe last ten vears.
Mr. DEVrLLÏERS:And you are engaged upon research?
Mr. VAND " EKHAAG:Yes, sir.
Mr. DEVILLIERS:Could you give the Court an indication of what you
have written?
Mr. VANDEN HAAG: I have written three books: Education as an
lndustry; The Fabric of Society, which deals, as the title indicates, with
what causes a society to fonction well or badly; and Passion and Social
Constraint, which deals with the conflict between social order and in
dividual passion,and the effects this may have on group formation, and
I have written a number of articles in sociological and psychological
journals,oth in the United States and abroad.H you wish I can Iist a few.
Mr. DE VILLIERS:The work called The Fabric of Society, is that used
as a textbook?
Mr. VAN DEN HAAG: Yes, sir.It was meant as a treatise but is also
used as atextbook rather widely. WITNESSES AND EXPERTS 135
Mr. DEVILLIERS:By universities?
Mr. VANDENHAAG:Yes, sir. Itis used at Harvard.
Mr. DEVILLIERS:Have you written the articles callcd "Genuine and
Spurious Integration" in the anthology Psycho-Analysis and the Social
Sciences?
Mr. VANDENHAAG:Ycs, sir. May I mention that this refers to integra
tion among the social sciences-not of people but of concepts.
Mr. DEVILLIERS:And did you also write "Creativity, Health and Art"
in Psycho-Analysis and Contemporary American Culture?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:That was a publication in 1964 by Ruitenbeek?
Mr. VAN DEN HAAG:Yes.
Mr.DEVILLIERS:I believe you have also published articles in a number
of journals, may I mention some to you: The British Journal of Sociology,
The American Sociological Review, The American Journal of Psycho
Analysis, Harpers Magazine, Law and Contemporary Problems, Diogenes,
Daedalus, Encounter, Annals of the American Academy of Political and
Social Science, and Science?
Mr. VANDENHAAG:Ali of these, yes.
Mr. DE VILLIERS:Have you contributed to encyclopaedias?
Mr. VANDENHAAG:Yes, sir. I have written the article called "Sociol
ogy" for the Cowles Encyctopaedia and I have contributed to other
encyclopaedias occasionally.
Mr. DE VILLIERS:On what research are you at present engaged?
Mr. VANDENHAAG:Well, I have several projects but my major pro
ject, which is sponsored by New York University, deals with an attempt
to measure the effects of integrated and segregated schooling on Negro
pupils under conditions when al! variables are controlled, al!r circum
stances are equal, except for the presence or absence of White co-pupils.
This study is undertaken in New York and surroundings, that is in a
place where there is no traditional segregation, but the only segregation
which exists is de facto rather than de jure.
Mr. DEVILLIERS:You have for a long time given special attention to
a subject called "minority problems", is that not so?
Mr. VANDENHAAG:Yes, I teach courses on this subject.
Mr. DEVILLIERS:What does that subject comprise?
Mr. VANDENHAAG:In effect, although conceptually it ofcourse applies
to all minorities,hat is to ail groups other than the dominant one in any
given society, in effect, in the United States, it deals largely with the
problem of relationships betwecn the Negro minority and the White
majority.
Mr. DEVILLIERS:Do you belong to a professional society?
Mr. VANDENH " AAG:I am a Fellow of the Royal Economie Society, and
a Fellow of the American Sociological Association, and a number of
professional socicties.
Mr. DEVlLLIERS:Have you appeared as an expert in court on matters
concerned with segregation in the United States?
Mr. VANDE::-H . AAG:I have appeared in the last two years three times
in United States Federal Courts, and once or twice in New York state
courts as an expert.
Mr. DE VILLIERS:That concludes the qualification of the witness,
Mr. President.
The PRESIDENT:Mr. de Villiers, without repeating what you stated136 SOUTH WEST AFRICA
this morning, would you indicate in reply, shortly, your answer to the
observations made by the Agent for the Applicants.
Mr. DE VILLIERS: Certainly, Mr. President. I must confess, with re
spect, to being completely puzzled. My learned friend, Mr. Gross, has
fastened on toan expression used in a Jetter written by our Agent on the
subject of witnesses to be called. That 1etter was written after I had been
addressing the Court for some days, in answer to his contentions ad
vanced to the Court under Article 38 of the Statute. I made perfectly
plain our position asto the manner in which we would set about answering
the Applicants' case as we understood it; and we made it perfectly plain
that in so far as the Applicants rely upon a suggested practice of States
so as to establish a rule of customary law, in terms of Article 38 (r) (b)
of the Statute, we considered that to be a matter of fact to which evi
dence could be directed.
In the particular letter in which we notified the Applicants yesterday
of the matters to which Dr. van den Haag's testimony would be directed,
we used this expression:
"He will testify to the effect that the norm and/or standards of
non-discrimination or non-separation, as contended for by Appli
cants, are not applied in some parts of the world."
This is a pure question of fact pertaining to matters of practice of States.
And carrying on, Mr. President, on this theme which I explained to the
Court before, and which I contended to the Court would be relevant to
the inquiry, that if attempted to be so applied itwould lead to unfavour
able results for the well-being and progress of the peoples concerned.
That still remains the gist of the evidence which we propose to tender and
I do not know how we could make that plainer.
My learned friend raised two other matters. He raised a number of
them but I shall concentrate on these two, and I want to make it plain
that I really do not understand what the position is and that I should
very much like to have clarity. Perhaps we could then co-operate so as
to have a minimum of interruption and objection.
One is, Mr. President, on the suggestion that we are presenting the
suggested norm and/or standards of non-discrimination and non-separa
tion to the Court in an erroneous and distorted way. We are in truth
doing our very best to understand, from such formulations as we have
on record by the Applicants and their representatives, what it is they
are contending for as being the content of the suggested norm and/or
standards. We are taking their own definitions as they give them. We
happen to differ with them as to the appropriateness or otherwise of the
descriptive name given to the content of the norm, that of non-discrimi
nation and non-separation, but we have emphasized that that is a ques
tion of nomenclature. The important thing is, what is the content which
thcy seek to assign to the norm? And we have looked at their own defini
tions in their own formai submissions to the Court tendered on those
submissions and in the informai explanations given in Court.
We emphasized to the Court why we considered that according to
those definitions the norrn related to an absolute question of non-differen
tiation in the allotment of rights and obligations on the basis of member
ship in a group, race or class; but then, having regard again to certain
aspects of the contentions addressed to the Court in the course of argu
ment, it would seem that Applicants possibly have in mind some qualifi- WITNESSES AND EXPERTS 137
cations. \Ve were not dear on the qualifications: we did our best to ab
stract what they could possibly be, and so we suggested to the Court
that we would deal with the matter on the dual basis, first of an absolute
norm or standard of non-differentiation and, in the alternative, also on
the basis of the norm subject tothe qualifications. That is the best we can
do. ·
We have to address our evidence tothe case which isbeing made against
us and I do not understand my learned friend when he says that it is
impermissible for us to address our evidence to what we understand the
case to be which is being made against us. Surely, if we have to address
our evidence to anything, it is exactly to that case and not to the type
of case which we would have liked the Applicants to make or which we
suggest is the only one the Applicants could have made, when they make
it perfectly dear that they do not make such a case.
If, Mr. President, I suggest with respect, we could find some time to
dear up this situation it might possibly help.
The further factor which I do not understand is my learned friends'
continuous reference to their difficulties which they have with our scheme
and with prior notifications. I can understand questions of that kind
being raised when I know that I am dealing with opponents who want
to exercise a right of cross-examination. Then I can perfectly understand
that, and then we should be pleased to co-operate, Mr. President, even
by giving more time as notice as far as we possibly can, subject to the
practical difficulties we have in that regard, as to which witnesses we
are going to call and on what subjects. We shall be perfectly willing to do
that, but I have understood my Iearned friend to say categorically on
several occasions that he does not intend to cross-examine at all. That
is why we are, in that respect also, somewhat nonplussed by the attitude
taken. However, that, Mr. President, in brief, is why we suggest that the
evidence in general will be relevant and, in particular, the evidence of
Dr. van den Haag along the lines that I have indicated.
The PRESIDENT:Mr. Gross, it seems to the Court that there are no
difficulties placed in your way and, at the moment, I do not see the em
barrassment which you daim to exist. It does not assist very much to
say that certain matters are unintelligible or that they are embarrassing,
one wants 1:oknow in what sense they are unintelligible or embarrassing.
The case of the Applicants was based upon a norm which they daim
exists, and which they assert does not require or admit of any factual
evidence at all beyond that which the Applicants themselves have placed
before the Court. The case for the Respondent, on the other hand, is that
it cannot be held liable for a breach of the Mandate unless its activities
were directed to an alien purpose~a purpose alien to Article z of the
l\fandate--or unless their powers were exercised mala fide. The evidence
of this witness seems to be directed to both issues; one, to establish in
terms of practice in other parts of the world that there is no such custom
ary norm, as is contended for by the Applicants; that it is not supported
by general practice; and then it also appears, on the face of it, to be
relevant to the question whether such a norm could be consistent with
the welfare of the people, and, if it were not, the Respondent would say
that that would go to indicate that the exercise of their powers was not
mala fide. Now; on-either of those·grounds do you say that the evidence
which is being foreshadowed is inadmissible?
Finally, it is not possible, it seeto the Court, that an applicant should138 SOUTH WEST AFRICA
be told in detail what a witness's evidence is going to be. It is not the
normal practice. So long as they are given sufficient notice of what the
nature of the evidence is, in what way are the Applicants prejudiced?
· Would you deal with the question of admissibility first, that is on the
two grounds that I put, namely (1) whether you say that under no cir
cumstances, on the Applicants' case or the Respondent's case, evidence
of general practice can be given, and (2) that no evidence can be led to
establish that the alleged norm, if applied in South West Africa, would
be inconsistent with the welfare of the people.
Mr. GROSS: Mr. President, 1 shall attempt to deal with the question
with due awareness of the fact that the arguments have been lengthy
and complete and that the Applicants have rested their case subject to
their reservations under the Statute and the Rules, and, therefore 1 shall
refrain, to the best of my ability, from re-arguing or even summarizing
the arguments which the Applicants have addressed to the Court. With
that assurance, I should like to ask the forbearance of the Court if an
attempt is made to respond to the honourable President's question in the
following terms.
The App1icants' case is, in the Applicants' submission, not accurately
or fairly reflected in the Respondent's summary thereof or description
thereof, as to which the evidence is proffered by Respondent. The phrase
which is used and attributed to the Applicants, and described by Re
spondent in repeated references in the Oral Proceedings (to which cita
tions will gladly be offered by the Applicants if permitted or requested),
does not correspond to the fundamental theory of the Applicants' case.
There are two major branches of the Applicants' case. One relates to
standards of interpretation which have been applied by competent inter
national organizations as part of the scheme of the Mandate. This in
volves the standard of interpretation, of a content described by the Ap
plicants, in relation to the supervisory organ responsible for the super
vision of the Mandate, and also involves the relationship between that
administrative agency and the Court. This branch of the case, therefore,
reflects and is based upon a legal theory which involves the mandate
jurisprudence, which involves the clear, explicit and virtually unanimous
pronouncements and judgments of the competent international organ
which the Applicants submit, for reasons which have been set forth in
detail, should be accepted by the Court as authoritative interpretations
of the Mandate. It is apartheid we are talking about. If this witness or
any witness address himself as an expert or otherwise to the questions
of discrimination and separation which are implicit in and reflected in
the undisputed facts of record in this case, there would be no question
of admissibility of such evidence so directed by competent witnesses
with respect to that branch of the Applicants' case.
And, secondly, Mr. President, with respect to the norm, the rule of
international law for which the Applicants con tend in terms of Article 38
of the Statute-that, as the Court will well be aware, has been presented
to the Court as an alternative and a cumulative, or supplemental, argu
ment on the basis that the practice of States and the views of the com
petent international organs are so clear, so explicit, and so unanimous in
respect of the policies against discrimination, that such standards have
achieved the status of an international rule of law, as a legal conclusion
based upon the application of Article 38.
These are the branches of the case. When the evidence is proffered WITNESSES ANDEXPERTS 139
indiscrinùnately with respect to the formula, "norm and/or standards
as contended for by the Applicants", reflecting and echoing a descrip
tion thereof in the Oral Proceedings which bears no resemblance to that
contended for by the Applicants, either as a standard of interpretation
or as a rule of international law, the Applicants have respectfully sub
nùtted that such a proffer based upon such a prenùse or foundation is
(with respect, the word used, Mr. President, was "unintelligible" and it
may not be "unintelligent") but it is incomprehensible as to what this
witness, or any witness, asked to testify with respect to such a formula
tion, is really addressing himself to.
Now, finally, Mr. President, again with apologies for this lengthy
response, as to the question of practice of States-if this or any other
witness is competent to testify with respect to the practice of States,
citing the official laws and regulations which, in his view, do constitute
discrimination or separation by reason of group without regard to in
dividual merit or capacity (which is the contention of the Applicants
as to the content and nature of the normand standards), I should think
that it would be perfectly easy for learned counsel for Respondent to
explain precisely the standards for which he contends, as standards of
interpretation of this Mandate-of Article z of the Mandate-ta which
witnesses are to address themselves. And, with respect to the norm,
Mr. President, there is no question in the minds of the Applicants, nor
has any question been raised, with respect to the relevance of evidence
concerning the practice of States, by witnesses competent with regard
to laws, regulations, or official practices which are contended, or analysed
as, embodying discriminatory practices, in the actual sense found by the
competent organs here.
I should like, withthe permission of the Court, to question the witness
concerning his qualifications, unless indeed there are further questions
with regard to the material I have just ...
The PRESIDENT:That is an entirely different matter altogether. Have
you finished the observations?
Mr. GRoss: I have, M.r. President.
The PRESIDENT:Weil, I think the Court will hear the evidence. As we
indicated yesterday, the Courtis quite competent to value evidence and
admissibility. At the moment the two contentions are advanced, on the
one side, by the Applicants, and, on the other side, by the Respondent,
as to the interpretation tobe placed upon Article 2 of the Mandate. The
Court will probably not be able to determine completely ail questions of
relevance of evidence until it cornes toits final adjudicationI think the
evidence should proceed.
Mr. Gross, you indicated that you desire to cross-examine the wit
ness in respect of bis qualifications as an expert. He has qualified as an
expert upon his testimony and the proper time to do it will be in cross
examination.
Mr. GRoss: Thank you, Mr. President.
The PRES1DENT:Mr. de Villiers.
Mr. DE VILLIERS: Mr. van den Haag, have you ever lived in the
Southern States of the United States?
Mr. VANDENHAAG:No, sir.
Mr. DE VILLIERS:\Vhere have you lived thus far? In which parts?
Mr. VAN DEN HAAG: Ihave Iived in New York, in the ;v[iddleWest, in
Iowa City when I studied there, for a brief time in Chicago and for a140 SOUTH WEST AFRICA
brief time in Philadelphia and mainly again in New York. I have never
been beyond the Middle and the Far West except for two or three days
at a time.
Mr. DE VILLIERS: Now you have told the'Court that you have made a
special study of minority problems and particularly Negro-White rela
tionships. Could you tellthe Court, in general, where you stand as a mat
ter of sympathy, as far as the Negro cause, or as one might call it, the
Negro question, is concerned; where does your sympathy lie?
Mr. VAN DEN HAAG: Weil, I would guess sir, I would say, it lies with
both sides. I am interested in an arrangement that would be satisfactory
both to Negroes and to Whites and, in this respect, I have maintained
for many years, that in the United States and particularly in the South
of the United States, but also in the North, negroes quite illegally and
sometimes through the instrumentalities of state laws and at least,
practices, have been deprived of rights that they should have, both
constitutionally and in regard to generally accepted principles of hu
manity. I am not-let me add this-fully in agreement with the policies
presently pursued to bring about a better arrangement because I think the
means will not be very suitable to the ends, but as far as the ends them
selves are concerned, namely to bring about a state of equality, of op
portunity, between Negroes and Whites, I certainly am in favour of
that.
Mr. DE VILLIERS: How did it corne about that you specially interested
yourself in the Negro question?
Mr. VAN DEN HAAG: Well, it is one of the most prorninent social prob
lems now in the United States and I am a sociologist and interested in the
social problems that affect the society in which I live. I think it is even
a world-wide problem, as these particular proceedings certainly demon
strate.
Mr. DE VILLIERS: Now in your approach to the subject as a sociologist,
have you any assumptions or major premises on questions of racial
superiority or the like concept?
Mr. VAN DEN HAAG:This concept of racial superiority or inferiority,
has always seemed unintelligible to me, for if we were to admit, and I
am willing to grant, that the different races both as defined biologically
and perhaps as defined socially do probably have different physical and
perhaps correlated with that, different psychological qualifications, this
last point in parentheses, this last point may I mention, is an open
question. There are numerous geneticists who feel that there is probably
no correlation between the differential distribution of physical charac
teristicsand the differential distribution of psychological ones. Others
feel that there is, and I do not myself feel competent to testify on this
point, not being a geneticist. However, whatever they may be, suppose it
were to be found that, toillustrate, Negroes on the whole are able on the
average, or more frequently, are able to run faster than Whites and
Whites, again by way of illustration, are able to jump higher than
Negroes, it would not follow that one is superior to the other or the other
inferior to the first. It would merely follow that they are different. That
there are differences is fairly clear by visual inspection. To attribute
qualities of superiority or inferiority means to make a value judgment
which, in effect, says that this particular quality, blonde hair, white skin,
jumping higher, or running faster, is of great importance and gives
superiority or inferiority to the person who lacks it or possesses it. That WITNESSES AND EXPERTS
is a value judgrnent which is entirely outside the scope of science and,
by the way, a value judgrnent that I personally reject.
To answer your question more briefly, I reject the idea of racial in
feriority or superiority, though I am willing to accept the idea of racial
diffcrences.
Mr. DE VILLIERS: Could you indicate whether there is, in that respect,
a difference in the approach of the sociologist to questions of group
relationships, a difference from that of say a geneticist?
Mr. VANDENHAAG:Yes, a geneticist would, of course, be concerned
with whether there are inherently different characteristics,whatever
they are, and whether these characteristics are genetically inheritable.
A sociologist, such as I am, would not be interested really in the existence
of these differences, except in a marginal way. He would be interested in
their perception and their cultural elaboration, that is, he would wonder
whether one group is perceived by another group as different, and how
and what the effects of that may be; he would not ask himself so much:
is it different? but rather, what are the social causes that lead to the
perception as different? and what may be the effects? and ifit constitutes
a problem, what can or should be done aboutit?
Mr. DE VILLIERS: So, as a sociologist, for that purpose would it be
correct to say that your assumption is a neutral one as far as various
genetic theories may be concemed?
Mr. VAN DEN HAAG:I do not think I am competent to decide on them,
and I do not think for my purposes it is even necessary to make an
assumption.
Mr. DE VILLIERS: Now could you explain, as a sociologist, what you
regard as a human group?
Mr. VAN DEN HAAG: Sociologists give a specific meaning to social
group-we distinguish it from a mere aggregate of persans. By a social
group we mean basicaJly an aggregate that feels as a group, that is bound
together by a feeling of group solidarity usually based on the perception
of similar characteristics, on a sharing of values, on, possibly, common
historical experience; in the past such groups were very largely formed
on the basis ofreligion-the very word "religion" cornes from "religare",
to bind together-and the group usually supposed itself to be like a
family who have originated from a common parent. Today religion bas
become somewhat Jess important in this feeling of group solidarity,
and through the rise of nationalism, common langua~e, both in the
direct and in the metaphorical sense, common histoncal experience,
common enemies, common friends, common values and so on have
played a greater role. Let me illustra te: we have, for instance, in the
case of the Jews, a case where the group feels largely as a group because
of common experience which has occurred in a number of countries, and
this feeling of community or group solidarity became strong enough to
lead this tribal and religious group to form a new nation. In fact, I
would say that nations are groups held together by cultural values that
are perceived as common. Now let me add that this mutual identification
of group members seems to me, and I think to most sociologists, the
foundation for law-abidingness. For the group members, having common
customs, tend to accept a common organization and to obey common
laws--certainly it is true that laws are fortified by sanctions against
violators,but laws work only because few people are tempted to violate
them, and the sanctions are required only against a few people, and mostI42 SOUTH WEST AFRICA
people tend voluntarily to obey the laws precisely because these laws
spring from shared and common values and customs within the group
in which they prevail.
Mr. DE VILLIERS: So that is a factor of importance for you, as a scien
tist-to observe the existence of a group, of a sense of solidarity, the
factor of law-abidingness and of abiding by customs which have not
attained the force of law. Are there any other factors to which you would
have regard in order to ascertain this sense of group solidarity?
Mr. VAN DEN HAAG: Well, I should thînk that it is in a sense somewhat
tested by various manifestations other than mere obedience to law;
group members, for instance, are usually willing to make unrequited
sacrifices in such cases as war and various emergencies; I should think
that this would be impossible unless there is a previously established
feeling that the members of the group have enough in common so that
each member is willing to at least bear the risk of sacrifice, injury and
even death, if necessary. I think I was a little vague on the reasons for
group formation, and the reason I am a little vague is that no-one has
really been able to show exactly what is required-a group becomes a
social group if it feels and acts like one, and it feels and acts like one for
any of the reasons that I have given. Now there are cases where there is
no common language; there are cases where there are rather few common
customs, but perhaps a common enemy, or something like that; but in
all such cases, what one may say in a most general sense is that the group
is held together by a common culture which includes the feelings, per
ceptions, attitudes, values and disvalues of the group.
Mr. DE VILLIERS: Now, these common groups-may they grow up
historically?
Mr. VAN DEN HAAG: Yes.
Mr. DE VILLIERS: The common bonds, I mean-you have said religion
could play a part-what about ethnie assimilation?
Mr. VAN DEN HAAG: \Vell, as I said, there is a perception of similarity
in the group members; they often originally regarded themselves as
children of the same family most of the time-for instance, religiously
speaking, God is referred to as a father, and the group members feel as
the children of the same father. Now, as we are well aware, religions
were originally tribal in nature, so that the members of one group felt
solidarity to some extcnt also by identification with his fellow members
and de-identification with non-members, and this sentiment of identifi
cation and de-identification was based on cultural matters, but also I
would say on ethnie matters-I use the word "ethnie" to mean both
culture and biological origin, or at least as a perception of biological
similaritiesand dissimilarities, including such things as various physical
characteristics.
Mr. DE VILLIERS: Perhaps we could get it clear if we ask you what
distinction would you draw, if any, between an ethnie group and racial
distinctions?
Mr. VAN DEN HAAG: Generally speaking, an ethnie group is a sub-group
of a race-you will speak of, say, the Jews as an ethnie group being part
of the Caucasian race, for instance, but thcse terms, let me point out, are
used in a variety of ways by a variety of people, and I do not think that
I want to legislate on what their use should be; but, at least in American
usage, "ethnie" refers to a sub-group of a larger grouping which is called
"racial", but some anthropologists in America now, since the word WITNESSES AND EXPERTS 143
"race" has fallen into disrepute, try to avoid it and use the word "ethnie"
as a more general term.
Mr. DE VILLIERS: For you, as a sociologist, that feeling of identity,
those common bonds-thcy arc the major factor?
Mr. VANDENHAAG:That is the essence of a social group, yes.
Mr. DE VILLIERS: And it <::ouldpartake of these differcnt forms you
have mentioned?
1\fr. VANDENHAAG:Yes.
Mr. DE VILLIERS: Now, do all people within one geographic area
necessarily or always form one group or share the same culture?
1\Ir.VANDENHAAG:Certainly not; for a variety of reasons that is very
often not the case, and again let me point out, historically speaking, in
many cases the sovereign has felt it desirable-we have, for instance,
cases where the sovereign felt that in his dominion only one religion
should prevail, wherefore he would then sometimes eliminate, with
rather drastic measures, ail religions other than the one he would regard as
usefulto group solidarity, but in many cases now we have larger groups
including anumber of smaller groups, and in some cases we have more or
less compatible groups living together in the same state (area).
Let me point out that a variety of ways of dealing with this has been
found. One, very simple, is, for instance, to throw out or kilt the group
that belongs to a different ethnie or cultural division. I could mention a
number of such cases, for instance, the division of India and Pakistan
led to the exchange of about eight million population, also, an exchange
that certainly was not easy on the Indians in question. In some cases,
again India and Pakistan is one case, partition was also involvcd. If you
look at what happened after the Second World War you will find that
territories that were ceded, or at least occupied, by Poland and Czecho
slovakia had been inhabitated by ethnie Germans, and that the Polish
and Czechoslovakian Governments immediately insisted on these ethnie
Germans leaving what had now become Poland and Czechoslovakia. In
cidentally they had no choice, that is, it was not possible, say, for a
German farmer in this situation to say, well, I am willing to become a
Polish citizen, or something likehat. He was manu militari compelled to
leave the territory because apparently the Polish Govemment felt that
his ethnie Germanness would introduce an element of dis-solidarity into
the Polish State, or Czechos1ovakian State, and so on.
If you wish me to illustra te this further I will: there are quite a number
of such cases.
Mr. DE V1LLIERS: Yes, I should like you to mention some more, but
I should also like you to give attention to this factor, whether in these
instances of which you speak the action, by whatever authority it was,
was to be seen merely as having a negative effect of separation, or dis
crimination, or what have you, or whether it was also perceived of as
having positive value.
Mr. VAN DEN HAAG:Weil, the best people to ask about that would be
the participants, but I think in many cases-let me take the case that
I have just mentioned, of the migration of people of German origin
from territories now Polish and Czech-1 think in the short run this
involved considerable suffering and sacrifices. I rather fcel myself that
in the long run it probably eliminates problems that in the future might
have led to considerably more suffering than has now been experienced
by these minorities. And again, the partition of Indîa and Pakistan, as144 SOUTH WEST AFRICA
I said, was certainly hard on many of the people involved, but I am not
sure that in the long run it may not lead to less suffering than would have
occurred had there been no such partition. There was certainly a greater
danger of communal clashes, clashes between the various self-identified
groups, and perhaps partition was the best way of preserving. in the
long run, the peace among thcm.
Again, you may refer to the case of Israel. The State of Israel was
founded, giving finally a homeland to the Jews, which they had long
been promiscd, but of course that also led to about eight hundred thou
sand Arabs leaving the country, not quite voluntarily, in most cases, and
still hanging literally around its borders and no doubt undergoing great
suffering.
So the question you are asking me is a little hard to decide in a purely
scientific sense: we have sufferingnd reasonable interests on both sides.
I should think that, in the long run, sometimes I would certainly want
to recommend partition, sometimes I would want to recommend an
attempt at separate existence under the same government, and sometimes
I might want to recommend an attempt at integration or assimilation of
the minority, and that would depend on the circumstances that would be
involved in each case.
Mr. DE VILLIERS: Would it be correct to say that it would involve a
balancing of varions values?
Mr. VAN DEN HAAG: That is correct, yes.
Mr. DE VILLIERS: In each particular case?
Mr. VAN DEN HAAG: Yes.
Mr. DE VILLIERS: Are you acquainted with a case of what was formerly
called "Ruanda Urundi" in Africa?
Mr. VAN DEN HAAG: I have been there, as a matter of fact, but only
for about one day, so my acquaintance stems more from the literature.
This was formerly a Belgian Colony and the two countries youmentioned
were administered as one colonial unit. As the Belgians withdrew the
country, upon the desires of the inhabitants, was divided into two, one
Ruanda, one Urundi. However, this division, although the two countries
are so small as to be scarcely viable, I would say, from an economic
viewpoint, this division, nonetheless, was not enough.
In one of the countries, Ruanda, there Iived two ethnie and culturally
distinct groups, the Bahutu and the Watutsi; the Watutsi are very tall,
in factthe tallest group of people in the world, I understand. The Watutsi
had for a long time subjugated the Bahutu and as the Bahutu in the
newly divided territory, Ruanda, acquired power, partly because they
constituted the majority, they used this power to quite literally kill as
many of the \Vatutsi as they could, and compelled the others to flee to
neighbouring countries. In fact, I think it was the United Nations that
helped in giving refuge to a number of these displaced Watutsi. So here
we have a case where I think the separation, though economically
quite unviable, in my opinion, nonetheless was indicated for reasons of
group conflict but where I think it was not sufficient, and the events that
I have described took place. lndeed, in the area in question there is still
turmoil and the matter has by no means been settled, because the
Watutsi are certainly eager to reconquer the territory from which they
have been chased by .force.
Mr. DE VILLIERS: Do you have further instances of forced re-location
of one ethnie group by another? WITNESSES AND EXPERTS 145
)fr.VAN !)EN HAAG:\Vell, I think there are quite a number: let me
mention a few. There is certainly one, well known in Russia, where in
1943 the so-called "Volga Germans" were as a group, and against their
wishes, transferred to Siberia because the Russian Government, feeling
that it was already at war, or going to be at war, with German y, did not
feel that these people, being ethnie Germans, could be trustcd to be loyal
to the Russian side, and therefore they wished to place them out of
harm's way and transferred them to Siberia.
I must say that a similar case occurred in the United States where-
1 would rather refer here to a book if I may-the Japanese were forcibly
relocated from the West Coast where thev had been located before, and
compelled to enter various relocation céntrcs. It is rathcr interesting.
Many people, including myself, were very doubtful on the constitutional
reason for that, but the United States Supreme Court has decided three
cases (and I have with me photostats which I will offer for the record),
and in these cases it has found that the President had the power to
provide for this possible relocation of people who were distinguished
from other United States citizens merely because of their Japanese origin.
Let me point out tktt these people were United States citizens, often
of four generations;that the Japanese were certainly not the only group
in the United States that was ethnîcally relatcd to an enemy alien group,
so were the Germans, no doubt, and the Italians. But the Germans and
the Italians were not forcibly relocated and for that matter were not
placed in any camps. Now the reasons for the relocation, some of them,
at least; I may quote General De Witt, who was the military commander
who undertook, by the authority of the President, this relocation. Being
questioned before a Congressional Committee, he said the following:
"The Japanese race is an enemy race, and white many second and
third generation Japanese barn on United States soil possess United
States citizenship, and have become Amcricanized, the racial strains
are undilutcd, he is 'still a Japanese and you cannot change him
by giving him a piece of paper'."
Perhaps I should quote a comment that Professor Eugene V. Rostow,
Professor of Law at Yale University, made on this. He said as follows:
"The original programme of relocation was in no way required
or justifiedy the circumstances of the war, but the Supreme Court
in three extraordinary decisions has upheld its main features as
constitutional."
And he goes on to say that these Supreme Court decisions have given the
authorities, in effect the President, a weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent need.
:Mr. DE VILLIERS: Professor van den Haag, we need not go into the
controversial aspects of the decisions themselves, but the Supreme Court
decided on the basis of emergency powers justifying this particular
decision, did not they?
Mr. VANDENHAAG:Weil, yes, except that the emergency is always
self-declared. Let me put it this way. No showing occurred before the
Supreme Court that any of the Japanese relocated had shown disloyalty.
What was being said was simply that the authorities were unable to find
out whether they might not be disloyal, and they suspected on the basis
of their racial or ethnie ancestry that there was this possibility and there
fore they relocated. They felt that as far as the Germans were concemed146 SOUTHWESTAFRICA
they could make individual distinctions. But as far as theJapanesewere
concerned they felt that they had to confine the group as a whole.
As you say, correctly, this decision has been opposed by many people,
but it is a decision that is still valid, that is the constitutional interpreta
tion has not been overthrown.
Mr. DEVILLIERS;In other words, the line of demarcation, your point
is, was the ethnie line?
l\lr. VANDENHAAG:No other .
.Mr. DEVILLIERS:It was that. and the circumstances there, viz., the
circumstances of emergency, were found to justify that line of demarca
tion in the particular circumstances?
Mr. VANDENHAAG:Quite so.
There are other instances, with regard to the United States. I may point
out that we have still such lines of demarcation in a number of parallel
practices. For instance, if wc look at our prescnt immigration laws, it is
generally admitted that these are based on purely ethnie, or racial, if
you wish, distinctions.
Let me illustrate this point very briefly, and I am referring to imnùgra
tion laws as they now exist-the last codification of the immigration
laws occurred in 1952 and that is the one, the so-called McCarran
Walter Act ...
Mr. DEVILLIERS:Will you, please, mention the name of the book for
the record purposes? ·
Mr. VA~ DENHAAG:Certainly. This is Brewton Berry, Professorat the
State University of Ohio, and bis book is called Race and Ethnie Relations.
I am quoting from the 3rd Edition (p. 337); it is a commonly used text
book. What he states is that "the quota system, based upon national
origins, bas remained intact". And we see this. If you will look at the
quotas you will find, for instance, that people barn in Germany can
emigrate to the United States in the number of 25 thousand and some
hundreds, in Great Britain 65 thousand and some hundreds, in all of
Africa 3,200, in ail of Asia 3,290. In other words, the quota for a11of
Asia and the quota for all of Africa is a few thousand, whereas the quota
for Great Britain, Germany, and, generally speaking, the northern
European countries, is out of proportion. Let me point out, further, that
these quotas are strictly not (as they are sometimes called) by political
or juridical origin but really by racial origin. For instance, Orientais
suffer a very special type of discrimination qua Orientais even though
they may be naturalized citizens, for instance of Great Britain, such as
some of the Hong Kong Chinese are-they do not came under the quotas
of their Western nationalities but are placed under the quota of Orientais,
that is, imnùgration is limited to 3,290 per year. This policy was first
codified in 1920 and, as I said, recodified in 1952. I may point out, since
I would feel somewhat disturbed if it were to be believed that America
is alone in this, that this practice is also followed, in effect, in Australia.
Mr. DE VILLIERS:We have dealt with that, Dr. van den Haag. \Ve
need not go into the details. You have read the portion of our Rejoinder,
V, pages 196-197, dealing with the cases of Australia and New Zealand,
the United Kingdom and Canada. Have you read our exposition?
Mr. VANDENHAAG:I certainly have, I must say my recollection is not
altogether clear, but I can summarize it very briefly by painting out that
in a number of nations, that for instance in Australia, the total number of
Coloured cüizens is r percent, or something like that of the total popula- WITNESSES AND EXPERTS 147
tion which certainly would not have corne about were it not that immi
gration is racially restricted.
In Great Britain, I may point out (and this is, of course, in recent
memory; I must admit I do not recall that I read it in your brief), had
a policy of quite free immigration from its various dependencies. This
policy has recently been changcd as more and more Coloured people,
attracted by economic opportunity, no doubt, entered Great Britain.
As a result,the last Conservative Government imposed some restrictions
which were bitterly opposed by the Labour Party which called them
hypocritical, if I recall correctly, but as the Labour Government came
to power it, contrary to its promise, did not change these restrictions.
So what we have here is that Great Britain, though it has not relocated
or con.finedits Coloured citizens to any particular place in Great Britain,
has found it much easier simply to confine them to their locations, or
origin, by not permitting them, in great numbers, to enter into Great
Britain. The reason given, very largely, was that owing to cultural and
ethnie differences, it would be very hard for the population to absorb a
great number of these aliens-felt as aliens although politically and
juridically they are of course not aliens.
Mr. DE VILLIERS: For the good of the population as a whole?
Mr. VAN DEN HAAG: Undoubtedly, although I am sure that the people
in Jamaica may not agree.
Mr. DE VILLIERS: You had, I think, a quotation in regard to Canada
which you wanted to add to those we have given to the Court?
Mr. VAN DEN HAAG: Yes, I have. This is from the Canada Yearbook,
an official publication, which in 1932 (and I am interested in the differen
ces in language) stated: "Canadians usually prefer that settlers should
be of a readily assimilable type, already identified by race or language
with one of the two great races now inhabiting the country."
The official Yearbook for 1963 makes the same point, but in a language
which is perhaps a little bit more diplomatie, by saying it has been the
policy of the Canadian Government to stimulate the growth of popula
tion "by selective immigration. Efforts are made to choose immigrants of
prospective adaptability to the Canadian way of life." Now, this is a
rather vague phrase but my feeling is that it means quite what was meant
in 1932 though it put it a little bit less bluntly.
Mr. DE VILLIERS: Now, I will ask you later on questions of comparisons
or the possibility of comparing at all-drawing comparisons between a
situation in the United States and, say, in Africa, but, before we corne
to that, we ought to have clarity on some aspects of the situation in the
United States. Do you know of examples, other than by federal action,
of official action or legislative action making racial distinctions in the
.United States?
Mr. VAN DEN HAAG: Let me make two points in my answer. First,
in addition to the federal acts that I have mentioned, there has been a
considerable degree of voluntary regulation. The whole Republic of
Liberia was, after all, founded very largely by American Negroes deciding
to leave the country and in Africa found their own separate country in
which, in effect. they tried to make it hard for Whites to settle. As a
matter of fact, if I am correctly informed, a White persan cannot own
realestate in Liberia and this at the present time. Now this, of course,
was of use onlyto a rather small group of American Negroes, but through
out the history of minority relations in America you find that among the SOUTH WEST AFRICA
Negro population there have been a number of groups that have insisted
on separation of the Negroes from Whites. Perhaps, the mostimportant,
or at least the most numerous, of such groups was the Universal Asso
ciation for Negro Improvement formed by Marcus Garvey and which
flourished very much in the 1920s when it was said to have two million
members-these figures I would not want to vouch for because these are
the figures that the Association itself gave and they have certainly not
been checked. But it is entirely true that it was a major political force,
that it filled at its congress Madison Square Garden, which is quite a big
place, and was fi.nancia1Iy and otherwise quite powerful. Its major aim
was the return of Negroes to Africa. It did not achieve its purpose and I
think itcould not, but itcertainly did indicate that there was such a quite
voluntary movement afoot. I may say, incidentally, that they also in
fluenced officialauthoritiesand on American usage, for instance, the word
"Negro" is always spelt with a capital N, and the major reason for that
is that this association insisted on that and persuaded the Board of
Education of New York to adopt this spelling which then spread all over
as a symbolic tribute to the dignity of the Negro race.
Such movements have been many. There are at the present time about
70 such groups. The most important perhaps is one headed by a man
named Elija Muhamet who has founded a group called "The Nation of
Islam". The purpose of that group is to persuade, or force, the United
States Government to relocate Negroes in the United States by giving
them a territory of their own in which they would have a high degree of
sovereignty and in which Whites would not be permitted to settle. The
programme is not altogether clear tome, and, again, the membership of
this association is not altogether certain but it does play a considerable
role and such writers as James Baldwin, for instance, certainly, and
rightly, taken seriously, have expressed extremely high regard for the
movement and its protagonists and have pointed out, I think quite cor
rectly, that the members of the movement are distinguished from many
other Negro citizens of the United States by their better deportment,
their abstinence from alcoholic beverages, and various drugs, their
exemplary farnily life, and generally what you would speak of as integra
tion of personality.
Now that was one point I wished to make-that is, there are a number
of unofficial, voluntary movements.
Mr. DE VILLIERS: Now, before you leave those, is it not sometimes sug
gested that leaders of a movement like this Moslem movement you have
just referred to-are rather eccentric or fanatical?
Mr. VAN DEN HAAG: I rather think they are myself but that I think
is usually the case with the founders 9f either new religions or new
political movements of this kind. They are often proposing something
that seems utterly impractical but sometimes their very existence and
the prophesies they have made has led toits own fulfilment, so I would
certainlynot vouch ...
Mr. DE VILLIERS: The question I wanted to ask you was about these
other 70 national movements you mentioned. Are they equally extreme
or do they show various shades of moderation?
Mr. VAN DEN HAAG: There is an enormous amount of shading; I may
add, just to avoid giving a wrong picture, that the major Negro move
ments in the United States are certainly not the ones that I have men
tioned. These are important but, at the present time, I think the National WITNESSES AND EXPERTS 149
Association for the Improvement of Coloured People and others that are
taking a much more moderate line are probably more influential among
Negroes as a whole. They arc ccrtainly regarded as more influential by
the United States authorities who tend to deal with them to a greater
extent than to deal with these groups.
Mr. DE VILLIERS; But still advocating some form or other of voluntary
relocation?
Mr. VAN DEN HAAG: Certain groups I mentioned do. The National
Association for the Improvement of Coloured People I do not think does.
Mr. DE VILLIERS: Those then, as far as the voluntary movements are
concerned.
Now to corne back to my question about official action. Do you still
frnd examples of official action within the United States which have the
effect of diflerentiating between groups, particularly this instance of be
tween Negroes and white American citizens?
Mr. VAN DEN HAAG: Well, certainly if you mean by official action by
governmental authorities, many govemmental authorities below the
federal level (state authorities and so on) persist in undertaking such
official actions even though most of these actions have become, owing to
the Supreme Court's decision in Brown v. Board of Education and a num
ber of subsequent decisions, to say the least, of dubious legal standing.
But it seems, particularly in the southern states, the local authorities
are not willing to throw in the towel and give up the battle, but rather
they persist: in ever-renewed actions trying to maintain some degree of
segregation~sometimes directly, sometimes by closing the facility that
the Court has ordered them to desegregate, sometimes by imposing mea
sures not overtly aimed at segregation but having this effect. I think you
are quite right in your supposition that the Court's decision, though
certainly now legally established, has not led to any remarkable social
change in the southern states. I should think that, in fact, the numbers
say of Negro school children who go to desegregated schools in the south
ern states is still extremely small and I do not really foresee that there is
any chance that it will greatly increase in the next ten years because there
is an enormous local resistance that, now the decision is more than ten
years' old, has not been overcome to any large degree; victories have been
obtained in the courts, but, as the Negro leaders are the fi.rstones to point
out, these court victories have not really led to much practical change.
lndeed, there is some reason to say that in many cases, particularly in
the north, there is more segregation now than perhaps there was ten
years ago. There are numerous economic and other factors that con
tribute to that. I would not say it is necessarily deliberate, but Negro
leaders are the first to point out that desegregation has made very little
practical progress. Whether one approves or disapproves of that, this
is a fact.
Mr. DE V ILLIERS: Now to revert to the action still taken by certain of
the state authorities. Would you in all cases say that they are of a repres
sive or oppressive nature?
Mr. VAN DEN HAAG: Well, this Ieads into-
Mr. DE VILLIERS: I should not like you to go into detail, I just want to
know whether you would classify them ail as being for oppressive pur
poses, whether some are--
Mr. VAN DEN HAAG: No, I would not so classify them. I think one has
to make a distinction between segregation and discrimination, although150 SOUTH WEST AFRICA
these two words in the dictionary sense mean about the same, and I
would say that I wou1d like to use the word segregation to mean separa
tion, which, of course, need not require or be connected with oppressive
measures, but can be so used in the same way a knife may be used to eut
a roast or can be used for murder. Itis not in the nature of the knife that
it must be used for illegitimate purposes, it is not in the nature of segrega
tion, I think, that it bas to lead to discrimination if by discrimination
we mean, as I propose we ought to, placing someone, or placing a group, at
a disadvantage that is not warranted by any relevant element in the
situation in which the group is found.
Let me try to explain. When I teach my classes I will give grades ac
cording to the performance of the students in the examinations. That is a
form of distinction, and you may call it discrimination. The ones that get
good grades have certain advantages and the ones that have bad grades
get certain disadvantages, but this would be called legitimate because
I have, and I hope I always will, applied a relevant criterion. Now if I
were to give these grades according not to scholastic performance, but,
say, to sex, or religion, or attractiveness, or size, or any other irrelevant
criterion, then I think one would call it discrimination.
Now, to return to your question. When the segregation does not in
volve hardship for either of the segregated groups, or if it does involve a
hardship the hardship is due to relevant criteria such as qualifications,
say, if one persan is hired for a job and the other persan is not, if this is
due to differential qualifications I do not regard it as illegitimate or un
warranted discrimination. If on the other band, it is due to irrelevancies
and prejudices on the part of the hiring agency, then I would so regard it.
But to return to your question. Segregation may be used for purposes
of oppression, deprivation, and placing at a disadvantage, but it need not
be so used.
Let me also point out, incidentally, that non-segregation can very well
be connected with oppression.
In many universitics, for instance, in the past particular groups were
not segregated from the rest of the students, but there was a numerus
clausus, that is, only a certain number of them were admitted whereas
others were adrnitted entirely according to their academic qualifications;
there are quite a nurnber of cases where-well, of course, the one that is
very clcarly in our memory I suppose: that of the Jews in Germany,
who were cer'tainly slaughtered (discrimination is not enough); yet there
was no segregation of any length preceding this slaughter, which I think
indicates, on the one band, that segregation is not necessary to oppressive
measures and that non-segregation does not necessarily make for such
group relations as would avoid hardships. (I am still trying to answer
your question; I hope you will forgive my lengthiness.) I would regard
the instrument of segregation as a neutral one; the effects will depend
on the circumstances, and purposes, of the user. It can certainly be used
to damage and to oppress the group segregated, but it need not.
Mr. DE VILLIERS: My question is, how is it used, in fact, as you see it,
by the southern authorities? Would you say that it all falls into one
category or the other?
Mr. VAN DEN HAAG: No, I would not quîte go so far, but certainly in
the past segregation in the south was used as a disguise and as a device
to deprive the segregated group, in effect the Negroes, of adva:i.tages that
were yielded to the White group. WITNESSES AND EXPERTS 151
Now, let me say once more, it does not follow, in my opinion, that this
is a necessity; it is a historical event and a historical event must not be
confused with a logical or historical necessity. But, certainly I do not
think it can be denied that historically, in the past, segregation in the
south was used to deprive the segregated ,group.
Mr. DE VILLIERS: Now I ask you whether that was invariably so, or is
stilltoday invariably so?
Mr. VAN DEN HAAG: Now, at the present time? Well, the only way in
which I could answer that I would have to pass in review quite a number
of things that are now happening and some cases that are still so used,
or at least that is the intention~
l\fr.DE VILLIERS: I do not want you to go into detail. I just wanted
to know whether in some cases it is not so used.
Mr. VAN DEN HAAG: In some cases it is certainly still used so as to
discriminate against the segregated minority, but not in ail cases. I am
familiar with some cases where, in my own opinion, the segregating au
thority was willing (and, incidentally, this is in the records in a number of
judicial proceedings} to spend just as rnuch per pupil and to pay even
higher teachers' salaries for Negro children, but wished to maintain
segregation. In this case of course, you cannot speak of segregation being
used to materially deprive the segregated group--whether there is a
psychological deprivation is a matter that I want to discuss later.
Mr. DE VILLIERS: We shall corne to that later. Now could you fust in
dicate tous whether you can pass some general comment on possibilities
of comparing the American Negroes with the indigenous inhabitants of
Africa?
Mr. VAN DEN HAAG: Weil, of course the American Negroes originally
came from Africa, but I think there are very major differences. One is a
purely biological one, and I merely here report what is generally accepted
without making a judgment of my own. Itis generally said that African
Negroes, on the whole, are purer Negroes whereas it is generally accepted
that there is about a 30 percent. admixture of non-Negro genes, or blood,
in the American Negro. Now I cannot vouch for these figures, they are the
ones that physical anthropologists seem to agree on. That is a genetic
difference.
But I think the difference on which I am more competent to speak,
and which I think is also more important, is this: that American Negroes
have not retained, and could not retain, a culture of their own. They were
transported to the United States in such a way as to break their tribal
bonds so that, say, on a slaveship there would be Negroes from a variety
of tribes that spoke different languages and could not speak with each
other, nor did they share common custorns and so on, they shared, at
most, the fact of all being coloured; and, of course, once they came to
the United States and were sold again they were further dispersed. In
some cases even the members of the families were separated from each
other. The result of that was that they lost whatever Native culture and
tribal unity they had, and acquired, to the extent to which the conditions
made that possible, American culture. That is then, to put it very suc
cinctly, the American Negro does have Arnerican culture, an American
Negro sub-culture if you wish-a sub-culture just as that of say long
shoremen may be called a sub-culture owing to specific circumstances of
their life-but it is part of American culture and certainly not of African
culture. They do not speak African languages, they have no direct mem- SOUTH WEST AFRlCA
ory or tradition of any tribal life, they woulcl not know, if they were
asked, to what tribe they belonged or from what part of Africa their
ancestors came. In short, they are coloured Americans, but Americans
still.
Let me mention Liberia. Let me point out for instance the American
Negroes that did arrive in Liberia imported the English language and
American usages there and, in effect, formed an upperclass Americanized
elitein Liberia that has a relationship reputecl to be one of oppression
to the native-barn Negroes there. I am not maintaining that this reputa
tion is correct, I have not been in Liberia, but certainly one thing I can
easily maintain is that the group of Negroes that came from America
and formed the ancestry of the now ruling class in Liberia has an Ameri
can culture as distinguished from the Native tribes; and American
Negroes in America certainly do.
Now, you asked me to compare this with African Negroes. From your
own documents, and from a little experience I have myself of Africa-
1 have visitecl it once-1 would say that in many cases African Negroes
still possess atribal feeling of belonging and they still possess a tribal
culture, tribal customs, ideals, attitudes, and so on, of their own. So that
in Africa there is still a problem of what will happen to the Native cul
ture; in America there is no Native Negro culture to be dealt with in one
way or another, the American Negroes are coloured Americans who be
cause of their colour have suffered a peculiar fate but who have no cul
ture of their own, whereas the African Negroes certainly do-some of
them more, some of them Iess.
I visited the Congo some time ago and I met a number of Congolese
politiciansand so on that were described tome as detribalized, that is, as
no longer being very much connected with their tribes, but in my obser
vation, however brief, I found this not to be the case. For instance, I
enquired at one of the Ministries what led, in effect, the various civil
servants and so on, to occupy positions in that Ministry and I was told
that they are a part of the tribe to which the Minister belonged and that
was their main qualification. ln short, the tribal feeling is still very strong
as certainly has also been shown say, in Katanga, in other parts of Africa
where the major clashes were betwecn tribes such as the Lunda, Baluba
and what not.
I want to make it clear that this is not based on personal observation of
every part of Africa, but upon the study of literature-1 should think that
tribal cultures are still very strong there and that would be the major
differentiating point.
Mr. DE VILLIERS: Would you consider that there are positive values
worth maintaining in those tribal or ethnie cultures of Africa?
Mr. VAN DEN HAAG; I would maintain that that is so, in principle,
wherever there is a Native culture that has any sort of strength I would
think that I would make every effort I could to maintain it, for I think
!hat the change of culture, particularly the acceptance of an alien culture,
1s usually connected with so much psychological suffering, leading to
social and individual phenomena of a pathological sort, that if it was
necessary to bring about such a change, I certainly would want to doit
in the slowest and most supervised way. May I add that the only major
country which bas gone about such a change in a reasonably successful
way, has been Japan, but under very specific circumstances which cannot
and have not been reproduced anywhere else. WITNESSES AND EXPERTS 153
Mr. DE VILLIERS: Now you are talking about ...
Mr. VAN "DEN HAAG: Change in culture-was that not what you ...
Mr. DE V ILLIERS: Yes, in the case of an Asian people. I was talking
more particularly about Africa. Now, could you indicate briefly what
you would regard as pros and cons involved in a destruction of such
indigenous culture, of tribal or ethnie culture?
i\frVAN DEN HAAG: Forgive me for saying so: it is a question too
general to answer in any way other than a lecture which I think you do
not want to hear. There are cases when the change occurs suddenly and
without regulation by superior authority. Such a change can lead, both
to the physical extermination of the group on which the change is imposed
or which accepts a change without retarding factors and suddenly; or to
its-1 would say-psychological destruction, leading to such phenomena
as Emile Durkheim described as anomie, that is, a feeling of rulelessness,
a feeling,that is, of purposelessness. The English anthropologist, WH. R.
Rivers described it in Melanesia-I am going out of Africa but I will
return in a rnoment-where he says, the rapid change in culture, actually
led to the extermination of the Melanesians, not by violence, but in effect
because these people, who had been head-hunters, and for whom head
hunting was the major occupation, suddenly felt that life no longer had a
central purpose.
Now you :find this parallel with American Indians. Of course, many
material measures were taken about American Indians that quite
materially exterminated them. The Government, however, ultimately
tried to protect them by locating them in certain Indian Reservations
where it hoped that the Native culture of the lndians would, in a self
sufficient way, maintain them bath materially and psychologically. It
was too late as you know, and as a matter of fact, most of the Indian
population has been eliminated. The question was-would you be good
enough to refresh my memory?
Mr. DE VILLIERS: Yes, now I think you have answered it-to îndicate
some of the positive and negative aspects which may be involved in the
destruction of a Native culture, depending on the circumstances in which
it occurs.
Mr. VAN DEN HAAG: I do want, if I may, to add one point. I do not
want to appear to say that it is entirely impossible for one culture to
accept possibly bene:ficial things from another culture under certain
circumstances. If it is done in a reasonably slow way it can be, indeed, ex
trcmely useful. Indeed, one may say that in the history of the world, few
cultures have been totally isolated, each culture has learned sometimes
from other cultures, but there is an enormous difference between a
technologically superior culture overwhelming one that is technologically
not so accomplished, and between that last culture slowly accepting some
of the beneftts of the culture that is technologically more accomplished.
Mr. DE VILLIERS: Now, to revert to the position in the United States for
the purpose I indicated before; you have dealt with voluntary and in
voluntary cases of separation, of re-location and of migration. You have
indicated that those have taken place until quite recently but now, is
not the judgrnent in the Brown case, to which you referred, an indication
that such events will not be repeated in the future?
Mr. VAN DEN HAAG: May I ask you to repeat your question? I did not
quite follow you.
Mr. DE VILLIERS: Yes, I mean you have spoken of certain events154 SOUTHWESTAFRICA
indicating re-location on a racial or an ethnie basis, on a differential
basis in the United States, voluntary and involuntary separation and
so forth, official action in that direction; I ask you whether the United
States is not now facing a new era in that regard as a result of the decision
of the Supreme Court in Brown v. Board of Education.
Mr. VANDENHAAG: Well, that decision certainly would deprive of
legal sanction any act of re-location that has the purpose of separating
the races. It would not, I think, prevent such activities, as I mentioned
before, that the "Nation of Islam" would want to bring about such a
separation on a voluntary basis or possibly impose it; what the Brown
decision does is certainly to say that state authorities, in particular
schoolboards, but the matter has been enlarged in other decisions, cannot
separate pupils in public facilities on the basis of race or colour.
Mr. DE VILLIERS: Now, as I understand the Brown decisfon, itover
threw the previous case of Plessey v. Ferguson; the Court seemed to
rely, amongst others, on the difference in the state of psychological
knowledge at the time of the Brown decision as compared with that at the
time of Plessey v. Ferguson.
Mr. VANDENHAAG:Yes, the Brown decision, and I think I quote it
correctly, says that whatever the state of knowledge was at the time of
Plessey v. Ferguson, which decision maintains that separate but equal
facilities would satisfy the fourteenth amendment of the Constitution
that guarantees the equal protection of the 1aws, whatever, the Court
says, was the state of knowledge at that time, "modern authority" has
demonstrated that segregation is "inherently unequal" so what the
Court said was in fact, that social scientists who were prominent in the
lower courts in these cases, have demonstrated that even when facilities
are altogether equal, the mere fact of segregation inflicts an injury on at
least one of the segregated groups, and is therefore inherently unequal.
That has been the court's decision.
{Public hearing of 23 June r965]
The PRESIDENT:The hearing is resumed. I call upon Mr. de Villiers
to continue with his witness.
Mr. DE VILLIERS:Dr. van den Haag, at the conclusion yesterday we
were referring to the decision of the United States Supreme Court in
Brown v. Board of Education and you pointed out that that rested on a
scientific proposition derived from evidence given by social scientists in
the lower court. As you put it here, the proposition was that even when
facilitiesare altogether equal the mere fact of segregation inflicts an
injury on at least one of the segregated groups and it is therefore inherently
unequal.
Mr. VANDENHAAG:Yes, Sir.
Mr. DEVILLIERS:Did that proposition of the infliction of injury, relate
in the particular case to the situation of Negro school-children attending
segregated schools?
Mr. VANDENHAAG:Yes, Sir.
Mr. DE VILLIERS:Now, I should not like to go too deeply into con
troversial aspects ofthe situation in the United States for the purposes of
this case but I think it would be useful if you could indicate to the Court
whether that proposition, as wehave now analysed it, is generally accepted WITNESSES AND EXPERTS 155
and acceptable in your branches of social sciences even in its application
in the United States.
Mr. VANDEN HAAG: No, Sir, I do not think it is generally accepted
but I would like to make a distinction. Professor Edmund Cahn of the
Law School of New York University and I were the fi.rst two persons to
criticize the scientifi.c evidence presented to the Supreme Court in a brief
amicus curiae which was signed by a number of social scientists; it was
prepared by Professor Kenneth Clark of the City College of New York,
and Professors Isidor Chine and Stuart Cook, bath of them colleagues
of mine at New York University. Professor Cahn, also of New York
University, and I were the fi.rst ones to criticize this. Professor Kenneth
Clark, who was the main author of this appendix to the Brief of Appel
lants in the Supreme Court, responded to our criticism in an article which
he published originally in the Villanova Law Review and reprinted in his
book, which I have here, Prejudice and Your Child, in the Second Edition
(which I see from your own material you did not use). In this appendix
tohis book he, byname, tries tocountermyown criticism.In turn, l rejoin
ed in another article in the Villanova Law Review which I have with me.
Since that time, 1957-1960, quite a number of social scientists have
indicated that they agree with my criticism of the factual presentation.
However, they do not like my conclusions and, therefore, I recall that
when I printed them fi.rstI got quite a number of letters from friends and
colleagues expressing agreement with what I said which, for reasons
that you will see, I think is fairly uncontrovertible but feeling that I
should not have published itat the time because they felt that, for other
reasons, the general United States policy of integration should not be
criticized.
Mr. DE VILLIERS:Could we start at the beginning? You referred to
Professor Clark. Did his testimony play an important part in regard to
the Brown decision as far as you could ascertain?
Mr. VANDEN HAAG: Well, yes ...
The PRESIDENT:Mr. de Villiers, in what way do you indicate to the
Court that it is relevant what this professor thought, or what part he
played in the court's proceedings.
Mr. DE VILLIERS:Perhaps I should not frame it that way, .Mr.President.
I wanted Professor Clark's testimony as a proposition which he put before
the court to be identifi.ed with a view to clearing up what the witness
has just said to the Court in regard to criticism offered of that proposition.
That is all that I am really ...
The PRESIDENT:Will you then please confine your question.
Mr. DE VILLIERS:Was Professor Clark a professional expert witness
in the Brown case?
Mr. VANDENHAAG: In this sense: (1) the Brown case was consolidated
with a number of other cases, one of them the Brown case itself, and in
ail these cases in the Iower courts Professor Clark tcstified-and I will
describe if you wish his testimony~and this testimony was, of course,
part of the record and that record was cited by the Supreme Court in
its Brown decision. It relied, in short, on the records made in the lower
courts of which Professor Clark's testimony was a prominent part.
Furthermore (2) in footnote II of the Supreme Court Decision, Professer
Clark and all the other authorities that he himself has quoted in his hrief
amicus curiae, are quoted to support the court's contention that its
decision rests on "modern authority". ln other words, Professer Clark is SOUTH WEST AFRICA
undoubtedly the "modern authority" on which the court rested its
decision.
Mr. DE VILLIERS: Did you check on those various authorities to see
what they amounted to?
Mr. VAN DEN HAAG:Yes, I did. Let me point out also, if I may-I
just want to make it clear to the Court that we are dealing with the
factual basis of the Brown decision-here is a brief comment from Profes
sor Philip Kurland, Professor of Law at the University of Chicago. In
brief he says: "Dr. Clark's study was utilized by the Supreme Court to
provide a factual base on which to rest its conclusion." So there was no
doubt that it was Professor Clark's evidence in question. Now, if you
want me to indicate what that evidence was, I will.
Mr. DE VILLIERS: Yes, the evidence of Professor Clark?
111:.AN DEN HAAG:Yes.
Mr. DE VILLIERS: Yes, please, just briefly what the effeofhis evidence
was.
Mr. VAN DEN HAAG:Professor Clark made two series of observations
or experiments. For the purposes of the lower courts he tested in the
jurisdiction of the court 16 Negro children in a segregated school in
Clarendon County, South Carolina, and he asked these children to
distinguish between dolls that he presented to them, some coloured
brown-dark brown, nearly black-and sorne coloured white, and,
having ascertained that these children were able to distinguish colours
and were able to identify the dolls as representing either Negroes or
Whites, he asked the children questions such as these: \Vhich is the nicer
do11?\Vhich doll would you like to play with? and, tinally, Which doll
is like you? Now, he found that a majority of these Negro children
(9 and later in his testimony ro out of 16) did decide that the white doll
was the nicer doll, the doll they would prefer to play with, and, finally
that they themselves, although Negro children, were "like" the \Vhite
doll. From this, Professor Clark concluded that segregation causes con
siderable harm because it causes these children to be "confused in their
identities"-these are his very words-and that these results that he found
with these 16 children are consistent with prcvious results which he ob
tained with over 300 children, and to which I shall turn in a moment.
He goes on to say that this proof that segregation inflicts injuries
upon the Negro had to corne from a social psychologist, as he himself
was.
Now, the interesting thing is that he undertook prior expcriments
which were in fact undertaken about ten years before the court cases
occurred and which were published in a book called Readings in Social
Psychology and edited by Professors Ne,vcom be and Hartley in two editions,
the last one in 1952 (pp. 551-560). I have the photostated chapter with
me. Now, in this experiment, Professor Clark tested 134 Negro children
in segregated southern schools and compared the results with tests
given to n9 Negro children of the same age group which werc in un
segregated schools in the north (precisely in Springfield, Mass.). Now,
he found that, everything else being equal, "the Southern children in
segregated schools are less pronounced in their preference for the white
doll compared to the Northern [unsegrcga ted] children". Professor
Clark's table 4 which, again, I have here, indicates as much (p. 556).
Now I will be very brief. What this means is that when Professer
Clark presented evidence on the segregated Negro children in Clarendon WIT)<ESSES AND EXPERTS 157
County he attributed the results, namely that the Negro children iden
tificd with the white rather than with the black doll, to segregation. As a
matter of fact, in prior experiments which he forgot to mention to the
courts, he had found that when Negro children are not segregated their
identity ismore confused, that is, they prefer the white doll more often
and identify-that is, answer the question "Which doll is like you?"
more often by painting to the white doll.
So if we were to accept the general framework of Professor Clark's
experiment we would have to conclude not what be concluded, namely
that segregation is harrnful to Negro children because it confuses them
in their identity, but we would have to conclude quite on the contrary,
that when they are not segregated the Negro children tend to be more
confused than when they are segregated. Of course one would think that
this is really common sense, because when they are together with white
children the possibility of confusion and the wish perhaps to be white will
become more prominent in their minds than when they are isolated and
segregated. However, this conclusion does not seem to have been drawn
by Professor Clark.
I called attention in the article I mentioned (Villanova Law Review,
Autumn 1960) to this curiosity, namely that Professor Clark attributed
to segregation a confusion and possible injury that occurs, according to
his own evidence, more frequently when there is no segregation. After
I had published my results on this and my analysis-which again I will
offer for the record-Professor Clark answered (and I am quoting his
passage in its entirety):
"On the surface, these findings [which I have just discussed]
nùght suggest that northern Negro children suffer more personality
damage [they are not segregated] from racial prejudice and discrim
ination than southern Negro children. However, this interpretation
would seem ta be not only superficial but incorrect. The apparent
emotional stability of the southern Negro child may be indicative
only of the fact that through rigid racial segregation and isolation he
bas accepted as normal the fact of bis inferior social status. Such
an acceptance is not symptomatic of a healthy personality. The
emotional turmoil revealed by some of the northem children may
be interpreted as an attempt on their part to assert some positive
aspects of their selves." (Prejiedice and Your Child, 2nd enlarged
edition (Boston, Beacon Press), pp. 44 ff.)
I would like to submit to the Court here that in the first place Professor
Clark starts by speaking, in the quotation I just gave you, of personality
damage and ends by speaking of emotional turmoil. These two terms
are not the same. A person with a perfectly uninjured personality may
have emotional turrnoil. That is not symptomatic of an injury to per
sonality, it is symptomatic of a temporary state. But more important,
let me point to a very simple thing. \Vhat Professor Clark here asserts is,
if the outcome of the experiment is that under segregation children prefer,
in the majority, the white doll and identify with it, that shows injury.
And then Professor Clark goes on to assert that if they again prefer the
white doll under no segregation, that also shows injury, or turmoil.
Now I think it is a general rule of scientific procedure that an experi
ment which, regardless of Hs outcome, supports the same hypothesis, is
not relevant at all and is obviously constructed in such a way as to be SOUTH WEST AFRICA
useless in deciding the issue. But Professor Clark has interpreted his
own experiment to show that under segregation the preference for a
white doll shows injury brought about by segregation, and under no
segregation the preference for the white doll also shows injury brought
about through no segregation at all.
It follows then that Professor Clark's experiment contributes nothing
to the issue, and his conclusions, as submitted to the Supreme Court,
stand independently of the evidence on which they are purported to
have rested. I know of no other scientific evidence cited by the Supreme
Court or existent anywhere that segregation perse causes injury. I cer
tainly would not wish to deny that, depending on the historical circum
stanccs, it may cause humiliation, it may be unpleasant, it may be un
desired, just as in other cases it may not be so, but I must assert that
there is no scientific evidence whatsoever that segregation in the cases
contemplated by the Supreme Court, and in any other cases that I am
aware of, per se causes injury. Please allow me to emphasize per se be
cause in the cases decided, in Brown, itwas stipulated by the two parties
that all facilities would be equal and the only question before the court
was whether the mere act of segregation in itself was injurious, and this
is what Professor Clark tried, and in my opinion did not succeed, to
prove.
Mr. DE VILLIERS: Did Professor Clark rely only on these doll tests?
11frVAN DEN HAAG:In his own testimony yes. In the brief that formed
an appendix to the appellant's brief in the Supreme Court he quoted
about at least a dozen books which corne to the same conclusion, but
none of these books have any scientific evidence for this conclusion.
This is, shall we say, a speculative conclusion, and the authors of the
books themselves would not indicate that it is anything more.
Let me point out that one reason why it is very hard really to have
any evidence directly on segregation is this: in the fi.rst place it is ex
tremely hard to test whether a child has suffered an injury to his pcrson
ality. I am, as I mentioned before, a psycho-analyst and as such I do
not know of any test, in the sense in which this word is used in science.
Secondly, if you were to find such an injury, I do not think it would be
at all possible to be able to say that this injury is due to segregation or
any other such large factor. There are quite a number of things that may
injure the personality of a child. It may be the behaviour of his mother,
it may possibly be a general prejudice existing in the community, it may
be all kinds of individual factors, and I would think that such an injury
has not been proved; and if I were to try to think of a way of proving or
disproving it I must admit that I could possibly try to indicate whether
there was some sort of injury, but I would not be able to say directly it is
due ta segregation or to non-segregation. My own feeling is, to make it
very short, that as long as prejudice exists in the community, segregation
is probably more favourable to the group against which the prejudice is
directed than is congregation, for the very simple reason that as long as
prejudice exists a segregated school is likely to isolateem from that prej
udice, whereas a congregated school, when the majority or major group
of their co-students have a strong prejudice against them, is, of course,
ifnot necessarily harmful, certainly very unpleasant.
Here let me mention that after the Supreme Court decision two stu
dents finally entered the State University of Alabama and one of them,
after two years, withdrew-his name is James Hood, the case acquired a WITNESSES AND EXPERTS 159
certain fame at the time~voluntarily, feeling and declaring publicly
(1think that it appeared in the New York Times) that he felt that he had
a foot "in both races"; that is, he felt in some way that his attending a
largely White university in a fairly hostile atmosphere, and at the same
time trying to remain a member of the Negro community, put him into
a so conflict-ridden situation that he withdrew voluntarily after two
years, although his admission had been a lengthy, difficult process, with
a lot of law suits and so on.
Mr. DE VILLIERS:I just want, before we leave this subjet, to corne
back to this question of testing. Did Professor Clark publish material
about other tests, such as colouring dolls?
1\1.r.VANDENHAAG:Yes. There is one dol! test, which I have just in
dicated, where dolls were shown. There is another test in which Professor
Clark gave a piece of paper to the children, to Negro children in segregated
southern schools and also again in non-segregated northern schools, and
asked them to colour a variety of things, I think an orange and other
things that were on this paper, and the children did so correctly. Then
he finally asked them to colour a human figure, suggesting to them that
they should colour it with their own colour. Now he found that in the
segregated southern schools 80 percent. of the Negro children coloured
the human figure on the piece of paper that they had been given brown,
that is with their own colour, but only 36 percent. of the Negro children
in the de-segregated northern schools did so. The remainder of these
children either coloured the figures with what Professor Clark called an
irrelevant colour, such as green, or something like that, or tried to colour
these dolls white, by using a white crayon.
Again, he concluded, of course, that the failure of these children to
colour the drawings with the colour that would be correct, according to
what they had been asked to do, indicated a personality injury.
Mr. DE VILLIERS:Now, as you have said, those results, taking them
at their face value, would appear to support the opposite contention to
that of Professor Clark. Could you tell the Court what you think of the
intrinsic merit of those tests?
l\irVANDENHAAG:To be frank, very little. The reason for which I
would think very little of these tests is very simply this, that I think
children's choice of colour may be determined by things that have ab
solutely not.hing to do with segregation or desegregation. Childrcn. in
my experience, usually prefer light colours to dark, and in our culture,
American culture, and in most countries of the world, though not by any
means in all, white stands for such things as purity, innocence, gaiety,
and so on, and black stands for such things as evil, tcrror, night, and so on,
so I would think it is fairly natural that children, on the whole, usually
will have a preference for white and that I think is a more reasonable
explanation of their behaviour than that given by Professor Clark. How
ever, I wish to point out that Professor Clark does not accept the view
I have just expressed; that he does feel, and has reiterated that he does
feel,that the colour choice was due to segregation or non-segregation
and, let me add, that the Supreme Court has accepted Professor Clark's
contention rather than my own.
l\fr.DEVILLIERS:Have other objections been raised to what one might
call the Clark experiment?
Mr. VANDEN HAAG: Of cour~e, there are numerous things in them
which I think from a scientific viewpoint are incorrect. The normal160 SOUTH WEST AFRICA
thing would have been to do far more extensive so-called "control tests";
one could have done control tests with other minorities for instance.
One could have done even general control tests; it might be that people
in general are confused about their identity and that one need not be a
Negro child to have such confusion, in fact a number of social psycholo
gists feclthat our times are characterized by such generaI confusions.
There are all kinds of possible explanations for l-'rofessor Clark's
results. The one that he selected, the two rather that he selected because
he did select two inconsistent ones, are selected quite arbitrarily, I think,
to serve a particular purpose. I find no other explanation for this.
Mr. DE VII.LIERS:Now have these criticisms and attacks on the reli
ability ofthe proposition advanced by Professor Clark, found their echo
in any later proceedings in the United States on segregation matters?
Mr. VANDENHAAG:Yes. I wrote my own rejoinder to Professor Clark
and my original criticism years ago; about three ycars ago my articles
and so on were discovered by a number of lawyers and were used in
lower federal court proceedings, at some of which I also testified myself.
ln two of three cases in which I testified the case was won in the sense
that the Brown decision was regarded as inapplicable because ofa factual
vice. However, the Court of Appeals maintained that the Brown decision
was not necessarily based on the fact but was based on legal considera
tions and thcrefore should stand. The matter has becn appealed to the
Supreme Court which has declined, I think in two cases, to hear it again
and in one case the matter is still pending.
Mr. DEVILLIERS:Do you know whether the Suprcme Court itself has
indicated in subsequent decisions whethcr it considered its decision in the
Brown case as resting on the factual proposition, or purely on a view of
the law?
Mr. VANDENHAAG;No, the decision of the Court not to hear a further
appeal was, as you probably know, without opinion so I do not know
what considerations were in the Court's mind and one case is still pending;
perhaps we will get an opinion in this case.
Mr. DE VILLIERS:Do you know of any scientific defencc of Professor
Clark after this matter had been raised in public?
Mr. VANDENHAAG:The only defence that I know of is the one I read
and that scems tome a defence possibly of his conclusion, but not of his
experiment.
Mr. DE V1LLIERS:Now you have indicated to us already that, quite
apart from the authority of the Brown case, you do not consider that
segregation, or differentiation, must neccssarily lead to discrimination
inthe unfavourable sense.
l\1r.VANDENHAAG: Yes, as I tried to indicate yesterday, I think,
depending on the intention of the user of these devices and on the wishes
of those concerned and on the circumstances, segrcgation must be re
garded like a knife, or any other instrument, as neutral; it can be used
for surgery,it can be used for murder; it can be usecl for beneficial pur
poses, it can be used for malevolent ones.
l\lr. DE VILLIERS:And you do not bclieve in the proposition of in
evitable psychological damage following on separation, or segregation,
or differentiation?
Mr. VANDENHAAG:I certainly believe that this conclusion has in no
way been proved and, on the face of it, I would say in many cases, though
by no means all, desegregation is probably far more harmful. WITNESSES ANDEXPERTS 16I
Mr. DEVILLIERS:Now we have dealt with the situation with regard to
those propositions in the United States of America. You have read our
expositions, in our Counter-.Memorial, have you not, on the existence of
different population groups in South West Africa and on the differences
existing between the groups, amongst others, in regard to their culture?
Mr. VANDENHAAG:Yes, sir.
Mr. DEVILLIERS:Do you find anything inherently improbable in those
descriptions?
Mr. VANDENHAAG:I have no persona! knowledge that would permit
me to either confirm or disconfirm them, but what these descriptions,
if my recollection does not dc_ceiveme, say is simply that there are a
number of specific cultures-
The PRESIDENT; I recognize the Agent for the Applicants.
Mr. GROSS:Mr. President, Ishould respectfully like ta have clarifica
tion of the intent and purport of the question just asked by counsel; the
specific references to the Counter-Memorial upon which the question is
based; identification ofthe groups, and the differences to which the wit
ness is now being asked ta testify-all subject, Mr. President, ta the
general reservation regarding relevance.
The PRESIDEKT:I understand. Mr. de Villiers, perhaps you might put
your question more specifically.
Mr. DEVILLIERS:Mr. President, may I indicate my purpose is not to
ask the witness to give confirmatoryevidence of what we said. The witness
does not pose as an expert on the situation in South West Africa and
I shall not try ta use his testimony in that respect. I am merely asking
him whether, as a psychologist and a sociologist, he finds anything in
herently improbable in our description. I am not taking it any further
than that. Following on this I want to ask him what, under the circum
stances as we described them and under circumstances of an educational
system as described, he would think the probabilities are in regard to
inevitable injury in a situation as in South West Africa. That is the pur
pose of the question.
The PRESIDENT:Perhaps you had better ask the question and then
.llfrGross you can abject to the question, it is not much good objecting
at large.
Mr. DE VILLIERS:.!11rv .an den Haag, particularly in our Book III (II)
of the Counter-Memorial, we gave detailed descriptions of the various pop
ulation groups existing in South West Africa and I asked you whether
you had read that.
Mr. VANDENHAAG: y es, sir.
Mr. DEVILLIERS:And whether you had read the descriptions we gave
there of differences existing intheir levels of development, their modes
of life.their habits, their cultures.
Mr. VANDENHAAG:Yes, sir, I have read these .
.Mr.DEVILLIERS:I merely asked you to indicate whether, in the light
of your general knowledge of human relationships over the world, you
find anything inherently improbable in those descriptions.
The PRESIDENT:I recognize the Agent for the Applicants.
Mr. GROSS:Mr. President, I renew the objection previously made on
the grounds stated, and, more specifically, in the light of the question
just asked. I object on the grounds of lack of specificity, since the question
cannot be answered in the form addressed without reference to the group
or groups attempted to be judged or commented upon by the witness asl62 SOUTH WESTAFRICA
an expert or otherwise, and to the respects in which each such group is
to be subject to scrutiny by this witness on the basis of expert or other
critcria. Specifically, therefore, the objection would raise the question
whether this expert, or any other, could testify with regard to such a
general question as "inherent probabHity", or inherent anything else,
without at least a foundation laid for the exact subject of enquiry.
There will be a secondary objection with respect to the formulation of
a question addressed to this witness with respect to whether a certain
issue, or question, or criterion, or argument, is"inherently improbable".
Those words, it is respectfully submitted, do not convey any intelligible
significance from an expert or other point of view.
~Ir.DEVILLIERS: l\frPresident, may I point out-
The PRESIDENT: I do not think it may be argued, Mr. de Villiers, at
the present moment.
On the question of identification, the identification is by reference to
Book III of the Counter-Memorial which the witness might be asked if
he has read completely in respect of at least certain pages and certain
subject-matter. That identifies the information and then the question
is whether the witness, as an expert, is entitled to express his views upon
it.In general, he is entitled to express his views. The weight of his views
must be a matter for the Court to detennine at some subsequent period.
But I think first the question may be put to the witness and then, if
there is any objection to the form of it that may be taken.
Mr. DEVILLIERS:Then I put that question to you, Dr. van den Haag,
whether you find anything inherently improbable in the description as
contained in Book III of the Counter-Memorial?
.Mr.VAN DEN HAAG: I am aware, as any sociologist is, that there are in
this world different human groups at different levels of development, if
we take development not to be a matter of developing by regular stages
which is a theory I do not hold-but it is certainly true that some peoples
have primitive, and others more complex, cultures, that some are pre
literate and others are literate, that some are more highly developed and
others less highly developed in particular respects (for instance, Western
civilizationhas a high technological development, the Indian civilization
has a very complex philosophical development but not so complex a
technological one, and so on), so there are major differences along those
lines and though I cannot vouch for the correctness of the description
of these differences in South Africa I should think that, in general, one
would expect that different tribes, different people, different groups, are
developing in different ways.
Mr. DEVILLIERS:Have you also read, in Book VII (III) of our Counter
Memorial, the description given of the aims of, what one might call, the
Bantu education policy?
Mr. VAN DENHAAG:Yes, sir.
Mr. DEVILLIERS:The aims more particularly of resting that education
on the basis of a sound respect for one's own culture and developing from
there towards drawing new things into that culture?
Mr. VAN DEN HAA.G:Not only have I done this but, ifyou will permit
me, I wish to point out that Professer Kenneth Clark, with whom, as I
have just mentioned to the Court, I seldom agree, has recently proposed
that in the New York schools, in effect, there be introduced a form of
resegregation because he has become aware of the fact that for various
reasons the Negro pupils are unable to perform on the same level, in the WITNESSES ANDEXPERTS
majority, as the White pupils. Now he ascribes that to cultural depriva
tion,but he-and, in my opinion, quite correctly-finds that they should
be separately schooled, at least for the time being, so as to be able to
catch up, and only then be put in schools together with their \Vhite co
students, because otherwise the teaching will go, as he puts it, "over
their head' ·,and they will lose motivation and so on. So tha t, even in the
United States, where certainly the developments are less dissimilar than
they are between Whites and Negroes in South West Africa, segregation
is now being recommended in effect on purely educational and didactic
grounds.
The PRESIDENT: I recognize the Agent for the Applicants.
Mr.GROSS:I move respectfully that the testimony just given be deleted
or ignored, without a specification and citation by the witness concerning
Professor Clark's work to which the witness has referred and purported
to characterize.
The PRESIDENT:Yon wish the citation tobe made to the work?
Mr. GROSS:Yes, Mr. President, or else the testimony and the character
izations just given be stricken or ignored.
The PRESIDENT:Perhaps the witness will identify where the statement
can be found?
Mr. VANDEN HAAG: Iam unable to do so at the moment-1 did not
bring this with me-these are the conclusions of an interview in the
New York Times; I will be able to mail the appropria te article to Mr. de
Villiersif necessary. Let me point out that this is uncontested, at least
in New York; I had not foreseen that I would refer to it, and so I did
not bring the documentation with me.
The PRESIDENT:Mr. de Villiers, the information should, at some time,
be placed upon the record.
Mr. DE \'ILLIERS:Certainly, Mr. President.
The PRESIDENT:The evidence will remain on the record; the Courtis
quite able to evaluate evidence. and if there is no value in the evidence,
then there will be no value given to this part of the evidence. If, on the
other hand, the Applicants feel that they will need it for the purpose of
cross-examining the witness, then the witness ,vill be brought back to
enable the Applicants to cross-examine.
Mr. GROSS:Then, Mr. President, the Applicants respectfully reserve
the right to cross-examine, and would appreciate the opportunity to
examine the documents or any other references to which the witness has
referred.
The PRESIDE:--T:Mr. Gross, I noted yesterday-it might be said now,
because it is rather important-that in the course of your objections you
said that you had not been given sufficient notice of the purpose and of
the type of evidence which was going to be given, and secondly that you
could not adequately prepare cross-examination. \Vithout comment~ng
upon whether you could, in the circumstances of this morning, havn~g
read the transcript overnight, cross-examine, the Court will not have 1t
appear, because we do not think it to be the fact,that the Applicants are
placed in any position of prejudice, and it is proposed, when the witnesses
conclude this evidence, that you should be asked whether you propose to
cross-examine at all, and if you do propose to cross-examine, whether
you propose to cross-examine this morning, and if not, why are you
not in the position to proceed with any cross-examination? If you are
prejudiced in respect of any particular matter, or daim to be pre- SOUTH WEST AFRICA
judiced, then the Court will certainly protect the rights of the Applicants.
Mr. GROSS: Thank you, Mr. President.
Mr. DE VILLIERS: Thank you, Mr. President. Now, Dr. van den Haag,
I shouJd Jike you, as an expert, to assume the correctness of the descrip
tion you have read about the aims and the nature of the Ban tu education
policy in the respects I have indicated to you. There will be other evi
dence about it-there is evidence on the record--! am not asking you to
give evidence about the factual correctness of the assumption; but as
suming the correctness of that proposition about the aims and the nature
of the Bantu education system, would you, in the context of such an
educational system, expect that the mere tact of separation of children
into different schools must inevitably inflict psychological harm?
Mr. VANDENHAAG:No, sir, not at all-I wouldin fact think that non
separation would be harmful to both of the groups that are congregated;
as long as the levels of learning, the backgrounds, the customs, the
moves are as different as you describe them to be, an attempted homo
genization would certainly be harmful to both, as well as unsuccessful.
Mr. DE VILLIERS: How do you regard this aspect of the matter by way
of comparing the situation in the United States with that in South
West Africa, making the assumption, of course, that I have put to
you?
Mr. VANDENHAAG:Weil, in the United States there is certainly a
much better case for desegregation because, as I mentioned in my testi
mony yesterday, there is no separate cultural source for the Negroes who
are really, generally,participants in American culture. Itdoes not follow
that, even in this case, segregation would be necessarily harmful, but it
does follow that I do not see a particular need for it, and certainly no
need for imposing it by law. As I mentioned a moment ago, in certain
cases--and I think they apply to the majority of Negroes whose parents
are not either professionals or generally middle-class-it might be useful,
even there, to separate at least temporarHy to permit, as I said, an equal
level to be established where possible, a sirnîlar level between Negroes
and Whites; but I certainly would think, to corne back to a general
question, that the need for segregation in the United States is far less
than it would be in a place where Negroes have a Native culture oftheir
own.
l'lfDE \'ILLIERS:Now, you have been dealing with ethnie groups
membership in ethnie groups. The argument against us seems to amount
to this: that rights of individuals are denied when they are treated as·
group mernbers rather than as îndividuals. The suggestion appears to
be that the emphasis ought to faU on the individual rather than on the
group when regard is had to their well-being and social progress. What
do you say to that?
Mr. VANDENHAAG:I certainly would say that the individual is the
ultimate constituent of society and of any social group; the very word
"individual", which cornes from individuum-that which cannot be
divided-indicates as much, but I would also say, as Aristotle has already
pointed out, that human beings are, in his words, zoon politikon-that
is, they are social beings; that society consists as much of groups as it
does consist of individuals, and to regard human individuals as though
they are isolated atoms separated from a particular group would be-and
I cannot imagine a single sociologist disagreeing with me on that-a
very grave mistake. Human beings become human, as it were, only by WIT:N"ESSES AND EXPERTS 165
being members of a group. It is from the primary group, the family, in
the first place that they become socialized or humanized, that they learn
the language, that they learn to co-operate with other human beings,
that they learn to contrai their evacuation and to do and not to do certain
things that their impulses would otherwisc lead them to do, and through
out one's Jife every human being except those in insane asylums, who
are indeed therefore called, sometimes, "alienated"-that is, not capable
of participating in group life-the term for a psychiatrist used to be
"alienist"-except for these, we all remain members of numerous social
groups and, I would say, this is recognized in Jaw. The law indeed does
punish for a violation of law only the individual that has violated the
particular legal rule, but it imposes obligations on individuals as group
members, and it treats individuals very oftcn not in their quality as
individuals but in their quality as group members. Let me give you some
illustrations,very simply: liability is often as a group member-a child
is in most jurisdictions compelled to support his parents when these
parents are no longer able to earn a living. Now, the mere fact that the
child is a child of these parents-that is, a member of a group, family
establishes the liability; it is, of course, established also vice versa
parents have to support children, but there you might say that they
had these children voluntarily and this was an obligation that they took
upon themselves as individuals, perhaps but the child has no choice-
he has no way of not having parents, and hence if the obligation is imposed
on him of supporting his parents it is imposed on him as a member of
a group. Similarly in many States we have legislation referring to groups
and sometimes to their physiological and anatomical particularitics
for instance, women are in the United States and in many other places, as
women, not allowed to work certain hours-in short, they are treated by
the law not as individuals but as members of the group that is called
"women". I spoke of biologicalgroups-there are othergroups, ethnical
ly constituted, in which again the law treats people as group members.
Just as I left New York, a few days ago, the papers were speaking of a
case where a number of Japanese students were being expelled from the
United States for having worked in the United States, in this case as
waiters in a Japanese club; what happened is that they are permitted to
corne to the United States as students, but had not been permitted to
work. Now this of course is a specific treatment inflicted on these students
as members of the group that we call "Japanese", and similarly, I would
say, in many other cases individuals are trcated as group members; as
an American I will be subject to the American draft-that is, to enlist
ment or recruitment for military service, which I would not be if I were
nota member of the group called "Americans". Again, if I go abroad I
am very often not treated as an individual, but treated as a member of
a group called "strange foreigners" in the first place, and thcn specifically
"Amcricans"; in some cases I will need a visa on my passport as an Amen
can, and in other cases I may not. My own Govemment so treats me in
many other cases-gives me certain rights, privileges and duties which
I have as an American, as a male, as a person in a certain age group that
I would not have were I not a member of ail these groups.
So I would answer your question in two ways: (r) it is a matter of
sociological fact that we are all members of quite a number of groups,
and (2) the law does recognize that in many instances. Let me add fur
ther that where, for one reason or another, either owing to material166 SOUTH WEST AFRICA
developments or sometimes to laws, where this group membership is
altogether disregarded and becomes difficult to maintain, there we have
consequences to which I alluded already yesterday, which Durkheim
described as "anomie"-that is, the feeling of not belonging for the
individual, and which in modern literature is often referred to as alien
ation,and this feeling in turn is certainly regarded by most psychoanalysts
as basic to neurotic developments in individuals.
Mr. DE VILLIERS: Can it be suggested that the tendency to treat
people as group members is diminishing in modern times?
Mr. VAN DEN HAAG: I would not think so. I would say-1 am speaking
of America now, where I think developments are parallel-1 think in
fact, and somewhat to my own dislike, the tendency is rising. Take for
instance workers in a factory, they may no longer decide individually
whether to join a union or not; the law may treat them as group members
and say that under certain circumstances, they are compelled to join
the union merely by working in a particular plant and regardless of
their individual wishes. And I have the feeling that the tendency in
modern deve!opment is rather to disregard the individual in many cases,
and to treat him all too exclusively as a group member. There are some
technological reasons why that may be advantageous but it would be of
a value judgment to decide whether this justifled this legal treatment
or not.
Mr. DE VILLIERS:Now, can you give us the background of what you
have just dealt with and tell the Court whether you consider that groups
can or will or should be formed on an ethnie basis, and respected and
treated by the laws on that basis?
Mr. VAN DEN HAAG: Well, Mr. de Villiers, I certainly would not
pronounce myself on should be, but let us say are found on an ethnie
basis; this is a matter of fact. This is the very basis of group formation.
It is not the only basis, and we do sometimes have group formation
which disregards ethnie matters, or is even contrary to them, but most
of the time, and in most cases, I would think that ethnie group belonging
is the basis for most other group belongings, at least in the United States
and I suppose elsewhere too.
Mr. DE VILLIERS:Could you give the Court an indication of the type
of consequences one could expect when different ethnie groups are
brought into unregulated contact with one another?
Mr. VAN DEN HAAG: Yes, in a very general scnse, I would say that
the effects of this, unless the contact is carefully regulated, tend to be the
production of the phenomenon that I spoke of as anomie. Now, another
word, which describes about the same, is social disorganisation, and this
can be measured by a number of phenomena. Now, the first one who
tried to bring about such a measurement was Emile Durkheim who
measured, or tried to indicate that the rate of suicide would be an evi
dence for the presence and frequency of anomie. I have, and I would
liketo quote here another attempted measurement, which strikes me as
very pertinent; it is based on the rate of delinquency. Professor Bernard
Lander in a book called Towards an Understanding ofJuvenile Delinquency
and published by the Columbia University Press in New York, measured
delinquency rates in the city of Baltimore and he compared the rates as
they occurred in 1903-that is 60 years ago-and as they occurred again
in 1940 and 1950. The results, I would like to very briefly quote. In 1903
he found that- WITNESSES ANDEXPERTS 167
"Delinquency was highest in those sectors of the city that were in
the main inhabited by the foreign born."
Presently he finds the following-referring first to the Negro delinquency
rates, he finds-
"The Negro delinquency rate increases from 8 per cent. in areas
in which the Negro population is less than IO percent. of the total
population, to 14 per cent. in tracts with a Negro population of
between 30 and 40.9 per cent. However, as the Negro population
increases beyond 50 percent. the Negro delinquency rate decreases
to 7 percent. in areas with 90 percent. Negro population. A similar
pattern characterises the white group. As the Negro proportion
increases to 50 per cent., the delinquency rate increases. As the
percentage of Negroes increases beyond 50 percent., the delinquency
rate decreases, thus when other factors [such as income level,
educational level, residential accommodations, and so on, when all
other factors] are held constant, delinquency rates in Baltimore are
highest in areas with maximum racial heterogeneity."
To briefly paraphrase what I think is reaso:1a?lY clear from the quot~
tion, what Professor Lander has found, and 1t 1sgenerally confirmed, 1s
that where there is a great degree of unregulated culture contact, there
rates of delinquency increase. Where the population is culturally and
ethnically reasonably homogeneous, whethcr it be black persons or white,
all other things being equal, the delinquency rate decreases: that is, the
delinquency rate, all other things being equal, is a function of ethnie
heterogeneity. Of course the explanation for this is very simple. As groups
with different mores and so on, corne in contact with each other, the
authority of the customs and mores of each group. in the minds of its
members, suffers from their proximity to different mores which they do
not fully comprehend, but which in some way weaken their own. The
result is a higher delinquency rate.
Mr. DEVILLIERS:Just to get it clear on the record. Is this quotation,
which you read to the Court, from Professor Lander's work itself, or is it
a passage taken over in another work?
Mr. vANDENHAAG:I used my own book Passion and Social Constraint
in which I quote Professor Lander.
Mr. DE VILLIERS:Will you give that reference please for the record?
.Mr.VANDENHAAG: Itis on page 183 of Passion and Social Constraint,
of which I am the author.
Mr. DE VILLIERS:Now, are there authorities to which you would like
to refer on the effect of race mixture, that is, shall I say, where races
or ethnie groups are brought into unregulated contact with one an
other?
Mr. VAN DEN HAAG: Yes, quite a number. I would like to indicate
firstthe way groups are formed and what the changed contact may mean
specifically.Let me quote in this respect, Professor Glaister A.Elmer
of Michigan State College, Sociology and Social Research, Volume 39,
No. 2, 1954, pages 103-109. Professor Elmer and I quote:
"The real identifications of individual members are anchored in
the group. A sense of loyalty and solidarity is generated in them
as a natural process which manifests itself in actual behaviour.
As individuals become members of a group, the social process of
integration is taking place. Besides the individual members of the168 SOUTHWEST AFRICA
group, the integration binds the social values and goals, the psychic
characteristicsand the in-group symbols with which the individual
members become identified. The socialidentification which evolves
thus constitutes the basis of group solidarity, from which results
observable, measurable behaviour.
Social identification isthe overt and covert manifestation of a
'we' feeling. There must be a personal consciousness of 'belonging
to' or 'being part of', which is reflected in the opinion and the
behaviour of the persons concerned. Group membership identifica
tion implies not an individual reaction toward a group, but bis
reaction as a functioning element of the group. This implies a con
sciousness of kind, a oneness, a lack of social distance." (P. 105.)
That was Professor Glaister Elmer.
Now I would like to refer to this more specifically as it applies to
heterogeneous populations by quoting Professor George A. Lundberg,
who is a professor of sociology and a former president of the American
Sociological Association.
The PRESIDENT: Mr. de Villiers, interrupting you, the witness is
quoting other experts. Does he affirm that the views of the other experts,
which he is quoting, are his views?
Mr. DE VILLIERS: Mr. President, I think he indicated initially a certain
proposition and he is quoting other experts in support of the proposition,
but I shall bring him back to that question.
Mr. VAN DEN HAAG: I certainly am willing to assert that those experts
I am now quoting do utter opinions which I endorse.
Mr. DE VILLIERS: Thank you.
Mr. VANDEN HAAG: I would like, on the same subject to quote Profes
sor Lundberg from an essay of his called "Sorne Neglected Aspects ofthe
Minorities Problem" which appeared in the magazine Modern Age,
Summer, 1958 (p. 286):
"In every society, men react selectively to their fellow men, in
the sense of seeking the association of some and avoiding the as
sociation of others. Selective association is necessarily based on
some observable differences between those whose association we
seek and those whose association we avoid. The differences which
are the basis for selective association are of indefinitely lar~e variety,
of all degrees of visibility and subtlety, and vastly d1fferent in
social consequences. Sex, age, marital condition, religion, politics,
socio-economic status, color, size, shape, health, morals, birth,
breeding, and B.0.-the list of differences is endless and varied, but
all the items have this in common: [first] they are observable,
[second] they are significant differences to those who react selectively
to people with the characteristics in question. [They are perceived
as significant differenceswhatever their objective significance may
be.]Itis, therefore, wholiy absurd to trto ignore, deny or talk out of
existence these differences just because we do not approve of some
of their social results."
And again, let me quote Professor Lundberg, from a different paper in
which he tried to test this theory of selective association by asking high
school students what their preferences were, and observing their pref
erences in association in work, in dating, in social intercourse and so on,
under a variety of circumstances. This article by Professor Lundberg. WITNESSES ANDEXPERTS
appeared in The American Sociological Review, Volume XVII, in February
r952, and it is entitled "Selective Association Among Ethnie Groups in
a High-School Population". In this, Professor Lundberg states-1 am
just quoting a few passages, the article is too long to read (p. 34):
"Every ethnie group showed a preference for its own members ...
a certain amount of ethnocentrism [that is, concentration on one's
own ethnie group and preference perhaps] is a normal and necessary
ingredient of all group life,hat is, it is the basic characteristic that
differentiates one group from another and this is fondamental to a
socialstructure."
Mr. DE VILLIERS:You have indicated that you agree with the views
there expressed.
Mr. VANDENHAAG:Yes.
Mr. DE VILLIERS:Could you indicate to us how early this conscious
ness of kind would start in the hurnan life?
Mr. VANDENHAAG: I have made no persona! studies on this but I
would like to submit for your consideration the studies that have been
made by others; let me quotc a study by Marion Radke, Jean Suther
land and Pearl Rosenberg, which appeared in the magazine, Sociometry,
Volume XIII, llfay 1950, and entitlcd "Racial Attitudes in Children".
The children in question there are ofthe ages between 7 and 13, altogether
475 Negro children and 48 White children. Allow me to just quote the
conclusion of the study (p. 170):
"The \Vhite children in ail situations and at all ages (seven to
thirteen), cxpressed strong preferencc for their own racial group.
This is particularly the case when the choices between Negro and
White children as friends, are on an abstract or wish level [this was
done through a picture test] ... The inter-racial choice, is limited
strictly to the classroom and does not carry over to the community in
which the proportions of Negro and White populationsare the same
as in school. The White children express unfavourable attitudes
towards Negroes by assigning the undesirable behaviour character
isticsto the photographs of Negro children; this applies again to
allage levels."
Now there is another paper which I would like to quote here by
Mary Ellen Goodman of Radcliffe College and which appeared in the
American A nthropo!ogist. It is entitled "Evidence Conceming the Genesis
0f Inter-Racial Attitudes" and it appears in the October-December,
1946, issue of the American Anthropotogist. The Goodman study con
cludes-and I will only read the conclusion (p. 429):
"Preliminary analysis leads to the belief that these children of
approximately 3 to 4 and a half years were in the process of be
coming aware of race differences and of their implications."
This conclusion is finally supported by one more study I would like
to quote: this one is by Catherine Landseth and Barbara Child Johnson,
both of the University of Califomia and entitled "Young Children's
Responses to a Picture and Inset Test, designed to Reveal Reactions to
Persons of Different Skin Colour". This appeared in the magazine Child
Development, Volume XXIV, ilfarch 1953. Again, I will quote merelythe
conclusion. It is (p. 78) :170 SOUTH WEST AFRICA
"Patterns of response to persons of different skin colour are
present as early as three years and become accentuated during the
succeeding two years."
So ifI may now conclude from the views of these experts, and while
I repeat, in this particular field, I do not regard myself at Ieast as an
empirical worker, it seems that consciousness of kind, particularly as
regards skin colour, starts about the third year, about three years,
that is, the fourth year, and continues and increases. I would like to add
a note here; no present evidence that Iknow of has been able to distinguish
to what extent such consciousness of kind is due to possible parental
influence and to what extent it is, as it were, spontaneous. It would be
very interesting to find that out but no-one has so far, been able to
devise a method that would permit us to make this distinction.
Mr. DE VILLIERS: Dr. van den Haag, you have indicated the tendency
to recognize ethnie differences and distinctions, a tendency towards
separation, living apart, but those tendencies are universal. You have
given examples mainly in regard to the United States, about certain
aspects of life there. Can you think of other examples which you would
like to mention in this context?
Mr. VANDENHAAG:I think the tendency is universal and I would
like to give some examples from Brazil. I have a special reason for that
Brazil is one society where there has been traditionally no legal racial
distinction, and it is also a society where, it is well known, a variety of
racial strains have not only lived together, but mixed quite freely. I
should like now to quote from an article by Professor Emilio Willems,
called "Racial Attitude in Brazil", which appeared in the American
Journal of Sociology in l\farch 1949. The pages from which I am quoting
are 403-404, and 406. Professor Willems enquired with a number of
people who had advertized for employees under various circumstances
in Brazilian papers. He subjected these people to a questionnaire, and
his results are as follows (p. 403):
"Of the 245 advertisers, 194 were interviewed. r8 advertisers
did not accept Negro servants because of presumed lack of clean
liness;30 thought black housemaids were always thieves; 14 alleged
instability and lack of assiduity; 12 said only that they were used
to white servants" ... , etc.
Again, I quote from another passage in the same article, page 404 of
Professor Willems. He said that his interviewees felt strongly that they
did not wish to take as equals negroes; he interviewed negroes of middle
class standing and (p. 404)-
"they felt strongly that they were not taken as equals. There are
many situations in social life where white people refused to be seen
with negroes; in such public places as high-class hotels, restaurants or
casinos, fashionable clubs and <lances negroes are not desired, and
there are few whites who <lareto introduce negro friends or relatives
into such places".
This occurred in Brazil.
May I quote one more instance (p. 406):
"Another questionnaire was connected with the exclusion of
coloured persons from certain barbers' shops, restaurants, hotels,
and theatres. In 20 cities such exclusion was admitted, while in IO WITNESSES AND EXPERTS 171
it was denied. [In one case protests were made by a coloured Army
Offi.cerwho had been denied service in a barber's shop in a Brazilian
city, and] the barber himself implored [the customer and] the crowd
not to damage his shop, saying that he was not guilty of any discrimi
nation. Exclusion of coloured people had been imposed upon him by
his white customers."
Let me add, Mr. President, that Ido not myself subscribe to any of
these stereotypes or adverse attitudes felt against Negroes; Iam a sociolo
gist, on the other hand, a student of the presence or absence of such
attitudes, and Ifind it interestingto note in this case that these attitudes
exist in Brazil, which in the United States is usually popularly upheld as
a model of an inter-racial society where such phenomena as areinfamous
in the United States do not exist.
I would Jike to support this point further by quoting from an article
by Roger Bastide, which appeared in the American Sociological Review
in December 1957. Professor Bastide writes as follows, on page 691:
"Stereotypes against negroes and mulattoes are widespread. 75%
of the sample accept 23 or more stereotypes against negroes. No one
rejects all stereotypes against negroes. For mulattoes, the overall
picture is somewhat more favourable though very similar. Mulattoes
are judged inferior or superior to whites, on the same traits as negroes
but with somewhat lower percentages. The most widely accepted
stereotypes are lack of hygiene (accepted by 91% for negroes),
physical unattractiveness (87%), superstition (80%), Iack of finan
cial foresight (77%), lack of morality (76%), aggressiveness (73%),
laziness (72%) lack of persistence at work (62%), sexual perversity
(51%), and exhibitionism (50%)-"
I wish to emphasize once more that these are stereotypes, according
to these scholars widespread in the percentages quoted in a sample of
white Brazilians, held against people classified by these white Brazilians
as Negroes or mulattoes within Brazil.
Mr. DE VILLIERS: I shall later ask you about tendencies of increasing
or decreasing the holding of such stereotypes in various circumstances,
but first I should like to ask you whether you wish to refer to other
examples of the same thing, say, outside of the western hemisphere.
Mr. VAN DEN HAAG: Well, my notions of geography are a little vague.
Let me refer to some instances in Russia. The Russian Government has
purported, at least for a very long time, to be bitterly opposed to all
such racial and ethnie stereotypes, and it has indeed taken legislative
measures against various group hostilities, or so we are told. Further
more, it has been the contention of the Russian Government that such
prejudicial attitudes are connected with a system of economics other
tha~ that prevailing in Russia, and would necessarily disappear there.
Nonetheless, I wish topoint out that American Jewish leaders havecon
tended over the years, and are contending now, that there is widespread
anti-Semitism in Russia, and that it is supported at least by the lower
echelons of the Government and possibly also by the higher ones.
With your permission, Mr. President, I would spare you reading a
whole article, but I would like to put it into the record. The article I
have in mind is written by Mihajlo Mihajlov, a Yugoslav who has recently
indeed had some difficulties with the Yugoslav Government by publishing
his travel diary in the Soviet Union. Th'.isgentleman is himself a declared172 SOUTHWESTAFRICA
socialist, a Marxist, and he is also not a Jew, and he describes at con
siderable length instances of anti-Semitism, official and unofficial, that
he found in Russia (The New Leader, 7 June 1965, p. 7).
I also would like to call your attention, Mr. President, to the facts
that have been quite recently discussed in the world press that in Russia
there certainly was no Negro problem because there were no Negroes, to
speak of, but as a number of students from a variety of the new African
countries were invited to study at Russian universities, it was found,
according to these students returning to their homelands, that the
Russians exhibited a considerable amount of anti-Negro prejudice and
resentment. In fact, a group of more than a hundred ...
The PRESIDENT:Mr. de Villiers, perhaps you would indicate to the
Court to what particular part of the case this is directed. It seems to be a
little far afteld, doest not?
Mr. DE VILLIERS:Well, Mr. President, perhaps themeasure of detail ...
As I have indicated, I am asking the witness next, after describing these
phenomena as he observes them in various parts of the world, what
lessons are to be learned from them with a view to determining upon
governmental policies in particular types of situations.
The PRESIDE~T: It does not involve, does it, going into the detail
which is being gone into?
Mr. DE VILLIERS:Yes. Dr. van den Haag, it is perhaps not necessary
to go into ail the detail but is there anything that you wish to add in
general to that point?
Mr. VANDENHAAG:The only point I can make very briefly is, that as
you introduce a new group, ethnically different, you will, everywhere in
the world, find the creation of ethnie prejudice, attempt at ethnie
separation, unless this introduction is precedecl and continuously asso
ciated with a very careful governmental regulation that permits the
introduction to be gradual and to allow for acceptance by each group of
the alien groups.
Mr. DE VILLIERS:Now, how do you explain the universality of this
phenomenon, this tendency of different ethnie groups to want to associate
with themselves, to be separate from others?
Mr. VAN DEN HAAG:\Vell, you are asking me a theoretical question.
I think I will give a theoretical answer, and, if I may, I would like to
start by quoting an article by Professor Gustav Ichheiser entit]ed
"Socio-Psychological and Cultural Factors in Race Relations", which
appeared in the American Journal of Sociology, March 1949.
The PRESIDENT:Mr. de Villiers, again I must ask, in respect of evidence
such as this, doesthe witness indicate (he says this is a theoretical matter)
that although he is expressing the views of somebody else, does he con
cur in those views, because that must be established, Otherwise, the
evidence would be worthless.
Mr. DE VILLIERS:Thank you, Mr. President. Will you please indicate,
Dr. van den Haag, what your views are about the matter on which
you are about to quote?
Mr. VAN DEN HAAG: I fully agree with Professor Ichheiser's view,
I am quoting from page 395 of the article that I mentioned:
"People who, in a signiftcant way, look different to one another
have a tendency to consider one another as not only looking different
but also as being different, and they have this tendency because our
socio-sensory perception of the physical appearance of other people WITNESSES AND EXPERTS 173
is essentially symbolic in character. The external personality is
immediately perceived as a manifestation of the inner personality
which it actually or supposedly reveals and represents."
May I emphasize that neither Professor Ichheiser nor I feel that one's
physical appearance necessarily discloses one's personality. But what
Professor Ichheiser and I both assert is that the impression one has from
the physical appearance of someone else tends in most cases to lead to a
judgment, however untrue it may be, about the personality of the person
one has encountered.
I would like to quote further from Professor Ichheiser, at page 396-
the same article:
"Since members of differcnt racial groups, like White people and
Negroes, look significantly different, they have a very strong ten
dency to considcr each other not only as looking but also as being
different and, consequently, as belonging to two different groups.
The degree of disparity between the bodily appearance plays, as
experience shows, a very important role. They have this very strong,
possibly irresistibly strong, tendency whether they are explicitly
aware of it or not, whether they honestly admit it, or hypocritically
deny it, whether they would be able to define what this being different
means, or not. This means also that this basic socio-sensory per
ception of difference in physique plays a powerful role in the con
scious. and probably still more powerful role in the unconscious
group identification. Looking at each other is the most primary form
of conversation. Between White people and Negroes the initial and
basic part of this conversation is concluded before they start to talk
with one another. In spite of Marxian theories we are unconsciously
more deeply identified with those who talk as we talk, behave as
we behave, look as we look, than with those with whom we have
identical economic interests. Again, whether we are aware of it or
not, whether we admit it or not, 'we', 'you' and 'they' mean certain
ly one thing to the White persan and another thing to the Negro.
To put it another way, our bodily appearance, our externat persona
lity, constitutes obviouslyan integral part, in terms of social identi
fication, an extremely important aspect of our total personality.
As a matter of fact, it is the core of our social image. Consequently,
in terms of social psychological reality, people who look different
are different. I think we should realistically admit this fact and
discontinue ta deceivc ourselves and one another. Nobody, in fact,
is seriously able to believchat White people and Negroes belong to
the same social group, because our eyes tell us that this is not true,
and the eyes are our sense of reality. ln everyday life we believe
what we see. Thus, the real segregation is not in space, but in socio
sensory perception, and its basis is not a cultural pattern or social
system, or prejudice, but the nature of our perceptual experience."
I want ta add one more paragraph to this, from page 398:
"The tendency of White people to consider Negroes as being
different, as belonging to another group, is much more deep-seated
than the tendency to consider them as being inferior, or whatever
else is suggested by the cultural pattern. Hence, although it is not
easy and will not be easy to convince White people that Negroes174 SOUTH WEST AFRICA
are not inferior, this is still easier than to convince them that they
are not different."
Mr. DEVILLIERS:Do you understand the author to suggest that they
are in fact not different?
Mr. VANDENHAAG:No, I do not think that that is what the author is.
suggesting. He is suggesting that in the sense of social psychological
reality they are perceived as different. I do not think that he deals with
whether such differences do objectively exist. As a sociologist he is in
terested in people's perception of each other, not in the separate, say,
perception by scientific instruments. He is interested in the social per
ception that we have of each other, so he makes no judgment on whether
they truly are different, though certainly it is implied in his writing that
he makes the judgment that they are not in any way either inferior or
superior-a view that I also hold.
Mr. DE VILLIERS:But in referring to the social perceptions of differ
ences he refers to the fact that those do not necessarily correspond to
what the true position is: is that how you see it?
Mr. VANDENHAAG:I think that is implied, yes.
Mr. DEVILLIERS:What happens when there are attempts at assimila
tion of one group with another, depending, of course, on particular
circumstances? Could you indicate to the Court what factors are involved?
Mr. VANDENHAAG:I really think that I have very little to add to
what I have already said before. There are circumstances when this can
be successfully accomplished, when it is carefully regulated, when there
is a lot of groundwork laid, when it is done slowly, when it proceeds by
mutual acceptance. I think the attempt to do so by coercion is not likely
to be successful, and if it were so to speak Iegally objectively successful
it would lead to very unfavourable psychological consequences for the
individual group members. As I mentioned, it would lead to such things
as anomie, connected with a high rate of delinquency, probably a high
rate of mental disease and neurosis-I say probably because we have
not been able to measure that statistically-and so on.
Mr. DEVILLIERS:Have you again a quotation from Dr. Ichheiser that
you wanted to refer to on this subject?
Mr. VANDENHAAG:Well, yes; this would refer to the attempt that is
sometimes made by members of one group to, so to speak, leave that
group where this is legally possible. I think that I mentioned before
that in many cases this is legally not possible or materially not possible,
but, for instance, it is possible, legally, for a Negro in the United States
to try to assimilate and to regard himself as a member of the white
group. Now if his skin colour is very dark, such an attempt is unlikely
to succeed because there would be very visible signs of distinction. But
sometimes when the skin colour is reasonably light such attempts are
made, and they are known amongst sociologists as attempts at "passing".
Professor Ichheiser, and I am now referring to page 399, puts it this way:
"If Negroes would refuse to identify themselves consciously
with Negroes as a sub-group then they would develop a kind of
collective neurosis, as do other minorities too, for the conscious
'we' would in case of such an attitude be persistently in conflict
with the unconscious 'we', and this inner split would invariably
reflect itself in different pathological distortions of the Negro
personality." WITNESSES ANDEXPERTS 175
My own comment on this is, generally speaking, that if one's external
identificationdoes not correspond with one's internal identification
there is of course a strong conflict which may lead to pathological phe
nomena.
Mr. DE VILLIERS:Do I undcrstand you to mean-you can correct
me if I am wrong-that even where it may be legally possible, even
where it may be materially possible, then still psychologically and
sociologically it is extremely difficult for a member to quit his group?
l\IrVAN DEN HAAG: You are entirely right, yes.
1\IrDEVILLIERS:Now you were dealing with traditions, with notions,
with inclinations: are they not ail created by human beings and is there
not an argument which runs to the effect that when you can teach certain
inclinations they can again be untaught?
The PRESIDENT:Mr. de Villiers, 1 do not think you ought to lead the
witness. That was a leading question.
l\IrDE VILLIERS:No, Mr. President, I am putting a proposition to
him which I do not agree with. I am asking him for his comment on the
proposition.
The PRESIDENT:Well you could put it another way, I should have
thought.
l\Ir. DE VILLIERS:The argument is sometimes used to the effect that
when there are inclinations on the part of human beings they must have
been taught and they can again be untaught. What do you say about
that proposition in the context of our discussion?
?.IrVAN DEN HAAG: There are two points which perhaps I would
make. First let me distinguish-when you say "taught", if you mean
forma! teaching, such as we have in a school, I would certainly think
that what has been taught in a school canin a sense be untaught; but if
you mean by "taught" something that is indecd learnt without being
formally taught, then your proposition that that which human teaching
or learning has initiated can also be eraclicated by a different sort of
human learning I do not think is correct. Language, for instance, is
learnt informally, you are not born with it, yet any attempt deliberately
to change pt:ople's language habits has been, although individually quite
often successful, collectively unsuccessful. Grammarians, for instance,
for many years have been trying to impose a particular linguistic use
in many languages on people at large and they have succeeded with
some of thcir pupils but they have not succeeded in influencing the
development of language as a whole. Indeed, I would say that the general
idea that what human beings have created they can also uncreate un
fortunately is not altogether true.
If you look at such phenomena as war, for instance, which as far as I
know no one likes and is certainly a type of human action, nonetheless,
we have not: found a way so far of preventing it, and as we are talking
several wars are going on in the world. So I would say that the fact that
it is a leamed type of behaviour, and I would agree if you speak of racial
matters tha t it is a learned type of beha viour, at least we have no evidence
that it is innate, but from this fact it does not follow altogether that it can
be unlearned, so J would myself believe that it could be modified.
Let me add another point. \Vhen the behaviour, however arrived at,
is functionally necessary, so that it serves within the group a certain
social or psychological fonction, then I think it is pretty much and very
nearly impossible to make people unleam it. When, on the other hand, itI76 SOUTH WEST AFRICA
is behaviour that could be replaced by a different kind of behaviour that
would serve the same fonction, or would permit the group to continue
to fonction, then I think the chances of unlearning that behaviour and
replacing it with a different kind are better.
Mr. DE VILLIERS: Could you give an example of cases where you think
it may be functionally necessary?
Mr. VAN DEN HAAG:Well, l think group identification as we have
now discussed it several times is functionally necessary, and I do not
think that it is possible, as Professor Ichheîser has also stated, to make
people believe that there are no differences between different ethnie
groups. The particular prejudices that people have built up about
particular ethnie groups possibly can be unlearned or at least be modified
not, in my opinion, probably by formal learning but by a variety of
social agencies. Aithough the feeüng and the prejudice that a particular
group is inferior or incapable and so on, can possibly be unlearnt and
it will take quite a while, the feeling of differentiation, in my opinion,
cannot, because that is functionally in the nature of human groups.
Mr. DE VILLIERS: Could you then give an indication to the Court of
what you think the role of education could be in the shaping of human
relationships, especially across the lines of ethnie group formation?
Mr. VAN DEN HAAG: Let me point out that very great hopes were
held for education by most authoritîes until about ro or 15 years ago,
when a number of studies were made, of which I will quotc one, which
indicated that education in the forma! sense has been quite ineffective,
even in removing the more gross stereotypes and prejudices. I would like
to add that this does not make me altogether pessimistic on the
possibilities of education, but it makes me feel that we ought to consider
more carefully what a prejudice consists of, and in particular we ought
to bear in mind that the concrete expression of the prejudice is usually
a rationalîzation,that is a formulation in cognitive form of what is in
effect a pre-existing feeling or emotion; and that we are unlikely to
achieve anything by giving cognitive information. \Vhat we have to
attack is probably the feeling or the emotion that predisposes to the
acceptance of cognitive information or misinformation-that makes
the person who has that emotion select his information so as to serve
the emotion. And as to how to do that I am afraid I am not altogether
ableto give a prescription and no one else so far has.
But let me first quote from Charles Stember, Professor of Sociology
at Rutgers University, that is the State University of New Jersey, from
a book of his calledEducation and Attitude Change, which was published
by the Institute of Human Relations in New York in 196r. Iquote from
page 168:
"Most research suggested that the educated were less prejudiced,
but the present study finds that on many issues the educated show
as much prejudice as the less educated, and on some issues they
show more. The educated are more likely to hold certain more
highly-charged derogatory stercotypes, they faveur informai dis
crimination in some areas of behaviour, reject intimate contacts
with minority group members."
I am now quoting from page I7I:
"As we go up the educational ladder old images of minorities are
replaced by new ones, often no less harmful. Covert discrimination WITNESSES AND EXPERTS
I7J
continues to be acceptable, and most important perhaps, the desire
to keep minorities at some social distance remains."
Page 173:
"The influence of education is more superficial than profound,
reaching most strongly those aspects of prejudice which are least
entrenched in the normative system."
And the conclusion, more or less, on page 180:
"'Vhen the issues are sensitive or controversial, the effect of
education is either minimal or inverse."
Finally, on the same page:
"The effects are usually strongest where education tends to set off
a group more or less distinctly from its environment. The data
suggests that the effect of education on the whole is minimal."
Now, I would like to tell the Court to what extent I cndorse the
passages I quote. I certainly do endorse Professor Stcmber in general;
I am not quite as pessimistic myself as he is; I think his study reflects
correctly what he did find; similar studies have been made and have had
the same result, but I think that if we were to try to proceed with dif
ferent methods of education, and possibly different cducational agencies,
our chances of reduông prejudice might be better.
Mr. DE VILLIERS: To what extent could you say that these views that
have just heen stated about education are generally held or otherwise?
Mr. VAN DEN HAAG: Well, they are now quite generally accepted
among sociologists, but this is a fairly recent development. Ten or 15
years ago the opposite view was held.
Mr. DE VILLIERS: Now, could you explain why-as you have indicated
to the Court-prejudice is so hard to eliminate either by education, or
by de-segrcgation, or by both, when they are taken by themselves?
Mr. VAN DEN HAAG: I would say we know very little really about the
basis of prejudice, but I would like to make a distinction. Sorne of it
arises from mere ignorance, and then I think by cognitive information
could be dispelled. But the major part of it arises the opposite way, I
would say; it is not ignorance that causes the prejudice, but rather the
prejudice that causes the ignorance. It is the prejudiced person who
does not absorb information that he does not wish to absorb. I do not
believe that this has much to do with segregation or de-scgregation,
in the sense that de-segregation would remove the prejudice.
Let me indicate why. It was only a fcw hundred years ago that literally
hundreds of thousands of elderly women were burned in western Europe,
particularly in Germany, as witches. These women lived in the villages,
in which their neighbours insisted that they had seen them riding on
broomsticks and doing all kinds of things that, according to what we
know today, they could not possibly have done; yet there is good reason
to believe that these neighbours were in good faith; they did not lack
contact with these women, they were not segregated from them. What
happencd is simply that these women were old and seemed just a little
strange and different to the villagers and the rest of the fantasy seemed
to follow.
The church in many of thcse cases tricd to avoid such witch burning
and so on, but gave in to popular pressures.
The PRESIDENT: Mr. de Villiers, I really think we are going a bit far178 SOUTHWEST AFlUCA
away from the issues of this case, with witch-burning and so forth.
Mr. VANDENHAAG:Weil, that much could, of course (the case took
place in Germany) indicate that prejudice may arise despite reasonably
intimate contacts. I want to make it very short; just let me add that we
know very little about how a preference, and a negative preference, may
arise; we do know that generally people prefer people that they think
are of their own kind, that they perceive as people of their own kind, and
that prejudice arises when people of a different kind seem to threaten
the identity of the people who hold the prejudice. The more identification
through group membership is felt to be threatened the higher the intensity
of the prejudice. That much has, Ithink, been fairly generally established.
\Vhen people feel fairly secure in their identification as group members,
when they do not feel that the identity of the group is threatened, then
their prejudice is lower; hence, when, there is physical or social distance.
Mr. DE VIL!.IERS:Are there circumstances in the United States in
which it bas been possible to observe whether separation may or may
not have positive consequences--consequences to the good?
The PRESIDENT:Mr. de Villiers, the question as you have put it wciuld
seem to be not admissible. Whether there are circumstances existing in
the United States which lead to this or that can only be relevant if the
certain circumstances of which the witness is aware lcad him to some
conclusion in relation to this case. \Ve are not concerned about circum
stances as such in the United States of America.
i\frDEVILLIERS:Thank you, Mr. President. That f intcndcd to imply
in the question, but I agree, I could word it more specifically.
Are you aware of circumstances in the United States which could, in
a sense relevant to our discussion, have some bearing on the question
whether separation could lead to good consequences or not?
Mr. VANDENHAAG:There are a number of communities which are
practically all Negro communities and in which there is a fairdegree of
isolation. Of course, in the United States isolation is never complete. I
have not studied these communities personally, but I have looked at the
literature and I would like to offer the conclusions of two writings on this,
the first by Professor Mozelle Hill called "A Comparative Study of Race
Attitudes in the AH-Negro Community in Oklahoma"; this appeared in
the magazine Phylon in the third quarter of 1946, and I am quoting
from page 268, which contains this conclusion:
''An individual residing in the all-negro society will have a much
higher regard for negroes. He will be more equalitarian in his
attitudes towards them, and thus more favourable in his expressions
towards his race. It appears safe to conclude that the all-negro
youths have a higher opinion of negroes, due to the absence of
pressure of the white man, combined with their essentially middle
class ideology."
This is the conclusion of Professor Hill from his study of an all-Negro
community in Oklahoma.
Mr. DEVILLIERS:And what is your view about this?
Mr. VAN DEN HAAG: It seems, on theoretical grounds, extremely
likely that Professor Hill is right, but as I have said, I have not made a
study directly of such a community. As I have mentioned before, I feel
that isolation is in many cases favourable to identification of each group,
so I would tend thcoretically to feel the conclusion is likely, but I have WITNESSES AND EXPERTS 179
not studied the group. Let me add one more quotation by Professor
Allison Davies, from his article "Racial Status and Personality Develop
ment", which appeared in the Scùntific Monthly in October 1943; I am
quoting from page 358:
"Where the social group of the racially subordinate individual
is highly organized and integrated, as in the Little Italies and China
towns, or in many southern negro communities, its members will
usually have relatively less psychological conflict over their racial
status.''
And again, at page 359:
"An individual's racial status may be expected to have a marked
effect upon his personality if his race is subordinated in community
relationships [he means informa! relationships here], if his group 1s
ashamed ofits culture and seeking the culture of the dominant group,
and if it has no integrated society of its own.
The age of an individual is a crucial factor in determining the
scars of racial status upon his personality. The American Youth
Commission's recent study of personality development among negro
children in southem cities revealed that their racial status had a
somewhat minor influence upon their personalities"-
and this is, he indicates, because-
"during both the first and second decades of life these children
were more deeply concerned with, and emotionally influenced by,
their family, their play groups, their school and Church, than by
their consciousness of their subordination to whites. This fact I
attribute to the relative lack of direct contact with the white world
at that age."
These two authors seem to maintain, as I understand them, that as
far as the personality development of Negroes is concemed, it benefits
when there is a rather high degree of isolation from Whites, at least in
their early years.
Mr. DE VILLIERS: Now, considering these varions tendencies in human
behaviour and human reactions, to which you have referred, do you con
sider that the outlook about relations between people is an entirely pes
simistic one, or are there constructive lessons to be learned from this
subject?
Mr. VAN DEN HAAG: Well, there are certainly lessons to be learned.
I do not know to what extent we have been able to profit from them.
If I understand you correctly, you asked about my own conclusions?
Mr. DE VILLIERS: Your own conclusions, yes, and partkularly in
regard to governmental policies in particular situations, or you might
differentiate between those.
Mr. VAN DEN HAAG: Well, I would put it this way. The greater the
cultural differentiation, the more both groups have a culture of their
own, the less I would urge any immediate and sudden homogenization,
the more I would want the two groups to remain relatively isolated from
each other and, if necessary, I would go so far as to propose that this
isolation be undertaken by legal measures for, if it is not, I would say
that the technologically less advanced group would be simply overrun
by the more advanced group. For instance, American Indians were not,
at first, legally isolated from the non-Indian Whites and the major effect180 SOUTH WEST AFRICA
of that was that they were immediately corrupted with alcohol and other
things-that is they took on habits by using activities and materials
that arose from White culture-which were incompatible with their
own culture and which led to the destruction of the Indians as a social
group, and almost as a race. This, I think, should be avoided by all means
and I should say that sometimes legal measures are probably useful for
the protection of the culture of the group that is not technologically
advanced.
In the United States itself-well, I do not think that is too relevant,
perhaps I should not go on toit.
Mr. DE VILLIERS: What significance do you, in general, attach to the
factor of a group considering itself, or its identity, or its standard of life,
threatened, or not, by another group?
Mr. VAN DEN HAAG: When it does, I think the amount or intensity of
prejudice tends to rise. That is all I have to sayon that.
Mr. DE VILLIERS: And would you say the contrary is true?
Mr. VAN DEN HAAG: Yes. The more secure-and this incidentally
applies to individuals as well. \Ve have quite elaborate studies of that by
a number of authors such as Marie lahoda, and others-the major book,
which I would not uncritically endorse, but which certainly in part is
correct, The Authoritarian Personality, with regard to individuals found
the more the individual feels his status asa group member, and within the
group, threatened, the higher his degree of prejudice, and I would think
that holds for the group as a whole too.
Mr. DE VILLIERS: Now I shou]d like to conclude by asking you to
what extent the views you have been expressing do, or do not, find
general acceptance in your field of learning? First, could you give a
general indication how the conclusions at which you arrive stand in your
field of learning?
!llr.VAN DEN HAAG: Well I can make this rather simple. Most of my
colleagues, I think, are unwilling to accept my policy views, that is, my
general conclusions. They are contrary to the prevailing ideology in the
United States; they are contrary to what I have attempted to call
sociological fashion, which 50 years ago insîsted that differences existed
that have since been found not to exist and which now insists that dif
ferences do not exist which I think do exist. Thus my views are un
fashionable and not accepted inasmuch as they refer to proposed policies.
But, as far as the arguments are concerned and the facts that I have today
presented to this Court, I know of nota single one that I would think is
seriously contested by my colleagues.
Mr. DE VILLIERS: Could I ask you specifically, on a question of what
constitutes a human group--
Mr. VAN DEN HAAG: You do not want me to repeat what 1-
Mr. DE VILLIERS: No, no, Iwanted to ask you what the general state
of-
Mr. VAN DEN HAAG: I think the views I have expressed, express
pretty much a consensus of sociologists. There are always variations of
emphasis, and so on, but I think, on the whole, that would be generally
accepted.
Mr. DE VILLIERS: On the phenomenon of identification?
Mr. VAN DEN HAAG: I think the same is true.
Mr. DE VILLIERS: On reactions of group members to members of other
groups visibly different? WITNESSES A.NDEXPERTS r8r
Mr. VANDEN HAAG: I think my conclusions are generally accepted.
I think there may be dissent on what should be done aboutit.
Mr. DE VILLIERS:On the question of the value of group membership
to the individual?
Mr. VANDENHAAG:That is generally accepted.
1fr. DEVILLIERS:And the difficulty of quitting his group?
Mr. VANDENHAAG:That also is generally accepted.
Mr. DE VILLIERS:The question of the psychological factors that may
be experienced on an attempt being made to quit a group and to become
assimila tecl in a differen t group?
Mr. VAN DEN HAAG:Rather few people have worked on this, but I
know of no dissenting opinion.
Mr. DE VILLIERS:On the question of the reaction of groups to situa
tions of threat, or what they perceive to be a threat?
Mr. VANDENHAAG:This is now generally accepted both by sociolo
gists and psycho-analysts.
Mr. DE VILLIERS: On the effect of education, in the way you have
described?
Mr. VANDEN HAAG: Yes, by now this is generally accepted. Such
people as Professor Lazarsfeldt of Columbia, and so on, who used to
hold a different view, no longer do.
Mr. DE VILLIERS:And, finally, on the positive values that could be
attached in particular circumstances to separation or segregation?
Mr. VANDEN HAAG:Weil that is a more controversial question, and
I think rather few (in fact I cannot recall anyone) have written on this.
I think one reason that, at least American, sociologists are unwilling to
write on this presently is precisely that they do not want to corne to
conclusions that are contrary to the evidence, but they also do not wish
to state the conclusions that are conforming to the evidence because
these are, asI put it, quite unfashionable. I have quoted, just a moment
ago, two (incidentally Negro) sociologists-=-Professor Hill and Professor
Davis-who favoured isolation, but I should note that (1 gave the dates,
I believe) Professor Hill's article dates from 1946 and Professor Alison
Davis's from 1943. I think that today a sociologist who makes the same
investigation and came to the same result, I think would be reluctant
to publish it.
Mr. DE VILLIERS:Yes. \Vhat I am asking you is about your views,
which you have expounded, as to the positive values that may attach to
differentiation, or separation, in particular circumstances, in general
and not merely in the United States. Are they in any way in conflict,
as a matter of principle, with views held in your field of science?
Mr. VANDEN HAAG: They are not in conflict, certainly. Let us say
few people in academic circles would be quite willing to go out and sub
scribe to them at this point for various reasons that I think are less
scientific than they are ideological or political, but I know of no contrary
evidence and I know of no scientific people stating that the contrary
would be more favourable. ·
Mr. PRESIDENT:I call upon the Agent for the Applicants.
Mr. GROSS:Mr. President, the transcript of the verbatim record of
yesterday's Oral Proceedings was not available, for understandable
reasons, until our arrivai at the Court this morning. There has been no
opportunity during the course of the morning to read the transcript;
nor, of course, has there been an opportunity to survey the transcript of182 SOUTHWESTAFRICA
today's session. The Applicants do wish to cross-examine the witness;
the course of the cross-examination would clearly take longer than the
remaining moments of this session. The Applicants would, under the
circumstances, respectfully request the opportunity to receive the re
maining verbatim record, to read the one received this morning, and to
have an opportunity tocross-examine the witness at an appropriate time,
as determined by the honourable President.
The PRESIDENT:That will be perrnitted in this particular instance,
but it ought not to be assumed that cross-examination in respect of
other witnesses could be postponed until the transcript has been read.
There would be no order in the proceedings were this practice to be fol
lowed. But in relation to this particular witness, it will be necessary for
him to be recalled at an appropriate time and that will be after the
Parties have expressed their views upon the questions which were put
to them yesterday. The time will have to be arranged between the Parties
since they will know better than the Court when they are likely to con
clude their respective answers to these questions.
Mr. DE VILLIERS:Thank you, Mr. President. May I just raise this
factor, that we have a difficulty as to when Professor van den Haag can
be available, and when not. It may be that we corne to an arrangement
not to have the cross-examination immediately after the discussion of
the questions, but that we interpose other witnesses first and then
recall Professor van den Haag. Would that be suitable to you?
The PRESIDENT:I do not think there would be any objection to that,
would there, Mr. Gross?
Mr. GRoss: No, sir.
The PRESIDENT:In those circumstances, the Parties will arrange be
tween themselves at what particular point of time, once the hearing of
evidence has been resumed, the witness will be available to give evidence
again.
Before the Court adjourns, the Court would like to indicate to the
Parties, in relation to the questions put yesterday, that it is hoped they
will reply to them as succinctly and as briefly as they find it possible. r83
23. REPLIES TO QUESTIONS PUT BY THE COURT ON
22 JUNE 1965
AT THE PUBLIC HEARING OF 30 JUNE 1965
The PRESIDENT: The hearing is resumed. On the last day of sitting
the Court directed certain questions to the Parties, to which they will
now respond.
I call upon the Agent for the Applicants.
Mr. GROSS: Mr. President and Members of the honourable Court, the
Applicants respectfully respond as follows to the questions propounded
by the honourable Court on 22 June 1965 (VIII, pp. 60-63), and such
responses are formulated in the light of the introductory assumption
stated in the questions as propounded.
With respect to question 1, as with respect to the other two questions,
the Applicants will endeavour to summarize the response and then,
with the permission of the President, to elaborate succinctly the reasons
underlying the answers in respect of each of the several questions.
First, with respect to question 1:although the Applicants have urgcd
upon the Court a series of legal propositions by which the Court, in the
Applicants' view, may soundly adjudge the dispute relating to Article 2,
paragraph 2, of the Mandate, the Applicants do not contend that the
Courtis bound to adjudicate the said dispute solely on the basis on which
the Parties have presented their respective cases in regard thereto.
Likewise the Applicants conceive that it is not open to the Parties to
contend, nor do they contend, that the Courtis bound to adjudicate the
said dispute solely on the basis of the interpretations the Parties re
spectively have sought to give toArticle 2,paragraph 2, of the Mandate.
In the light of the assumption stated in the introduction to the fust
question propounded by the honourable Court, the Applicants, while
respectfully reaffirming their view of the most just, convenient and
sound route for the Court to follow with regard bath to the basis upon
which the Applicants' case has been presented and with regard to the
interpretation of Article 2, paragraph 2,of the Mandate urged by the
Applicants upon the Court-nevertheless, in the Applicants' view, the
jurisprudence of the Court, traditionally and in relation to the Mandate
itself, precludes any but a negative response to the question posed, as
shortly will be demonstrated. Traditional jurisprudence of the Court
relative to this matter, moreover, is reinforced and rendered most ap
posite to the cases at bar in the light of the power and responsibilities
specially vested in this honourable Court by the Mandate for South West
Africa, pursuant to which the Courtis the final bulwark and the ultimate
protector of the rights of the inhabitants of the Territory under the
sacred trust of the Mandate. Considerations of tradition, of logic and of
justice accordingly combine to compel the conclusion that the Court
has both the power and, in the Applicants' respectful view, the dut y
to adjudicate the dispute between the Parties on the basis of the Court's
own conclusions concerning the proper interpretation of the Ma?date,
and the Court's own appreciation of the considerations of law, log1cand
justice upon which the Court's judgment is based. · SOUTH WEST AFRICA
With respect to question 2, for the reasons adumbrated in the sum
mary response just made to question No. I, the Applicants Iikewise
perceive no basis in the traditional jurisprudence of the Court, nor in the
jurisprudence of the Mandate itseif, for a conclusion other than that it is
open to the Court to place its own interpretation upon Article 2, para
graph 2, of the Mandate, or indeed of any other provision or term of
the Mandate which may be in dispute from time to time, having regard
to all relevant legal considerations, and to adjudge between the Parties
accordingly. As the Applicants will endeavour shortly, in a few moments,
to show, the dispute is framed and formulated in the final submissions
of the Parties, and does not comprehend the contentions, theories or
legal considerations advanced by the Parties, which may, as indeed is
the case here, and not inappropriately, necessarily comprise mutually
inconsistent alternative contentions. That it must be open to the Court
to place its own interpretation upon the article relevant in this context,
in the light of ail considerations which the Court itself may deem rele
vant, is a conclusion which appears to the Applicants to be impelled by
every consideration of law, logic and justice. The Applicants, on the one
band, appear before this honourable Court not for any narrow advantage
of their own, but solely to protect their interest as loyal members of the
organized international community in the vindication and protection
of the sacred trust. Respondent, on the other band, stands before the
Court, not as a private litigant but as a mandatory, whose rights in the
Territory are mere tools entrusted to the Respondent for the sole pur
pose of discharging its obligations; and the Court, under the scheme of
the Mandate, stands as the final recourse and ultimate protector of the
rights of the inhabitants against asserted breaches and abuse of the Man
date. It is not for the Applicants to fix and determine the rights of the
inhabitants, nor for the Respondent to limit or define its own obligations,
although both may suggest, as both have respectfully and earnestly done
and continue to do before this honourable Court, the considerations and
theories upon the basis of which they respectively contend the Court
should interpret the rules regulating the Mandate. The Applicants ac
cordingly have no recourse, no alternative, but to respond in the negative
to question 2 as \Vell.
With respect to question 3, it is respectfully submitted that the con
siderations just adduced in respect of the response to questions I and 2
likewise compel a negative response to question No. 3. No other response
within the framework of the jurisprudence of the Court and the juris
prudence of the Mandate itself is, indeed, possible, in the Applicants'
respectful submission. More particularly, with reference to question 3,
although conceived by the Applicants to be relevant likewise to their
responses to questions r and 2, the Applicants contend that the relevant
facts, circumstances and conditions are comprised by the combination
of several elcments, all present in the written and oral pleadings: first,
laws and regulations, and official methods and measures of implementa
tion set out in the written pleadings, the existence of which is conceded
by the Respondent, and the totality of which comprises the policy and
practice of apartheid; secondly, the objective criteria for the inter
pretation of the Mandate reflected in the judgment of the competent
international supervisory organs; thirdly, the mandate scheme, in
cluding especially the idea of a sacred trust laid upon the organized
international community for the benefit of the inhabitants of the Terri- REPLlES TO QUESTIONS PUT BY THE COURT
tory; fourthly, the mandates system, including especially the co-ordina
tion of administrative and judicial fonctions in carrying out the sacred
trust, and the role in the scheme of the Mandate of this honourable Court
as providing the final bulwark of protection for the rights of the in
habitants; fifthly, the mandate jurisprudence, including especially this
Court's views expressed 15 years ago and reaffirmed repeatedly since as
to the character of the obligations assumed by the Mandatory; sixthly,
the status of the International Court of Justice as the judicial organ of
the United Nations, thereby owing at least a measure of deference to the
determinations of other organs of the Organization acting within their
respective spheres of responsibility and competence; seventh, the stated
purposes and other provisions of the United Nations Charter as embody
ing standards relevant to the disposition of this dispute by the Court;
and finally, canons of interpretation appropriate for an international
instrument of the nature of the Mandate.
Mr. President, in general the Applicants would affirm the power and
responsibility of the Court to decide the dispute before it in accordance
with the Court's analysis of alJrelevant legal considerations, whether or
not such considerations coïncide with those contended for by the re
spective Parties. The discretion of the Court, as the traditional juris
prudence of the Court makes clear, in our view, is grounded in the final
submissions, but only to the extent that the submissions operate as the
definitive, formulation of the dispute between the Parties. In the context
relevant here the Applicants have always conceived, and conceive now,
that the dispute between the Parties relevant hereto is constituted by
their third and fourth submissions, namely that the practice of apartheid
in South West Africa is a breach of the obligations contained in Article 2,
paragraph 2, of the Mandate and of Article 22 of the Covenant of the
League of Nations.
Both the Applicants and Respondent have advanced certain considera
tions in support of their construction of the obligation embodied in
Article 2, paragraph 2. Such considerations, however, do not form an
element of the dispute per se and hence do not restrict the discretion of
the Court in any way in adjudging upon the dispute thus formulated in
the submissions in accordance with the Court's conception of the rele
vant legal and factual considerations. lt is, for example, the Applicants'
contention that Respondent's policies of apartheid, ipso facto, constitute
a violation of Article 2, paragraph 2,on the basis of the laws and regula
tions, and the official methods and mcasures, by which the policy is
implementcd, the existence of which is conceded in this record.
It is the Applicants' vicw that this corpus of factthus defined and thus
formulated, largely derived from the Respondent's own pleadings, is a
sufficiently convincing body of fact and law and policy to justify and
require a fmding of violation of Article 2; that it is, as has repeatedly
been said to the Court, a policy and practicc which inherently is incapable
of promoting the welfare, the social progress and the moral well-being of
individuals, not only in South West Africa, but anywhere.
This mode of contention, however, is extrinsic to the dispute. Thus
the Court might rejcct the Applicants' contention on this subject and
yet adjudge the dispute in Applicants' favour on the basis of the Court's
own rationale as to why the policy and practice of apartheid is a violation
of the :Mandate. That dispute is the dispute in issue.
The jurisprudence of the Court supports the foregoing interpretation186 SOUTH WEST AFRICA
of the scope of the judicial function, in the .Applicants' respectful view.
The clearest statement of the position, perhaps, is to be found in the
Free Zones·case, in which the Court observed as follows:
"From a general point of vicw it cannot be lightly admitted that
the Court, whose function it is to declare the law, can be called
upon to choose between two or more constructions detennined
beforehand by the Parties, none of which may correspond to the
opinion at which it may arise. Unless otherwise expressly provided,
it must be presumed that the Court enjoys the freedom which
nonnally appertains to it and that it is able, if such is its opinion,
not only to accept one or the other of the two propositions, but also
to reject them both." (P.C./.]., Series A/B, No. 46, 1932, p. 138.)
This passage is directly pertinent to the issue there, since the issue
there, as here, was the construction, the disputed construction, of a
provision in a treaty-type international instrument.
In the Chorz6w Factory case the Court applied this general approach
to the submissions as follows:
"The Court does not consider itself as bound simply to reply yes
or no to the propositions fonnulated in the submissions of the
German Application. lt adopts this attitude because, for the pur
pose of the interpretation of a judgment, it cannot be bound by
formulae chosen by the parties concemed, but must be able to take
an unhampered decision." (P.C.!.]., Series A, No. IJ, pp. 15-16.)
And at its judgment in the case of the Applicati'on of the Convention of
I902 governing the Guardianship of Infants, the Court declared:
"The final Submissions of the Govemment of the Netherlands
before asking the Court to adjudge and declare that Sweden, in
taking and maintaining the mcasure complained of, is in breach of
its obligations under the 1902 Convention, ask it to 'declare' certain
propositions relating to the effect of protective upbringing and to
ordre public. These propositions are, in reality, the essential con
siderations which, in the view of the Govemment of the Netherlands,
must lead the Court to adjudge and declare that Sweden is in breach
of its obligations. In a less categorical form. the Submissions of the
Govemment of Sweden are set out in a similar way. The Court has
to adjudicate upon the subject of the dispute, it is not called upon,
as it pointed out in the Fisheries case, to pronounce upon a state
ment of this kind (J.C.J. Reports I95I, p. 126). [And the excerpt
concludes as follows) It [that is the Court] retains its freedom to
select the ground upon which it will base its judgment, and is under
no obligation to examine all the considerations advanced by the
Parties if other considerations appear to it to be sufficient for its
purpose." (J.C.]. Reports I958, p. 62.)
It appears clear, accordingly, that the Court has not hesitated to ignore
any element in the subrnissions which does more than define and for
mulate the issue in dispute between the Parties. In particular the Court
will decide the dispute on grounds it regards as relevant and authorita
tive, whether or not such grounds are to be found in the pleadings, and
the Court, likewise, may reject either Party's theory of the case even if
such theory should be incorporated in the submissions.
Mr. President, the distinction between theory, contention, argument, REPLIES TO QUESTIOXS PUT BY THE COURT 187
and similar considerations, on the one hand, and the formulation of the
issue in dispute in the final submissions, on the other-that distinction
has been perceived by the Parties in these very proceedings, the most
striking evidence of which is the last-minute amendment of the submis
sions, in 1962, in the Preliminary Objections phase of these proceedings,
when, as the Court will be well aware, at the conclusion of the written
pleadings and Oral Proceedings, the Respondent, as was its right (and
it drew no objection on this score from the Applicants), amended its
submissions alleging a theory of the case-a basis of the case-which
had not previously been presented and which had not been argued by
the Parties, and which went to the heart of the very legal nature of the
mandate instrument itself. Reference to this is made mercly to point
out that it is not only the traditional jurisprudence of the Court, but
the very history of these proceedings themselves, of the cases at Bar,
which demonstrate in this dramatic way the distinctions perceived by
the Parties herein between the theory, or contention, or argument,
upon which their case is bascd in support of their submissions and the
issue in dispute, as formulated in the submissions themselves.
In concluding my remarks, l\fr. President: the basis upon which the
Applicants have presented their case proceeds from the conviction that
the policy and practice of apartheid (the meaning and content of which
is neither obscure nor elusive, but clear from the record) arc extreme
forms of official discrimination in which race and colour are the primary
determinants of individual rights, burdens, status and privileges, and
form a systematic basis for imposing disabilities upon individual persons
without regard to their individual quality or capacity. Secondly, that
application of a universally accepted standard of official non-discrimina
tion, exemplified in numerous basic agreements and constituent statutes
to which both Parties adhere (I cite for example, Article I, paragraph 3,
of the United Nations Charter itself-the very statement of purposes
and principles, of the Organization)-that application of a universally
acceptcd standard of official non-discrimination to the policy and prac
tice of apartheid in the terri tory of South West Africa has becn reflected
in the consistent, explicit and overwhelming judgment of the competent
the official condemnation of governments
supervisory organs, as well as
expressed both severally and through collective judgments.
The Applicants, thirdly, have urged upon the Court that authoritative
weight should be given by the Court in the interpretation of Article 2
obligations to the judgments thus expressed. The violation, in the Ap
plicants' view, is so clear as to constitute,ipso facto, a violation of the
Mandate and it may justly be observed that, although from time to time
during the course of thcse proceedings the Respondent has had recourse
to statements and charges that theories have been changed, or that the
cause of action has been altered, no cry of prejudice is tenable on such a
basis, for the very logic of the situation demonstrates that what the
Respondent purports to complain of is a so-called "narrowing" of issues
and their voluminous pleadings in this case have clearly been addressed
to the broadest possible construction of the Applicants theory.
The Applicants, moreover, have contended that the condemnation of
official discrimination is so firmly and universally enunciated as to be
regarded as a rule of international law within the meaning of Article 38
of the Statute of the Court. Apartheid is contended by the Applicants
to be an impermissible infringement of human rights within the meaning188 SOUTH WEST AFRICA
of this rule and a fortiori a violation of the Mandate, and this, as the Court
will be aware, has been asserted as an additional, cumulative argument
which does not in any way affect or limit the principal argument with
respect to the standards which the competent organs have applied to the
practice of apartheid, and to whose views this Court is respectfolly re
quested to accord due and authoritative weight.
But in the Applicants' view, in conclusion, as has been stated, it is
the right and duty of the Court to interpret the obligations under the
terms of the Mandate, as the organ vested with the fonction of serving
as the final bulwark of protection of the rights of the inhabitants of the
Territory against asserted breaches and abuse of the Mandate.
Finally, the Applicants, for reasons which have been advanced, like
wise conceive it to be the Court's fonction to interpret the Mandate on
the basis of whatever facts, circumstances and conditions the Court may
regard as relevant to a proper interpretation of the Mandate. In this
connection, Mr. President, the Applicants reaffirm their intention and
desire, expressed, inter alia, in the verbatim record of 19 May 1965
(IX, p. 363)"to provide the Court with whateverinformation or evidence"
the Court may regard as relevant in any respect.
Thank you, Mr. President.
The PRESIDENT:I call upon the Agent for the Respondent.
Dr. VERLORENVANTHEMAAT:Mr. President, I respectfully request
that Mr. de Villiers be allowed to address the Court.
The PRESIDENT:I call upon Mr, de Villiers.
Mr. DEVILLIERS:Mr. President and honourable Members, it will have
been evident to the Court that the Applicants have again changed their
ground. One could hardly have expected anything else: that seems to
corne about as regularly as the rain from heaven does in this capital city
of the Netherlands.
My learned friend and Agent for the Applicants has spoken of the
fact that we referred before to changes of attitude or front or basis by
the Applicants in advancing their case or causes of action and the like.
Perhaps he wished to protect himself in advance from further comment
to that effect, because he spoke in advance of the question of prejudice
or the lack of prejudice.
We have, Mr. President, never complained of prejudice on any occasion
in the past. We have been willing ta fo!low the various attitudes, the
various changes, the various different forms of attack proferred against
us. \Ve have only on occasion askcd for sufficient time to adapt ourselves
to the new situation, that is all.
We have never raised any technical objection. There are principles of
procedure which would have made it possible for us to abject formally
and technically to the presentation of a new case at such a late stage of
the proceedings, as the Applicants have done during the presentation of
their case here in the oral phase of these proceedings. We elected not
to do so. We could have asked the Court to say, the stage is now so late
that this materially new case is not to be allowed to the Applicants be
cause it now means that they start near the end of the proceedings with
something which should have corne at the beginning-something in
respect of which there ought to have been proper discussion in written
pleadings as is contemplated in the Rules, but which we now have to
pick up at a late stage in the course of the Oral Proceedings, and to
analyse to see what it is about, and then to present our answer to it. REPLIES TO QUESTIONS PUT BY THE COURT 189
We have. Mr. President, presented that answer as best we could under
the circumstances. But I submit that the factor of prejudice operates in
two ways. Because we have now taken on the Applicants' new description
of what their case is, of what the dispute is which is proferred against us,
and what the ambit of that dispute is, we cannot now be put in a worsc
position than we would have been in if the Applicants had followed the
proper course of saying: we stop here and we start again from scratch,
and this is the new case which we present.
The Applicants cannot have the best of two worlds. They cannot in
form us, through the Court, as they have done, that their case is ta be
seen as being confined within a narrow ambit, as ta bath its factual and
its legal aspects, because the factual aspects are the important ones as
I shall stressto the Court. The Applicants cannot have the best of two
worlds in saying to us, that is now the ambit of the case on fact which
we bring against you, and we then adapt ourselves ta that in the presenta
tion of our legal argument, which has been concluded, and also, :Mr.
President, in the presentation of our facts ta the case, in the preparation
of the evidence which we intend ta present to the Court, on the basis of
what we understand the dispute between the Parties to be, a dispute
which given new definition in the final amendment of submissions which
the Applicants presented ta this Court on rg May.
You asked me, Mr. President-you asked both Parties-ta be succinct
in the presentation of the answers to the questions of the Court. I shall
try my very best ta comply with that request, but the matter is of such
fondamental importance for the further course of proceedings in thls
case that I shall have to be some time in analysing precisely what the
situation now amounts to.
May I start with a reference to the wording of the questions, and may
I say at once that in certain respects there is, as regards the principles to
be applied in this matter, little difference between the Applicants and
ourselves. The important difference lies in this, namely the question of
importance to be given to the ambit of the factual aspect of the dispute
as defined in the submissions before the Court, because, Mr. President,
the definition of that ambit serves bath as a limit to the Court's powers
in the particular case and; at the same time, as a limit to the intimation
of the opposite side of the case which it bas to meet. Those two things go
hand in hand-the powers of the Court in a civil dispute and the case which
the opposite side is advised that it has ta meet.
The Court has said on occasion and other courts have said in municipal
systems, that when it cornes to choosing between alternative contentions
of law, then the court is certainly not bound by what the parties present to
a court, but it must always remain within the ambit of the factual
dispute disclosed by the pleadings, or whatever system may be followe_d
in order to define that particular ambit. Because, Mr. President, that 1s
the important thing, that is the factor which links up \vith a basic con
sideration of natural justice, that bath parties are to be heard--'--oneof
the considerations of natural justice which underlie the principles of
civil procedure in all civilized systems. the court is not clearly apprised,
and if the defending or respondent party is not clearly apprised of the
ambit of the factual allegations made against it, how can such party
properly defend itself against those factual allegations? How can it put
before the Court all the evidence that it would wish to put before the
Court if it knew that that is the factual case being made against it? SOUTH WEST AFRICA
I have, with reference to the exposition given by my learned friend,
Mr. Gross, noticed that in regard to question 1 he spoke of the Court's
right to arrive at its own conclusion about the interpretation of the
mandate instrument-the Court's right to apply its own views of law
and logic and justice to the situation. Ihave no difficulty with that.
He also spoke towards the end of the right on the part of the Court to
apply its own rationale as to why the policy and practice of apartheid
in the Territory of South West Africa are or are not in violation of
Article 2, paragraph 2, of the Mandate. Again, Mr. President, I have no
difficulty with the rationale provided that due effect be given to another
expression used by my learned friend, and that is that it is ta be within
the context of the dispute; and the context of the dispute is to be deter
mined, surely, by reference to what the case on fact is that is being made
by the Applicants against the Respondent.
Not long ago, in presenting those amended submissions to the Court,
my learned friend at the same time, or shortly before, assured the Court
that his case as it was standing at that stage rested solely upon his
contention in regard to a norm and/or standards, and he told the Court
that if that could not succeed, then his Submissions 3 and 4 must fail.
In other words, Mr. President, he left no scope whatsoever for the possibili ty
of the Court enquiring beyond the ambit of facts which would be neces
sary for the purposes of deciding on his contention as to a norm and as to
standards. He went so far as to say that it would be incompetent for the
Court to do so~that this Court would have no power of "second-guessing"
(that was his expression) the decisions already given by administrative
organs of the organized international community-and he said, indeed,
that if the Court were to determinc for itself the factual nature of the
policies in South West Africa, and if the Court were to pronounce a value
judgment upon those policies, either as to their purpose or as to their
effect, then the Court would be departing from what is traditionally its
fonction.
He went so far. Yet now, Mr. President, he suggests to the Court that
if his contentions are not accepted there is still some scope within the
dispute as he has now defined it in his amended submissions upon which
the Court can possibly decide upon whatever facts (he said}, conditions
and so forth as the Court may regard as relevant to the dispute.
There has been one significant failure in my learned friend's exposition,
and that is a failure to demonstrate to the Court that any investigation
of fact outside the scope of his contention in regard to a norm and in
regard to standards is covered by the dispute as now presented to the
Court in the amended submissions, either by way of being stated in the
amended submissions, or by way of being incorporated by reference in
those submissions. That is the point which I want to emphasize and to
which Ishall retum after sorne reference to relevant authorities.
First, as I have said, I shouid Iike to remove what rnay appear to be
a misunderstanding emerging from the wording of some of the questions
which have been put to the Parties. The general introductory portion
of these questions states after referring to the Applicants' reliance upon
a certain norm and/or standards:
"On the other hand, the Respondent disputed the existence of
any such norm or standards and based its case upon the proposition
that Article 2 (2) could not be shown to have been breached by it
unless, in respect to the exercise of its authority under Article z of REPLIES TO QUESTIONS PUT BY THE COURT 191
the Mandate, it was shown that it had acted in bad faith, or for a
purpose other than to give effect to Article 2 (2) of the Mandate and
that the article must be interpreted accordingly." (VIII, p. 60)
I wish to direct the Court's attention to the. words "bases its case upon
the proposition". One sees a reference of the same kind in question r
where there is a reference to adjudication of the dispute exclusively upon
the basis on which the parties have presented their respective cases.
Mr. President, I want to make it perfectly clear that the Respondent
has submitted to the Court as a matter of law that the only basis upon
which a case could be made against it-a case of alleged violation of
Article 2,paragraph 2,of the Mandate-is as is broadly described in the
introductory portion of this question.
But that does not mean, Mr. President, that we are now, on the basis
ofthat conception of the legal situation, presenting a case on fact to the
Court.
1'ifayI use an example from ordinary municipal legal proceedings.
Suppose party A brings a case against party B, and alleges in that case
that party B has been guilty of a misrepresentation which led to the
conclusion of an agreement, that that misrepresentation has led to certain
damage for the plaintiff party, and that damages are now being claimed.
There is no allegation that the misrepresentation was a deliberate one,
but there is an allegation that it was a negligent one. Now, party B's
response to that is that in law there is no case for claiming damages
against it-let us assume that is the answer given by Party B; and party
B says, in addition, in argument to the Court, that the only basis upon
which there could have been a daim for damages against him would
have been if party A had allcged, and could have proved, deliberate
misrepresentation, intentional misrepresentation, on his part.
That, ~fr. President, would merely be part of the legal demonstration
of saying what case could have been made against him, but that cer
tainly, then, does not oblige party B, or even entitle him, to proceed to
lead evidence in order to show that his misrepresentation was in fact an
innocent one-although it may have been negligent, it was not an in
tentional one-for the simple reason that no such case is being made
against him.
The Court will immediately say to party B, to the defendant, it is
unnecessary for you to show that there was no intention on your part;
no such intention on your part is alleged, therefore you nced not mcet
such a case; the dispute between you now rests upon this proposition,
supposing you admit the fact that the misrepresentation was a negligent
one; the dispute now rests between you on this legal question whether a
negligent misrepresentation isa sufficient basis for this daim for dama
ges.
The same applies here, lv1r.President, with the greatest respect. \Ve
have pointed out to the Court what we consider to be the sole basis upon
which a case could have been made against us in Jaw, but we have at the
same time pointed out that the Applicants now, whatever the position
might have been at an earlier time, make it perfectly clearin their amended
submissions that they do not present such a case against us-no case
based upon alleged bad faith on our part; no case based upon an alleged
improper motive or intent or purpose; no case, as they have said re
peatedly, based upon any subjective motivation on our part.
We indicated, also, that therc may be an alternative possible basis of SOUTH WEST AFRICA
192
formulating much the same kind of test as is applied to see whether there
has been an abuse of power, and that this is to formulate the test whether
the actions of the Mandatory have been so unreasonable that no reason
able authority could have decided upon such actions. We posed that as a
possible test,but the Applicants have not adopted it in their case; they
have nowhere said to the Court that they are bringing that type of case
against us. On the contrary, they have made itclear that they do not do
so. They say they base no case whatsoever either on the purposes or
upon the effects of the policies of the Mandatory.
So, Mr. President, under those circumstances we have intimated to the
Court, and I submit correctly, with respect, that we do not propose ta
lead cvidence in order to show ta the Court that the Mandatory has in
fact been bona fi.de in deciding upon these policies, because there is no
allegation to the contrary. As I understand the Applicants' case, they
accept the bona fi.desof the l\landatory; they at least make no allegation
to the contrary. They make no allegation to the effect that the Manda tory
has been so unreasonable that no reasonable authority could have decided
upon a similar policy. That again is a case which we are not called upon to
rneet; therefore we do not propose to meet it, and we are not doing so
in this evidence we are presenting. We would be fighting windmills if
we were doing that, because it is not a case being presented against us.
I thought I ought ta make that clear at the outset, because that might
otherwise lead to a misunderstanding.
Now, Mr. President, it may be relevant to refer to a vcry apt descrip
tion of this situation in law by a Dutch writer, P.J. de 1(anter. It appears
in a legal thesis published in Leidcn in 1928 called "Rechtsgronden en
rechtsmiddelen" ("Legal Grounds and Legat Remedies"), at pages 57-58.
We read our own translation:
"The attitude of the plaintiff we see as an absolutc one; by in
stituting action he intimates that in his opinion this particular
daim is valid as against all defences ...
In contrast with this absolute character of the attitude of the
plaintiff stands the completely different character of the attitude of
the defendant. Ali defences amount to the defendant saying: 'this
daim you cannot enforce against me', whether he stresses in this
regard 'this daim', or 'you', or 'against me'. In contrast with the
attitude of the plaintiff, that of the defendant has a relative char
acter. The defendant does not pass upon the question whether any
other daim, or the same daim instituted by a third party, is valid
as against him; his only concern is that this particular daim, which
has been instituted against him, be dismissed."
That, I submit, l\fr.President, states very dearly and very correctly,
in mv submission, a basic principle applicable throughout all systems of
procedure of which I am aware, to situations of this kind, Î.e., to the
respective roles of a plaintiff and a defendant, or an applicant and a
respondent.
Now, question I asks whether the Parties contend that the Court is
bound to adjudicate the dispute between the Parties exclusively on the
basis on which they have presented their respective cases, and the inter
pretation they have respectively sought to give to Article 2 {2) of the
Mandate.
Question 2 links up with it immediately: "Do the Parties contend REPLIES TO QUESTIONS PUT BY THE COURT
that it is not open to the Court to place its own interpretation upon the
Article having regard to all relevant legal considerations and adjudge
between the Parties accordingly?"
Mr. President, in so far as placing an "own interpretation upon the
Article" is concerned, as I have said before, there is no difficulty whatso
ever about that aspect of the matter. That certainly is the Court's right,
and the Court's duty-interpretation is a question of law. But when it
cornes to "[adjudging] between the Parties accordingly" that, with
respect, is also correct, provided one understands it to apply within the
context of the dispute of fact which has been presented to the Court.
May I again present an example to the Court. Suppose a ship belonging
to State A passes through a channel under .the control of State B, in
terms of a treaty governing the relationship between the States in that
respect. The ship cornes to a bottleneck part of this channel and gets
stuck there for some reason or other-it goes out of order and causes a
blockage in the traffic through the channel, and consequent damage to
State B, the one in control of the channel. State B then institutes an
action. It alleges the simple fact that the ship went into the channel and
at a particular point it went out of order-not alleging any misconduct,
negligence, or wilful misconduct on the part of the master or crew of the
ship-simply stating that fact and saying, because of that fact, because of
the damage caused, the meaning of the relevant treaty-the effect of
the treaty-is that there is an absolute liability on the part of State A
to make good the damage.
Now, Mr. President, on that basis State Ais brought into court, and
State A says: I admit those tacts, I admit that the ship went out of order
at that particular place; I have no reason to doubt what you say about
the damage that was caused, but my construction of that treaty, and the
one which [ urge upon the court, is that there could be no liability on
my part unless there had been wilful misconduct on the part of the
master or the crew.
So those are the conflicting înterpretations of the treaty upon which
the parties corne to court. It would then be perfectly open to the court
to say, I do not agree with either interpretation; I do not agree with the
interpretation of absolute liability, nor do I agree, on the other hand,
that there must necessarily be wilful misconduct; I find that on a proper
construction of this treaty negligence on the part of the master and the
crew may be sufficient to visit State A with liability.
Having given that interpretation, the court would then proceed to
adjudge between the parties accordingly, but what would "adjudge
between the parties accordingly" mean? "Adjudge accordingly" would
simply mean this, that inasmuch as there has been no allegation of
negligence in this case, and inasmuch as there has consequently been no
canvassing of the question of the existence or otherwise of negligence,
this claim must fail. On the basis of statements of fact which are directed
purely towards setting out the position that in fact this situation occur
red, but there is no allegation of negligence and no warning to the defen
dant that it has to meet any allegation of negligence, so that the defen
dant may join in putting those facts to the court, surely the court cannot
then say: on the basis of the facts which I have before me, it seems tome
that there must have been negligence on the part of the master or the
crew of the ship. Surely that would be contrary to all considerations of
natural justice, for the simple reason, Mr. President, that such an allega- SOUTH WEST AFRICA
tion is not made; it has not been introduced into the case as being part of
the dispute.
That is the basic consideration, in my submission, to be borne in
mind with regard to the answer to question 3, which is put, as I under
stand it, not only with reference to questions of law, but also with refer
ence to questions of fact.
I shall revert ta that. I should first like to review certain authorities
which emphasize the distinction which I have sought to draw in this
respect between questions of fact and questions of law.
In the Anglo-American system of procedure which is, to a large extent,
also applied in South Africa, the position is clear that the issues in any
'case are defined by the pleadings, the pleadings being, on the whole, very
much shorter documents than those which we know of in the type of
procedure adopted in this Court, which corresponds, as I understand,
to procedures adopted on the continent of Europe, In any case, the under
lying principles would appear to be the same, and I should like to dem
onstrate the matter first with reference to the system of pleadings as
known in Anglo-American law.
The pleadings are regarded as determining the ambit of the dispute
between the parties, as circumscribing the evidence to be adduced by
each party, and as limiting the Court in the finding that could be made
by it. In regard to American law, this is very well expressed in the
following extract from CorpusJ uris Secundum, Volume LXXI, pages 17-18:
"Pleadings are statements in logical and legal form of the facts
which constitute plaintiff's cause of action or defendant's ground of
defence. They are the allegations of the parties of what is affirmed
on the one side and denied on the other, disclosing to the court or
jury who have to try the cause, the real matter in dispute; the means
provided by the law to enable the court to ascertain the daims of
the respective parties to a justiciable controversy.
The purpose of pleadings is to present, defi.ne and narrow the
issues, and to form the foundation of, and to limit, the proof to be
submitted on the trial. They are designed to advise the court and
the adverse party of the issues and what is relied on as a course of
action or a defence, in order that the court may declare the law and
that the adverse party may be prepared on the trial to meet the
issues raised."
In regard to English law, Mr. President, the same position is expressed
in Bullen and Leake, Precedents of Pleading, XIth Edition, page I,as
follows:
"The principal objetts of pleading are, first, to define the issues
of fact and questions of law to be decided between the parties;
secondly, to give fair notice of the case which has to be met so that
the opposing party may direct his evidence to the issue disclosed
by them; and thirdly, to provide a brief summary of the case of
each party, which is readily available for reference and from which
the nature of the daim and defence may be easily apprehended." ·
The important things which appear, Mr. President, are firstly to
define the issues of fact and questions of law to be decided between the
parties, and, secondly, to give fair notice of the case which has to be'met
so that the opposing party may direct his evidence to the issue disclosed
by them. REPLIES TO QUESTIONS PUT BY THE COURT 195
It follows from this basic situation, Mr. President, that the Court
would not, save in very exceptional circumstances to which I shall refer
later,be entitled to decide on a basis of fact other than that which is
disclosed in the pleadings. And this situation is very well illustrated by
a recent authoritative judgment of the House of Lords in England, in
Esso Petroleum Company Limited v. Southport Corporation, reported in
1956, Appeal Cases, page 218. I could give the relevant facts to the Court
briefly. An oil tanker was stranded in a river estuary and in order to
prevent her from breaking her back, the Master jettisoned 400 tons
of her oil cargo. And that was then carried by the tide on to a foreshore
where it occasioned damage. The owners of the foreshore brought against
the shipowners an action which was based on various grounds of which
the only important one, for present purposes, was negligence. The plain
tiffs allegedthat the Master of the ship was negligent in respect of his
navigation and management of the ship, and that he was consequently
liable in damages. They also alleged liability on the part of the owners of
the ship, but only because the owners were said to be answerable for
the negligence of the Master. Itwas only in that vicarious sense that the
owners were sought to be held liable. There was no allegation of actual
negligence against the owners themselves. That was the basis on which
the case went to trial and the trial court held that the charges of neg
ligence against the Master were not proved and consequently the case,
both against the Master and against the owners, failed.
The matter went on appeal to the Appeal Court and eventually to the
House of Lords. It would appear that the original successful defendants,
the owners, were the appellants and the original unsuccessful plaintiffs
were the respondents.
On appeal, in the course of the argument, the question arase whether it
would be proper to find that the owners had been negligent in a manner
which had not been pleaded, namely by allowing the ship to go to sea
while in an unseaworthy condition. That was an allegation which was
made in the course of the discussion, viz., an allegation of negligence
directly on the part of the owners concerned, which was given some
countenance or some colour by the facts presented at the trial.
But, of course, that would have been an additional ground to the one
relied upon in the pleadings which was only that there had been negli
gence in the navigation of the vessel, but no allegation of this kind of
negligence on the part of the owners. The court and the House of Lords
unanimously held that such a finding would be improper, that is, a
finding on the basis of evidence that there had been this other form of
negligence on the part of the owners, and the opinîons of the various
Lords who gave their opinions in the case are very înstructive. I read
first an extract from the opinion of Earl Jowitt, the Lord Chancellor,
at page 237:
"If the plaintiff's case had been put in the alternative, either
that there was some navigational error or that the ship \vas un
seaworthy, the case would no doubt have been developed on wholly
different lines.ad any such case been made, the ambit of discovery
would have been enlarged and the theory that ... the Inverpool
[that was the vessel concerned] may have broken her stem frame
against the bed of the channel would have been explored. [That was
apparently a point which may have disproved the suggestion that
the ship had been unseaworthy at the time of going to sea.] It is196 SOUTH WEST AFRICA
idle to speculate what would have happenecl if such a case had been
made.
In the present case, every allegation of negligence has been
answered by the fincling of the judge, and there was no allegation
of unseaworthiness. That being so, I do not think that ... the owners
ofthe Inverpool, can be held responsible because they did not negative
some possible case which had never been alleged against them in the
pleadings or made against them in the course of the trial."
Next, from that of Lord Normand, at page 239:
"l do not wish to speculate on what might have been alleged,
nor on what evidence might have been adduced by either side on
other allegations, nor on how the onus might have shifted in con
sequence of other allegations and evidence. Confi.ning myself to the
actual allegations of negligence and to the evidence in the case, I
fi.nd the conclusion inevitable that, since the l\faster has been
acquitted of the faults alleged against him, the owners must also
be acquitted ... To condemn a party on a ground of which no fair
notice has been given may be as great a denialof justice as tocondemn
him on a ground on which his evidence has been improperly ex
cluded."
Next we corne to the opinion of Lord Morton of Hcnryton, at pages
240-241. I quote again:
"... may well be that the respondents' case might have been pleaded
in such a way as to cast upon the present appellants the burden of
proving that they had exercised proper care. In that event ... the
case would no doubt have developed on different lines. The respon
dents, however, ... had pleaded negligence of the master ... as
against the appellants, they chose to rely only upon the responsibility
of the owners for the master's negligence.
In this state of the pleadings it seems to me to follow that the
Court of Appeal, having affirmed the judgment of Devlin J. in
favour of the master and having thereby acquitted the master of
any negligence, should also have affirmed bis judgment in favour
of the present appellants."
And then fi.nally, Mr. President, Lord Radcliffe said, at page 241;
"... think that this case ought to be decided in accordance with
the pleadings. If it is, I am of opinion ... that the respondents
failed to establish any claim to relief that was valid in law. If it is
not, we might do better justice to the respondents-1 cannot tell,
since the evidence is incomplete-but I am certain that we should
do worse justice to the appellants, since in my view they were en
titled to conduct the case and confine their evidence in reliance
upon the further and better particulars of paragraph z of the state
ment of claim which had been delivered by the respondents. It
seems to me that it is the purpose of such particulars that they
should help to defi.ne the issues and to indicate to the party who
asks for them how much of the range of his possible evidence will
be relevant and how much irrelevant to those issues. Proper use
of them shortens the hearing and reduces costs. But if an appellant
court is to treat reliance upon them as pedantry or mere formalism,
I do not see what part they have to play in our trial system." REPLIES TO QUESTION"S PUT BY THE COURT 197
And only this further brief portion from the same opinion of Lord
Radcliffe, at page 243:
''I find it impossible to read the statement of daim and the partic
ulars without coming to the dear conclusion that, while the re
spondents were announcing it to be one of their heads of complaint
that the master had brought his ship into the channel with defective
control of steering, they were not putting it forward as a ground of
complaint that the appellants, the ship owners, had allowed their
ship to be at sea in such a defective condition. And that is what
they now wish to complain of.
The respondents called evidence in chief, expert evidence, in
support of their heads of daim. In their turn the appellants called
their evidence upon these heads. The trial judge, after weighing the
evidence, came to the conclusion that the resEondents had not made
good their case on any of the particulars. fhere, he thought, the
case ended, and I am of the same opinion. I think it was quite wrong
that the respondents should, nevertheless, be entitled to say that
the appellants must lose because they did not cover at the trial
a range of evidence ... which the respondents by their own pleading
had excluded from the trial."
Mr. President, I have read at some length from this judgment because
it demonstrates and illustrates so pointedly the same type of situation
as the one with which we are dealing here, as I shall try to demonstrate
later. When analysing the actual situation in this case. lt is not that this
is an isolated example of this type of judgment given by a court in the
legal systems of which I am aware. Such judgments abound, but this is
a particularly pointed one, since it deals with facts easily grasped and
with a situation which serves as an eminent illustration of the difficulty
wîth which we are here confronted. Our contention is, Mr. President,
that at the time when it mattered, at the time when the Applicants
presented and closed their case-as it eventually turned out, on the facts
as well as on the law-and put their amended submissions to this Court,
they made it pcrfectly clear that they were excluding certain factual al
legations from the ambit of their amended submissions. And they thereby
gave notice tous-and they even put it in those words, they gave notice
to us through the Court-that we were not called upon to meet allega
tions of that kind in evidence. We contend that they cannot when it
suits them, for reasons which must be evidcnt to everybody, now, at this
belated stage, corne and say that in spite of that, it is open to the Court
to embark upon a factual investigation of an undefined content. Nobody
knows, and the Applicants do not say, and they do not indicate what the
ambit of it i5, or possibly could be, but still they say that the Respondcnt
must-in spite of what they told us, in spite of the way in which they
framed their amended submissions, and the way in which they said that
they are to be understood-must have known that Respondent must
corne with evidence covering a wider ambit than that which they so
emphatically indicated tous at that particular stage.
Mr. President, the extracts from the case show, in our submission, the
extreme importance of limiting the Court's finding to the daim actually
presented. It involves a principle which, as the Court will know, applies
also in the jurisprudence of this Court, and in the procedure of this Court.
The reason for that is essentially a practical one; it is that a party cannot198 SOUTHWESTAFRICA
meet a case which is not made against it. Ifa court were to decide on is
sues which are not raised-not fairly and explicitiy and dearly raised
in the pleadings, the result would normally be that a party would be
condemned without having had an opportunity of leading evidence and
presenting argument on his own behalf, and that would be contrary to
the principles of natural justice which underlie ail procedural systems.
Itdoes happen exceptionally that issues are canvassed at a trial on a
wider basis than indicated in the pleadings. ln such cases, of course,
the practical objections and the objections of principle to deciding such
issues would fall away. I could give the Court an example which occurred
in South Africa. 1 quote from the Judgment of an eminent South African
Chief Justice, Sir James Rose Innes, in Wijnberg Municipality v. Dreyer,
1919, Appellate Division, at page 443:
"Over this wide area the controversy ranged, the parties con
fming themselves neither to the periods specified nor to the matters
complained of in the declaration [declaration being one of the
pleadings]. The position should, of course, have been regularised by
an amendment of the pleadings. That was not done; but the defen
dant cannot now daim to confine the issue within limits which it as
sisted to enlarge; nor can it cornplain that the learned Judge in
his summing up dealt with the case on the basis which both parties
had adopted."
I can give the Court a similar quotation from a later decision by
Judge of Appeal, afterwards;Chief Justice, Centlivres in Callen v. Riet
jontein Engineering Works, 1948 {I} South African Law Reports, at
page 433. The learned Judge of Appeal said on the facts of the case be
fore him:
"This was not the contract relicd on by the defendant in his
pleadings, and the position should have been regularised by an ap
propriate amendment. But in this case ... [t]his Court ... has before
it all the materials on which it is able to form an opinion, and this
being the position it would be idle for it not to determine the rea]
issue which emerged during the course of the trial."
Mr. President, at the same time, there are on record numerous decisions
in which the most stringent warnings of great caution in this regard are
uttered-warnings to the effect that it should not lightly be assumed that
merely because a matter outside the pleadings happens to be mentioned
by one of the parties, or even canvassed to a certain extent, that that
would constitute as full a canvassing as there could have been if the
matter had been properly raised in the pleadings and the defendant had
then been obliged to canvass the situation. Un1ess the Court can be
satisfied that the matter is as fully canvassed as it would have been if
properly raised in the pleadings, then it is not competent for the Court
to decide upon that issue of fact.
The PRESIDENT:It might be convenient, Mr. de Villiers, to adjourn.
The Court will recess for 20 minutes.
Mr. DE VILLIERS:Mr. President, I wish to ask: would it be possible
for the Court to allow us a slightly longer adjournment, say half-an-hour?
I should very much like to discuss some of the aspects of what my learned
friend has said with my colleagues before I resume the address.
The PRESIDENT:Certainly.
Mr. DEVILLIERS:Mr. President, on the question of the caution to be REPLIES TO QUESTIONS PUT BY THE COURT 199
applied by a court in determining whether it would be safe to regard a
question of fact as fully canvassed when it is something going outside the
scope of the pleadings, I should like to refer the Court to one decision, just
as an example-tha t is again by Sir James RoseInnes but at the time when
he was an ordinary Judge of Appeal in South Africa in 1910. ln that he
refers to a judgment by Lord Watson (in the Privy Council, I think-it
may also have been the House of Lords); the reference isColev. Government
ofthe Unionof SoitthA/rica, r910AppellateDivision, at pages -272and273-
I commence at page 272. This was a case, I may say, where the question
was discussed in an analogous way; it arose in regard to the taking of a
point of law for the first time on appeal, and it was in that respect that
this aspect was mentioned. The learned judge said:
"The duty of an appellate tribunal is to ascertain whether the
Court below came to a correct conclusion on the case submitted to
it. And the mere fact that a point of law brought to its notice was
not taken at an earlier stage is not in itself a sufficient reason for
refusing to give effect to it. If the point is covered by the pleadings,
and if its consideration on appeal involves no unfairness to the
party against whom it is directed, the Court is bound to deal with
it."
May I intenupt for a moment-those two qualifications are very im
portant: "If the point is covered by the pleadings"-even this point of
law now raised for the first time must be within the ambit of the plead
ings; ifit is covered by the pleadings, "and if its considcration on appeal
involves no unfairness to the party against whom it is directed". I shall
proceed with the quotation:
"And no such unfairness can exist if the facts upon which the
legal point depends are common cause, or if they are clear beyond
doubt upon the record, and there is no ground for thinking that
further or other evidence would have been produced had the point
been raised at the outset. In the presence of these conditions a
refusai by a Court of Appeal to give effect to a point of law fatal to
one or other of the contentions of the parties would amount to the
confirmation by it of a decision clearly wrong."
I skip some lines, and proceed at page 273:
"But where a new law point involves the decision of questions of
fact,the evidence with regard to which has not been exhausted, or
where it is possible that jf the point had been taken earlier it might
have been met by the production of further evidence, then a Court
of Appeal will not allow the point to prevail. Because it would be
manifestly unfair to the other litigant to do so. The rule bas been
thus stated by Lord Watson (Connecticut Fire Insurance Co. v.
Kavanagh, A.C., 1892, p. 481):
'When a question of law is raised for the first time in a Court of
last resort, upon the construction of a document, or upon facts,
either admitted or proved beyond controversy, it is not only corn
petent, but expedient, in the interests of justice, to entertain the
plea. The expediency of adopting that course may be doubted when
the pica cannot be disposed of without deciding nice questions of
fact, in consideration of which the Court of ultimate review is
placed in a much less advantageous position than the Court below.200 SOUTH \VEST AFRICA
But Their Lordships have no hesitation in holding that the course
ought not, in any case, to be followed, unless the Court is satisfied
that the evidence on which they are asked to decide establishes
beyond doubt that the facts, if fully investigated, would have sup
ported the new plea'."
Mr. President, consequently we submit the true ratio underlying these
rules is that a tribunal is, as a matter of fairness, not entitled to corne to
a conclusion, and particularly not a factual conclusion, if the party
against which it is made was not given a reasonable opportunity to con
test such a conclusion and to lead evidence relevant to it.
This samc consideration has been applied constantly to proceedings
before quasi-judicial tribunals, the proceedings of which can be taken on
review to superior courts on ordinary principles of review. The basic
consideration in each case taken into account--one of those-by the
court of appeal, is that as a matter of natural justice each party is cn
titled to a proper hearing. and that includes proper warning of the case
which it is called upon to meet. The matter was put in this way by
S. A. de Smith, Judicial Review of Administrative Action, 1959, at page
102:
"That noman is to be judged unheard was a precept known to the
Greeks, inscribed in ancient times upon images in places where justice
was administered, proclaimed in Seneca's Medea, enshrined in the
scriptures, mentioned by St. Augustine, embodied in Germanie and
other proverbs, ascribed in the Year Books to the law of nature,
asserted by Coke to be a principle of divine justice, and traced by
an eighteenth-century judge to the events in the Garden of Eden."
The rule is, of course, commonly known, Mr. President, as the audi
alteram partem rule, and it is applied, as I have said, also to proceedings
before administrative tribunals with quasi-judicial fonctions. It goes so
far that, even where those tribunals are expressly authorized by statute
or otherwise to take into account local knowledge, i.e., facts known to
the members of the board without having to resort to format evidence
on the point, the requirement has been stated repeatedly that where the
members of such a tribunal intend to take account of a matter of fact
which has corne to their knowledge and to apply it adversely to the in
terests of aparty appearing before it, then that ought to be putto the party
so that the party may be able to put a different complexion upon it, or
to meet it, or to controvert it if he can by evidence.
In a case in Great Britain, Board of Education v. Rice, 19n Appeal
Cases 179, at page 182, Lord Loreburn said the following:
"Comparatively recent statutes have extended, if they have not
originatcd, the practice of imposing upon departments or officers
of State the duty of deciding or determining questions of various
kinds ... In such cases ... they must act in good faith and fairly
listen to both sides, for that is a duty lving upon every one who de
cides anything. But I do not think they are bound to treat such a
question as though it were a trial ...[Omitting certain lines.J They
can obtain information in any way they think best, always giving
a fair opportunity to those who are parties in the controversy for
correcting or contradicting any relevant statement prejudicial to
their view." REPLIES TO QUESTIONS PUT BY THE COURT 20I
In our own practice in South Africa this principle has been applied
repeatedly. Avery well-known case is that of Loxton v. Kenhardt Liquür
Licensing Board, 1942, Appellate Division, at page 275. There the court
of review, which was ultimately the Appeal Court in South Africa, set
aside a decision of the Liquor Licensing Board on the grounds that the
members of the Board had made use of facts within their persona!
knowledge without putting them to the person affected thereby, and
without giving that person an opportunity of dealing with the facts and
if possible qualifying or controverting them.
Mr. President, I have given this review with reference to the Anglo
American system of procedure with which I am more acquainted than
the Continental, but as far as we have been able to study the Continental
system the same underlying principles would appear to apply. I am not
going to attempt to give to the Court an exhaustive review of Continental
authority. Sometimes the authority is difficult to find, for the simple
reason that the considerations are so self-evident that they are very
seldom expressed. \Ve have found a very good expression of these con
siderations in relation to the Code of the Netherlands, the Dutch Code,
Section 48. The wording of that section is, in our free translation: "In
their deliberations the judges must, by virtue of their office, add the legal
grounds which may not have been advanced by the parties." And in
respect of this section, we find the following comment in van Rossem
Cieveringa's Het Nederlandsch wetboek van tmrgerlijke rechtsvordering,
3rd Edition, pages 93-94, They state:
"In civil cases the judge is passive; in reaching his decision he is
restricted to the facts which have been alleged by the parties, as
also to the relief claimed by the parties by reason of the facts. In his
judgment the judge consequently only has to decide whether the
alleged facts can be accepted as proved, and whether the relief
claimed by the parties by reason of the facts is sound in law ...
[I omit some lines, and proceed.]
It follows that the judge who is of the opinion that the alleged
facts have not been established, but that other relevant and suffi.
dent facts have been proved, may not base his decision on the latter
facts; nor may he grant relief (either to the plaintiff or to the
defendant) which in bis opinion is the only relief justified by
the alleged facts, if such relief has not been claimed by the par
ties."
So those arc the limitations, Mr. President-! am pausing there for a
moment-imposed by this principle of passivity, as it is called, of the
court in civil casesIn regard to the allegcd facts, that sets a limit beyond
which the court cannot go and also the actual relief or remedy claimed
that also sets a limit for the court.
Now cornes the qualification which is dealt with in this very section
of the Dutch Code:
"But curia jus novit: [the Court knows the law] it would be in
conflict with the conditions of a sound lcgal system if the passivity
of the judge should be stretched to such limits that he is also re
stricted to the grounds advanced by the parties why the relief claim
ed by virtue of the facts in a given case is sound in law. On the
contrary, in this regard the judge is completely independent; he
has to add ail the grounds which the parties did not-or did not202 SOUTH WEST AFRICA
fully-advance for the purpose of showing that the action instituted
or the defence thereto is good in law."
A very dear exposition, Mr. President, in my submission, of the dis
tinctions in this regard, between the limits set by the allegations of fact
and by the relief claimed and then falling in betwecn the application of
the law to the facts in order to see whether the relief claimed is good.
The principle extends, according to the comment of this author, as he
proceeds in commenting on this section, also to the question of the per
mission given, or the right given, to a court to call witnesses of its own,
or to call in expert evidence of its own in civil cases, where he emphasizes
that even in such cases it can only be donc within the limits of the factual
dispute, of the factuaJ allegations made by the one party and contested
by the other. The Court cannot call such evidence with a view to estab
lishing some proposition of its own, as a matter of fact, of which there
has not been fair notification to the other side.
In the French law-I wish to give the Court only this reference to
Delort v. Rongier-a case decided on r8 March r955 and reported in
Recueil Dalloz 33, r956, at page 517. There it was stated that the judges
hearing a case "can neither modify the object nor the cause of the daim
and must decide within the limits fixed by the 'conclusions' of the
parties". And the case referred to that principle as the principle of non
ultra petita, not extending beyond what is asked for, \vhat is claimed.
Turning then to the practice in international law and in international
tribunals, Mr. President, I wish to give only a few brief references to
commenta tors and to the practice of the previous Court and of this Court.
President Basdevant stated in an article which was published in 1957
in Milan, an anthology called Scritti di Diritto Internazionale in onore di
Tomaso Perassi, Volume I, at page 175 (I give our translation):
"The conclusions [in the plural] presented by a litigant before a
court are, conforming to the current meaning, the deductions he
draws from the legal facts and 'motifs' advanced by him;".
Motifs, again the French word, to which we had regard before, "... the
deductions he draws from the legal facts and motifs advanced by him.
They are, at the same time and eventually, the enunciation of that which
the litigant requests the Court to say and to pass judgment on.'' May I
pause there for a moment, Mr. President?
By legal facts and the motifs, as Iunderstand the learned author, he
means those facts which have legal significance for the purposes of the
dispute between the parties. The motifs, they are the justification, the
facts providing justification or a causa for the relief claimed. So that is
the fonction, then, of the submissions, that they are to set out those legal
facts, those facts regarded as a justification, as a prerequisite and as a
causa for the relief which is claimed. That is to be indicated in the con
clusions or the submissions.
I wish to emphasize also the word "deductions" which the party draws
from those legal facts and motifs. I t is quite evident that the party is
not required to set out in the submissions ail the facts on which he relies.
It would sometimes be entirely clumsy; it would be an impossible feat
for him sometimes to do so. As long as he sets forth the deductions which
he draws from the legal facts and motives, and those legal facts and
motives must then surely be identified clearly in the submissions in order
that one might know what their ambit is. REPLIES TO QUESTIONS PUT BY THE COURT 203
Another author, J. C.Wittenberg, L'Organisation judiciaire, la procédure
et la sentence internationales,aris, 1937, at page 215, speaks of these con
clusions as "the deductions made by the parties on the questions of law
and fact dealt with by them". The general principle of non ultra petita
has been recognized in international law in the jurisprudence of this
Court, for instance, in the Asylum ( Interpretation) case, 1950, at page
402. There the Court stated "... that it is the duty of the Court not only
to rep]y to the questions as stated in the final submissions of the parties,
but also to abstain from deciding points not included in those sub
missions".
The Court may recall this was the attempt made to obtain an inter
pretation of the Judgment of the Court in the previous Asylum case and
the party asking for the interpretation alleged that there were gaps in the
Court's Judgment. The Court's answer was that there were no gaps;
that those points referred to in this so-called request for an interpretation
were points which were deliberately not dealt with by the Court in the
previous Judgment because they had not been included in the submis
sions of the parties. And President Winiarski dealt with this matter in
his dissenting opinion in the Corju Channel case, and drew the samedis
tinction in that regard between questions of fact, as I see it, and questions
of law. I quote from page 51 of the record, I.C.j. Reports I949:
"United Kingdom Counsel admitted that if Albania did not know
of the minefield, she cannot be held responsible. Can the Court take
a different view on this subject? Itis nota matter of a petitum of the
Parties beyond which the Court has no jurisdiction, but of an inter
pretation, or a conception of a rule of interpretation or a conception
of a rule of international law. Here the Court is not limited by the
views of the Parties, as was recognized by the Permanent Court of
International Justice in the case of the Free Zones."
And then followed the passage which was read to the Court this morning
by my learned friend.
So here, Ml'.President, a clear distinction is drawn between the case of
petitum, the case of the limit to the factual case presen ted ta the Court and,
on the other hand, questions of interpretation, conceptions of a rule of
interpretation or a rule of international law. The Free Zones case itself,
to which my learned friend referred, provides an interesting example or
an illustration of the manner in which this passage was applied, this pas
sage which is an often quoted one commencing with the words "From a
general point of view".
In truth, the Court was not there suggesting that it was aiming at a
possible interpretation not contcnded for by one of the parties at ail.
What happened in that case was that the first question was so framed
that the Court was asked whether a certain article in the Treaty of Ver
sailles"has abrogated, or is intended tolead to the abrogation", of the
provisions of previous treaties-"has abrogated or is intended to lead to
the abrogation". I might say that the quotation is from a special agree
ment which was submitted to the Court in that case by the parties and a
question arose as to the interpretation of the special agreement. The rep
resentative of France contended that those were the exhaustive possibili
ties on which the Court could find; the Court could only find either that
the Treaty of Versailles had abrogated the previous provisions or that it
was intended, necessarily, to lead to the abrogation of those provisions,204 SOUTH WEST AFRICA
and that there was no alternative. The representative of Switzerland,
on the other hand, strenuously contcsted this and said: No. Switzerland's
contention is that neither of those two constructions would be correct,
either that there has been an automatic abrogation or that the article
of the Treaty of Versailles was intended to lead necessarily to that abroga
tion.
That was Switzerland's attitude: it had been its attitude throughout
the dispute that came to the Court, as appears from the J udgment.
The Court eventually found, in terms of Switzerland's contention, that
neither of those two possibilities indicated was the correct interpretation
of the article in the Treaty of Versailles. That is the sense in which these
words are to be understood:
"From a general point of view, it cannot lightly be admitted that
the Court, whose function it is to declare the law, can be called upon
to choose between two or more constructions determined beforehand
by the Parties, none of which may correspond to the opinion at
which it may arrive. Unless otherwise expressly provided, it must
be presumed that the Court enjoys the freedom which normally
appertains to it, and that it is able, if such is its opinion, not only
to accept one or other of the two propositions, but also to reject
them both." (Free Zones of Upper Savoy and the District of Gex,
Judgment, I932. P.C.I.J., Series A/B, No. 46, p. 138.)
So the Court merely mentioned that as a general consideration which it
relied upon in interpreting what was the real intent of the parties to the
speciaJ agreement. I t is true that it there recognized the general principle
that even if the parties were to purport to bind the Court to two or more
constructions then the Court would not be so bound "[u]nless [as the
Court said] otherwise expressly provided", but I am merely pointing out
that in that case it was not even a matter of the Court arriving at a con
clusion not contended for by one of the parties. The Court in fact then
used this consideration for confi.rming its interpretation of the special
agreement, and saying that Switzerland's interpretation of that was
correct, and ultimately also upheld the contention of Switzerland as to
the interpretation of the Treaty of Versailles.
And that, Mr. President, brings one on to the question of amendments
of submissions. The general principle seems to be clear that, subject
to certain considerations again pertaining to fairness, equity and so
forth,and the convenience of the Court and of the parties, amendments
are to be allowed, and what is important is that when the amendment
has been made the amended submission takes the place of the earlier
submission, whether it has narrowed the case or whether it has widened
it.hat has been recognized in several instances, for instance, in the case
ofthe German Interests in Polish Upper Silesia. The merits of that case
before the Permanent Court are reported in P.C.I.J., Series A, No. 7,
and I read at page 10 where it was said that the Respondent~"withdrew
the submission set out in the Rejoinder and agreed to argue the matteron
the basis of the so-called subsidiary submission, that is to say, the sub
mission formulated in the Reply". In fact, the matter was then adjudged
on the basis, on the subsidiary submission which was indicated by that
party as the one on which it relied.
In the Chorz6w Factory case, P.C.I.J., Series A, No. 9, at page 18, it
was stated as follows: REPLIES TO QUESTIONS PUT BY THE COURT 205
"As has already been indicated, the Applicant has, in his case on
the merits, made submissions which constitute an amendment of
the submissions made in the Application.
Since this amendment has been effected in the first document of
the written proceedings, in a suit brought by application-i.e.,
at a time when, in accordance with Article 38 of the Rules, the
Respondent still retains a completely frec hand to file Preliminary
Objections-no exception can be takcn to it. Mor~oever, the Re
spondent, in his preliminary plea, bas referred to the Applicant's
submissions as formulated in the case and not as formulated in
the Application [in other words, the case is thcn proceeded with on
the basis of the Applicant's submissions as formulated in the case
and not as formulated in the Application]. lt is, therefore, the sub
missions as formulated in the case that the Court has now before it."
Similarly, in the case of the Readaptation of the Mavrommatis Conces
sions, the jurisdiction aspect of which is reported in P.C.I.J., Series A,
No. II, at page rr and the following, the submissions were also considered
to be the basis of the judgment:
"The Greek Government having in its case amended the sub
missions of the Application, the Court takcs as the basis of its
examination the submissions of the Case, which are the submissions
made in the last document upon which the opposite party has been
able to base his objection."
And then the next case, Mr. President, rcfers to some of the considera
tions to be taken into account in this question of amendment of submis
sions, that is the case relating to the Territorial Jurisdiction of the Inter
national Commission of the River Oder, also in the Permanent Court,
P.C.!.]., Series A, No. 23, at pages 45 and 46. Thcre the Court fixed a
time-limit if one of the parties wished to file an alternative submission,
because, as was stated at page 45, "the Parties must have an equal
opportunity reciprocally to discuss their respective contentions", and
they must accordingly, "be enablcd to discuss in their first oral argument
and not only in their reply any alternative submissions made".
I procced, Mr. President, to refer to the summarization given by Judge
Read, in the case of Certain Norwegian Loans, of the considerations
applying in this regard in the practice of the Court:
"It is truc that it has been the establishcd practice of this Court,
and of the Permanent Court, to permit the Parties to modify their
Submissions up to the end of the Oral Proceedings. Indeed, the
President asked the Parties to file their Final Submissions before
terminating the Oral Proceedings; and, in so doing, he was following
a practice of long standing. Thus, it was open to France to amend
the Submissions at that stage. But the right is subject to two
limitations. The first limitation is that, when thcre is an appreciable
change, the other Party must have a fair opportunity to comment
on the amended Submissions. In this case, the amendment was
made at the close of the French opening statement, and Norway
has had two opportunities to reply, of which full advantage has
been taken.
The second condition is that the amendmcnt must be an amend
ment. It must not consist of an attempt by the Applicant Govern
ment to bring a new and different dispute before the Court. If so,206 SOUTH WEST AFRICA
the amended Submissions are not admissible, unless the new elements
have been incorporated in the dispute either by the Respondent
Govemment or by the two Governments in the course of the Writ
ten and Oral Proceedings." (J.C.]. Reports I957, pp. 80 and 81.)
This passage indicates therefore, Mr. President, very evident limits to
the right to amend submissions.
Now especially in regard to this last aspect as to the amendment of
submissions at the close of a party's case, viz., that it must be an amend
ment and it must not bring an entirely new and different dispute before
the Court, let us take the case where a party bas closed his case and at a
later stage, while the other party is presenting its case, or right at the
close of the proceedings, that party cornes and wishes to introduce an
amendment which in substance amounts to the making of a new case.
Now surely, Mr. President, one then stands in a position where the new
case might relate to something which has not been canvassed in what
went before in the pleadings and in any oral presentations of evidence
and argument to the Court; then surely the ratio of this limitation
becomes perfectly plain. The party cannot then, at the very end, introduce
something which should have corne at the very beginning or should have
corne at the stage where it could have been followed up by the normal
steps which would proceed upon it; where the other party would still
have been in the position to present such evidence and to present argu
ment as might be necessary for that purpose of meeting the new case.
It therefore stands to reason, Mr. President, in my submission, that at
the close of proceedings, where both parties have presented their case,
or after a party has presented and closed its case and the other party
has started on the presentation of its case as it understands the case which
it has to meet, then it is not competent for a party to introduce a further
amendment which brings into play something which has not been can
vassed at ail before, something which would have to be canvassed right
from the start and afresh if it were to be taken into consideration by the
Court.
These basic principles, therefore, Mr. President, are to be applied, in
my submission, to the situation now confronting the Court. The sub
missions are the key, as we understand the authorities. They are the
formal conclusion. They provide the key to the propositions of factwhich
are alleged and relied upon; therefore, they are also the key to what the
other side is called upon to meet and they are also the key to what is
submitted to the Court. In addition, they provide the limits to what is
submitted to the Court for its investigation and its adjudication. The
limits to the Court's powers in that respect correspond exactly to the
limits of what has been advised to the other side as the case on fact
which that party has to meet.
Those are the fonctions of the submissions, apart from indicating the
legal conclusions which are sought to be drawn from the facts alleged
and relied upon.
It would also be clear to the Court, Mr. President, with submission,
that there must in reason and in logic be two basic ways in which sub
missions could indicate a limit to the ambit of the factual case which is
presented. There could be combinations of them, or they could both
operate as they in fact do in this particular case, or one or the other
could operate. One could be a positive statement of the factual aver
ments or propositions, and that positive statement could then indicate REPLIES TO QUESTIONS PUT BY THE COURT 207
the limits of the proposition or averment relied upon; that is the one
way. The other way would be to frame a legal conclusion in such a way
as to indicate clearly that the only facts relied upon are those which
are necessary to sustain the legal conclusion, and no other facts.
Then, Mr. President, there is the other factor to which I referred in
passing when I quoted from the article by President Basdevant, and
that is that by reason of considerations, of convenience it may very often
be quite impossible to set out fully in the submissions themselves ail
the propositions or facts relied upon. What is required to be set out is
the deduction from those facts; in othcr words, the broad scope of the
factual proposition drawn from the facts relied upon; and the actual
facts, and their scope, and their limits would have to be indicated by a
process of incorporation by reference. The submissions would indicate
by reference what the facts are upon which reliance is placed.
That is, Mr. President, what was very clearly done in this case, in the
first submissions as they appeared in the Memorials. There the Applicants,
without any objection on our part and, in my submission, completely
properly as a question of form, set out their submissions in such a way as
to incorporate, by reference in those submissions, certain aHegations of
fact. I read from page 197, 1, of the Memorials: .
"3. the Union, in the respects set forth in Chapter V of this
l\1emoria1 and summarized in Paragraphs 189 and 190 thereof, has
practised apartheid, i.e., has distinguished asto race, color, national
or tribal origin in establishing the rights and duties of the inhabi
tants of the Terri tory; that such practice is in violation of its obliga
tions ... "
So the second portion indicates the legal conclusion drawn; the first
portion sets out, by way of incorporation by reference, what facts are
relied upon, what are the limits and the scope of those facts. We look
back to Chapter V of the Memorial, and then we see that in the first
instance the facts are grouped under certain headings, and with reference
to certain measures, certain laws, regulations, practices, and so forth.
Various subjects are thus introduced into the discussion; various others
are not introduced. One looks over the whole of it and then one sees that
there is no complaint in the sphere of health, for instance-provision of
hospitals and similar health facilities and so forth-no complaint of
that kind, so one knows that is excluded from the case. One sees, as
at that stage, that there was no complaint whatsoever about levels of
wages; that was prima facie excluded from the case. An attempt was
made later in the Reply to introduce a complaint of that kind, but as it
stood at that stage, that was what the submissions meant.
There was a complaint of oppression of the Native population, but no
corn plaint of a similar nature, or of any nature, in regard to the Coloured
population of the territory, so one knew that anything of that nature was
excluded.
Finally, Mr. President, on analysis of what content was then ascribed
to this concept of apartheid in the relevant portions of Chapter V of the
Memorial, and particularly also as repeated in the summary in para
graphs 189 and 190 thereof, it was unmistakably a definition of deliberate
oppression, deliberate oppression of the Native peoples. I have read
those definitions to the Court before ad nauseam; I need not read them
to the Court again. The description in them is so absolutely clear; that208 SOUTH WEST AFRICA
is the only interpretation one can give to it. And when one cornes to
paragraphs 189 and 190 in the summary they again highlight and
emphasize the aspect of deliberate oppression. That is therefore the
content then given, and the scope given, to this policy of apartheid
complained of, the concept of being a system of deliberate oppression in
the various fields, and if one reads the actual exposition of the facts
under the various heads, and again as summarized in that lengthy
portion of paragraph 190, in each and every instance it cornes to this,
that by design and by result, apartheid was in the particular respects
alleged a discrimination against the Native population and in faveur
of the European population. That was the case then set out in Sub
mission 3.
Similarly, Mr. President, when one looks at Submission 4 which reads:
"the Union, by virtue of the economic, political, social and educa
tional policies applied within the Territory, which are described in
detail in Chapter V of this Memorial and summarized at Paragraph
190 therëof, has failcd to promote to the utmost ... ".
There again is the factual allegation, exactly the same applies here
as in regard to Submission 3. If one wants to know what those economic,
political, socialand educational policies complained of are, what the
factual aspect of those complained of is, one has but to look back and
one finds the same answer-deliberate oppression, deliberate systematic
discrimination against the Native population in faveur of the White
population.
So one knew also that those were the limits of the contention; one
knew also that there was at that stage, Mr. President, whatever the
Applicants say now, no suggestion whatsoever that the mere fact of
distinguishing as to race, colour, national or tribal origin in establishing
rights or duties, that that tact, taken neutrally and by itself, without
having regard to the allegation of alleged oppressive effect, was in itself
to be regarded as a concept being relied upon, as a factual concept. One
knew also at that stage that in no other sense was any factual case
being made against the Respondent.
Now, Mr. President, we have amended submissions, submissions as
amended at the end of the proceedings on 19 May, which was the end of
the Applicants' presentation to this Court of their case, not only on the
law, but also on the facts. For days and days, beginning particularly at
the stage of the discussions on the inspection proposai, there had been
a preparation and a building up towards this amendment of submissions,
when the Applicants started to explain to this Court that we were
understanding their case completely wrongly; that it was not a case of
deliberate oppression at all; that they did not rely upon any intent, any
improper motivation, or anything of that kind, on the Respondent's
part, nor on the effects of policies, or the results of policies as constituting
the brunt of their complaints; that they were relying on this very fact of
distinguishing as to race, colour, national or tribal origin in establishing
the rights and duties of the inhabitants of the territory, or as more fully
set out to the same effect at IV, page 493 of the Reply.
That came to be their theme and, Mr. President, they indicated in
various ways why this new case, this new formulation of their case, as
they put it, this new explanation of their case-we say it is a new case
and, we submit, it is very clearly that-was to be seen as indicating the REPLIES TO QUESTIONS PUT BY THE COURT 209
ambit of the further proceedings. They referred to it specifically as the
reason why they submitted that no evidence that we wanted to call
could be relevant, that the inspection in loco could not be relevant; in
other words, they served notice upon us that the ambit of the factual case
being preferred against us did not make it necessary to have any evidence
and that there was nothing outside the scope of this case which they were
presenting that called for any factual canvassing on our side at all.
That was how they set about it, Mr. President, in the explanations
given which lead up to the amendment of the submissions. Then they
came and they presented the amended wording of their submissions, and
that coincided exactly with the explanations given, and to make doubly
sure they added a formai interpretation and formai explanations of the
submissions.
Therefore, :M.r.President. that was the stage from which we proceeded
in presenting our legal rejoinder and our case on the facts in the evidence
now being presented to the Court. Now we had new submissions quite
obviously intended to remove any of the misunderstanding of the past as
the Applicants would prefer to have it or, as we suggest to the Court,
any vestige of the remainder of the original case made by the Applicants.
And these submissions are now to be looked at primarily, together with
whatever is incorporated by reference in them, in order to see what is
now this case being made.
Mr. President, our submission is that those submissions, read by
themselves and as read, secondly, with incorporation into them of the
interpretations and explanations given, formai and informai, make clear
beyond any doubt that the Applicants did not include in those submis
sions any factual averment which would authorize this Court to con
duct any factual enquiry beyond the scope of the Applicants' case as
described in the Court's questions under consideration, namely the case
based upon standards and/or the norm.
They made it perfectly clear, Mr. President, that that case which they
were making was intended to indicate not only the scope of their Iegal
contentions to the Court, but also the scope, and the only scope, of the
factual case which they were presenting and which they were calling
upon us to meet.
They made that clear in various ways. They made it clear, firstly, by the
positive descriptions which they gave to the factual propositions on
which they rely. They made it clear by the ambit of the relevant facts
indicated by the formulation of their legal contentions. They indicated
that those contentions were their sole case, and if they could not suc
ceed, then their Submissions 3 and 4 had to fait. They expressly indicated
that they do not advance certain factual propositions, namely anything
concerning the purpose of the l\fandatory or the effects of the policy,
which are really the only conceivable other factual propositions which
could have been relied upon if they had wished to do so-they made it
clear that they did not rely upon those. They expressly indicated, they
said, that they were informing the Respondent, through the Court, that
no evidence outside certain undisputed facts would be relevant and
they said that their sole case rested exclusively on a Iegal conclusion
which they contended flowed inherently and perse from the undisputed
facts. That they stressed throughout, making it clear that they were
not relying on a factual proposition and that there was no justification
for the Respondent to see them (the Applicants} as relying upon a factual 2IO SOUTH WEST AFRICA
proposition which would require an establishing of facts. Finally, they
said that they were not presenting to the Court facts falling outside the
scope of those undisputed ones on which they were relying-they used
that expression-they were not presenting them to the Court and they
made it clear that it would not be the Court's appropriate fonction to
conduct a factual enquiry beyond the scope of what they were sub
mitting to the Court.
I could illustrate this,r. President, abundantly from the record. I do
not wish to refer again to all the passages that could be said to be rele
vant in this respect because that would be a very, very tedious process.
I gave the Court, on IO June ifI remember correctly, a list of excerpts
of what the Applicants stated at various times in this respect and I
should like to refer now to some of those-not all of them-and I wish
to add one or two more to demonstrate what I have just said to the
Court, but before doing so I should like to make one point clear.
The submissions as they stand are quite clearly unintelligible by them
selves. They require to be read, and they are intended to be read, with
reference to certain matters intended to be incorporated by reference in
them; that becomes very clear from their wording. The only thing is
now that the incorporation by reference is something different from
what it was in the initial submissions. The wording is differcnt, and
therefore the effect is different, of what is now being incorporated by
reference. We find in Submission No. 3 that the wording is "Respondent
by laws and regulations, and official methods and measures, which are
set out in the pleadings herein, has practised apartheid".
Mr. President, how could one, merely by reading that, know which
are the Iaws and regulations, and official methods and measures, relied
upon? It is merely said that they are "set out in the pleadings herein";
not as originally in Chapter V of the Memorials and as summarized in
particular paragraphs, but which are "set out in the pleadings herein".
Quite obviously, the man who has drafted this intends the Court to have
reference to some explanation which he has given as to which are those
laws, etc., he relies upon as being set out in the pleadings. And, i\Ir.
President, one finds that in the verbatim record of 17 May, in which the
explanation is given which are those laws and regulations and where
they are to be found in the pleadings.
The same applies to Submission No. 4, which by official, formai,
interpretation is said to have exactly the same meaning and intent
as Submission No. 3; the distinction being verbaJ only. There we read
that the Respondent "by virtue of economic, political, social and educa
tional policies applied within the Territory by means of laws and regula
tions, and official methods and measurcs, which are set out in the plead
ings herein" has, in the lighf of a norm, or standards, or both, failed to
promote. So, again, the vague formulation, of policies applied within
the Territory by means of laws and regulations and so forth which are
"set out in the pleadings herein". Again one has to refer to the record
of the Oral Proceedings, to the explanations which went before the
submissions, in order to see what it is that is now intended to be incor
porated by reference in the submissions.
That is the only point Iwant to make at the moment. One finds that
very clearly in the records of the Oral Proceedings and that is why,
Mr. President, I want to commence this interpretation of the submissions,
as amended, by referring first to these explanations which went before REPLIES TO QUESTIONS PUT BY THE COURT 2II
and then, on the basis of those explanations, to corne back to the wording
of the submissions as they stand.
I should like to begin with the verbatim record of 3 May, at IX,
page 91, where my learned friend, Mr. Gross, said to the Court:
"In Respondent's address on 30 April 1965, Respondent asked
the following questions, which I should like to quote in the record:
'Does it [the Applicants' case] rest on the one basis only or
does it rest on more than one basis, legally speaking? Does it
rest on a norm only to the exclusion of norms and standards
in the plural or does it rest in the alternative on a norm or on
standards? Does it rest only on a legal norm which automatically
and technically renders certain described forms of conduct
illegal, or does it rest in the alternative upon factual allegations
in respect of which they ask this Court to pass an adverse value
judgment either as to the purpose or as to the effect or as to
both the purpose and the effect of the Respondent's policies in
South West Africa.'"
That was our question and now cornes my learned friend's answer. He
says:
"With respect to the last sentence quoted, there would seem to be
no basis for renewed clarification; the Applicants have stated
explicitly that the conduct described~and by 'conduct' the Appli
cants refer to the laws and regulations and the official methods
and measures by which they are effectuated, the existence of which
is conceded by Respondent-constitutes a per se violation of the
relevant provisions of the relevant Article of the Mandate. It neces
sarily followsthat the Court is not requested by the Applicants to
pass an adverse 'value judgment' either as to the purpose or as to
the effect or as to both, of the Respondent's policies in South West
Africa.'' (IX, p. 92.)
Mr. President, in my submission, I cannot see how my leamed friend
can now say that this Court is free to conduct an enquiry of which he
does not say what the limits would be, but an enquiry which falls clearly
outside this answer which he gave to a query from our side where we
asked him: are there any "factual allegations which ask this Court to
pass an adverse value judgment either as to the purpose or as to the
effect or as to both", and he replied: "No, there are none." He rests
purely upon the existence of certain undisputed laws and regulations,
the existence of which he says "constitute saper se violation". Now, how
could there be a clearer intimation both to the Court and to the other
sicle that that is the factual scope of the proposition being advanced
and which was then eventually incorporated in tlie amended sub
mission?
[P1,blic hearing of I July I965}
Mr. DE VILLIERS: Mr. President and honourable Members, at the
adjournment yesterday I had just begun a process of interpretation of
the Applicants' amended submissions, as presented to the Court on
19 May-interpretation, that is, with a view to ascertaining the ambit
of the factual propositions which are intended to be advanced in those212 SOUTH WEST AFRICA
submissions. As I pointed out to the Court, those were now the governing
submissions, in substitution for the original ones as set out in the Me
morials, just as in the Chorzow Factory case, to which I referred yester
day, and in the Mavrommatis Adaptation cases, in which the Court said
that the submissions as amended in the course of the cases, were now the
governing submissions in substitution for the original ones.
Ipointed out also, Mr. President, that when it cornes to interpreting
the submissions it is a matter, as in ail interpretation, of ascertaining
the intention of the author of the document, and I pointed out that the
submissions by their wording are obviously not intended to be self
explanatory; that particularly in so far as the factual ambit of the case
is concerned, the submissions were intended to be read with explanations
given simultaneously or shortly before. Particulatly that was so in
regard to the laws, regulations, official methods and measures and
policies referred to in those submissions-they were not defined, except
very vaguely, as having been set out in the pleadings herein, and it
was necessary therefore to have regard to the oral record in order to see
which exactly those were. And the second important respect in which it
would be necessary, or very useful, to have regard to the explanations
offered, was in regard to the exact aspect of fact upon which the Appli
cants sought to rely with regard to those measures and methods and
policies applied in the Territory-what the particular factual aspect of
those measures was they were seeking to rely upon.
Our submission is that in this respect the wording of the submissions
in itself is clear, but we submit that when regard is had to the explana
tions given in varions ways and in various formulations, the matter
becomes clear beyond any possible doubt. It was in that context, then,
that I started off with a reference to a passage in the record of 3 May,
at IX, page 91, which I read out to the Court. That related to the question
in which we asked specifically what factual allegations were made and
whether any factual allegations were made outside the ambit of the
Applicants' case resting upon a norm and/or standards. We got a very
definite answer which was to the effect that no factual allegations were
intended to be advanced, either as to the purpose or as to the effect of the
measures, methods and policies concerned.
I should like to refer now to another passage in that same record of
3 May, to be read in conjunction with the one to which I referred yester
day-that is at IX, page 91 of the record. The Applicants referred first as
follows to what they suggest Respondent's attitude is in regard to the
inspection and in regard to evidence:
"Respondent says to the Court, 'Come and inspect the Territory.
The Court, or a Committee thereof, will then see the whole problem
from our point of view when it bas viewed all the facts and facets of
the situation'."
Now, after that, my learned friend proceeds to put the Applicants'
contrary attitude:
''The Applicants say to the Court, to the contrary: 'We ask the
Court to look at the record of laws and regulations and the official
methods and measures, the existence of which is conceded by
Respondent. If that is not sufficient to persuade the Court of
violation of the international mle of Article 2 of the Mandate, read
in the light of the applicable legal norm and the international REPLIES TO QUESTIONS PUT BY THE COURT 213
standards for which the Applicants contend, the Submissions 3 and 4
must fall'."
The word in the record is "fall"; it may have been intended to be "fail",
but in any event the effect seems to be the same. This very clearly tells
us,Mr. President, that it is that perse aspect, i.e., of looking at the laws,
regulations, official methods and measures, the existence of which is
conceded-constitutes the factual aspect relied upon, and that, then,
if the Applicants' legal contention flowing from that fails, then Sub
missions 3 and 4 must fall, or fail.
I should like to refer next to the record·of 30 April. My learned friend
was therc dealing-at IX, pages 61 and 62-with a question which had
bcen put by the honourable President in regard to the existence or
otherwise of any distinction between his Submissions 3 and 4, as they
were worded in the Memorials and as they still stood on record at that
stage. :My learned friend then explained that there was no difference
at all. and that no difference was intended; and in order to make that
perfectly clear he gave a reformulation of his Submission No. 4, at page 61,
which included the words "in the light of the applicable international
legal nonn and international standards". Now, in that context, my
learned friend proceeded as follows at page 62:
"In respect of the question addressed to the Applicants by the
honourable President, it follows that no issue is presented there
under which would call for, or make relevant, an inspection to
appraise, evaluate or make judgments concerning whether, or to
what extent, Respondent's policies of administration in fact applied
by the Respondent in the economic, political, social and educational
life ofthe Territory are compatible with, or repugnant to, Respon
dent's legal obligations as Mandatory under the sacred trust.
The Applicants' case stands or falls on its theory and submission
that the laws and regulations and official methods and measures,
the existence of which is undisputed in the record, are inherently
and pcr se, as a matter of law, in violation of the obligations of
Article 22 of the Covenant and Article z of the Mandate, read in the
light of. and interpreted in accordance with, the applicable inter
national legal norm and international standards which are defined
and described by the Applicants in their written pleadings and
oral arguments, the latter not yet, of course, having been com
pleted."
And immediately adjacent to that, on the next page-63-the Applicants
said:
"In the Applicants' respectful view, there appears to be even
Jess justification for presentation of oral testimony than for inspec
tion."
Mr. President, may we pause again and look at the significant features of
this wording? In the secondline ofwhat I read wesee "no issue is presented
thereunder ['thereunder' apparently meaning under Submission 4, or
3 and 4, which have now been identified as meaning the same thing);
which would call for, or make relevant, an inspection". And then, on
the next page, presentation of oral testimony is put on the same footing
as, or even on an a fortiori basis than an inspection-in order ta appraise
or evaluate, or to make judgments conceming whether or to what extent214 SOUTH WEST AFRICA
Respondent's policies of administration in fact, in the various spheres,
are compatible with or repugnant to the legal obligations. So, Mr.
President, again in so many words it is said that no issue is presented
on those factual aspects, and the further explanation follows which is
supplementary, and fits into the picture: the reason why no such issue
of fact is presented is because the Applicants' case stands or falls by its
theory and submission of an inherent, a legal, consequence which is said
to flow from the mere existence of those laws and regulations in the
light of the legalnorm and/or standards. So nothing, again, could have
been a clearer intimation to the Court and to us as to the limit of the
factual presentation intended in the submissions. Of course, the sub
missions, as they then stood, did not yet give full effect to the manner in
which the Applicants chose to present their case, and that explains why
the amendment was eventually made on 19 May.
I should next like to refer to a passage at IX, page 64, of that same
record of 30 April, where, just below the middle of the page, my learned
friend says as follows:
"In the Rejoinder, V,and I refer to pagen9, Respondent concedes,
or contends: [and then follows a quotation from the Rejoinder,
which I should like to read very carefully to the Court.]
'If this alleged norm [and my learned friend interposed
"that is, the norm asserted by the Applicants"J exists as part
of the Mandate, itwould have the consequence that Respondent' s
admitted policies of differentation would constitute a contraven
tion of the Mandate even if the Court were to hold that such
policies were intended to enure, and did in fact enure, to the
benefit of the population as a whole. Consequently the sole
issue between the parties on this aspect of the case is a legal
one, viz., whether or not the Mandate contains such a norm."'
That is the end of the quotation from the Rejoinder, and my learned
friend proceeds to state:
"With this comment, of course, the Applicants agree fully. The
word 'contain' [that is in the last phrase 'whether or not the Mandate
contains such a norm'J, we would construe as an interpretation of
the obligation." (IX, p. 64.)
So, Mr. President, here it is said that we exactly represent what the
true issue is, "comment ... [with which] the Applicants agree fully",
and our comment is explicitly so worded that "Respondent's admitted
policies of differentiation [my leamed friend now complains about our
use of that wordJ would constitute a contravention ... even ifthe Court
were to hold that such policies were intended to enure, and did in fact
enure, to the benefit of the population as a whole". And our comment
was rounded off with: "Consequently the sole issue ... on this aspect ..•
is a legal one."
My learned friend, having now made clear that this case brought on
the norm and/or the standards of the same content as the norm, is his
only case, surely then it follows that that is in respect of the case which
he brings, the sole issue between the Parties is a legal one.
My learned friend went further at page 64, and said:
"For the purpose of interpretation and application, the following
passage in the same volume of the Rejoinder removes any vestige of REPLIES TO QUESTIONS PUT BY THE COURT 215
doubt that Respondent clearly understands the basis of the Appli
cants' case."
I shall now read to the Court only the relevant passage from the
Rejoinder, which was cited by my learned friend, commencing at about
the fourth line thereof: .
"If indeed Article 2 of the Mandate must be read as containing
an absolute prohibition on 'the allotment, by governmental policy
and action, of rights and burdens on the basis of membership in a
"group", Applicants would sufficiently establish a violation of the
Article by proving such an allotment, irrespective of whether it
was intended to opera te, or does in fact opera te, for the benefit of the
inhabitants of the Terri tory. The legal position would then be similar
to that pertaining, for instance, to the prohibition in Article 3 of
the l\Iandate on the supply of intoxicating spirits and beverages
to the Natives. And since Respondent's policy is avowedly based to
a considerable extent on an allotment of rights and obligations on
the basis of membership of the different population groups in the
Territory, there would exist no dispute of fact between the parties.
The position would then indeed be, as stated by Applicants, that
"the decisivcly relevant facts concerning Applicants' Submissions
3 and 4 are undisputed".'" (IX, pp. 64-65.)
I need not quote further, Mr. President. That is the passage which my
learned friend says "removes any vestige of doubt that Respondent
clearly understands the basis of the Applicants' case". That discloses an
understanding of Applicants' case as involving that Article 2 allegedly
contains an absolute prohibition on that kind of allotment and that, in that
event there w~mldexist no dispute of fact between the Parties.
In the same record, Mr. President, carrying on in this same context,
there is an interesting indication of the sense in which the Applicants
now use the word "apartheid". In the presentation of their new case to
the Court-this limited case, as contrasted with the one which we under
stood them to make initially, viz., that apartheid was a deliberately
oppressive policy, Applicants now concentrate on the aspect of a differen
tial allotment-of distinguishing between various inhabitants of the
Territory in the allotment of rights and obligations on the basis of thcir
membership in a race or class or group. After saying that these two
extracts from the Rejoinder reflect an exact understanding of what the
Applicants' case is, my learned friend proceeds to say that that shows
that the Applicants' case does rest on such a proposition of a perse result
(without any conflict of fact) flowing from the mere existence of the
laws and measures concerned. He then proceeds in the same sentence
and in the same breath to state, at IX, page 65:
"... and that the Court should, in our respectful submission, con
clude that Article 2, paragraph 2, of the Mandate, and Article 22
of the Covenant have been, and are being violated by Respondent's
practiΠand policy of apartheid".
Clearly in the context he indicates in what sense apartheid is now
used for the purposes of this new limited contention. I shall corne back
to this point, but this is one of the passages which throws light on that
situation. There are more, and the others are even more explicit.
I should next like to refer to a passage in the verbatim record of
28 April, at IX, page 57, and I quote from about the middle of the page:2r6 SOUTH WEST AFRICA
"There can be no question of promotion of welfare that could
be relevant to the practices and policies which are complained of
and which are the subject of the undisputed factual content of this
record. How many times is it necessary to repeat that is the heart
and soul of the Applicants' case, and if the Applicants are wrong,
they will be told so, of course, by this honourable Court in due
course? The Applicants have confidence in the legal propositions
upon which they rest their submissions and will, it goes without
saying, Mr. President, endeavour to clarify those submissions to the
fullest extent of their capability to do so. But on the basis of the
submissions, as the Applicants intend and respectfully present
them---on the basis of the undisputed facts of this record, the Appli
cants respectfully submit, and accordingly through the Court
advise the Respondent, that the Applicants rest their case upon
the propositions asserted, and that the acceptance of those proposi
tions would make irrelevant, unnecessary, for all the reasons the
Applicants have endeavoured to expiain, the introduction of fur
ther evidence, either at the seat of the Court or elsewhere."
Mr. President, with respect and submission, how could we have it
plainer and more explicit, in all these various kinds of wording, that
there is now a limited factual proposition relied upon, and intended to
be relied upon, in the submissions, and that, consequently, evidence
outside the ambit of that proposition would be unnecessary? We have
it in the statement that "that is the heart and soul of the Applicants' case,
and ... if wrong, they will be told so"; we have it in the statement that
the ''Applicants have confidence in the legal propositions upon which they
rest their submissions". In other words, those legal propositions then
indicate also the ambit of the facts upon which the Applicants intend to
rely in their submissions, because those are the facts, and the only
facts which are suffrcient to sustain those legal propositions as relied
upon by the Applicants. That is what they keep telling us ovcr and over
again in these passages.
They say "... on the basis of the submissions, as the Applicants
intend and respectfully present them". Now, what is that basis? They
go on to say: "... on the basis of the undisputed tacts of this record",
namely the existence of those measures, methods and policies explained
so often in other passages, the Applicants "tespectfully submit, and
accordingly through the Court advise the Respondent, that ... [they]
rest their case upon the propositions asserted" and that makes evidence
unnecessary--evidence outside those propositions.
Next, I should Iike to refer to a passage in the verbatim record of
I3 May. ln the last passage I quoted, the Applicants emphasized that
they were advising us as to the ambit of the factual case which they
intend to make in their submissions, and that they intend their submis
sions to be read in that respect; but here, in the passage I am about
to read, the Applicants emphasize the limit to what they are asking the
Court to do. I shall read from IX, page 246:
"The Applicants do not rest their case upon the degree to which
the norm-creating process at work in international society has been
correct or fair in its appraisal of the incompatibilitybetween apart
heid as practised by Respondent and the material welfare of the
inhabitants of the Territory. REPLIES TO QUESTIONS PUT BY THE COURT 217
Although the Applicants have no doubt that the norm-creating
process was fair and correct in its evaluation of the policy complained
of, the Applicants do not ask the Court to say so. Nor do they
suggest that the Court undertake the task of second-guessing the
competent international organs responsible for the development ofthe
norm. There is no question of the Court rubber-stamping the judg
ments of the competent international organizations, in Respon
dent's phrase, any more than the Court can properly be expected
to veto such judgments, even though they are explicitly directed
at conduct complained of in these cases.
If the standards and the legal norm for which the Applicants
contend do exist, as a matter of law, then they should be applied
by the Court as part of its duty to decide this dispute in accordance
with international law, and in accordance with the international
rule regulating the mandate institution itself."
And that is why the Court is not asked to indulge or engage itself in
any process of evaluation of the policy on a basis of fact, and thereby
to second-guess the competent organ.
Then, further on this theme, Mr. President, we find in the record of
18 May that the Applicants go so far as to say that it would be foreign
to the judicial nature of the Court's task to engage upon such an in
vestigation. There is a passage on this point in this record of rS May
and also in the one of 17 May. I shall read the passage in the verbatim
record of rS May:
"... there is a structural and functional interrelationship between
administrative supervision on the one hand and judicial protec
tion on the other; that the applicability of criteria in the judicial
form necessarily depends upon and presupposes their formulation
in the administrative organ; that this Court, and no court, by
reason of the very nature of the judicial process, has the facilities
or the responsibilities to reach judgments, to formulate standards,
of the sort which are uniquely within the competence of administra
tive organs and which reflect political and moral and social con
siderations of which they are specially competent to judge and
evaluate". (IX, p. 326.)
I read,with that, a passage in the record of 17 May:
"For if the Respondent is upheld in its daim of inherent discre
tion of a breadth for which Respondent contends, or appears to
contend, the only way the Court could pass judgment on asserted
breach of Article 2, paragraph 2,would be to make a choice between
the Respondent's conception of well-being, moral and material
well-being and social progress, and that of the Court's.
Such a decision, whatever the outcome, could not rest upon
authoritative or objective criteriaIt would not possess the juridical
attributes properly to be associated with the tradition of this
honourable Court." (Ibid., pp. 299-300.)
My learned friend, Mr. Grosskopf, in quoting this passage to the
Court before, indicated that those introductory words would appear to
be inappropriate. This result would not follow from the Respondent's
contention of testing on the basis of whether there has been an abuse of
power but it would certainly follow upon the basis of a contention,
that the Courtis to judge in accordance with the effects, the consequences218 SOUTH WEST AFRICA
or the results of the policies. But be that as it may, the Applicants put the
proposition of making a choice between Respondent's conception of
moral and material well-being and social progress and that of the Court's
and saying that such a decision would not possess the juridical attributes
properly to be associated with the tradition of this honourable Court.
So again, we are being told in various ways, Mr. President, that the
Applicants do not present to the Court, and do not require us to meet,
any factual proposition outside the ambit of what is strictly necessary for
the purposes of their norm and standards' contention. And they go so
far as to suggest that outside that ambit thcre would be no competence
for the Court to exercise a judicial function, irrespective of where they
have set the limit of their submission. Then, atIX, page 299, of that same
record to which I have just referred, 17 May, there is another passage
which links up very clearly with this note, and it gives the sarne explana
tion as in other parts-the explanation of the legal consequence which
must, ipso facto,follow. I rcad at page 299:
"The Applicants contend that international standards and an
international legal nom1 of an a priori character exist which provide
authoritative criteria of an objective nature for the interpretation of
Article 2, paragraph 2, of the Mandate and of Article 22 of the
Covenant. This theory of the case, if sustained, eliminates extra
judicial considerations. It has never been part of the Applicants'
case that the Court make a subjective evaluation of Respondent's
policies of discrimination and separation."
I stress the words, Mr. President, "[i}t has never been part of the
A pplicants' case". This is not merely their theory of the case; it is the
Applicants' case.
Now I should like to refer to the record of 19 May, in order to indicate
that what I have read here, bringing us as it does up to 17 May, was
maintained right up to the last moment, leading up to the amendment
of the submission. I wish to read a passage from the record of 19 May:
"... it is the view of the Applicants that the nature of their
legal theory and the sole basis upon which it rests, and has always
rested from the earliest pleadings to the present time, renders irrele·
vant the calling of witnesses or the adducing of other forms of
evidence designed to show the so-caHed 'actual effects' of Respon
dent's policies in the Territory. Factual evidence of this sort would
not, in the Applicants' view, have any relevance to or legal bearing
upon their.submission that apartheid, inherently and perse, constitutes
a violation of the standards or the norm governing the inter
pretation of Article 2,or both." (IX, p. 363.)
Mr. President, here we get another indication of the sense in which the
word "apartheid" is now used-"apartheid" in a sense which views that
policy quite independently of its actual effects, quite independently
as explained in other passages of the consequences attached to it. It is
the aspect of the policy which inherently and perse constitutes a viola
tion of the standards and the norm contended for by the Applicants: it
is that aspect of the policy and that aspect of the policy alone, which
constitutes the basis of the Applicants' case; and that is what they tell
us here in so many words.
We may now revert to the record of 19 May in which the submissions REPLIES TO QUESTIONS PUT BY THE COURT
219
were put. Let us corne to the wording of the subrnissions and we begin
again with these first words of Submission 3:
"Respondent, by laws and regulations, and official methods and
measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or
tribal origin in establishing the rights and dutiesof the inhabitants of
the Territory ... " (IX, p. 374.)
The first question is, which are these laws and regulations? Where
are they identifted? As I said to the Court, the identification one finds
in the record of r7 May, and I should like to refer to certain of those
passages which make it clear beyond doubt what those regulations
and Jaws, policies, and methods and measures are, and what particular
factual aspect of them the Applicants seek to rely upon. I begin with a
passage at IX, page 285, of the record of r7 May-a general passage
which I should like toread with a passage at thesame page. Theparagraph
at page 285 reads:
"It is the Applicants' purpose now to present to the Court the
corpus, the pattern of laws and regulations, of official rneasures
and methods, the existence of which is conceded by the Respondent
and which inlarge part arederivedfrorn and cited to the Respondent's
own pleadings. This corpus of fact, this body of laws and regulations
and measures and methods, upon the basis of which the Applicants
contend the norm and/or the standards (which will be explained
shortly as to content, source and coverage), the conduct complained
of, which will now be summarized without argument or elaboration,
is to be judicially deterrnined, to bperse and inherently in violation
of such international norm and international standards, or either."
So, Mr. President, here we find the identification. The purpose is to
present to the Court that corpus, that pattern of laws and regulations,
the existence of which is conceded and which, in the Applicants' conten
tion, leads to that per se inherent violation. It is referred to as this
corpus of fact, the body of laws and regulations, measures and methods.
And, Mr. President, in a further description, going on to the economic
aspect of it, but expressed in a general sense, the Applicants say (at
p. 285}: "This is the body of fact upon which the Applicants rest their
case: ... "
Now, Mr. President, the Applicants proceed, having stated in general
that that is the body of fact, that that identifies the body of fact and
indicates the aspect relied upon, viz., this per se aspect. One fmds that
the Applicants break it up into compartments, categorization as they
call it. And in respect of each compartment, we find the exactly repetitive
words, in each instance emphasizing to the Court that it is only this
limited per_se aspect of the matter·relied upon by the Applicants-only
the aspects of the existence of those measures which is undisputed. Then
the legal consequence is suggested to follow per se from that existence,
namely that of violation of the norrn and standards and therefore a
violation of Article 2.
I shall give the Court an example of how the matter is dealt with in
the economic sphere, and then the references to how it is dealt with in
the other spheres, and the Court will see that in each case the formulation
is exactly repeated. The system in each case is, first, to refer to certain
passages in the Mernorials in which there were set out the general duties220 SOUTH WEST AFRICA
of the Mandatory, with regard to the particular aspect of life. Thus we
find in the record of 17 May this stated, on the economic aspect:
''The Memorials, 1,at page 111,set out the Mandatory'sduties with
respect to the economic aspect of the life of the inhabitants of the
Territory, all, as I have said before, to be carried out and in the
context of the international standards and the legal norm of non
discrimination or non-separation: ... " (IX, p. 285.)
Even now, when stating the duties, that formulation follows, al]
within that context, all to be carried out in that context. Those words,
Mr. President, are repeated every time-when it cornes to the political
aspect, when it cornes to the civil rights aspect, and when it cornes to
the educational aspect; those very words are repeated every time as to
the sense in which those duties are to be read: ail to be carried out in
the context of the international standards and the legal norm of non
discrimination and non-separation.
Then, after quoting the words of the declaration on these duties,
there is this statement at the same page:
"At pages II2 through 131 ofthe Memorials (1)the Applicants have
set out a series of laws, regulations, measures and methods of an
officialcharacter by which these laws and regulations are imple
mented in the economic lives of the inhabitants of the Territory.
And the Applicants have submitted in the Memorials, and now
reaffirm their submission, that these constitute per se violations
of the international legal norm of non-discrimination or non-sepa
ration and of the standards which govern the interpretation and
application of the Mandate itself."
So here we find our identification, Mr. President. The pages of the
:Memorials are given, and then in what follows there is given a reference
also to pages in the other pleadings where these same measures are
dealt with; this description in two ways emphasizing that the only
aspect of the measures, etc., relied upon falls within this limited per st
contention of the Applicants~within the contcxt of that, both in regard
to the duties and in regard to the laws, regulations, measures and
methods. We find those statements limiting the context, the factual
aspects, on which the Applicants seek to place re1iance.
That we find again in regard to the political aspect, at IX, page 287:
"Continuing with this factual cataloguing, the Memorials, I, at
page 131, set out the Mandatory's duties with respect to the political
life of the inhabitants of the Territory, [and then those same words]
all to be performed in accordance with, and in the context of, the
international standards and international legal norm of non-dis-
crimination and non-separation." .
After quoting the Memorials, giving the pages of the Memorials where
the Applicants have set out the laws and regulations, official measures
and methods regarding political lives, there is again the same formu
lation, viz., that they constitute per se violation of the norm and the
standards.
Pages 289 and 290 (IX) give us the same position in regard to civil
liberties-at page 290, first the duties, with that sole formulation attached
toit; and thenat thesamepage, the references to the pages of the Memorials,
where the laws, regulations, methods and rneasures are dealt with- REPLIES TO QUESTIONS PUT BY THE COURT 221
again with the same formulation attached to it. Finally, at page 294,
we find the same story with regard to the educational life-the duties
and then, in a Iater paragraph, the reference to the laws, etc., and the
same formulation in exactlv the same words as before.
So, .Mr.President, we fintl, with respect, that when ,ve interprct those
first wordsof the amended Submission 3, herc is the identification both of
the laws, regulations, mcasures and policies, and of the factual aspects
averred and relied upon.
In the result, the term "apartheid" now takes on this ncw sense
which I have indicatcd, and that is explicitly explained in this same
record of 17 May. This is what the Applicants stated at the conclusion
of their presentation of the catalogue:
"l\lr.President, this concludes on behalf of the Applicants the
presentation of the iUustrative enumeration of the laws and regu
lations, and official methods and measures by which they are
eflectuated, the existence of all of which is conceded by Respondent.
These, and similarly conceded existent legislation and administrative
measures, and effectuating implementing policies and practices,
form the corpus of factual matcrial or describe the pattern of
Respondent's conduct, which is known and characterized widely
as 'apartheid' or, more generally now, in Respondent's own usage,
but referring to the same pattern, 'separate development'. Pursuant
to such policy and practice, the Respondent allots status, rights,
duties, privileges or burdens on the basis of membership in a group,
class or race rather than on the basis of individual merit, capacity
or quality. In the Applicants' submission such a policy and practices
are inherently incompatible with Respondent's obligations under
Article 2 of the Mandate and Article 22 of the Covenant, and consti
tute per se and ipso facto violations of Article 2,the interpretation
and the application of which article are govemed by international
standards and/or by an international legal norm, as described in
the Reply, IV, at page 493.
In the Applicants' further submission, no evidence or testimony
in purported explanation or extenuation thereof is legally relevant
to the issues joined in these proceedings." (IX, pp. 298-299.)
So, Mr. President, I cannot sce how one can have it clcarer, that this
is now the limited sense in which reference is made to apartheid. This
is the content assigncd to apartheid-this aspect of it which a.Ilots rights
and obligations in conflict with the suggested norm and/or standards,
thereby rendering it inhercntly and perse, and without regard to factual
aspects such as effects, purposes, or the like, violative of Article z of
the )1andate in the light of the norms and the standards.
I have emphasized this, Mr. President, because my learned friend, in
his presentation to the Court yesterday, said that the issue was one of
apartheid and that the Court could apparently play around within the
concept of that policy of apartheid and then present a case or corne to
a conclusion along different Jines from those of the Applicants. The
Applicants arc not allowed to do that; I wish to emphasize to the Court
how they themselves, for the purposes of these amended submissions,
have now reduced and confined the concept of apartheid by the definition
which they now give to it.
Let us contrast this definition with what they stated initially in the222 SOUTH WEST AFRICA
Memorials. I said yesterday that I have read certain of these passages
ad nameam, but I think it is of crucial importance now to stress certain
aspects of them. One finds the formulation, the definition then, given
at 1, pages 108-ro9, of the Memorials, and repeated in substantially the
same wording at page 161 in paragraph 189, which was one of the para
graphs incorporated by a reference expressly in the original submissions •
and now omitted from the submissions.
I read at page ro8:
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, color and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority. Since this section of the
Memorial is concerned with the record of fact, it deals with apartheid
as a fact and notas a word. It deals with apartheid in practice, as it
actually is and as it actually has been in the life of the people of
the Territory, and not as a theoretical abstraction. A sober and
objective appraisal of the factual record, as hereinafter detailed,
compels the conclusion that apartheid, as actually practiced in South
West Africa, is a deliberate and systematic process by which the
Mandatory excludes the 'Natives' of the Territory from any signifi
cant participation in the life of the Territory except in so far as
the Mandatory finds it necessary to use the 'Natives' as an indis
pensable source of common labor or menial service."
Mr. President, if we compare this definition of apartheid now with the
one Ihave just read to the Court from the record of 17 May, surely the
significance hits us in the eye-the significance of the distinction. There
is no longer this allegation of an arbitrary allotment which ignores the
needs and capacities of the individuals concerned; all we have now is
that the system itself allots rights and so forth on the basis of membership
in a group, rather than on the basis of individual merit, capacity, or
quality.
But most important is this aspect: "and subordinates the interests
and rights of the great majority of the people to the preferences of a
minority." That is stated at 1, page 108, and again at page r6r it is
specificallyput in these words: "Under apartheid, the rights and interests
of the great majority of the people of the Territory are subordinated to
the desires and conveniences of a minority."
Mr. President, can that allegation (as particularized again towards the
end of this statement) about exclusion from participation-significant
participation-in the life of the territory, and the allegation about using
the Natives only as common labourers or for menial service~all that
be regarded as still being included in the amended submissions of 19 May,
or must we take the Applicants at their word when they told us in their
explanations, in so many words, that they do not rely on any aspect of
purpose or effect of the policies complained of but rely only on the
existence of these laws and the ipso facto,perse, effect which they ascribe
toit in the context of the normand/or the standards relied upon?
Surely, we have had the clearest intimation that whatever the case
might have meant initially, as presented in the Memorials, the amended
submissions are no longer intended to encompass any such case. If, on REPLIES TO QUESTIONS PUT BY THE COURT 223
the amendment of the Applicants' submissions with these explanations,
I had not said to the Court I shall confine the presentation of further
facts by way of evidence to the Court to what is relevant in this limited
context-if I had not done that-the Court could have said tome: if
you intend leading any evidence outside the ambit of what the Applicants
now rely upon in their amended submissions, then that evidence is
irrelevant and should not be led.
Now the Applicants want to corne back and say that apartheid is
really the issue and if the Court takes a different view of apartheid from
that of the Applicants, then the Courtis free to do so. I submit, Mr. Presi
dent, that as regards placing a factual meaning upon the concept of
apartheid, the Courtis very clearly not competent to do so, just as I am
not competent to address any evidence to a case in that respect which is
in fact not being made by the Applicants.
What is said in regard to apartheid in Submission No. 3 is exactly
the same as we find in the result in regard to the policies spoken of in
Submission No. 4, quite apart from the official explanation that the
two submissions are intended to mean the same thing.
So we find in the verbatim record of 17 May that the Applicants
say this:
"The categorization itself [that is the splitting up into economic,
political, and so forth], the method of categorization is really
extraneous to the point here which is the examination of the appli
cation or failure of application of the norm and/or of the stan
dards; such categorization merely, is the framework within which
that issue is being examined and appraised." (IX, p. 290)-
making it clear, therefore, that as with regard to the specific use of the
word "apartheid" in Submission No. 3 so also with regard to the use
of the vaguer words "economic, political, social and educational policies
applied within the Territory" in Submission No. 4, the Applicants rely
only on what I might call, in short, this perse or suggested legal aspect
thereof, and nothing more.
Against this background the wording of these submissions falls entirely
into place and leaves no doubt whatsoever as to the limit to the factual
allegations intended to be made as part of the Applicants' case.
That is why Submission No. 3 says simply that by the laws and
regulations concemed Respondent has practised apartheid and then
gives this definition of apartheid, that is, has distinguished as to race,
colour, national or tribal origin in establishing the rights and duties of
the inhabitants of the Territory, and that such practice is in violation
of its obligations. Therefore, that is the ambit; the words mean exactly
what they say and no more and no less. That is the factual sense in
which the term "apartheid" is used and is brought into the case as an
allegation against the Respondent-an allegation with a certain purport
and effect, but also with a certain limit and the limit is an unmistakable
one.
That is also why the Applicants say, in Submission No. 4, that
"Respondent, by virtue of economic, political, social and educational
policies applied within the Territory, by means of laws and regulations,
and official methods and measures, which are set out in the pleadings
herein, has, in the light of applicable international standards or inter-224 SOUTH WEST AFRICA
national legal norm, or both, failed to promote to the utmost" (IX,
p. 374).
All this falls into place. It is exactly as the Applicants intended it
exactly as they explained tous repeatedly and in all these vario~s ways.
So, Mr. President, applying the matter to the context of the third
question put by the Court on 22 June, my learned friend said in yester·
day's verbatim record:
"In the context relevant here the Applicants have always con
ceived, and conceive now, that the dispute between the Parties
relevant hereto is constituted by their third and fourth submissions,
namely that the practice of apartheid in South West Africa is a
breach of the obligations contained in Article 2, paragraph 2,of the
Mandate and of Article 22 of the Covenant of the League of Nations."
(Supra, p. 185.)
Then the Applicants proceed to explain that they have a theory which
leads to this ipso factoresult on the basis of their norm and/or standards.
But then they say:
"This mode of contention, however, is extrinsic to the dispute.
Thus the Court might reject the Applicants' contention on this
subject and yet adjudge the dispute in Applicants' favour on the
basis of the Court's own rationale as to why the policy and practice
of apartheid is a violation of the Mandate. That dispute is the
dispute in issue." (Ibid.)
Mr. President, if the Applicants abide by the defmition they them
selves gave of the concept of apartheid for the purposes of their amended
submissions and which they so obviously intended to incorporate in
those amended submissions, then I have no difficulty with this.
Then it could well be said, on the basis of the principles we discussed
yesterday, that here we have the existence of a corpus, a body of laws,
regulations, methods, policies and practices the existence whereof is
undisputed. They have the effcct of differential allotment, of distin
guishing between inhabitants on the basis of membership in a race,
class or group. That is the aspect upon whièh reliance is placed by the
Applicants-the factual aspect-and the Applicants say that from that
a conclusion is to be drawn, a legal conclusion of a perse violation of the
Mandate. The Applicants' rationale for that conclusion, its legal argu
ment in support of the conclusion, is based on the existence of this norrn
and/or the standards.
It would be competent for the Court, as a matter of theory, to say:
we do not agree with that legal contention as to norm or standards; that
contention is entirely unsound. But we find that for some other legal
reason the mere existence of those laws in this particular context com
plained of by the Applicants does lead to a violation of Article 2, because
of the construction or interpretation which the Court places upon Arti
cle z as a matter of law.
That would be possible in a theoretical sense, Mr. President. I can, for
the life of me, see no practical basis upon which the Court could say that
as a matter of law. That would, however, be perfectly permissible. But,
Mr. President, if my learned friend suggests by the cited statement that
the Court could adopt its own factual conception of what apartheid is,
and should not regard itself as being limited by what the Applicants have
advanced, and deliberately advanced, as being a Iimited conception of REPLIES TO QUESTIONS PUT BY THE COURT 225
what apartheid is as a matter of fact, then I submit that the Applicants
are contending for something which is entirely impossible-entirely in
conflict with all principles of law and of logic and of natural justice
pertaining to the law and the practice of procedure.
The Applicants would appear to suggest this: they say there is one
dispute about apartheid and there are various theories of the case. One
is the Respondent's thcory of an abuse of power as being the only pos
sible basis for finding a violation of Article z.ey say they do not make
a case of abuse of power Next, they say there is the Applicants' theory,
such theory being based, and exclusively and solely based, upon the
per se aspect~upon the norm and the standards, and whatever effect
that may have in law-and they say that is the case on which they rely.
But then, they suggest that the Court may have a theory of its own, and,
on the basis of its theory, it may corne toits own conclusions, on its own
rationale. Now, I submit that, in this last respect, a distinction is to be
drawn-the distinction between a theory of its own, the legal conclusions
to be drawn from the limited ambit of facts relied upon by the Appli
cants, and the alternative of going outside that ambit of fact.
Mr. President, if the Court could go outside the ambit of fact, how
would I know, how would the Respondent know, to what length the
Court could go, or what exactly this case is which the Rcspondent has to
meet? My learned friend suggested. if I understood him correctly, not
merely that the Courtis hcre-possibly that may have been the effect of
his suggestion-to decide a dispute between parties, but that a special
significance is tobe assigned to the fact that the Court is said to be the
final bulwark of protection in the mandate system. The suggestion
would seem to be that there is special signifi.cance to be attached to that
role of the Court-that the Court is to be seen as a kind of an upper
guardian-and that therefore the Court could call the Mandatory to
task, and ask the l\Iandatory to account toit independently of whatever
case or dispute might be brought before the Court in respect thereof by
an opposite litigant. If that is what the Applicants intend to say to the
Court, Mr. President, I submit that quite obviously that is again without
foundation.
The case arises under Article 7 of the Mandate, paragraph r, which
speaks of a dispute betwcen the Mandatory and another Member of the
League of Nations. It cornes before the Court under the general concept
of Article 38, paragraph r, of the Statu te, which speaks of the Court's
function as being one of decitling, in accordance with international law,
such disputes as may be submitted to it by the parties. That is the sole
role of the Court, with respect, in a matter of this kind.
How could a litigant possibly know what the Court has in mind in a
civil case, unlessthe Court were to put itself in the position as if it were
the Applicants bringing the case-as if the Court were the dominus
/itis-and then assume to itsclf the fonction of formulating a submission
which the Applicants have not formulated, and of saying that there is
intended to be read into that submission something which the Applicants
do not intend to be read therein-which they have said repeatedly they
do not intend to be read therein. How docs the Court formulate that,
and ifthe Court does not formulate that, how does a Respondent liti
gant~how does that Respondent know-what case the Court might
possibly have in mind which it may have to meet? If that wcre the true
position, !\fr. President, thcn my learned friend can never raise any SOUTH WEST AFRICA
objection whatsoever on the basis of relevance because on what basis is
he going to raise it? Is he going to raise it on his theory of what is relevant
and what is not relevant, or is he going to base it on the theory of the
Court, and if he bases it on the theory of the Court, how does he know
what the limits can be of that theory of the Court?
I submit it is only in this limited sense of applying an alternative legal
construction on the basis of the limited facts, relied upon by the Appli
cants, that the Court has the freedom suggested by my learned friend.
And even in regard to the exercise of such a freedom, the general principle
would appear to be that considerations of fairness and of equity and of
doing proper justice between parties would require that if the Court or
any Member of the Court may have a prima jacie Iegal view different
from that contendcd for by either of the parties, that should be put to
the parties in order to be dealt with by them in legal argument. I could
refer the Court to the Nottebohm case, I.C.J. Reports I955, at pages 30
and 31. Learned Judge Klaestad dealt in a dissenting opinion with a
certain solution discussed by the Court-a certain solution of the matter
under consideration-and he said this, that this solution-
". . . was never invoked by the Government of Guatemala, nor
discussed by the Government of Liechtenstein. It does not conform
with the argument and evidence which the Parties have submitted
to the Court, and the Government of Liechtenstein has had no
occasion to define its attitude and to prove its eventual contentions
with regard to this solution, whereby its daim is now dismissed.
In such circumstances, it is difficult to discuss the merits of such a
solution except on a theoretical basis; but I shall mention some facts
which show how necessary it would have been, in the interest of a
proper administration o1 justice, to afford to the Parties an oppor
tunity to argue this point before it is decided."
I am of course, Mr. President, not concerned with the correctness or
otherwise of the application of these considerations to the facts of that
particular case or the situation which arase there; I am concerned with
the considerations themselves which are so clearly stated by the learned
Judge.
Then Judge Read in the same case, also in a dissenting opinion,
referred to the same principles, at pages 38 and 39. He stated:
"Accordingly, the matter is governed by the principle which was
applied by this Court in the Ambatielos case (Jurisdiction}, Judg
ment of July rst, r952, 1.CJ, Reports J952, at page 45;"
[I quote from that case:]
"The point raised here has not yet been fully argued by the
Parties, and cannot, therefore, be decided at this stage."
Then proceeding, Judge Read stated:
"lndirectly, some aspects were discussed as elements of abuse of
right, but not as a rule of international law limiting the power of a
sovereign State to exercise the right of diplomatie protection in
respect of one of its naturalized citizens.
As a Judge of this Court, I am bound to apply the principle of
international law, thus declared by this Court. I cannot concur in
the adoption of this ground-not included in the Conclusions and
not argued by either Party-as the basis for the allowance of the REPLIES TO QUESTIONS PUT BY THE COURT 227
plea in bar, and for the prevention of its discussion, consideration
and disposition on the merits."
I need not labour that further, Mr. President.
I wish to concJude by saying that in the light of this situation it is our.
intention to continue with a presentation of evidence on the same basis
as we understood the situation before. We do not understand that there
is any case being made against us, outside of the ambit of the case
explained rn repeatedly by my learned friend to this Court, and which
seems to be clearly incorporated in the submissions now before the Court.
I have said repeatedly that we are prepared to meet any case that may
be presented against us, provided that it is presented fairly-that is
through the front door, not through a back door-so that we know what
that case is, and that we are given timeous notice in order to adapt
ourselves to that case.
My learned friend had his choice, and he exercised it with deliberation,
at the stage before it came to the amendment of these submissions. He
then gave notice to us of this limited scope of his case. On the basis of
that notice we have made arrangements totally different from what they
were initially. We are calling our evidence now on this very much more
limited basis of presentation of the case-very much more limited than
it was before. We made new arrangements in regard to witnesses, dis
posing of some whom we had in mind and not negotiating any further
with others whom we had in mind to call in regard to the issue as we
initially understood it to be presented. We have limited ourselves in
these various respects; we have added certain other witnesses, in order
to meet this case and the sole case which the Applicants said they were
making against us.
Mr. President, there must. in circumstances of that kind, surely be a
limit to the extent to which a party can chop and change and then
indicate a new attitude to the Court. There must corne a time when the
Court should say to a party: you have made your election and you must
abide by it, because the case has been shaped on the basis of the election
you made and you cannot now, at this late stage, alter it again.
However that may be, Mr. President, the question of what is relevant
and what is not relevant, as a matter of fact, is to be determined on the
basis of the Applicants' amended submissions, as I have construed them
to the Court, and as I subrnit is their very plain meaning and intent at
the moment. That means that what would be relevant by way of evidence
would be any factual aspects of the contention of the existence of a norm
and/or standards, and I have indicated before what factual aspects could
be relevant in that respect. I need not repeat what I have said in that
regard.
As regards the factual aspects of apartheid, the Applicants have said
to us that they rely only on a very limited aspect of it, and they ha~e
defined that aspect, that it is an undisputed aspect, and therefore, m
that respect itself no further evidence would appear to be called for.
It is true, Mr. President, that by presenting our evidence and the
facts that are already on record, it is possible to demonstrate beyond any
possibility of doubt that it would not have been possible for the Appli
cants to succeed on any of the alternative cases which they could pos
sibly have made on the basis of purposes or on the basis of effect~. And
we shall, for good measure, in due course when we corne to deal with the
matter in argument, demonstrate that to the Court by way of illustration.228 SOUTHWEST AFRIC.-\
It so happens also that some aspects of the evidence, which we shall
present to the Court on the factual aspects pertaining to the Applicants'
contention as to a norm and as to standards, will aise serve as an iUus
tration why it would have been quite impossible for the Applicants to
succeed on the basis of a case of purposes or effects.
That happens to be so, but that is not the purpose for which the
evidence is being called. If I had to meet-if I were given due notification
that I would have to meet-a wider case on fact, a case relating either
to the purposes or to the effects of the policies referred to, or any factual
aspects other than the per seone apparently relied upon by the Appli
cants, then, of course, I would have to reconsider the whole position and
widen the ambit of the evidence to be presented to the Court. Then it
would be possible to bring evidence upon a much wider basis, but that is
not necessary. The Applicants, at the time when it mattered. when they
wanted to limit the evidence and to rule out the inspection proposal,
when they were explaining their amended submission to the Court, took
up the manful attitude: here is my case, in law and in fact, and if I
cannot succeed on that case, then my Submissions Nos. 3 and 4 must fail.
Now in circumstances where the legal basis of that case has been shot to
pieces, they corne forward and they would appear to suggest to the
Court, like a child, that the Court must now protect thcm and that the
Court must try to make a case for them wherc thcir own case bas failed;
that the Court must do so, on the basis of what they have specifically
said, is not part and parccl of their case. My submission is that, for
obvious reasons, that is not permissible. I thank you. Mr. President.
Mr. GROSS:Mr. President, may I then request respectfully opportunity
to prepare comment? It would appear to me that the arguments just
completed either raise very fondamental issues which necessarily go to
the positions of the Parties, the requirements of fairness, and the power
of the Court, and it would appear to the Applicants, Mr. President,
that rather than attempt to address themselves at this moment to a
studied reply, the Applicants would like, with your permission, to take
not more than five minutes to indicate the basic problems which they
understand to be presented by the arguments just concluded, and to
request an opportunity tomorrow to complete their comments. on the
assumption that this is fundamental, without cxceeding perhaps half
an hour at the outside.
The PRESIDENT:Well, Mr. Gross, the Courtis anxious at all times to
meet the convenience of the Parties. It is somewhat difficult to under
stand why it is necessary to require an adjournment for the purpose of
responding to the address made by the Rcspondent's counsel. I had
understood that it was only for about five or ten minutes that you desired
to address the Court; now you want to address the Court for fiye to ten
minutes, and have then an adjournment until tomorrow.
Mr. GROSS: Mr. President, I had thought, with respect, that if the
Court pleased the Respondent might continue with testimony, but on
the other band, if that is inconvenient, I should do my best under the
circumstances to present the comments on behalf of the Applicants now
in as brief a compass às possible.
The PRESIDENT:Permission is granted.
Mr. GROSS:To do so now, Sir?
The PRESIDENT:Yes.
Mr. GROSS:Mr. President and honourable i\fembers of the Court, as REPLIES TO QUESTIO:-!S PUT BY THE COURT 229
has just becn stated by the Applicants, it has been their effort to deal
succinctly with the questions propounded by the honourable Court and
not to re-argue the case. It does seem, with respect, that there is a
triangular problem involved at this point which is characteristic of all
litigation and which, as I have just briefly attempted to summarize it,
involves the related aspects of the actual contentions of the Parties,
which of course involve a question of appreciation of the statemcnts
made, of phrases used and of the context in which they were used.
Many of the references made by the Respondent's counscl to expressions
and formulations of language used, for example, in the context of the
inspection proposai, at a time prior to the formulation and submission
of legal arguments, may very well create an impression unwittingly
which does not correspond to the more studied and carefully claborated
subsequent presentation with respect to the legal aspects made in the
argument properly so called.
The contentions of the Parties are, of course, obvious from the record.
The question with which we are dealing here, in rcsponse to the questions
propounded by the honourable Court, involve additionally related
aspects, the first and foremost of which is the power and the duty of the
Court. That power and duty of the Court (as we have attempted to
explain) according to our view, is fixed, of course, by the Statute of the
Court, and by the Mandate, and is always of course subject to the require
ments of fairness and justice in judicial administration.
It had been anticipated, in the very succinct response to which the
Applicants had confmed themselves as an exercise of self-discipline, tha.t
cries of"prejudice" or implications of unfairness wottld be forthcoming
this has becn the pattern from the Rejoinder on. This presents a serious
problem in terms of the desire of the Applicants to co-operate both with
the Court and with the Respondent in assuring in every possible way
that requin!ments of fairness and justice shall be strictly honoured; this
is a factor ttpon which we would insist. It has been our intention and
hope thatevidencein the form oftestimony might be limited. This case has
proceeded for a very long time, and the evidence is very replete in an
unusually voluminous written record. In the history of this Court evidence
bas generally been submitted in such form, and when we hear about
implications of prejudice, or naturaJ justice, or unfairness, or opportunity
to lead a case, and we hear references to canvassing of the facts, are we
to ignore that the facts have been canvassed in II volumes of written
pleadings, on the broadest possible basis and theory of any construction
of the Applicants' case, which indeed the Applicants have complained is
too broad a construction and under which, in many, many pages of
evidencc, the Rcspondent has canvassed facts, canvassed arguments, and
addressed itself to contentions bevond the ambit of those which the
Applicants insisted they have been 'inaking? \Ve have listened with great
interest and concentration to the lengthy re-arguments of the Applicants'
case to which we have just been exposed. As the Applicants stand before
this Court now, they are unable to discern from these three hours or
more of re-argument what Respondent's answers to the Court's questions
are. The Court has the power under the Statu te to conduct such inquiries,
make such investigations of fact, as it decms appropriate and relevant.
The Applicants never for one moment have presumed to say that the
Court lacks the power to take evidence, or consider or weigh evidence,
which the Court may consider neccssary or appropriate to a proper legal230 SOUTH WEST AFRICA
construction of the Mandate or to the adequacy of the relief sought, or
to its propriety. We have naturally proferred our co-operation in fur
nishing any information or evidence in response to questions or directions
with respect to enquiries or otherwise which the Court might see fit
to pursue within the meaning and pursuant to the authority of the Rules
and the Statute of the Court. It is our hope (and has been and remains)
that the evidence canvassed in the many volumes of the written record
need not be, and should not be, cumulative and repeated under the
guise of canvassing new facts. If expert opinion additional to that argued
and set forth in the written pleadings is necessary, that will be put before
the Court subject to the Court's view on the matter.
One of the fondamental questions which has caused most difflculty
to the Applicants, in ail candour, is Respondent's apparent confusion
between fact and law. This is, of course, no implication with respect to
the very distinguished and learned leader of Respondent's delegation,
but when one hears phrases like "what is relevant or not relevant as a
matter of jact''then it is diflicult to understand what the requirements of
justice are. I would have thought that relevance or irrelevance is a
question of law, and this Court must of course determine and set the
bounds upon what evidence will be admitted, because either Party or
both could make the most unreasonable contentions with respect to the
evidence which either side considered essential to a presentation of its
case, including a trip tothe rnoon. A rule of reason must be applied.
Now the Applicants have relied upon a contention which they have
adhered to consistently and reaffirm, which is based fundamentally upon
a concrete statement of fact; we have attempted, for the sake of clarity
and for the sake of administrative justice and expediency, and comple
tion of these protracted hearings, to eliminate or minimize issues of fact.
At first we were met with contentions which confused us, because they
seemed to regard inferences of law or legal conclusions as "factual"
questions, so we attempted to eliminate that blur by the formula of the
undisputed "laws and regulations, and the measures and the methods of
implementation which are conceded to exist", and which are largely cited
to the pleadings of the Respondent itself. This is a concrete body or
corpus of fact. These are the facts upon which we rely. The Respondent
may feel it necessary to rely upon additional facts, not merely cumula
tively stated or repeated (as we have been exposed to in this Court
recently, when 90 percent. of the witnesses' testimony was repetitive of
what was in the written pleadings).
However, with the Court's permission, and with all submission and
deference, if there is any question concerning the intent of the Appli
cants to establish for the convenience of the Court and for purposes of
justice a body of undisputed fact upon which legal conclusions may be
drawn, we should respectfully like to be advised, if this is an appropriate
intimation or suggesbon, how the rnatter could be further clarified. We
wish ta state a concrete body of facts which we rely upon, and which
we urge the Court to apply to the legal theory of our case; and with
respect to the legal theory of our case, we are confused also by the
references to-and I think I quote accurately-"the factual existence of
standards"; this was a phrase used by my learned friend-if I under
stood it correctly, I noted it at the time-"the factual existence of
standards". It is a phrase which I cannot comment upon because I do
not understand it. "Standards"; does negligence factually exist as a REPLIES TO QUESTIOXS PUT BY THE COURT 231
standard? lt would seem to the Applicants, therefore, that there is,
consciously or unconsciously, a distortion of the Applicants' case which
involves among other things a confusion between factual allegations,
properly so called, and legal conclusions to be drawn from them. That
whether or not a standard of non-discrimination exists is beyond dispute
-one looks at Article 1,paragraph 3, of the Charter, and there it says,
in so rnany words, that the Members shall not distinguish on the basis
of race; that is a standard. How does one provc or disprove the existence
of such a standard? The question, of course, is its application; its
defi.nition by some responsible body, as in the case of any standard
which must be interpreted, and its application to a specific, concrete
set of facts.
Now it would seem that the evidence which the Respondent proffers
is directed to the establishment of a factual question as to whether a
standard exists-this would seem to be the basis of the testimony which
the Applicants find an utterly confusing and incornprehensible foundation
for testimony. It would of course be open to the Respondent, without
question, to introduce evidence, expert or otherwise, with respect to the
existence of State practice, let us say in connection with the demon
stration that the legal norm is not to be found by the Court to exist as
a rnatter of law in terms of Article 38 (1) (b) of the Statute. That would
seem to be essentially a legal argument-if there are factual predicates
in tcrms of practice of States, it would seem that they might be presented
by competent experts or witnesses; but we are talking here in a context
of the interpretation of a mandate on the basis of agreed facts, or facts
which the Applicants rely upon and find undisputed in the record and
draw from the Respondent's own pleading. The interprctation of a
mandate to those facts in the light of objective criteria, we perceive in
the form of standards which have been interpreted and applied to this
particular set of facts by a competent supervisory orga.n, and this is
the case. And of course, if the submissions-and I would conclude with
these impromptu and I fear discursive and inadequate remarks-it would
appear that the fundamental issue raised by the questions propounded
by the Court centres on the submissions, the legal character of the
submissions (the extent to which the Court is free, on the one hand, or
bound, on the other, to stay within the ambit of submissions properly
understood); if so, then of course the question of the interpretation of
the submissions becomes a fondamental question-that is perfectly
obvious.
We have contended that the jurisprudence of the Court demonstrates
that submissions are the formulation of the dispute, and that arguments,
contentions, and references to facts made in submissions have frequently
been ignored by the Court as not within the bounds, ambit, setting,
fonction and characteristic of a submission.
When the Applicants rested their case because they had concluded
their legal arguments, and presented a summary of those facts upon
which they rely, with respect to the establishment of their legal theory,
they reserved the right to amend their subrnissions: a right which
inheres in the Statute and Rules, and which was recognized by the
honourable President, who was gracious enough to refer to it in a
subsequent statement of procedure.
The final subroissions of the Applicants may or rnay not, have yet
been made. As I stand here today I do not know whether they will be232 SOUTH WEST AFRICA
amended. The fondamental question is not the arnendment of the
submissions; this was made clear in dramatic form in 1962-I referred
to that yesterday-after the Applicants had concluded their case and
when a basic amendment was made at the last minute in the submissions,
perfectly within the rights of the Respondent. The fundamental question
is the one that has been stressed in cases cited from the House of Lords
and that is, whether thcrc has bcen a fair opportunity ta understand
and meet the case; this case, as the words very aptly used by the
Respondent's counsel yesterday to the best of my recollection, was one
that involves an allegation, a concrete factual averment, and this we
have tried to do as one of the indispensable ingredients of a fair hearing,
natural justice in due process.
If the Respondent deems it necessary or desirable, notwithstanding
the legal theory upon which the Applicants have rested, within the
ambit of the undisputed facts upon which we have relied (if there are
any questions about what they are, we have repeatedly offered to clarify
that)-if the Respondent feels that additional testimony is necessary
on any other basis, it would seem that they are free to produce it so far
as the Applicants are concerned. \Ve would regard it as irrelevant, on
the basis of our theory; that does not govern the Court nor does it
govern the Respondent.
Finally,:\Ir. President, I would stress again that it is difficult to conceive
of a situation-and I am talking now about the requirements of fairness
and natural justice-in which there has been more notice of charges
brought or complaints made, where the breadth of the original complaint
has been responded to by the Respondent. It now daims that it must be
given the opportunity, as it says, to canvass facts in the form of testi
mony, which is cumulative at best, or which is expert, and to which the
Applicants abject only if the foundation is improperly laid (as it has
been, in our respectful submission).
There is, in one final sentence, only this to be said: the Applicants
have been, and remain, of the view that the policies and practices of
which they complain, violate the i\landatc. Such policies and practices
do so inhercntly because by their quality and character they are incom
patible with the welfare of the inhabitants. When we have talked about
value judgments, it has been in the context of the fact that the value
judgments have bcen made by the international bodies responsible for
interpreting standards-supervisory responsibility-for interpreting stan
dards of non-discrimination, with respect to this extreme form of dis
crimination, and that the Court should give authoritative weight
to those judgmcnts within the circumstances and scheme of this Man
date.
\Vhen the Respondent insists that the Applicants have not, or do not
now, contcnd tha t apartheid has bad effects upon the Territorv, that,
with all deference, may unwittingly be a play on words. Wh.en the
Applicants contend, as they have and do, that apartheid as a policy and
practice is so inhcrently incompatible with human wclfare and moral
progress, that the Court need not take further evidence, then it would
seem tome that it is simply unintelligible to take words and phrases out
of the pleadings, and say that the Applicants no longer consider or
contend that this Court should find and declare and adjudge that
apartheid docs not benefit the inhabitants of the Territory. \Vhen the
contention is that this Court shou]d find that the policy and practices REPLIES TO QUESTIO~S PUT BY THE COURT 233
are so inherently inconsistent with moral welfare and social progress.
that weighing and balancing material benefi.ts is irrelevant, and that
purpose is irrelevant and that there is no way by an application of
weights and measures to determine whether an individual's moral welfare
has been impaired or thwarted by disabilities placed upon him, on the
basis of race, how is the Court to examine that question: on the basis of
inspection or on the basis of testimony? It is a qualitative factor, and it
is only in this sense, that the Applicants have respectfully contended,
and continue to submit, that the effect of this policy, these practices,
upon moral welfare, is inherently injurious, and that it is impermissible
under this Mandate, and if there is any evidence, expert or otherwise,
which the Respondent sees fit to produce, with the Court's permission,
that would shed light upon the effect, upon moral progress, moral
welfare and social progress, policies and practices of raciaJ discrimination,
then of course, it is not only permissible, but would be listened to with
the greatest interest by the Applicants, subject to the right reserved
to comment on all testimony given.
With apologies for the length of this impromptu observation, I think
that I might conclude by repeating that the Applicants do not under
stand whether the Respondent has really answered the Court's question.
The ambit of the dispute which the Applicants feel is before the Court in
the formulation of the submission, is whether or not apartheid, the
undisputed body of fact, is a practice and a policy within the prescription
of the Mandate-as a matter of interpretation of the Mandate; if the
Court should deem it an element of the submission that some Iegal
theory is within the ambit of the submission in the sense of the juris
prudence of this Court, the Applicants would request leave to amend
this submission, to remove any such ambiguity, if such indeed exists,
\Ve do not think it exists. \Ve think that the arguments made, the legal
theories advanced, and the contentions made in support of our inter
pretation of the Mandate, do not deprive the Respondent of a fair
opportunity to meet factual allegations, that it has indeed taken full
advantage of that opportunity on the broadest possible construction of
the Applicants' pleadings and that it is in no way prejudiced by with
holding, ifit desires to or deems it necessary to withhold, any evidence
it feels necessary or relevant to the question of whether or not this policy
and this practice have a deleterious and a thwarting effect upon moral
progress, moral well-being and social progress. Thank you.
Mr. DE VILLIERS: Mr. President, I should like to deal very briefly with
some of the points made by my learned friend. He suggested that we are
ignoring the fact that the facts have been very fully canvassed on the
pleadings. We are not ignoring that, Mr. President; we take that into
account, but we insist, with the greatest respect and submission, that we
have a right, under the rules and procedure of this Court, to present oral
evidence to the Court and we regard that as being very desirable-the
oral evidence and the inspection-for the reasons which I dealt with in
full before, when I indicated that there are special circumstances why we
consider that merely dealing with these matters in the written record
could not sufficiently do justice to our case-! explained those before
that is, of course, if a case is presented to us on fact, on the factual
aspects ofthe policies in regard to their purposes or their results. And
that is why we suggested that in spite of the full canvassing of facts on
the pleadings, a certain portion of what we considered to be an absolu te234 SOUTH WEST AFRICA
necessary canvassing, is not yet before the Court and that can only corne
through evidence.
Now, my learned friend has said, in the same respect, that he doesnot
yet know our answer to the Court's questions. I thought that I had
answered them ail. I answered r and 2 explicitly and 3 I answered by
general reference to the distinction that has been drawn by us, and I
came back to that at the end of my address. I did not address myself
again specifically to the wording of question 3 and perhaps that was an
omission, which I should like to rectify.
The question reads: "In particular, do the Parties contend that it is
not open to the Court to interpret paragraph 2,subparagraph 2 thereof,
in a manner by which it would examine and evaluate all relevant tacts,
circumstances and conditions appertaining to the Territory, as they
appear before it on the final record in the case, in order to determine
whether the Respondent has discharged its obligations under that arti
cle and adjudge between the Parties accordingly?"
Now, Mr. President, as my learned friend has correctly said, relevance
is a question of law but the question does arise-te what must something
be relevant? One of the first lessons one has to learn in the law of evidence
is that there are two basic conceptions: facts in issue and facts relevant
to the issue.
Now one must know what the issue is fust, before the Court can
determine the question of law as to what is relevant to the issue and that
is the important thing, in the formulation of this question also. The
question immediately arises, when the question speaks of "ail relevant
facts", relevant to what? My submission is that that could only relate
to facts relevant to the issue as presented to the Court in the submissions
and particularly the ambit of the tactual propositions contained therein.
Otherwise it would be impossible to know what it is that the Court will
have regard to eventually, if the Court is to have regard to all the
relevant tacts as they appear before it on the final record of the case.
Mr. President, we are still buildingthat final record and we must know
for what purpose, or towards what eventual result, we are building the
record. If we know that the Court wishes to follow a certain line of
enquiry and that that is the purpose towards which we ought to build
the record, then we shall do that; but if we do not know that then we
cannot build the record in that respect. That is why it is so important
that we are to know, at the stage when we begin to present our evidence
to the Court, what exactly the factual allegation made by the Applicants
is which we have to meet.
That is why my answer to this question is specifically that the Court
could certainly have regard to al! relevant tacts, but then only within
the ambit of the issue that has been presented to the Court by the sub
missions of the Parties, and those would have to be the operative sub
missions, not the original ones.
Let me corne back to the example which I used before. A party making
a case on, say, a delibcrate misrepresentation, claiming damages; halfway
through-after he has led some evidence indicating prima facie that
there may have been a fraudulent, or a deliberate element in the mis
representation-alters his case and says: "now I no longer make that
allegation; I now rely purely on the legal proposition that even a negli
gent misrepresentation makes the defendant liable in damages". Now
there is that evidence on the record, but the defendant is advised that it REPLIES TO QUESTIONS PUT BY THE COURT 235
need no longer meet that case; it therefore does not direct any evidence
to that issue. Then the court cannot, in the end, corne and say: "on the
evidence which is before me on the final record I still find that a fraudu-
lent misrepresentation has been established." .
That is the distinction, Mr. President, and the application here, I
submit, will be an obvious one.
On the question of the purpose for which we are leading evidence, my
leamed friend made some play of the words "the factual existence of
standards''.
Now, Mr. President, of course, we understood his contention to rely
both on a norm and on standards, and when we speak of the factual
existence of a norm or of standards we speak, of course, of the question
whether they are in fact applied in practice. That is the intention which
this shorthand expression is intended to convey.
There is, in regard to standards and in regard to the norm, this other
factual aspect also towards which we are directing our evidence, and
that is the proposition that in circumstances pertaining in certain parts
of the world, including South West Africa, the application of such a
norm or standards would injure well-being and progress and not promote
it.That is also a question of fact-1 submit, a relevant question of fact
on the case as proposed by the Applicants within the context of their
norm and their standards.
Then my learned friend has said that the wording of the dispute as
determined in the submissions is determinative, and that argumentation
or statements made in the submissions which are regarded as super
fluous, are sometimes ignored. I perfectly agree, Mr. President, that
those are sometimes ignored, but only in so far as they are superfluous
towards the definition of what is in issue as a question of fact, and what
is proffered as a case in fact, which has to be met. Those are the circum
stances under which they could be ignored, but when they are essential
towards determining what the ambit is of the factual propositions made
then, surely, they cannot be ignored.
My learned friend has said that his final submission has not yet been
made and he does not yet know at this stage what that final submission
may be. That may well be so, Mr. President. He referred to the fact of
our 1962 amendment of our submissions at a very late stage. He leaves
out of account that that amendment was made on a question of law
which was argued, and full opportunity was given to the other side to
argue that question of law after we had made the amendment. There
could be no prejudice; there was no question of marshalling evidence or
preparing evidence in order to meet what was being laid in the amended
submission. It is a different question when amendments are made on
vital allegations of fact, which could change the whole complex of what
case should be presented to the Court by the presentation of evidence;
then the stage at which that amendment is sought to be made could be
of vital importance.
Finally, my learned friend has said that he has invited us to ask for
clarificationof certain aspects of his case, and he says we can still do so.
He can clarify aspects of his case in so far as we may not understand that
case. But, Mr. President, what are we faced with in the present situation?
We are not faced with a question of clarification within the ambit which
he has indicated for his case in his amended submissions; we are faced
with the position of an obvious desire now, on the part of the Applicants,236 SOUTH WEST AFRICA
to extend the ambit again of their submissions or to give an extended
interpretation to their submissions, at a stage whcn it may be pre
judicial tous. Are we now to ask for a clarification of statements in whlch
this extended, so-called interpretation is given which really amounts to
an extension of the ambit of the definitions? I submit. no. Ifmy learned
friencl wants to rely on something wider, as a factual proposition, than
he made so clcar to the Court before, then it is up to him to decide what
appropriate steps hc ought to take in order to bring that into the case
again. He will have to decide to make the necessary formal application
to the Court. \Ve shall have to determine our attitude to such an appli
cation, and the Court will have to decide whether it is an appropriate one
to be granted at this stage of the proceedings.
There is only one more aspect on which we must, with submission,
obtain clarity. My learned friend says that when we sar to the Court
that the Applicants do not contend that the policy o apartheid, or
separate development, or differentiation, or call it what you will,has bad
effects, then we are creating a wrong impression.
Mr. President, I thought that I indicated the distinctions so clearly
and the Applicants have made it so clear to us in repeated passages,
some of which I have cited to the Court. They say they believe it is the
theory of their case-it is their pre-supposition-that the effect must be
a bad one, but at the same time they make it absolutely clear that they
are not submitting the determination of that question of fact to the
Court, and they are giving us notice that we need not meet that as a
proposition of fact which is being presented to the Court. That is made
so clear in thesc various passages. They say that the pre-determination
has been made, the value judgment has been made, and the Court is
obliged to apply it, and therefore they do not present a case on fact
which this Court would be competent to enquire into and which we could
meet as a proposition of fact. That is the distinction which they have
made so clear on the record, and they have not distinguished (I have
looked at the record very clearly) in this respect between the so-called
qualitative aspects of moral well-being and social progress, on the one
band, and the so-called quantitative aspects of material well-being, on
the other.
They did atone stage say that the effect of their contention is to draw
a distinction between these two, but they never said that they are making
a case on fact to the effect that this Courtis asked to find, as a fact, that
moral well-being and social progress are being detrimentally affected.
That they never said. They made it clear that they in no respect made
such an allegation of fact, and that when they say their case is that the
mea.,;ures concerned are inherently incapable of promoting well-being
and progress, they make that as a legal submission to the Court on the
basis of the alleged normand alleged binding standards. So that is quite
clearly the case which they have made thus far, and in these circum
stances I do not understand thls invitation to us, now extended by my
leamed friend, to bring whatever evidence we like on this question of the
effect in fact of the laws and policies and measures in respect of moral
well-being and social progress. In answer we say we can bring that
evidence, but what are we to direct that evidence to when the Applicants
made it clear to the Court that they rest their case on a submission that
the result is aperse one-that it is an inherent and an illegal one. Until
they have altered that proposition, then any informal invitations they REPLIES TO QUESTIONS PUT BY THE COURT 237
may extencl to us in that respect have no bearing 'andîr10significance
whatsoever, especially not when they corne at this Jate stage of the
proceedings when they have not attempted to regularize the position
in that respect.
Ithank you, Mr. President.238
24. HEARING OF THE WITNESSES AND EXPERTS (continued)
AT THEPUBLICHEARINGS OF l JULY-21 OCTOBER 1965
The PRESIDENT:Mr. de Villiers, could you indicate to the Court
you had intended to call witnesses this momin~. Is there any purpose in
commencing the calling of the witnesses at th1s stage-twenty minutes
to one?
ML DE VILLIERS:It is for you to decide, Mr. President. My leamed
friend, Mr. Muller, is ready to commence the presentation of the evidence
of Professor Bruwer. Possibly we could qualify the witness, or the Court
could leave it until tomorrow, as it might suit the convenience of the
Court. -
The PRESIDENT:The Court will proceed.
Mr. MULLER:May it please the Court, Mr. President, my learned
colleague, Mr. de Villiers,has indicated that the next witness will be
Professor Bruwer. His evidence will relate to the issues raised under
Applicants' Submissions Nos. 3 and 4. The particular points to which
his evidence will be directed will be following: the differences between
the varions population groups of South \Vest Africa, the consciousness
of a separate identity amongst the different groups, their wishes to
maintain their separate identity, and what, in the opinion of the witness,
will be the effectif ail measures of differentiation on the basis of rnember
ship in a population group were to be done away with in South West
Africa.
May Iexplain, before the witness is introduced, that Professor Bruwer
is Afrikaans-speaking? He does speak English, but he is not so pro
ficient inhat language as in Afrikaans. He would have prcferred to give
his testimony in Afrikaans, but we have certain practical difficulties
with regard to interpretation.He has consequently decided and agreed
to give his evidence in English.
May I introduce the witness, Mr. President.
The PRESIDENT:Do so.
Mr. MULLER:May Iask that the witness be called upon to make both
the declarations provided for in the Rules of Court, as witness and
expert.
The PRESIDENT:The witness will make declarations both as a witness
and as an expert.
Mr. BRUWER; In my capacity as a witness Isolemnly declare, upon my
honour and conscience, that I will speak the truth, the whole truth and
nothing but the truth.
In rny capacity as an expert I solemnly declare, upon my honour and
conscience, that my statement will be in accordance with mv sincere
belief. ·
Mr. MULLER:Professor Bruwer, your full names are Johannes Petrus
van Schalkwyk Bruwer, is that correct?
Mr. BRUWER:That is correct, Mr. President.
Mr. MULLER:You were bom in the year 1914, is that so?
Mr. BRUWER:That is correct, Mr. President. WITNESSES AND EXPERTS 239
Mr. MULLER:Did you qualify as a teacher and a missionary?
Mr. BRUWER: Mr. President, that is substantially correct. I was
qualified as a teacherwith a view to serving in one or other mission field.
Mr. MULLER:Did you follow the calling of a missionary for any period?
Mr. BRUWER: Mr. President, I served as an educationalist in the
mission field in Northern Rhodesia for 16 years.
Mr. MULLER:Did you subsequently obtain the following academic
qualifications: I shallead them and you can state whether 1 am correct:
Bachelor of Arts of the University of South Africa?
Mr. BRUWER:That is correct, Mr. President.
Mr. MULLER:Master of Arts of the University of Pretoria?
Mr. BRUWER:That is also correct, Mr. President.
Mr. MULLER:And a Doctor of Philosophy of the University of Pre-
toria? · ·
Mr. BRUWER:That is also correct, Mr. President.
Mr. MULLER:Will you kindly explain to the Court what your special
field oftudv is?
Mr. BRU\~lER:Mr. President, while I was working as a missionary
I found it very necessary to be able to know more about the people
amongst whom I was working at the time, and for that reason I chose
as my special interest of study social anthropology and linguistics,
meaning mainly African languages.
Mr. MULLER:Was that also your field of study for the dcgree of Doctor
of Philosophy?
Mr. BRUWER:Yes, Mr. President, actually for the B.A. degree I ma
jored in social anthropology and linguistics; I also have an M.A. degree
in both social anthropology and Bantu languages, and, as far as the doc
tor's degree i,sconcerned, I concentrated mainly on social anthropology.
Mr. MULLER:What is your present occupation, Professor Bruwer?
Mr. BRUWER:My present occupation, Mr. President, is that I am hold
ingthe Chair of Social Anthropology at the University of Port Elizabeth.
Mr. MULLER:Did you hold positions at other universities in South Afri
ca in the past?
Mr. BRUWER:Mr. President, I was appointed senior lecturer in social
anthropology at the University of Stellenbosch in January 1951, and I
served in that capacity until December 1955, when I was promoted to the
Chair of Social Anthropology at the sarne university, that is the University
of Stellenbosch.
Mr. MULLER:Have you held positions in universities outside South
Africa?
Mr. BRUWER:Mr. President, I had a brief experience, or at least I had
the opportunîty for a short span of time, that is for six months, to be
visitingprofessorat the School of Advanced International Studies, at the
Johns Hopkins University in America.
Mr. MULLER:What period was that?
Mr. BRUWER:That was from September 1959, Mr. President, up to
February 1960.
Ilfr. MULLER:Have you been connected with any of the non-European
universities in South Africa?
Mr. BRUWER:Mr. President, I was a member of the governing coun
cil ofthe University College of Fort Rare, during 1958-1959, and then in
1959 I was appointed chairman of the goveming council of the newly
founded University College of Zululand. SOUTH WEST AFRICA
Mr. MULLER:Am I correct in saying that you have a practical know
ledge ofmost of the Bantu groups in South Africa?
Mr. BRuwER: Mr. President, I have had practical experience amongst
the Zulu people, amongst the Xhosa people, amongst the Northern Sotho
people, and amongst the Bavenda people-all members of the Bantu
speaking peoples of South Africa. My experience was mainly in the form
of field research,ut I have also served on the General Missionary Council
of the Church in South Africa for many years, and also, in that capacity,
I had practical experience in regard to the African peoples in South Africa.
Mr. MULLER:Do you speak any of their languages?
Mr. BRUWER:Mr. President, I have a good working knowledge of the
Zululand language, which is actually also understandable by the Xhosa
people.
Mr. MULLER:Are you connected with the Board of Control of Radio
Bantu in South Africa?
Mr. BRUWER:That is correct, Mr. President, I am a member of that
Board.
Mr. MULLER:Will you exp]ain to the Court what the fonctions of
tha t Board are?
Mr. BRUWER:Mr. President, the Board of Contro] in regard to Radio
Bantu was initiated mainly with an aim to build up a service-a radio
service-in regard to the Bantu-speaking peoples of South Africa.
Mr. MULLER:Have you knowledge of the Bantu people in other parts
of southern Africa outside South Africa?
Mr. BRUWER:Mr. President, indeed, yes I have. I have already told
the honourable Court that I was working as a missionary in Northern
Rhodesia for 16 years, and naturally I had experience of the Bantu
people in that territory, but I also had the opportunity to visit quite a
number of other territories in southern Africa, mainly with a view to
get acquainted with the various peoples in the territories.
Mr. MULLER:Will you mention some of the territories which you have
visited for that purpose in southern Africa?
Mr. BRUWER:Mr. President, I have actually visited most of the terri
tories from Uganda down southwards, that is, I have visüed Uganda,
Kenya, Tanganyika which is at present, of course, called Tanzania; I
have visited the Congo, Ruanda Burundi-at that time still one terri
tory-1 have visited Angola, Mozambique, also Nyasaland-the present
Malawi-naturally Northern Rhodesia; I have visited Southern Rhodesia
-that is the present Rhodesia, and then I have visited South West
Africa, of course, South Africa, and the three High Commission Terri
tories of Swaziland, Bechuanaland and Basutoland.
Mr. MULLER:You have told the Court that you were a missionary
for 16 years in Northern Rhodesia. Did you there conduct any anthro
pological field research amongst the Native people?
Mr. BRUWER: Mr. President, my main academic research, that is
research that had to deal with material that I had to prepare for aca
demic purposes and academic degrees, mainly dealt with the people of
Central Africa. I may tell the honourable Court, Mr. President, that I
have always been very much interested in the matrilineal type of society
in Africa, and I chose as my examples of study certain groups in Central
Africa; for instance, I worked amongst the Chewa people who are, or
were, also calledthe Nyanja people-the people today referred to as
the people of Malawi; I also worked amongst the Kunda people of the WITNESSES AND EXPERTS 241
present Zambia, and I worked amongst the Nsenga and also the Ngoni
-ail of thern residing in the present Zambia.
Mr. i\luLLER: Do you speak any of the languages of the people that
you have just mentioned?
Mr. BRUWER:Mr. President, I speak Chewa or Nyanja as it is more
usually called, and that language actually for r6 years for practical
purposes, but I also speak Nsenga which is, to a certain extent, related
to Nyanja. I also speak Kunda. Mr. President, the first two languages
are languages which have been reduced to writing, but the Kunda lan
guage has not been reduced to writing but is related to the Bemba
Bisa group of languages.
Mr. MULLER:Have you assisted with publications in any of the lan
guages mentioned?
Mr. BRUWER:Mr. President, yes, indeed I have. I tried to give service
in regard to the development especially of the Nyanja language, and in
that respect I aided in regard to the efforts of the then Joint Publications
Bureau of Northem Rhodesia and Nyasaland. I have also at one time
made a revision of the Nyanja dictionary that was originally composed
by Dr. Hetherwick and Dr. Scott.
Mr. MULLER:\Vere vou a member of anv board-educational board
-in Rhodesia while you were there over the period 1935 to 1950?
Mr. BRUWER: Mr. President, in my capacity at that time as the
principal of a training college for African teachers, and ultimately also
as Secretary of Education, I had the opportunity to serve on the Advi
sory Board of African Education for Northern Rhodesia, and also,
naturally, on sub-committees of that Board.
Mr. MULLER:You have told the Court that you know South West
Africa. Have you visited South West Africa? Can you tell the Court
whether you have done research work in South West Africa?
Mr. BRUWER:Mr. President, ves, indeed I have done research work
in South West Africa. As I have already told the honourable Court, I
am very interested in the matrilineal group of people in Africa, and
while I was working for my doctor's degree, working on the matrilineal
group of Central Africa, I naturally had an inclination to also visit the
people in South West-that was in 1954-and actually my research
amongst those people started in 1954, although I did major research
work only a littlebit later.
Mr. MULLER:Amongst which of the population groups in South West
Africa have you done research work?
.Mr. BRUWER: Mr. President, I have mainly concentrated on the
matrilineal Bantu-speaking people, naturally, and I have concentrated
mainly on the people of Ovamboland and of the Okavango region, but
I have done lesser research work for comparative reasons also amongst
practically ailthe other groups; I have also concentrated in regard to
research work on the one group of Bushmen generally indicated as the
!Kgu or the Mbarakwengo.
Mr. MuLI.ER: Have you held any official positions in South West
Africa?
Mr. BRUWER:Mr. President, yes, indeed I have. In 1964, at the be
ginning of 1964, I was appointed Commissioner-Gcneral for the indigenous
groups of South West Africa.
Mr. MULLER:For how long did you hold that position?
Mr. BRUWER:I held that position until December 1964, Mr. President,242 SOUTH WEST AFRICA
when I went to my present position, that is as Professorat the University
of Port Elizabeth.
Mr. MULLER:Did you serve on the Commission known as the Odendaal
Commission?
Mr. BRUWER:That is correct, l\fr. President, I served on that Commis
sion as a member from September 1962 up to December 1963, when the
Commission submitted its report to the Government of South Africa.
Mr. MULLER:Have you assisted in publications regarding the Bantu
people of South Africa or South West Africa?
Mr. BRUWER:Mr. President, in regard to the Bantu-speaking peoples
of South Africa, I am the author of one comprehensive monograph called
The Bantu of South Africa, in Afrikaans Die Bantoe van Suid-Afrika, and
that monograph deals also with the Bantu-speaking groups in South West
but not in such great detail; then I have also published approximately
nine other books, dealing mainly with the history and certain eminent
figures amongst the Bantu, and also Bantu folklore.
Mr. MULLER:Are you at present busy with any as yet unpublished
studies of ~antu or Native people?
l\fr. BRUWER:Mr. President, I am at present busy v.:orking on a com
prehensive monograph on the peoples of South West Africa-the Bantu
speaking peoples-that is, the Ovambo and the Okavango's. I have al
ready finished one brief preliminary study on one group in Ovamboland,
namely the Kwanyama.
[Public hearing of 2 ]uly I965]
Mr. MULLER:Professor Bruwer, you told the Court yesterday that you
have an intimate knowledge of the Native peoples of South West Africa.
Have you at any time livcd amongst any of the Native groups in South
West Africa?
Mr. BRUWER:Mr. President, naturally, if I am doing research work
amongst people, I stay amongst them, and I told the honourable Court
yesterday that I have been doing research work in South West Africa. In
1959 I stayed amongst the people for eight months, and again in 1962 I
had intended to stay for the whole year amongst the people of South West
Africa, in Ovamboland, but having been appointed on the Commission of
Enquiry into the Affairs of South West Africa I could only stay amongst
them for nine months of the year; but I have also often stayed amongst
them during vacations while I was procee.ding with my research work.
Mr. MULLER:Do you speak any of the1r languages?
Mr. BRUWER:Mr. President, I speak the language of the Kuanyama
people-that is one of the peoples of Ovamboland; I also have a working
knowledge of the Ndonga language and of the Kuangari language spoken
in the Okavango Territory. Mr. President, ifI may be permitted-when I
say a working knowledge I mean that I can decipher fairly well written
material; I can follow the gist of a conversation; and I can make myself
understood; but that does not mean that I am conversant in a language in
which I only have a working knowledge.
Mr. MULLER:I want you to express your opinion with regard to the
population of South West Africa-would you say that the population is a
homogeneous one?
Mr. BRUWER:l\fr. President, indeed, no--I would not say that the
population of South West Africa is a homogeneous one, taking into WITNESSES ANDEXPERTS 243
account the sense and meaning of the word homogeneous. To the con
trary, looking at the population from an anthropological point of view,
I would in fact say that it is extremely heterogeneous, comprising as it
does a number of separate and also distinguishable groups or com
munities of people.
Mr. MuLI.ER: What criteria would you use in expressing the opinion
that you have just given?
Mr. BRUWER:Mr. President, I would naturally use criteria within the
scope and limits of my discipline-that is, social anthropology-and
I would very defmitely apply, if one could call them criteria, the fol
lowing factors: the question of identification by means of a specific name
for aspecific people; then I would also apply the factor of ethnie back
ground to find out whether the people are of diverse ethnie background,
or whether they have the same ethnie background; and, 1\Ir. President,
one of my major criteria as a social anthropologist would certainly be the
civilization or the cultural configuration of the various groups. I will
compare thcir differing civilizations, if they indeed do <lifter,and on that
basis I would then say that I can distinguish one or more groups in the
population. Naturally. I would also rnake use of the factor of territorial
abodes-that is. the place where they stay, since a people are very often
brought into relation with their area of abode.
Mr. MutLER: Starting with your first criterion or factor, what are the
different names of the groups in South West Africa, as you identify them?
.Mr. BRUWER:Mr. President, if I have to use the more popular and
collective tenns for the various groups on the basis of identification by
means of a specific name used in regard to a specific people, I would be
able to distinguish the following groups within the heterogeneous popu
lation of South West Africa: the Bushmen, the Nama, the Dama, the
Herero, the Kaokoveld cluster, the Ovambo cluster, the Okavango
cluster. the Eastern Caprivi cluster, the people of Rehoboth-also,
sometimes, Mr. President, referred to as Basters-the Coloured people,
and thcn also the \Vhites or Caucasoids; those would be the groups that
I would be able to distinguish on the basis, Mr. President, of nomen
clature, specific names; but if I may be perrnitted, Mr. President, I would
like to sav that there are naturallv also other tenns which are more of
an indigenous nature. For instance~ I have used the term "Bushmen" to
indicate a specific group of people. Now that naturally is a term that has
been coined by the white people, meaning "people of the bush". But
similarly, the Herero people will, for instance, refer to the Bushmen as
the "Ovatwa". The Bushmen themselves, again, have their own names
to identify themselves, and with the Court's permission I will give only
one of those names, namely "!Khung". Similarly, the Ovambo people
again have a name by which they will identify, say, for instance, the
Bushmen as a group of people, and they will call the Bushmen the
"Ovakwanghala". But the indigenous groups also have a name by which
they will for instance indicate, say, the \Vhite people or the Caucasoids.
Now the Herero will refer to the White people as the "Ovilumbu",
meaning perhaps "pale-faces" or "white ones". The Ovambo again, in
referringto the White people, will refer to them as a groupas the "Ovati
lyana", meaning "the red ones". So, Mr. President, I think I have made
it clear that there definitely is a distinguishability of groups on the basis
of the identification by means of names.
Mr. MULLER:With regard to certain of the groups, you have referred244 SOUTHWEST AFRICA
to a "cluster", such as the "Ovambo cluster"-what do you mean by
that?
Mr. BRUWER:Mr. President, in using the term "cluster" I had in mind
a group of people having certain factional subdivisions, but on the basis
of a pattern of culture, on the basis of a collective name and on the basîs
also oftheir territory of abode they are in fact a group.
Now, to explain the term "factional sub-division", Mr. President,
I may, for instance, take the Bushmen as an example-there are factions;
I have already mentioned the name of one faction, the !Khung; there is
also another faction, the Hei/ /om; there is yeta third factor, the !Kga;
and even a fourth one, Mr. President, the Nusan//Aikwe; they are all
Bushmen and they form one group.
Similarly, in Ovamboland, we have factions identifying themselves by
indigenous names. I shall repeat, for instance, the eight indigenous
names of the factions comprising the group or people of Ovamboland:
we have there the Kuanyama; we have the Ndonga; wehave the Kuambi;
we have the Ngandjera; we have the Mbalantu; we have the Kualuthi;
we have the Nkolonkati; and we have the Eunda. That is indicative,
Mr. President, of my use of the term "cluster".
Mr. MULLER:Can the different indigenous groups in South West
Africa be classified into twomain groups?
Mr. BRUWER:Mr. President, it could be done, and in fact it is also
very often done in anthropological descriptions; the two main categories
then being, on the one hand, the category caJled Khoisan, and on the
other hand the category called Bantu. Now, Mr. President, since both of
these terms are actually coined terms, derived from the indigenous
languages themselves, I would beg to offer a very brief explanation.
The term Khoisan is composed of two words, the one word being Khoi,
which is of Hottentot origin-that is a group of people indicated as
Hottentots-the word San is also of Hottentot origin; Khoi mcaning,
in the Hottentot language, "people", and San being the tcrm used by
the Hottentots to indicate the Bushmen. In other words. we have the
Hottentots' name for themselves, as a people, and the name they use for
the Bushmen, forming one term to indicate one category of people. Then
we have the word Bantu, or Bantoe as it is sometimes pronounced,
meaning "people"-it is a plural form of a noun which is found practi
cally in all the 1anguages also referred to as Ban tu 1anguages; sornetirnes
we have phonetic variations, for instance in South West Africa the term
would be Ovantu and Ovanhu; the term Bantu being primarily the Zulu
term, and it was applied in the previous century by the linguist, Dr.
Bleek, in denoting this family; and so when I use the two names for the
two categories we have, on the one hand, the category comprising the
Bushmen and the Nama in South West Africa-being the Khoisan
group-and the various Bantu peoples belonging to the Bantu group.
On that basis one can, indeed, distinguish two main categories of people.
Mr. MULLER:\Vhat are the main differences between these two groups
that you have just described?
Mr. BRUWER:Pardon. Mr. President, I did not get that question very
well?
:Mr.MULLER:What are the differences between these two main groups
that you have just described-the Khoisan on the one hand, and the
Ban tu on the other band?
Mr. BRUWER: Mr. President, with due respect, the question that has WITNESSES A:'iD EXPERTS 245
just been put to me is a very complicated one. We have to deal with
languages distinguished as two language familles on the basis of their
great structural and morphological differences. The Khoisan language
family is what one may perhaps call one of the interesting Janguage
families of Africa, and it is characterized mainly by the use of certain
click sounds-1 have already used one, or rather two of the click sounds
in mentioning the names of the Bushmen; then, also, the Khoisan
Ianguages are charactcrized by the factthat tone plays a very important
role in the Janguage, in the sense that one may have a word which, if you
write it in its specific orthography, will look exactly the same, but when
the man pronounces the word and makes use of certain tone leve}s, the
word has altogether a different meaning, depending on the tone-level
that the speaker uses.
Then, of course, the Khoisan languages in sound and in speech itself
differ altogether from, for instance, the Bantu languages. As far as the
characteristics of the Bantu languages are concerned, Mr. President, we
have to deal with a language family which is, indeed, a very, very inter
esting family of languages, and, offhand, I would say that one of its main
characteristics of differentiation as a language family is, in fact, the
classification of nouns in various classes; every class has got a distinguish
ing prefix in the singular form of a noun and in the plural; and that
prefix influences the entire sentence, Mr. President, in that the prefix of
the noun is, in one or another form, repeated in every word of the sen
tence so as to link the various words-for instance, Mr. President, as an
example I would just say that it is not possible to translate in a Bantu
language unless one fi.rst knows the subject of the sentence, because
your whole sentence depends upon the dass in which the sub)eCt of the
sentence wiH fall. Then, the Bantu languages also have another very
interesting phenomenon which the linguistics usually call the ideophone;
it is a type of part of speech, Mr. President, which is very difficult to
describe, but through the ideophones the Bantu-speaker is in a position
to describe something by using just one ideophone where, for instance,
we would have used a whole description. In short, Mr. President, those
are the differences between the two language families-the Khoisan
language family and the Bantu language family.
Mr. MULLER:Is there any other main difference that you would find
between these two main groups?
Mr. BRUWER:Mr. President, there is also the question of physical
differences which is actually the field of the physical anthropologists,
and I would not even endeavour, Mr. President, to explore the avenues
of the criteria of physical anthropologists; but, on a perceivable basis it
is interesting that one could distinguish between these two main cate
gories of people in regard to the degree of pigmentation. There is in this
respect a perceivable physical difference between the Khoisan group and
the Bantu group, the Khoisan being a very light yellowish-brown people,
as against a darker pigmentation of the Ban tu; so one can immediately
see that you have to deal with a person belonging to either the Khoisan
or the Bantu family.
Mr. MULLER:You have indicated that under the Khoisan group you
dass the Bushmen and the Nama. Which of the population groups fall
under the other main division-that is the Bantu group?
Mr. BRUVl'ERM : r. President, the Bantu family or the Bantu Ianguage
family-the users of the Bantu languages-in South West Africa is SOUTH WEST AFRICA
represented by the Herero, the Kaokoveld cluster, the Ovambo people,
the Okavango people, and the people of the Eastern Caprivi.
Mr. MULLER:You have not mentioned the Dama in referring to these
two divisions. Does the Dama population group fall in any one of the
two main groups?
Mr. BRUWER:That is true, 1\frPresident, I did not mention the Dama.
One sometimes finds, Mr. President, to your disillusionment, also as a
scientist,that your criteria are not always applicable, and in regard to
the Dama one is immediately in a difficulty in the sense that, if you take
the linguistic basis, you would have to classify them in the category
called the Khoisan, because they speak the language of the Nama; but,
if you take again the criterion of perceivable physical differences, then
you would say you have to deal with a man comparatively the same in
physical features as the Bantu group-----infact, the name Dama means
dark people, and that is the r,ame applied by the Nama to indicate the
Dama.
So, Mr. President, on a linguistic basis, the Dama will have to be
classified with the Khoisan, on a basis of physical features they would
have to be classified with the Bantu as being what is sometimes called a
negroid type of people.
Mr. MULLER:Can the different groups understand the languages of
other groups in South West Africa?
Mr. BRUWER:Mr. President, naturally not. The Khoisan languages
are very definitely not understood by people using the Bantu language.
Since I know, Mr. President, at least one of the Bantu languages but none
of the Khoisan languages, I can say as a fact, that it is impossible to
understand them. They are two different language families altogether;
but even when one cornes to the languages within a family, it must be
remembered, Mr. President, that the Bantu family of languages com
prises more than 300 languages and they are, although they belong to
the same family, not mutually understandable. Now in South West
Africa, the Herero language is not understandable by people using the
language of the Ovambo and similarly, the language of the Ovambo is
not easily understandable by the people in the Okavango. And, Mr.
President, when one cornes to the Eastern Caprivi you have to do with
a different language altogether, although it is Bantu, but a language
related to the Lozi language of Northern Rhodesia or the present Zambia,
and it is altogether different from any of the other Bantu languages in
South West Africa.
Mr. MULLER:Would you next deal with your second criterion, that
is, the matter of ethnie background.
Mr. BnuwER: Mr. President, the ethnie background of a people has
to do with all events in regard to the coming into being or the evolution
of a people as an organic entity and it will naturally be appreciated,
Mr. President, that if I have to answer the question, I would have to deal
with very complicated matters and more so, in the case of South West
Africa, where one has to do with a great diversity in regard to ethnie
background. But, Mr. President, with due respect, I do hope that it is
not expected of me to burden the honourable Court with the minutiae
of this whole matter. I shall only touch on the more salient features that,
in my opinion, have a bearing on the definite distinguishability of the
various groups.
It will be recalled, Mr. President, that even information in regard to WIT~ESSES AND EXPERTS 247
the existence of the peoples of South West Africa, is of a very recent
nature. As a matter of fact it was not before the eighteenth century that
one could say that the outer world had information, and not even always
rcliable information, in regard to the groups of people in South West
Africa. I can recall,Mr. President, from the available sources which I
will not quote,but which are thcre, that the first time that people or a
group of people made contact with another group of people, in the sense
that the one grou p gave information about the other, was not bcfore 1760,
when a South African hunter and traveller by the name of Jacobus
Coetzee cro~sed the Orange River, which, at that time was not called
the Orange River, but which was called the Gariep, a Nama term, and
I mention that, Mr. President, because Coetzee was the first man to make
contact with the Nama people north of the Orange River, that is in the
southern part of the region or part of Africa today called South West
Africa, and I think it is probably as a result of the information given by this
travellerthat I have mentioned that an expedition was sent out the very
next year, that was in 1761, by the Governor of the then Cape Colony,
to explore the region north of the Orange River and to try to make
contact with people living .there.
Now the leader of that cxpedition, a manby the name of Hendrik Hop,
who also was from Stcllenbosch, Mr. President, had with h.im a car
tographer, a man who had to do the mapping ofthat area, and it isvery
interesting to note that on that old map one finds an indication of the
existence at the time of two identifiable groups of people, namely the
Nama-he actually indicated Namaland on that map and also assigned a
portion of the Nama desert to the people that he, at that time, also
mdicated as the Bushmen. So we knew at that time-from the records
we could say that we know-that these two groups existed in South
West Africa at that time.
About the Dama, nothing was actually known before 1791 when
another traveller, Pieter Brand, found them in the more inaccessible
regions of the Evongo and Auas Mountains, that is, in the central part
of the present South West Africa. And that was about al!, Mr. President,
that we knew about the ethnie situation in these regions of South West
Africa, by the end of the eighteenth century.
As far as the groups farthcr north are concerned, one does not find
any substantial material before the nineteenth century and it was not
before 1837, in fact, that what I would call a reliable account in regard
to the existence of the Herero came to the fore, as a result of the expedi
tion of SirJames Alexander, and, as far as the people still farther north
are concerned, l\Ir. President-the people I have already referred to as
the people in the Kaokoveld, the Ovambo, the Okavango-nothing was
actually known about them before the second half of the nineteenth
century. Itwas only in r85r that Sir Francis Galton and Charles John
Andersson attached themselves to a small group of Ovambo, who had
corne clown to fetch copper, and, then, in that way, reached Ovamboland.
Andersson la ter on continued his explorations and it was not before 1860,
actually a mere century ago, Mr. President, that we came to know about
the people in the Okavango.
I mention these things, Mr. President, so as to indicate that ifI have
to explain the ethnie background of these people, so as to indicate what
one can distinguish in regard to ethnie background among the various
groups, one can say that this group is a distinguishable group. SOUTH WEST AFRICA
One has, of necessity, to rely also on oral tradition because, in regard
to the origin of these people, one cannot say that the people originated
by the end of the eighteenth century. They were already there in South
West Africa at that time, or, at least, most of the groups were there
that we find there today. Now, in regard to the oral tradition, Mr. Presi
dent, I must admit that, in giving the honourable Court a very brief
explanation of that, I am relying on my own research work since not
much has really been done so far in regard to the ethnie history of these
groups before the eighteenth century.
I have triedmy very best to collect, to interpret, and to put on record,
as far as I possibly could, the oral traditions in regard to ethnie back
ground and the very first thing, Mr. President, that strikes me in regard
to this is that, whereas the Bantu-speaking peoples have preserved much,
even in very great detail, about their ethnie background, one can find
very little among the Khoisan people, and, in certain cases, one could
even say that you practically cannot find anything. They have just one
tradition and that is that they have been there for all times. And that
applies especially to the Bushmen. So I will simply just conclude,
Mr. President, by saying that, in regard to the Khoisan people, I think,
on the basis of ail available material, one can only say one thing, and
that is, that the Khoisan people must have been-that is, the Bushmen,
the Nama and I include the Dama also with these people now-that they
undoubtedly were the first people to settle in these regions of Africa.
There are many theories, Mr. President, in regard to the basic origin
of Bushmen and of Nama but if I have to go into those theories, Mr.
President, it will take us back to palaeolithic times, I am afraid.
Mr. l\luLLER: I do not want you to do that, Professor Bruwer. Will
you kindly proceed to indicate to the Court the ethnie derivation of the
Bantu groups in South West Africa.
Mr. BRUWER:Mr. President, I have no doubt in my mind from oral
tradition that the very first people amongst the Bantu-speaking groups
that settled in South West Africa are the people today known as the
Ovambo and the Okavango. They have a very clear tradition that they
originated somewhere at a lake, which is not identified, but which is,
and must be, one of the lakes of the Rift Vallev. One can also base that
on the factual comparability of the systems of these people with the
systems of people in a certain belt in Africa, that is the central African
belt of peoples. And this tradition, Mr. President, actually also coïncides
with the big migrations of the Bantu-speaking peoples in the mid-cen
turies.
The first geographical linkwith South West Africa is the Okavango Ri
ver and from the tradition one gathers, Mr. President, that the Okavango
people and the people called the Ovambo came from the east, from that
lake, as an entity. They were led by two sisters, but they ultimately de
cided to separate at the Okavango River, the one group staying behind,
mainly on the northern bank of the river, the other group going farther
west until they reached the interesting country today called Ovamboland
-a country with plains, very good grazing-and then they settled there.
Now, Mr. President, anthropologists usually make use of the genealogi
cal lineages of chiefs try to date a certain event in the history of a people.
Naturally one can only do that approximately, but it is interesting that
the people of Ovamboland, the Ovambo people, still remember the Iineage
of21 chiefs, that is hereditary chiefs. On that basis I have tried to date WITNESSES AND EXPERTS 249
this migration and I would put it during the sixteenth century, giving
them a period of approximately 400 years during which they have been
settled in the territory today called South West Africa and naturally, of
course, the limits of their first area of abode were not divided by any inter
national boundary.
Apparently the second group which entered South West Africa is the
group that I have indicated as the Herero and from ail available infor
mation, Mr. President, one must say that the Herero people entered the
areas of South West Africa from the north, across the Kunene River, un
doubtedly at a much later date than the people of Ovamboland. The fact
that they entered South West Africa from the north, according to my de
duction (based on the available information and traditions), is probably
also borne out by the very fact that people related to the Herero are also
to be found on the northern side of the Kunene River in the Mossamedes
Province of Angola and that people ethnically related to the Herero are
still occupying the Kaokoveld today.
Now, Mr. President, from the traditions, and also from the available
sources during the eighteenth century, it would appear-and I think one
could rely on that-that the Herero, by the end of the eightecnth century,
were still confi.ned to the area today called the Kaokoveld, because it is
only by that time that one finds there are traditions in regard to contact
between, on the one hand, the Nama people of the southcrn part and, on
the other hand, the Herero.
The Ovambo also have a tradition, which they still remember very well,
that approximately during that time, and they name it by mcans of the
chief who was reigning at that time, the Herero, in the process of migra
ting southwards also tried to invade Ovamboland, but that they were
driven back by an organized force of Ovambo fighters
That, Mr. President, is an indication of the diverse backgrounds. There
is just one group, namely the group in the Eastern Caprivi, on which I
would like to give some information in regard to their ethnie background.
Now, the people of the Eastern Caprivi, Mr. President, belong to the
people of South West Africa to some extent, I would say, as the result of
an historie accident, but their entire ethnie background is different from
any of the other groups in South West Africa. One of the main things I
would mention here (because that has a bearing on their Janguage) is the
fact that during the previous century, as the result of the wars stimulated
by the Zulu paramount Chaka in the south, there was a tremendous tur
moil in what is todav called South Africa, but that turmoil had its results
also in other parts of Africa, and one frnds that certain groups moved
northwards, and one of these groups. called the Kololo, moved from the
present Orange Free State, through Bechuanaland, through the present
Eastern Caprivi, right up to the present Barotseland, part of Zambia; and
that is how the Kololo people, as they are called, came into being. They
superimposed themselves on the original Lozi of Barotseland and also on
the population which at that time was residing in the Eastern Caprivi.
Hence the use of the Sikololo or Lozi language in the Eastern Caprivi
and, of course, in Barotseland; a language which still has very strong
affinities withthe original Sotho language used by the Sotho people, or
the original Kololo, that is the Kololo of the last century.
That, Mr. President, gives a short indication, and, I think it is possible
to say, on the basis of the ethnie background as it is known tous, one can
dcfi.nitely distinguish certain groups of people. It is also interesting that SOUTH WEST AFRICA
these groups have, in some cases even over a very long span of time, main
tained and also retained their identity as a group. They have retained it
by means of their name, they have retained it by means of the area where
they settled and where they are still today, and they look upon themselves
as being an entity, or community, of people that one could distinguish,
by means of their ethnie background, from other similar groups.
Mr. MULLER:In your description with regard to ethnie background of
the groups, you have not dealt with two groups thatyouhad mentioned
before. One is the Rehoboth people, or as you referred to them earlier, the
Rehoboth Basters. Will you very briefly tell the Court something about
that population group?
Mr. BRUWER:Mr. President, the Rehoboth people, or Basters as they
are sometimes called, entered South West Africa during the previous cen
turyacross the Orange River; that is, they originated in the northern parts
of the Cape Colony of that time.
They moved into South West Africa as a small group of people and ulti
mately, in 1870, if I remember well, they settled at a place which they
calledRehoboth (that is not onlyonecentre, itisa terri tory) and theyactu
ally got this land from one of the Nama groups which had moved a little
bit farther north, namely the Swartboois, and as a result of a treaty with
this Nama group they were allowed to occupy that piece ofterritory. These
people naturally had been affected by certain systems which were in vogue
in the Cape Colony at the tirne and, as a result of that. they, for instance,
drew up a sort of constitution as a people-they call it the Vaderlike
W ettwhich one could perhaps translate as the patriarchalla ws-and in
that way they tried, and definitely also succeeded, to maintain their own
identity as a group of people, a communityof people, in South West Africa.
Mr. MULLER:Can you tell the Court something about the early settle
ment of the Europeans in South West Africa?
Mr. BRUWER:i\11.rP.resident, after the settlement period I have just
described, one, of course, cornes to what one could perhaps look upon as
being history-where one has certain written records-that is the nine
teenth century; and one could say that the nineteenth century is, in fact,
in so far as South West Africa is concerned, characterized by two impor
tant things, or happenings. The first is the influx of yet other groups.
Ihave just mentioned the coming of the Rehoboth people. There was
also the coming of the people, sometimes called the Orlams, who ultima
tely superimposed themselves and became part and parcel of the Nama.
There was also the coming of the Whites, the Caucasoids or White people,
but the first half of the nineteenth century, Mr. President, in South West
Africa also saw the contact between two groups of people, namely the
Nama and the Herero.
And, Mr. President, it is perhaps best to describe the essence of that
contact by a phrase which is still found in the traditions of these people.
The Nama being nomads, pastoralists, used to say that wherever you see
the spoor of a Nama man, know then that that is Nama-land. And to this,
during this contact, the Herero people had a rejoinder, and they used to
say: Wherever you see the spoor of Herero cattle, know then that this is
Herero-land. In other words, Mr. President, one can perhapssaythat there
was no real delimitation of areas between Nama and the incoming Herero
from the North. And that position, as the result of the contact, brought
about a tremendous struggle-I am not going to go into details, i\1.r.Pre
sident-a struggle that lasted from 1820 to approximately 1892, that is WlT~ESSES AND EXPERTS 251
even after the period when the Germans had already begun to occupy the
territory. And the result of these struggles, on the one hand against the
Nama and the Herero, and on the other hand again also sometimes amongst
the Nama and Orlams, one could perhaps summarize by saying that there
was a continuous change of power. At the one time the Herero came to
the fore, then again the Nama came to the fore, and I do not think that
one can say that any one of these two grnups, during that hundred years
of struggle, actually came out as the conqueror, if one could use that word,
because the settlement of the Germans came in between.
But I \Vould like, Mr. President, to mention just one example of how
well people sometimes remember their mutual struggles. On 22 August in
the year 1850, there was a terrible massacre of Herero by the Nama at a
place today called Okahandia. And exactly 30 years later, Mr. President,
on the same day, a similar massacre took place, at the same place, but this
time it was the Herero massacring the N ama. And these unfortunate
times, 11r. President, in the history of these people, came to an end only
after the occupation by the German authorities. Iwould like to add, Mr.
President, that it is very interesting to note that, in regard to this period
of strugglein South West Africa during the nineteenth century, the people
up in the northern parts were not materially affected by these struçgles.
That is one of the interesting factors in summing up the whole position,
that you had here people, four groups staying up in the north, not being af
fected at aU by the struggles and wars that went on in the southern part.
Now I think one must of course keep in mind that these people were
far apart. Mr. President, in dealing with the various groups one must re
member that from the Orange River to the Northem Boundary of South
West Africa is nearly 1,000 miles, and I think that was one of the factors,
apart from the physical aspects of the country, that had probably
helped towards the position that the northern people were not materially
affected by the struggles in the South.
Mr. MuLLER: I want you to deal next with your third criterion, and
that is cultural configuration.
~Ir.BRUWER: Mr. President, in dealing with cultural configuration as
a criterion of distinguishing between groups of people, I would like to
submit that what I mean by cultural configuration is the pattern of
culture which came into being as aresult of the achievement through the
own creative genius of a people and, Mr. President, I would like to
stress with your permission the phrase "achievement through own
creative genius", because in dealing with the differing civilisations of
mankind, in studying them as I have to do as a social anthropologist, it
always strikes me that there is no culture, no cultural configuration, no
civilisation, whatever the essence of it may be, in which one does not
find a quality, a quality which is of an own kind, but which is not of
necessity inferior or superior to the quality of another culture. And
especially when we corne, Iltr. President, to the cultures of Africa. I think
in using the cultural configuration, as a basis to distinguish between
groups, I cannot but say that here again one cornes under the impression
of the quality of the culture of a people, whether it is a small people or
whether it is a big people.
The cultural configuration naturally, Mr. President, includes a variety
of things having to do with the way of life of a people being, as I already
have said, the sum total of the achievement through that crcativc genius
of a people. Itincludes, inter alia,the Ianguage of that people, it includes252 SOUTH WEST AFRICA
the social structure and the social institutions, it includes their economic
systems, it includes their political systems, and it also includes their
judicial systems.
Mr. 1\IuLLER:Professor Bruwer, you have already dealt earlier with
the languages of the various population groups. Do you wish to say
anything further with regard thereto relative to cultural configuration?
Mr. BRUWER:Mr. President, with permission, yes I would just like to
add this one opinion in regard to the African languages, the Bantu
languages in this case, by saying that the Bantu languages-and this
applies to every single one of them in South West Africa-are languages
with a beauty of expression that it is not easy to define, and one of the
major achievements in regard to the quality of the cultures of Africa is
indeed their achievement through their languages. These languages must
not, Mr. President, be looked upon as being primitive languages, if I may.
use that word in the ordinary sense; they are in fact very complicated
languages; they are languages which can be utilized for a great variety
of things; they are languages which have in them a quality of expression
which I must admit, Mr. President, is very definitely not present in my
own language; and when once one cornes to the richness of the oral
traditions which are in fact carried over through the medium of these
languages, one cannot but say that you have here part and parce] of the
creative African genius which is something by itself, distinguishable from
the creative genius of other peoples, but having a quality in the language
which is, Mr. President, so rich, so beautiful, that one cannot but say
that you can take the languages as a basis of distinction in regard to
these people, because it is also their medium of communication, not only
in everyday life, but also in the preservation of those rich oral traditions
which I think have not always been discovered.
Mr. MULLER: You have referred to social structures and institutions,
Would you explain to the Court briefly the differences between such
social structures and institutions among the various population groups?
Mr. BRUWER:Mr. President, as to the social structure and institution
of the people: I have to deal with that part of society which regulates,
which gives a certain form to society, which in fact is the structural
basis of the functioning part of Society; and ,vhen we have to do, Mr.
President, with the structure and the social institutions of these people
that we are dealing with here, and when we take the social structure
as part of the cultural configuration on which we can then base a dis
tinction as to the groups, we have to do also with rather complicated
material; but here again, Mr. President, I shall only point out the more
salient features of these social structures and the social institutions.
I would like to state first of ail, Mr. President, that in regard to the
social structure of the various societies or communities of people in
South West Africa, and when one has to do with the basic indigenous
groups, it is an interesting phenomenon that the social structure is based
primarily on a system of kinship, that is, the system by which people
subsc~ibe to kinship relations, the way in which they believe kinship to
funct10n.
Now, in regard to the basis of kinship in so far as the social structure
and institutions are concerned, there are two major characteristics ,vhich
I have to mention here, Mr. President, so as to be able to make you
understand the differing nature of these kinship systems on which the
social order is very often, and to a great extent, based. WITNESSES AND EXPERTS 253
Now, the kinship systems in South West Africa are characterized by
two factors. the one factor being the classificatory nature of that kinship
system; and to explain that term, Mr. President, I shall use a very easy
example. It: is a term that is usually used in anthropological literature
in regard to kinship systems. We speak about a dassificatory system as
against a descriptive system. Now, by classificatory systems of kinship
is meant the phenomenon that, embodied in the kinship system one has
a principle that a certain kinship term which is applicable to a certain
person is also applicable to rather a great number of other people having,
according to the concept of speaker, the sarne relationship as that original
person. If I, for instance, as a speaker, address a certain mari as my
father, then I will address all the people called brother by the man that
I address, as father-1 will address all those people as my father. Simi
larly, if I have a mother, and I call her mother, I will address ail the
people that she calls sister-as mother.
Now it follows frorn that, Mr. President, that within the same genera
tion one has an extension of the idea of brotherhood and sisterhood. You
will call all the children of the man or men that you call father your
brothers and sisters, or the children of your mother and all the women
that you call mother your brothers and sisters depending, Mr. President,
upon the second factor, or principle, embodied in the kinship term,
namely the dogma of descent, if I may put it in that way. .
Now, by the dogma of descent I mean the concept to wh1ch one
subscribes as to whether kinship relationship or-let me call it-blood
relationship, is carried through the lineage or line of the mother, or
whether it is carried through the lineage or line of the father. Now, in
South West Africa, Mr. President, it is extremely interesting that we
find both these concepts in regard to the concept or the dogma of
desccnt.
Now, naturally, if a person subscribes to the dogma of descent through
the line or lineage of the father, his blood relations will be a certain
group of people in society. To the contrary again, or vice versa, if one
subscribes to the concept whereby you reckon kinship through the
lineage of the mother, then another group of people again would be
looked upon as being your blood relations. .
Now, we have in South West Africa, Mr. President, if we start off with
a smaller entity of people that we have indicated by the name of "bush
men" ...
Mr. MULLER:Professor Bruwer, excuse me. You are going to apply
those to the different population groups now, is that not so-the dogma
of descent? You are proceeding now to apply the dogma of descent to
the different population groups, is that not so?
Mr. BRUWER: I thought, Mr. President, that that would be appro
priate.
Mr. MULLER:Professor Bruwer, just before the adjournment you were
dealing with what you termed the "dogma of descent". Will you indicate
to the Court briefly how that affects the different population groups in
South West Africa?
Mr. BRUWER:Mr. President, I have tried to indicate the two principles
embodied in the kinship system, of which the dogma of descent is one,
and I have mentioned that the dogma of descent may be conceptualized
as running either through the lineage of the mother or through that of
the father. This dual concept in regard to the dogma of descent gives us SOUTH WEST AFRICA
254
the two systems which we generally indicate as the matrilineal system
on the one hand and the patrilineal system on the other hand-the
matrilineal system being the system in which descent is reckoned to run
through the lineage of the mother, a patrilineal system being the system
in which descent is reckoned to run through the lineage of the father.
Mr. MULLER:Which of the groups apply the patrilineal system?
Mr. BRUWER:Mr. President, the patrilineal system is applicd by the
Bushmen, but not in the sense of a lineage system on account of the fact
that they are usually small communities; it is also applied by the Nama,
itis applied by the Dama and itis applied by the peoples in the Eastern
Caprivi.
Mr. MULLER:Which of the groups apply the other-that is, the
matrilineal-system?
Mr. BRUWER:Mr. President, the matrilineal system is applied by the
Bantu groups that I have indicated by the name Ovambo and by the
name Okavango peoples.
Mr. MULLER:What syst~m is applied by the Herero group?
Mr. BRUWER: Mr. President, the Herero group have a system of
themselves in the sense that, for certain purposes, descent is reckoned
through the lineage of the father, and one would then say that they
apply the patrilineal concept; but on the other hand, again, certain
other things are reckoned to be through the lineage of the mother, and
in that respect again one could say that they also apply the principle of
matrilineal descent. Now in actual fact, and as it is also generally con
ceived, one does not have to do with a bilateral system but more with
a dual system, since descent is only for certain purposes reckoned through
the lineage of the mother, and again also for certain other things through
the Iineage of the father. Now, Mr. President, it must be clear that you
now have certain institutions which corne into being as a result of this
type of kinship, which has a certain bearing on the society. One has for
instance, now, a lineage. Where you have the patrilineal system applying
-the composition of that lineage will be on a patrilineal basis. Where
you have the matrilineal system applying, the composition of the lineage
again will be on that basis. Similarly, also, the other entity, which is more
often than not indicated by the term "clan", may also be composed on
a patrilineal basis or on a matrilineal basis; in other words, on the one
hand all members of the clan will be related, either geneologically or
conceptually, through the line of the mother, whereas again, when you
have to do with a patrilineal society, the composition of the clan will be
based on the concept of the patrilineal descent.
1'.Ir.President, I just wanted to add to that: the people themselves, of
course, have names by which they indicate these entities in society; thus,
for instance, if I am an Ovambo I would say that I belonged ta such
and-such a clan, having a name for that clan; and that, then, indicates
my relations on the basis of the dogma of descent through the line of the
mother. Similarly, where we have ta do with a patrilineal people, they
also have their names for these clans, and within the society there are
many clans; I have, Mr. President, been able to distinguish, for instance,
21 such entities, that we then call clans, amongst the Ovambo.
Now, in regard to the Herero, they a!so indicate these two entities
that is, the one entity where you are part and parcel of that entity
through the relationship with your mother-they have a name for that:
they call that the "Eanda", actually. Similarly, with the group related WITNESSES AND EXPERTS 255
through your father-your affiliation with that group-----they have also
a name for that group, namely the "Oruzo".
Mr. MULLER:What bearing does the system or the systems that you
have described, have on the customary laws of the indigenous people?
J\1.r.BRUWER:Mr. President, in the systems as I have studied them
the kinship system bas a very definite bearing on customary law in the
respect of certain specific social institutionsN ow, if one takes as an
example, Mr. President, the question of marriage, it must be quite
apparent that where you have a certain concept of relationship with
people, that concept, whether it is matrilineal or whether it is patrilineal,
must of necessity influence your approach as to, for instance, a mar
riageable spouse, because it is a question of certain people being looked
upon as being your blood relations and other people again being looked
upon as being not your blood relations. Now the difference-and Iam
trying to indicate how these systems differ arnong the varions groups,
Mr. President-lies in this aspect: that among a patrilineal people, I will
be able to choose rny spouse arnongst certain people; among the rnatri
lineal people. again, those very people will be looked upon as being
blood relations, and I will certainlv be accused of incest if I should
marry somebody from that group. This concept fonctions within lineages;
it fonctions to a very great extent, Mr. President, within clans. Now one
bas this very interesting phenomenon, especially amongst the matri
lineal people, where there are types of people in society on the basis of
marriage, namely certain individuals who are looked upon as being what
one can perhaps call preferential marriage mates or spouses-in the case
ofthe people of South West Africa, Mr. President, and that is very much
stressed, especially inthe Okavango, it is preferred that a man should
marry the daughter of bis uncle. Now, Mr. President, it is immediately
clear that on the basis of concept through the lineage of the mother, the
daughter of your mother's brother does not belong to your kinship
group at ail.
The PRESIDE:-.T:May I interrupt just for a moment, sir? Mr. Muller,
is allthis detail necessary for the purposes of Respondent's case?
Mr. MULLER:With respect, Mr. President, the witness has indicated
that there are vast differences between the groups.
The PRESIDENT: That I understand.
Mr. MULLER:He is going into detail to explain what these differences
are, and upon that he will eventually, with respect, base his opinion.
I can ask the witness if he will try to reduce the subject-matter and
leave the detail out, if the Court so wishes. Professor Bruwcr, can you
continue describing what you were proceeding to do, but without so much
detail?
Mr. BRUWER:Mr. President, it boils down to the fact that, in matri
lineal Society, according to customary law it is possible to marry with
certain people, whereas in a patrilineal society those very people would
then be looked upon as your blood relations, and this is the bearing that
the concept of kinship, based upon a specific dogma of descent, has on
customary law in regard to marriage.
Mr. MULLER:Will you briefly describe to the Court any differences in
customary law in regard to inheritance and succession, for example,
brought about by the application of different systems?
Mr. BRUWER: l\fr.President, in regard to succession. for instance,
where one has to do with certain positions of status and leadership in SOUTH WEST AFRICA
society, these people have what one could call a royal lineage, a royal
clan or a royal house in the case of chiefs, and since this position is
hereditary the succession will be affected by the system in vogue amongst
that specific group. Taking for example a matrilineal group---the Ovambo
-a chief can only be succeeded, according to customary law, by either
his brother who belongs to the same kinship group or lineage or clan, or
by a child of the chief's sister who also belong to the same kinship group.
It also happens that a chief may be succeeded by his sister-that, in
fact, happens; there are at present three women chiefs or chieftainesses
in the Okavango-the principle being, Mr. President, that since it is a
hereditary matter, the successor to the incumbent of such a position, in
the case of the matrilineal people, must belong to the same kinship
group; hence a son would not be able to succeed his father. Whereas,
when one has to do with the patrilineal people, it is, indeed, the brother
or the son who will succeed, on the basis of this same kinship identity.
So we have the two systems whereby succession on the one hand passes
ultimately from, if I may may use the words, uncle to sister's child,
whereas amongst the patrilineal people it will pass from father to son,
that is in an ultimate sense.
Mr. il'1ULLER C:an you just tell the Court whether the different systems
that you describe have a marked effect on the differences between the
population groups?
Mr. BRUWER: Mr. President, naturally the social orientation of a
people conforming to certain systems has a very definite bearing on
many things in that society; and on that basis, the factors I have
mentioned here and the principles embodied in the systems, differ to
such an extent amongst the various groups that one can very easily, on
the basis of this factor of the cultural configuration, see that there is a
great difference between these various groups of peoples and societies.
Mr. MULLER:Under your heading of cultural configuration you have
mentioned differences in the economic systems, political systems and
judicial systems of the groups. Will you deal with these very briefly,
starting first of all with the differences in the cconomic systems?
Mr. BRUWER:Mr. President, taking into account the changes that
have, of course, been brought about, one could I think distinguish very
easily three broad types of economic systems-the system which is
generally looked upon as being the more simple system of the Bushmen,
the system of hunters and food gatherers; then we have the economic
system based on pastoralism, where in some respects it is a nomadic
pastoralism; and then we have the third type of economic system which is
of a sedentary nature, where people are basically agriculturalists but
they also practise animal husbandry.
Mr. MULLER:Do you classify the different groups under the three
headings that you have given the Court?
Mr. BRUWER:Mr. President, traditionally, of course, only the Bushmen
and, to some extent, the Dama in olden days, comply with the system
that I have indicated as hunters and food gatherers. Pastoralists are the
Nama, the Dama, and the Herero, also the people in the Kaokoveld who
are, to a certain extent, related to the Herero-those are the groups
practising pastoralism as a basic economic system.
Mr. MULLER:And the third group, the group practising agriculture
and animal husbandry?
Mr. BRUWER:Mr. President, the third type of economic system is WITNESSES AND EXPERTS 257
mainly confined to the northern terri tories; it is practised by the Ovambo;
it is practised by the Okavango; and it is practised by the people of the
Eastern Caprivi-that is where one has agriculture together with animal
husbandrv.
:11IrMul,LER: Can you tell the Court how the different economic
systems which you have just described affect the concept of land rights
and the material cultures of the people-very briefly, please?
Mr. BRUWER:Mr. President, the economic systems certainly have a
definite bearing on certain concepts in regard to the whole question of
land utilization and land rights. If I take, for instance, the more simple
system of the Bushmen, one does not find any indication of the utilization
of land, for instance, on an inclividual basis, but one does find that a
group of Bushmen look upon an area as their own place of hunting, but
on a communal basis. Similarly, when one has to do with the pastoralists
inSouth West Africa, one finds that their whole concept of land is based
on the communal use of the land for grazing and othcr purposes. Now,
when one cornes to the more sedentary type of people-that is the
Ovambo and the Okavango and also the people in the Eastern Caprivi
one finds that, apart from the fact that certain areas which are used for
grazing purposes and utilized on a communal basis, there is also a system
of what I can perhaps best describe as the individual utilization of a
specific piece of land by a specific individual-in other words, ail other
individuals in society are excluded from that piece of land which you
utilize and work for your individual purpose.
That, Mr. President, is the basic influence of the systems on the concept
of land. Of course, in somc respects it is much more complicatcd than I
ha\·e put it here, but that is the basic principle embodied in the three
systems.
As far as material culture is concerned, Mr. President, one finds that,
in the case of the Bushmen, material culture is, naturally, of a very
simple nature; to somc cxtent that also applies to the pastoralists;
whereas as soon as you corne to the sedentary type of people one has to do
with a more complex material culture. For instance, if we take the ques
tion of housing, the Bushmen being nomads and hunters would put up
a little hut in the bush today and stay there for a day or two and then
they would move on and put up another hut elsewhere. When, for
instance, you corne to the Ovambo, you find very elaborate structures
of abode, indeed, very elaborate, showing that the material culture is
very definitely influenced by the economic system. Then, in regard to
material culture, Mr. President, one also has the differences in physical
features of a specific part of a country-forinstance, the people living in
proximity to a river, as do the Okavango people and the people in the
Eastern Caprivi, they have their whole material culture and their eco
nomic systems influenced by their proximity to a river. The Okavango
and the Caprivi peoples have, for instance, canoes which they can use,
whereas you do not see that type of thing, for instance, in Ovamboland.
They also have a culture influcnced by the proximity to rivers. Naturally,
Mr. President, the material cultures in regard to, for instance, the system
of inheritance is also influenccd by the systems that I have already
described. One can only inherit material things in a matrilineal society
through your uncle or in the lineage of your mother; whereas in regard
to the patrilineal people inheritance flows again through the lineage of
the father. Where you have the dual system, Mr. President, as amongst SOUTH WEST AFRICA
the Herero, certain things are inherited through your mother, certain
things are inherited through your father.
.Mr. MULLER:Professor Bruwer, will you indicate whether there are
differences in the political systems of these people? Do not go into detail,
I want you to deal with it very briefly.
.Mr.BRUWER:Mr. President, the political systems~and we have here
in mind the indigenous institutions on a political basis-are a wide range
of types actually, coinciding to a great extent with the type of society
that one has. Where you have a very simple society, as for instance in
the case of the Bushmen, one can hardly discern any real organized form
of what one could call a political system; leadership is based on things
like age, experience-the experience of age or the wisdom of age
sometimes also on the man's ability in the hunting grounds; the group is
small and there is no elaborate political system, .Mr. President, not
perhaps because they have not the creative genius but, I suppose,
because it was not necessary.
Now, coming again to the more complex societies, as we have amongst
the Ban tu people, one can have a very complex form of political structure;
ifI take the example of the Ovambo very briefly, Mr. President, one has
to do first of all, basically, with a royal leadership based on a royal clan
in other words, on a hereditary concept. Now, this again is something
which one v.rouldlike to explain in detail because I think it is very often
misinterpreted, but this is the first consequence-a hereditary leadership
influenced by the kinship systems that I have already described.
But then one has a graduai decentralization ofpolitical leadership. Now,
Mr. President, it is interesting that in the case of the Ovambo there is only
one hereditary position and that is the position of a chief. Headmanship,
or being a headman of a district,orbeing the leader ofa ward, thcse posi
tions are not hereditary at all. The headman is headman as a result of the
choice of the people in that area. They may change----it is a question of
the popular consent of the people. These headman actually form the ruling
council, if one may put it like that, together with the chief. I have not
corne across, in Ovamboland, a system which-at least to a great degree
-I would not describe as being essentially something on the Enes of de
mocracy, but then an African democracy, the will of the people, in other
words leadership on the basis of the acceptance of the people; it is espe
cially in regard to the decentralization of power in this type of political
system Mr. President, that we have, among some of thcse societies, and
on which basis one could also distinguish that society, a far more ela
borate type of political institution than, for instance, among a group like
the Bushmen.
Mr. :MuLLER:What conclusions do you draw from your study of the
cultural configurations of the different groups? Would you state it very
briefly please?
Mr. BRUWER:Mr. President, I am very sorry, I did not hear that ques
tion.
Mr. MULLER:I shall repeat that. What conclusions do you draw from
your study of the cultural configurations of the different population
groups?
Mr. BRUWER: Mr. President, if I take into account the pattern that I
have tried to indicate to the honourable Court, if I take into account the
qualities inherent in the different systems, and, if I take into account the
functional value, the varying systems of value inherent in these varions WITNESSES AND EXPERTS 259
systems, then I can only say, Mr. President, that there is no doubt in my
mind that we have to do with a variety in regard to cultural configuration,
we have to do with a variety on the basis of language, we have to do
with a variety in regard to social structure and institutions, we have to
do with a variety in regard to political systems and we have to do with a
variety even in regard to the application of customary law.
Mr. MULLER: Professor Bruwer, you also told the Court that one of
your criteria would be the habitat of these people of the different groups.
Can you briefly describe to the Court the position which obtained at the
time when the Mandate was assumed in 1920 as to the habitat of the
different groups?
Mr. BRUWER:Mr. President, I shall attempt to do it. I was only six
years of age at the time of the assumption of the Mandate, and I have to
doit on the basis of my study, naturally being interestcd in regard to all
the deeds and dealings which affected the peoples of South West Africa and
by name, the indigenous people, in whom I am very much interested.
Now, l\Ir. President, from what I candeduct, having in mind all theavail
able sources, one must say that at the assumption of the Mandate you
really had to do with a heterogeneous population-you had to do with a
population in which there were a variety of communities complying to cer
tain systems, having certain systems of value inherent in themselves and
also having certain functional institutions which were very definitely func
tioning at the time. I think of the people up in the north, for instance. I
told the honourable Court that they were not affected by the position in
the south.
But then, Mr. President, ifone takes into account the Territory known
as South West Africa at that time, and also todav, a name that came
into being as a result of Charles John Andersson, who fi.rstmentioned the
name, South West Africa, in regard to this Terri tory, I fmd that for prac
tical reasons in 1920, at the assumption of the Mandate, one can say that
the country was divided into two worlds actually. As a matter of fact, one
even sometimes noticed that physically on the map by means of an indi
cation of that division. Now you had the southern part of the Territory,
you had the northern part of the Territory. In the southern part of the
Territory, ;\frPresident, were residing at that time, a number of different
groups; we had the Nama there, the Dama, we had the Basters, wc had
the Coloured people, we had the Caucasoid people and we had Herero
people rcsiding in the southern sector.
Now, on the basisofthose varions groups, one notices from the available
sources and information that the country, during 1920, was sub-divided in
regard to the southern sector that I have just mentioned. It was sub
divided, firstly, into--inthe central part-farms and certain townships
that came into being and that were occupied also on a basis of individual
land rights which came into being during the process of settlement of the
Caucasoid people, in this case, mainly the Germans. But in the southcrn
sector, one also finds that vou had, at that time, certain, what I would
call limited areas, set aside for certain groups. These areas are very often
referred to as being Reserves, having been reserved for the people.
Now, ~fr.President, if I remember well, at that time which was in 1920,
wehad certain Reserves put aside for the Nama, namely the Reserve call
ed Berseba, the Reserve called Bondels, the Reserve called Soromas, the
Reserve called Fransfontein and the Reserve calledZessfontein. Then, also,
we had the Terri tory of Rehoboth, generally also known as the Rehoboth SOUTH WEST AFRICA
Gebiet, in which the people were living who are generally known as the
Basters or the people of Rehoboth.
But then, Mr. President, one also finds from the available sources that
the Herero people at that time, that was during 1920, were absolutely
landless, having been deprived of their land as the result of the rebellions
and wars at the beginning of the twentieth century, that was between
1903 and 1907, ifI remember well, Mr. President. So that was the position
in the southern sector.
But in the northern sector, during that period of German occupation
and to a great extent also during the period of the short span of time of
the military occupation by the South African forces from 1915 to 1920,
the northern sector of the country was not materially affected, with the
result that in 1920 one still had the position, Mr. President, that the
Kaokoveld people were staying in the Kaokoveld, the people of Ovambo
land were staying in that area, the people of the Okavango were living in
the Okavango area and the people of the Eastern Caprivi were living in
the Eastern Caprivi.
The Bushmen, Mr. President, during this long period of struggle be
tween other groups, were generally trying to get refuge in the more inac
cessible parts; and at that time one aJso finds that the Bushmen were
actually between what one could call the southern sector, and the south
ern part of the northern sector occupied by the Bantu people. They were
mainly residing in that area.
Now, Mr. President, if Ihave answered the question, that, in my opinion
was the position at the assumption of the Mandate basing my opinion on
the available sources, Mr. President.
Mr. MULLER:Would you briefly state what policy was adopted at and
after the assumption of the Mandate with regard to the different popula
tion groups?
Mr. BRUWER:Mr. President, it would appear tome, from the availablc
sources that I have studied, that, at the assumption of thd,fandate in
1920, being confronted with a Territory of this nature, one had to decide
in regard to administration, one had to decide in regard to the allotment
of land, one had to decide on the technique of development, and, as is
usual, Mr. President, in the case of govemments, commissions are gener
ally appointed to go into the problems of a country at a certain time; and
we also find that in this case, a commission was appointed, in 1920, and
this commission was also extended in 1921-a commission appointed to
advise as to an approach to this Territory which had now to be adrninis
tered and which had now to be developed, a Territory with the character
istics that I have already tried to indicate. Avery basic question on which
the commission of 1921 advised was, in fact, Mr. President, the allotment
of land to varions groups in South West Africa, including also the landless
Herero at the time.
And one finds, Mr. President, if you go into the published sources, that
legislation was passed, since 1923 actually, acknowledging the rights of
groups in areas that they already had, areas that were recognized actually
by the Germans, but also creating and defining other areas, the so-called
Reserves, and, Mr. President, from what I can gather from the information,
this process went on for a long time, until ultimately one had 23 such
Reserves acknowledged for,defined, delimitatedand assigned tothevarious
groups in South West Africa.
I also think that one can pcrhaps say ac;an opinion that you had the WITNESSES A!\D EXPERTS
foundation laid there for a specific approach, that is, an approach based
on the individualistic nature of the varions groups in that terri tory.
This, Mr. President. was indeed the position that one finds by the end
of 1963, when yet another commission was appointed, the commission of
enquiry into the affairs of South West Africa, of which, as I have told
the honourable Court, Mr. President, I have been a member.
Mr. MULLER: Professor Bruwer, may I just interrupt. J do not want
you to explain to the Court the details of the recommendations of this
commission-that information is before the Court. Can you very briefly
tellhe Court the main principal recommendations made by the commis
sion?
Mr. BRUWER:Mr. President, the Odendaal Commission, as it is popu
larly called on account of the fact that Mr. Odendaal was the chairman of
that commission, made extensive tours in the terri tory; they called for
evidence and, on the basis of ail the information that this commission
could find at that time, and that wassubmitted tothem, the commission had
to recommend-according to the request of the Govemment-a further
phase ofdevelopment, especially in regard to the varions indigenous groups.
The commission had to do, and also found that you have to do, with a de
facto position, namely a position where for a generation the individual
nature and the individual areas of habitat, also called Rcservcs, ofcertain
groups, and also of course the individual nature of farms and townships
and of the functioning institutions, had actually existed and one now has a
basis on which you have to recommend a further phase of development.
Now, Mr. President, from what the commission could gather in regard
to the approach itself, that is, approaching on an individualistic basis,
recognizing the human factor in regard to development-from what the
commission could gathcr from the evidence submitted to that commis
sion, the commission was very definitely impressed by the fact that the
majority of the people of the varions groups that submitted evidence to
the commission wanted to retain their areas, they wanted to retain their
identity, and they wanted to develop as a community.
Naturally, the commission, in accepting this basis of approach, at once
found it unfeasible with the idea of community development if you have
a great number of areas and people are staying in a small area here and a
small area there. As I have already said, there were 23 such areas, Mr.
President, if I remember well; and that was the basis on which the com
mission defined their concept of what they called "homelands". That is,
they recommendcd a greater consobdation of areas ofhabitat, and on that
basis now a community developmcnt recognizing the human factor inher
ent in that community; in other words, the achievcmcnt through that
creative genius J have already spoken about, as the basis to go on with the
entire process of development in the modem sense of the worcl.
It must be remembered, Mr. President, that the commission had to do
with a comprehensive five-year plan, but if I am pennitted to say so, the
commission also very definitely knew that on the basis of its recommen
dations they would be building on a concept, mainly a concept of recog
nizing different communities, and basing the development on that com
munity and keeping in mind the wishes of the majority of the people.
l\fr.MULLER: Professor Bruwcr, will you state your opinion as to
whether there is an inclination amongst the people of South West Africa
towards forming an integrated whole-one unit.
Mr. BRUWER: Mr. President, J cannot say that because I have never262 SOUTH WEST AFRICA
corne across anything that convinced me of such a desire, either in the
past or in the present. It must have been clear to the honourable Court
in my very brief explanation in regard to the ethnie background that,
notwithstanding the fact that these groups had stayed in close proximity
to one another, in some cases for a long span of time, they had never
really inclined towards a unitary system or one society, one centralized
form of governrnent, Mr. President. But neither the commission, nor I
myself in the capacity as research worker, have ever been irnpressed by
facts or by possibilities in regard to such an inclination, bccause I simply
have not corne across them. I admit that there are individuals and that
there also are certain political organizations tha.t have expressed such a
desire,but it is my earnest deduction and my conviction that they do
not represent the wishes of the rnajority in any one of these groups,
neither the wishes of the majority within the population as such.
Mr. MULLER:Can you in this particular regard tell the Court about
your experience as Commissioner-General of the Bantu people, or the
Native people, of South West Africa?
Mr. BRUWER:Mr. President, I have had experience as Cornmissioner
only for one year, and I have tried to give guidance where I possibly
could in regard to the initiation of the technical development in South
West Africa, and also by name in Ovamboland.
Now, Mr. President, the honourable Court will recall that in regard
to the political development recommended by this commission, the
Government of South Africa shelved that recommendation for the time
being, I suppose; but I was very much interested, Mr. President, to find
that after the White Paper on the recommendations of the commission
was published by the South African Government, the Ovambo people
came forward with a very strong request tome as Commissioner-General,
to the extent that they wanted the Government to carry on also with the
recommendation of that political development in Ovamboland, and with
the consolidation of Ovamboland as a definite homeland and territory of
abode for the Ovambo people. This request was submitted tome and in
my capacity as a Commissioner-General I also transmitted it to the
Government of South Africa. That is the only example of this nature
that I have as practical experience; as a Commissioner-General I natur
ally concentrated mainly on Ovamboland, for the simple reason that many
of the great development projects were going on there, and that my
place of abode was also in Ovamboland.
Mr. MULLER:Will you state to the Court what in your opinion are the
basic advantages of the policy of separate development which is applied
in South West Africa.
Mr. BRUWER:l\Ir. President, the question embodies the use of a term
"separate development", and I take it that I must take that policy to
mean a policy applying an individualistic approach to a community of
people, and recognizing the human factor in that cornmunity, and deve
loping on that recognition that community as a community.
Now, Mr. President, if my interpretation then is correct, I can honestly
say that I can mention certain advantages of such an approach. I do not
want to go into any philosophical discussion, Mr. President, in trying to
give my reasons, but it must have been clear to the honourable Court
that I do have respect for the achievements of the African peoples as
peoples, and naturally, when you recognize by means of the separate
development-if you recognize the configuration of the people as a WlTNESSES AND EXPERTS
people, based on those differences that I tried to mention, you undoubt
edly respect the systems of value of that people, and that in my opinion
is avery great consideration as a social anthropologist, as a scientist, but
also as an ordînary human being also belonging to a specific group of
people.
But, Mr. President, where one has to do ,vith a factual position, as one
bas in South West Africa, you have to recognize certain rights and certain
values that have been based on an individualistic approach over cen
turies. One bas, for instance,the question of land rights, or assumed land
rights then,Mr. President, you have the concept of these groups claiming
certain areas as being their territories of abode; but in recognizing,
especially where one has to do with a situation like that in South West
Africa, especially in1920, it is to me natural, and it is also logical, that
one should offer that essential protection if you have to administer the
people, and your practical and factual situation boiled down to the fact
that you had to do with various peoples, each one having rights which
you now had to protect, you had to offer the essential protection.
But, Mr. President, if we look at South West Africa, if we have in
mind the position during the nineteenth century, if we keep in
mind even the position that existed by the beginning of this century,
where you had-on what basis it might have been is not of concern here
one of the groups of South West Africa, the Herero, absolutely deprived
of everything,can one say that if you did not recognize certain rights. if
you did not protcct certain rights, if you did not also band back certain
things to people who looked upon it as being their possession, could one
say that it would have been possible for the peaceful development that
we had in South West Africa?
Mr. President, I told the honourable Court yesterday that I have
travelled through quite a number of territories in southern Africa, and
I can, without any doubt, and purely as a matter of objective evaluation,
say that there is no territory in southern Africa so difficult to develop,
physically and otherwise, as this very Territory of South West Africa.
And I must say, notwithstanding the fact that I am also South African,
Mr. President-! doit as a scientist, on the basis of my declaration-that
the successes that have bcen achieved in South West Africa, the peace
that has existed there over the generation that we have been busy, could
only in my opinion have corne into being as a result of this respect that
was given to the human factor in communities, and if I may put it in that
way, also then the dignity of specific groups of the people of South West
Africa.
But, Mr. President, I can mention another advantage in my opinion of
this approach, and that is that this approach-and I am talking about
the approach called in the question separate deveJopment--does not only
at any given time, as it does at present, comply with the wishes of the
majority ol people within a group, but it also, to my opinion, Mr. Presi
dent, has that flexibility of adaptation in an evolutionary way to the
changing situations and changing conditions that of necessity corne in the
history of any territory and of any people. And that flexibility, Mr.
President, does not enforce anybody to abandon that heritage, and to
these people it is a sacred heritage, that sacred heritage of their own ·
creations through their own genius. And, l\Ir. President, this is to me one
of the greatest advantages of such an approach under given circum
stances, with a given situation and where you have to do with a variety SOUTHWEST AFRICA
of people. I cannot see that for the interests of these people one can say
that I must now destroy everything, and I must now start with something
alien to everybody; and on that basis, as a result of the flexibility of this
approach, to keep in mind the human factor, the human values, differing
as they may be, and build on that basis towards your ultimate future,
I give my opinion.
Mr. MULLER:Professor Bruwer, you have indicated to the Court the
various areas occupied by the different population groups. As a matter
of fact, of course, there are in the southem portion of South West Africa
a number of the indigenous people living in what is generally regarded as
the European area. What provision is made for them in the scheme or
system of separate development?
Mr. BRUWER:Mr. President, it is naturally true that there are a sub
stantial number of people of various groups staying especially in the
area of-supposed. to be then-the Caucasoids or \Vhites. Now, Mr.
President, I have already indicated that the entire approach, to me,
appears to be, according to my deduction, that the rights and privileges
of the various groups were given to them protected and ensured on the
basis of the territorial units that came into existence. And if one has to
apply that, Mr. President, according to all rules of logic, I think one must
also apply it to this group, on that basis of now ensuring the rights of that
specific group against possible encroachment by others. But then we must
never forget, Mr. President, that in doing so you have already given the
rights to those people in their specific area of abode, and what is excluded
for them here in this one area, now in this specific case, that is to say the
Caucasoid or White area, is naturally also excluded for the Caucasoids
or \Vhites, in their areas, that is the areas of other people. For instance,
it may be, Mr. President, that I would personally like to, say, go and
reside in Ovamboland, perhaps one day when I am finished with my
work, because I like the people, I am interested in them, but then I will
be encroaching on the rights of the Ovambo people, and that is the basic
reason for my contention for this type of approach whereby you ensure
protection in an area for a certain group, and that protection is a pro
tection for every single group and applies also in cases where one has
members of other groups staying within the society of a specific group.
Now, Mr. President, it is true, and it is also a phenomenon, that this
type of thing fonctions on a very broad basis. I have found for instance
the interesting phenomenon that in the areas of the people where I have
done research work you may also find, and one does also find, that there
are Bushmen working for the Bantu people, but they are not absorbed
in the society. In Rehoboth, for instance, I have found that there are,
say, Dama people, and Nama people even, but they cannot attain citi
zenship of the Rehoboth area; they are excluded by the Rehoboth people
themselves on the basis of their old patriotic laws; they are not citizens
of Rehoboth.
It is the strange phenomenon, Mr. President, that a group of people
certainly wants to maintain its unity, and if that was not the case, then
surely after 400 years we would not have had the problem that we have
in South West Africa in regard to the variety.
Mr. MULLER:Professor Bruwer, finally, will you state to the Court
your opinion as to what the effect would be if the present measures of
differentiation on the basis of membership in a group were to be done
away with? WITNESSES ANDEXPERTS 265
Mr. BRUWER:Mr. President, I did not gct the question very well,
Iam afraid.
Mr. MULLER:Then I shall repeat it to you. Will you state your opinion
as to what the effect would be if the present measurcs of differentiation
in South \Vest Africa, based on the membership in a group, were to be
done away with?
Mr. BRUWER:Mr. President, prediction is naturally bascd on opinion.
I have quoted certain, what in my opinion are, advantages of a certain
approach, having in mind the situation as I know it and as I interpret it.
Now, Mr. President, naturally if you do away with this system at a
specific moment, or let us say momentarily, you discard an approach
that has been going on not only during the period of the Mandate, but
long before that. If you discard that, Mr. President, then naturally all
the advantages that I have explained as being my opinion, will disappear.
In practice all the essential measures of protection will fall away. There
would be no protection of land rights, there could be no protection of
language rights, I am afraid; now what can be then the predictable
consequences of something like that?
]'l'. resident, if we had to take as an example what happened and did
happen in the previous century, then one would immediately say that
there would be a violation of rights, or assumed rights, and such violation
would undoubtedly lead to friction, and perhaps cven more than friction,
perhaps even struggle; but there is also this other predictable conse
quence, Mr. President, and that is that one will destroy that which I have
pleaded for as being the achievement by people themselves, and I do not
think that I would ever be able to agree to an approach where one
destroys a people even through other than physical means, Mr. President;
but as far as South West Africa is concerned, I also think that the one
group, either on the basis of numbers or on the basis of economic strength,
will undoubtedly domina te the other group if you have not got protective
measures; and I also think, Mr. President, that one can say that if you
have now to start a novel or a new system, an alien system, you will very
definitely retard the process of evolutionary development that has been
going on for the last 40 years approximately after the assumption of the
Mandate.
Mr. MuLI.ER: I have no further questions at the moment, Sir.
[Public hearing of 5 July z965]
The PRESIDENT:The hearing is resumed. Mr. Muller, would you recall
the witness to the stand?
Mr. MULLER:Mr. President, I have no further questions to put to the
witness.
The PRESIDENT:I recognize the Agent for the Applicants.
Mr. GROSS:The Applicants would wish to cross-examine this witncss,
Mr. President.
The PRESIDENT:Certainly.
Mr. GROSS:Dr. Bruwer, I shall endeavour to speak slowly and dis
tinctly,and if you would be good enough, Sir, to let me know if I am
speaking too quickly, or if you wish me to rephrase my questions, will
you please not hesitate to do so?
I should like to start, Dr. Bruwer, by asking you, with respect to the
matter of qualification, whether there is a distinction between a sociolo- 266 SOUTHWEST AFRICA
gist and a social anthropologist as a matter of scientific discipline, and
ifso, what the distinction would be?
l\Ir. BRUWER:Mr. President, I think there is a very clear distinction:
the social anthropologist mainly confines his study to what one may
perhaps caJl the organic societies, whereas the sociologist, as I understand
it. confines his studies mainly to the ordinary type of society, or what
one could call the western type of society; but, Mr. President. if I could
perhaps give my own opinion, it is very difficult really to say exactly
where the one ends and the other one starts-it is very difficult.
Mr. GROSS:There is a degree of overlap, is there not, would you agree,
between the two disciplines?
Mr. BRUWER:Whether I would agree between the two disciplines?
Mr. GROSS:Weil, let me just ask you: what was the basis upon which
the Odendaal Commission report was studied and considered from the
point of view of sociology-was there a sociologist connected with the
Commission?
Mr. BRUWER:Yes, Mr. President, the Secretary of the Commission
was a trained sociologist.
Mr. GRoss: You were a member of the Commission, I believe you
testified, didou not?
Mr. BRUWER:That is correct.
Mr. GRoss: And you signed the report of the Commission?
Mr. BRUWER:That is correct, Mr. President.
Mr. GROSS:In connection with your duties on behalf of the Com
mission or in respect of its work, did you make recommendations on the
basis of sociological studies of your m.vn?
Mr. BRUWER:Yes, Mr. President, I dcfinitely advised the Commission
as to the institutions of the various peoples as they exist, according to
my studies.
Mr. GROSS:Now, I should like to ask you one or two questions about
the Odendaal Commission as to which you generally testified. How many
members of the Commission were there?
Mr. BRUWER:Mr. President, the Commission consisted of Mr. Odendaal
·as the Chairman, Dr. van Eck, Professor Snyman, Dr. Quin and myself,
and then the Secretary, Dr. Claassen, and also an Assistant Secretary,
Mr. Weideman, and then Mr. Allen was also aiding the Commission· in
regard toits work, where it was necessary.
Mr. GROSS:\Vere any of these distinguished gentlemen who composed
the Commission residents of South West Africa?
Mr. BRUWER:No, l\Ir. President. none of the Commission members
except the Assistant Secretary, who was residing at the time in South
West Africa, resided in South West Africa.
i\Ir. GROSS:\Vere there any members of the Commission who are
generally classified as "non-White" under the census categories of South
Africa?
Mr. BRUWER:No. Mr. President, not that I know of.
.l\Ir. GRoss: Are ,•ou doubtful about whether there were or not, as
rnernbers of the Commission?
Mr. BRUWER:Mr. President, according to my own reckoning ail the
members of the Commission are classified as "\\'hi tes".
l\.Ir.GRoss: How large a staff did the Commission have, Dr. Bruwer?
Mr. BRUWER:M.r.President, the staff of the Commission, if I take that
to mean the people who helped with the ordinary office work-we had \VIT~ESSES AND EXPERTS 267
six ladies,ut the number of the staff differed from time to titne accord
ing to the pressure of work at that specific time of the Commission.
Mr. GRoss: You do not need to bother with detail, unless vou wish to
Dr. Bruwer. Were any members of the staff persons who were classified
as "non-White"?
Mr. BRUWER:Mr. President, no, not that I know of.
Mr. GROSS:You would know, would you not, Dr. Bruwer?
Mr. BRUWER:I said "no", Mr. President.
Mr. GROSS:Thank you. I turn now to the terms of rcference of the
Commission, Dr. Bruwer, and call attention particularly to the first
paragraph, which reads as follows in defining the task of the Commission:
"... to enquire thoroughly into further promoting the material and
.:mral welfare and the social progress of the inhabitants of South
West Africa, and more particularly its non-White inhabitants ... "-
that is a correct reading of the ten,1s of re!~rence in that respect, is it
not, Sir?
Mr. BRUWER:That is correct, Mr. President.
Mr. GROSS:Did the Commission, pursuant to that term of reference
which I have just read, make enquiries into considerations affecting the
moral welfare of the inhabitants of the Territory?
Mr. BRUWER:Mr. President, yes, if I understand by "the moral
welfare of the inhabitants of the Terri tory" the general spiritual welfare,
the Commission did.
Mr. GRoss: Did the Commission, so far as you know, and I would ask
you to speak for yourself unless you wish to speak with regard to other
members of the Commission as well-did you, let me ask you fi.rst,
approach the task as a member of the Commission in the respect I have
just mentioned on the basis, or with regard to, the following excerpt
which I shall read from the report itself; do you understand my question,
Sir?
Mr. BRUWER:Yes, Mr. President, I think I do.
Mr. GRoss: I read from page 427, paragraph 1431, of the report as
follows:
"The moral and economic principles of a modern economic system
are different from those of traditional groups wherc the group and
not the individual is the focal point. The modern economic system
and the traditional system are thcrefore not comparable or readily
reconcilable. Their problems are different, their human values and
motivations are different. Consequently there has to be a differ
entiated policy ... "
Keeping in mind that approach, or that conception, if I may call it
either of those terrns, did that conclusion reflect a consideration or con
siderations by the Commission relevant to the moral welfare of the
inhabitants, let us say, of the Police Zone, the southern sector?
Mr. BRUWER:Mr. President, I think it clid.
Mr. GRoss: Now, on what basis, or standards or criteria, did you as
a member of the Commission consider the matter in the light of moral
welfare and social progress in relation to the conclusion I have just read;
what standards or criteria did you use?
Mr. BRUWER:Mr. President, the position that confronted the Com
mission in regard to the population groups in the southem sector of
South West Africa was, indeed, a very complicated problem, and the268 SOUTH WEST AFRICA
Commission, having had regard to the basic problems~problems of
unemployment that sometimes came to the fore, problems in regard to
housing, and other problems in regard to what I would cati the moral
well-being of people-and keeping in mind the fact that people more
often than not can adapt themselves to a certain situation in a better
way when they understand the norms and values of that society, recom
mended also in regard to the southern population that there should be
an expansion, there should be an extension, there should be a more
closely linked society where people understand one another and where
they understand the principles underlying that society, and on that
basis the Commission was quite clear in its mind that for the moral well
being of these people they should be developed as communities.
Mr. GRoss: Dr. Bruwer, when you refer to "these people" would you
be more specific, please, as to which people you are talking about ...
Mr. BRUWER: The people that were at the time not staying in what
one could call an "integrated" community.
Mr. GRoss: For example, a non-White who was living as a servant in
the home of a White, let us say, in Windhoek. Would that be one among
the category of people to whom you refer?
Mr. BRuWER: That may be one, Mr. President, but naturally also it
does not mean that such a man may, of necessity, be in a position where
he isnot part and parcel of a community. He may perhaps just have
been working there· for a certain time, he may just be employed there.
Mr. GROSS: How much time would you say must clapse from the point
of view of sociology or social anthropology before he ceases to be a person
to be regarded as a member of a group, of a social unit, rather than as
an individual?
Mr. BRUWER: Mr. President, according to my own opinion, I doubt
very much whether one can within one's own lifetime really dissect
oneself from a background in which one was born.
Mr. GRoss: Let us say that you, as a member of the Commission, are
making an inquiry into the extent to which this individual has dissected
himself from the background into which he was born. What standards or
criteria would you apply as a social anthropologist, in making such a
determination?
Mr. BRUWER: Mr. President, I would find out whether that man is
still linked to either lineage a clan that is, or, if I take the two things,
are represented in this community, and if he still looks upon himself as
being a member of such a lineage or member of such a clan or a member
of"such a kinship group, then I would stiU take hirn ta be an indivi<lual
being still attached to his group.
Mr. GROSS: Is the question, or of the extent to which he looks upon
himself in that respect, a matter for his determination in whole or in part?
Mr. BRUWER: Mr. President, it ail depends how one approaches it.
I think that he as an individual will probably have some opinions about
it, but the mere fact that he still belongs to a community still makes him
an individual of that community.
Mr. GROSS: Now, therefore, the Commission of which you were a
member, and you in particuiar as a member of the Commission, were
required, were you not, to make decisions of a rather important con
sequence and scope with respect to whether a particular individual or
series of individuals viewed as such had become the focal point of the
modern economy of the southern sector? I use the phrase used in the WITNESSES AND EXPERTS
Odendaal Commission report which I have just rccently quoted at the
record.
l\IrBRUWER:Mr. President, I did not get the question. I got the frame
work of the question but l dicl not get the question.
Mr. GRoss: Let me try to clarify it and please do not hesitate to ask
me to restate, particularly ifI become too involved.
In the excerpt J read from the Odendaal Commission report, a dis
tinction is drawn betwecn the group and the individual as to what are
called "focal points", and the statement is made that in the modern
society the individual rather than the group is the focal point. 1 asked
you, and repeat the question in a revised form, whether you, as a member
of the Odendaal Commission, considered the matter in the light of deter
mining whether an individual or series of individuals had become focal
points in a modern economy, or whether their group was still the focal
point from the standpoint of your Commission's recommendations.
Mr. BRUWER: l\frPresident, the Commission ccrtainly did discuss
this matter, but the Commission came to the decision that the indi
viduals still form part and parccl of a community-a community of
people.
Mr. GROSS:This is truc of all of the inhabitants of the southern sector?
Mr. BRUWER:Mr. President, that is true. There is onlv one case that
I can think of where the Commission came to a decision 'that one bas to
carry on in a specific way and that was in regard to only one group of
people.
Mr. GROSS:I did not hear the last part of the answer, Dr. Bruwer.
Mr. BRUWER:That was in regard to one group of people.
Mr. GROSS:I am not talking about groups of people at the moment,
Dr. Bruwer. May I invite your attention to the question, with respect
to the individual person as the focal point as distinguished from the
groupas the focal point. I am using the phrase used in the Commission
report. What did you as a member of the Commission take as a basis for
your judgment concerning whether a particular individual in the Southern
sector had become a focal point in the sense used in the Commission report?
Mr. BRUWER: Mr. President, I have already tried to answer that
question by saying that the mere fact that an individual was still part
of a community by belonging on the basis of kinship and on the basis of
his use of the language to a certain group, but naturally it was not pos
sible to go to every individual and ascertain whether that specific one,
single, individual still complies to it-that I do not think was possible
for the Commission, Mr. President.
Mr. GRoss: Do you consider, as a social anthropologist and as a mem
ber of the Odendaal Commission, that there are any individuals cate
gorized as non- \Vhite in the southern sector who have attained the
status of the focal point as an individual?
Mr. BRUWER:Mr. President, the focal point, that is where one can now
say that it is the criterion of the modern economy that complies, I think
that one could well say that there may be individuals of that nature.
Mr. GROSS:Now, what would the criteria be, ifany, on the basis of
which a determination could be made with respect to whether a particular
individual has attained that status, if you would concede it to be a status?
Mr. BRUWER: Mr. President, the considerations of the Commission
there, if I remember well, were, firstly, that if one approaches on the
basis of giving certain rights and privileges in a certain area to a group,270 SOUTH WEST AFRICA
then you must also protect that from other similar groups that you have
given similar rights and privileges, and this approach, as I have tried to
explain, was based on a factual position, having regard to the existing
areas that were allotted to people and where people practise certain
rights and privileges, and that was the general framework within which
the Commission recommended.
Mr. GRoss: Perhaps we can approach this from another angle and
receive further elucidation on this complex matter, to understand better
what the actual phrases and conclusions employed in the Odendaal Com
mission report in this respect mean, or are intended to convey. In your
testimony Iast Friday you testified in response to a question concerning
the effect of doing away with "the present measures of differentiation in
South West Africa", that, in terms of your response, the advantages of
what you describe as a "certain approach" would disappear. That is a
fair reading of your testimony, is it not, sir?
Mr. BRUWER:It appears so, Mr. President.
Mr. GRoss: That is on page 265, supra, of the verbatim record of
Friday, 2 July. Having in mind the expression you used, "a certain
approach", I should like to ask you to comment as to whether the fol
lowing statements, appearing in the Rejoinder, V, are relevant to, or
reflect the certain approach which you had in mind. I read from the
Rejoinder, V, pages 251-252:
"The only possible way out ... is ... that both, i.e.,the White
man and the Bantu, accepta development separate from each other.
The present Government believes in the domination (baasskap) of
the White man in his own area, but it equally believes in the domina
tion (baasskap) of the Bantu in his area."
I should like to continue reading. I shall identify the source before I
conclude my question. I should like to continue reading the same state
ment from the same page.
"South Africa is at the crossroads. lt must be decided whether it
will go in the direction of a multiracial society with a common
political lifeor whether it will bring about total separation in the
political sphere.
I also see to it that I choose a course by which on the one hand
I retain for the White man alone full rights of government in his
area, but according to which I give to the Bantu, under our care
as their guardians, a full opportunity in their own areas to put
their feet on the road of development along which they can make
progress in accordance with their capabilities. And if it so happens
that in future they progress to a very high level, the people living
at that time will have to consider how further to reorganize those
relations."
I should like, specifically, to call your attention to the expression
"the present government believes in the domination (baasskap) of the
White man in his own area, but it equally believes in the domination
(baasskap) of the Bantu in his area". This, as you may recognize, is a
statement made by the Prime Minister of the Republic of South Africa,
in 1963, in the House of Assembly. ls the statement I have just quoted
relevant to, or part of what you describe as a "certain approach" in your
testimonv?
Mr. BRUWER:Mr. President, I would not be able to s::iwhether that WITNESSES AND EXPERTS 271
is relevant. When I used the word et al., an approach, I had in mind the
,approach of developing communities on the basis of recognizing the
human factor, the systems of value as I tried to explain, in the process
of development.
Mr. GROSS:Dr. Bruwer, I think perhaps ...
The PRESIDENT:Had the witness fmished his reply?
Mr. GROSS:I beg your pardon, sir. If I haveinterruptedyou,l apolo-
gize.Had you fi.nished, sir?
Mr. BRUWER:Not yet, Mr. President.
Mr. GROSS:I beg your pardon.
Mr. BRUWER:Mr. President, I also want to say that in respect of the
quotation there, two major groups are put in juxtaposition against one
another, if I may use that word. For instance, now, I think we said the
White man and, on the other hand, the Bantu. Now, I have tried to
indicate to the Court that we have in South West Africa, not only White
people and Bantu but also other people. The approach that I spoke of
was the approach based on my conviction as a social anthropologist, that
one should not,at a specifi.c moment of time-1 think I used the word
"momentarily"-discard those values but that you should make use of
the values, and that on those values you should base your development
ofthat communitv.
Mr. GROSS:Do· you intend that to be a full reply in respect of the
question concerning whether the policy of domination by the White man
in his own area reflects a part of, or all of, the approach which the Oden
claal Commission used in re<_Lchinigts recommendations?
Mr. BRUWER:Mr. President, I would put it in this way, in answer to
the question,that it was to the Odendaal Commission and also tome, in
the type of analysis that I made, a question of exercising one's rights
and one's privileges within an area assigned to you.
Mr. GRoss: Exercising one's rights and privileges ...
Mr. BRUWER: In the area that is looked upon as belonging to you,
Mr. President.
Mr. GROSS:The exercise of an individual's rights and privileges, or a
group's rights and privileges, or do you distinguish between the two?
Mr. BRUWER:Mr. President, I do not distinguish between the two,
since a community or a group is necessarily composed of individuals, so
ifit is a question of exercising rights and privileges of a group in an area,
it a)so means the exercising by every individual of that group, the exercis
ing of the rights in that area.
Mr. GRoss: You say that groups are always composed of individuals.
Are rights of individuals always determined by membership in a group?
Mr. BRUWER:Mr. President, may I start off by saying that if I said
that a group is composed of individuals, then the defi.nition of such a
group tome, as a social anthropologist, is, of course, where the individual
is integrated into that group, as an organic group, by means of the various
factors that I have tried to explain. Now, on that basis I would very
defi.nitely say that the group is composed of individuals, and that every
one of those individuals has a part in the rights and privileges of that
group.
Mr. GROSS:Isa White person, a person classifi.edas White, who lives in
South West Africa, in a different position by reason of the fact that he is
a member of the White group, just by reason of that fact alone, in any
respect?272 SOUTH WEST AFRICA
Mr. BRUWER:Mr. President, as far as lknow, in regard to the infor
mation that one finds in publications, it would appear tome that there
are certain rights assigned to White people staying in South West Africa,
in their area or in the area that is assumed to be their area.
Mr. GROSS:What area is that, sir?
Mr. BRUWER: The central part of South West Africa, comprising
certain individual farms and townships where one also has individual
ownership of plots of land and houses.
Mr. GROSS:Is that area commonly referred to as the southern sector
or Police Zone?
Mr. BRUWER:No, Mr. President, the southern sector or the Police Zone
also comprises a number of other arcas, apart from that which is usually
looked upon as being the White area.
Mr. GROSS:What is the identifying characteristic or what are the
identifying characteristics of the "White areas" of the southern
sector?
Mr. BRUWER:Mr. President, I would say the individual land tenure
is a very deciding factor, and also the urban communities that one finds
in that area.
Mr. GROSS:They are regarded as White because there are Whites there
or because \Vhites own land there? Did I understand your answer
correctly?
Mr. BRVWER: Mr. President, I would tbfok that it is generally called
the \Vhite area on account of the fact that Whites have individual land
tenure in that area.
Mr. GRoss: Therefore, would a White person who did not own land
be in a different category from a White person who does?
Mr. BRUWER:Mr. President, no, I would not say that.
Mr. GROSS:This is the onlv distinction, is it, that makes it a White
area or justifies the use of thit term?
Mr. BRUWER:That is how I understand it, Mr. President.
Mr. GRoss: What is the total population of the southern sector?
Mr. BRUWER:Mr. President, I cannot remember everything offhand
but the total population of South West Africa, if I remember well, is
about 526,000. Now, of that population, the northern part would be
about 240,000, Mr. President, plus ...
Mr. GRoss: The information fumished to us by the Odendaal Com
mission report, makes it approximately 240,000--you would accept that
as an approximation, would you?
Mr. BRUWER:I would accept that, Mr. President.
Mr. GRoss: Thank you. Could you advise the Court approximately
how many of these 240,000 are classified as White persons, in the southem
sector?
Mr. BRUWER:Mr. President, if I remember well, the figure is some
where around 73,000 for the census of 1960.
Mr. GRoss: So that approximately 170,000 or 160,000, in round num
bers, are classifi.ed as non-White? Is that correct?
Mr. BRUWER:Mr. President, yes, ifone has them classifi.ed in a cate
gory but not in groups.
Mr. GRoss: Would you please explaJn that? On what basis are they
classified as White or non-White?
Mr. BRUWER:Mr. President, I think the basis I have given in the
answer. As a social anthropologist, of course, I do not classify people on WITNESSES ANDEXPERTS 273
that basis. I classify them as belonging to a group and then I give the
name of the group.
l\Ir. GROSS:As a member of the Odendaal Commission, as well as a
distinguished social anthropologist, did you consider the classification
adopted by the Government with respect to the rights. duties and
privileges of individuals, in South West Africa?
Mr. BRUWER:We did, Mr. President.
Mr. GRoss: Are you familiar with those classifications?
Mr. BRUWER:l\Ir. President, if the classifications were put to me I
would know whether I am familiar with thern or not.
Mr. GRoss: May I read from the Memorials of the Applicants, I, p. 109,
the following census classifications, and ask if they were before you when
the Odendaal Commission considered the mattcr of the moral welfare
and social progrcss of the individuals? The first category is Whites who
are defined as follows:
"... Persons who in appearance obviously are, or who are gener
ally accepted as white persons, but excluding persons who, although
in appcarance are obviously white, are generally accepted as
Coloured persons."
Was that categorization of \Vhites known to you in your consideration
of the problems?
Mr. BRUWER:Mr. President, it appears to me as if the description
here is on the basis of exclusion.
The PRESIDE~T:Of what?
Mr. BRUWER:On the basis of exclusion.
l\IrGROSS:The description excludes persons who, although in appear
ance are obviously \Vhite, are generally accepted as Coloured persons.
Did you take into account this classification of White persons in your
consideration, as a member of the Odendaal Commission, with regard to
the rights, duties and privileges of inhabitants?
Mr. BRUWER:Yes, Mr. President, we did. \Ve have here to do with
two groups of people or rather, according to that classification then, the
Whitcs on the one hand. and then on the other hand. the Coloureds. Now,
in regard to the Coloured population of South West Africa, Mr. President,
it would have been noticed that the Commission did notrccommend an
area for the Coloured people.
Mr. Gnoss: Dr. Bruwer, I am not talking about groups or areas, I am
trying to engage you (and I hope I am not confusing you by my ques
tions), with respect to the individual person. I am referring to a census
classification which referso an individual and states that if, although he
is obviously White, he is generally accepted as Coloured, he is Coloured.
Did you talΠthat into account in considering your recommendations to
the Government?
Mr. BRU,VER:Yes, Mr. President, we did, when we were dcaling with
a group of people in the population of South West Africa that is known
as Coloureds.
Mr. GRoss: If an individual person is obviously White, but generaliy
accepted as Coloured, this classification puts him in the Coloured cate
gory-that is correct is it not?
Mr. BRUWER:Perfectly correct, Mr. President.
Mr. Gnoss: Dohis wishes or preference have anything whatever to do
with the decision that is made with regard to him, as an individual?274 SOUTH WEST AFRICA
Mr. BRUWER: Mi. President, that I would not be able to say or to tell
because the classification of the various people of South Africa is regu
lated, ifI remember well, by one or other law, in South Africa, and the
Coloured people from what I would gather from the available information
that I have, and from the descriptions, are generally described by means
of exclusion, Mr. President.
Mr. GRoss: On the other hand, Dr. Bruwer, Natives are defmed by in
clusion, arethey not, in the following respect; I read the census categories
from 1, page 109: "Natives: persons who in fact are, or who are generally
accepted as members of any aboriginal race or tribe of Africa." That is a
rather inclusive description, is it not?
And Asiatics are defined as "Natives of Asia and their descendants".
With respect to that classification, the place of birth appears to establish
the category-"Natives of Asia", or descendants of persons born in Asia.
Is that a correct understanding of this category?
Mr. BRUWER: Tome, that would appear to be a correct understanding,
Mr. President.
Mr. GROSS: I will ask your opinion about that classification, as a social
anthropologist, shortly, but for the sake of completeness I should now like
to read the classification of "Coloureds" from the same page, page 109, of
the l\lemorials: "Coloureds.-All persons not included in any of the three
groups mentioned above."
That then, would you say, is fairly to be called a residual category?
Mr. BRUWER: Yes, Mr. President, and as far as the Coloureds is con
cerned then on the basis of exclusion, if I understand that part of the
reference well.
Mr. GROSS: Did you say, "on the basis of exclusion", sir?
Mr. BRUWEH: Coloureds are apparently identified on the basis of exclu
sion from others.
Mr. GROSS: And soif a person is obviously White, but generally accep
ted as Coloured, he is Coloured, and I believe you testified astoyouropin
ion that that was because he was Coloured. Did I understand you correctly?
What is the basis of that classification, scientifically or anthropologically?
Mr. BRUWER: Mr. President, in answering the question of what the basis
lSI would very definitely say the basis here is sociologically,if I may put
it that way, but not physical anthropologically, of necessity, I have al
ready referred to the fact, Mr. President, that I am nota physical anthro
pologist and I would not like to explore all the avenues used by physical
anthropologists to classify people in a specific group or family of mankind,
but as far as the Coloureds are concerned, to me it would appear as if that
is a sociological classification.
Mr. GROSS: Asto which, if I recall your testimony correctly, the view or
wish, or will, of the individual himself has no relevance. ls that a correct
rendering of your testimon y?
Mr. BRUWER: Mr. President, I would not put itthat wav. I would not
say, yes, because as far as I understand that law, in regard tothe question
of classification of people, people have the right to make representations
in regard to the question of classification. Now, if I remember well, Mr.
President-that is not my main line, of course, not my discipline-from
what information I have in regard to this question of classification in
South Africa, there are apparently two guiding lines in regard to the ques
tion of classification.
The first is the ethnie background, if one may put it like that, and the WITNESSES ANDEXPERTS 275
second is the question of general acceptance or whether you are attached
to this group or that group.
That is how I understand it, Mr. President.
Mr. GROSS:Therefore, might I ask you this-1 address this question to
you as a member of the Odendaal Commission. What would be the situa
tion with Œspect to a person who, in the words of the census category, is
obviously White, but who, let us say, moves to an area where he is not
previously known and therefore is not generally accepted or rejected on
any basis other than his individual quality and perhaps appearance?
Would such a person be a White or a Coloured if, in his home area or his
former area of residence, he had generally been accepted as Coloured?
Mr. BRUWER:Mr. President, I do not know of cases ike that, but I
suppose if he had been accepted as a Coloured by the Coloured community
then he would be taken as a Coloured.
Mr. GROSS:And that is irrevocable so far as he is concerned in manner
of classification and its effects; is that correct?
Mr. BRUWER:I did not ...
Mr. GROSS:Is that irrevocable so far as he is concerned with respect to
such rights or duties or limitations which may be placed upon him by
reason of the fact that he is not White?
Mr. BRuWER:That is by deduction, Mr. President.
Mr. GROSS:This is an assumption, then, upon which the Odendaal Com
mission report presumably has considered the moral welfare and social
progress of individuals inthat category, if any?
Mr. BRUWER:That is so, Mr. President, but again on the basis of the
approach to the group.
Mr. GROSS:Dr. Bruwer, would you attempt-if you would be good
enough to-----whenwe are speaking about individual persons or persons in
a particular socialcontext, to distinguish to the extent possible between the
individual as such and the individual as a group. I state that as a prelim
inary to my next series of questions, all of which relattothe Police Zone.
There are, as I understand-correct me, please, if I am wrong-approx
imately 125,000 persons who are classified as non-White living outside
Reserves or so-called "home areas" in the Police Zone. Is that correct, Sir?
Mr. BRUWER:Mr. President, from my recollection of the figures the
Commission had before them that seems tome to be correct.
Mr. GROSS:Now these approximately 125,000 persans who live in the
Police Zone or southern sector outside Reserves or home areas, do they
reside in what you describe as the "White area"?
i\frBRUWER:Mr. President, they certainly are employed in that area.
Mr. GROSS:Do they therefore spend a good portion of their lives in the
"White area"?
Mr. BRUWER: Itwould be possible, Mr. President, that some of them
have been staying there for quite a part of their life.
Mr. GROSS:Did you make enquiries into that matter when you sur
veyed the situation of the Police Zone with respect to the Odendaal Com
mission programme?
Mr. BRUWER:Mr. President, we did enquire into the position in so far
that wetried to establish whether there isa movement from the Reserves to
the urban areas and back again, and the Commission very definitely got the
impression that there is such a movement of people from the so-called
Reserves to the urban areas.
Mr.GROSS:You mean tha t more people are leaving the Reserves to corne276 SOUTHWESTAFRICA
to the areas outside the Reserves, or more people are going to the Reserves
from the areas outside? Is there a tide one way or the other?
Mr. BRUWER:No, Mr. President, I would say that if one compares the
figures for various censuses then one would say that there is a greater
move actually from the Reserves to the urban areas, except, of course, in
the case of the northern territories where the movement is approximateJy
the same over the years.
Mr. GRoss: Now, with respect therefore to these approximately 125,000
persons who live outside the Reserves in the Police Zone, do they, or many
of them, occupy the same physical areas, geographically speaking?
Mr. BRUWER: In the White area, Mr. President?
Mr. GROSS:Yes, in what you have described as the "White area".
Mr. BRUWER:Yes, I would say that they occupy physically the same
area in the sense that they are on the farms and they are in the urban
areas.
Mr. GRoss: And do they con~titute a majority of the persans in those
areas?
Mr. BRUWER:They constitute a majority in the sense, Mr. President,
that they are, if one puts them in the one category that has been called
non-White, in the majority.
Mr. GROSS:The census categories to which I referre<l, Dr. Bruwer, dis
tinguish behveen "Whites", "Natives", "Asiatics" and "Coloureds". I am
referring to the category described as "N"atives" in the census category.
Do the Natives, as there described and defined, constitute a preponderant
majority, or a majority, of the total population in the so-called "White
area"?
Mr. BRUWER:Mr. President, as a factual position, and if by the term
Native is then understood the members of the various groups like Nama,
Herero, Dama, and so on, if the term Native includes those people, then
they are, at a specific moment, a majority in the so-called White area.
Mr. GRoss: Do laws and regulations pertaining to the individuals in
these areas refer to, or do they depend upon, their census classification?
Mr. BRUWER:Mr. President, the answer is, yes. From what I know
about the various laws, they depend on that classification.
Mr. GROSS:Are there any laws or regulations, of which you are aware,
which are applicable to certain portions of the Ban tu population in South
West Africa which do not extend to all who are classified as Natives?
Mr. BRUWER:Mr. President, yes, if I recollect there are certain regula
tions in regard, for instance, to the migrant labour of the Ovambo.
Mr. GROSS:As distinguished from the migrant of what other group?
Mr. BRUWER:As distinguished, Mr. President, from the migrant labour
of the Okavango, because the people of the Okavango, as far as I know,
can also migrate to other territories, for instance,South Africa, whereas
that is not the case with the Ovambo people.
Mr. GRoss: What would be the reason for that distinction?
Mr. BRUWER:Mr. President, I would not be able to give the reason
since I have not gone into all the different considerations that probably
accounted for the difference in this respect.
Mr. GROSS:You do not know the answer to that question, I take it.
There are, according to the Odendaal Commission report-! cite para
graph II3 at page 31 and following-numerous references of which I shall
quote one or two examples, and ask your comment with respect to the
significance of the phraseology used. On page 31 at paragraph II3 WITNESSES AND EXPERTS 277
of the Odendaal Commission report, it is stated as follows, and I quote:
"... Large numbers [this refers to Damara] were absorbed in the econ
omy of the southern part of the country and displayed exceptional
aptitude as cmployees."
\Vould you describe what is meant, or intended to be conveyed, by the
phrase "absorbed in the economy", which I have just quoted from the
report?
Mr. BRUWER:i\tlr. President, I takc that to mean that the large number
of the Damara then is employed in the economy of this White area.
Mr. GROSS:The "White area" being so characterized because of the
ownership, by Whites, of land, is that so?
Mr. BRUWER:That would be correct, Mr. President.
Mr. GROSS:In the Odendaal Commission report at page 425 in para
graph 1421, the phrase is used: "The White economy." Would you de
scribe the basis upon which that characterization or description is laid?
Mr. BRUWER:Mr. President, I think the term "White economy" would
probably mean the moncy economy, the economy based on money and
with speciftc reference to this area then called the Wbite area. I would take
it that it has to do with the economy of farming and also with the econ
omy of industries and the general type of economic development that one
fmds in what one can perhaps call this modern type of society.
Mr. GROSS:And do the persons classified as "non-White" serve in any
capacity in that "White economy"?
Mr. BRUWER:Mr. President, they serve in the capacity of employees,
as far as I know.
Mr. GRoss: Do they, as employees, have any relevance to whether the
economy works or survives?
Mr. Bruwer: Mr. President, I did not get the question.
Mr. GRoss: Does the fact that the persans classified as "non-White"
serve as employees in the so-called "\,Vhite economy" have any relevance
to the question whether the "White economy" survives or thrives?
Mr. BRUWER:Mr. President, I am not an economist but if I have to give
an opinion based on my ordinary evaluation of the situation, I would very
defmitely say that the fact that the, if we put it in inverted commas," non
Whites" are working in the \Vhite area is a very important contribution
towards the economy of that area.
Mr. GROSS:Then your description in the Odendaal Commission report
of the "White economy" refers to those who employ non-Whites and the
economy is characterized by that description for that reason, is that cor
rect?
Mr. BRUWER:Mr. President, I would not put it in that way, it would
appear to be like that but one can also put it in another way, and say that
you have here a situation whcre certain people are busy learning, they are
busy getting into something new which is alien to what they have been
used to, and one can therefore also look upon this form of economy,
although it is then called the White economy, as a school of learning for
these people.
Mr. GROSS:Now, with respect to the alien character of the so-called
"White economy" in the case of non-Whites, I refer to page 33 of the
Odendaal Commission report, paragraph 127, from which l quote: "Ap
proximately half of the Herero are absorbed in the diversified economy of
the Southern Sector of the country, ... " From your observations, as a278 SOUTHWESTAFRICA
member of the OdendaaJ Commission, in your enquiries in the Southern
sector, are you able to say approximately how ruany of these Herero per
sons you would regard as not alien to the economy, in the sense in which
you use the term?
Mr. BRUWER;Not alien to the economy, Mr. President?
Mr. GRoss: You describe the relationship, as I understood, of so-called
non~Whites in the economy as a relationship of being alien to whatever
the opposite would be, or the correlative would be. Did I understand you
correctly? If not I would be glad to rephrase my question.
Mr. BRUWER:Yes, I think so, Mr. President, but I did not get the ques
tion very well.
Mr. GROSS:Well, that is because I did not ask it very well,I am afraid.
I would like to refer to what I understood you to say when you answered
my question with regard to the designation of this as a "White economy",
despite the fact that its survival, or at least its success depends upon non
White labour. I understood you to say that you regarded it, and that the
Odendaal Comnùssion report refers to it, as the "White economy", be
cause those who are not White are alien to it. Is that a correct description
of yourtes timon y?
Mr. BRUWER:Mr. President, what I meant is that the White economy,
the money economy, is alien to the basiceconomic systems of these people.
Mr. GRoss: Now, you are talking about Hereros working and, as the
Odendaal Commission report said, who are "absorbed in the diversified
economy". Are you, sir, addressing yourselves to those people in connec
tion with the reply you just gave me?
Mr. BRUWER:Iam addressing myself to the basic Herero culture, Mr.
President, the culture of pastoralists, which I would not call a money type
ofeconomy.
Mr. GRoss: You are referring to the Herero culture, but we will refer
to an individual Herero, let us call him Thomas, and he is absorbed in the
diversified "White economy". Does he serve a purpose there, does he make
a contribution there to the success of the economv?
Mr. BRUWER:Mr. President, I think I alreacfy said that he would be
making a contribution to that specific type of economy then.
Mr.GRoss: Now does his individuaJ presence in that relationship lead
you to question, or does it affect your nomenclature with regard to desig
natin~ this as a "White economy"? I speak to you both as a social anthro
polog1st and as a member of the Odendaal Commission.
Mr. BRUWER:Mr. President, what I understand by a \Vhite economy
is the money economy, as against the other three economies that I tried
to explain to the honourable Court the other day-that is where one has
to do with the whole factor of money coming into the picture-but I am
a social anthropologist, of course, not an economist, so perhaps my
definition is not very clear; but the White economy, as far as I can under
stand the use of the word in this sense, means the money economy.
Mr.GRoss: Does the designation, Dr. Bruwer, have anything whatever
to do with the-! quote again from Dr. Verwoerd's comment-"domi
nation by the White in his own areas"; does the description of the economy ·
as a "White economy" have any relevance to that characterization by
the Prime Minister?
Mr. BRUWER:Mr. President, with this proviso that I stress again the
question of certain privileges and certain rights that people look upon
to have in certain areas. V>'ITNESSES AND EXPERTS 279
Mr. GRoss: By reason of being White and non-White?
Mr. BRUWER:By reason of belonging to different groups, Mr. President.
Mr. GROSS:I am referring to--could you answer my question, yes or
no-by reason of being White and non-\Vhite?
Mr. BRUWER:Yes, Mr. President, from what I gather.
Mr. GROSS:Do you, as a member of the Odendaal Commission, rely
upon impressions which you gather, or considerations which are based
upon study and knowledge?
Mr. BRUWER:Mr. President, we relied on ail information that we
could lay our hands on.
Mr. GRoss: Did the information upon which you relied bear upon the
following statement in the Rejoinder filed by the Respondent-VI,
page 283-in which, referring to the Job Reservation Act, the Rejoinder
states:
"The principles embodied in this Act are in accord with Respon
dent's general policy of conferring priority rights on the different
population groups in their respective areas"?
My question is whether the designation of the southern sector, or the
Police Zone, as the "White area", means that "priority rights", in the
language of this pleading, are conferred upon the Whites in that sector?
Mr. BRUWER:Mr. President, no, 1 would not say that it is correct if
one uses the term the "southem sector" or the "Police Zone", because
in the Police Zone one also has certain areas assigned to other people;
for instance, one hasthe Rehoboth Gebiet, and one has also the so-called
"Reserves" for the Herero; so that I would not say that it is correct if
the term "Police Zone" or "southern sector" is applied, because what I
understand the Police Zone to be, Mr. President, is the area south of the
so-called "Red" line, that is, the area in the north where there is no more
land utilized on an individual land tenure basis-that is, where one does
not find any more farms.
Mr. GROSS:Dr. Bruwer, I invite your attention to the areas outside the
Reserves where, as you have testified, some 125,000 persans classified as
non-White reside-I arn addressing my questions to that area. Leaving
aside the Reserves, do you regard the "priority rights" to which this
passage quoted from the Rejoinder refers, as being based upon White
membership or White classification?
Mr. BRUWER:That is how I understand it, Mr. President.
Mr. GROSS:Therefore I corne back to the statement by Prime Minister
Verwoerd concerning "White domination" in "his area", in the "White
area", and ask how it is deterrnined which area is White from the stand
point of domination, or if you prefer, "priority rights"? Do you under
stand my question, sir?
Mr. BRU,VER:I understand the question, Mr. President, and I would
sav that it is based on the area-call it, then, in the southern sector
excluding those areas where other groups have got rights, and excluding,
to my opinion, also areas that are looked upon as being Crown land or
State land.
Mr. GRoss: Therefore what your answer tome is. if 1 understand you
correctly, that the 125,000 persons living in the so-called "\Vhite economy"
and serving it are in a position where their rights are of lower priority
than those persons classified as White in that same area; is that a correct
version of your testimony?280 SOUTH \VEST AFRICA
Mr. BRUWER:Mr. President, yes, I would say their position is different,
altogether different.
Mr. GRoss: The position is different~sir, is that what you said?
Mr. BRUWER:Yes.
Mr. GROSS: In what respect is the position different, and whose position
is different from what?
Mr. BRUWER:Mr. President, the position of the non-Whites, using
that term, is different from that of the Whites .in that area as we have
now defined it in the sense that the "Whites" in that area have certain
rights and privileges which the "non-Whites" have not in that area.
Mr. GROSS:Would you repeat the last part of your answer, ifyou do
not mind, sir?~I did not catch it.
Mr. BRUWER:Whereas the "non-Whites", putting that in inverted
commas to indicate the category of people, have not; in other words, in
that area the "Whites" have certain rights and privileges which the
"non-Whites" have not; that is the two categories of people.
Mr. GRoss: In other words, the answer to my question as to priority
rights is "Yes, the Whites have priority rights in areas described as
White areas" -is that correct?
Mr. BRUWER:By this quotation?
Mr. GRoss: Yes. Now, who determines the extent of the "White area"
in which this priority or, in Prime Minister Verwoerd's words, "White
domination", occurs-who determines the extent of that area from time
to time?
Mr. BRUWER:Mr. President, that is determined by an historical pro
cess, but the ultimate determination would naturally be in the bands of
the Government who administer that area.
Mr. GRoss: And is that Government in the Republic of South Africa?
Mr. BRUWER:That Government is in the Republic of South Africa,
Mr. President.
Mr. GROSS:Is there participation in those decisions by the non-Whites
aflected by the decisions? ·
Mr. BRUWER: Mr. President, that will of course take us in to a long
explanation.
Mr. GROSS:Weil, may I rephrase the question to avoid a long expla
nation? For the deference to the Court, with your permission, Mr. Pres
ident, I withdraw that question.
Dr. Brmver, I have one or two more questions, with the President's
permission, with regard to the delimitation of the southern sector, the
"\Vhite area". On the basis of what criterion is the extent and the boun
dary of the southern sector determined?
Mr. BRuWER; Mr. President, from what I can gather from the histor
ical process the boundary of the southern sector bas been deterrnined
on the basis of farms existing at the time, and also places, for instance,
like Namutoni and Okaukuejo, that at the time of the German occupa
tion were looked upon as the northern points of control of that area-that
is how I understand that delimitation, Mr. President.
Mr. GROSS:Could you say, Dr. Bruwer, whether my understanding
is correct that the perimeter, the boundaries, of the southem sector have
been changed from time to time within recent years?
Mr. BRUWER:Mr. President, yes, that boundary has changed; accord
ing to the information that I have, it very definitely has changed.
l\fr.GROSS: Could you advise the Court, Dr. Bruwer, on the basis of WITNESSES ANDEXPERTS 281
what criteria or standards those changes were made by the S(?uth African
Government?
Mr. BRUWER:Mr. President, I would not be able to give reasons that
I do not know of, but as far as I can see, judging the situation from what
knowledge I have, one had the situation by 1920, and also during the
process of delimiting the various areas for the indigenous people as I
tried to explain previously, that a certain stretch of country was unoccu
pied, and according to what I can see is that the farm area was extended
northwards, if I may put in in that way, then-shifting the original line
north, if that is an answer to the question, Mr. President-that is how
I interpret the position.
Mr. GROSS:That was the purpose, if I understand you correctly-in
order to extend the farming area of the southern sector-did I understand
your response correctly, sir?
Mr. BRUWER:That is correct, Mr. President, according to how I inter
pret the position.
Mr. GROSS:When you testified on 2 July-1 referto page 261, supra,
of the verbatim record of that day-you referred to the necessity to pro
tect land rights and Ianguage rights. The extension of the southern sector
-did it or did it not have any cffect upon the land rights of individual
persons of any race?
Mr. BRUWER:Mr. President, as far as I know the position, the people
in the north had occupied areas up to a certain-one could not call it a
boundary, because there were no defined boundaries, but up to a certain
place southwards. The area in between the so-called "Red" line of that
time and the southern area or the southern lirait of the occupied areas
in the north were looked upon as being State land or Crown land, not
actually occupied by people except the Bushmen, as I told the honourable
Court the other day.
Mr. GRoss: Is it correct or not, Dr. Bruwer, that persons cJassified as
non-White may not own land in the southern sector?
Mr. BRUWER:Mr. President, I think it is substantially correct, again
if we qualify the southern sector.
Mr. GROSS: Pardon me, sir-I am talking about the southern sector;
could you answer the question "yes" or "no" whether non-Whites are
permitted to own land in the southern sector?
Mr. BRUWER:Mr. President, as far as I know they are permitted to
own land in the southern sector.
Mr. GRoss: Now, I am talking still about the areas of the southern
sector outside of the Reserves: are the non-Whites permitted toown land
in the southern sector outside of Reserves?
Mr. BRUWER:Mr. President, the Commission was told by the officials
of the Administration that it is possible for people under this category
"non-Whites" to buv land in the southern sector outside the Reserves,
and that would also"include the Rehoboth area in the term "Reserves".
Mr. GROSS:So that your understanding is that outside of the Reserves
(including the Rehoboth area as a Reserve), non-Whites may under cer
tain circumstances own land, acquire title to land-is that correct?
Mr. BRUWER:That is my understanding, Mr. President.
Mr. GROSS:Do you know, sir, what those circumstances are?
Mr. BRUWER:Mr. President, no, I would not be able to recall the cir
cumstances.
Mr. GROSS:Are non-\Vhites, or persons classified as non-\,Vhite, en-282 SOUTHWEST AFRICA
titled to obtain permanent residential rights or ownership in the urban
areas in the Police Zone or southern sector, outside of Reserves?
Mr. BRUWER:Mr. President, not that I know of, except the possible
qualification that the buying of land that \!lewere told about may per
haps also apply in the urban areas.
Mr. GROSS:Perhaps the Odendaal Commission did not enquire into
that question, Dr. Bruwer? I would like to point out to you, sir, that the
Counter-Memorial, 111, page 294, states: "Natives are not entitled to
obtain permanent residential rights or ownership in the urban areas in
the Police Zone." Assuming that to be a correct statement in the Respon
dent's Counter-Memorial, what would your explanation be for that re
striction?
The PRESIDENT:What do you mean by what would his explanation
be-terms of policy ...?
Mr. GROSS:Thank you, Mr. President-on the basis of what policy
considerations is such a restriction based, if you know?
Mr. BRUWER:Mr. President, if I can give my opinion as to the basis,
or the policy, on which such considerations are based, then I would say
that it is based on the differentiation between the two categories of
people that have been mentioned here-that is, the non-Whites on the
one hand and the Whites on the other hand, keeping in mind the whole
question of the privi1eges and the rights of a group of people in acertain
area.
Mr. GROSS:Just to understand the last comment, "keeping in mind ...
the privileges"-are the privileges to which you referred those reserved
to the Whites in the southern sector outside the Reserves?
Mr. BRUWER:That is what I had in mind.
Mr. GROSS:Now I should like to turn to your statement in your testi
mony on page 265, supra, of the verbatim record .of Friday, 2 July, in
which you referred to "a certain approach" as underlying the recommen
dations of the Odendaal Commission report and the policy of separation.
Keeping in mind the phrase "a certain approach", I should like to read
the following brief statement by Prime Minister Verwoerd which is set
forth in the Rejoinder filed by the Respondent, and which appears at VI,
page 41 of the Rejoinder; the quotation reads as follows:
"The Bantu must be guided to serve his own community in ail
respects. There is no place for him in the European community
above the level of certain forms of labour."
I ask you, ifyou will, sir, to state whether that îs relevant to the approach
to which you referred in your testimony as the basis, or one of the bases,
for your response to Mr. Muller's question.
Mr. BRUWER:Mr. President, I think it is relevant to that approach in
so far as the approach that I have been speaking aboutis certainly based
on the existence of various groups of people.
Mr. GROSS: "The existence of various groups of people"-in what
respect, sir, would you clarify that comment?
Mr. BRUWER:Mr. President, the existence of various groups of people
on the basis that I have already tried to indicate their distinguishability
to the honourable Court.
Mr. GROSS:Do I take it, then-I do not wish to argue with you, sir,
Iwant to make sure I understand you-that the statement which I have
just quoted from the Prime Minister to the effect that there is no place WITNESSES ANDEXPERTS
for the Bantu in the European community above the level of certain
forms of labour-do I understand your response to be that that restric
tion or sealing arises out of the fact that he is not White, orifthat is not
the answer, would you please indicate what the answer is?
Mr. BRUWER:Mr. President, I can make no other deduction from the
quotation than that it is based on the fact that the one is, as it is called
there, European, which probably then means White and the other one is
Bantu.
Mr. GROSS:Is any distinction made with respect to the fact of being a
Bantu, or being classified for this purpose as a Bantu, between the varions
cultures or cultural configurations of those constituent groups that make
up the Bantu?
Mr. BRUWER:Yes, Mr. President, there are very definitely distinctions.
Mr. GRoss: With respect to the fact that no Bantu can rise above the
level of certain forms of labour, does that ceiling or restriction have any
relationship to the group or faction to which an individual belongs, other
than the fact that he is a Bantu?
Mr. BRUWER:No, Mr. President, any Bantu, according to my know
ledge of them, can rise to any position in the same way as any person in
any other nation or group can rise, as I know them.
Mr. GROSS:This statement by the Prime Minister, may I remind you,
states that there is no place for the Bantu in the European community
above the level of certain forms of labour. Is it your testimony that this
is incorrectand that a Bantu in a European community can rise to a posi
tion higher than certain forms of labour?
Mr. BRUWER:Mr. President, I do not know exactly what is meant by
certain forrns of labour and naturally, my previous answer was a general
statement. I thought it was a general question, Mr. President. Now, as far
as the so-called European areas are concerned-or the European area then
-I have to deduct from the facts as I know them, that there are certain
restrictions in regard to the question of employment, but on the other
hand again, there are also indications. Now, if we take for instance, the
question of teachers, of Bantu-speaking people who are teachers in a so
called European area then, I know of no ceiling in regard to thcir rise to
a certain position in their schools.
Mr. GRoss: Are there any non-White teachers in any but non-White
schools?
Mr. BRUWER:Are there any non-White teachers in any White schools?
Mr. GROSS: In any schools other than non-White schools?
Mr. BRUWER:I do not know of such cases, Mr. President.
Mr. GRoss: Is the limitation or restriction of a non-White teacher to a
non-White school based upon considerations which take into account his
ability,or his race?
Mr. BRUWER:Mr. President, I would say that it takes into account his
connection with a certain group of people. If the word "race" is used, then
I would say no.
Mr. GRoss: Is the characterization or term "Bantu" a racial designa
tion?
Mr. BRUWER:Mr. President, it is nota racial classification. It is a clas
sification based on language considerations and on anthropological or so
cial anthropological considerations. Now, naturally, if one is a physical
anthropologist, you will also sav that the Bantu belongs to a certain race
of the human family. - SOUTHWESTAFRICA
Mr. GROSS:May I ask you, sir, whether the fact that no non-White
teacher teaches in a so-called White school is based upon factors of social
anthropology?
Mr. BRUWER:It is based on those factors, Mr. President.
Mr. GROSS:Could you-excuse me, had you finished, sir?
Mr. BRUWER:Not really, Mr. President. It is based on social anthro
pological factors, Mr. President. It is a question of language, for instance,
which I used as one of the criteria of the distinction of people.
Mr. GRoss: If a non-\,Vhite person who is referred to as a Bantu speaks
Afrikaans or Engllsh or both, does the fact that he a]so speaks a Bantu
language relate to the policy which precludes him-if this is the policy
from teaching at a White school? Does that have any bearing on the ques
tion?
Mr. BRUWER:No, Mr. President, it has not got a bearing. The inference
there, in my opinion, would be that he is teaching in the schools where
Bantu languages are used.
Mr. GROSS:But if he also speaks EngJish or Afrikaans or both, what
relevance does his language capacity have to do with the policy which
precludes him from teaching at a White school?
Mr. BRUWER:Mr. President, his language woulclnot have any relevance
to that position. The only relevance would be, then, his attachment to a
certain group.
Mr. GRoss: Suppose he disclaims attachment to such a group, as an
individual, does that then enter into thédecision or policy of the Govern
ment?
Mr. BRUWER:Mr. President, I am afraid I did not get the question very
well.
Mr. GROSS:If the individual disclairns his connection with a group and
says I would just like to be a teacher and forget for a moment that I am a
Herero, can he <lisclaim his link with the group in order to achieve the
right to teach at a White school?
Mr. BRUWER:I do not know of cases like that, Mr. President.
Mr. GROSS:Do vou know whether or not that is inconsistent with the
policy, fiat, regulation, or law, which precludes him because he is non
White?
Mr. BRUWER:As I understand the policy, it is inconsistent with that
policy.
Mr. GROSS:Is the fact that so-called "N atives"are limited to certain
positions in mining enterprises, based upon cultural configuration be
tween the various non-\Vhite groups? Can you answer that, yes or no?
Mr. BRUWER:No, Mr. President, it is not relevant to the cultural con
figuration, apart from the question of abode.
Mr. GROSS:If, therefore, a non-White or so-called "Native"may not
become a mine overseer, does that restriction have anything to do with
any factor other than that he is classified by law as a Native?
Mr. BRUWER:No, Mr. President, I cannot see what it has got to do
with any other factor. It is a categorization of groups.
Mr. GROSS:And his rights to rise above a certain forrn of labour in the
mine, therefore, depend upon the-shall we call it ethnie group--to which
he belongs? Is that correct?
Mr. BRUWER:That is correct, but only then in the area of the other
group, because. . . ·
Mr. GROSS:I am talking, sir, about the southern sector, I am talking WIT~ESSES AND EXPERTS 285
about one particular area. Let us confine ourselves, if you will, to that;
then, perhaps, wecandiscuss other areas ifyou wish. Nowlet us take the case
of a mine in what you have described as the "White economy"or "White
area" and I refer to the Rejoinder, VI, at page 231,in which it is stated
that there are certain "posts which Natives may not be appointed to" in
mining enterprises, including Manager, l\Iine overseer, Shift boss, Sur
veyor and several other categories. I should like to ask you ...
The PRESIDENT:Mr. Muller.
Mr. MULLER:I want to indicate here, that mv learned friend, i\frGross,
has not quoted the reference to page 231, correctly. The reference there
isto "posts which Natives may not be appointed to in such enterprises".
Now those are mines belonging to Europeans. I would Iike that to be quite
clearlyputto the witness.
Mr. GRoss: That they are mines belonging to Europeans. Let that be
theassumption of the question and may I address myself to the enterprises
owned by Europeans, in the sector we are discussing. And I refer again
to thisquotation or statement, from the Rejoinder. So far as you know,
as a member of the Odendaal Commission, is this restriction based upon
anything but membership in an ethnie group?
Mr. BRUWER:Mr. President, no it is not based on anything other than
the fact that certain people belong to a certain group, having certain
rightsand privileges, in certain areas, whereas again, other people belong
to another group, but in this specific respect as quoted there, I do not
know of any other consideration apart from the fact that you have to do
with two groups here.
Mr. GRoss: The only consideration is that there are two different groups
inthe same area.
Mr. BRUWER:That is correct.
Mr. GRoss: Do you know, Dr. Bruwer, whether "Natives", as the word
is used in the Rejoinder and in the laws, may own mines in the southern
sector outside of Reserves?
Mr. BRUWER:I do not know ...
The PRESIDENT: The question which you put to the witness-surcly
that must depend upon laws and regulations, whether they can or cannot
own mines?
Mr. GROSS:Mr. President, may I rephrase my question to ask whether
the Odendaal Commission enquired into the legislation pertaining to this
matter, as a basis for reaching its recommendations concerning policies
to ·which this witness has testified? Did the Odendaal Commission make
enquiries concerning this matter?
Mr. BRUWER:Mr. President, the Odendaal Commission, the members
of the Odendaal Commission who were experts in the economic field un
doubtedly made analysis of all the varions legislation in regard to the
question of ownership and certainly also of mines, and nothing was sub
mitted to the Commission, of which I am aware, that there is a possibility
for the so-called non-\Vhites then, to possess a mine in the area defined as
the southern sector, excluding the reserved areas.
Mr. GROSS:The reference I am about to make is again, to your testi
mony, in the verbatim of 2 July, at page 264, supra, in which you des
cribed certain areas of South West Africa, if I understood the phrase
correct]y, as "Caucasoid" areas. This is the correct spelling?
. Mr. BRUWER:Mr. President, the correct spelling is Caucasoid, which,
ln my opinion, is just another word for \~/hites.286 SOUTH WEST AFRICA
Mr. GRoss: That is, a synonym for "White". In the Odendaal Commis
sion report, at page 315-I refer to paragraph 1285-reference is made to
the fact that the "members of this developed sector are White". As one
who was a member of the Commission, and signed the report, could you
advise the Court what the significance is attributable to the phrase "the
members of this developed sector are White"? What constitutes member
ship in the developed sector?
Mr. BRUWER: Mr. President, membership in the developed sector, as I
understand it, constitutes the question of whether one has certain rights
or privilegesin that sector.
Mr. GROSS: And those who are of lower priority are regarded in the
sense of the quoted language as not being "members" of the area, of the
sector. Is that correct?
Mr. BRUWER: It is correct, Mr. President, with this proviso, that
I would not subscribe to the phrase. I would rather put it in the
way that members who do not have those rights and privileges are ex
cJuded.
Mr. GROSS: Now, are there any but non-Whites, persons categorized as
non-Whites, who are in the category of exclusion or non-membership,
whichever phrase you wish?
Mr. BRUWER: Mr. President, from what I unclerstand in this so-called
White area all people falling under that category sometimes called non
Whites, are excluded, in regard to rights and privileges in the broad
framework thereof.
Mr. GROSS: When the report of the Odendaa1 Commission therefore
refers to the absorption of non-Whites in the economy, is the word "ab
sorption" there taken to have a different meaning from "membership",
both words being used in the Odendaal Commission report?
Mr. BRUWER: Absorption in regard to membership?
Mr. GRoss: May I clarify my question, sir? Do you wish me to? I shall
beglad to.
In the Odendaal Commission report, to which I have referred, on pages
3r and 33, reference is made to the absorption, and that word is used in
the English text, of certain non-\Vhites into the economy. The section
from which I just quoted states that the "members of this developed sec
tor are White". I am asking you if you would be good enough to tell the
Court what is the distinction between the two concepts, if any, of absorp
tion into the econorny and membership in the sector?
Mr. BRUWER: Mr. President, as I understand it to mean, one can absorb
people in regard to an economy by attaching value to their contribution
to that economy which is also of profit for themse]ves. But I also under
stand it in this context and in the context of the framework of the ap
proach to mean that that would not of necessity mean absorption in any
other way; that is on, for instance, a sociological level.
Mr. GROSS: And as to membership, the term "member of the commu
nity", you have testified as I understand it that you prefer another word.
Am I correct in that understanding?
Mr. BRUWER: I think that is correct, Mr. President.
Mr. GROSS: And what word did you say you preferred?
Mr. BRUWER: I prefer participation as against the word absorption.
Mr. GROSS: As against the phrase "the members of'', what phrase or
word do you prefer to the phrase used "the members of"?
Mr. BRUWER: Mr. President, no, it was in regard to the qualification of WITNESSES AND EXPERTS
being of lower status or something. It was not for a question of member
shipthat I wanted another phrase. I accept that.
Mr. GRoss: You accept that? Well, then, may I ask you-perhaps my
memory is faulty, I thought and understood you to be referring to that
phrase-my question had intended to ask you, sir, what the significance
is ofthe concept or expression "the members of this developed sector are
White"? In what sense is a non-White excluded from membership?
Mr. BRUWER:The non-Whites, Mr. President, appear to me to be
excluded on the concept of not being members of that community.
Mr. GROSS:Well, perhaps we could approach it from a different angle.
Isa person classified as White automatically a member of the developed
sector?
· Mr. BRUWER: A member for ail purposes I should think, yes, Mr.
President.
Mr. GROSS:Is he, therefore, as a member, entitled to rights and prior
ities?
Mr. BRUWER:Yes, Mr. President.
:11f. ROSS:Isa person classified as non-White automatically excluded
from membership and therefore rights and privileges?
Mr. BRUWER:As I understand it, Mr. President.
Mr. GROSS:Did the Odendaal Commission inquirc into this matter
with respect to 125,000 persons in the Police Zone?
Mr. BRUWER: Mr. President, the Commission took into account ail
the information that it could gather. The Commission was aware of mea
sures of differentiation based on this category that has been mentioned
here and, keeping in mind the sociological position and the assumption
of rights of groups, the Commission now based its approach on the con
cept, if wemay again use that word, Mr. President, of ensuring that every
individual has rightsand privileges although it may be in another area.
Mr. GROSS:You appear to refer here, if I understand you correctly
and please do correct me if I am wrong, that the higher priority automa
tically assigned to a White in the Southern sector, the modem sector, is
balanced by the fact that in the traditional sector, in the less-developed
sector, the Native has a higher priority over Whites. Is that what you
mean by referring to other areas? We are talking now about the southern
sector outside of the Reserves in order to avoid confusion on that point .
.!\frBRUWER: That I understand, Mr. President. Mr. President, I
would say that according to my opinion and basing my opinion on the
framework of the process of development, or a process of development,
I would say that there is that ba1ancing factor.
.!\IrGRoss: Now, are there any other factors other than this balancing
factor or equivalents which account for the automatic exclusion from
membership in the White sector of a non-White?
Mr. BRUWER:No, Mr. President, there is to my knowledge no other
basis on which this· is done.
Mr. GROSS:Now, Dr. Bruwer, how many Whites are there in Ovam
boland?
Mr. BRUWER:Mr. President, I do not know the exact number iust at
present, but during the period of the Commission they must have been
somewhere around 300.
Mr. GROSS:And how many non-Whites are there in that area?
Mr. RRUWER:In the area of Ovamboland?
Mr. GROSS:Yes, in Ovamboland.288 SOUTH WEST AFRICA
Mr. BRUWER: 1Ir. President, according to the best of my knowledge,
giving a round figure, I would say 240,000.
Mr. GROSS: Now, the two or three hundred Whites, I have forgotten
the number you cited, but approximately of that order, who reside in
Ovamboland, are they deprived of rights, for example, above certain
forms of labour in Ovamboland?
:Mr. BRUWER: Mr. President, they are certainly deprived of certain
rights. Now, they do serve there, in Ovamboland, in their capacity as
people who have to do certain work in Ovamboland.
l\frGROSS: What sort of work, for example, did your inquiries disdose
that they were engaged upon?
l\lrBRUWER: Mr. President, there are missionaries who are doing
mission work in South West Africa and some of them originate in other
parts of the world, for instance in Finland. Then there are government
officiais,nd then there are also people busv with the shops in Ovambo-
land, doing trade in Ovamboland. •
Mr. GROSS: And, sir, of what rights are those Whites deprived?
Mr. BRUWER: l\Ir. President, they are deprivcd of their rights to buy
land in Ovamboland. They are deprived of the right to have any partici
pation in the political institutions of the people in Ovamboland.
Mr. GROSS: Did you not say, sir, that somc of the Whites there were
government representatives or officiais?
l\frBRUWER: They were govcrnment officials, Mr. President, giving
guidance in regard to the administration.
Mr. GROSS: Apart from the disability imposed upon them as Whites
to buy land, what other rights, if any, are they deprived of?
Mr. BRUWER: They are deprived, Mr. President, of the right to parti
cipate in the political institutions of the people in Ovamboland.
Mr. GROSS: Now, is this the deprivation of rights, if we may call it
that, what you have asserted to be the off-setting or compensating fac
tor for the deprivation of rights of non-Whites in the southem sector?
Mr. BRUWER: Yes, Mr. President.
Mr. GROSS: Are there Whites in other areas outside of the Police Zone
or southern sector, other than Ovamboland?
iYl.BRUWER: Yes, M:r. President, there are also Whites in the Oka
vango, there are Whites in the Kaokoveld, there are also Whites in the
Eastern Caprivi.
Mr. GROSS: Now, how many such persons are there in total, in the
aggregate, approximately?
Mr. BRUWER: ~Ir. President, I do not know the exact number at
present, but I do not think that there can be more than between three
and four hundred altogether.
Mr. GROSS: I would like to turn to other lines of considerations which
emerged from your testimony. 1t has reference to the field of social
anthropology I bclieve, sir. At page 246,supra, of your testimony of 2
July you indicated, stated, that there was what you called difficulty
in cJassifying persons who are members of the Dama group. You stated
that "they speak the language of the Nama, but if you take again the
criterion of pcrceivable physical differences, then you would say that you
have to deal with a man comparatively the same in physical features
as the Bantu group". Is this statement from an anthropological point
of view true of all Namas or Damas or only certain individual persons?
Mr. BRUWER: Mr. President, I would say it is true of all Damas that a WITNESSES AND EXPERTS 289
difference does exist, that they speak the Nama language, but on the basis
of perceivable physical features again,they are a dark people.
Mr. GROSS:Your testimony then was applicable to the entire group,
without exception?
Mr. BRUWER:That is correct, Mr. President, as far as I know.
Mr. GROSS:Have there, to your knowledge, been offspring of members
of this group, the Dama group, and other groups, let us say the Herero?
Mr. BRUWER:Mr. President, I think that there certainly must have
been offspring, not only of Damas and Hereros but probably also others,
and that is one of the ways which the coloured people for instance came
into being to a certain extent, over a long period of history, people that
today are called Coloureds.
Mr. GRoss: Now if a Dama man, let us say and, for example, a Herero
woman marry and have a child, on what basis is the determination made
of the classification to which that child belongs?
Mr. BRUWER:Mr. President, I would think that one would classify such
a persan more probably than not on the basis of residence and possibly on
the basis of the group of his mother.
The PRESIDENT:Are there man y such instances that you know of?
Mr. BRUWER:Not so very many, Mr. President, I know of.
Mr. GROSS:I would be prepared to submit for the record a number of
which I have persona! knowledge. If there is any question in the witness's
mind concerning the existence of this, may I ask you, sir, would this be
regarded as an unusual phenomenon in the southern sector?
Mr. BRUWER:Mr. President, is it a question of admixture that ismeant?
Mr. GRoss: Yes. sir.
Mr. BRUWER:Mr. President, I would not say that it is a very strange
phenomenon in the southern sector. A simple fact that one for instance
has Coloured people, apart from Coloured people that migrated from
South Africa, would probably indicate that it is a phenomenon, but on
the other hand again, if one takes into account that the Coloured popula
tion isonly-if I remember well, Mr. President-just about over 12,000,
then the phenomenon is not a total phenomenon.
ilfr. GRoss: Dr. Bruwer, in your referencc to the characteristics by
which you would distinguish a Dama as a member of the Bantu group for
one purpose, and of the Khoisan by reason of language for another, is
there any account taken in respect of the mental endowment or capacity
in making the determination as to which group he belongs?
Mr. BRUWER:I think one has to consider, Mr. President, ...
Mr. GRoss: Are there any distinctions from a social anthropologist's
point of view? Are there distinctions in mental capacity or any other as
pect of capacity which depcnd upon his membcrship in one group or the
other?
Mr. BRUWER:Mr. President, no, I do not subscribe to the opinion of,
if I have the word "mental" correct, inequality of a man where there may
be differences on account of the fact that he belongs to one or other group.
I think the inherent possibilitics of man are comparatively the same, Mr.
President.
Mr. GRoss: Now therefore would you, remembering the census classi
fication to which I referred and read into the record, and on the basis of
which rights and duties are allocated and allotted, would you say that
membership of an individual, in one group or the other, has any relevance
to the assignment of rights to him? SOUTH WEST AFRICA
Mr. BRUWER:Mr. President, it has, as I have tried to explain. The as
signing of rights, asI understand it, in South West Africa, is based on the
attachment of an individual to a group or a community.
Mr. GRoss: At page 39 of the Odendaal Commission report, in afoot
note to table XVII, the Commission indicated that Bushmen and Nama
had been "transferred" from Coloureds to Natives. Are you familiar with
that reference in the Odendaal Commission report?
Mr. BRUWER:Mr. President, I think what is meant there is that in re
gard to the department having to do with them they have corne under the
department of Bantu affairs.
Mr. GRoss: This has nothing to do then with their classification in the
census?
Mr. BRUWER:No, very definitely nothing.
Mr. GROSS: In the testimony which you gave on 2J uly, from pages 251
through 258, supra, you described the various criteria which went into
cultural configuration "as a basis to distinguish between groups", and
you discussed language, social structures, social institutions, and so forth.
And at page 256 of the verbatim record you were asked to tell the Court
whether the different systems that you describe have a marked effect on
the differences between the population groups, and you stated in response
thereto (to save the Court's time I will not read it in full unless you wish
me to for clarity) that the social orientation of a people conforming to
certain systems has a definite bearing on many things in that society, and
the principles embodied in the systems differed to such an extent amongst
the various groups that one can very easily, on the basis of this factor of
the cultural configuration, see that there is a great difference between
these varions groups of peoples and societies. Now, among the approx
imately 125,000 persons living outside the Reserves in the southern sector,
would you say that your response to this question, with regard to cultural
configuration, applies to those people in the southern sector?
Mr. BRUWER:Mr. President, the people employed in the southern sec
tor?
Mr. GRoss: Yes, the people who live in the southern sector, work there,
and live and die there, outside the Reserves.
Mr. BRUWER:Mr. President, many factors stiII apply according to my
knowledge of the people.
l\frGRoss: How would you apply these criteria? There is a great dif
ference between these various groups of peoples in societies; how would
you apply this to individual Natives, for example, who were born and
lived their lives on a so-called White farm?
Mr. BRUWER:First of ail, Mr. President, I will find out whether that
man looks upon himself as belonging to a certairi group by means of the
name he applies to himself. I will ask him, do you look upon yourself as
belonging to say, for instance, the Bushmen group, or belonging to the
Herero group, or belonging to the Dama group, and I will then mention
allthe groups if necessary, Mr. President. If he says yes, then I will take
it that he still looks upon himself as part of a certain specific group of
people.
Mr. GRoss: Now, in the sense in which you have just used the word
"part" of the group, what re]evance or connection does his being a "part"
of that group have to do with his life on the farm?
Mr. BRUWER:Mr. President, I would say many things; because for in
stance, of kinship. The question of how this man applies a certain system WITNESSES ANDEXPERTS
of kinship, also on the farms, whether he subscribes to the one system or
whether he subscribes to the other system, and I have never corne across
any instance, Mr. President, on farms, and usually when I do research
work I speak with people wherever I corne in contact with them, whether
it is on a farm or a Reserve or in a town, and I have not corne across any
individual that did not tell me that his system of kinship islike this.
Mr. GRoss: The basis of th.e distinction, on the basis of the factors you
have mentioned, then have to do with his attitude toward such matters
as kinship and any other customs; how do they affect his relationship to
his employer or his life on the farm?
Mr. BRUWER:Mr. President, I would not know how it affects his rela
tionship with his employer on the farm, because I have not studied that
type of relationship.
Mr. GRoss: Is there any relevance to this matter of distinction between
groups, in respect of a persan who has been born and lives on a so-called
White farm? Is there any relevance to the economic or political society
in which he plays a part as an individual?
Mr. BRUWER:Mr. President, yes, I think these things are relevant in
regard to his subscription to a specific system. May I quote perhaps only
one example, Mr. President. If we take the question of marriages. for in
stance, now polygenous marriages, in the White group where Roman
Dutch Law applies, there is not this phenomenon ofhaving more than one
wife, whereas that is a phenomenon that one cornes across amongst the
other groups on farms, and even in towns I have corne across that, Mr.
President.
Mr. GRoss: The rights and privileges allotted to such an individual by
law and regulation, do they have any connection with his cultural con
figuration?
Mr. BRUWER:Mr. President, no, they only have connection with the
fact tha t this man does not belong to the group, to tha t specificgrau pin tha t
section inthe southern part of South West Africa, excluding the Reserves.
Mr. GRoss: You referred in your testimony on page 243, supra, of the
verbatim of 2J uly, to the comparison of differing civilizations-thisis the
phrase you used-and the important factor, as you described it, of terri
torial abodes.Does either of those factors, or criteria, have any relevance
to the individual and his family who spend their lives on a White farm in
the southern sector?
Mr. BRuWER:Mr. President, it would not have any relevance to an in
dividual family, apart from the fact that he would be looked upon as be
longing to a group and in that sense it will have relevance, but not on him
as an individual or as an individual farnily on the basis of abode.
J\frGRoss: Does your answer to my question, Dr. Bruwer, involve the
point or the consideration that all individuals in South West Africa are
looked upon as members of a certain group?
Mr. BRUWER:Yes, Mr. President, I think that is correct.
Mr. GROSS:And that the census categories therefore, to which I have
referred, establish a membership in a group for every individual. That is
correct?
Mr. BRUWER:That is correct, Mr. President, as I understand it.
Mr. GROSS:And is it correct that the purpose for assigning or attribut
ing membership in a group to an individual is in order to determine his
rights, or is it for some other purpose? I am talking about the southern
sector outside the Reserves. SOUTH WEST AFRICA
Mr. BRUWER:Mr. President, I can only say that as far as I can see and
evaluate the sHuation it is for the purpose of determining his rights eîther
in one area or in the other area.
Mr. GROSS:One area within the sector I am discussing, sir? I am talking
about 125,000 people in the southern sector, outside the Reserves.
Mr. BRUWER:Yes, then it would be correct, Mr. President, that in that
case it would be a question of not assigning rights to him there.
Mr. GROSS: A question of the classification of every individual in
that sector outside the Reserves in order to determine the allotment of
rights, privileges, or other incidents of his social or political life-that
correct?
Mr. BRUWER:That is how I understand it, l\1rPresident.
Mr. GRoss: And is that, sir, the way the Odendaal Commission under
stands it?
Mr. BRUW'ERT :hat is the way the Odendaal Commission understood it,
Mr. President, and that is also the reason why they tried to put into prac
tice, or to put into a working process, something which they thought
would assign rights to everybody on the basis of the group to which he
belongs.
Mr. GROSS:In the sector that we are referring to, outside the Reserves,
is there any law or regulation of which you are aware which determines a
person's rights, privileges,r duties on the basis of his individual capacity,
apart from his membership in a group?
Mr. BRUWER:Mr. President, not that I know of. There may be, but I do
not know.
Mr. GROSS:The Odendaal Commission made enquiries into this ques
tion. Would you, sir, as a member of the Odendaal Commission, regard
this factor as having any bearing upon the moral well-being and social
progress of the individuals in this area?
l\1rBRUWER:Mr. President, that question, or that problem, which is
a very important problem, was certainly discussed by the Odendaal Com
mission very, very, thoroughly, but the Odendaal Commission, with all
the information, keeping in regard many factors, came to the conclusion
that the moral well-being of an individual must not be dissected from the
moral well-being of his people..
l\fr. GRoss: "His people", refers, Dr. Bruwer, to the fact that he is, let
us say, obviously White but generally accepted as Coloured? That assign
ment to the Coloureds is one of the factors that you have in mind when
you refer to "his people"?
Mr. BRUWER:That is one of the factors.
Mr. GROSS:Does the individual have any voice in the matter whatever?
Mr. BRUWER:Mr. President, in framing the general process of develop-
ment in South West Africa, the Odendaal Commission tried to establish
the wishes of people, not of one group only-not of the Whites only, or the
Coloureds only, or the Nama only-but met every group of people, a~d
the Commission also invited information from all possible sources. And m
evaluating the position and in being confronted with a very great problem,
Mr. President, a very great problem, the Odendaal Commission, on the
basis of their study of the information and on the basis also of their accep
tance of the evidence that was given to them by the various groups of
people, now on the basis of the consensus of opinion, the Odendaal Com
mission recommended the process within the framework they have re
commended, namely giving people rights and privileges on the basis of WITNESSES AND EXPERTS 293
their group identification, that is on the basis of the group to which they
belong.
Mr. GROSS:May I remind you, Dr. Bruwer, that my question was
whether the wishes of the individual had any relevance to the assignment
of his rightsand duties. Does that have any relevance to the assignment
of his rightsand duties? You understand my question, sir?
Mr. BRUWER:I do not follow the question ...
Mr. GROSS:If an individual says, hypothetically, "I would like to rise
above a certain level of labour", or he says, "I would like to be a member
of the White Community", do his wishes as an individual in that respect
have any relevance to the decision taken with respect to him by Govem
ment?
Mr. BRUWER:Mr. President, I would say that it certainly has relevance,
but it will be subject to the position of the group in which he finds him
self.In other words, say, for instance, an individual is accepted by a
group, then thcre would be no problem of assigning to him the same rights
and privileges of that group, as I understand it.
Mr. GROSS:The individual in the southern sector, living on a White
farm, having been bom there, wishes to have certain rights corresponding
to those of the vVhites in that area. By what standard or criterion is it
determined that, irrespective of his persona! wish, he is a member of a
certain group, which membership then determines his rights? What are
the criteria upon which such a decision is made?
Mr. BRUWER:Mr. President, as far as I can see, the only criterion is the
fact that the area, or the farm on which this man fmds himself now, is in
the area of vVhites.
Mr. GROSS:Does that then affect the decision with respect to him as
an individual. he wishing to have rights higher than those allotted to
his group?
Mr. BRU'>'iERM : r. President, no, it would not be respecting his wishes
in that sense, but his wishes will then be made subject to the general
pattern that you have in that society.
l\frGROSS: His individual quality or ambition is subordinated to
the group allotment, is that a fair characterization of your response?
Mr. BRUWER: It appears to be so, Mr. President. That is a correct
interpretation.
Mr. GROSS:I would like to refer tothe Odendaal Commission report
again. This arises out of your tcstimony on 2 July, with regard to the
value of separate development which, I bclieve, is another term for
apartheid. In that connection I refer to page 42q of the Odendaal Com
mission report, in particular paragraph 1437-I should like to refer to a
rather lengthy section which I shall not read in full, at some risk of
reading out of context~I should like to ask you one or two questions
with respect to what appears there.
Reference is made to "The second phase, namely where the non
White groups have increasingly to be given the opportunity ... to find
an outlet for their new experience and capabilities". Then reference is
made to the necessity of affording them "protection against the more
effective competition of the White group". And then reference is made
to the following comment:
"These advantages of special advancement and special protection
cannot be brought about in an integrated community without
openly subscribing to discrimination, which is not feasible, and294 SOUTH WEST AFRtCA
is in any case undesirable under the circumstances on moral and
ethnie grounds."
Having signed this report, I should like to ask you, Dr. Bruwer, what
meaning you attach to the word "discrimination'' in that context, which
is said to be "undesirable under the circumstances on moral ... [as well
as] ethnie grounds"?
Mr. BRUWER: Mr. President, the meaning that I would attach to the
term "discrimination" would be where one differentiates between people.
In some cases it may be that the individual may feel certain detrimental
effects of such differentiation or discrimination, but that is the only
meaning I can attach to the term "discrimination", that it makes a dif
ference between people in regard to certain things, in regard to, in this
case for instance, rights and privileges.
Mr. GROSS: Therefore, ifI understood you correctly, Sir, when reference
is made, in the passage cited, to the "undesirable" aspects of discrimina
tion "on moral and ethnie grounds", do I understand your answer to be
that there are criteria or standards upon which judgments may be made
with respect to whether discrimination exists?
Mr. BRUWER: Mr. President, my answer to that question would, of
course, depend on the degree. I make a distinction between to discrim
inate against people and to discriminate between people. To me it is a
different concept. Discrimination against people, I would not agree to
that, but I can see that under given circumstances it may be for the well
being of people that discrimination between people should be made, but
keeping always in mind, Mr. President (and I only give my own persona!
opinion here}, that any individual has, naturally, a human dignity.
Mr. GROSS: If it is within the field of social anthropology, what would
you, as an expert in that discipline, suggest to the honourable Court in
respect of certain criteriaor stan'dards that could be appliedto determine
whether, in a given context, discrimination was "against people" or
"between people"?
Mr. BRUWER: Mr. President, if I had toexplain what I mean by dis
crimination between people and discrimination against them, I would
-for instance, take as an example-we have been talkîng, Mr. President,
this afternoon in regard to the southern sector of South West Africa
now, say, for instance, that these measures of differentiation that a non
White may not buy land or get hold of land in the southern or White
sector, if that had excluded him altogether from rights and privileges
ofland I would have said now you are discriminating against people and
to that I would not be able to subscribe. My conception of discrimina
ting between people is where you have to do with sentiments, you have
to do with problems-you have to do with a very complicated problem
sometimes~you have to keep all these thîngs in mind and now you have
to find out what is the best, not for one individual only, but you have to
find out what is the best given the whole and entire situation. If one now
finds that according to things that are factual-you have a factual situa
tion-now you. want to start with a process, but you have a position
here where certain people in society are excluded from certain rights in
that society and in that area (and, Mr. President, I do not deny that
that situation isthere-that is the situation the Odendaal Commissionvery
definitely had to do with), but now I want to establish a basis whereby
I can assign to these people rights and privilegcs which will be protected
and ensured in the same way as the rights and privileges that I now WITNESSES AND EXPERTS 295
protect and ensure against these people who are in society, on that basis
of differentiation, Mr. President, then I would say it is differentiation
between people.
I have already said, Mr. President, that I can quite see that any indi
vidual or a certain individual may very defmitely fi.ndor feel that against
him one has now discriminated, in other words, you have now discrim
inated against him. But, when he now receives, on the other hand, rights
and privileges then he must immediately-and you exclude these other
people there now-agree, well at least the discriminationagainst is now
discrimination between. That is how I understand the concept, Mr.
President.
[Pnblic hearing of 6 July I965]
The PRESIDENT:The hearing is resumed and I call upon Mr. Gross
to continue his cross-examination.
Mr. GROSS:Mr. President. Dr. Bruwer, I suggest that, if I speak too
quickly and if you raise your hand, I will slow down; please do not
hesitate to do so.
At the adjournment yesterday, Dr. Bruwer, I believe you were dis
cussing the problems created by the necessity to afford protection to
non-Whites in the southern sector against what is described as the "more
effective competition" of their \Vhite neighbours; your comments were
being addressed to the fi.nding in the Odendaal Commission report at
page 429, paragraph 1437, and I quote:
"The advantages of special advancement and special protection
cannot be brought about in an integrated community without openly
subscribing to discrimination, which is not feasible, and is in any
case undesirable under the circumstances on moral and ethnie
grounds."
Have you, Dr. Bruwer, completed your comments, or did you wish to
continue, sir?
Mr. BRUWER:Mr. President, as far as I can recollect I had practically
finished my comments. The only addition that I wanted to make was to
the effect that the essence of that quotation, naturally, is conceived
within the idea of ensuring rights of people in their own areas, on the
basis that Ihave already tried to explain to the honourable Court.
Mr. GROSS:Do I understand from your answer just given that this
reference, or fi.nding, which I have quoted does not apply to non-White
individuals in the White economy or southern sector outside of the
Reserves?
Mr. BRUWER:Mr. President, it applies to the interests of everybody
according to the considerations of the Commission.
Mr. GROSS:Could you answer my question "yes" or "no" to avoid
a possible misunderstanding, Doctor? Does this finding relate to non
\Vhites in the southern sector outside of the Reserves?
Mr. BRUWER:Yes, Mr. President, that is correct.
Mr. GROSS:Thank you. Therefore perhaps we could clarify your pre
vious answer that this relates to conditions in areas other than the south
ern sector. That was my understanding.
Mr. BRUWER:Yes, Mr. President.
Mr. GROSS:It applies then to both areas: outside of the southern sec- SOUTH WEST AFRICA
296
tor, and the so-called "White-area" or "White economy"? That is cor
rect, isit? Now I will be directing your attention, if the Court please, to
the situation within the Southern sector, so that there may be an avoid
ance of misunderstanding. I would repeat that l am referring to the non
Whites who live and work in the southem sector outside of the Reserves,
totalling some 125,000 persons in the non-\Vhite category.
Now, I should like to draw your attention to paragraph 1437, to which
I have just referred, which is on page 429. This paragraph concludes with
the finding that the advantages of special advancement and special
protection-
"cannot be achieved in a framework of integration, and the tradi
tional non-White groups must therefore be given separate geograph
ical areas in which the aim of special advancement can be carried
into practice".
Having in mind that we are talking now about non-Whites in the south
ern sector outside of the R.eservcs, what is the meaning attributed by the
Commission to the phrase "framework of integration"? In this context
what docs the word "intcgration" signify, if you please, sir?
J\IrBRUWER: J\fr. President, the word "integration" as I understand
it, and I also take it that that is how the Commission understood it,
is a society where you have integration of people belonging to various
groups, that is an integrated society, that is how we understood it.
l\IrGROSS: Could you enlighten the Court by defining the word "inte
gration" without using ît?
Mr. BRUWER: Mr. President, I would say that integration would be
where you create a society by giving rights and privileges to members
of other groups, who have already got their rights and privileges in an
other area, in that specific society of another group. I would call that an
integrated society.
Mr. GROSS: Does integration consist in giving rights or privilegcs to
certain groups in a society? Is that correct?
:1\lBRUWER: That is how I would interpret it, Mr. President .
.lllrGROSS: Is it not true, Dr. Bruwer, that evcry individual in a
society has certain rights and privileges as a human being?
Mr. BRUWER: That is correct, Mr. President; every individual cer
tainly has rights and privileges.
Mr. GROSS: \Vell, what sort of rights and privileges must be denied
before you can say that a society is not integrated?
Mr. BRUWER: Mr. President, if a society is not integrated in the gen
eral sensc of the mcaning, 1 would say it is a society where certain people
do not, for instance, have political rights, where they do not have owner
ship rights, that I would call a type of society whcre you have not got
total integration. Of course, there are also other possible means of de
scribing it. because one can, in my opinion Mr. President, distinguish
between what I would perhaps call, say, legal integration as against
integration at the heart. There are also these two smaller differences in
my opinion in regard to integration. In other words one could say that
a society is integrated politically, it is integrated economically, but then
it may still be an open question whether the society is integrated on a
human basis, that is, whether the one group accepts the other group at
heart.
Mr. GROSS: This is basically, if I understand your comment, a matter WITNESSES AND EXPERTS 297
of feeling or attitude on the part of one group with respect to another.
Does that constitute an element of integration?
Mr. BRUWER:Mr. President, I would very definitely say from my
experience that that certainly constitutes a factor of integration.
Mr. GROSS:Dr. Brmver, suppose, as in the southern sector outside the
Reserves, the attitude of one group (let us say the White group) with
respect to the non-\Vhite group is one of integration into the economy,
by the use of indispensable services-would you describe that as an eco
nomically integrated society?
Mr. BRUWER:Mr. President, according to the position in South West
Africa, I would not describe that as an economically integrated society,
because what I understand by economic integration would be that one
would have ail the rights and privileges connected with the economy of
that country. That would also include, for instance, land rights. Now,
in South West Africa I do not know of any examples, Mr. President,
where in a, call it then, non-White area, that is an area that has been
assigned to one of the various population groups in South West Africa,
for instance, one could say that a White persan is totally economically
integrated, because I don't know of any cases where they have ownership
right of land,and I take that, Mr. President, as being part and parcel of
an economic system.
Mr. GROSS:Dr. Bruwer, certainly you must feel free to answer the
question in the best way you can, but I would invite you to confine your
remarks, if possible, to the questions relating to the \Vhite economy, so
called,in the southern sector. The frequent references to other areas may
confuse the Court. I'm afraid they sometimes confuse me, and I would
like to avoid that.
With reference to the situation in the sector we are talkirig about, if
we may confine ourselves to that, we corne back to the phrase "frame
work of integration" which in the Odendaal Commission report con
cludes "cannot be achieved". I should like to ask you why it cannot be
achieved. Is thcre any inherent reason why it "cannot be achieved" in
the sense in which you use the term "integration" in this sector?
Mr. BRUWER: Mr. President, there is certainly no inherent reason,
if one now evaluates the varions people in that society-that is, in the
southem sector-but the considerations of the Commissioners were that
one has to protect the rights of a certain group in a certain area, and
therefore, Mr. President, my answer to the question actually is "no,
there are no inherent reasons-that is, that one would say the one group
cannot achieve the same economic advancement, for instance, as the so-
called \Vhite economy". ·
Mr. GROSS: I think you used the phrase "a certain group"-we are
talking, as you know, about the White sector, so-called, outside the
Reserves; by "a certain group" do you mean the White group?
Mr. BRUWER:Mr. President, I mean the White group on the basis of
the information that I have.
Mr. GROSS:Yes. So that what your answer cornes down to, if I under
stahd you, and please correct me so that the Court may not be misled
by my question: integration in your sense of the word cannot be achieved
in the Southern sector, the modern economy of the Territory, because of
the requirements you perceive to protect the \Vhite group-is that a
correct summary, sir?
Mr. BRUWER:That is correct.298 SOUTHWESTAFRICA
Mr. GROSS:Therefore the question I corne to now is whether, when you
refer in the Odendaa1 Commission report to absorption of certain non
Whites-for example, half of the Hereros-the word "absorption" is
used in a different sense than, let us say, would be conveyed by the phrase
"economic integration"?
Mr. BRUWER:It certainly is, Mr. President, as I understand it; if I
may explain, Mr. President-the integration then being a total integra
tion, that is, waiving ail measures of differentiation, whereas the absorp
tion in this case would mean absorbing them in the sense of employment
and in the sense of giving them the necessary training for use in their
own areas.
Mr. GROSS:Would you regard limitations imposed on the freedoms of
people by reason of their colour or race as a form of discrimination against
such persons?
Mr. BRUWER:Mr. President, as I explained yesterday, I would look
upon it as being a measure of differentiation between people; if one uses
the phrase "against", then I must start giving an explanation of my
answer, whether it is yes or no. I have told the honourable Court that I
distinguish between differentiation between and differentiation against;
the one, ta my opinion-differentiation against-being negative, detri
mental. The meaning that I attach ta differentiation between would be
that one gives rights and privileges to people, but then on a different
basis.
Mr. GRoss: Dr. Bruwer, I hesitated to interrupt you but I would like
to repeat the question, and ask you if you could answer it as briefly as
you feel warranted: would you regard limitations imposed upon the free
doms of people by reason of their colour or race as a form of discrimi
nation?
Mr. BRUWER::Mr. President, I would regard such a form of differen
tiation as discrimination.
Mr. GROSS:Do you identify and make synonymous the words "differ
entiation" and "discrimination", for ail purposes?
Mr. BRUWER:Mr. President, it all depends; I would not really make
a basic difference between the two words differentiation and discrimina
tion.
Mr. GRoss: You would not make a difference between them?
Mr. BRUWER:No.
Mr. GRoss: I began this line of enquiry yesterday, as you will recall, by
reference to the sentence using the term "discrimination" in the Odendaal
Commission report-would you substitute the word "differentiation" for
"discrimination" in that sentence-would it make any sense?
Mr. BRUWER:Mr. President, I cannot recollect the entire sentence
now.
Mr. GRoss: I will try to find it for you. It is at page 429, paragraph 1437,
and it reads as follows:
"These advantages of special advancement and special protection
cannot be brought about in an integrated community without openly
subscribing to discrimination, which is not feasible, and is in any case
undesirable under the circumstances on moral and ethnie grounds."
Now I ask you, if you make asynonymofthetwowords "differentiation"
and "discrimination" -does the sentence I have just read make any sense?
Would you say, normall y, ''without openlysubscribing to differentiation" ? WITNESSES AND EXPERTS
299
Mr. BRUWER: Mr. President, in that sentence I do not think one can
use the word "differentiation", apparently.
Mr. GROSS: Weil, this is the context of my question; that is why I
would like to corne back to my question, and use the word "discrimina
tion" in the sense in which it is used in the Odendaal Commission report.
Coming back to that, therefore, I take it that your answer makes clear
that there are at Ieast some situations in which the two words are not
synonymous. Now I ask you therefore, again, whether the imposition on
the freedom;; of people by reason of their colour or ethnie origin is a form
of "discrimination" within the meaning of the word as used in the report,
andjust cited?
Mr. BRUWER: Mr.President, within that meaning my answer would be
"yes",
Mr. GROSS: Thank you. Now, what is the significance of the phrase
"wiping out differences" which appears at page 427 of the Odendaal Com
mission report in the following context-I will not quote the entire,
lengthy paragraph, but wiH summarize it briefly: the Commission con
cludes that it would not be desirablc to "wipe out the differences between
the groups", to which is contrasted what iscailed "cornplete socio-econom
ic integration' '. Are these the true and only alternatives: wiping out the
differences on the one hand, and complete socio-economic integration on
the other? Is there any in-between ground, which the Commission does
not refer to, but which nevertheless exists in your opinion?
Mr. BRUWER: Mr. President, I would say no, because if you wipe out
something then it no longer exists-that is my understanding of the term
"to wipe out".
Mr. GRoss: May I repeat my question, sir? The Odendaal Commission
report, in the passage I have just quoted in part from paragraph 1434,
states that it is not desirable. on the one hand, to wipe out differences
between groups nor, on the other hand, is what is called "complete socio
economic integration" possible. I have asked you whether there is any
middle ground between those two extreme statements of position; the
Commission rcferred to none-can you suggcst any to the Court?
Mr. BRUWER: Mr. President, as I have just now said, it depends on
what one understands basically by the words "to wipe out". Now, if my
interpretation of the words is correct, I would say if something is wiped
out-for instance, if I have written something on a blackboard and I wipe
it out-then it no longer exists. so one cannot say that there is anything
in between, because now you have erased something that existed.
Mr. GROSS: Do you attach any significance at ail to the phrase "wipe
out the differences between the groups" as used in the Commission report
-is it just a jumble of nonsense, or does it have a meaning in this context?
Mr.BRUWER: Mr. President, I think what the Commission had in mind
there in using the phrase "to wipe out differences"-is to waive, if I have
the correct word there, a11measures of differentiation. Naturally one can
not wipe out certain things, because how could you possibly wipe out, for
instance, the physical differences between people?-that is not possible;
but I think what the Commission had in mind with that phrase certainly
was the taking away of all measures of differentiation.
Mr. GROSS: The elimination of ail measures of differentiation between
groups would include, for example, the elimination of the matrilineal sys
tem, as distinguished from the patrilineal system-is that what you have
in mind when you refer to elirninating differences, or differentiation?300 SOUTH WEST AFRICA
Mr. BRUWER: No, Mr. President, what I had in mind was eliminating
the differences, the measures of differentiation-we are talking now, Mr.
President, of the southern sector outside the Reserves-between people
within a society on the basis of allotment of rights or non-allotment of
rights.
Mr. GROSS: Do I understand you to rnean, Dr. Bruwer, that in referring
to "wiping out the differences between the groups" you mean eliminating
differentialtreatment on the basis of freedoms and liberties?
Mr. BRUWER: That is correct, Mr. President.
11frGROSS: Thank you. Now with respect to socio-economic integration
the word "complete" is used in the paragraph to which I have referred
"complete socio-economic integration". That would suggest, would it not,
sir,that there is a partial or qualified socio-economic integration-is that
a correct rendering?
Mr. BRUWER: It seems as if the word "complete" would irnply that
possibility, Mr. President.
Mr. GROSS: You were familiar with the drafting of the Odendaal Com
mission report, were you not, sir?
Mr. BRUWER: Yes.
~r. GROSS: Would it be appropriate to ask whether you drafted this
sect10n ofthe report?
Mr. BRUWER: Mr. President, I drafted the chapters on the population;
I drafted the chapter on the physical aspects of the country; and I drafted
the chapter on the educational part; those were the parts that I was re
sponsible for.
Mr. GROSS: Now I believe that, as bas been stated by the Prime Minis
ter-1 quote from the House of Assembly Debates, Third Session, Second
Parliament, 8 May 1964, column 5633-in discussing the report:
"All the members signe<lthe Report as a whole, and the allegation
that each one was just responsible for his own portion of it is not true.
Each one drafted his section of the Report, but thereafter the Com
mission as a whole sat and discussed every letter and every sentence
and every chapter of the whole Report jointly. They not only assum
ed joint responsibility by signing the whole Report, instead of each
one just signing his own section of it, but in fact they jointly went
through this Report over and over again, and they ail subscribed to
the Report as awhole.''
Is that a correct statement, sir?
Mr. BRUWER: That is a perfectly correct statement, Mr. President.
Mr. GROSS: Now then, when you qualify your answer with respect to
the meaning attached to words and phrases by reference to "I gather" or
"I assume", are you now reconsidering the meaning attached to the word
at the time you read it and subscribed toit?
Mr. BRUWER: Mr. President, I am certainly not reconsideringmy expla
nation of the term and what it implies; that naturally was done only to
give an indication of what one understands bv a word in a certain con-
text. ·
Mr. GROSS: Now when you signed the report, which contained the
phase "complete socio-economic integration", did you, in approving those
words, have in mind a distinction between complete "socio-economic in
tegration", on the one hand, and sorne qualified form of "socio-economic
integration", on the other? Can you answer that "Yes" or "No"? WITNESSES AND EXPERTS
301
Mr. BRUWER'. No, Mr. President, I cannot think that we had anything
other than complete in mind.
Mr. GROSS: ls anything less than "complete socio-economic integra
tion" possible as a sociological or anthropological phenomenon?
Mr. BRUWER: Mr. President, my answer to that question is yes, since
there is such a thing, of course, as cultural change and it is not impossible
that thcre can be integration on the basis of that cultural change.
Mr. GROSS: Now how do you recognize, for example, when a non-\Vhite
in the southem sector, outside the Reserves, who has been absorbed in
the White economy, is eligible for this degree of intcgration, for the status
of integration? What criteria or standards do you apply?
;\IrBRUWER: Mr. President, if I had to apply a criterion, I would say
that when he subscribes to evcrything inherent in that society in which
he is rcsicling.nd whcn that society accepts him as being one of its own
mcmbers, legally as well as at hcart.
Mr. GROSS: By subscribing, do you mean taking some kind of an oath,
or making some sort of a dedaration? Would you describe your meaning
more precisely?
Mr. BRUWE.R: Not necessarily, Mr. President. One would certainly eval
uatc the way of life of such an individual, one would evaluate his accep
tance of all the norms and standards of that society; in other words, one
would takc into account whether this man has totally dissected himself
from another group and from another culture, has accepted the culture
and if I mean culture, Mr. President, I have in mind the sum total of
everything-and that hc has now also been accepted by that society,
legally or bv Iaw, as well as at heart, becausc I do make that distinc
tion,Mr. President.
i\lr.GROSS: And you are talking now about individuals, are you not,
Sir?
Mr. BRUWER: I am talking about individuals as well as groups, Mr.
President.
Mr. GROSS: You are talking about individuals as well as groups. At
what age does the individual become juclgeable by this standard?
l\lrBRUWER: At what age, Mr. President? Is that the question?
Mr. GROSS: Yes. Is there an age factor?
Mr. BRUWER: Mr. President, I do not think one could say there is an
age factor.
Mr. GROSS: Is a child integrated in the sense in which you use the term
at the age, let us say, of six or seven? A White child?
Mr. BRUWER: It would be possible. A child is certainly integrated in
the societv.
l\lrGROSS: So that the individual subscription does not determine so
muchas the colour, or race, or fact of birth? Is that correct?
Mr. BRUWER: No, Mr. President, I would not saythat isperfectlycorrect.
Mr. GROSS: The \.Vhite child, at the age of six, can be integrated, in the
sense in which you use the term then, on what basis or criteria other than
the factthat he is White, or classified as White, and not generally accepted
as Coloured?
Mr. BRUWER: Mr. President, on the basis that that child has been born
to eldcrs being part of a society and being now legally accepted as the
child of those parents it is, in our legal system in any case, always recog
nized that a child belongs to the same group and the same society as his
parents. 302 SOUTHWESTAFRICA
Mr. GROSS:So that if the law were amended, or changed, in that re
. spect,the non-White Child would also become a member of the group, or
society, by reason of the new 1egislation? That would be possible?
Mr. BRUWER:That would be possible, Mr. President.
Mr. GRoss: And if a family of non-Whites is born on a farm owned by
a White, and the White child plays with the non-White child, of four
years each, one is a member of the society-integrated-the other is not
a member of the society-non-integrated-is that what you would say
the meaning of this phrase is in the Odendaal Commission report?
Mr. BRUWER:That is, Mr. President. I cannot find the essence of the
question actually. If a child of non-White parents plays with a child of
White parents on a farm ...
Mr. GRoss; Let me formulate it for you, to avoid confusion, so that you
do not have to labour reconstructing my question. I think I made it too
long and I apologize to the Court.
Iam talking about a family classified non-White bom on a farm owned
by a White; that is where the members of that family spend their working
lives.The children play together with the child of the White owner. I
asked you whether the mere fact of one child being White and the other
child being non-White deterrnines that one is a member of the society and
the other is not. Is that a correct statement?
Mr. BRUWER:Mr. President, it is correct, but there are also other dif
ferences. Mr. President, I myself, during all my childhood, always played
with non-White children as children, and yet when itcornes to certain
things we automatically find that I belong to that group and the other
one belongs to his group. But it is, if one takes only into account the ques
tion of whether one now belongs to a certain socieiy and the other one
belongs to another society, then a question, as I have also already agreed
to yesterday, of being classified on the one hand as White and on the
other hand, with the necessary qualification, as non-White.
Mr. GROSS:Dr. Bruwer, I will turn to another line of questions now,
and perhaps corne back to this in another context.
At page n7 of the Odendaal Commission report, reference is made, in
paragraph 441, to the result which would follow from accelerated devel
opment, greater opportunities, in the homelands in the southern sector
and the following statement is made, that "greater opportunities for em
ployment in the homelands in the southem sector [and I quote now], will
result in a great migration to those areas".
I callour attention to the words "a great migration", from the present
areas outside the Reserves to the new projected homelands in the southern
sector, and I ask you, as a member of the Odendaal Commission, in the
light of this prediction of "a great migration", what effect would such a
migration have on the workings of the White economy, ifany?
Mr. BRUWER:Mr. President, I have already told the honourable Court
that I am not an economist, but on the basis of the discussions of the
Commission-! can well recollect that this position was discussed, that is
the possibility of when one now develops in the areas of the other groups
to such an extent that you have then this possibility of a great migration,
that is people returning to their own homelands to make their living there
and to build up an economy there, there is the possibility that there may
be effects in regard to the economic sector of the so-called Whites then.
But, Mr. President, the Commission, in ail the interests of the people that
they could think of, accepted the possibility that it is not only one group WITNESSES AND EXPERTS 303
that may be affected, but ailthe groups will be affected, and similarly, in
this respect, the White group, or the White economy, may also be affected.
That was the basis of the discussions of the Commission as far as I recol
lect it, Mr. President.
Mr. GROSS:Could you say, from your recollection of the discussions
in the Commission on this point. at which every word of the report was
discussed, at what level of migration the White economy would cease
functioning altogether? ·
Mr. BRUWER:Mr. President, I do not think that one could say that
there is any Ievel of migration at which the White economy will cease
to fonction altogether, because one must always remember that any
people, and that also applies to the White people, will devise means
and measures by automation, or whatever it may be, so as to cope with
a situation where one has not got enough manpower and then there
is naturally also the natural increase.
Mr. GROSS:I am inviting your attention to this question, Dr. Bruwer,
because of your testimony yesterday, in which I believe you stated the
view that the White economy could not thrive or even survive, without
the use of non-White labour. Did I correctly understand your testimony?
11h. BRUWER:Mr. President, I cannot recollect exactly what I said
yesterday. I have not yet read the verbatim record.
l\Ir. GROSS:Let me state that as a question to you. today, to eliminate
any problem about our mutual recollection of yesterday. Will you take
it as a fresh question? Can the V..'hitecconomy thrive or even survive
without the use of non-\Vhite labour?
!\IrBRUWER:Mr. President, at this moment, I would say no, it would
not be able to thrive or possibly survive, but that does not mean that
that answcr will apply always.
Mr. GROSS:Now I want to invite your attention to this matter as
precisely as possible. lt may go to the heart of the problem, and may
give pcrhaps, clearer understanding of the Odendaal Commission report.
Do you foresee any practical possibility that the White economy can
survive or thrive without some non-\\'hite labour?
Mr. BRUWER:!\Ir. President, that again is a question for an economist.
My opinion, as a layman in this respect, would be again, that at this
moment, I cannot foresee that possibility. But when one has to do with
a migration, one has to do with a process-that is how the Commission
conceived it-and you would have to make that type of adaptation to
cope with your new problem again.
Mr. GROSS:Can you give me an unqualified yes or no answer to the
question: does the Odendaal Commission, or do you as a member of the
Commission, foresee the practical possibility of the White economy
surviving and/or thriving without the use of non-White labour? Can
you answer that question, yes or no?
!\frBRUWER:If it is at this moment, then my answer is no, Mr. Pres
ident.
Mr. GROSS:Now then, can you answer yes or no to the question in
terms of the foreseeable future?
Mr. Bnuw1rn: No, Mr. President.
Mr. GROSS:Therefore, let us take it even more precisely ...
The PRESIDENT:What is meant by the answer, Mr. Gross? His answer
was no, but was it no that he could not answer the question, or no that
he cannot foresee the possibility?304 SOUTHWESTAFRICA
1\fr.GROSS:I was perhaps expecting an answer and thought I heard it,
Mr. President. Thank you, sir. Would you then clarify any possible con
fusion? Do you foresee the possibility that the White economy can thrive
or survive without the use of Black labour?
Mr. BRUWER:Mr. President, again I speak as a layman, but my per
sona! opinion is that it is possible that the White economy could survive,
without the labour of people coming from other groups.
Mr. GROSS:Do you mean by that answer of "could survive" that you
are indulging in a theoretical exercise, or are you expressing a judgment,
as a member of the Odendaal Commission that has made recommenda
tions with respect to the future of these people?
Mr. BRUWER:Mr. President, I gave my answer on the basis of my own
personal opinion.
Mr. GRoss: Now will you state your view, as a member of the Oden
daal Commission, having subscribed to this report on this fundamental
assumption?
Mr. BRUWER:Mr. President, in regard to South West Africa, I would
again say that the Odendaal Commission certainly foresaw the possi
bility that the White sector would have to do, one or other time, during
a long process perhaps, without non-White labour, if I could use the word
non-White then.
Mr. GRoss: The Odendaal Commission based its recommendations, if
I understand you correctly, on the assumption that at some time in the
future, the White economy would operate without non-White labour.
Is this a correct version of your testimony?
Mr. BRUWER:That is a correct interpretation, Mr. President.
Mr. GROSS:And what time span did this conclusion cover?
Mr. BRUWER:Mr. President, the Commission certainly did not con
sider a span of time.
Mr. GROSS:Is this an important factor in the life of an individual living
today?
11r. BRUWER: It may well be, Mr. President.
Mr. GROSS:Could such a span extend, let us say, for 300 years possibly?
:Mr.BRUWER:That is also possible, Mr. President.
Mr. GROSS;Therefore, in taking account of the possibility of the oper
ation of the White economy without non-White labour, you did not take
account of the time factor, or is that an incorrect appreciation of your
testimony?
Mr. BRUWER:No, Mr. President, the Commission saw this entire ap
proach in a framework that would be working according to a process, but
there was no time span mentioned or time limit in regard to when this
must happen, or when that must happen.
Mr. GROSS:In your testimon y on z July you referred to the importance
which you attached to the human factor in determining the rights and
duties of inhabitants. Is that correct?
Mr. BRUWER:That is correct, Mr. President.
Mr. GROSS:Do you regard the question of the time in which a pro-
gramme or an objective can be accomplished, as a relevant human factor?
l\lJ.r.BRUWER: Itmay well be, M.r. President.
Mr. GRoss: Do you have any doubt aboutit, sir?
Mr. BRUWER:I have no doubt aboutit.
Mr. GRoss: Therefore, if I understood you correctly, the Odendaal
Commission report recommending and foreseeing this substantial, this WITNESSES AND EXPERTS 305
"great migration", did not have in mind any time span in which its pro
gramme would take effect. Is that correct?
l\lr. BRUWER:Mr. President, it is correct to a certain extent, on the
question of time, but as I said, it is envisaged as a process.
Mr. GRoss: Could I ask you then, Dr. Bruwer, whether, as a member
of the Odendaal Commission, as the former Commissioner-General in
charge of the indigenous inhabitants' affairs, as a social anthropologist
and as a distinguished expert, would you express an opinion whcther
any premisc of the Odendaal Commission report and its recommendations
would become invalid if any non-Whites wcre to remain in the "White
economy" or in the \Vhite scctor, let us say for roo years, to state a
time? You understand my question?
Mr. BRUWER:Mr. President, therc was one word that I did not get,
Iam very sorry.
Mr. GRoss: I would be glad to repeat it, Sir, in view of its importance.
Do you, in the light of the various qualifications that I have set forth
(and which are in the record), considcr that it is a premise or assumption
underlying the Odendaal Commission report, that there will, at some
time, be-shall we call it-a total evacuation of non-Whites from the
White sector? Will you answer that question yes or no?
l\Ir. BRUWER:l\Ir. President, naturally yes, on the basis of the broad
conception, but that does not, of necessity, mean that there would be
no-using this phrase-non-Whites in a so-called White area, for pur
poses of employment. We were thinking, Mr. President, of rights and of
privileges and of possibilities and of the development of a community,
but we certairùy did not have a special time limit when we could possibly
say, Mr. President, that for instance for 20 years hence or 50 years hence
or roo years hence, that you had not got a single one of a certain group
in the area and society of the other group, because that~my opinion was
asked-in my opinion, would have been pure speculation.
Mr. GROSS:As amember of the Odendaal Commission, and in signing its
report, I take it, sir, that you and the other distinguished members of the
Commission did not rely upon speculation? That is correct, is it not, sir?
Illr. BRUWER:That is correct, ~lr. President.
Mr. GROSS:And we are obtaining your views, for the benefit of the
Court, in order to elucidate and understand better the ideas, the words
and phrases and their significance, as used in this very important report.
Is that not correct, sir; is that understood to be the objective?
M.r. BRUWER:I understand that, Mr. President.
M.r. GROSS:Now, in the conte:,:t of that objective of my question, I
would like to corne back again to the question I asked before, and which
I undertook to reformulate. If it is not foreseeable that the White econ
omy will be operating without Black labour, or non-White labour, then
is an important premise or basis of the Odendaal Commission report
not invalidated? May I state it affirmatively, if you have diffi.culty? Is
it one of the premises of the Odendaal Commission report, that the White
economy, so-called, will operate without the services of non-\.Vhites in
the foreseeable future?
M.r.BRUWER:No, Mr. President, it was not in the mind of the Oden
daal Commission that the economy in the White sector would operate
without the so-called non-\Vhite labour within the foreseeable future,
the Commission having recommended naturally for the next five years
basically. SOUTH WEST AFRICA
Mr. GROSS: The Commission's recommendations for a five-year pro
gramme envisage, do they not, an ultimate pattern for the territory. Is
that correct?
Mr. BRUWER: That is correct, Mr. President.
Mr. GROSS: Is that ultimate pattern, to which we are addressing our
selves now, one in which there will be no non-Whites in the \Vhite areas?
Mr. BRUWER: Mr. President, I must say no to that question because
as I have already tried to explain, the Commission did not consider any
possibility where in the foreseeable future, there would be a law for
bidding any non-White to corne for instance, and work in the \Vhite
area, and on that basis I would say no: my answer to that question
would be no.
r1fr.GROSS: Thank you. Now, with respect then to the explanations
or justifications made for the limitations on freedoms of the non-Whites
presently in the \Vhite area-with respect to justifications or explana
tions made for those limitations, which refer to the situation of total
separation-would you say that this situation has any basis in the fore
seeable future?
Mr. BRUWER: Mr. President, yes it has that basis of differentiation.
Mr. GROSS: The doctrine of apartheid or separate development as I
understand it (correct me if I am wrong) pre-supposes an ultimate situa
tion in which there will be total separation of White and non-White.
Is that correct?
Mr. BRUWER: Mr. President, the doctrine of apartheid, I do not know
what is meant by that phrase.
Mr. GRoss: You do not know what is meant by apartheid? What
phrase do you prefer, sir?
Mr. BRUWER: If,what is meant, Mr. President, is the system or policy,
or approach of separate development, and if by that policy it is under
stood, as Ihave tried to indicate to the honourable Court previously my
acceptance of that approach, that people are recognized on the basis
of their unity, on the basis of their territory, on the basis of their insti
tutions and that their development according to a process takes these
things into account, and if rights are ensured for certain people within
the framework of that approach, then I would say, if I may then quote
the term, that would then be the doctrine of apartheid. But, Mr. Presi
dent, as a social anthropologist, I would not use the word "doctrine"
because what I believe to be a doctrine, if my understanding of the term
is correct, is something which is absolute, something which is an absolute
unchangeable concept.
Mr. GROSS: \Vould you prefer the word "policy"?
Mr. BRUWER: I would prefer the word "policy", Mr. President.
Mr. GROSS: Now, would the "policy" of apartheid or separate develop
ment be comprised or refl.ected in the following statement by the Prime
Minister of the Republic in the House of Assembly Debates, the Third
Session, the Second Parliament on the 8 May 1964, at column 5641, in
which the Prime Minister referred, and I quote as follows, to the concept
that:
"... the limitations imposed on the freedoms of people (as we find
practically over the whole world where anybody lives in the terri
tory of somebody else) fall away as soon as everybody can enjoy
bis own freedom in his own terri tory". WITNESSES AND EXPERTS 307
And then the Prime Minister went on to say-this was ail à propos of
the Odendaal Commission report, as you know: "Human ri&"hts will
have more opportunity to develop to the full in terms of our policy when
separation takes place ... " Now, I invite your attention first to the
phrase "limitations imposed on the freedoms of people". I believe that
you testificd earlier that you would considcr that as a form of discrimi
nation. Is that correct?
Mr. BRUWER:That is correct, Mr. President.
Mr. GROSS:Now, with regard to the phrase "as soon as everybody can
enjoy his own freedom in his own territory", does that envisage or con
template total physical separntion?
Mr. BRUWER:Mr. President, not necessarily, because I think one can
have your rights and your freedoms and your privileges in your own
country, although you may be working or you may be employed in
another country.
Mr. GROSS:I am not certain that I understood that, sir, perhaps we
could approach it slightly differently. Prime 1\linister Verwoerd's state
ment, which I have just quoted, refers to, and I quote again:
"Limitations imposed on the freedoms of people [will] fall away as
soon as everybody can enjoy his own freedom in hisown territory."
In calling your attention to those words, I asked whether this contem
plated total physical separation as a part or element of the policy of
apartheid or separate development?
Mr. BRUWER:Mr. President, I cannot of course say what the honour
able Prime Minister had in mind, but my own deduction would be that
if one says tha.t "limitations on freedom fall away", then that would
have applied that separation.
~fr. GRoss: By "separation" I am referring, and I want to know
whether you are, too, to the physical phenomenon by which people take
up space. I am talking about physical separation; in that use of the
term, does the policy of apartheid contemplate as an ultimate goal the
physical separation, in different territories, of Whites and non-Whites?
l\Ir. BRUWER:Mr. President, the policy, as I understand it, certainly
contemplates that.
Mr. GROSS:Total separation?
Mr. BRUWER:Total separation, Mr. President. But I again qualify
what I want to clearly point out, Mr. President, that total separation,
physically, the term that was used here, would then mean that nobody
of the one group would ever be able to enter the territory of the other
and, Mr. President, to that sort of definition to a total physical separa
tion, I would not be able to answer yes, because I do not think that that
is what is implied.
Mr. GROSS:Do you, by "enter", mean temporarily visit?
Mr. BRUWER: Temporarily visit, Mr. President, and even staying for
a time for the purpose of earning a living. I would like, Mr. President, to
exclude that type of thing in regard to this phrase "total physical sepa
ration", because I do not think that one can apply the term "total phys
ical separation" in regard to this policyIt would for instance, Mr. Presi
dent, then also mean, if I may explain to make clear my answer. that as
a \Vhite man I would also not be able then to go into the area of say, one
or other of the other people.J cannot see how this total physical separa
tion in this sense,can be implied in the term.308 SOUTHWESTAFRICA
Mr. GROSS:Let us then take the case, Dr. Bruwer, of a non-White who,
as you say, works for a living in the \Vhite territory or area-to use
Prime Minister Verwoerd's expression, in the "terri tory of the \Vhite"
that person is, while he is in that territory, subject to the imposition of
limitations on his freedoms, under this statement of the Prime Minister.
That is correct, is it not, sir?
Mr. BRUWER: Itappears tome to be correct, Mr. President.
Mr. GROSS:Is it the opinion of the Odendaal Commission that, so
long as a non-White is in the White territory, he must be subject to lim
itations upon his freedoms?
Mr. BRUWER:That, Mr. President, was certainly the consideration of
the Odendaal Commission on the basis of the broad approach of the
problem that I have tried to indicate.
Mr. GROSS:Therefore, it would seem to follow that if the non-White,
who might spend his entire working life, or longer-beyond his retire
ment-in the White area, would be subject to imposed limitations on
his freedoms so long as he was physically present in the White area. Is
that correct?
Mr. BRUWER:That is correct, Mr. President.
!lfr. GRoss: And is it, or is it not, proposed by the Odendaal Commis
sion that the cure for that situation, shall we say, is physical removal to
bis own territory where, in the words of the Prime Minister, "human
rights will have more opportunity to develop"? Is this the only therapy
that can be applied to this situation?
Mr. BRUWER:Mr. President, that was according to the considerations
of the Odendaal Commission, taking into account ail the aspects of the
very complicated problem and having in mind the interests of the people,
according to what the Odendaal Commission could find out; that was,
in their opinion, with all that information, at that time, at this stage in
the history of the peoples of South West Africa, the best possible approach.
Mr. GROSS:This "best possible approach", as I understand it, involves
the perpetual imposition of "limitations ... on the freedoms of people",
in the Prime Minister's phrase-limitations on the freedom of non
Whites in the White sector, so long as they live. Is that statement correct?
Mr. BRUWER:Ilfr. President, I again say that I do not know what the
Prime Minister had in mind, but measures of differentiation in regard to
this broad approach and broad concept would certainly, in my opinion,
have to be carried on with as long as you have this approach.
Mr. GROSS:Do you regard 'the phrase "measures of differentiation"
as a synonym to the phrase "imposed limitations on freedom?" Do they
mean the same thing, those bvo phrases?
Mr. BRUWER:Mr. President, when I used the term "Measures of dif
ferentiation", Ihad in mind measures of differentiation as conceived by
a society at a certain time, as I have tried to explain, to protect itself
against other societies. And may I add, Mr. President, for clarity's sake,
I can quite foresee that when a society, as a people, decides that these
measures of differentiation must now fall away, that that could of course
r,ossibly be done and therefore I cannot subscribe to the qualificative
'perpetual" because that would, in my opinion, Mr. President, depend
on the society itself.
Mr. GRoss: Now, Dr. Bruwer, do you regard the imposition of limita
tions upon the freedom of individuals as consistent with the promotion
of their moral well-being and social progress? WIDIESSES AND EXPERTS
Mr. BRUWER:Ilfr. President, I cannot say yes or no to a question of
that nature because, naturally, one must keep in mind a certain situa
tion. Now, ifone has to start, Mr. President, explaining what one means
by moral and social well-being, I am afraid, Mr. President, it would takè
me a very, very long time to explain exactly to the honourable Court
what I mean, but I shall be brief. In imposing then limitations, Mr.
President, in regard to the freedom and privileges and rights of certain
people within a society, in this case then the non-Whites as against the
Whites, as I have already indicated to the honourable Court, that also
happens in other societies where this question of "White" or "non
White" does not corne into the picture.
Now, Mr. President, what is the moral well-being, if we take that
term, what is the moral well-being of a person? There are, in my opinion,
a vast number of factors which contribute to the moral well-being of
somebody and those factors, also in my opinion Mr. President, sometimes
differin different societies. Now, it is the same in regard to the social
well-being. Social well-being onemay perhaps define it as being the well
being ofthe man within a social group. That is his social well-being. But,
Mr. President, to conclude, if any measure imposes limitations on the
one group ...
Mr. GROSS:Freedom? Limitations on freedom?
Mr. BRUWER:Limitations on freedom, Mr. President. If any limita
tions of freedom are imposed on an individual, or even on a group of
individuals,1Ir. President, I can quite see that that may perhaps make
those people unhappy. I can quite see that. On the other hand, again,
you may have to do this when you have to evaluate a situation, not on
the basis of one single individual, but on what is best in the interests of
all the people. Now, if you differentiate, as I say, Mr. President, I admit
and I agree that it is possible that certain people will not be happy. But
on the other hand again, if you do not have those limitations then others
would again say that they are not happy. And now, in regard to these
limitations, Mr. President, and the moral well-being of people, it was
the honest conviction of the members of the Odendaal Commission and,
Mr. President, if I may, with your permission, say that, as far as my
colleagues are concerned I did not know them before that time, but I
came to know them on this Commission as honourable men who really
tried to find a solution.
Mr. GROSS: Mr. President, I have no objection to the witness
continuing if the Court wish. I would like to ask other questions,
and I raise the question whether this is now being responsive to my
question.
The PRESIDENT:Well, I think it generally is, Mr. Gross. Your question
was very much at large.
Mr. GROSS:I have raised the question, yes, sir.
Mr. BRUWER:Mr. President, I am sorry. I beg your pardon. I just
wanted to explain that the Commission really tried to find a solution
for a very complicated and a very difficult problem. The Commission
was certainly not under any illusions, Mr. President, in regard to the fact
that some people may certainly perhaps feel that they would not be
happy, but in regard to the general approach as the Commission saw it,
the Commission was of the conviction that it would be in the moral and
social well-being of ail the groups of South West Africa.
Mr. GROSS:Dr. Bruwer, with respect to the matter under discussion SOUTH WEST AFRICA
JIO
before the recess, with respect to the limitations imposed upon the free
doms of certain groups by other groups in South West Africa: in the view
of the Odendaal Commission, who, what body, makes the decisions re
garding the extent and degree of the limitations imposed? How is that
determined?
Mr. BRUWER:Mr. President, under the present system, the deduction
is that the limitations are imposed by the administering body.
Mr. GRoss: And does the administering body include representatives of
any of the groups whose freedoms are limited?
Mr. BRUWER:Not in South West Africa, Mr. President.
Mr. GRoss: We are talking about South West Africa. The decisions are
made by administration, which then is controlled by one group. That is
correct?
Mr. BRUWER:That is correct, Mr. President. '
Mr. GROSS:And it iscontrolled by the group whose happiness is, in
your terms, determined to a large extent by the limitations imposed on
the freedoms of the other group. Is that correct?
Mr. BRUWER:That is correct, Mr. President.
Mr. GROSS:What safeguards, if any, does the Odendaal Commission
report suggest, to avoid the possibility that the group imposing the limi
tations on freedom may be unduly influenced by its own advantage or its
own concept of happiness?
Mr. BRUWER:Mr. President, the entire basis of the recommendations
of the Odendaal Commission is exactly to prevent that thing from hap
pening. The basis of the Odendaal Commission report, as the honourable
Court will recollect, ishat each group should be able to decide for them
selves, within their own areas, according to their rights and their privi
leges.
Mr. GRoss: Dr. Bruwer, could you address yourself to the question:
what safeguards, if any, are suggested by the Odendaal Commission to as
sure against the decisions of the dominant group limiting freedoms on the
basis of its own happiness, rather than on the basis of the welfare of the
other group?
The PRESIDEIH: Mr. Gross, I think that the word dominant, for the
purpose of giving a factual reply, ought not to be included at the present
moment.
Mr. GRoss: Yes, Mr. President. I would like to refer to the terms of
Prime Minister Verwoerd's characterization of the "domination or baas
skap, of the White man in bis own area", as set forth in the Rejoinder, V,
page 252. In the context of my question, Dr. Bruwer, I am referring to
the "White man" exercising "domination" in the phrase of the Prime
Minister. Now, may I put my question to you in those terms? What safe
guards, if any, are suggested by the Odendaal Commission report to as
sure against the White man in South West Africa attempting to achieve
domination by measures which do not unfairly restrict the happiness and
welfare of the other group?
Mr. BRUWER:Mr. President, by safeguarding the interests of the groups
in the areas that then would be theirs, and where they would then be the
dominating group, if I may also use that term. In other words, where they
will then dominate in the same way as the Whites are now domina
ting in their area.
Mr. GRoss: Do I understand your answer then to be that unless the
non-White physically moves to his own territory, where he can dominate, WlTNESSES AND EXPERTS 3II
there is no safeguard to protect him against limitations upon hls freedoms,
so long as he is inhe White area? Is that correct?
Mr. BRUWER:Mr. President, it is correct in regard to the limitations
that are there at present.
Mr. GROSS:Are there limitations contemplated for the future, so far as
youknow?
Mr. BRUWER:I do not know of any, Mr. President.
Mr. GROSS:Did the Odendaal Commission consider whethe1 the present
limitations were just right, or should be expanded or contracted?
Mr. BRUWER:Mr. President, in regard to these limitations, from what
the Odendaal Commission could recollect, some of these limitations even
had a bearing in areas outside that area that was then delimita.ted as the
White area, and the Odendaal Commission, as the honourable Court will
also recollect, also offered criticism in regardcertain things and recom
mended improvement, and even change, of certain such measures.
Mr. GROSS:Certain what, sir?
Mr. BRUWER:Certain such measures of differentiation.
Mr. GROSS:Do you mean to eliminate or modify limitations upon free
doms of the non-Whites? Is that what you are referring to?
Mr. BRUWER:That is what I am referring to.
Mr. GROSS:Could you give an example of a limitation imposed on the
freedom of non-Whites, in the White area, which the Odendaal Commis
sion recommend be repealed or modifted?
Mr. BRUWER:Mr. President, not in the White area. As I have said,
there were limitations having a bearing wider than the White area.
Mr. GROSS:I do not understand your answer, sir. \Vith respect to the
non-\Vhite in the White sector, were any recommendations made by the
Odendaal Commission with regard to the release of limitations upon his
liberties or freedoms?
Mr. BRUWER:Mr. President, not that I can remember at the moment.
Mr. GROSS:Then going back to my earlier question. Did the Odendaal
Commission consider that the presently imposed limitations on the free
doms of these people of whom we are speaking, were just right, did not
need addition, did not need subtraction-did the Odendaal Commission
adopt that view?
Mr. BRUWER: Mr. President, the Odendaal Commission adopted the
view that one has the position whereby you have a situation of limitations
imposed on these people, and they adopted the view, furthermore, that
these limitations were conceived so as to ensure rights of a certain group
in a certain area.
Mr. GROSS:Would you mind substituting a specifi.cterm for the word
"certain", for the clarification of the Court?
Mr. BRUWER:For instance, land rights, Mr. President.
Mr. GRoss: The people, the group--would you mind specifying for the
Court, when you say a "certain" group and "certain"groups, what groups
you are referring to?
Mr. BRUWER:Mr. President, we are referring to the southern sector
outside the Reserves, and that would then mean ensuring the rights of the
White group in that area, and in the same way assuring the interests and
the rights of the non-\Vhites in their areas.
Mr. GRoss: Dr. Bruwer, is it fair to say that your conception of the
problem of the rights of individuals in the White sector must always
be weighed and measured against what is happening or what is not312 SOUTHWEST AFRICA
happening in another sector-is this your approach, the approach of the
Odendaal Commission?
Mr. BRuWER: Mr. President, taking all the factors into account, that
was the approach .
.Mr.GROSS:That is the approach?
.Mr.BRUWER:That is the approach.
Mr. GRoss: Could the approach be summarized to be described as one
of equivalent rights-Black here, White here-without reference to the
quality or character of the action that takes place in each such territory?
Do you understand my question?
Mr. BRUWER:Yes, .Mr.President, and my answer is no, because it was
nota question of Black and White-it was a question of various groups,
.Mr.President.
Mr. GROSS:What is "a question of various groups" in the context of
Prime Minister Verwoerd's statement that the White man dominates in
his area, and the Bantu dominates in his area-these are the two groups
of which we speak, isthat not correct?
Mr. BRUWER: No, Mr. President, we are speaking of many more groups
in South West Africa.
Mr. GROSS:I am speaking of two groups, then-would you be good
enough to address your comments to the groups of which we are speaking?
Itis true, is it not, Dr. Bruwer, that rights are allocated and freedoms are
limited in the \Vhite sector on the basis of whether an individualisa "Na
tive" or whether he is a "White"-is that correct?
Mr. BRUWER:That is correct. Mr. President.
Mr. GRoss: As far as the Native category is concerned, is it relevant to
this question whether he is a Herero or a Nama, for example?
Mr. BRUWER:Mr. President, I would say no, since a collective term is
used inthat quotation.
Mr. GROSS:If you will, please, sir, stay with this usage in this context
which seems relevant. Now, to corne back to my question-is it your con
ception,or the approach of the Odendaal Commission, that the rights and
duties of the non-Whites in the White zone are to be offset by the rights
or duties of the Whites in the Black zone or Black territory-that this is
the criterion which is to govern in each case-the relative balance of the
rights? I do not understand your reference to the situation outside the
White sector when I ask you to discuss the situation within the White sec
tor. May I restate this in the form of a clearer question? I asked you, or
intended to ask you, who is to determine the rights and the imposition of
limitations upon the freedom of the non-Whites in the White sector?
Your reply was "the administration"; you said that that was controlled
by the White group, and that the other group was not represented init;
this is correct so far?
Mr. BRUWER:That is correct, :ilfr. President.
Mr. GROSS:I then asked you or intended to ask you, on the basis of the
Odendaal Commission's recommendations: what safeguards, if any, were
recommended to assure that the White group in terms of the domination
objective referred to by the Prime Minister would not abuse its power by
imposing undue limitations on the freedoms of the non-White group;
what was your answer to that question, or if you feel you have not an
swered it, what is vour answer toit now?
:Mr.BRuWER: ~fr. President, my ans\.,·erto that would be, first of ail,
that the Odendaal Commission recommended the creation of councils in WITNESSES AND EXPERTS
313
the so-called White area there representing the non-White groups, if we
then use the collective term, so that there is a body that can see toit that
the interests of the people represented by that body are looked after; but
naturally, Mr. President, the entire concept of the Odendaal Commission
in safeguarding the interests of the people of South West Africa was on
this basis of ensuring that in the future, with this system, there cannot be
a domination by the White group of any other group.
Mr. GRoss: In your testimony on Friday, z July-that is, on page 265,
supra-you testified as follows, and this is in the context of a long para
graph, and I will endeavour not to quote it out of context, but to be brief;
you said:
"... as far as South West Africa is concerned, I also think that the
one group, either on the basis of numbers or on the basis of economic
strength, will undoubted]y dominate the other group if you have not
got protective measures ... ".
Now, substituting the phrase "protective measures" for the word "safe
guards", ,vhat recommendations, if any, were made by the Odendaal
Commission with respect to "protective measures" to assure that the non
Whites would not be dominated-the word you used-by the Whites on
the basis of their economic strength?
Mr. BRUWER: Mr. President, the basic safeguard that the Odendaal
Commission made to protect the rights of the non-White peoples so that
they may not be dominated by the Whites was, or is, the recommendation
in regard to the various homelands, where the possibility for the White
group to go and buy up land on its possible or probable economic strength
could not be possible.
Mr. GROSS: Could I put it to you that the answer you have given tells
the Court nothing about what protective measures are recommended, if
any, by the Odendaal Commission with respect to the non-White who
does not move outside the area in which he lives? Are there any protec
tive measures recommended by the Odendaal Commission with respect to
the unnumbered non-White individuals who do not take advantage of the
opportunity to go to Ovamboland, let us say?
Mr. BRUWER: Mr. President, the Odendaal Commission did not, as far
as I can recollet,recommend measures safeguarding the interests of those
people other than on the basis of giving it to them, or wanting them to
accept the safeguards and the rights on that broad basis of recommenda
tion of the ,·arious homelands.
Mr. GROSS: If I can pierce through the meaning correctly-correct me
if I do not-what you have just testified to sounded as if you were saying
that unless a non-White should go, physically leave the White sector, no
protective measures were recommended by the Odendaal Commission
with regard to his welfare or well-being in the White sector? I am talking
now about limitations upon his freedoms.
11Ir.BRUWER: Mr. President, in regard to the limitations of freedom,
naturally the question of education and of hospitalization, and that sort
of thing, provisions are made for that, but what I had in mind when I said
that the Odendaal Commission did not recommend the safeguarding of
the interests of those people is that they did not recommend, for instance,
that non-\..Vhite people must now be given the right to be able to parti
cipate in the political institutions of that White group, or of having now
the right to buy up land in the urban areas. In other words, these mea- SOUTH WEST AFRICA
sures, Mr. President, which the Odendaal Commission recommended as
having to be exercised in the areas of these people, and in connection with
their community of pe0ple, there were no recommendations as far as I can
recall, Mr. President, in regard to the removing of such limitations.
Mr. GROSS:When you referred in your testimony (on p. 265, supra,
of the verbatim record of 2 J uly) to "protective measures" (in your
phrase) which were necessary in order to avoid (again your words) "dom
ination" by one group or the other-1 ask you again, what protective
measures, if any, did the Odendaal Commission recommend to assure
against "domination" (in your phrase)? Were any recommendations
made by the ûdendaal Commission to protect against "domination" (in
your phrase)?
Mr. BRUWER:Mr. President, the recommendations made by the Oden
daal Commissfon as protective measures for domination of the one group
by the other group were those recommendations that assigned to a group
of people a certain area in which they would have the only say in regard
to certain matters, such as land rights and these things, and in which the
other group would not be able to exercise such rights. The Odendaal Com
mission conceived that in that way then the interests of the one group
would be safeguarded and protected against domination by any one of the
other groups.
Mr. GRoss: Sa that the only protective measure recommended by the
Odendaal Commission to assure against domination of the non-Whites by
the Whites was that the non-Whites could, and it was hoped would, leave
the White area? Is that correct?
Mr. BRUWER:Basically that is correct, Mr. President.
Mr. GRoss: That is the basis upon which the Odendaal Commission re
commenda tions rest?
Mr. BRUWER: Yes, Mr. President.
Mr. GROSS:Now, with respect ta those non-Whites who are living in,
and working in, the White sector, is the Court to understand you correctly
to say that the Odendaal Commission made no recommendations with
respect to the nature, or scope, or content of limitations upon the free
doms of such people so long as they remain in the White sector? Is that
correct?
Mr. BRUWER:That is basically correct, Mr. President.
Mr. GROSS:Is it incorrect in any aspect?
Mr. BRUWER:Mr. President, I would not say it is incorrect, but I think
it is incomplete in one aspect, in the sense that these people now have the
freedom to make use of rights and privileges in certain areas.
Mr. GROSS:Is this another way of saying they have the privilege of
getting rights and freedoms if they leave the White sector and go else
where?
l\Ir. BRUWER:That is correct, Mr. President.
Mr. GROSS:Thank you. Now, I shouldlike to address the following ques
tions to you, as a member of the Odendaal Commission, as an expert, and
as a former Commissioner-General for Native affairs, or for indigenous
peoples, with respect to South West Africa.
I invite your attention to the following quotation from the Odendaal
Commission report, page 427, paragraph 1433:
''Itîs a universal characteristic of man to identify himself with the
population group which has the same ethnie and socio-cultural back
ground as he has ... Consequently, a group gives preference to its WITNESSES AND EXPERTS
own group members ... so that members of another group are hand
icappecl or excluded from the activities of the group, other members
being admitted only in so far as they are supplementary to the group
and not competitive."
My first question, based upon that quotation from the Odendaal Com
mission report, is whether the groups referred to are the White and the
non-White groups in the Police Zone, or southern sector?
Mr. BRUWER: Mr. President, no. The group referred to in that quota
tion appears tome to be, for example, Ovambo.
Mr. GROSS: When the Odendaal Commission report, in the excerpt I
have just quoted, says-now I am talking about the southern sector, the
"White area" of the southern sector outside the Reserves-that, on the
basis of "a universal characteristic of man", a group gives preferenceto
its own group members so that members of another group are handicap
ped, or are excluded from the activities ofthe group-other members being
admitted only in so far as they are supplementary to the group and not
competitive-I ask you whether this applies to the relationship between
the White group and the non-White group in the southem sector?
Mr. BRUWER: Mr. President, as far as I can see, it also applies there.
Mr. GROSS: When you.signed the report did you corne across this lan-
guage?
Mr. BRUWER: Yes, Mr. President.
Mr. GROSS: Was that your understanding of it at that time?
Mr. BRUWER: That was my understanding at that time too.
Mr. GROSS: Therefore, the mcmbers of the-I am paraphrasing it, tell
me if I do so incorrectly-non-White group are handicapped, or are ex
cluded from the activities of the White group, other members being ad
mitted (that is non-White group members) only in so far as they are sup
plementary to the White group and not competitive? Is that a fair para
phrasing, or interpretation, of this quotation?
11IrBRUWER: Yes, Mr. President, I think it is a fair interpretation.
Mr. GROSS: Now, in respect of admitting-and this is the phrase used
"admitting" members of the non-White group in so far as thcy are "sup
plementary" to the \Vhite group "and not competitive", would you ex
plain to the Court what is meant by "admitting" in that context?
Mr. BRUWER: Mr. President, in that context I would say the word "ad-
mitting" means allowing them in that area.
Mr. GROSS: Allowing him physically in the area?
Mr. BR UWER: In the area.
Mr. GRoss: I call your attention again to the exact quotation.
"Consequently, a group gives preference toits own group members
... so that members of another group are handicapped or excluded
from the activities of the group, other members being admitted only
in sofar as they are supplementary to the group and not competi
tive."
Now you have explained, I believe, have you not, that this includes
let me ask you to put it in your own terms and state again, if you will,
what is meant by the word "admittcd" in this context?
Mr.BRUWER: Mr. President, allowing them in that society I should say.
Mr. GROSS: Allowing him in what sense? That I take to be a synonym
with "admitted".
:Mr.BRU.VER: In a technical sense. SOUTHWESTAFRICA
Mr. GROSS:For what purpose?
111r.BRUWER:In the society for the purposes, as stated there, in a sup
plcmentary way. That would then be, in this case, Mr. President, as a man
who participates in the employment in that area.
Mr. GROSS:Is this just another way of describing the admission of non
Whites physically into the White area for the purpose of labour?
Mr. BRUWER:That would appear to be correct, Mr. President .
.Mr. GROSS:I would like to ask you now, in referring to the phrase "uni
versal characteristîc of man'' (that phrase is used in the Odendaal Com
mission report): is this a sociological, or is it a soda1-anthropological
phrase, or what is the technical, or scientific meaning, if any, which you
would attach toit?
Mr. BRUWER:Mr. President, it appears tome to be a sociological con
cept. Naturally, as a social anthropologist, I would also say that it is a
phenomenon-people tend to be organized on the basis of groups, on the
basis of peoples, on the basis of nations.
Mr. GROSS:Dr. Bruwer, I would like to make myself clear. I am talking
now about the phrase "universal characteristic of man" and let me put
this question to you, if Imay. Does this phrase mean that there are cer
tain characteristics which are applicable to men as men, to people as
people?
Mr. BRUWER:Yes, Mr. President, I think that is the meaning of the
word.
Mr. GROSS;Now, the phrase ''universai characteristic of man'' then pre
supposes, does it not, that there are certain qualities which reside in the
individual, which qualities are shared generally by other individuals even
of other groups by reason of their common humanity? Is that correct?
Mr. BRUWER:Yes, it appears to be correct, Mr. President.
Mr. GROSS:Now, with respect to the "universal characteristic of man",
the phrase quoted from this paragraph of the Odendaal Commission re
port, I should like to address the following questions to you as a social
anthropologist, as a member of the Odendaal Commission and as former
Commissioner-General of the indigenous groups of South West Africa.
Taking the individual as "the focal point" I quote from the Odendaal
Commission report, rather than the group, in the modern sector of South
West Africa, would you say that the following were universal character
istics ofman shared by all men, ail inhabitants of the terri tory regardless
of colour:
"r. A desire for individual human dignity and respect as an indi
vidual human being, without regard to his group."
Would you characterize that as a "universal characteristic of man"?
Mr. BRUWER:Mr. President, yes, that should be a universal character
istic of man, if I understand the description well.
Mr. GRoss: You have used, or the Odendaal Commission report has
used, the description. I cannot interpret it, I am really asking you to. In
any event, let me ask you whether, in your view and in the respects which
qualify you to answer the question, is it a "universal characteristic of
man" to desire individual self-improvement and self-development accord
ing to his innate ability and capacity?
Mr. BRUWER:I think that is so, Mr. President.
Mr. GROSS:When the Odendaal Commission considered the question of
rights and dutiesof individuals in the White sector, of non-Whites in the WITNESSES AND EXPERTS
White sector, was weight given to these universal characteristics of man
which I have mentioncd?
Mr. BRUWER; Yes, Mr. President, weight was given. I havealready tried
to indicate that the Commission considered every JXlSsibleangle of the
problem and the Commission naturally also consirlered the problem of in
dividuals staying in the areas of other individuals, not only in the \Vhite
area but also in other areas. But the Commission's conviction was, l\Ir.
President, and this is also my conviction, I have bcen asked to give my
opinion as a member of the Commission, Mr. President, as a social anthro
pologist and also as Commissioner-General, it is therefore also my opinion,
Mr. President, that within the framework of the problem that the Com
mission had to face, although the Commission understood that a specific
individual, whether he be White or whether he be non-White, will perhaps
suffer and will perhaps feel unhappy, the Commission felt and was also
convinced, l\fr.President, that the major interests of the people, consid
ering alsothe interests of the individual members of the people, could best
be served, under the prcsent circumstances, by the approach (if I may
again use that word) of giving people the opportunity to have rights and
freedoms without the fear that they may be dominated. That was the
broad principlc-also keeping in mind, !\Ir. President, the interests of in
dividuals.
Mr. GROSS: You mean, I take it, what you testified before: the pri\·ilege
to attain freedoms or avoid limitations of freedoms by leaving the White
sector. Is that what you mean?
Mr. BRUWER: I think that is correct, Mr. President. By taking the free
dom to leave the one area ...
Mr. GROSS: "By taking the freedom to leave"-would you charactcrize
that, or be willing to characterize that, as a solution by permitting escape
from the local situation?
Mr. BRUWER: That appears tome, l\IrPresident, as being the situation,
if it is a question of the individual now saying well, I am prepared to stay
here on the basis of these limitations. orthese limitations notwithstanding.
But on the other hand again the individual may say, but I would rather
like to move to mv group and to my people where I have all the basic
rights. •
Mr. GROSS: So that an individual and his family, who were born, per
haps, in the White sector, have the option of remaining there so long as
he pays the price of the limitation upon his freedom, or else taking himself
and his family and removing outside the area. Is that the alternative posed
by the Odendaal Commission?
;\IrBRUWER; l\1r.President, that is the alternative within this frame
work.
l\IrGROSS: Now, in dctermining the extent and nature of the limita
tions upon the freedom of the individual, are there any objective-speak
ing as a scientist-are there any objective criteria or standards on the
basis of which the dominant group (in Prime Jlinister Verwoerd's termi
nology)-the Whites in this case-may judge the extent to which, and the
nature in which, thcse limitations should be imposed?
Mr. BRUWER: Mr. President, l think yes. If one keeps in mind the inter
ests of peoples, there are many factors, in my opinion as a social anthro
pologist, that have a bcaring on the basic interests of people. Now, if I
remember well, I told the honourable Court that there is the possibility
that when you waive, for instance, measures of influx control, that so 318 SOUTH WEST AFRICA
many people of the other areas will migrate to an economy which, after
ail, is only also limited, that you will havtodeal with what I would call
a social illness,nd not be able to cope with this; and, Mr. President, if
I may be permitted to give my opinion as a social anthropologist in this
respect, I would rather see the African people, with the respect that I
have for them, in their own areas amongst their own people other than in
circumstances in which one sometimes finds them in the urban areas.
Mr. GROSS: Would you, as a social anthropologist, in the terms in which
you have just commented to the honourable Court, say that there were
,. any improvements or modifications which could be made to relieve limita
tions of freedoms which are now imposed by the \Vhites?
Mr. BRUWER: Mr. President, unless of course you change your whole
basic concept, and then it must be remembered that it would have to be
changed altogether, unless one changes the whole concept of recognizing
the unity of certain people, recognizing their rights, recognizing the rights
that they have assumed to be their rights for many, many years, unless
one removes this concept with the protection that also, in my opinion,
goes with it, I cannot see actually how one can take away these limitations
for the protection of that one group, but also, Mr. President, in my very
sincere opinion, for the protection and interest of the other people. On
this basis that I have just tried to explain to the honourable Court, I
would rather see people living within their group where they have that
dignity and that individual freedom and also that possibility of economic
improvement, rather than creating a situation, Mr. President, where one
has sociological situations which I would define as not being in the inter
ests of peopleor of an individual.
Mr. GROSS: Will you apply this general criterion or approach, of phys
ical separation ofthe non-White by removal, voluntary or otherwise, from
the White sector, irrespective of the effect of that upon the economy of
the area?
Mr. BRU\VER: Mr. President, I did not get the last two words.
Mr. GRoss: The e:ffect on the economy of the area. I say, would you
apply the concept or scope or approach which you have just expressed, of
separation physically of the non-White from the White sector-would you
apply that approach as a desirable objective, as you put it I think, irre
spective ofthe economic consequences in the White sector?
Mr. BRUWER: Mr. President, certainly I will, irrespective of what effect
it may have on the \Vhite economy, if it is in the interests of the various
African groups.
Mr. GROSS: Are you well aware that the Court is aware that you are
not an economist, and I address this to you as a member of the Odendaal
Commission? Can you conceive of the possibility that the modern econ
omy, the co-called White economy, could cease functioning in South
West Africa without detriment and suffering to the entire population?
Can you conceive that possibility?
Mr. BRUWER: Mr. President, I can conceive that possibility and that
is also the reason why I have already told the honourable Court previ
ously that neither the Odendaal Commission nor myself could conceive
a situation where there is a momentarily physical separation, Mr. Presi
dent, of the people.
Mr. GROSS: I am talking, sir, not about "momentarily" (if by that
you mean short visits abroad), I am talking about physical separation
by removal, voluntary or otherwise, of the non-Whites from the White WITNESSES AND EXPERTS
sector; your approach, if I understood it correctly, is that it is a desir
able social objective and a human objective that these individuals obtain
their freedoms and their rights by living elsewhere, and I ask v,hether
you upholcl that view despite the malfunctioning or cessation of function
ing of the modern economy of the Territory?
Mr. BRUWER:Yes, Mr. President, I will still be of that view if it is in
the interests of the African people.
Mr. GRoss: And then I ask you, and I will repeat my question: can
you, as a member of the Odendaal Commission, conceive of the termina
tion, cessation of functioning, of the modern economic sector as of bene
fit to the population of South West Africa, regardless of colour or race?
Mr. BRUWER:Mr. President, naturally on the basis of the answer, I
can only say no.
Mr. GRoss: On any reasonable basis, can you give any other answer?
Mr. BRUWER:Mr. President, I would say again that I am not an econ
omist, and I cannot conceive how the economy of South West Africa in
the White sector can fonction at this moment without the considerable
contribution that is macle by the African people, but I cannot say that
it is not possible, or that one cannot conceive such a possibility in the
future, when for instance a great percentage of that African force will
be busy in their own areas, with their own development. I can also fore
see, Mr. President, that one can qualify your answer by saying that:
although I say yes I can conceive it in a purely theoretical or academic
way, in practice there would always be, Mr. President, in my opinion,
a possibility forthe one man to go and work in the area, or economy then,
of the other, since I personally, Mr. President, cannot foresee, and that
was also not the consideration or the conception of the Oclendaal Com
mission, that there would be no inter-relations in regard to the economy
of the entire Territory. In other words, if I may put it in that way, Mr.
President, as I understood it, purely as a layman in regard to economic
things but having subscribed to the report, as I understood it, there
would always have to be an inter-relation in regard to the economy of
the Territory, the economy of the various groups or the homelands then,
as was recommended by the Odendaal Commission. Giving my opinion,
Mr. President, as a scientist or a social anthropologist, I accept that it
is impossible to say that one can conceive the one cconomy functioning
as a totally independent economy in the White sector as against the
economies in the other sectors. I cannot foresee such a situation.
Mr. GROSS:\Vhen you use the phrase, as I think you did, that in your
opinion there will always be an "inter-relation", did you mean to include
in that phrase the thought that there will always be a need for non
White labour in the White sector?
Mr. BRUWER:Yes, Mr. President, I included that in my phrase, but
I also meant that there may also be the necessity for White labour in
the African areas.
Mr. GROSS:How man y \Vhite settlers are there in the African areas
-did you testify to this yesterday?
;\'IBRUWER:Mr. President, I think I said somewhere between three
and four hundred; that was according to the 1960 figures, I do not know
the exact figures.
11fr.GROSS:Now, one final question with respect to this very basic
question of the functioning of the White economy: I refer to the Oden
daal Commission report at page 3r5, paragraph 1285, in which it is320 SOUTH WEST AFRICA
stated that the White sector or the White economy, as it is variously
called (I describe it that way, and now quote):
"... links up with the traditional sector by attracting unskilled non
White cmployees, virtually ta the maximum of their availability,
as wage earners on farms and mines, and in domestic service and
industries''.
In your opinion, as a member of the Odendaal Commission, will there
always be human foreseeability, will there always be a need for non
White persans to serve as "wage earners on farms and mines, and in
domestic service and industries", in the White sector of South West
Africa?
Mr. BRUWER: Mr. President, it may well be; that is if you have not
got enough employees in that sector, it may well be.
Mr. GROSS: If you have not got enough White employees?
Mr. BRUWER: Yes, Mr. President.
1Ir.GROSS: Did the Odendaal Commission consider how many were
necessary to operate the economy in that sector?
Mr. BRUWER: Mr. President, no, the Odendaal Commission did not
consider the number.
Mr. GROSS: Thcre are, however, 125,000 persans classified as non
Whites in the southern sector outside of the Reserves, is that not correct?
Mr. BRUWER: That is correct, Mr. President.
Mr. GROSS: Now there are in addition some 22,000 Ovambo who are
recruited for service in the White sector. Is that correct?
Mr. BRUWER: Mr. President, I think the figure is higher than 22,000;
if I remember well, I think it is a little bit higher.
]\IrGROSS: So that that is a total of something like 151,000 persons
classified as non-White, of whom 26,000 are brought in, recruited es
pecially for labour, that is correct is it not?
Mr. BRUWER: That is correct,l\1r.President.
Mr. GROSS: And did the Odendaal Commission consider the labour
requirements of the White sector in any respect in its studies?
Mr. BRUWER: Yes, Mr. President, the Odendaal Commission very
definitely considered the entire labour position as well as the employment
position.
Mr. GROSS: How many employees, roughly, are necessary-let me
take it in categories-how many non-White employees are necessary
undcr present conditions, to maintain the economy of the White sector,
the so-called "White economy"?
Mr. BRUWEJC Well, Mr. President, apart from the numbers of the so
called non-Whites then staying in the southern sector, there are also
necessary a further number recruited then from Ovamboland, a smaller
number recruited from the Okavango, in addition therefore, to the people
staying in the southern sector. A1though I do not know the exact number
of people necessary for that economy, I can say that above the number
in the southern sector, and they need not of course, of nccessity, be all
employed, but above that number the general labour position appears
to me to be that they have still got to get labour from outside the so-
called White area. ·
Mr. GROSS: This would seem to follow, would it not, from the apparent
necessity of bringing in 26,000 Ovambos for labour purposes? Therefore,
I take it that the Odendaal Commission considered that the present non- WITNESSES AND EXPERTS 321
White population was an indispensable feature of the functioning of the
White economy. That is correct, is it not?
Mr. BirnWER: Mr. President, that is correct, for the present and the
foreseeable future.
Mr. GROSS:And that will be correct for the foreseeable future, and as a
member of the Odendaal Commission _would you give to the Court your
opinion as to how long in the future the members of the Commission can
foresee in this respect?
Mr. BRUWER: ?vlr. President, I cannot give an opinion because the
Odendaal Commission did not consider a span of time.
Mr. GROSS:That was simply not taken into account?
Mr. BRUWER:That was not taken into account, Mr. President.
Mr. GROSS:Now I will conclude with a line of questions which I address
to you as a member of the Odendaal Commission, and as former Com
missioner-General for the Indigenous Groups of South West Africa. You
are familiar with the terms of the Mandate for South West Africa, are
you not?
J\frBRUWER:l\fr. President, I certairùy am not an authority on that.
Mr. GROSS: Did the Odendaal Commission take the Mandate into
account in its studies and deliberations and conclusions?
Mr. BRUWER: Mr. President, the Odendaal Commission did refer to
the Mandate, but naturally it based its recomrnendations on the framing
of their Commission, that is the task that was assigned to them.
Mr. GROSS:Are you aware of the provision of the Mandate which
requires the Government of the Republic of South Africa as Manda tory to
"promote to the utmost the material and moral well-being and the social
progress of the inhabitants of the terri tory"?
l\fr.BRUWER:I am aware of that, Mr. President.
Mr. GROSS:I will therefore now ask you, was it an objective of the
Odendaal Commission to give effect to that provision of the :Mandate?
Mr. BRuWER: Mr. President, it was very definitely the objective of
the Odcndaal Commission to give effect to that.
Mr. GROSS:Now, in its attempts to achieve that objective, which is
described in the tcrms of reference of the Commission as an enquiry
concerning the promotion of well-being and social progress (I am not
quoting it exactly) in the pursuit of that objective in the Mandate and
the terms of reference of the Commission, did the members of the Com
mission perceive or apply any objective standards or criteria of judg
ment with respect to what constitutes the promotion of moral or material
well-being?
Mr. BRUWER:They did, Mr. President.
Mr. GROSS:Such objective standards and criteria in your view were
sought, and discussed, and applied, by the Commission?
Mr. BRUWER: Mr. President, the Commission discussed the various
avenues of approach in regard to a problem, having to do with peoples,
and on that basis the Commission considcred what would be in the best
interests of all the people of South West Africa.
Mr. GROSS:Could you explain to the Court, by way of illustration, any
standard or principle, whether of human behaviour or otherwise, which
you regard as an objective criterion, or standard, to measure your judg
rnent against, in regard to a specific policy or measure?
Mr. BRUWER:\Vell, l\fr. President, I would say that the question of
one's rights, one's privileges, one's values and one's attachments to cer-322 SOUTH WEST AFRICA
tain sentiments, these are ail things that have to be considered in trying
to get to the basis of the interests of people, their moral and their social
well-being.
Mr. GROSS: Do you, in your answer, seek to draw a distinction between
subjective personal appreciation of a given social or political context,
and an official responsibility, such as you carried out? Do you perceive
a distinction between your subjective personal view-point, about what
is good for the non-White, let us say, without reference to some objective
standard, to which you look to measure your persona! judgment?
Mr. BRUWER; Mr. President, if I understand the question well, I
would say basically no, depending on the application of the concept. I
have my own ways and means of evaluating the interests of somebody
else. I may be, for instance, as a person, basing that on certain Christian
considerations, that is, rcligious considerations. The other man may
perhaps again, base it on political considerations, a third man again may
base it on economic considerations. Now when such a body as the Com
mission considers the question of the interests of people, it tries to be
as objective as it possibly can, in regard to a factual situation, with all
the implications of it, and on the basis of that, Mr. President, it then
defines its approach in regard to the interests of the people.
Mr. GROSS: Do you consider that the objective stated by the Prime
Minister, in the quotation I have referred to more than once-the domi
nation of the W'hite man in his own area-was an objective which the
Commission pursued according to the best of its Christian and other
judgments?
Mr. BRUWER: Yes, Mr. President, the Commission very definitely
came to the conclusion that the one people cannot be dominated by
another people in an area, and it was on that basis that the Commission
said, well, under these circumstances, having now a White group--and
let us then, for the moment, Mr. President, say that they dominate the
non-Whites in regard to the fact that there are measures that they have
applied-the Commission could not subscribe to such a position and,
on the other hand again, the Commission had to subscribe to existing
rights in that White area and on that basis, Mr. President, it was the
conviction of the Commission that if you agree, or if you accept the
rights and privileges of people, and there are other people in that society
not having those rights and privileges, then it is your duty, if you cannot
change-and the Commission could not change a factual position-then
you have at least got to provide for the other man, so that he also can
make use of the same liberties, the same rights and the same privileges,
Mr. President.
Mr. GROSS: So that he can-H the phrase we used bcfore is used, and
with which you agreed-"escape" from the condition in which he finds
himself?
Mr. BRUWER: That is correct, Mr. President.
Mr. GRoss: And if he cannot escape from a condition, by reason of
economic or other circumstance, he is then irrevocably subject to the
limitation upon his freedoms in the White area-is that correct?
Mr. BRUWER: That is correct, l\fr. President, so long as those limita
tions exist, he will be..
Mr. GROSS: As long as he is there, present physically, and alive: is
that correct?
Mr. BRUWER: That is correct, Mr. President. WITNESSES AND EXPERTS 323
}fr. GROSS:Now I would like to ask you the significance of the ex
pression you used, ifI understood you correctly, that the Commission
"could not subscribe" to the principle or doctrine of White domination?
Did I understand you correctly?
Mr. BRUWER:Mr. President, I think I was correctly understood.
Mr. GROSS:In this respect, then, is your view, or the Commission's
view, to be distinguished from the expression by the Prime Minister to
which I have referred, the policy of the domination or baasskap, as he
called it, of the White man in his own area?
Mr. BRUWER:Mr. President, I am sorry, I cannot follow ...
Mr. GRoss: Are you saying to the Court that the answer you gave to
my previous question indicates a difference of point of view from the
policy announced by the Prime Minister in his statement, which I have
quoted, regarding "the domination", or baasskap, as he called it, "of
the White man in his own area"?
i\frBRmVER:Mr. President, I would not say there is a difference, but
I will have to make it clear. If we take it that my approach, the approach
that I explained to the honourable Court, is based on the same rights
for people, but in different territories, and if the honourable Prime Min
ister's reference to domination of the White group in his area refers to
the domination of individuals of other groups staying in the White area,
then I would say that substantially and materially, the two concepts
are the same. I have already indicated to the honourable Court that
according to logic and according to my logic also, if you have to sub
scribe to or if you have to accept the rights that exist and that existed,
of a certain group in a certain area, it appears logical tome, Mr. Presi
dent, that you have then to protect them, and in the process of protec
tion, you have these limiting measures. But, Mr. President, and I would
like to stress that, the term "domination" may be interpreted in so many
terms. I do not always know the nuances of these varions terms, but to
me it is a question of safeguarding the rights of the one individual and
therefore also of the one group, on this side, and on the other side, doing
exactly the same for the other group. So it wHIbe domination here, but
it will not be domination on the other side, bccause there again, it may
well be domination by the non-White of the White again, Mr. President,
if I have made myself clear now.
Mr. GROSS:Would it be perhaps a little help to you, to get the nuances
of the word "domination", if I should refer to a quotation from astate
ment by the Prime Minister in the House of Assembly Debates in the
Third Session of the Second Parliament, in May of 1964, on the subject
of the Odendaal Commission report, at column 5461, in which he re
ferred to "White rule in its part of South West Africa"? Does the phrase
"White rule", in your judgment, mean the same as the word "domina
tion"?
Mr. BRUWER:Mr. President, I think that one could say that it has
the same meaning.
Mr. GROSS:And you accept that, as in conformity with standards ...
The PRESIDENT:The witness had not finished his answcr. Will you
continue?
i\IrBRUWER:Mr. President, I said that I think White rule could pos
sibly be the same as White domination, keeping in mind the degrees of
differences of the two words, which I cannot of course distinguish
myself, in regard to the specific term "domination". But I think White SOUTHWEST AFRICA
rule means that the White group will have political rights, the rights of
land and ail the rights generally ascribed to a group that rules a country.
Mr. GROSS:Were you through, Mr. Bruwer?
1\Ir. BRU\VER:Thank you, Mr. President.
Mr. GROSS:Mr. President, I will be able to conclude in five minutes.
The PRESIDENT:ln those circumstanccs, Mr. Gross, continue please.
Mr. GROSS:Thank you. I would like to ask you, Dr. Bruwer, whether,
in its deliberations, the Commission took note of, or discussed. anv inter
national standards of any character, regarding discrimination or differ
entiation?
l\frBRUWER:Yes, Mr. President, the Commission naturally discussed,
certainly not in detail, but the Commission did, in the course of sessions,
discuss situations. We discussed manv situations, Mr. President, in
various countries of Africa and also in various other places of the world,
in regard to the question of discrimination.
2\Ir.GROSS:In the Prime 2\Iinister's statement in the sarne debate upon
the Odendaal Commission report to which I have referred (this is at
column 5642), the Prime Minister said "in respect of human rights, we
comply with international demands as well", and then (skipping an
unneccssary sentence), "there is the possibility of convincing everybody
who wants to think reasonably, cxcept the communists or thosc who
want to make the whole of Africa Black dominated, that we are follow
ing a course which provides justice for everybody in the international
sense".
Now taking note of the phrase "justice for everybody in the interna
tional sense", did the Odendaal Commission consider what is meant by
justice in the international sense, or any similar concept or standard?
l\frBRUWER:Mr. President, they did not considcr it in the scnse that
they made a long and deep study of that concept, but naturally, in
evaluating a situation, the Odendaal Commission also kept in mind the
standards that are applicd in the international spherc, in regard to the
whole question of-which is usually described as human rights.
Mr. GROSS: Did consultations of any kind takc place bctwcen the
Odendaal Commission, or any of its representatives, and any interna
tional bodies or agencies?
Mr. BRUWER: No, Mr. President, such consultations on a physical
basis, did not take place.
Mr. GRoss: Did they take place on any basis whatever?
Mr. BRUWER:\Vell, Mr. President, I think they took place in the sense
that the Odendaal Commission certainly read the sources of international
bodies.
Mr. GRoss: And did the Commission take into account the judgments
of any international bodies, with respect to the policies pursued?
l\Ir.BRUWER: Mr. President, the Commission certainly considered
all possible anglesin regard to the problem of South West Africa.
Mr. GROSS: But there was no consultation of a physical or direct
nature?
Mr. BRUWER:No, l\Ir. President, not at the sessions I was present at.
l\IrGROSS:Do you know of any sessions or otherwise, in which such
consultations might have taken place?
Mr. BRUWER: No, l\fr.President, I do not know of such sessions.
Mr. GROSS:Now, finally, one last question for clarification. ln your
testimony, you concluded-this was on Friday, 2 July, and I refer to WlTNESSES AND EXPERTS
page 264, supra,-you said, I think, that one must apply also certain
rules of logic and principles on the basis of ensuring the rights of a spe
cific group against possible encroachment by others. And then you said:
"For instance, it may be, l\1r. President, that I would personally
like to, say, go and reside in Ovamboland, perhaps one day when I
am :finished with my work, because I like the people, I am inter
ested in them. but then I will be encroaching on the rights of the
Ovambo people.''
Would you explain to the Court on what basis and on what consider
ations your presence in Ovamboland \vould be regarded as an "encroach
ment" "on the rights of the Ovambo people"?
l\fr. BRUWER:Mr. President with due respect to the honourable Court,
that was a very personal note, but my encroachment is, if I now then have
to take this as an exam ple: I have now a certain desire as a person, based on
my intimate experience with these people, whom I like, to go and stay
in Ovamboland, but if I go and stay in Ovamboland I will have to make
a living, unlessI am a capitalist and have so much money that I need
not work. But the very first thing that will be necessary, at least
for me, will beto build myself a house, and to be able to build that house
I would have to have a piece of land and I would have to buy that land,
and that mcans now, as a White man, as belonging to anothcr group,
where I have my rights to buy land, I, in my opinion, Mr. President,
would then be encroaching on the rights of the Ovambo people, bccause
ifit is truc of myself as a person, it may also be true of other people, and
that is what I had in mind in regard to the encroachmcnt of the rights
and privileges of another group.
Mr. GROSS:How many months have you spent in Ovamboland?
.Mr.BRUWER:Mr. President, I would have to count now but ...
Mr. GRoss: Well, very roughly, was it more than a year?
Mr. BRUWER: Yes, Mr. President, I think altogcther I would say
nearly three years in Ovamboland.
l\fr. GROSS:And did you buy a house?
Mr. BRUWER:No, Mr. President, I did not buy a house.
Mr. GROSS:Were you cncroaching upon the rights of the Ovambos
by being thcre?
Mr. BRUWER:I hope, Mr. President, that I was not encroaching at
the time.
Mr. GROSS:I am sure you were not, sir. No more questions,
[Public hearing of 7J1ûy I965]
The PRESIDENT:Dr. Bruwer, will you go to the podium? I understand,
Mr. Gross, that you have completed your cross-examination.
Mr. GRoss: Yes, l\lr. President.
The PRESIDENT:Certain Members of the Court desire to put some
questions to the witness. I call upon Judge Jessup.
Judge JESSUP: Thank you, l\lr. President. Professor Bruwer, I am
going to ask you if you will please expand on one aspect of the testimony
which you gave in the record on 2 July.
I was very much intcrested in your analysis of the individuality of
the various groups in South West Africa and their differences one from
the other. I understood you to indicate the desire of these groups to SOUTH WEST AFRICA
maintain their individual societies and cultures. Am I correct in that, sir?
Mr. BRUWER: That is correct.
Judge }ESSUP: Thank you. Now, the point which I would ask you to
develop is this. What contact has there been, or is there now, between the
various groups and their members? I think you indicatcd that histori
cally thcre had been some rather warlike contacts in the form of massa
cres, I think, and I am asking you whether, in the last three or four
decades, there have been pcaceful contacts. You did point out in your
testimony the barrier of distance, that certain evcnts in the southern
part would not have affected the northern part, and at page 249, supra,
of the record which I have cited you mentioned that one group "super
imposed themselves" on another group and you said this made an impact
on the language of the group, as I understood it. ln the same record,
on page 250, supra, you spoke of what I understand was another instance
in which one people "ultimately superimposed themselves and became
part and parcel of the Nama", and at page 264 you speak of Bush
men and even Dama and Nama people in Rehoboth, and you
pointed out that they were not "absorbed in the society", that they were
not accepted into citizenship.
Now, can you give the Court a little more detailed picture of this whole
situation? Do these various peoples or people mix socially or culturally
with each other or with the Bastcrs? How do all these people commu
nicate with each other in the light of the language differences which you
have stressed? Now, I am mindful of some testirnony you gave yesterday
about the offspring of mixed matings and I am not asking particularly
about that. But in short I would ask if you would tell the Court to what
extent, if any, there has bccn or is now physical, social or cultural contact
between the varions groups themselves, or among members of the groups.
For instance, has any lingua /ranca developed which is used between
members of the various groups and, if convenient, Professor Bruwer,
I would be grateful if you, in answering this question, would speak first
in respect of groups and members of groups living in their own Reserves
or commurùties, and sccondly in respect of situations when persans of
different groups find themselves close together, for instance in the south
ern part of the Territory outside the Reserves. Is my point clear toyou,
sir?
Mr. BRUWER: Thank you, Mr. President.
Judge }ESSUP: Thank you very much.
Mr. BRUWER: Mr. President, I shall start with the contact and the
medium of communication in regard to the groups still living in their
own areas or, if we then call those areas, in the Reserves.
To clarify the two points, Mr. President, that were macle in the hon
oured question in regard to the superimposition, I had in mind the
superimposition of the Kololo on a population which, naturally, Mr.
President, I did not study at that bme because that was during the
previous century, in the Eastern Caprivi. The other example that I had
in mind, Mr. President, was the example of the Orlam people who spoke
Afrikaans, or a form of Afrikaans, and entered South \Vest Africa since
the beginning of the nineteenth century. If I remember the dates cor
rectly, Mr. President, the first groups crossed the Orange River by 18ro.
They superimposed themselves on the Nama. Now, in regard to commu
nication in connection with those two groups, first of ail, Mr. President,
the Eastern Caprivi, as the honourable Court will know, is a very great WITNESSES AND EXPERTS
distance from the rest of South West Africa and in that narrow strip
of country, which is usually referred to as the Western Caprivi, coming
up to the Okavango River then, that piece of country is not populated
to a very great extent. One does find, and I have found in those areas,
a small group of !Kgu or Mbarakwengo Bushmen.
Now, in the Eastern Caprivi, Mr. President, the language of commu
nication there, among the people living in the Eastern Caprivi, is Sikololo.
They do, oEcourse, learn English and Afrikaans in the schools. As far
asthe language of the other group is concerned, where we had the Orlam
supcrimposing themselves on the Nama, in their Reserves the medium
of communication that one finds thcre is Nama. In other words, in the
one case the language of the superimposing group, according to my know
ledge and deduction, had remained in the Eastern Caprivi where one has
the Sikololo or, I think for ail practical purposes, one could call it the
Lozi-language. The language of the conquerors is today among the people
the medium of communication.
Now, in regard to the situation of the Orlams and the Nama one does
find that Nama speak Afrikaans, but some of the Orlams, or rather the
Orlams that have been absorbed in the Nama, also make use of the
language of the Nama.
In so far as the Reserves in the southern sector are concerned, Mr.
President-and I am now using the word Reserve to indicate the areas
assigned to certain groups, in the southern part, for example in Warm
bad and in the Reserve of Bondels or Bondelswarts-I have corne across
two media of communication between the people. Sorne people use
Afrikaans and others again use the Nama language. In the Reserves
of the Herero, that is Reserves likc Epukiro, Aminius, the Eastern
Reserve and so forth, there the basic medium used by the people is
Oshiherero, that is the language of the Herero people. Barring a small
group of people, Mr. President, staying in the Aminius or, as it is some
times also spelt, Aminuis Reserve, a small group of people of Tswana
stock amongst themselves use Tswana, but most of them also speak
Herero. The medium of communication in Rehoboth is what I would
call basically Afrikaans. Alsothe Nama and the Dama living there make
use of Afrikaans when speaking to the people called Basters. When they
communicate among themselves they usually use their own language.
In the northern part of the Territory, Mr. President, the situation is
roughly as follows. In the Kaokoveld one has what I may perhaps also
indicate asthree factions, a Herero faction that went into the Kaokoveld
Reserve after the wars between the Herero and the Germans, and then
one has the original groups that apparently stayed behind whcn the
Herero passed through the Kaokoveld and they are today known as
the Ovahimba and the Ovatjimba. Now, Mr. President, one can say in
regard to the medium of communication in the Kaokoveld, if my ana
lysis ofthe position is correct, that it is basically Oshiherero, the language
of the Herero, but there are also dialectical differences. For instance, the
dialect of the Tjimba is apparently not easily understandablc by the
Herero people. I base that, l\fr. President, on practical experience that
I had when I had a Herero interpreter with me, since I do not speak the
language of the Herero people or of the people of the Kaokoveld, and
when an older man of the Ovatjimba group stood up the Herero inter
preter had difficulty to translate.
As far as Ovamboland is concerned, Mr. President, the two languages SOUTH WEST AFRICA
of communication in Ovamboland are basically Osikuanyama and Osin
donga, two languages very much related to one another and, as a matter
of fact, mutually understandable. In the Okavango, Mr. President, there
are two what I would call distinctive languages in the sense that the one
isnot easily understandable by the group using the other-that is, on the
one hand the Kuangali language spoken by the Kuangari themselves, the
one faction; spoken by the Bunj a, another faction; spokcn by the Sambiu,
another faction; and spoken by the Djiriku, anothcr faction of the Oka
vango people; but the fifth faction, Mr. President, the Mbukushu, speak
what one must then call the Mbukushu language, which is not easily un
derstandable by the other group. But then, l\1r.President, in the Okavan
go, Kuangali has become what one could then call a lingua /ranca, because
Kuangali is understandable by everybody, also by the Mbukushu.
Now, Illr. President, that is the language position, basically, apart, of
course, from the fact that in the schools, and in practical use, the people
also make use of either English or Afrikaans. Asto the development of a
lingua franca, I cannot say that a lingua /ranca, apart from Afrikaans and
English, has developed in South \Vest Africa, a language which one could
say is, as such, something that was developed in South West Africa and
that is understandable by all the people. I have tried, Mr. President, to
indicate to the honourable Court the great differences between the two
language families that we have.
As. to the use of English and Afrikaans as media of communication,
Mr. President, I have always been astonished that it is possible in South
\Vest Africa, practically everywhere, to make oneself undcrstood in either
English or Afrikaans. As a matter of fact, in Ovnmboland-I have more
knowledge of the Ovambo people, I think, than any other-it has always
astonished me that they speak an Afrikaans which is not influenced by
their own language in the sense that, generally, when a Bantu-speaking
person uses Afrikaans, and to a certain extent also English, unless he is
very, very, proficient inthe language, he tends to make use ofcertain things
inherent in bis language, and that influences his rendering of this alien
medium; but that is one of the things that has interested me very much,
Mr. President-the fact of the use of a language in such a form that one
could say that it bas developed into a lingua /ranca, and that applies ac
tually to both the two official languages, Afrikaans and English, depend
ing to a great cxtcnt on the language that was used by the missionaries
working in certain areas. In certain areas one fmds that, for instance, the
Anglican Church has been doing mission work, and they make use of En
glish more than another language; in other areas, again, one finds that the
Finnish mission bas been working, and they tend to make use of Afrikaans
-they do not use Finnish; and in the previous century, and even today,
in certain areas one again fi.ndsthe Rhenish missionaries, and they some
times make use of German-hence one also fi.ndssome people being pro
ficient in German. But, I\Ir. President, a defi.nitc lingua /ranca for the
whole of South West Africa has not as yet developed, according to my
analysis of the situation.
Then, Mr. President, if I remember the second part of the question well,
the contact of people in so far as it then, if my interpretation is correct,
has an influence on the change of a cultural configuration. Now, if my
analysis of the situation is correct, and I am basing that on my experience
in South West Africa, one finds that in the southern sector-using that
phrase in its broad sense that is, the sector that is also sometimes called WITNESSES AND EXPERTS
the Police sector on account of the fact that they have no police north of
that sector-if we take that sector into account, it would appear to me
that there has been much more of a contact between the various groups
in the southern sector than in the northern sector. In the northern scctor,
if one compares for instance contact between the Kaokoveld people and
Ovambo, one does not really fi.ndthat there is a great deal of contact. I do
not want to go into detail, but tome it appears as if in the general con
figuration, if Imay use that word, Mr. President, of the one group, the
pastoralist group-in this case, then, the people of the Kaokoveld and
more so the Ovahimba and Ovatjimba-is not acceptable for the Ovarnbo
people. Now the Ovahimba and Ovatjimba, being a cattle people, are a
very conservative group of people, and I think that that is probably the
reason why you do not fmd interrelation there.
As far as the contact between the Ovambo people and the Okavango
people is concerned, there is contact, but not contact that I would call on
agreat scale-again, I think, most probably on account of the physical
nature of the territory. If I may perhaps just explain, Mr. President,
Ovamboland is a very interesting part of South West Africain the sense
that one has in the central part of Ovamboland practically the basic set
tlement of the Ovambo people, on account of the fact that that is where
one has what is called in the in<ligenous language the Oshana-a term
which is very difficult to translate, but which means very shallow water
courses, but there is not water in the courses very often, but sometimes
during the rains one finds that this is the drainage system. The people
have settlecl there, and one finds that the eastern part-that is, the part
between Ovamboland proper and the Okavango area-has remained un
populated for a very long time, and naturally there is nota great amount
of contact.
As far as the Eastern Caprivi is concerned, I do not think that one can
speak here of contact with the rest of South West Africain any sense of
the word. They very, very seldom corne into contact with people on the
other side of the Kuando River and the Okavango River. ;\1:r.President,
I know from experience that the distance between the Kuando and the
Okavango Rivers would be approximately 125 miles, which is 125 miles
without water during most of the year, so one can quite see why there is
not that contact.
So, Ilfr. President, to summarize I woul<lsay, in answer to the honoured
question, that there is no real lingua /ranca in South \Vest Africa as at
this time. The contact between the people one could perhaps summarize
by saying there certainly is more contact between groups in the southern
sector than between either groups amongst themselves in the northcrn
sector or the people of the northern sector in regard to the southern
sector.
Judge JESSUP: Mr. President, if I may ask for just one point of expla
nation: when you have, for instance, membcrs of two or three groups in
the southernsectorwho fi.ndthemselvesin Rehoboth, or perhaps some other
urban area. or some place where a number of different persons ar~ to
gether, what is the nature of thcir interrelationship-do they stay by
themselves or do they mix in various social ways, and so on?
Mr. BRUWER:Mr. President, from my knowledge and my experience in
Rehoboth-when I pass through Rchoboth I sometimes also stay over
there, and l have spoken with people there-it is interesting what one
fi.ndsin the Rehoboth area, or the Rehoboth Gebiet. One has the township330 SOUTH WEST AFRICA
Rehoboth, and then one has the fanns belonging to the Rehoboth people.
:Many of the Rehoboth people, or Basters, as they are called, stay in the
Rehoboth township, but whcn one travels through Rehoboth, or when one
stops there and looks around, it is immediately apparent, Mr. President,
that groups are staying away from one another, the Basters staying in the
Rehoboth township and the Damaras and Namas, who are actually em
ployed by the Baster people in Rehoboth, staying inwhat I wou1dcall a
little shanty town just north of the main road up to Windhoek. That is the
general situation, Mr. President.
Judge JESSUP:Thank you, Professor Bruwer. That is all, l\fr. President.
The PRESIDENT: Sir Louis Mbanefo.
Judge Sir Louis MBANEFO: Professor Bruwer, first, on the question of
language. It is said that thcrc are two family groups of languages and
you later on said that there were 300 languages. \Vhen you speak of 300
languages, do you mean dialects or do you mean separate and distinct
languagcs?
Mr. BRUWER: Mr. President, no, I meant languages, and in this case
what I described as Bantu languages. It is generally accepted, Mr. Pres
ident, by linguists-and I have had linguistic training, Mr. President, and
I also have that opinion-that there are distinctions between what one
would call a language and what one would call a dialect.
Mr. President, to use an example which I think would be understand
able to all of us, if we take the Aryan family of languages one bas, for
instance, a language like English, one has, say, German, one has Dutch,
and also a number of others. Now in those languages, Mr. President, cer
tain words are practically the same. If I take, for instance, the term
"water'', now in English it is "water", in Afrikaans or Dutch it is "water",
and in German I think it is "wasser". Now it is practically the same word,
Mr. President, but yet we look upon those three languages as being three
different Ianguages.
\Ve fmd exactly the same position in regard to the 300 Bantu languages
and-pardon me, Mr. President, not in South West Africa but in the
southern part ofAfrica. that isal1 the Bantu-speaking peoples from Uganda
southwards to South Africa-the linguists distinguish300 languages and
probably a few thousand dialects. But a language and a dialect are very
definitely distinct from one another.
Judge· Sir Louis MBANEFO: You said that among the Ovambo, for in
stance-they are the largest unit in South West Africa-how many lan
guages do they speak?
Mr. BRUWER: !\frPresident, there are only two languages amongst the
Ovambo people and the honourable Court will remcmber that the Ovambo
people originally was one group. But apart from the two languages one
also finds dialectical differences.
Now, to give an indication, Mr. President, of the type of difference that
one sometimes finds I will take the word-with your permission, Mr. Prcs
ident-"olupale". That word means, in the Kuanyama language, the sit
ting place or the meeting place within the family abode (sometimes they
have a very big meeting place within the family abode, that is callcd
"olupale"); but the word "olupale" in the Ndonga language today, or
Os~indonga, would mean a threshing floor where they thresh out the
gram.
So one docs find, sometimes, that vou have dialectical differences a.lso
in Ovamboland, but I would call the~two languages of Ovamboland, Mr. WITNESSES AND EXPERTS
331
President, mutually understandable. Although they are used as two lan
guages today, one could say they are very, very, near to one another.
Judge Sir Louis MBANEFO:If I am wrong you will correct me. The
Dama, do they have a separate language of their own?
Mr. BRUWER:Mr. President, so far it has not been possible for linguists
to establish whether the Dama, long, long, ago, perhaps had a language of
their own, since from time immemorial they have been using the Nama
language.
1 may perhaps add, Mr. President, that one of the renowned research
workers in South West Africa, Dr. Vedder, in regard to the Dama people
has, in one of his works on the Dama, given an indication that there are
remnants of words which appear to be something of an original language,
but I think, for ail practical purposcs, that my answer to that question
would be "no", the Dama apparently, not during their stay in South West
Africa, from what we can find out, do not have a language of their own.
J udge Sir Louis MBANEFOT : he Herero have their own language?
Mr. BRUWER:They have their own language.
Judge Sir Louis MBANEFOT ; he Okavango?
Mr. BRUWER:In the Okavango, Mr. President, I have explained that
we have two basic languages-the Kuangali language and also the Mbu
kushu language, although Kuangali is used as a ling1ta francain the Oka
vango.
Judge Sir Louis MBANEFOA : nd the Caprivi?
Mr. BRUWER:In the Caprivi the Sikololo language.
Judge Sir Louis MBANEFOS : o that you have, altogether, about cight
different languages in South West Africa?
Mr. BRUWER:That is correct, Mr. President.
Judge Sir Louis MBANEFON : ow you mentioned certain distinguishing
ethnie characteristics, or bases for distinguishing ethnie groups. You men
tioned name, ethnie background, language, kinship {with what you called
dogma of descent-matrilineal and patrilineal systems of succession-and
in the economic systems you mentioned planters and food gatherers of the
Bushmen, the pastoralism and agriculturist and animal husbandry as
three different types of economic system). You also mentioned land tenure,
with communal ownership and, in some places, individual rights of users.
And you also mentioned the culture of the people and the political system.
Now, I do not know how far you have studied conditions in other Afri
can countries, but would you accept that this is not peculiar to South
West Africa?
Mr. BRUWER:Mr. President, I accept that it is not peculiar to South
West Africa only.
With your permission, Mr. President, may I perhaps just say that thcre
was a mistake in the characterization; it is not planters and food gather
ers,but hunters-I also noticed the mistake in the transcript, Mr. Pres
ident.
Judge Sir Louis MBA~EFO:In your system ofseparate development, you
base it on the fact of these differences?
Mr. BRUWER:That is correct, Mr. President.
Judge Sir Louis MBANEFOW ; ould it surprise you that-take a country
like Nigeria-every single thing you mention here exists in Nigeria, pos
sibly in a greater degree \)ecause the population is about 40 times that of
South West Africa?
Mr. BRUWER:Mr. President, must I-isit a question?332 SOUTH WEST AFRICA
The PRESIDENT: Do you know anything about Nigeria? If you do not
you cannot answer.
Mr. BRUWER:I have no practical experience of Nigeria apart from what
I have read about the country, Mr. President, and I accept the information
that these systems of kinship and also other cultural factors exist there,
but it would, of course, not be possible for me to compare the two coun
tries on an equal basis in the sense that I can say that I have equal infor
mation about bath the countries.
But, if I may point out one thing, Mr. President, which I think is per
haps differcnt in regard to the two territories, from the knowledge I have
gathered in books about Nigeria, and especially the history of Nigeria. I
have gathered, Mr. President, froru the publications I have read in regard
to West Africa (for instance, publications by Dr. Edwin Smith, the mis
sionary who was working there, also Rattray and even publications by
Lord Lugard) that the background of Nigeria and, in fact, of other West
African peoples, countlies and territories, is different from South West
Africa to this extent, that-if the information I have is correct-for in
stance, in the mid-centuries one had in West Africa what one could per
haps call empires, in other words, you had, in my opinion, Mr. President,
at a certain stage a people further advanced in regard to an organization
of society than we had in South West Africa.
There is, of course, Mr. President, also the question of the physical
nature of the country. I know that Nigeria is a country with a very big
population. I think it is, together wHh Ruanda Burundi and the Nile
Delta, the most densely populated area of Africa.
On the basis, Mr. President, of the organization of society-because that
was actually the question-! think that where one has a sedentary type of
culture, as, for instance, in Nigeria (at leastt the northern part perhaps,
where there are other people like the Yoruba but who, according to the
information, are also pastoralists but basically, I think, sedentary) one
finds that the organization of society is-I would like to call it more com
plicated, not more advanced, because I do not want to make that sort of
comparison, Mr. President, but the people learned in regard to the orga
nization of a big group, they have more experience in a big society like
that of Nigeria, and I am talking now of Nigeria before the so-called colo
nial period, I am talking about the old Nigeria and those peoples there
with the empires they had.
They had, in themselves, and I am convinced of that, Mr. President,
something which, again, gave them a foundation when they were con
fronted now with a modern society, or rather with modern circumstances,
whereas in South West Africa it is practically only the Ovambo and the
Okavango peoples, together with the Eastern Caprivi peoples, that are
sedentary and that have a form of organization inherent in themselves
which is easily adaptable to the complicated problems of modern society.
Then I just want to add another point, Mr. President, and that is, that
I do not think, although I have not got all the information, that one ~an
compare, in this sense of differentiation, Nigeria and South West Afnca,
because the range of differences, in my opinion, in South West Africâ, is
probably far greater than it ever was in Nigeria, that is, according to the
sources that I have read.
Judge Sir Louis MBANEFO:Now what is the medium of exchange in
these Native Reserves?
JI.Ir.BRUWER:Mr. President, two media of cxchange are used. Money WITNESSESANDEXPERTS 333
has corne into the picture, but also bartering. Now the bartering system
one finds mainly between the man who has an ox and a man who has, for
instance, a basket of ~rain. You still find that bartering system. There are
other forms of bartenng also. For instance, in Ovamboland one still finds
-1 would not say that it is a very marked thing but you still find it-a
certain type of bcad, which derives from the previous century and is
looked upon as something veryvaluable today amongst the people and this
is also sometimes used for bartering. But naturally today, Mr. President,
the money form of trade is certainly by far the more stressed form.
Judge Sir Louis MBANEFO:Have you, a social anthropologist, ever in
vestigated the effcct of money economy on Native societies and culture?
Mr. BRUWER:Mr. President, I have, in South Africa, tried to analyse
societies where a moncy economy has now superimposed the old basic
subsistence economy.
Judge Sir Louis MBANEFO:And do you agrec that the effect on what
you are trying to prescrve, in your separate development, of the use of
money as a medium of exchange, the introduction of taxation, contact,
and improvement in roads, which makes it possible for people to move
from one place to another, development of townships and so on, have a
more devastating effect, ifI may use the expression, on this culture, than
any law you could pass? Do you accept that?
Mr. BRUWER: l\fr. President, I accept that. I subscribe to the basic
principle of all cultures,here is continuation and there is change.
Judge Sir Louis MBANEFO:And do you accept that progress cornes
quicker by contact between different cultures?
Ilfr. BRUWER: Mr. President, I accept that. One culture certainly
always has elcments in it which may serve, and usually do serve, as an
element of fertilization of another culture.
Judge Sir Louis MBANEFO:How docs that corne into your policy of
separate dcvelopmcnt?
Mr. BRUWER:Mr. President, it cornes in in this way, that it is not a
question of preservation of a culture in its form at a specific period of
history. But it is using a cultural configuration of a people at a certain
stage of their history and of their development. as, if I may use the phrase,
as the place where you start now either to walk or to run, and in modem
development, it is more often running than walking.
J udge Sir Louis l\IBANEFO:You mean as a basis for local government,
or as a basis for government at a higher level?
Mr. BRUWER:Mr. President, I also had in mind, of course, the question
of political institutionsbut I actually meant the entire process of devel
opment of the people.
Judge Sir Louis MBANEFO:Now you have thcse different groups that
were mentioned in the evidence and in the written pleadings, the Bush
men, the Dama, the Nama, the Hereros, the Ovambos, the Okavangos,
the Caprivi and the Basters. Under your scparatc devclopment, is each of
these meant to develop on its own, as distinct from the others on its own
level of governmen t?
:M.r.BRUWER: Mr. President, if I have now to give my own opinion,
I would ...
Judge Sir Louis MBANEFO:No, I just want to know what is being done.
l\Ir. BRUWER:In regard to the Odendaal Commission, Mr. President?
The idea is that one is busy with a process, trying to bring people together.
In trying to bring people together, one has to keep in rnind certain factors SOUTH WESTAFRICA
334
which still have a continuing influence on the lives of those people. Mr.
President, permit me to explain by means of an example. Now the two
groups we have mentioned here, the Ovambo and the Okavango people,
they are ethnically related ...
Judge Sir Louis MBANEFOI: am sorry to interrupt you. All I am asking
is, does the policy that is being practised mean that these groups I have
mentioned should each separately develop at its own level of government?
Mr. BRUWER:Mr. President, I would say yes, up to a certain stage,
when these people have become acquainted with the modern form of gov
erning themselves and at that stage, they will, in my opinion, Mr. Pres
ident, have to decidc for themselves whether they now want to corne to
gether or whether they still want to carry on asseparate groups. I think
that is the point which is usually called self-determination or auto-deter
mination, in other words, it is a stage in a process where the people will
have to decide whether they want to have their institutions developed
separately or whether they want to have their institutions developed on
a unitary basis.
Judge Sir Louis MBANEFOM : r. Bruwer, what I fi.ndconfusing in your
answer is if people develop separately their institutions and culture, can
they then dcvclop separately as an economic unit? Are you justified in
saying that they can mix with others and have a common economic unit,
but separately they can develop their own institutions locally. That ties
up with the question of government at a higher lcvel.
The PRESIDENT:What is the question, Sir Louis? What is the question
you are putting to the witness?
Judge Sir Louis MBANEFOT : he point I want him to explain is when he
speaks of people developing separately their culture as a unit, does he
consider that also to include developing separately as an economic unit,
within their society?
Mr. BRUWER:Mr. President, my answer is no, as I have already testi
:fiedon a previous occasion to this honourable Court.
J udge Sir Louis MBANEFO:So that for their common economic life,
they have to corne together?
Mr. BRUWER:I think that is correct, Mr. President. There would have
to be economic inter-relations .
.udge Sir Louis MBANEFOE : conomie inter-relations. How far does the
policy now being practised tend to iosterthat?
Mr. BRUWER:Mr. President, the policy at prcsent practised I think is,
in my opinion, already fostering it in the sense that in the one sector you
employ people of the other sector. That is one form of inter-relation of
economic systems. But the next phase, and that is a phase that has been
foreseen by the Odendaal Commission and it is also very clear from the
recommendations, is that there wou)d now be a development of certain
areas on the basis of their physical possibilities. For instance-Iexpand,
with your permission, Mr. President, to explain-cattle, in Ovamboland;
the only possibility of an economic development would be on the basis of
cattle, whereas again, in the ûkavango there are very good possibilities
on the agricultural basis, being adjacent to a very big river. Now natu
rally, when once you have this whole process starting, there would always
be that inter-relation between the economy of South West Africa and
between the various sections of South West Africa.
Judge Sir Louis MBANEFO:Is it contemplated that the same would
apply to the White areas and the Native areas? WITNESSES ANDEXPERTS 335
.i\Ir.BRUWER:Mr. President, I would say the principle would pe appli
cable to every single part of South West and therefore to the whole of
South West.
Judge Sir Louis l\fBANEFO:And as common citizens you accept the
right of free movement of individuals and intercourse between the Terri
tories?
.i\Ir. BRUWER:That is correct, Mr. President. That is a process that one
can foresee.
Judge Sir Louis MBANEFO:Would you accept that any attempt to
restrict movement, unless it can be justified, would not be right-that is,
within the State, within the Terri tory?
Mr. BRUWER:Mr. President, may I get the question clear that any
attempt to ...
Judge Sir Louis MBANEFO:Restrict movement of individuals, it does
not matter from what part of the Territory, from one part of the Terri tory
to another, within the same Territory.
Mr. BRUWER:Mr. President, I can quite foresee that, with the devel
opment as I foresee it, and where you have that state where people now
decide for themselves what they want to do, that is a possibility, and
I think it is a very great possibility.
The PRESIDENT:Are there any further questions, Sir Louis?
Judge Sir Louis MBANEFOI: think I will leave that.
The PRESIDENT:Mr. Muller? Do you desire to ask anything in reply?
Mr. MULLim: No. No further questions, Mr. President. May I ask that
the witness be excused ifthere are no further questions to be put?
The PRESIDENT:That will be indicated to you later in the day.
Mr. .i\lULLim:As the Court pleases.
The PRESIDENT:You maycall your next witness.
Mr. MuLL1m: Mr. President. The next witness will be Professor Logan.
His testimony will relate also to the issues arising under the Applicants'
Submissions numbers 3 and 4. The points to which his evidence will be
directed will be the following: the different geographic regions of South
West Africa; the population groups occupying such regions and their role
in the life of the Territory; the differences between the various population
groups with regard to language, cultures, traditions, ways of lite and
stages of development, and, finally, the effect which, in the opinion of the
witness, the application of a norm and/or standards of non-separation,
such as contended for by the Applicants, would have on the people of
South West Africa, especially the Native people. May I present thewit
ness, Mr. President, and ask that he make both the declarations provided
for inthe Rules?
The PRESIDENT:Please do. I rccognize the Agent for the Applicant.
Mr. GROSS:Prior to the qualification of the witness as an expert, the
Applicants would seek to establish his qualification to testi[y as an expert
with respect to the question as formulated, specifically question (c) in
the letter of r July addressed by the Agent for the Respondent to the
Applicants.
The PRESIDENT:The proper course, Mr. Gross, is for the Respondent .
to call the witness to establish first his competence to speak upon the
three subject-matters which have been indicated. If then a question is
put in respect of the third matter and it is your view that his competence
has not then been established, at that time vou could make your objec-
tion. "336 SOUTHWESTAFRICA
Mr. GROSS:Mr. President, in deference to that ruling, I would state,
on behalf of the Applicants, that the Applicants will find it exceedingly
diffi.culto understand the questions addressed or the statements made
with regard to qualification of this expert, on the basis of the foundation
laid with respect thereto, and the general line ofobjections to any evidence
proffered on the basis of this formulation, as set forth in the record of
22 June, is reaffirmed-the basis being that the formulation of the point
to which the testimony is being proffered is incomprehensible to the Ap
plicants. With that reaflirmation of the general objection, the Applicants
will reserve the right to raise the question of qualification as expert and
to the proffer of evidencc as a witness in accordance with the Court's direc
tion ...
The PRESIDENT:Mr. Gross, when previously the same subject-matter
was raised by way of objection by yourself, it was indicated, and it is the
view of the Court now, that the proper course is not to take objection
before you know the question to be putto the witness, or before you know
what his qualifications are but to take the objection to the specific ques
tion and it is then that the Court can best see the basis of the objection.
Mr. GROSS:With respect, Sir, and without prolonging the colloquy, I
should like to make it clear (which I feel it my duty to do on behalf of
the Applicants) that I am, in addition to the statements previously made,
referring specifically to the Rules of Procedure, Article 49, requiring that
an indication be given of the point or points to which the evidence will be
directed; in the Applicants' respectful view, that Rule requires the clear
formulation of the point to which the evidence is to be directed.
The PRESIDENT:Rule 49 has I think been sufficiently complied with.
Mr. MULLER:Professor Logan, your full names are Richard Fink Logan,
is tha t correct?
Prof. LOGAN:Yes, sir, that is correct.
Mr. MULLER:I am sorry, Mr. President, the declaration has not been
made.
Prof. LOGAN: In my capacity as a witness I solemnly declare upon my
honour and conscience that I will speak the truth, the whole truth and
nothing but the truth. In my capacity as an expert I solemnly dedare
upon my honour and conscience that my statement will be in accordance
with my sincere belief.
Mr. MULLER:Prof. Logan, your full names are Richard Fink Logan,
is that correct?
Prof. LOGAN:That is correct.
Mr. MULLER:You are a citizen of the United States of America, 1s
that so?
Prof. LOGAN:That is correct.
Mr. MULLER:You were born in the United States of America?
Prof. LOGAN:That is correct.
Mr. MULLER:Did you grow up there?
Prof. LOGAN:Yes, I did.
Mr. MULLER:In what part of the United States of America?
Prof. LOGAN:I grew up in the north-eastern part of the United States,
in Massachusetts and Connecticut.
Mr. MULLER:\Vere you educated in the United States of America?
Prof. LOGAN:Yes, I was educated entirely in the United States, again
inthe north-eastern parts.
Mr. MULLER:I will state to you your academic qualifications and I WITNESSESANDEXPERTS 337
want you to indicate whether my statement is correct. You hold a Bach
elor of Arts degree of Clark University of the United States of America?
Prof. LOGAN:That is correct.
Nl.rMULLER:And a Jl.lasterof Arts degree of the same University?
Prof. LOGAN:That is also correct.
Mr. MunER: Another Master of Arts degree of Harvard University.
Is that so?
Prof. LOGAN:That is right.
Mr. MULLER:And a Doctor of Philosophy dcgree also of Harvard Uni-
versity?
Prof. LOGAN:That is correct.
Mr. MULLER:Did you teach at sevcral Universities in America?
Prof. LOGAN:Yes, I have taught at Clark University, at Connecticut
College for Women, at Yale University, at Harvard University and, since
1948, at the University of California, the Los Angeles campus.
Mr. MULLER:What position do you hold at present, Professor Logan?
Prof. LOGAN:I am Professor of Geography at the University of Cali-
fornia, Los Angeles.
Mr. MULLER:What is your major field of study?
Prof. LOGAN:Geography.
Mr. MULLER:Will you explain to the Court what you mean by geog
raphy?
Prof. Loc AN: Yes. Perhaps I had better explain first the contrast be
tween geography and geology with which it is quite frequently confused.
Geology is the study of the crust of the earth and its land forms. ln gco
graphy we start with this base and wc go on into a study of the relation
ship between man and the land. Now in ordcr to understand the land we
neecl to understand all elements of the physical environment and so we
are interested in the landforms, the climate and the vegetation, the soils,
the water resources and othcr things of this sort which constitute the
natural resource base. \Ve are interested beyond that in how man utilizes
this base.Soit is necessary for us to know about man, that is, the different
groups of men, both raciaHy and ethnically, that occupy a given area.
We also need to know about the stage of technology, the stage of material
development of these people. because different societies use land in dif
ferent ways and so we are interested in this aspect. We are also interested
in the economic phases because the whole basis of economy is an integral
part of the study of the geography of an area. Consequently we are in
terested in man and in the land on which he lives, not simply in the land.
Mr.MULLER:How does the study of geography, as you have just ex
plained to the Court, compare with the study usually made by an anthro
pologist?
Prof. LOGAN:An anthropologist deals basically with man and focuses
upon man as the central theme of his study. The geographer focuses upon
the land or the region or the area as the focus of his study and so we are
basically interested in the land, the anthropologist in man. In each case
we are an integrative discipline, in that we draw upon ail of the surround
ing fields for a great part of our knowledge and basic information, but we
interpret this differently: in the one case the inter-action between groups
of men, in the other case the inter-action between those men and their
land, the first being anthropology, the second geography.
Mr. MULLER: In what areas of the worlcl have you conducted research
with regard to the study which you have just indicated to the Court?338 SOUTH WEST AFRICA
Prof. LOGAN:My work has been essentially centred around arid regions,
desert lands. Consequently I have worked in a number of desert areas in
order to see not only the physical aspects but the different situations un
der different types of culture in different parts of the world. I started my
work in the deserts of California and in the adjacent states of Arizona,
New Mexico and Utah. I worked also considerably in the north-western
part of Mexico, in Baja (Califomia) and the state of Senora. I have done
considerable work in the drier portions of the Mediterranean, in Crete
and southem Greece, which, while nota desert area, has quite a smack of
aridity connected with it. I have spent time in the Republic of the Sudan,
having been at the University of Khartoum; and I have studied South
West Africa.
Mr. MULLER:Have you published any works on the subject of geog
raphy, the field of study which you have explained to the Court?
Prof. LOGAN:Yes, I have somewhere around 70 publications including
articlesand the things of this sort, about 40 of them on arid regions. Of
the more important ones perhaps is the one entitled the "Central Namib
Desert", Monograph 758 in the Monograph Series of the NationalAcade
my of Sciences and National Research Council published in Washington
in 1960: this is on the Namib Desert of South West Africa. I have an
article in German "Die Landschaften Südwestafrika" in the Geographi
sche Rundschau, 1958. I have an article on the "Climate of the Namib"
published by the Quartermaster Corps of the United States Army in 1958.
I have a chapter on "The Utilization of the Arid Lands of the World" in
Natural Resources by Huberty and Flock, published by McGraw Hill in
New York. The entire issue of Focus, the organ of the American Geo
graphical Society of New York, in 1962 was devoted to an article by my
self on "South West Africa" in toto. I have done two chapters, one on the
United States and one on South West Africa, in a publication by Unesco
-United Nations Educational Scientific and Cultural Organization-en
titled The History of Land Utilization in Arid Regions, and I did the
chapter on "Regional Setting" in the book by the Amcrican Association
for the Advancement of Science entitled Aridity and Man. I bring these
out specifically to indicate my interest in arid regions and the fact that
it is not limited solely to South West Africa.
Mr. MULLER:Have you participated in international conferences re
garding the field of study which you are interestcd in?
Prof. LOGAN:Yes, I was the delegate of the American Geographical
Society to the meeting conducted by the American Association for the
Advancement of Science and Unesco on Arid Lands held at Albuquerque
in New Mexico in 1954. I was the delegate representing the National
Science Foundation at the Unesco and International Geographical Union
meeting of the Arid Zone Commission at Stockholm in 1960, and to a
simi1ar meeting of the Arid Zone Commission at London in 1964, again
representing the National Science Foundation. I was the American dele
gate to the Unesco International Geographical Union Colloquium on the
Development of the Arid Lands held at Heraklion, Crete, in 1962.
Mr. MULLER:Vou have told the Court that you have done research
work in South West Africa. \Vill you explain to the Court the nature of
the work done and the period in which it was done?
Prof. LOGAN:I first went to South West Africain 1956, after having
done a couple of years of library research in my research time as a uni
versity professor. I was there for a year in 1956-1957; I wcnt out to study WITNESSES AND EXPERTS 339
the physical aspects of a utilization of the Namib Desert area. I was fi.
mmced by the National Research Council of the United States. I was
there for a period of just about a year; my wife and family accompanied
me and we made a home in Windhoek and operated from there to the
coast by private vehicle, carrying on lengthy field periods of study. In
1961 I returned to South West Africa to carry on not that work, but other
work which I had begun during that first period. During the latter part
of the first period I bcgan to undertake a study of the geographical regions
of South West Africa, this never having been consistently or systemati
cally studied before by a geographer. I began to be interested in the con
trast between the ways in which the land was used by the various groups
within the area-that is the utilization of the land by the European pop
ulation, and bythe variousgroups of Nativepeoples. I went back in1961to
study the contrasting utilization of similar areas by different economies,
and by different population groups. I knew that I could not do this in the
period at my disposai then, which was about eight months. I worked on
the southern half of the terri tory at that time, the area inhabited primar
ily by the Whites of the Police Zone and by the Damara and Nama
peoples of the south; I only did a bit of work in the north. This study was
sponsored by the Social Science Research Council. I returned in March
of this year to carry on work in the northern part of the Territory, the
same kind of work, extending it into the area of Herero domination, and
beyoncl that into the areas of completely non-European inhabitation,
north of the Red Line, outside of the Police Zone.
Mr. MULLER:Have you travelled extensively throughout the whole
area of South West Africa?
Prof. LOGAN: Yes, I have been in every portion of South West Africa
and seen it quite in detail, with the exception of the Eastern Caprivi. I
have been to Katima Mulilo by air, but I do not know the Eastern Capri
vi. The Western Caprivi, the Okavango, Ovamboland, the Kaokoveld and
ail of the areas of the Police Zone and virtually ail of the Reserves, I have
been on and know quite well. There are several small Reserves that I have
not visited, but I have been on ail the Jarger ones.
~Ir. MULLER:In visiting these areas, have you made a thorough study
of the different regions of South West Africa, as well as the people occu
pying such regions?
Prof. LOGAN: Yes, I have endeavoured to. I have studied the physical
aspects as far as I am capable, I have studied the human aspects, as far
as I am capable. l feel, of course, as anyone cloeswho attempts to study
so extremely complex a set of cultures as those of South West Africa, a
bit humble in attempting to do the work, because to know my own cul
ture is a difficult enough thing, but when one is faced with the extraordi
nary complexities and diversities of the cultures of South West Africa,
I have, as anyone would do, only scratched the surface. But I have been
in all ofthP :ireas, I have studied as far as possible, as a geographer, both
the physical and human resources and characteristics of the area. I have
talked with most all of the Native peoples (the exception being the Native
people of the Eastern Caprivi with whom I have never had any direct
contact); and I have worked considerably on each of the rescrve areas,
as well as having stayed on and lived upon European farms in each of the
basic areas of the country.
Mr. MULLER:Have you divided South West, for the purpose of your
study, into different regions? SOUTHWESTAFRICA
Prof. LOGAN : Yes.
Mr. MULLER:Would you namc the regions tothe Court?
Prof. LOGAN:Yes.
Mr. JluLLER: Professor, before the adjournment you wcrc going to in
dicate to the Court that you had made a study of the different regions of
South West Africa and you were going to name those regions. Would you
kindlv do so?
Prof. LOGAN:Yes, the namcs of the regions which are indicated on the
map, which Ibelieve has been passed to the group ...
Ilfr. MULLER:I shall corne to that question in a moment. Kindly just
give the regions, will you?
Prof. LOGAN:Yes, the regions as Isee them, of South West Africa are
the Namib, the south, the central plateau, the northern plateau, the
Kalahari, the Kaokoveld and the far north .
.Mr. MULLER:Have you indicated those regions by drawing boundary
lines on the map?
Prof.LOGAN:Yes, I have drawn approximate boundaries on a map; as
isthe case in ail such things, boundaries are arbitrary, and these represent
the approximate positions. Sometimes the boundary is clearly indicated
in the land forms, other times the boundary is one of economic dcvelop
ment or of the population groups present and consequently it is a bit vari
able or arbitrary. Soto the best of my ability these are the boundaries as
I see them for the gcographical regions of the Territory.
Mr. MULLER:Mr. President, may I explain that the witness has super
imposed on the map, which is contained in Book Iof the Countcr-Mcmo
rial,Il, the boundary lines of the areas with which he will deal. May I ask
leave to hand in to the Court copies of the map with the bounclary Jines
so superimposed?
The PRESIDEKT:\Vell, you should first band a copy of the map to the
Agent for the Applicants.
Mr. MULLER:With respect, Mr. President, we had during the adjourn
ment handed copies to the Agent for the Applicants.
Mr. GROSS:That is correct, sir.
The PRESIDENT:That may be clone. There is no objection, Mr. Gross,
I assume.
Mr. GRoss: No objection, sir. I shoulcl like at an appropriate moment
to raise questions concerning qualification as expert.
The PRESIDENT:Do you desire, Mr. Gross, to examine the witness on
the voire dire for the purpose of establishing that he has not the qualifi
cation as an expert.
Mr. GRoss: Yes, Mr. President, with respect to expertize in specific
matters, in regard to which I shouJd Jike to address my questions to the
witness.
The PRESIDENT:ls it more convenient for you to do that now or to do
it when the question is put?
Mr. GROSS:It would be more convenient and, in my respectful sub
mission, more appropriate to do so now-appropriate in the sense of
clarification, of understanding, on the part of the Applicants.
The PRESIDENT:Mr. Muller, the Agent for the Applicants will be per
mitted to examine on the voire dire for the purpose of testing the quali
fications ofthe witness.
Mr. MULLER:As the Court pleases.
The PRESIDENT:I call upon the Agent for the Applicants. WITNESSES AND EXPERTS
2\Ir. GRoss: Thank you, 1\IrPresident. Professor Logan, I should like
bcfore addressing several questions to you to state for the record that
your distinction as a geographer is well known and would not be ques
tioncd in any respect, nor is any implication intended, by any of my
questions, with respect to your distinctions and attainment as a geogra
pher of renown. J should like, however, to addrcss questions more spe
cificallyto you with respect to your qualifications as an expert in the two
following respects.
r. In the proffer of your evidence, which has been macle by the leamed
counsel for the Respondent, the Court and the Applicants have been
advised that your testimony will be directed to the following points,
among others, and I quote:
"The effect which, in the opinion of the witness [that is, of course
in your opinion] the application of a normand/or standards of non
separa1.ion, such as contended for by the Applicants, would have on
the people of South West Africa, especially the Native people."
Did you understand, sir?
Prof. LOGAN:Yes.
Mr. GROSS:With respect to such testimony or expert opinion-partic
ularly in the context of this point which I have just quoted-would you
be good enough to state your understanding of what is meant by the
phrase "standards of non-separation, such as contended for by the Appli
cants"?
Prof. LOGAN:You wish me to define my impression of the term "stan
dards of non-separation as proposed by the Applicants"?
Mr. GROSS:The exact phraseology, so that I can fix it in your mind, to
which your testimony is said to be directed, is the following, in response to
your question, and I break it clown between normand standards for the
sake of clarity because they are two different things: "standards of non
separation, such as contended for by the Applicants." Now, I ask you to
state your understanding of that phrase, to which your testimony is to be
directed.
Mr. MULLER: Mr. President, I must object to this type of questioning
by my leamed friend. The indication given in the letter which my learned
fricnd has been quoting from and what I indicated to the Court was for
the purpose of the Court as well as for the Applicants. I shall ask the
witness certain questions which will indicate what his opinion is relative
to the matter now being dealt with. My objection is that my leamed
friend should not putto the witness questions as to what the Applicants'
case in this matter is. The witness will surely not know it, save perhaps
by having discussed it,but it is not for my learned friend to put those
questions with regard to testing the witness's ability as an expert.
The PRESIDENT: Mr. Gross, you are putting to the witness questions
which are strictly on the voire dire and that is for the purpose of deter
mining whether he is competent to speak upon the matter refcrred to in
"C" of the lettcr of r July which was directed by the Respondent to the
Agent for the Applicants. It is not possible to ask what his undcrstanding
of the application of the norm or standard of non-separation is at this
stage until the question has been put in the ordinary course of examina
tion by the Agent for the Respondent. Thcn you may take the objection
and then, if you desire to, you may test the question on the voire dire .::is
to whether the witness is competent to answer.342 SOUTHWESTAFRICA
Mr. GROSS:Mr. President, if the Applicants understand correctly, that
would be then on the basis that no testimony, expert or otherwise, would
be intended to be dirccted towards this point "C" unless so stated and
identified by Respondent's counsel in asking the question.
The PRESIDENT:No, Mr. Gross. The way to take an objection is to wait
upon the question and if the witness is asked a question which, in your
view, he is not competent and expert to answer, at that stage counsel
should take the objection and he will be given every opportunity of doing
so; upon that stage being reached permission will be granted to you to
examine on the voire dire if you desire so to do.
Mr. GRoss: Mr. President, just one more word by way of caution with
respect to a possible misunderstanding on the part of the Applicants. In
the light of the formulation of this question which has been stated by the
Applicants to be ambiguous and incomprehensible to the Applicants, it
would be difficult under certain circumstances to be certain that the
question was directed to the point of the applicability of standards, or of
norms, as the case may be. Therefore, in order to avoid harassing the
witness and to resolve doubts in the Applicants' minds concerning the
purport of a particular question in this context, I should with respect
like to reserve the objection generally, since it creates a general con
fusion.
The PRESIDENT:Mr. Gross, it would be better to address the Court, not
the Agent for the Respondent. Itis a question of the ruling of the Court
upon the matter and the ruling of the Court has been given, so that when
the question is put it must be then for counsel for the Applicants to
determine whether in his opinion it does or does not touch upon the ques
tion of paragraph "C" and if he desires to challenge the competence of the
witness to say so. That is the correct procedure.
Mr. GROSS:Mr. President, I have observed the admonition to address
the Court, and assure the honourable President that that has been my
intention throughout, and of course will continue to be.
I would like to raise the following questions with respect to the exper
tise of Professor Logan.
The PRESIDENT:The ruling of the Court has already been given. Until
such time as a question is put by the Respondent's counsel on the matter
referred to by you there is not the opportunity nor is there the ground
upon which the qualification of the witness to answer it can be tested.
Mr. GROSS:In any aspect. Mr. President?
The PRESIDENT:What other aspect are you speaking about?
Mr. GROSS:rifr. President, the point I was about to raise, now, was with
respect to the qualification to testify with respect to geographical factors
as defined by the witness in respect of the Territory of South West Africa.
The PRESIDENT:Well you may proceed to do that.
Mr. GROSS:This is the second line of question to which I had referred
in my opening remarks. Professor Logan, you referred, I believe, if I
understood you correctly, to the definition of geography as a discipline or
science involving the interaction between men and land. Is that correct,
sir?
Prof. LOGAN:Yes, that is correct.
Mr. GROSS:In your studies and research in South West Africa, I take
it that this was the basis upon which you pursued your studies?
Prof. LOGAN:Yes, thatis correct.
Mr. GROSS:In respect of the analysis you made on the basis of the WITNESSES AND EXPERTS
343
interaction between men and land, did you have extensive discussions
with men?
Prof.LOGAN : Yes.
Mr. GROSS: May I ask you, Professor Logan, for general answer, what
types of individual men did you have discussions with-let us say, spe
cifically forhemoment-in thesouthern sectorof theTerritoryoutsideof
the Reserves?
Prof. LOGAN:I discussed the characteristics of South West Africa and
asked great varicties of questions of people ranging from the Adminis
trator, the top man in the territorial government, downwards to the far
mers of the Territory, the Natives on Reserves, the Natives on farms;
government officiais as well as private citizens-all sorts of persons. As I
indicated, I think, earlier I lived on more than one farm-it depends on
what may be considered living upon, but I have stayed, let us say, not
less than three to five days upon upwards of 20 farms within the Police
Zone; and I have been on allo{ the Reserves-not merelydrivingthrough
them, but remaining upon them for periods ranging from a da,Yon the
smaller ones to at least a couple of weeks on the larger ones, sttll in the
southern portion of the Terri tory.
Mr. GROSS: Did you have discussions, extensive or otherwise, with re
spect to the political or economic relationships of individuals to society,
or were your discussions primarily centred on the relationship between
man and land?
Prof. LOGAN:I have not held any political discussions to any extent
with anyone; I am not interested particularly in politics perse, and con
sequently I am not an authority on the politics of the Temtory, and have
not really been seriously interested therein. As far as the economic as
pect is concerned, yes. As far as the cultural aspect-by this I do not
mean to exclude politics from culture, but at any rate the study of the
culture of the peoples, whether they be the Europeans or the Natives, is
very much a part of my field of study. Consequently I have talked with
and observed the various culture groups within the area quite intimately.
This means having talked with at close range, over considerable periods
of time, Natives as well as Europeans.
Mr. GRoss: Thank you. And did you, Professor Logan, regard that it
was a part of your study and analysis, from any technical or scientific
point of view, to consider the questions involved in limitation of rights or
freedoms of individuals, or any aspect of the relationship between man
and society on a political or individual basis?
Prof. LOGAN:Well, as I just said, I am not interested in the political
aspects, and I have not &oneinto that. As far as the laws or regulations
are concerned, I am afra1d I am notable to recite-I do not even know
thoroughly-all of the regulations and laws involved in the relations be
tween Natives and \Vhites, or other types of laws within the area. I cannot
be held as an expert in any way on the legal aspects-no. I am quite
aware, however, of the rights and privileges and the limitations thereon,
as anyone living in and observing critically and carefully a society ordi
narily is, and consequently I think I can talk with a fair degree of cer
tainty in regard to how much freedom or lack thereof there is on the part
of the Native group in South West Africa.
Mr. GROSS: And would your observations and opinions on that subject
reflect scientific or technical observations analysis?
Prof. LOGAN : No, they would not reflect scientific or technical analysis.344 SOUTH WEST AFRICA
They would be that of a person who has lived in the area, who has ob
served it carefully and keenly as a part of obtaining the total background
of the area, but in order to report scientifically or technically upon it,
I am afraid I would have to have a legal background or a political science
background, and I do not have this; I would not set myself up as an
expert in those fields.
Mr. GROSS: Those fields being the political, economic and sociological
fields?I just ask you for clarification, sir.
Prof. LOGAN: No, I said pohtical fields and lega1 fields; when it comes
to economic and sociological fields, this begins to get more into my realm,
and there on at least a number of facets I think 1 can testify with a fair
degree of certainty and with a fair degree of technical knowledge.
Mr. GROSS: With respect to the sociological aspect of your testimony,
have you specialized in any sense, in studies or writing or scholarship, in
the field of sociology?
Prof. LOGAN: Not in the field of sociology, but I have had courses in
sociology when Iwas back at the university, long ago; my Ph.D degree is
in human geography from Harvard, and a Harvard degree in human geo
graphy in the year in which I took it meant that we had a great exposure
to sociology, ranging all the way from urban sociology through compar
ative societies, and things of this sort. I did a Ph.D dissertation-this
was in New England, before I became interested in arid regions-which
was on the causes of land abandonment in the uplands of New England,
and half of that Ph.D dissertation issociological.I had asociologist work
ing closely on the committee with me-over me, not with me-and I have
quite a bit of background in that sort of thing.
Mr. GROSS: Yes.
Prof. LOGAN: That is why I stated to the Court at the beginning that
geology and geography should not be confused, and that as geographers
we have to know about men, and knowing about men we have to know
about sociology and societies, and consequently, yes, Iwould corne into
that.
Mr. GROSS: And in your discussions with individuals in, let us say for
the sake of this question, the Police Zone areas outside of the Reserves,
for example, did you discuss and consider and analyse the social impli
cations, sociological implications, or aspects or effects, of the legal and
other policies and practices with regard to the freedoms of individual
persans?
Prof. LOGAN: Yes, I did.
M:r. GROSS: And in ascertaining. or developing and ascertaining the
facts, or developing your views with respect to the social or sociological
implications of the policies and practices pursued there, did you discuss
with individuals, let us say those classified as non-Whites, their attitudes,
reactions, or perceptions of the situation?
Prof. LOGAN: Many times, yes. with many different groups.
Mr. GROSS: And with manv different individuals in that area?
Prof. LOGAN: Yes, and diffcrent tribal groupings.
Mr. GROSS: Weil, sir-just to avoid confusion on my part, I was not
referring to groupings. but to individuals.
Prof. LOGAN: But I mean individuals from different tribal groupings.
Mr. GROSS: Within this particular area?
Prof. LOGAN: Yes, within the Police Zone.
Mr. GROSS: ln connection with the political, as distinct from the socio- WITNESSES ANDEXPERTS 345
logical, did you discuss with thcm their reactions or opinions or attitudes
with respect to the political limitations imposed upon them?
Prof. LOGAN:Yes, to slight extents. I feel rather foolish, Mr. President,
about giving my testimony before I have started to give my testimony,
but if I should continue here I would say that generally most of the
population of the Native groups basically, a tremendous proportion of it,
is completely politically unaware, and consequently to hold a political
discussionwith a Nama shepherd is a rather fruitless undertaking, because
most of the Nama shepherds do not have any political concepts; and
therefore I have difficulty answering the question "yes" or "no" because
one does not discuss something with a persan who does not know any
thing about it.
l\fr. GROSS:.Mr. President, I feel that the response and the address to
the President reflects a misunderstanding of the coverage and the scope
of my question; are there Nama shepherds in the Police Zone outside the
Reserves, so far as you are aware?
Prof. LOGAN:Yes, thousands of them.
i\Ir.Ross: Yes, there are. Now, are there persans in this area, who
are not Nama shepherds, who have political views, sir?
Prof. LOGAN:Yes, there are a few.
Mr. GROSS:There are a few, and I would like to know about those few.
The PRESIDENT:Mr. Gross, on examination of voiredire the questions
must be of a general character, they cannot be of a specific character; the
questions must be directed to ascertaining whether the witness is quali
fied as an expert, and it does not seem tome to be of assistance in deter
mining that to go into detail as to whether there are Nama shepherds here
or N ama shepherds there.
Mr. GROSS:I did not introduce this question.
The PRESIDENT:Maybe, but you are pursuing it.
Mr. GROSS:I referred to Nama shepherds to dispel the notion that I
was referring to Nama shepherds; I was trying to establish, and am trying
to establish, the limits or extent of the witness's expertise.
Prof.LOGAN:Mr. President, could I make a short statement, perhaps?
The PRESIDENT:No, answer the questions, witness-it is much better
to answer the questions.
Prof. LOGAN:Excuse me, sir.
i\fr. GRoss: Professor Logan, I would very much like to give you-we
are addressing each other only in the presence of the Court, and through
the Court-full opportunity to respond to my questions in any way you
deem appropriate, subject to the views and rulings of the honourable
Court. I do wish to pursue this matter so that you may understand the
purpose of the question, and why I am excluding Nama shepherds or
others who have no political sophistication or knowledge; I am discussing
with you, or asking you specifically to advise the Court for the purpose of
indicating the extent of your expertise and the particula1 areas or points
or subjects to which it is directed, whether or not you have engaged in
discussions with non-Whites, so classified, who have what you regard as
political sophistication or knowledge?
Prof. LOGAN:Mr. President, I have not. I have not engaged in political
discussions with the leaders of the Herero or Ovambo political groups who
have been represented at the United Nations, for example; I have not
held discussions with them. My discussions have been almost totally of
a non-political nature, and consequently I could not qualify to discuss SOUTHWESTAFRICA
political situations in really any way as an expert, or even as a strong
witness.
Mr. GROSS:So that in addressing yourself to any such area of fact or
opinion, you would not regard yourself as addressing your responses to
questions on these matters as an expert-is that correct?
Prof.LOGAN:That is correct.
Mr. GROSS:I think that is all, Mr. President-thank you very much
for your patience.
The PRESIDENT:Do you challenge the cornpetency of the witness, as
an expert?
Mr. GRoss: Not as an expert with respect to his discipline as a geog
rapher-no, sir.
The PRESIDENT:Continue, Mr. Muller.
Mr. MULLER:Professor Logan, will you describe to the Court the area
or region on the rnap which has been handed in, which you have referred
to as the Namib region-would you very briefly indicate the boundaries,
and tell the Court something about that region and its economic poten
tialities?
Prof. LOGAN:The Namib is a complete desert, one of the most utter
deserts in the world. It extends along the entire coast of South West
Africa, from the Angola border to the border of the Republic of South
Africa. It extends inland a distance of 80-120 miles to the foot of the
escarpment or mountainous edge of the plateau of Africa.
It is an area that is almost totally devoid of rainfall or any form of
precipitation. It receives an annual average of something between one
half inch and two inches of rain per annum, but this does not really
indicate the true situation, for it may be rainless for as long as three
or four years and then receive, in a period of several weeks, a large amount
of precipitation in the form of cloudbursts which gives a certain annual
average, but which really is of no utilization to anyone attempting to
utilize the area for farming or anything of that sort.
Its water supply, consequently, is almost non-existent. The four
settlements within the area all have great problems in obtaining their
water supply. Swakopmund and Walvis Bay receive their water from
the underflow of the Kuiseb River, some 30 miles inland and pipe this
30 and 50 miles respectively, to those two communities. Lüderitz, far
ther down the coast, obtains its fresh water entirely by the distillation
of sea water, with coal brought frorn great distances providing the energy.
Oranjernund, at the extreme south tip of South West Africa on the coast,
is fortunate in that it has the surface-flowing Orange River as a source
for water.
The only fiowing streams in the Territory are the absolute south edge
and the absolute north edge of the area: the Orange and the Kunene.
Vegetation is almost non-existent within the area. The land forms con
sist of a fiat bench eut in bedrock over a great portion of the area, about
one-half of it, with bedrock right at the surface; sand dunes cover an
other third and the remainder is made up either of small isolated moun
tains or gravel fiats, the gravel of which is cemented with gypsum, and
gypsum is poisonous to almost all vegetation and consequently com
pletely unusable. The soils of the area are virtually non-existent except
in the case of the sand of the sand dunes which, itself, is scarcely a soil,
and in the case of the gypsum cemented sands as I just mentioned. The
area is virtually without anything, then, that serves as an economic base WITNESSES AND EXPERTS
347
or a base for utilization. Now the exception here lies in the minera!
development. There are a couple of small copper operations and there
are the world famous diamond-bearing gravels along the coast in the
southern portion of the area, the area that is prohibited to entry because
of the presence of the diamonds. These, of course, serve as a very im
portant economic base for the area but only in a very limited way in a
limited region.
Off-shore the cold waters of the Humboldt current which wash this
coast provide a lot of plankton which develops a big fish population and,
consequently, the taking of crayfish, which are exported all over the
world as frozen, and tinned lobster tails or crayfish tails, is an important
industry and the basis for the port of Lüderitz. Farther north, the taking
of snoek, a type of tuna, and pilchards or sardines, is the basis for an
important canning industry at Walvis Bay. These are two of the main
economic bases of the area: the presence of the diamonds and the pres
ence of the fisheries.
The third economic base is that of the fact that a port is needed for
exporting the products of the interior and for receiving the imports
for the interior, and on this basis, both Lüderitz, a minor port and Wal
vis Bay, the major port, have developed. Both of them are tied quite
strongly to the sea and to overseas and to world trade and they have
grown up here as completely exotic ports, exotic cities. Along with them,
Swakopmund and Oranjemund are also exotic, that is, things completely
out of place in the area. The area was originally almost uninhabited.
Along the coast there were a few of a group termed Strandloper Bushmen,
Strandloper means "beach runners" and they moved along the coast
living offthe sea wrack, the refuse of the sea, primarily.
lnland, there were a few scattered Bushmen groups, very likely. These
had been apparently exterminated or virtually exterminated by the
time of the arrival of the first Whites in the area, exterminated by the
Hereros in the north and by the Namas or Hottentots in the south, and
the result was that there was very little population in the area. Along
the major rivers that flow once in several years, but which have an under
flow and hence support trees and some vegetation, there were at the time
of White contact, a few Topnaar Hottentots or Topnaar Namas living,
dependent largely on their herds of goats. These are still living in the
same way in the interior behind Walvis Bay. ln other words, this was
originally an almost uninhabited area and there are today in it a few
peoples still representing the old group of Topnaar Hottentots and, in
contrast, the large modern type cities, supported as far as their food is
concerned, supported as far as their water is concerned and as far as
their economic base is concerned, almost entirely by outside contacts.
Mr. MULLER: \Vhat influence have the European and Native peoples,
respectively, had on development in this particular area?
Prof. LOGAN: The area is almost entirely the result of the European
group. The European group developed it in order to support the trade
of the interior or developed it in order to extract the diamonds and the
copper and other scattered minerals in the other areas. They developed
the water supply, they developed the food supply, they developed the
housing. The population today is perhaps roughly a third European,
two-thirds ~ative. The Natives are entirely brought in from outside or
have corne in of their own volition from outside. One group is the Ovam
bo, who corne from the northern part of the Territory and work here as SOUTHWEST AFRICA
contract labourers for a period of time before being returned to their
homeland. The other group are permanent residents of the area, being
Natives, largely Herero or Nama or Dama, who have corne from the more
moist interior and have moved down to the coast because of the oppor
tunities for employrnent there. They have, of their own volition, moved
in individually, family by family within the area.
Mr. MULLER:In your opinion, what would happen if the European
influence were removed from this particular region?
Prof. LOGAN:\Vell, since the European group is the one that today
keeps the water supply going, keeps the food supply coming in, keeps
the railway operating, that it is the managerial ability, that it is the
initiative and drive of this group that has kept the place in operation,
the removal of this grou:p without its direction and initiative, would,
I think, result in almost 1mmediate and almost complete collapse. The
Native group is not of the calibre, whether it be in trained ability or
whether it be in the desire to be there each morning at the given hour
that is necessary to turn on the plant or oil the machinery, and since
there is no such initiative, from the local Native group, I am afraid that
things would fall apart very quick1y.
Mr. GROSS:Mr. President.
The PRESIDENT:Yes, Mr. Gross?
Mr. GRoss: I would object to this testimony as not falling within the
scope of the points to which the testimony is addressed, and as being
a question which raises a purely hypothetical and fanciful supposition
as to which the answer is completely meaningless.
The PRESIDENT:Mr. Muller, in the first place, to what particular issue
is this evidence sought to be directed and secondly, under what heading
in your letter of r July 1965, does it fall?
1\Ir. MULLER:I beg your pardon, Mr. President, with reference to
the letter ...
The PRESIDENT:The letter of r July 1965, addressed by the Agent for
the Respondent to the Agent for the Applicants. The two questions I
asked were to what particular issue in the case is the evidence which
has just been given sought to be directed, and secondly, to what partic
ular head, A, B, C, in your letter of r July 1965, is it said to fall?
Mr. MULLER:Mr. President, my reply is that it is concerned with
the issue raised under the Applicants' Submissions Nos. 3 and 4, relative
to the existence of a norm and/or standards and applicability of norms
and/or standards to South West Africa. It is directed to the matters
raised under Band C, that would be the differences between the popula
tion groups and upon that, the witness will eventually be asked to express
his opinion relative to what is raised in C.
The PRESIDENT:Mr. Gross.
'Mr.GROSS:To the objections already stated, I would renew and reaf
firm the general linc of objections, based upon the meaningless and
incomprehensible formulation just cited as a reason for the question and
answer, in response to the honourable President's question addressed to
counsel. I do not know what relevance the answer or the question has
to any contentions macle by the Applicants in respect of Submissions
3 and 4; the favourite formula, now repeated time and time again (which
does not add toits clarity)-"norm and/or standards such as contended
for by the Applicants"-has taken on a ritualistic rather than a compre
hensible aspect. I thercfore add this gcneral objection to those raised WITNESSES ANDEXPERTS
349
specifically, with regard to the relevance or intelligibüity of the question
and the answer in respect of any issue raised· in these proceedings.
The PRESIDENT:Sometimes the relevance becomes more apparent as
questions are put and sometimes they become more comprehensible.
I think, Mr. Gross, it is better that we note the objection which has been
taken by the Applicants. You may rest assured that the Court itself
is capable of evaluating the evidence in its relevance but I think the
better course is to proceed with the evidence.
]\frGROSS:I accept it, sir, on that very basis, with assurance.
The PRESIDENT:Continue, Mr. Muller.
Mr. MULLER:Profcssor Logan, will you next deal with the second
region on your map which you have styled the south, giving the Court
first the boundary outline of the area, and a brief description of the
geographic conditions and the economic potential of the area.
Prof. LOGAN:The south is, again, an area of barrenness, of extra
ordinary lack of precipitation, of a general lack of resources. As I see it,
I bound it southwards by the territorial boundary and eastwards by the
territorial boundary and then northwards by a line running diagonally
northwest, southeast, passing about through the town of Mariental,
on the railway line 100 miles or so south of Windhoek. This area is a
high plateau, lying three to four thousand feet above sea level, haYing
only a couple of inches of rain on the annual average in the southern
part and getting up to no more than eight inches in the northern.
Jt is an area of fiat sky-lines reaching monotonously, endlessly, to the
distant horizon, barren, almost no vegetation in the south, getting up
to having open bush country of low bushes over the northern portion.
A small portion in the southwest is a little more succulent because it gets
some winter rains in some years. The area along the Namib border has
some short grasses. The rest of it is open bush country and quite sparse
in its vegetation.
The water supply is almost non-existent over large areas. There is the
water in the Orange River on the southern border, but this is virtually
inaccessible for any realistic uses because it is in the bottom of a deep
canyon, frorn which the water cannot be raised up, without grcat expense,
to the plateau-lands on top, and along the river there is almost no arable
land.
The rema.inder of the area has water only in scattered waterholes and
springs. There are some boreholes which have been put down by indi
vidual European farmers, or by the Administration, either for farmers
or for the Natives on the Native Reserve areas, but it is generally a
pretty poor, pretty barren, sort of area.
l\frMULLER:What agriculture, if any, is practised in this region?
Prof. LOGAN:As far as agriculture, in the more limited sense, is con
cerned, virtually none. There is a bit of irrigation in little patches along
the Orange River, there is a bit of irrigation being developed below the
Hardap Dam near Mariental (just developed in recent years), and on
the border of the area, against the Kalahari, there is an artesian basin
of a few square miles known as Stamprietfontein. Other than that, there
is nothing.
There can be no dry cultivation because there is not sufficient rain
for dry farming.
Therefore it all boils down to the fact that basically it is an area of
pastoral activity whercver there is enough bush for animais to graze SOUTH WEST AFRICA
350
upon, and the principal type of pastoral activity is that of the raising
of Karakul sheep, or Persian lamb, a luxury fur item. These are raised
in considerable numbers on the European farms throughout the area.
There are also, on the Reserves, the raising of sheep and goats as a sub
sistence type of economy. The Natives are basically sheep and goat
raisers, the Europeans basically Karakul raisers. However, on most
European farms there are also a few sheep and goats raised usually as
a bit offood for the house and alsoby the Natives living upon theEuropean
farm as part of their food also.
Mr. MULLER: Can you compare the methods of developments on the
European farms and those on the Reserves in the area?
Prof.LOGAN: Yes, one of the principal things that I worked on in 1961
was to study the contrast between the utilization of the land generally,
which turns out to be grazing, on the Native Reserves, especially the
Reserves Tses and Berseba, and the European farms immediately adja
cent to this.
On the Native Reserves the sheep and goat dependence had caused
almost total eating-out of the vegetation in the areas around the water
holes, that is, about the area of any one waterhole there was a more com
plete desert than in the surrounding territory-it was eaten down to
almost nothing. When one got away from the waterhole then one would
fi.nd that, at a distance of four miles or so from the watering point, the
vegetation would improve and would corne up to the standard which
one might expect in the area were there no grazing in it.
When one crosscd the fence line-the stock fence between the Reserve
and the adjacent European farm-one would find that immediately the
vegetation was considerably better, the stocking on the farm was there
fore apparently different. At first I attributedthis to the fact that the
Native Reserve was over-stocked, that there wcre too many animals
upon it; when I started getting exact census figures (not, incidentally,
published census figures, but figures taken directly from the headmen, or
the headmen's report to the local Reserve superintendent) and comparing
this with the figures I obtained myself from the European farmer on the
other side of the fence, I found that the population of sheep and goats, or
of Karakul sheep on the other side, was not very much different and
that the difference came about almost entirely from the methods of
herding. The Native herds, with small boys taking the animais out and
bringing them back each day, go with no control, for the boys merely
follow the animais. On the European farms, the farms have been fenced
and divided into what are called camps, or pastures, and this results in
an evenness of grazing over the whole area. There were no more water
holes on the farms than there were on the Reserve, there were no <lifter-
ences, to any extent, in the number of sheep or goats on the opposite
sides-the number of small stock head units remained the same-but
there was more over-grazing of certain areas and lack of use of land in
the in-between areas on the Native Reserve than there was on the Euro
pean farm.
N O\Vthe Reserve Natives had been permitted to fence, had been en
couraged to fence, and as a matter offact, one could see in many places
the stockpiles of wire that had been given to them to do the fencing.
This had not been done even though, in some cases, in 1961, it had been
there for five years.
When I came to look into the population differences of humans on WITNESSES ANDEXPERTS 35I
either side of the fence another intcresting thing showed up. The Reserve
population density and the farm population density were almost exactly
the same; that is, there were the same number of people per square mile
on the farms as there were on the Reserves. This, of course, meant that
on the Reserves these were all Natives, in this particular case Dama and
Nama; on the European farm there was the Dama and Nama popula
tion, plus the three, or four, or fi.ve members of the European family.
The standards of living were considerably in contrast. On the Reserve
side of the border, the Reserve Natives were living in a quite hand-to
mouth sort of existence. They were dependent upon their flocks and
herds, plus some cash obtained by working in town, or something of that
sort (very frequently one member of the family is working in town and
sending cash back: that is the only form of cash received). On the other
sicle of the fence, on the European farm, the Native was receiving (the
Native who was cloing the actual work) regular pay-a low wage, a very
low wage, in cash; in addition, he was receiving rations of food, he was
receiving gifts of clothing (this is almost the same as pay because the
gifts are a defmite thing that are always given at Christmas, on birth
days, and so on) and, in addition, housing materials for the construction
of buildings, and in many cases actually houses, cernent block houses,
constructed for him by the farmer. And he furthermore had a matter of
stability,that is that living on the farm he was guaranteed regularly,
over the months, over the years, irrespective of drought, irrespective of
dry scasons, a rather continuons income-which was not the case on the
Reservcs, where this might be a quite fluctuating thing depending on
the conditions of the climate in that particular year. In other words,
there was considerably more stability and a somewhat higher standard
of living on the European farm than on the adjacent Reserve.
Interestingly,several of the farms that I worked upon at that time
have since been purchased by the Administration to be added to the
Nama homelands, under the Odendaal Commission report-the work
I did was before the study by the Odendaal Commission.
Mr. MULLER:Do you think the differenccs just described to the Court
between what happens in the Reserve itself and on the adjoiningfarrn
is due to Jack of opportunity in the case of the people of the Reserve?
Prof. LOGAN:No, I do not think so. The Administration has made
continuons efforts, over a long period of time, to improve the Reserves.
There has been a great deal clone to improve the Reserves. This is the
thing ...
The PRESIDENT:Mr. Muller, would vou ask the witness to indicate
to the Court what is his knowledge of the continuons efforts by the
Administration of which he speaks.
Prof.LOGAN:I beg your pardon. .
The PRESIDENT:Would the witness indicate to the Court the con-
tinuons efforts made bv the Administration that he is aware of.
Prof.LOGAN:You wfahme to name them, you mean?
The PRESIDENT:Yes.
Prof.LOGAN:There has been the drilling of boreholes for example, to
improve the water supplies. There has been the giving of fencing mate
rials-this includes the wire itself, plus the metal posts for supporting it
(this being a treeless area this has to be done, in other areas wooden posts
are ordinarily cut)-and these have been made available, delivered to the
Natives of both Berseba and Tses, not only to the Reserve headquarters,352 SOUTH WEST AFRICA
but to the area in which the fencing is to be done. There have been at
tempts to improve stock-this is done by both breeding, by giving of
rams, or sometimes ewes, to them to improve the quality of the stock; a
great deal has been done in the way of innoculation and spraying and
handling of animals by veterinarians in various ways to reduce stock
diseases. There has been educational work in the form of attempting
to improve the animal husbandry and the pasture management of the
area by agricultural experts. There has also been education-1 am not
fully aware of what has been done in the educational lines on the Reserves,
but there are schools operating on them, normal types of schools~as
well as a great deal done also in health education by agricultural depart
rnent people in home economics, in regard to nutrition, and in regard to
various diseases.
Mr. MuLLER: Do the Native inhabitants of the Reserves accept these
improvements readily?
Prof. LOGAN: Sorne, very readily, yes. The matters of stock improve
ment that relate to disease control, and things of this sort, are accepted
very readily. Since we are dealing with the south, with the Nama and
Dama, the stock-breeding programme is usually accepted quite readily;
this is not always the case with other Natives, but it isin the southern
part of the Territory.
Mr. MULLER: Would you now deal with your third region, described on
the map as "the central plateau"?
Prof. LOGAN: The central plateau area, which lies considerably higher
than the areas Ihave been describing so far, at elcvations of 4,000 to6,000
feet above sea-level, is the real centre ofthe country economicall y, although
not the centre from the land utilizational point of view-I will get on to
that in a moment.
It is an area with considerably more rainfall than the areas we have
been discussing, 8 to 15 inches of rain coming in the form of summer
showers. There is a long period, ordinarily, of drought through the whole
of the winter and there are also recurrent droughts, of some years' dura
tion, in which perhaps as little as one-quarter of the annual average will
be reccived for several years in a row-this produces a very serious prob
lem of trying to bring herds through such a period alive and in even fair
condition.
The area is one of thorn bush savannah. By this I mean it has thorn
bushes-almost ail of them acacias, all of them covered with spines and
thorns, having green leaves on them during the summer rainy season and
being quite dry and barren-looking the rest of the year. Savannah means
that it is an area of fairly tall grasses which corne up for a short period
after the rains.
It is an area of rocky, stony, soil and of generally quite hilly country.
It is a plateau, but the plateau has been eut into valleys in a great many
areas and so much of the land is in slope, with the bare rock just below
the surface.
Mr. }lULLER: To what extent, if any, is this area being developed by
man?
Prof. LOGAN: It is used quite extensively for grazing. There is no agri
culture in it at ail of any type worth mentioning, but there is a great deal
of pastoral activity. The southcrn part of the area is still Karakul sheep
country; the northern part of the area is devoted to cattle-usually dual
purpose cattle being raised for beef and for dairy purposes. The cattle are WIDIESSES AND EXPERTS 353
shipped out of the area by rail to the Republic, for the most part, on the
hoof as beef, or sold locally as beef. The area also produces a great amount
of cream which is used for butter and cheese being prod uced in centralized
factories, not on the individual farms.
The area also has the city of Windhoek within it, which is the only
really sizeable urban community in the whole of the Territory. Windhoek
is a very modern, sophisticatcd, European-type city-it could be a city
right here from the Netherlands transposed into a quite different sort of
environment. It has a set of ordinary residential areas much the same as
one would fmd in a modern European community. It has a large indus
trial area basically producing fabricated goods, that is it brings the par
tially constructed material, whatever it is, in from Europe, or America,
or some other part of the world-increasing amounts from the Orient,
particularly Japan, today-and these are then fabricated to specifications
locallv.
Windhoek also has a large Native population. The population of Natives
is about equal to that of Europeans. The Natives are housed today in a
completelv new housing area, referred to as Katutura. The older housing
area was deplorable-it consisted of shacks built by the Natives with very
poor sanitary facilities, vcry poor availability of water and so on.
During the period between 1957 and 196I the township of Katutura
was constructed at the cxpensc of the European tax payers. It is imme
diately adjacent to Windhoek, to the European housing area, and con
sists of housing for some 15,oooNatives. The housing is four-room cernent
block construction houses with windows and doors (incidentally the win
dows and doors have to be made of steel, because if thev are made of
wood.there is generally quite a loss by their being taken out and burned
fOI"firewood}. They are equipped with flush toilets, with showers, with
running water, and electricity is available if the occupant wishes to have
it connected and pay the bill. The housing is at very low cost and a good
part of this cost is taken up by the employer of the male member of the
family, if the male member is employed, as is usually the case. The em
ployer has to pay for each of his male Native employees each week a
certain sum which amounts to alittleless than three-quartersof the month
ly rent. ln other words, nearly ail of the rent is paid for by the White
employer, if the man works. The housing is, to my mind, very adcquate
-as a matter of tact it is as adequate as has been supplied ovcr the past
ten years, up until this Iast ycar, by my own univcrsity for its graduate
students, the only difference being that the university supplies hot water
and no hot water is supplied at Katutura; of course in that climate it is
scarcely needed anyway.
Mr. JIULLER: Do different population groups live in the township Ka
tutura?
Prof. LOGAN: Yes, there are several different groups. There is a number
of Damaras, a number of Namas, a number of Hereros, and a small num
ber of de-tribalized Ovambos from the area of the extreme north. These
people live in separate areas within Katutura; this is simply because of
the fact that basically the various groups do not like to live together and
they actually have some friction between thcm if they do live in imme
diate juxtaposition; so they arc in separate units with buffer zones of
·empty ground between each of the different units.
i\Ir. i\luLLER:You have now dealt with Windhoek and Katutura at
Windhoek, will you tell the Court something briefly with regard to the354 SOUTH WEST AFRICA
population groups generally living in this region that is outside the town
of Windhoek?
Prof. LOGAN:Yes. Let me start this by saying that there were origi
nally over the whole area two groups intertwined, as it were; these were
the Nama and the Dama. The Nama were pastoral graziers, largely no
madic. The Dama have always been a sort of an enigma: the Nama are
of the Khoisan group, the non-Negroid group; the Dama are Negroid.
They, however, have been in the area from the very earliest period ap
parently; they are a very quiet, a very gentle, a very timid sort of people
basically,and they do not like to fight, and long ago they attached them
selves apparently to the Nama and lived in a kind of symbiosis with the
Nama. Itis not quite true, probably, that they were slaves to the Nama;
they were servants or menials of the Nama. They were not at equal level
with the Nama either in the view of the Nama and in their own view. The
two groups lived together, the Dama working for the Nama, in scat
tered units, referred to as Werfs, or Werve, over the whole of the central
plateau region; and as a matter of fact ail over the south as well. Now in
the middle of the nineteenth century, into this area there penetrated the
Herero. The Herero are a tail Negroid group of the type referred to as
Bantu and they were an extremcly aggressive warlike people in direct
opposition to the Dama who are a very mild people. The Nama and the
Herero began fighting some rather bitter battles and the Nama invari
ably lost in the long run. So the Dama and Nama were gradually pushed
southward by the Herero, until the position was frozen by the advent of
the Germans in I890, who stopped the internecine wars. The line today
is very clearly indicated on any large scale map by the place names. The
farms and even the towns, in the southern part of the Territory often
have Nama names with "clicks" in them. The names in the northern part
have the rolling vowel-full sounds of the Herero language: such as Omu
ruru, Okahandja. Windhoek ison the line of separation betwcen the two
different groups.
The groups on the farms throughout this portion of the territory, in
clude some, but not very many Herero, for basically the Nama and Dama
are much more conducive to farm work than the Herero. The Herero have
one Reserve, in the area just north of Windhoek, Ovitoto. There are also
Natives living in towns, where they are engaged in a wide variety of
occupations. The Herero are quite frequently in town; the women work
as laundresses and housemaids for the most part; the men work at a
number of different jobs, ranging up to as high as truck driver and chauf
feur;they work as deliverymen, and positions of that sort. The Namas
and Damaras are very dominant in the towns-there are large numbers
of them in the town areas.
And then there is one more group, and that is a group that is not in the
usual class of Natives-it is a mixed blood group, the group referred to
commonly as Coloured, and in this particular case by the rather distinc
tive name the Rehoboth Bastards-the terrn "Bastard" is a name that
they apply to themselves; you ask a man "Is jy 'n Dama?", and he will
say "Nee, ek is 'nopregte Baster"-that is, "I am a proper Bastard", and
this is the term always applied by them. The name goes back to a much
earlier time, when this group developed in the northern part of the Cape
Province of the Cape Colony, in the area of Namaqueland. A number of
White herders came into a country which was very bleak, and women
from the White community were not interested in coming into it. The WITNESSES ANDEXPERTS 355
men settling there eventually married the headmen's daughters of the
local Nama community-now by this I mean they married them-it was
nota case of mating with them, as in many other cases, in which case the
child was brought up in the Native surroundings, very often brought up
pagan and brought up in a relatively uncivilized condition. Rather in this
case they were brought up within the home of the White European pas
turalist; they were brought up Christian; and they were brought up civi
lized. This was in the 1810s and 1820s. This group developed to a rather
considerable extent in that area. When, later on, other Whites moved
into the area, it having been civilized and tamed somewhat, they began
to look ,vith some disparagement upon these others, and they referred to
them by the derogatory term, and this derogatory term these people
picked up and used with pride. Now, as the years went on, feeling them
selves somewhat squeezed in Namaqueland, they moved across the
Orange River and eventually, in a kind of truce with the Namas, were
givcn the Rehoboth area, and settled in the Rehoboth area as a group of
people completely distinct from the surrounding Namas. They were Chris
tian, they always had a minister with them, they had a written law, they
had an organized community. When the Germans arrived they recognized
this and made them an independent, autonomous state and set up the
territory, the Gebiet, for them; and so today this is, in Afrikaans, the
Rehoboth Gebiet, the Rehoboth Territory, settled by these people. These
people, incidentally, are herders and farmers. They employ large numbers
ofDam aras astheir servants. They have a location, a separate housing area,
in Rehoboth for the Damaras, since they do not allow the Damaras to live
with them. They have in recent years-the Iast 40 years or so-bcen
renting out their farrns to Europeans, and they objected very vociferously
a few years ago when the Administration announced that these farms
would have to be turned back to the Rehoboth group, because the Rehoboth
group did not like the Joss of the cash income from the rental-they
preferred to rent than actually to have to do the farms themselves and
take the risks associated with it.
There are alsoin the area generally, in the \Vindhoek area and through
the whole of the Central Upland, a number of Europeans of the three
basic language groups and a scattering of Coloureds, largely from the
Cape, in relatively small numbers.
[Public hearing of 8 July I965]
Mr. MULLER:Mr. President, before proceeding with the examination
of Professor Logan, Mr. de Villiers would likeomakean application to the
Court relative to a witness who wishes to sit in Court.
The PRESIDENT:Mr. de Villiers.
Mr. DE VrLLIERS:Mr. President, it concerns Professor Possony, who
will be called as an expert solely. He will not testify about facts in South
West Africa as being within his knowledgc in any way and I have spoken
to Mr. Muller and our friend, Mr. Gross, about it and the latter has no
objection to his attending this sitting.
The PRESIDENT:He may be present.
Mr. MULLER:Profcssor Logan, you were about to state your conclu
sions of your study of the third region, that is, the central plateau, when
the Court adjourned yesterday. Will you proceed to do so now?
Prof.LOGAN:Yes. Mr. President, the central plateau region, the area SOUTH WEST AFRICA
which was under discussion at the termination of yesterday's session, is
an area of relatively poor physical resources in which a rather remarkable
development has taken place, resulting in rather considerable prosperity
within the area due to very extraordinary economic development of the
region. It is also an area in which formerly warring tribes are now peace
fully living. They, as well as the Europeans, are making considerable
progress within the area.
Mr. MULLER: Will you next deal with your fourth region, that is, the
northern plateau, and first give the Court a brief description of the geo
graphic conditions of the region?
Prof. LOGAN: The northern plateau area has a rather arbitrary set of
boundaries in a couple of places. On the west it merges into the Namib
desert country. On the south it has a physical boundary with the area
just described. To the northward the boundary line is drawn along the
northern limit of the European settlement area, the area of the European
farms, and on the east also it borders the edge of the area of European
farms. So, in some areas, this is a culturally bounded region, and in the
other areas, it is a physically bounded region.
Itis an area of broad, rolling plains at a high altitude, 4,000 to 5,000
feet for the most part, covered largcly with relatively deep layers of sand,
not heavy sand, not a light sand, but usually with a good admixture of
other materials which makes it fairly water-retentive. It holds water fairly
well and consequently it is not an arid region as it might be \Vereit sand
like the sand dunes of the coastal area. It receives a rnoderate amount of
precipitation, between 15 and 20 inches of rainfall in an ordinary year.
This, however, falls entirely in the summer which leaves a long, dry period
in the winter. As in all of these areas, this poses a rather major problem
because thcrc is invariably a shortage of water during that winter period
and, at the same time, a shortage of feed for the animals. fo a pastoral
economy this means a great concentration of the animals about the water
holes during this particular period.
It also suffers, as do the other more southerly areas, from protracted
droughts of more than a winter's Iength. During the past decade there
have been approximately seven years of extraordinary drought. Sorne
areas have received no rain whatever for as much as two years. This
causes, of course, a grave depletion in the grazing possibilities of the area,
and is a very serious matter as far as domestic water supplies as well as
the water supplies for animals are concerned.
The area is one that has several points of minera! development. In the
northern part of the area there are reserves of copper, lead, Yanadium
and germanium. These minerais are mined at several different places,
parti~u1ar1y at the town of Tsumeb. The area has consequentiy a modest
phys1cal resource base.
Mr. MULLER: Can you tell us something about the agricultural and
pastoral activities in the area?
Prof. LOGAN: Yes, this is an area which again, like the other areas we
have discussed so far, has no possibilities of irrigation agriculture. The
soil wouid be suitable, but there is no water anywhere available. However,
the northern portion of this area gets just enciugh summer rain so that it
is possible to carry on agriculture in the open field, that is, without irri
gation but still agriculture. The major crops are maize, which in southern
Africa is called mealies, or in America called corn, and these are grown
with moderate success. By that I mean that probably the crop failures WITNESSES AND EXPERTS 357
over a number of years would average about one year out of two, or
perhaps as muchas two years out of three, which means, then, that only
in half of the years, or in a third of the years, is it possible to get a crop.
This, of course, makes for very marginal agriculture.
The area is largely a thorn bush and thorn tree savannah and so is
quite an area of importance for grazing, grazing both upon the grasses
when they are available and on the bush at other times. Soit is an area
of the raising of cattle for the most part-the same dual purpose cattle
production that we saw farther south in the central plateau region.
Mr. MULLER:What are the population groups occupying this particular
region?
Prof. LOGAN: Undoubtedly originally there were Namas and Damaras
and Bushmen here. This is a known matter of record from the tribal
traditions of the various groups. However, at the time of first White
contact in the area it was occupied by the Herero, the Herero during the
preceding several decades, up to perhaps a half-century, having pushed
the Nama out of the area in rather bloody wars. The area then was
occupied by the Herero. Now, the Herero are, or I should say were, a
nomadic cattle people. They did not raise crops. They depended entirely
upon their herds. Furthermore, it is interesting that they were not meat
eaters to any extent, they used their animais, their herds, instead entirely
for their milk and lived almost entirely off the milk of the animals, making
cheeses and curding the milk and so on.
These groups moved about over the area. There was only a modest
number of Hereros (the estimates of population are very difficult to
arrive at}. They moved about over the area without having any fixed
ownership patterns. As a matter of fact, it is often said that if you can
find the track, the spoor, of a Herero animal in the area, then that area is
part of the Herero land, because they considered that if their herds had
ever passed over it then it belonged to them. The Herero lived usually
for a year,or even several years, in one spot, building rather crude houses
at that place, but then, after a year, or several years, would usually
abandon this and move onward. The general movement was basically
southward, they having apparently originated in central Africa. So they
were the inhabitants of the area, by and large, at the time that the first
\Vhites appeared in the area. They had with them considerable numbers
of Damaras, whom they had taken over as servants from the Nama at
the time the Nama had left the area; the Damara attached themselves
as thoroughly and as loyally to the Herero as they had earlier to the
Nama. These were the population groups that were in the area origi
nally.
Today there still are considerable numbers of Damaras in the area;
there are large numbers of Hereros within the area. There are also within
the area considerable numbers of Europeans. In the area there are two
large Reserves-one the Reserve Otjohorongo, which is a mixed Hercro
Damara Reserve, and the Reserve Okambahe, ,vhich is the only Damara
Reserve, rcserved completely for these formerly subservient peoples.
Mr. MunER: Would you next proceed to describe the fifth region,
that is, the Kalahari region?
Prof. LOGAN: The Kalahari is part of a much larger region that extends
far to the eastward into Bechuanaland. The Kalahari is misnamed a
desert. Yon see, it is a desert from the point of view that there is no
water at the surface within it, and so early peoples travelling through the358 SOUTH WEST AFRICA
area by ox-cart found within the area no surface water, no drinkable
water, and so they called it a desert. Furthermore, the area is covered
with thick layers of sand which in some places are still slightly moving
with the wind; in most places they are fixed by vegetation, but in some
places there are lines of sand dunes across it. This added still more to the
idea of it being a desert.
When one cornes to consider its precipitation, however, it is scarcely
a desert. The driest portion of it, in the extreme south against the
Bechuanaland border, receives about 7 inches of annual precipitation,
and this increases in the northern part of the area to well over 20 inches
of precipitation; and this means that it is a sub-humid or at least semi
arid region instead of one which is subjected to real scarcity of water.
When rain falls upon the area it soaks into the soil and remains as a
reservoir of water at some depth below the surface. This is tapped by
the roots of trees and bushes. Consequently the area cornes to be covered
with bushes or with trees, and so you have the paradox of a desert
covered with good vegetation.
This vegetation has long been used by some of the inhabitants of the
area, and is used more extensively today by other inhabitants of the
area. In the early days the Bushmen were the chief inhabitants of the
region. The Bushmen are a very primitive group, living by direct hunting
and gathering, with no preservation or storage of food, and in this area
they found considerable herds of game which they could hunt-game of
all sizes, from very small rodents up to the larger antelopes, and they
lived from this. They also dug what is always referred to as veldkos or
field food, meaning various tubers and roots, which they dug and sub
sisted upon. There were scattered groups of Bushmen throughout the
area from the earliest times, no doubt.
The Jack of water rather precluded the invasion of the Herero success
fully into the area, and soit was not invaded by the Herero in the same
way that the other regions were; and consequently it remains today, in a
good portion of the area, chiefly a Bushman country. But in some cases
the Herero were able to penetrate well within it, particularly in the central
portion where there is Jess sand and more open, hard ground, and in this
area there is today one Reserve of the Herero group, the Aminuis Reserve.
Also in the area farther north they have invaded into the edges of it,
and there is the Epukiro Reserve, which is partly Herero; and in the
portion of the area which extends far westward in the northern part
are two more Herero Reserves, Otjituuo and Waterberg. These Reserves
are ail peripheral to the full desert area which lies farther eastward, the
full Kalahari, which is largely in occupance by Bushmen.
Europeans have corne into portions of this area, and have developed
their farms, the same as they have in other areas. This has been predicated
upon the drilling of deep bore-holes to provide a suitable water
supply.
Obviously the shortage of water would also hinder the Herero in their
various reserved areas, and the Administration has drilled a large number
of bore-holes, invariably some successful and some unsuccessful, on ail
of the Herero Rcserves we have just named, as well as assisting the
European farmers in obtaining water on some of their farms. Water is
by far the chief problem in regard to these peripheral areas in the edges
of the desert. The grazing is moderately good-it is the water supply
that is the principal handicap. WITNESSES AND EXPERTS 359
Mr. MULLER: Would you tell the Court something about the pastoral
activities within the Reserves?
Prof. LOGAN: Yes; the Reserves Natives, the Hereros, are still carrying
on their pastoral economy, but in a somewhat different method from
their former one. Formerly they moved about, as I indicated, from place
to place; today they are usually stabilized with a fixed community,
based usually upon a good water supply. That does not mean they camp
right around the water-usually the village is somewhat removed from
it, but there is water readily available within a relatively short distance;·
and there they build their village of quite substantial houses today, and
there they live permanently, on a long-term basis; there is none of the
old migratory movement.
They herd the cattle on foot, using small boys ordinarily as the herders.
You see, there is a division of labour in the Herero community, ordinarily.
Today they do a considerable amount of farming-raising of maize or
other grains-such as millet and kaffircorn. The farming is done by the
women, and the women also milk the cattle and look after the curding
of the milk and the souring of the milk-to do it properly is their chief
occupation. The little boys look after the cattle. The men among the
Herero have always been warriors-they are warriors by tradition-and
today, with the peace which is imposed upon them by the European
control which prevents them from warring, it means that the Herero
men consist basically of a group of unoccupied or unemployed male
warriors, because there is simply no war to be carried on. They obviously
are not going to herd the cattle because this is traditionally children's
work; they are not going to farm because this is traditionally women's
work; and consequently the Herero men-whenever one visits one of the
Reserves and cornes into one of the villages, one will find the men sitting
about, usually, under the trees, talking, in the shade of the trees, minor
politics, I presume, although I have not talked with them about their
discussion of politics. They sit under the trees all day long, discussing
things. The children do the herding; this means that there is no organized
control of the herding, and so the cattle graze where they will, and this is
usually not very far from the water. The result is that once again, as we
saw in the Nama Reserves, one fi.nds that in the area about the water
hales the original vegetation is reduced to that of a desert; it is bare
ground, very often beginning to blow with the wind, with very serious
soil erosion, due tothe over-grazing there. At a distance of several miles
from the water, then one fmds that the vegetation is quite normal, and
a bit beyond that is very often quite lush, because it is never grazed,
except perhaps by wild game.
The contrast once again between these areas and the European farms
immediately adjacent is very striking. I did considerable work on the
Reserves Otjituuo and Waterberg East, studying the Reserve and the
bordering European farms, and found very similar situations here, in
this case with cattle instead of in the south with sheep, in this case with
Hereros rather than with Damara and Namas, but very similar situations
as to what I described yesterday in the southern Reserves, which I will
not bother going on repeating unless it is requested-that is, that there
are much better grazing conditions on the European farms due to the
better control there than on the Reserves where the control is very
weak.
Mr. MULLER: Are there still Bushmen within that area?360 SOUTH WEST AFRICA
Prof. LOGAN: Yes, there is, I would say, an unknown number of
Bushmen within the area. The Bushmen are not particularly on the
Reserves that we have mentioned, although there are a few on each of
the Rcscrves; basically the Bushmen are in the rather unassigned area,
including the Eastern Native Reserve and going on beyond that into the
areas which are merely left as unassigned lands.
The Bushmen live in very primitive conditions, totally unchanged
from what they were a century or ten centuries ago. They live in very
small groups with only family relationships. or at the most clan relation
ships, not recognizing any central tribal authority or anything of that
sort. They speak a number of different dialects, ail replete with these
"click" sounds that have been discussed before----I mentioned them
yestcrday-and they depend entirely upon the food that is readily
available to them by hunting or by gathering; when I say "readily", I
mean that is available to them, because in many times this is very difficult
to corne by, especially in drought periods.
There is a very definite attempt and a very interesting attempt,
which has been going on for about four years, at a waterhole called
Tsumkwe in the northern part of the area, in the middle of the Great
Omaheke, or Sand Belt, country. There the Administration has sent in a
Bushmen Commissioner and he is attempting to stabilize the Bushmen
and to change completely their way of life. It is a very interesting ex
periment and having very profound results. Where Bushmen groups
seldom today number more than 20 or 30 there are, at Tsumkwe some
where in the vicinity of800 Bushmen. They have corne in there because
there is an adequate water supply provided by several boreholes, drilled
by the Administration, and so there is an adequate water supply for the
area. In addition, the Commissioncr there is providing the Bushmen
with ploughed land of a suitable quality for farming; the land is at
present ploughed by the Administration. The Bushmen are allocated
fields in this and are now planting, for the first time ever, crops; the
crops are millet, groundnuts (or peanuts, as we call them in America)
and a number of different types of melons and things of that sort. Since
the experiment has only been going on for four years, only in the last two
of which has it been possible to farm on any large scale, the results of it
are, of course, something that one can only guess, but at the moment
there is this interesting development taking place. .
Mr. MuuER: \Vould you next deal with the sixth region, that is the
Kaokoveld?
Prof. LOGAN: The Kaokoveld is one of the most remote, and by far
the most primitive, regions in the whole of South West Africa. It is a
region in the extreme north western part of the Territory. It is a rugged,
mountainous country; it has most of its land in slope; it has very little
fiat, arable land. Its rainfall, however, is notas bad as some of the areas
we have discussed before-it runs between probably 6-15 inches, and
perhaps even a little more in some of the mountain areas, for an annual
average.
The area is covered with scattered brush; the brush ranges from rather
open brush in the west, to qulte heavy brush in the eastern part, and
with a good amount of grass in the ordinary year.
The area suffers very greatly from lack of surface water. There are
very few waterholes within the area.
It has, as far as is known, practically no minerai development, and it WITNESSES AND EXPERTS
has relatively poor soils over most of the hill areas and this reduces its
potential as far as arability is concerned.
The peoples within the area are the most primitive, very likely, that
one will find in South West Africa, short of the Bushmen communities
themselves. They consist of two basic types; some Namas in the southern
part-Namas who are a splinter-group from the main Narna tribc-and,
secondly, a group of Hereros. Now the Hereros are a set of splinter-groups
of Hereros left behind when the main Herero migrations took place over
the last couple of centuries. As the Hereros came southwards out of Ango
la they found the Ovambo occupying a large area and, rather than attack
a very large nation such as this, they skirted round its edges and came
down through the Kaokoveld. Now when they came through the Kaoko
veld many of them continued onwards, but some of them remained
behind. These were people who did not wish to change their ways in
varions lines, and who wished to remain independent and separate,
and so they have remained in the Kaokoveld ever since. They dress
today in the ancient tribal garb of the Herero, which consists of, in the
women's case, a leather head-dress made with three horns projecting
from it and a leather apron-today the rest of the Herero women,
throughout all of South West Africa, dress in the mid-Victorian style
of clothing first seen on the German missionary wives who came into
the area in the 1880s and r89os. These people still retain their old tribal
customs completely, they have not altered in any way.
Now there is more than one group here of Herero. There are the ones
who consider themselves propcr Hereros, and are so considcred by the
other Hereros. Then there are two other groups called the Ovahimba
and the Ovatjimba, and these are also Herero groups, but are more
or less disowned by the main body of the tribe and they themselves con
sider themselves not to be part of that main body of the tribe; their
language still remains, however, Herero.
These people live in their old, primitive, manner, as nomadic as is
possible in an area where there is very little water, but most of them have
rights to anumber of waterholes and migrate, nomadically, between them.
There is still a great deal of Nomadism in this particular area.
Mr. MULLER: What is done for the development of the area today?
Prof. LOGAN": As I said earlier, this is the most primitive and most
remote area in South West Africa-remote because of the difficulties
of transport. Despite this, there has been a considerable development of
the area as far as possible, considering the groups being worked with and
considering the nature of the country-the terrain particularly-along
a number of lines.
For example, the area has suffered, over a long period of time, from a
number of cattle diseases, which are today being combated by innocula
tions. Many of these diseases are highly communicable (lung sickness,
for example, one of the common ones with cattlc in the area) and there
fore it is necessary to inoculate all the cattle within the area more or
Jess simultaneously, and this becomes a difficult thing when you realize
that these are nomadic peoples-you do not know where the cattle
are at any time (it is not like a Dutch farm where you know that the
cattle will be brought in each night at sunset); instead, here there is a
great ranging of cattle over wide areas-and this poses a very serious
problem for innoculation teams
As far as the breeding of cattle is concerned, there has been a strong SOUTH WEST AFRICA
effort, on the part of the Administration, to improve the cattle breeding
of the area and this has met with no success whatever. You see, the
cattle, to the Herero, are slightly sacred-they have a very strong feeling
for their cattle-and to introduce outside animals (bulls of some other
strain} into the cattle of their particular ownership means a disruption
of the blood line of the cattle, and they look askance at this, desiring not
to disturb the blood line of their cattle.
As far as the people are concerned, venerea1 disease has been rampant
in the area for a long time, and in 1957 teams went into the area and
inoculated the entire community against venereal disease in an effort
to stamp it out completely. The people had oral polio vaccine available
to them and administered, as far as possible, to everyone in the area,
very early in the development of polio vaccine.
As far as education is concerned, there are a couple of schools in the
area endeavouring to bring the children into a central place where they
can be taught. Otherwise, you see, it becomes almost impossible, because
of the migratory habits of the people, to establish a regular school tra
velling with herds of cattle.
Finally, a largenumber of boreholes have been put clown, about two
thirds of them unsuccessful, incidentally, but still there has been the
drilling of holes and the production of considerable numbers of new
water sources within the area.
Mr. MULLER: How does the potential of this area compare with those
areas in the south that you have already described?
Prof. LOGAN: Well, I think you can make a comparison between this
area and the area called the Khomas Hochland, which lies immediately
to the westward of Windhoek, the capital of the Territory.
The Khomas Hochland area is-it is shown on the map here as Khomas
Highlands-is very similar, almost identical, as far as the terrain is
concerned, as far the physical resources all the way through are concerned.
The Khomas area had, originaIIy, a very severe water shortage. However,
it is, today, a moderately prosperous Karakul and cattle raising area.
The difference is that this area, being one that was settled at the very
beginning (in 1890) by Germans and since then has had a succession of
ownership of farms, in many cases, but all in the European grouping,
has had a large expenditure of effort on itto improve it. This is individual
effort on the part of the individual farmers. The result is that today it is
a fairly prosperous area. Its vegetation, its rainfall, its soils, its terrain,
are almost identical with the Kaokoveld area. Had the same kind of
effort been extended to the Kaokoveld in 1890 or 1900 Iam quite sure
that the Kaokoveld would today be as productive and as prosperous as
the Khornas Hochland. However, being remote, it was not so developed
in the carly days and the expenditures of effort being put in there within
the last 15 years or so, let us say in the post-war period (post-Second
World War) have only begun to be successful in the area. And there is,
of course, the endless problem of, for example, combating the objection
to cattle improvement through cattle breeding which holds the area back
considerably, the splitting of the Native groups, the cultural inertia that
develops in the area where primitive groups are concerned, these very
seriously handicap such development.
Mr. MULLER: \Vould you next deal with the seventh area, the area
termed by you "the far north"?
Prof. LOGAN: The far northern, and with this the north-eastern part WITNESSES AND EXPERTS
of the Territory is a rather sizeable block. Appended to it is the very
curious Caprivi Zipfel, or Caprivi Strip, inserted here at the bottom of
the map, which extends far eastward-bounded on the north by Angola
and Zambia, and on the south by Bechuanaland-a very curious pan
handle, a curious accident of political geography.
The main body of the area, that lies in the western portion of this
region, is a great, fiat,plain-monotonously fiat-in the northern por
tion excellent soils, in the southern portion cursed by too much salinity
in the area about Etosha Pan so that it is quite useless for most purposes.
It has a good rainfall. The western part receives a modest amount,
around 15 inches where it borders the Kaokoveld. This rainfall increases
eastwards, so that by the time one gets to the break in the northem
boundary line of the country (between the straight line running on the
parallel and the curved Iine running along the Okavango River) the
precipitation is up to something over 20 inches, and 24 inches from
Runtu eastward. This is summer rainfall with, again, a winter drought,
but this area does not suffer from the droughts of a prolonged nature to
the same degree that the areas farther south do. There are droughts
within the area, but they are notas excessive or as prolongcd as the others.
The area has an open bush vegetation in the west, a thorn bush
savannah vegetation in the centre and a good forest or woodland area,
extending over the whole eastern part from the eastern portion of Ovam
boland at about the seventeenth meridian, all the way eastwards across the
whole of the Caprivi. Sorne of these areas within this forested region
have fine tall trees with good timber available in them.
Now with this good soil that I spoke of earlier, especially in Ovambo
land, and good also extending along the whole length of the Okavango
River where it makes the border with Angola, one finds that with this
good soil and with this fairly reliable and fairly plentiful precipitation, it
is possible here to carry on a high grade type of agriculture, and this
is the centre of agricultural production for the whole of South West
Africa.
The prevailing economy is one of a farming-pastoral nature. This is
entirely an area of Native occupants. Therc are no Whites in the area
at all other than a few administrators, health officers, mission people,
traders and so on. The area is a strictly Native area carrying on strictly
Native agriculture, but this is totally different from the sort of thing
that we have been describing before. It is an area in which there is some
dependence upon cattle (these people are partly cattle people), but the
cattle are really supplementary to the agricultural development, because
this is an area of the raising of quite intensive and quite highly productive
crops, of millet (mahonga) and of kaffircom. Both of these are small
grains and are nutritious and very much used from this portion of Africa
all the way across the whole of Africa to the southern border of the
Sahara, to Sudan and the northern part of Nigeria and so on. Conse
quently, this cornes to be more like the rest of Africa than the por
tions we have been speaking about so far.
This agriculture is dependent entirely upon rainfall and the rain is
usually good enough to produce a good crop. In some years it is not. In
the years in which it is not, there is no reliance whatever upon irrigation
any,vhere in the area. Even in the Okavango area in which the Okavango
River flows even in drought years, a large river on the surface flowing
very frequently right alongside of the fields which are dying of drought, SOUTH WEST AFRICA
there is no carrying of water at all from the one to the other. This is
in marked contrast to other parts of the world in similar situations, where
one finds equally primitive groups carrying on irrigation.
This is entirely a subsistence type of agriculture, these people produce
for their own needs, they do not produce for the market. Nor do they
buy anything on the market. It is not a cash economy basically. There
are beginnings of a cash economy starting to develop within the area,
but this is only beginning, and traditionally this is a pure1y subsistence
type of agriculture or economy.
Mr. MULLER: Can you tell us very briefly about the population groups
occupying the area?
Prof. LOGAN: Yes, the groups are basically Bantu; that is, the tall
Negroid groups similar to the Herero. In this case the group basically,
in the \vestern part, is Ovambo. Now this is rather a collective term be
cause the Ovambos are themselves split into several different culture
groups, slightly different from one another but with a very strong basic
thread running through their culture a11the way. The eastern part,
along the Okavango, consists of five different Okavango groups, but
there again, there is a close affinity among them. They are very similar
to one another and they recognize each other as being of close kinship, as
it were. They live primarily, both the Okavango and the Ovambo, in
small villages, actually in kraals, palisaded circular enclosures with
groups of huts within them; each one represents usually not much more
than an extended family. Large towns are non-existent, instead there are
these scattered kraals always in the midst of their fields, scattered over
the whole area. To fly over it, one looks clown on a patchwork quilt of
fields, punctuated all the way through with the round circles of the kraals
in which the people live. The cattle are brought right into the kraal and
live in a portion of the kraal, staying there during the night and being
driven out in the daytime.
There are also, in the area, scattered bands of Bushmen, but there is
a big difference between the Bushmen and the Bantu, in all ways, in
cluding the type of area in which they live. The easily cultivable, fertile
areas are strictly Ovambo. The Bushmen live in the areas which are more
like that of the Kalahari, which we were discussing a few moments ago,
which border this area, in the big forest areas, and so on, where sand îs
more dominant than the good soil of Ovamboland or along the Okavango.
That is, they are in the areas that are not so capable of high productivity.
The Bantu look down upon the Bushmen, there is no close relation
ship between them. Very frequently a Bushman will visit an Ovambo
or an Okavango kraal temporarily, for trading purposes, or something
of this sort, but there is something of an armed truce between them very
frequently, the Bushmen being looked upon as very inferior beings. If
Bushmen become attached to a kraal, as they do sometimes in the
Okavango, they live separately from the Okavango, from the Bantu
people. They are not brought in to live directly within the kraal as though
they were a portion of the family. They are considered and kept separatcly.
The population density is quite great in the centre of Ovamboland and
along the Okavango. lt is by far, excluding the city of Windhoek, the
most densely populated area in the whole of South West. The population
density is a very curious one. It runs very dense right up to the limit of
the area, and then suddenly breaks abruptly and the area changes to one
of almost uninhabited countryside. This takes place because of different WITNESSES AND EXPERTS
things, southward because of the salinity of the soil, westward because
they corne into a drier area, castward because they corne against the forest
region in which there is not much surface water, the forest country being
developed onsand.There isa present pioneering movement into this eastern
forest country, which is very clearly visible either on the ground or flying
over the area, as you travel across it.
Northward, the population dcnsity drops very abruptly, at the purely
artificial Angola border. This is a curions situation; when you fly over
the area, the area south of the border is very clearly denscly populated,
the area immediately north of it and extending as far as one can sce,
has a much lower population density. The fields are the same size, but
there are great expanses of forest between the individual fields. This
appears to be due to a drift southward ofAngolan Ovambos (the Ovambo
tribe is split by this purely artificial boundary) for, I think, two basic
reasons: firstly because they can get employment bascd upon their living
in the northern part of south-west more easily in the labour-demanding
areas of the southern part of the Territory, in the Police Zone, and
secondly, because there are very great advantages accruing to them from
the health services, from the water supply augmentation and so on,
provided by South West Africa, in contrast to the lesser development
of that kind in this extremcly periph(:ral area of Angola. And so there
seems to be a drift southwards into South West Africa, leaving this less
densely populated arca immediately north of the border.
The population density, as I indicated, is fairly high. It is beginning
to push perhaps, against over-population, it is reaching saturation in
the area. This means that subsistence agriculture, followed continuously
far into the future, would lead to poverty in the area, would lead to
malnutrition and so on. The population pressure is seeking escape in
several directions. One of them is to extend eastward, pioneering into
the forest, as I indicated earlier. The pioneering is done. first by the
establishment of a cattle camp, and the cattle are moved out into it and
then while they are herding cattle, they begin to clear fields and develop
a patch of cleared land within the forest, and eventually the family
moves to this cattle camp and lives there permanently. But all of this
is predicated upon the establishment of a water resource and the Ovambo
themselves are not capable of doing this because the water is at some
depth. Consequently the Administration is boring water-holes through-
01;1tthis eastern arca, to aid in this movement eastward in the new
p10neering area.
A second relief from this population pressure would be through irri
gated agriculture. This is a thing that remains to be developed in the
future. A third avenue of escape from over-population pressure is to
develop new crops and to develop more intensive agriculture. This is
being clone in somc areas, as I will mention a bit later on.
Finally, the other means of escape is to shift from a subsistence
agriculture base alone, to some sort of base in which cash is involved and,
in t~is, the Ovambo have corne to be increasingly înterested in going
outs1de Ovamboland to work.
Consequently, under the South West Africa Natîve Labour Association,
large numbers of them move from Ovamboland to other parts of the
Territory, under temporary work contracts. Now I say thcsc are tem
porary, becausc they arc limited to a year, r8 months or two years,
depending on the situation. They go out and work during that period and SOUTH WEST AFRICA
return home again. When I say "they" I mean only the males. The
women do not go, the children do not go, the family remains at home.
To move the whole family out would defeat the whole purpose, because
if they moved the whole family out, then the whole family would have
to be supported by cash in the new environment. As it is, the family
stays at home. The women have always been the farmers and so the
women do the tilling of the fields and continue to produce the basic
subsistence economy. The men go outside and work as cash workers,
return with cash which can then be used to purchase additional food or
clothing or any other necessities that are obtainable only with cash.
These labour movements are basic today to the economy of the Ovambo
people. To eut them off would eut off all cash coming into the area and
would set them back very sharply.
The same is true with the Okavango people but on a more limited
basis because the Okavango area is not as densely populated as Ovambo
land.
So the area today is one of relatively primitive peoples in a great
many ways but at a much higher level than the areas of the Kaokoveld
or the areas of the Bushmen, that we were speaking about earlier; these
peoples are beginning to merge into a cash economy of today out of the
completely subsistence economy of the past.
Mr. MULLER: Are any attempts made in the areas of Ovamboland and
the Okavango to assist the inhabitants in moving into a cash economy?
Prof.LOGAN: Yes, there are a great many efforts being made not only
to move them into a cash economy but to stabilize their existing economy.
The principal problem here, as everyw-here else in South West Africa
practically,is the shortage of water and in ordcr, first of ail, to gct away
from the extraordinary shortages of water that occur during the wintcr
ordinarily, the Administration has undertaken a whole series of efforts
to improve the water situation.
The first of these was started, I do not know exactly when, long before
I came into the area, I would estimate about 1950. This was the construc
tion in the area of very large and numerous rcservoirs. These reservoirs
are of a very unique nature, unlike anything that exists, I think, any
where else in the world. You see, most aI1of Ovamboland is underlaid at
a shallow depth, ranging from perhaps as little as 8 feet to as much as
25 feet, by a layer of salt water. This salt water is the residue of water
that has corne into the area annually, especially in the annual floods
from the north, from Angola, when a sheet of water cornes down across
nearly al! of Ovamboland, so that nearly ail of the country is virtually
inundated. It travels in very broad, very shallow, channels, but then,
during the ensuing winter, it evaporates and the salts, which have been
picked up over all the ground it has travelled over, are concentrated in
this water and this water sinks and then lies at a shallow depth below
the surface.
Next year more water cornes in the same way and this keeps a shallow
zone of fresh water available at the surface but if you dig very deep you
corne into salt water. Consequently an ordinary well cannot be put
down, by digging in the ordinary way, to any depth in Ovamboland
without encountering salt water.
Now, in order to overcome this, the Administration began constructing
these curious reservoirs which consist of a series of channels leading into
a sort of sump, and then, in the centre of the sump, a reservoir raised up WITNESSES AND EXPERTS
above the surrounding country, the walls of it being raised up above the
surrounding country and the centre of it being no deeper than the level
of the ground ordinarily.
Into this, water, which has accumulated in the sump, is pumped in
over the top and soit is filled up and the reservoir sits up there above the
surrounding country, full of water. So we have the curious situation of
going uphill to the water supply.
This has been done throughout Ovamboland. Scores of these, of con
siderable size, ranging from 100 yards up to, some of them, one-quarter
of a mile and even greater, in diameter, have been constructed. This gives
a domestic water supply and a livestock water supply throughout the
winter period.
More recently the diversion of water out of the Kunene River, the
river along the Angola border, west of the fourteenth meridian, has been
undertaken by agreement with the Angolan Government. The intake for
it will actually be in Angola and a series of canais, measuring several
hundred miles in length in ail, have been constructed (some are still in
process of construction, some are in operation already) from Angola,
from the Kunene, down into this area to give a much Jarger water supply.
This water supply will not only augment the existing reservoirs but
will actually allow some water to be used for irrigation purposes, to very
greatly stabilize the agriculture.
So the pastoral and the agricultural, both, are being augmented by
this water situation.
There are also some bore hales which have been put in. These penetrate
of course right through the sait water layer into fresh water laycrs at
much greater depths, depths of hundreds of feet below the surface.
In order to take care of the feeding of the Ovambos during the pro
tracted drought which hit ail of South West Africa during the period
1959-1960. it was necessary to construct roads into Ovamboland in
order to get large vehicles in, carrying large quantities of food to the
people. These famine relief measures, then, resulted in a transportation
development in the area; and so today much of the area which in 1956,
I found totally impossible to reach by automobile, is now reached over
quite good roads due to this famine relief measure. More of this is going on
in connection with the construction of the canals and reservoirs.
Mr. MULLER: Having dealt with the several regions, will you kindly
state your conclusions on your study of South West and its peoples?
Prof. LOGAN: Yes, we can <livide the Territory of South West Africa
quite clearly, I think, on the basis of what I have been saying here, into
two contrasting regions. Now the line between them is not a sharp one,
it is rathera broad transitional zone.
We have in the south an area that is poorly endowed as far as all
aspects of agricultural and pastoral activity are concerned. Its natural
resources are quite limited. The sole big resource is that of the diamonds
along the extreme southern coast. The area, otherwise, is lacking in most
minerai resources. lt is lacking in good, reliable precipitation. It has a
relatively poor vegetation. That anything has been done with it, I
think, is most remarkable. Vast portions of it, were they under many
other economic systems, would have been left totally unused and yet
they are today producing a modest income and in some cases, a fairly
good income, to the people who have developed them in the last 70 years
or so. SOUTH WEST AFRICA
The area is partly under White control, partly in Native Reserves.
The larger portion of it is under White control but this is the poorer area
of the Territory, as far as the physical endowments are concerned.
Now in contrast to this, there is the northern portion of the Territory.
The northern portion of the Territory has by far the best soil. It is the
only area of relatively reliablc precipitation and it is the only area of
enough precipitation to allow field crops to be grown successfully in
almost every year, perhaps 9 years out of 10. Here is the greatest area,
then, for agriculture.It is also the area of the greatest population con
centration, a rather stable economy at the subsistence level with the
beginnings of cash economy beginning to corne into it.
The southern part of the area has Reserves and European farms.
Between the two there is no difference in geographical endowment, that
is, the Reserves are not put on the worst lands, nor are the farms the
worst lands, they are equally endowed side by side within the same area.
The difference then between the Reserves and the farms is not a geo
graphical difference. The difference between the Police Zone, the Euro
pean-controlled southern portion of the Territory, and the area of the
north, the Native area, is very marked in its geographical differences,
the northern being by far the better endowed area.
Mr. MULLER:Professor Logan, I want to ask you a few questions
relative to the inhabitants of South West Africa; would you say that the
population of the territory is a homogeneous one?
Prof. LOGAN: I do not bclieve there is anywhere in the world a more
diverse one. There is the European group, with a high cultural develop
ment, there is the Coloured population, there is the Ovambo, the Oka
vango, the inhabitants of the Caprivi strip. the Kaokovelders, the
Herero, the Damara, the Nama and the Bushmen. This gives us a large
number of peoples within the area, each one of them very distinct from
the other one in most ways.
Mr. MULLER:Vlhat are the material differences between these popula
tion groups that you have mentioned, leaving aside for the moment the
European group?
Prof. LOGAN: Just discussing the non-European or perhaps limiting
it purely to the Native group, and leaving out the Coloured group in
between, there are great ethnie differences. Their basic cultures, their
religions, their traditions, their mores are very markedly differcnt from
one another. Linguistically they are completely different from one
another. There are two basically completely different languages within
the area: the Khoisan language of the southern portion (the Nama,
Damara and Bushmen language) is basically different in all of its fun
damental characteristics from the languages of the Bantu peoples. The
language differences between each of the individual groups within the
area-the ones I named a moment ago-are, in nearly every case, so
profoundly different that one group cannot speak to the other, there is
no way ofcommunicating in theirown languages between one another,
they cannot understand each other. The basic root of the Bantu languages
may be the same. but of course so also is the basic pattern between, let
us say, Italian, French, Spanish and Portuguese, and yet there are
considerable differences in conversing between those peoples, and the
Bantu ones differentiate as much as that. Aside from certain curious
exceptions, such as the Damara who speak Nama, none of the groups
are able to converse with one another within their own language patterns. WITNESSES AND EXPERTS
As far as the customs and mores are concerned, we have tremendous
differences inthe area. Just to take two totally different quite exceptional
examples, consider the contrast between the Herero and the Bushmen.
The Herero are a cattle people and ail of their tribal law and tradition,
their customs, including marriage, and a variety of things of this sort
are based upon the fact that they are a cattle people, that is one buys a
bride in cattle,there is a bride price in cattle paid. The fact that they are
a cattle people goes all the way through everything in their life. The fact
that they were nomadic people and that the men were warriors, and that
the women did other things and the children did other things, means
that today, following the same pattern, the men, as I indicated before,
are, so to speak, "unemployed warriors". The wholc pattern of the eus
toms and traditions and mores of the tribe is based on the cattle situa
tion.
By contrast, the Bushmen have no domesticated animais. As a matter
of fact most Bushmen bands have not even a <log,some Bushmen groups
are today acquiring dogs, but this is only when they corne to have a
suffi.cientlytable situation, so they can feed a <logduring times when
conditions are very bad, and so they have no domesticated animais
and consequently they set up a completely different set of patterns, of
customs and so on.
As far as their social conditions and their political organization (I am
not talking about politics, but I mean the framework of their structure
of their tribe or whatever it happens to be) are concerned, the Bushmen
stop at the clan, they do not go up into higher levels of tribal organiza
tion; they only vaguely recognize even their linguistic groups as being
a unity; basically they stay in much smaller groups than that.
On the other hand, the Ovambo-taking another example-have an
extrcmely strong tribal relationship, with all sorts of hierarchies of
individuals and political positions within the group, with tens of thou
sands of members within any one of the inclividual tribal units. And
so there arc great differences here, as far as the ethnies of the groups are
concerned, as far as the culture basically of the groups is concerned.
Mr. MuLI.ER: Are these groups similar in their stages of technological
developmen t?
Prof. LOGAN; No, once again there are the same sort of contrasts.
If you take the Bushmen, other than those which have been recently
stabilized at Tsumkwe, the Bushmen are at the lowest technological
level. Aside from a few arrow points that they always have which are
made of iron which have been obtained in trade with some surrounding
group, or today perhaps have been eut out of tin cans that th ~-have
obtained somewhere in trade, aside from this one item they make
things only out of bone, sinew, wood, stone and hides and skins, and
vegetable materials. nothing in the way of metals or anything of that
nature. In other words, they are still in a sense in the Stone-Age-if you
can use that tenninology, because most of them live in an area where
there is very little stone-but they are still in this level of culture, as
far as technology is concerned. They are at a hunting and gathering
level-they are nomadic and they do not ordinarily build houses, as
a matter of fact they do not even build huts. They build a sort of crude
shelter, perhaps a new one each day, as they move along, merely to
keep the sun off them if they are sleeping in midday or to keep the wind
off them at night. They build a sort of a windbreak and sleep huddled370 SOUTH WEST AFRICA
together on a cold night, under such a windbreak. They practise no
preservation of food, they kill an animal and then sit down and eat it
before the meat spoils. In hot weather this may mean they have to eat it
within 24 hours, and so they are used to eating prodigiously and then
going for very long periods without eating. They have only the simplest
of tools and they have very little for clothing, getting along with usually
various skin aprons and nothing else, except in colder weather when they
may put a hide or a skin over their shoulders.
By contrast, the Hereros are cattle people, now quite sedentary.
They have adopted European clothing; they have donkey carts; they
have sometimes even ordinary European-style trucks or lorries; many
of them are today selling cream from their cattle herds, and in return
are getting regular cash incomes. They have always been at a consider
ably different technological level from the Bushmen, they have had fixed
houses, fi.xed villages and have been quite definitely a stabilized group;
their fi.xed village maybe being only permanent for a year or two, but
still with houses and so on; a quite different technological development
from the other group.
Mr. MULLER: Professor Logan, are the economic bases of the different
groups whom you have mentioned in South \Vest Africa similar?
Prof.LOGAN:No.Once again there aregrea tcontrasts between the various
groups. I have already mentioned considerable discussion here about the
Bushmen living at a subsistence level, an elemental level, with no cash,
practically no trade, practicallynot even any barter of goods or services.
In contrast the Ovambo and the Herero are more highly developed on
the economic basis. Many of the Ovarnbo and the Herero work for cash~
the Ovambo in the movements out of the area of Ovamboland to work
as contract labourers, the Herero, living in the towns such as Windhoek
and other places in the Territory, working as employees, of Europeans
usually, for cash.There are quite a number of both Ovambos and Hereros
who have begun to run businesses for themselves. By this I mean busi
nesses in the European sense of the term. They have become engaged
in trade and are working as traders, both in the Reserves, in the locations
or townships for Natives within the Police Zone, and in the Native terri
tories ofthe north. Many of them, on the Reserves where they have
large herds of cattle, sen cream and the live animais for meat and the
hides of animais and so they get a cash income in that way. Sometimes
this gets quite considerable. For example, I was on the Reserve Otjituuo
in May, only two months ago, at which time the cattle sale was going on,
a cattle auction, the cattle being sold to a large number (I would say
approximately 40 to 50) of European bidders, bidding for the animais,
and in the two days of the sale, 60,000 Rand, that would be f30,ooo, of
sales were made. This represents a considerable amount of cash coming
on to a Reserve from outside.
There is a considerab1e range of development in various ways possible
among these different groups and yet the differences between the dif
ferent ones make different types of development possible and likely. But
today there certainly is a very markedly contrasting economic base
between the different groups.
Mr. MULLER: From what you have been telling the Court, will you
state your opinion as to whether the different population groups can be
treated uniformly for purposes of economic development and administra
tion? WIT?-;ESSES AND EXPERTS 371
Prof. LOGAN: As I just indicated here a moment ago, there are such
profound differences between the groups today that it is absolutely
necessary, in my opinion, to recognize these differences. To ignore these
differences produces, or would produce, great hardship for many of the
groups and for many of the individuals within the groups.
You must recognize first of all, I think, that there is a profound dif
ference between the European and the non-European. Then, in exactly
the same way, within the non-European group there are very marked
differences and to try to apply the same kind of practices, the same
kind of administrative techniques, to one that is applied to another
might be very detrimental to one group or the other. Rather, it is quite
necessary to tailor the attempts to advance each of the individual groups
to the immediate needs of that particular group, rather than to try to
spread one type of blanket development over all of the groups.
I think one has to differentiate between a situation in South West
Africa and that in somc of the other areas of the world and the way
in which we often look at things. I am an American and I am somewhat
familiar with the situation in some parts of America, and the difference
between the Negro and the White in the United States is not nearly the
same situation as that which exists in South \Vest Africa. I grew up in
a quite tolerant, non-segregated, part of the United States; I am not a
Southerner that might have some other influences brought in. The back
ground that I grew up in and in which my children have grown up since
we have lived in California is that of a completely mixed society. But
this mixed society has the same basic cultural pattern. There are minor
differences in the cultural pattern, but not profound ones. There are
great similarities in the economic base, there is no linguistic problem.
The Negro and the Amcrican speak the same English in America-slight
differences in dialect, but basically the same thing-we are certainly
able to communicate with one another. The differences in the United
States have corne to be basecl, pretty largely, on the matter of colour,
not on ail sorts of customs and mores and traditions and religious dif
ferences that go very deep into the past, and not based on existing
great differences in economic pattern-a totally diffcrent economic
system does not exist for the Negro that exists for the White in America,
the two are very comparable.
But in South West Africa it goes very much deeper. There is a total
culture differcnce. Ail aspects of the culture are differcnt. So it is not
just a matter that one group is one skin colour and one group is another
skin colour, there is instead a very great difference in the economy;
there is a difference in the basic philosophies of the different groups;
there is a linguistic difference so great that they are unable to com
municate with one another; cach has its own mores, cach has its own
religions; each has its own basic traditions,and so the difference is very
great.
Mr. 1\fULLER: Do the various groups in South West Africa identify
themselves as separate groups?
Prof. LoGA~: Yes, thev distinctly identify themselves as separate
groups. They not only identify themselves as separate groups but they
want to be treated separately in most cases. They do not mix together to
any great extent.
This is evident in all sorts of ways and at all sorts of levels. You look
on the street: you will not see a mixed group of Hereros, Damaras and372 SOUTH WEST AFRICA
Namas walking together; on the street you will see a group of Hereros,
and you will see a group of Namas, and you will see a group of Damaras,
but they are not associating together in any mixed fashion. It is only when
they are actually employed side by side that you see them side by side,
but they separate immediately on leaving the employment, whether it
be in a permanent way or just leaving at the end of the working day. I
believe all of them want self-identification. Each one of them speaks of
himself as being a such-and-such, the same as I speak of myself here as
being an American and others recognize themselves in this room as being
of other national groups. lt is the same thing in this case-each one
represents and considers himself to be a member of a distinct group, a
separate group.
This is sometimes a friendly difference, as between the Nama and the
Damara; sometimes it is quite an antagonistic difference, the groups do
not get along well together; if they are mixed thoroughly, then all kinds
of friction may develop. One goes onto a farm in which there are Herero
and Damara-one will fmd that the group of buildings that they have
built, huts that they have built to live in, wiII be distinct from one an
other, very often on opposite sides of the European farmer's residence;
one side there will be the Damaras, on the other side there will be the
Hereros' houses. When the locations were set up, such as at Katutura in
Windhoek that I spoke of here yesterday, there were separate areas set
apart for each of the different groups. You might say that this was some
thing that was forced upon them by the European in setting it up; Iam
quite sure that they would have separated themselves had they all been
mixed together. This I sayon various bases-for example, when the first
church was completed at the Katutura township it was occupied in the
tirst service by Damaras, whereupon the Hereros refused to use it, be
cause the Damaras had already been in it, and it was necessary to build
a second church, of the same denomination, for the Hereros to occupy.
They would not go into the same church that had already been occupied
by, as they considered, an inferior group.
Now what the Administration in South West Africa has attempted to
dois to treat each of these groups separately, so as to not ride roughshod
over the feelings of these different groups towards one another, because
there is no point really in trying to force one group to be like another
group. It was felt much better to allow each group to develop in its own
way, and then to develop it efficiently in that way. To try to apply blan
ket techniques all the way through to them would be a great waste of
effort: some groups would not need this, other groups very definitely
would, and so if a particular measure was to be applied to all groups
equally it would be quite a wasted effort. Rather there is an attempt to
treat each one separately which often, of course, means at great expense;
to, for example, print an elementary textbook in each of the Native lan
guages is obviously much more expensive than to print a textbook in one
language and make all of them Ieam that language, but this is not condu
cive to education in the best way; more students can be gotten into the
first years by carrying out instruction in their own language than by
attempting to force them ail to converse in one language.
With great expense, and I think great patience, a considerable amount
has been clonein developing the Native groups. At the present time there
exists in South West Africa a peaceful co-existence between the diffcrent
groups, and this is the first time (from19IO onwards) that there has been WITNESSES AND EXPERTS 373
peaceful co-existence. Previous to that, through ail of history, there has
been nothing but antagonism between the various groups.
This permits each group to have an cqual opportunity, but a different
kind ofopportunity-an opportunity tailored to his own particular needs
and his own particular desires.
To permit totally equal opportunity for ail groups to do everything
that they wished would result in exposing many of the groups to very
unequal competition. This competition would corne, of course, from the
more advanced groups. This might be competition from the European.
For example, I mentioned that the Hereros and the Ovambos are today
carrying on trading within their Native areas, whether it be the Reserves
of the south or whether it be the areas of the north. To open this to equal
opportunity would mean that the White man would be allowed to corne
into the area; if he came into the area in an uncontrolled way (there are
traders in the northern area today, but they are very severely controlled
by the Administration in regard to their prices and their bargaining and
their extension of credit, and everything of this sort, even in regard to
their personnel that they employ). Kow if this was thrown open to equal
opportunity, all sorts of avaricious entrepreneurs would move into the
area, and in a short time the existing system would be a shambles, and
the Native traders, who are today able to compete quite well with the
permitted White traders in the area, would be totally out of business.
This would also work out in various other ways: for exarnple, if in ail
ways the thing were opened up to complete equal opportunity, it would
be only a very short time before either one of the two more important
groups of Natives in the area would dominate the others; this would be
either the rather outspokcn, aggressive, fonvard Hereros or the much more
numerous Ovambos. If things were done on a voting basis, obviously the
Ovambo would outvote the Herero many times. If, on the other band, it
was done in a business way, or something of this sort, the much more
opportunistic Hereros would probably dominate the Ovambo.
But the even worse thing to consider is what would happen to the
Bushmen, to the Damara and to the Nama, to the Kaokovelders and
people of this sort, who would be exposed to a very serious situation of
encroachment upon their rights in all ways by the other tribal groups,
Consequently it cornes to be a matter of applying controls over the whole
situation and allowing opportunity as far as possible, but not dcveloping
things in the same way for all of the tribal groups.
Mr. MULLER: Do you considcr that measures of differentiation to pro
tect the various groups are necessary?
Prof.LOGAN: Yes. I think there are protective measures in existence
today that have to be continued. The first of these, I think, are protective
measures to reserve the lands of the Natives-this is to reserve the lands
of the Natives against the Whites. I have just painted a quite nice picture
before the tea recess of the northern part of the Territory.
There are a great many White farmers on rather drought-stricken farms
in the south who would be delighted to move into the Okavango and push
a group of Okavango Natives out of the area. They would do much better
with the arca than is being done today: for example, they would imme
diately start irrigating and they would produce very high productivity
within the area. This is being encouraged today by the Administration,
but not for Whites, being encouraged instca<l for the Natives to carry on
irrigation agriculture. There is a scheme, at the present time, at Vungu-374 SOUTH WEST AFRICA
Vungu, near Runtu, where a small area is being irrigated as a demon
stration to the Natives of what can be done. This is no experiment, it is
known very well what crops can be raised in the area, and they are al
most multitudinous, provided irrigation water is put on. Now, today, the
encouragement is being given by the Administration, to the Okavango
Natives, to enter into irrigation agriculture. \Vere controls to be pulled
off,we would fmd that, instead, we would have some European irriga
tionists inthe area very quickly.
The same is true of Ovamboland. Much of Ovamboland is very fine
agricultural land. If it were not under control, certainly many \Vhites
would move into the area and take it over.
A second thing, I think, that has to be controlled and protected, is a
thing I have r.nentioned already, the matter of trading interests. There is
only a nascent trading business, a beginning trading business among the
Natives, with the Natives. This is just in its embryonic stages, it has only
been a thing of the Jast 15 years or so, in most cases. Given another 15
years, we ought to have a rather considerable merchant class, I think,
started, within the Ovambo particularly, and to a very considerable ex
tent, among the Herero. To remove controls of this sort would leave this
wide open for others to move in and destroy this thing that is beginning.
It is necessary, I think, to control population movements within the
area. You see, to many of these people, the city becomes the same goal
that it has throughout the Western world. We have had everywhere
throughout the Western world the abandonment of agricultural areas and
the influx into cities, because of the manv attractions of cities. We have
seen this in England and in Western Eù'rope, we have it in the United
States, it is developing in many other areas of the world. In the recently
independent Republics of Africa, there has been tremendous flocking to
the larger cities.
AUof this causes a very serious problem-a very serious problem from
two sicles-a serious problern from the sicle of the city itself, which is
faced with a housing shortage, a sanitation problem, a health problem,
and a very serious problem from the side of the Native too, or the person
coming into the city, whoever it is. This is a problem of employment, of
supporting himself. First of ail, it must be realized that he is probably
an untrained person, coming frorn a rural area into a quite complex and
intricate urban situation. He is not skilled and, therefore, he can only do
unskilled labour until he is trained, and if there are a great nurnber of
such people, then they corne to create a terrible problem of unemploy
rnent and, of course,then of support.
In order to try to prevent this sort of thing, there is the attempted
influx control, of population movement control, so that the cities will not
corne to be inundated in a tide of humanity flooding in because of the-so
to speak-bright lights of the city area, the desires for city living andso on.
At the same tirne, there is the attempt to make the Reserves more
attractive to them, the Native territories more attractive to them, by
introdncing therein a better way of life, and that is the basic atternpt
being carried out at the present time.
Finally, Ithink that the really, perhaps most important, ofall of these,
is the need to protect and to allow to develop, the traditional institutions
of the people. I am not thoroughly convinced that our Western way of
life is absolutely ideal (we seem to have a few flaws in it from time to
time) and perhaps some of the Native institutions are as good as ours. WITNESSES AND EXPERTS 375
I do not think there is any crying need to abolish these totallY., and to
superimpose upon a group of people a totally different way of hfe. There
is a lot of dignity, there is a lot of common sense, there is a lot of self
respect, thcre is a lot of good, in a lot of the various types of Native
tradition and culture. To wipe this out by superimposing a Western way
of life instantly upon them, can very well bring about a rather chaotic
situation, a deculturized society. We have seen this in many areas. We
have seen it whcre groups have flocked into cities, for example. We see it
where we attempt to force, for example, an American or European way
of life upon the American Indian. It often has resulted in a personality
disintegration, insocial disinte6'Tation, alcoholism, things of this sort.
Now perhaps the better thing to dois to permit the original traditional
institutions to remain and then to develop, within the framework of the
traditional institutions, something in the way of a better way of life from
the practical point of view, from the very materialistic point of view, ta
give them better food, to give them health services, to educate them, but
to educate thern still within the framework of their old tradi tional society;
and the modern ideas can corne in gradually, but not be suddenly forced
upon them. [ emphasize, perhaps rnost importantly, "forced upon thern",
that is, to let the idea corne gradually, but not to impose a new way of
life instantly upon them. So, in each case then, it is a matter of allowing
to develop the individual group within itself, rather than to force a dif
ferent type of culture upon all of the individual groups.
l\IrMULLER:One final question, Professor Logan. What, in your opin
ion, would happen if these measures of protection and control that you
have refcrred to, were to be done away with, in South \Vest Africa?
Prof. LOGAN:\Vell, I think probably what I have said during the past
fcw minutes has sornewhat led up to this: that to remove the controls
would result in the domination of many by a few, would perhaps result
in the subjugation or almost the obliteration, of some of the existing
tribal groups, it would rcsult, I think in many cases, in a reversion to an
old way of life and that was a way of violent antagonisrn and frequently
ofwarfare.
The econorny, as it has been developed, both on the European basis,
and on the Native basis, would, to a large extent, fall apart. In other
words, what I would visualize myself, ifail controls were to be abolished
in the area and all differentiation between groups ignored, I am afraid a
rather chaotic situation would develop.
Mr. ).fuLLER:Mr. President. I have no further questions to putto the
witness.
The PRESIDENT:Mr. Gross, would you wish to cross-examine?
Mr. GRoss: Yes, I would, Mr. President. I shall endeavour to do so
with respect: for the tirne requirements. There may be some difficulties
to sort out, particularly the answers to the last questions and the rather
lengthy responses, and it may not be possible, therefore, to include those
within the range of the cross-examination, which I should like to com
mence now, with your permission, l\frPresident.
Profcssor Logan, in your testimony yesterday, you defmed geography,
I believe, as the relationship between man and the land. Is that not
correct?
Prof. LOGAN:Yes, that it is correct.
Mr. GRoss: And you said also-1 refer to page 337, supra, of the ver
batim of yesterday, which I shall ...376 SOUTH WEST AFRICA
Prof.LOGAN: I do not have the verbatim.
Mr. GRoss; I wiB quote to you, and I will cite the page in each case.
Mr. President, if the witness wishes to have a copy of the verbatim ...
The PRESIDENT:I think the witness may leave hirnself in the hands of
bath the Court and of counsel who have exarnined him.
Mr. GRoss: Thank you, sir. In the verbatim of yesterday (which I shall
refer to from time to time)-7 July 1965-at page 337, supra, you said
that it was necessary "to know about , .. the stage of material develop
ment of these people" (this was parenthetically)-I stop quoting now
in respect, I think, of your analysis of what was involved in the study and
considerations germane to the field of geography in general and in partic
ular, your own analysis of the local situation. Is that correct?
Prof. LOGAN: Yes, that is correct.
Mr. GRoss: You said that you were "also interested in the economic
phases because the whole basis of economy is an integral part of the study
of the geography of an area". I remind you that you have said that; that
is correct to your recollection, is it, sir?
Prof. LOGAN: Yes, that is correct.
Mr. GROSS:And you said also, on the same page: "The geographer
focuses upon the land ... the anthropologist in man. In each case we
are an integrated discipline, in that we draw upon ail of the surrounding
fields for a greatart ofour knowledge ... "
Prof. LOGAN: I think that should read "integrative".
Mr. GROSS:Integrative discipline.
Prof. LOGAN: Yes, we are drawing upon other fields.
Mr. GROSS:So that in your consideration of the problems with which
you were dealing and the conclusions you reached concerning them, it is
fair to say, is it not, that you took into account economic phases of the
situation in the various parts of South West Africa tha tyou studied?
Prof. LOGAN: Yes, to the best of my abilities.
Mr. GRoss: And that this included the southern sector-what you refer
to as the Police Zone-as well as the other areas?
Prof. LOGAN: Yes, certainly.
Mr. GRoss: And particularly in respect of the southern sector or Police
Zone, that included also the areas outsîde of the Reserves in that sector,
did it not?
Prof. LOGAN: Definitely.
Mr. GROSS:And you said also, in your testimony, at page 339, supra,
that you "stayed on and lived upon European farms in each of the basic
areas ofthe country". That is correct, is it not?
Prof. LOGAN: Yes, that is correct.
Mr. GROSS: And those farms, I believe, did they not, included a certain
number of farms in the Police Zone or southern sector, outside the Re
serves?
Prof. LOGAN: Yes, well there would not be farms anywhere else.
Mr. GROSS: There would not be White farms anvwhere else?
Prof. LOGAN: That is correct, yes. •
Mr. GROSS:There are farms in the Reserves, are there?
Prof. LOGAN: \Vell, it depends what one calls a farm. In South West
African terminology, a farm is an area of land that is allotted to a partic
ular European individual, as far as I know, always a European individual,
and that this bas certain prescribed boundaries surrounding it, and is bis
own persona! development. In contrast to this, on a Reserve, the land is WITNESSES AND EXPERTS 377
allocated to the tribe or a portion of the tribal unit, and then is adrnin
istered by the tribal group, a Reserve Council ordinarily handles it. Then
within this, there are not any prescribed boundaries allocated to an indi
vidual tribesman, instead they graze by agreement with one another, and
so this would not be a farm, in our ordinary western sense of the term,
I think.
Mr. GROSS:Thank you. If Iunderstood you correctly, in the southern
sector of the Police Zone outside the Reserves, the word "farm" is syn
onymous with the phrase ''White-owned farm".
Prof. LOGAN:Yes, with the exception of the Rehoboth territory where
there are Coloureds owning farms in the same way as the Whites else
where, that would be the only exception.
Mr. GROSS: There are approxima tely how man y persons classified
as Whites in the southern sector outside the Reserves?
Prof. LOGAN: There would be practically the White population
of South West Africa, which if I am correct, runs around 70,000
now.
Mr. GROSS:That would be my understanding as well, approximately.
Prof. LOGAN:I do not have a good mind for figures and I would not
be able to quote right here the population, but it would be something
of that sort.
Mr. GROSS:Yes, I think the record demonstrates that; I just wanted
to establish it in this context. I do not want to hold you to exact numbers.
Prof.LOGAN:Not all of these would be farmers, because there will be
the towns-people, but the point I was in a sense making, is that there
are virtually no \Vhites living on the Reserves or in the northern terri
tories, aside from a small administrative personnel.
Mr. GROSS:There are approximately 70,000 or so persons classifi.ed
as Whites, and how many persans in the same area (that is, in the south
ern sector outside of the Reserves) are classifi.ed as non-Whites-can
you tell the Court?
Prof. LOGAN:Again I cannot quote the figure-! would guess it was
perhaps 120,000 or something of that sort.
Mr. GROSS:That I think would be about the ratio. For the purposes
of my forthcoming questions I wanted to have these approximations
in the record at this point. Going back to your testimony to establish
the ambit ofyour study and analysis, and therefore perhaps your con
clusions, you said that you "do not mean to cxclude politics from cul
ture". I think you said that on page 343, supra, of the transcript of yester
day. Shall I read the entire sentence to you or do you recall what you
said in that respect?
Prof. LOGAN:I think I recall what I said: the implication I meant
was that we study in geography most aspects of the culture of a group,
and then you asked me specifically about politics, about the political
situation, and I said that this was not in my field, and that while I do
not excludc politics from culture, I do not here study politics particu
larly.
Mr. GROSS:I think then perhaps just for the sake of clarity, with the
permission of the President, I should like to read one sentence which
may otherwise leave this colloquy somewhat obscure. I then asked you,
sir,the following question at page 343, supra, of the verbatim report:
"Did you have discussions, extensive or otherwise, with respect
to the political or economic relationships of individuals to the378 SOUTH WEST AFRICA
society, or were your discussions primarily centred on the relationship
between man and land?"
And your answer, according to the verbatim, subject to your correction,
is:
"I have not held any political discussions to any extent with
anyone; I am not interested particularly in politics per se, and con
sequen tly I am not an authority on the politics of the Territory,
and have not really been seriously interested therein. As far as the
economic aspect is concerned, yes. As far as the cultural aspect
by this I do not mean to exclude politics from culture, but at any
rate the study of the culture of the peoples, whether they be the
Europeans or the Natives, is very mucha part of my field of study.
Consequently I have talked with and observed the varions culture
groups within the area quite intimately. This means having talked
with at close range, over considerable periods of time, Natives as
well as Europeans."
That is the full context, Mr. President.
Prof. LOGAN: I would stand by that, if there is any question.
Mr. GROSS:It is just that I wanted to fix that in your mind, so that
you should have the full context. Also, in respect of the question I asked
you, at page 343 and I will read it to you:
"And did you, Professor Logan, regard that it was a part of your
study and analysis, from any technical or scientific point of view,
to consider the questions involved in limitation of rights or freedoms
of individuals, or any aspect of the relationship between man and
society on a political or individual basis?"
And your answer according to the transcript on page 343, was: "Well,
as I just said, I am not interested in the political aspects, and I have
not gone into that." And then I think it is a fair paraphrase of the rest
of the paragraph that you said that you were not able to recite, or did
not know thoroughly, the laws and regulations involved in the relations
between Natives and Whites, or the types of laws in the area, that you
were not in any way an expert on legal aspects, and that you are, I will
read this:
"... quite aware, however, of the rights and privileges and the limi
tations thereon, as anyone living in and observing critically and
carefully as a society ordinarily is, and consequently I think I can
talk with a fair degree of certainty in regard to how much freedom
or lack thereof there is on the part of the Native group in South
West Africa".
That is at page 343, supra, of the transcript. Do you recall, sir, that
tha t is substantially correct?
Prof. LOGAN: Yes that is correct.
Mr. GRoss: I would like just to ask you one more question in this
general range of the setting in which your studies and analysis of con
ditions in South West Africa took place, and also of your description
of various techniques or disciplines which enter into this area. That is
by way of background ta my question. According to the transcript on
page 344, you said that economic and sociological-rneaning I think, in
terests-"begin[s] to get more into my realm". This is, for your comment,
quoted-would you explain tha t please, sir? WITNESSES AND EXPERTS 379
Prof. LOGAN: I think you had bctter give me the sentence before.
Mr. GROSS: I would be very glad to, sir. I asked you for clarification,
and I think that I had better start here, following the quote I just read
into the record with regard to your answer to my question about "an
alysis or considerations of questions involved and limitation of rights or
freedoms". You then gave the answer which I read a moment ago. Then
I said:
"And would your observations and opinions on that subject re
flect scientificr technical observations or analysis?"
And you replied at page 343, supra:
"No, they would not reflect scientific or technical analysis. They
would be that of a person who has lived in the area, who has observed
it carefully and keenly as a part of obtaining the total background
of the area, but in order to report scientifically or technicaUy upon
it, I am afraid I would have to have a legal background or a poli
tical science background, and I do not have this; I would not set
myself upas an expert in those fields."
And then I asked you, sir:
"Those fields being the political, economic and sociological fields?
I just ask you for clarification, sir."
That was my question-your answer was:
''No, I said political fieldsd legal fields; when it cornes to eco
nomic and sociological fields, this begins to get more into my realm,
and there on at least a number of facets I think I can testifv with a
fair de1,1Teeof certaintv and with a fair degree of technical know-
ledge." •
It was in the context of that response that I asked you whether you could
perhaps clarify or elucidate for the considcration of the benefit of the
Court, the meaning of the phrase: ''When it cornes to economic and
sociological fields, this begins to get more into my realm." Would you
explain that, sir?
Prof. LOGAN: WeU I mean, as I had said earlier, I was not concerned
with and not particularly interested in the political aspects, and then the
question was raised in regard to economic and sociological, and I said
that at this point I begin to be interested; the point being that the rela
tionship between man and the land, which is the focus of my particular
field of interest, is not borne upon too greatly by the legal aspect or
the political aspect, but much more so by the economic and the sociolo
gical aspect. Furthermore, I am not trained, in the first two, in the legal
and the political, I am trained primarily in the geographical, and in the
geographical we reach out into the fields of economics and sociology, not
absorbing ail of those fields by any means, but drawing from those fields
such aspects of their branch of knowledge as are appropriate to the rela
tionship between man and the land and the dcvclopment of man in the
physical environment.
MR. GRoss: Now I would like then, in the context of the dis
tinctions yol! have been drawing or seeking to present to the Court,
with respect to such generic terms as "politics", "economics", and
"sociology", to ask what relevancc those distinctions may convey, or
what you intend to convey by those distinctions, with respect to the SOUTHWESTAFRICA
following statement which you made in response to a question, at page
343, supra, of the record, in which you said:
"... I can talk with a fair degree of certainty in regard to how
much freedom or lack thereof there is on the part of the Native
group in South West Africa".
Were you excluding-if I may break this down to aseries of short ques
tions, hoping for short answers if that is possible and fair-when you
used the phrase "freedom or lack thereof" in that context are you exclud
ing political considerations? What elements do you take to comprise
the concept of freedom or lack thereof, in that sentence?
Prof.LOGAN:I would say it was freedom to move about, freedom to
carry on one's way of life as already established, freedoms of this sort.
I would probably exclude basicaHy pofüical freedoms, because again I
repeat, I am not an expert on the political aspects and I would not want
to testify before this Court on the matter of the political freedoms in
South West Africa, because I have never studied it. I do not feel com
petent in it.
Mr. GROSS:Therefore would it be fair to say that you wish the
Court to understand that when you, during your testimony, referred
to the imposition of controls, or the releasing of controls, or the wiping
out of controls-phrases of that sort-that by "controls" you do not
refer to legal controls, or controls of a political nature? Is that what
you mean? .
Prof. LOGAN:No. I think the controls obviously have to have a basis
in law and so they would be legal controls and I would continue to
include them but don't ask me, please, to cite chapter and verse or to
cite the Statutes, because I am not aware of the Statutes. I have never
studied the matter from the Jegal point of view. I do not know about
the Mining Law of 1920 something or other. This sort of thing I am not
aware of. I am aware of its consequences, I am aware of it in its general
ities,but I cannot quote the specifi.csof it at al!. That I would leave to a
legal mind, which mine is not.
Mr. GROSS:And the same thing would apply to the political aspects
as well-a political mind?
Prof. LOGAN:To the political aspects, as far as it Îs a matter of politics.
Now, I certainly am aware of the difference between the political in
stitutions of, say, the Ovambo, in contrast to the political institutions,
or the lack thercof, of the Bushmen. Political institutions become a sort
of sociological institution in a sense when we are talking this way. But,
as for the political movements within the country today, the different
political parties within the country today, of these I am not cognizant
to any extent. I wou1d not want to testify on them.
Mr. GROSS:Then, shall we discuss for a moment this question in
terms of the relationship of the individual to the society, rather than
in terms of political groups or movements? The individual, you would
feel or concede, is a political being, lives in a political society and has
a political relationship tothat society?
Prof. LOGAN : Yes.
Mr. GROSS:And is the object of that society normally to confer a
certain measure of political freedom or discretion upon him, normally
speaking?
Prof. LOGAN:Not in ail parts of the world at ail times, no. WITNESSES ANDEXPERTS
Mr. GROSS:Can you think of a society in which no degree of political
freedom or political liberty is reposed in the individu al?
Prof. LOGAN:I think we have had many such societies in the past,
yes.
Mr. GROss: We have had slavery in the past, have we not, sir?
Prof. LOGAN:Yes.
Mr. GROSS:I am talking about contemporary society. Do you wish to
qualify the answer or did I misunderstand you perhaps?
Prof. LOGAN:Weil, no, I think in our modem world today there are
some societies in which the individual has practically no political freedom.
Mr. GRoss: Can you name one?
Prof.LOGAN:I don't want to, sir. No, I would prefer not to.
Mr. GROSS:\Vell, will you withdraw your answer if you do not care
to specify what you had in mind?
The PRESIDENT:I don't think so, no, Mr. Gross. If the witness declines
to answer, ifhe says he does not desire to answer, the Court will note
what he said and the value of his answer will be judged accordingly.
Mr. GROSS: Yes, Mr. President. Thank you, sir-I just gave the
witness the opportunity, if he wished to exercise it, to withdraw the
answer.
Retuming to the statement that you could talk with a fair degree of
certainty in regard to how much freedom, or lack thereof, there is on
the part of the Native group in South West Africa-please ask me to
clarify the question if you find it too general, Professor Logan-do you
consider that in your responses to the questions addressed to you by
my distinguished colleague, Mr. Muller, that you have expressed opinions
with regard to how much freedom, or lack thereof, there is on the part
of the Native group in the southern sector outside of the Reserves?
Prof. LOGAN:I don't think I have been asked the question by Mr.
Muller as to how much freedom there is, or perhaps I misunderstand
your question.
Mr. GROSS:\Vell, I can repeat it if you wish me to, sir.
Prof. LOGAN: I think you had better, perhaps, yes.
Mr. GROSS:With the Court's permission-can you say whether or
not, in any of the responses you gave to questions addressed to you
by Mr. Muller, you expressed an opinion, or intended to express an
opinion, with regard to how much freedom, or lack thereof, there is
on the part of the Natives in the southern sector outside of the Reserves?
Prof. LOGAN:No, I do not think I was asked that question and I do
not think I answered it. If you wish to ask it I shall be glad to reply
to it.
Mr. GROSS:Thank you sir, I will ask it if I wish. The answer that you
gave was that this question was not within the range or scope of any
of the answers you gave to Mr. Muller-this question of the rights and
freedoms of Natives in South \Vest Africain the southern sector outside
the Reserves-is that correct?
Prof. LOGAN: Yes, I tbink that is correct, but I repeàt that I will be
glad to answer the question if it is desired. ·
The PRESIDENT:You must answer the questions put by Mr. Gross.
Mr. GROSS:I think that invitation will be accepted in due course.
When you said (in one of your statements which I quoted from yester-
day's verbatim with respect to the economic phases) "because the
whole basis of economy is an integral part of the study of geography SOUTH WEST AFRICA
of an area"-that I quote again from page 337, supra, I should like
to ask you whether, in considering the economic basis of the economy
of the southern sector outside the Police Zone, you took into account
in your studies the role of the Native (the persan dassified as Native in
that area) in the "White economy" (as it is sometimes called in the
Odendaal Commission report) the role of the Native, in any definition
of the word you wish, in the economy.
Prof. LOGAN: Yes, I very definitely did.
Mr. GRoss: How would you describe to the Court what the role of
the Native in the so-called "White economy" is?
Prof. LOGAN: The Native in the White economy is distlnctly an em
ployee of the European, or \Vhite, farm owner, business man, industrialist,
or householder. The land, as far as the Territory outside the Native
Reserves within the Police Zone is concerned, is ail under European
ownership. The businesses are under European ownership. The Native
is therefore, wherever he is living or working, an employee of the White
business man or farm owner or householder, and so on. He is working
for wages plus, as I indicated before in discussing the farms, usually
a considerable amount of his subsistence, that is, in the form of rations,
clothing, housing, etc. This is true whether it be in an urban area,
normally, or whether it be on a farm. The ratio is usually, on a farm,
in the neighbourhood of perhaps four or five Europeans on the farm
to 50, or thereabouts, :Natives. This is not 50 employees, it is 50 in
dividuals living on the farm. Of this number, somewhere in the vicinity
of five or six are usually male employees as herdsmen, or people of that
sort, plus two or three people working as house servants, laundresses
and so on.
Mr. GROSS:Thank you. Are you finished, sir?
Prof.LOGAN: Is this sufficient?
Mr. GROSS:Well, I will ask you if I feel that the Court might possibly
benefit by further elucidation; the Court might do the same, of course, at
any time. ·
The question that I should Iike to follow the one I have just asked you
is whether or not, in your study of the economic base (first taking South
\Vest Africa as a whole, and then taking separately the southern sector
outside the Reserves) with respect to South West Africa as a whole, you
would regard the economic base of the Territory as a whole to be inter
dependen t for its successful functioning?
Prof. LOGAN: The entire Territory to be interdependent? No, I don't
think so. The southern Police Zone area, if it were carved out from the
rest of the area, could subsist very well on its own. Itis not dependent
upon the northern terri tories as a basic part of its existence. The present
European population in the area could exist very well without having
either the Native Reserves or the Native territories of the north in exis
tence at all-if they were surgically removed, so to speak.
Mr. GROSS:If that area were excised from the Territory, it could sur
vive and even thrive, according to your judgment?
Prof. LOGAN: Yes, I think so.
Mr. GRoss: \Votùd it be true in reverse? Would the areas of the Terri
tory that would remain after such excision be able to thrive in the same
sense?
Prof. LOGAN: They would be able to thrive in the same sense, yes. They
are basically still subsistence economies. They would suffer greatly from WITNESSES AND EXPERTS
the loss of health services, educational services and the cash income which
has enableclthem to raise themselves considerably above the fonnersubsis
tence level that was a pure subsistence level. But they could still exist, yes.
Mr. GROSS:On a subsistence level?
Prof.LOGAN:They would lower their level, but they would still exist.
Mr. GROSS:But would there be any prospect or hope of them rising
above a subsistence level under those circumstances?
Prof.LOGAN:I am afraid it would be very difficult for them.
Mr. GROSS:Would it be possible?
Prof.LOGAN:This is without any outside assistance of other sorts? Are
we operating in a vacuum, in other words?
Mr. GROSS:ln the same sense that you referred to the possibility of the
southern sector surviving and thriving as a unit~in that same sense, I
ask whether the areas outside the southern sector could survive and/or
thrive, except on a subsistence basis?
Prof. LOGAN:They would survive and continue to thrive on a subsis
tence basis. They would progress only with very great slowness and with
great difficulty and I doubt very much if there would be virtually any
progress.
Mr. GRoss: Now, specifically, for example, it has been established, I
think, in the record that approximately some 26,000 Ovambos are re
cruited for labour in the southern sector. Does your understanding corre
spond to that figure, sir, approximately?
Prof. Logan: Yes.
Mr. GROSS:Now, is the labour of those persons essential to the effective
functioning of the "White economy", as it is referrecl to in the Odendaal
Commission report?
Prof. LOGAN:I don't necessarily agree with everything in the Odendaal
Commission report, and this is perhaps a case in point.
Mr. GRoss: May I correct the record, sir, just so that the answer to that
exchange will not be misunderstood. My reference to the Odendaal Com
mission report merely related to the description of the' 'White economy",
not to any of the substance or policy implications of what it said.
Prof. LOGAN:I think that the southern \Vhite economy would adjust
itself rather quickly to the loss of the Ovambo labour were this to be eut
off, and this would mean that the southern economy would have to mech
anize very rapidly and I think that the economic ba:;e is such that it
could afford to mechanize rather rapidly. I think that this would result
in the economy operating almost immediately if this were a sudden eut
off; within a year or soit would be adjusting itself well to the lack of the
labour. On the other hand this would cause a vcry serious problem in
Ovamboland because there would not be the flow of cash into Ovambo
land and therefore the Native economy of Ovamboland would suffer far
more than the European economy of the south.
Mr. GROSS:So that-if I understand you correctly~there is a very
definite înter-rclationship, economically, between the two areas?
Prof.LOGAN" T:here is a definite economic relationship between the two
area=i,but the southern area could get along without the northern, but
the northern would have difficulty because of its Jack of cash income if it
were eut off.
Mr. GROSS:Now, Professor Logan, I should like to ask you whether
the southern sector could "get along", as you express it, without the use
of so-ca1lednon-White labour? SOUTHWESTAFRICA
Prof. LOGAN:Well, we were first discussing only the Ovambo labour.
I think it could get along ...
Mr. GRoss: No, I am now talking about non-White labour, using that
phrase in the sense in which it is generally applied in the Territory.
Prof.LOGAN"T:he non-White labour employed on the farms, the labour
which is basically from the residents on the farms, this is still a rather
integral part of the economic pattern, and I think that this would suffer
considerably. Not the imported labour from Ovamboland, but the local
labour is an integral part of it and I think that this would probably
cause some difficulties at the outset.
However, I think it would be, again, a matter of only a relatively short
time before the European farmer, if deprived of that labour, would again
adjust himself, through mechanization and other things, to the point
where he again would get along without that labour.
Isay this on the basis of the contrast between the number of labourers
employed in South West Africa and the total number of individuals em
ployed in similar operations-cattle or sheep ranching-in the United
States, where there is no Native labour available (with quotes around the
word Native in this case) and where, consequently, the American ranch
owner has had to learn to do his own work from the beginning and does
not depend upon the Native labour at all. In the case of the South West
African farmer there is a very definite intent, very often, to fi.ndwork for
the Natives living upon the European farm.
Mr. GROSS:Professor Logan, can you think of any reason, or reasonable
basis, upon which, in your phrase, the farms should be "deprived" of
Native labour? Is there any basis upon which that should take place?
I was puzzled by your answer to my question.
Prof.LOGAN:Just this moment, you mean?
!\fr. GRoss: Yes. You said that if they were to be "deprived" of it-by
"deprived" did you mean simply if there was a law which prohibited it?
Prof. LOGAN:If the labour were removcd, I thought that was your
question?
!\fr. GROSS:Yes, well I just wanted to understand what you meant by
"deprived".
Prof. LOGAN:No, if the labour were removed from the farms by any
means, by any requirement.
Mr. GROSS:Such as by legislation?
Prof.LOGAN:By legal action, yes. .
Mr. GROSS:By legal action, orby total separation of the groups?
Prof.LOGAN:Alright, yes.
Mr. GROSS:In this context, do you understand the policy which you
observed, and which you perhaps learned about in discussions with per
sans in South West Africa-do you understand the policy being applied,
or suggested, to have in view the total separation of the Whites from the
non-Whites in this area?
Prof. LOGAN: I do not think that the total separabon has ever really
been envisaged. I am not the author of any of these reports and conse
quently I do not know what was in their minds, and I am not certain
consequently of the intent, but I believe that all of the plans that have
ever been envisaged have envisaged a continuing use of Native labour on
the European farms and in other ways within the White area of the
Police Zone. The matter is then up to the voluntary movement of the
peoples from the Reserves, which are inherently their land, on to the Eu- WITNESSES ANDEXPERTS
ropean farms, which are inherently today in White control, and I think
that all of the plans, as envisaged, envisaged the continuation of this
Native labour supply.
Mr. GROSS:For the indefinite future, so far as you are aware?
Prof. LOGAN : I think so.
Mr. GRoss: And you have never understood from any of your obser
vations-political, sociological, or cultural investigations-in South West
Africa that there was any policy proposed for total separation of the
races at anv time in the future?
Prof. Loc.AN:I do not believe so, no.
The PRESIDENT:Mr. Gross, I wonder if you could complete the picture
by asking the witness-I think it might be of assistance to the Court-the
numberof contract employees (I thinkitisabout 25,000)and oftherzo,ooo,
how many of those would be employed on the farms, or live on the farms.
Itmight complete the picture.
Mr. GROSS:Thank you, sir. With your permission, sir, may I borrow
your phraseology and put it in the form of a question to ...
The PRESIDENT:Please use your own, for more impact.
Mr. GROSS:Would you answer the question as if it had corne from me,
ifthe President will permit me to handle it that way?
Prof. LOGAN:Yes. Of the 120,000 Natives living on the farms, of course
this includes the women and children and therefore the actual number of
employees is very, very, much less than 120,000. I do not know the fig
ures, I am sorry.
Mr. GRoss: Perhaps we could endeavour to obtain those and supply
those for the record.
Prof. LOGAN:I would be glad to, yes.
Mr. GRoss: We would be prepared to co-operate to that end?
Prof.LOGAN:Yes, I think we could.
Mr. GRoss: Thank you. I would like to continue with the analysis, such
as you may have had opportunity to make in your studies in South West
Africa, with respect to the economic base and the relationship of the
Native, according to the census classification, to the so-called "White
economy". You have mentioned farrns. Now, did you have occasion to
examine, or observe, or discuss the matter with respect to industry, or
mines?
Prof. LOGAN:With respect to industry in a minor way-a very minor
way; in regard to mines, no.
Mr. GRoss: You have no views with respect to the role of the Native,
or the necessity of the Native, with regard to the ...
Prof. LOGAN:I have views, yes, but I did not conduct investigations,
no.
}Ir. GRoss: Did your views enter into your conclusions with regard to
the economic basis of your studies of the relationship between man and
land?
Prof. LOGAN:Yes, to some extent. Remember we are talking about
land, and when we start with industry it is much less of the land than
is the case when we are dealing with farms, etc. Therefore my interest
in the role of Native labour and things of this sort in the industry is
much less than my interest in the role of Native labour on the farms.
Mr. GRoss: Would you wish the Court to understand, in evaluating
your testimony and your views, that you do not primarily concern your
self with, or have not addressed yourself to, the problem of relationship SOUTH WEST AFRICA
of the Native to the industrial or mineral sector of the economy? Is that
a correct statement?
Prof. LOGAN: Well, remember that the numbers of people involved
in industry are very few compared to the total numbers involved in
agriculture and pastoral activities, and that the numbers involved in
mining again are relatively few, with exception of the diamond mining
of the extreme south.
Mr. GROSS: May I ask you, sir-when you say "relatively few", relative
to what?
Prof. LOGAN: To the total number of population, or to the number of
people involved directly in the agriculture or the pastoral activities.
Mr. GROSS: Are you referring to the total population of the Territory?
Prof. LOGAN: No, I am referring to the total population involved in
industry, in contrast to the total population involved in agricultural and
pastoral pursuits, or the number of employees in industry in contrast to
the number employed in agriculture and so on.
Mr. GROSS: I think we can clear this up readily to dispel any confusion
my question may have engendered. Referring to the southern sector,
outside the Reserves, we have established, I believe, that there is a total
permanent non-White population of approximately 125,000. How many
of that number, roughly, are engaged in farming enterprises or work for
farmers?
Prof.LOGAN: The number I cannot state.
Mr. GROSS: Percentage-wise?
Prof.LOGAN: Percentage-wise, yes. Probably 80 percent.
Mr. GROSS: Probably 80 percent. So that 20 percent. are presumably
engaged in some sort of gainful employment elsewhere, or otherwise, are
they not? Would they be then, normally speaking, employed in mines,
or industries,or domestic service, that sort of thing?
Prof. LOGAN: That is right.
Mr. GROSS: About 20 per cent.?
Prof. LOGAN: That would be my estimate.
Mr. GROSS: Now, with respect to that 20 percent., which at my cal
culation is roughly 25,000 people ...
Prof. LOGAN: Not employed, however-25,000 people dependent
upon, because remember we are including women and children ...
Mr. GRoss: I am talking about aU those to whom employment means
a living, not those to whom employment merely means working. I was
referring to the group that is dependent on a certain sector of the eco
nomic life. With respect to those 25,000, whose life is dependent, upon
non-agricultural functions in the southem sector, outside the Reserves,
have you then considered and analysed their role with respect to that
sector of the economy, in any respect?
Prof. LOGAN: Yes.
Mr. GROSS: In that context, have vou considered what the effect would
be upon the economy if those persons working in that aspect of the
"White economy" were to be removed, either voluntarily or otherwise,
from that economic context?
Prof. LOGAN: Yes. This goes right back tothe question I answered a
few minutes ago here, and I stand by it, that there would be relatively
little effect upon the industrial aspect~which includes the fish canneries,
etc.~and there would be an immediate effect, which would in time be
eliminated, upon the rural, pastoral, agricultural economy. WITNESSES ANDEXPERTS
Mr. GROSS:This is on the basis, essentially, of the automation of the
mines and of the industries, is it, sir?
Prof. LoGA;-;r: nd eventually the fencing and taking over of the grazing
aspect by controlled grazing, not by human herding.
11frGROSS:Would you regard this, in connection with your analysis
of the economic basis, as something in the nature of a major revolution
in the economic functioning of that area?
Prof. LOGAN: No, I think it would be merely a change, of not great
degree, which could be easily done by merely patterning it upon the
same sort of thing which is already in existence in many other parts of
the world. To operate a farm without the Natives upon it would be
exactly the same thing as is being done today in Australia, in Argentina,
in the United States, under very comparable conditions. To operate a
factory without a large number of manual labourers would be merely to
do the same thing which is being done today in Rolland, or in the United
States, or in many other parts of the world.
Mr. GROSS: This would not be characterized by you as a revolutionary
change?
Prof.LOGAN:No, Iwould not think so.
Mr. GROSS:Would it have any perceptible consequences upon the
human factor?
Prof. LOGAN:Well, it would have no great consequence as far as the
\Vhite group was concerned. It would have, of course, a tremendous
effect upon the disemployed Native, the disemployed contract labourer
from Ovamboland, the local man who suddenly was left-if this is en
visaged in your mind-with no employment and with no home.
Mr. GROSS:So when you disclaimed, or rejected, the phrase "revolu
tionary change", you were not thinking of the "revolutionary", or other,
"change" upon the individual employee?
Prof. LOGAN:Yes, that is correct. I was just talking about an industrial
revolution effect, that sort of thing.
ÎlfrGROSS: I did not want to mislead you.
Prof. LOGAN:No. It would have a revolutionary effect upon the in
dividuals concerned, yes.
[Public hearing of 9 July I965]
The PRESIDENT:The hearing is resumed. Professor Logan, will you
corne back to the podium?
Mr. MULLER:Mr. President, before Professor Logan proceeds with his
evidence, my learned friend Mr. de Villiers wishes to apply for permission
that certain witnesses be entitled to sit in Court.
The PRESIDENT:Mr. de Villiers.
Mr. DEVILLIERS:Thank you, l\.fr. President. The application concerns
Professor Groenewald and the Reverend Mr. Gericke. They will bath
testify later on ethical aspects of policies of differentiation and so forth
the attitudes of religions leaders and the churches in that regard-and
their evidence will not concern factual aspects, on which Professor Logan
is now testifying, or in respect of which Mr. Cillie, ifhe cornes on later
today, will testify, andI apply whether they could be allowed to attend
today's proceedings, Mr. President.
The PRESIDENT:Have you any objection, Mr. Gross?
Mr. GRoss: No, Mr. President.388 SOUTH WEST AFRICA
The PRESIDENT:Granted.
Mr. DEVILLIERS:Thank you, Mr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS:Thank you, sir. Professor Logan, during the course of the
proceedings yesterday, following a question which I had addressed to
you, there was an intimation from the honourable Court that it might be
of convenience to the Court to have certain information with respect, I
believe, to the number of non-Whites and persans classified as Natives,
in the southern sector outside the Reserves-the number in the rural
areas who presumably substantially all live on farms-do you have that
information this moming?
Prof. LOGAN:I am afraid I do not have the information in detail, no;
I believe it is in the Counter-Memorial, but I could not quote the popula
tion figures, no.
The PRESIDENT:I think you understand my enquiry-it is the break
down of the 125,000, as to how many are women, how many are children,
how many live on the farms and those who do not live on the farms.
Mr. GROSS:That clarifies a certain doubt I had, Mr. President. Thank
you sir. That information you will undertake to provide?
Prof.LOGAN:If it is so desired-I could not doit at the moment, with
out leaving the stand.
The PRESIDENT: It can be supplied through Professor Logan, or the
Applicants can supply it at some other time.
Mr. DEVILLIERS:As the Court pleases.
Mr. GROSS:May I continue, Mr. President?
The PRESIDENT:Certainly.
Mr. GRoss: Thank you, sir. Professor Logan, to set the framework
for a number of questions which I shall be addressing to you, I should
Iike to referto general testimony on your part with respect to the scope
of your study in the Territory within the field of your competence and
expertise-! will be very brief about this; I refet specifically to the ver
batim record of 7 July, and at page 337, supra, as I think has been brought
out, you stated that the whole basis of the economy entered into a study
of the geography of the Territory-that is correct, is it not, sir?
Prof. LoGAN:Yes, that is correct.
Mr. GROSS:And then, at page 344 of the same verbatim record-!
paraphrase-you stated that you had considered and analysed the
social implications and effects of the policies and practices affecting the
freedoms of individual persons-is that substantially your recollection,
sir?
Prof. LOGAN:I think so, yes.
Mr. GRoss: Now, keeping those in mind (because they will be of general
applicability and not necessarily related to each of the questions I may
propound to you}-first, with regard to certain factors relating to the
economic basis-the phrase you used was "basis of the economy"-you
testified on that same day, at page 352 of the verbatim record of 7 July,
that the central plateau area "is the real centre of the country economic
ally". The central plateau area, Professor Logan, is within the Police
Zone or southern sector, is it?
Prof. LoGAN:Yes, it is.
Mr. GRoss: Entirely so?
Prof. LOGAN:Yes, it is.
Mr. GRoss: For your purposes-for the purposes of this comment? WITNESSES AND EXPERTS
Prof. LOGAN:Yes.
Mr. GRoss: Yes. When you say it"is the real centre of the country
economically", is the Court to understand that that means that the
Territory as a whole, regarded as a unit, is interdependent with that sector
economically?
Prof. LOGAN:Yes, economically it is closely interrelated with that area,
with the exception of the purely subsistence economy areas which are of
course standing on their own feet.
Mr. GROSS:And the subsistence economy is what you testified to, as
I recall-correct me if I am wrong-as the subsistence economy which
is now struggling to become modemized or stabilized at a higher level
than subsistence-is that correct?
Prof. LOGAN:That is correct.
Mr. GRoss: So that it would be a fair interpretation of your answer,
would it, to say that the only basis upon which it could be said that the
Territory as a whole is not interdependent with the central plateau area
as the economic centre-that the only respect in which it could be said
that this is not a correct statement, that the Terri tory is interdependent
as a whole--would be on the assumption that the areas outside the south
em sector would remain at a subsistence level-is that correct?
Prof. LOGAN:I am not sure what you are saying, exactly.
Mr. GROSS:I just want to make certain that we understand each other
as to the apparent qualification, and I understood you to say that it
would be true that the Terri tory as a whole iseconomically interdependent,
subject to the qualification that that would not necessarily be true if
the Territory outside of the southern sector remained at a subsistence
level-is that correct?
Prof. LOGAN:Yes, that is correct.
l\fr. GRoss: I will try to make my questions somewhat less involved-
1 apologize to the Court. The question that suggests itself, then, is
whether you would elaborate on testimony you gave yesterday with
regard to the effect upon the Territory outside of the southern sector if
that should be either-1 will break my question down into two parts
excised frorn the Territory as a whole, or if the non-White population of
the southern sector, or a substantial part of the non-White population,
were to leave the area for any reason-would you be able to answer that
question?
Prof. LOGAN:Yes. If there was an excision of the area, shall we say,
for simplicity's sake, beyond the Red Line in contrast to the area of the
Police Zone-if there was a complete excision along the Red Line, then
the area outside of it would be forced to remain at a subsistence economy
or something very, very slightly above that, becausc trade out of it would
be virtually non-existent, and because the efforts that are being made
today to raise the economy of the area by the Administration's efforts
would be eut off, and the ability of the Native of the area beyond the
Red Line to corne within the Police Zone as a contract labourer, this also
would be lost, and so the supply of cash incarne coming in to that area
would stop. Therefore such excision would seriouslyinjure the area beyond
the Red Line, holding it at its present standard or lower than its present
standard-probably the latter; that is answering the first portion of the
question.
Mr. GROSS:If you will continue, sir.
Prof.LOGAN:Yes. Now, answering the second portion of the question:390 SOUTH WEST AFRICA
it is my firm belief, and this belief of mine I find I do not share with all
members of the South West African community, of the European group
of the community, but I believe that if this excision took place the indus
trial developments and other cmploycrs of labour other than the farmers
would very quickly and quitc casily adjust to the absence of the contract
labour coming in from outside, and that if the Native labourers now
employed within the Police Zone were forced by this excision to retum
to areas or to go to areas outside the Police Zone, this tao would be taken
care of by adjustments within the framework of the industries. On the
other hand, the farmers would undergo a period of considerable difficulty
until, after some several years probably, they had adjusted their internai
workings, after which they tao would be able to get along without Native
labour. Of course, at the same time, if such an excision did take place
and there became a dearth of labour within the area, there are other
areas in Africa that would be delighted to supply this labour-for ex
ample, Bechuanaland and Angola, from which already considerable
numbers: not so much from Bechuanaland but from Angola, of Native
labourers corne in today because of the superior wages and working con
ditions within South West Africa, and so there is a large number of
Ovambos today from Angola crossing the border to work in the Police
Zone of South West Africa. If this excision did not prevent this inter
national exchange of personnel, then this would occur to supply Native
labour within South \Vest Africa, I am sure. This would be not unlike
the international labour migrations that occur in Western Europe, like
the Italians coming into Germany today, and this sort of international
exchange.
Mr. GROSS: In this case, however-1 will not pursue this hypothetical
and perhaps somewhat absurd hypothesis to its ultimate absurdify-1
thought the Court might perhaps obtain some clarification with respect
to interdependence from the standpoint of the basis of the economy, and
the labour supply would obviously enter into that pattern. In the hypo
thetical case that you have mentioned-1 think you described members
of the Ovambo tribes from Angola-they would, so far as you are aware
of the policies and practices in South West Africa, be classified as non
\Vhite, would they not?
Prof.LOGAN: Oh. yes.
Mr. GROSS: So that the question with respect to the dependcnce of the
economy if there werc no non-Whites there, which is really the question
I have addresscd to you ... I think that, unless you have something
further to say, I will turn to another question.
In your testimony-and this is related, I believe-atpage 384, supra,
of the verbatim record of 8 July, you responded to a question I addressed
to you, which I will read, if I may, wHh the permission of the Court.
I asked you whether you understood the policy which was observed and
which you perhaps learnt about in discussions with persans in South
West Africa, and I quote now-" ... do you understand the policy being
applied, or suggested, to have in view the total separation of the Whites
from the non-Whites in this area? '!And your answer, which I will read
from the verbatim record, is, in part: "I do not think that the total
separation has ever really bèen envisaged ... I think that all of the
plans, as envisaged, envisaged the continuation of this Native labour
supply."
This is recollectedby you as your testimony, sir? WITNESSES AND EXPERTS 391
Prof. LOGAN:That is correct.
Mr. GRoss: Now, by the phrase "total separation", which you say
had never been envisaged-perhaps you misunderstood the point of my
question yesterday-do you mean that total separation, in the sense
you used the term, refers to every single, last individual being removed
from the area, voluntarily or otherwise, or were you thinking of it in
terms of substantial movement, what might be called a great migration
or something of that sort? What did you understand the term "total
separation" to be, in your own concept?
Prof. LOGAN:I believe, at that point, we were talking on the matter
of excision as wc were just a moment ago here, and I believe, in that
case-you just stated now the "total removal" of the people, and that is
what I think we were discussing there.
Mr. GRoss: The total removal?
Prof. LOGAN:Yes.
Mr. GRoss: Substantially all?
Prof.LOGAN:Yes.
Mr. GROSS:Yes. There might be one or two ill or aged persons left
behind, that sort of thing. We are talking about a substantial removal
when we talk about "total separation", is that agreed?
Prof.LOGAN:That is correct, yes.
Mr. GRoss: Now, ~ would like to read to you-because of your com
ment with regard to your understanding that this policy, as we have
just defined it, has never really been envisaged and that all the plans,
as envisaged, contemplated the continuation of the Native labour supply
-a statement by the Prime Minister, which is quoted in the Rejoinder
of the Respondent (that is Respondent's pleading, as you perhaps
understand), and ask whether, when I have read it, this policy ever
came to your attention in your discussions with persans in South West
Africa, or othern•ise.
The Prime Minister, in a Bouse of Assembly debate, in 1963 (and the
citation may be found at V, page 251, of the Rejoinder, I will not put it
in the record at this point unless you wish me to, unless the Court wishes
me to) is as follows:
"The only possible way out ... is ...that both, i.e., the White
man and the Bantu, accept a development separation from each
other. The present Government believes in the domination (baasskap)
of the White man in his own area, but it equally believes in the
domination (baasskap) of the Bantu in his area."
Then there is an intervening paragraph, and then-
"I also see toit that I choose a course by which on the one hand
I retain for the \Vhite man alone full rights of government in his
area, but according to which I give to the Bantu, under our care
as their guardians, a full opportunity in their own areas to put
their feet on the road of development along which they can make
progress in accordance with their capabilities. And if it so happens
that in future thcy progress to a very high level, the people living
at that time will have to consider how further to re-organize those
relations ... "
Now, I call your attention to the phrase "total separation" as used in
the excerpt from the Prime Minister's statement in the Bouse of As-392 SOUTH WESTAFRICA
sembly. I ask whether this concept and this particular phraseology did
arise in your discussions and consideration of the economic basis of the
Society, or in your study of the geography of the area?
Prof. LOGAN:Well, yes, but the "total separation" talked about I
think by Dr. Verwoerd there is not the "total separation" that you and
I were discussing before the Court here, because in the one case we are
talking on an economic matter and we are talking, in a purely hypothetical
situation, of removing ail the population out of the area (Imean ail the
Native population out of the White area, or vice-versa). But in the case
of Dr. Verwoerd's statements I am not sure of ail of the precedings to the
statement you have just read, but I believe that this fits in with the whole
programme by which there would be the opportunity for Natives from
the Reserves, or homelands, or Native areas, to corne into the \Vhite area
to work and also that there would be some White representatives within
the Native areas until the Native areas had raised themselves, econom
ically and politically, to the point where they were capable of conducting
their own affairs.
So there would be total separation, but not down, as we said here a
few moments ago, to the last individual. There would still very often be
people temporarily in the opposite groups' area, and so there would be
total separation as far as permanent places of domicile are concerned but
not as far as any momentary situation was concerned.
Mr. GROSS:Now, by "momentary situation" you mean-let us take
an individual who is born, lives, works, and ultimately dies in the south
ern sector, Jet us confine ourttention to that individual-in what sense,
ifany, is he separated from anything else in that area?
Prof. LOGAN:He would not be separated from anything else in that
area if he remained in that area. He would be separated, of course, as
far as voting is concerned, as far as anumber of things are concerned in
that way-if that is what you are referring to.
Mr. GROSS: I really do not presume to ask you to interpret the in
tention, or what was in the mind, of the distinguished Prime i\Iinister
when he used this phrase. On the basis of your analysis and consideration
of the economic basis of the society as weH as of the social implications
and effects of the policies and practices affecting the freedoms of individ
ual persons (to which I referred from your earlier testimony at the outset
of this morning's session), in the light of the basis of the economic study
you made, and of the social implications of the policies and practices
affecting the freedoms of individual persons, what would you consider
to be the implications and consequences of separation, whether total or
otherwise, of an individual such as I have described? How wou1d you
determine what he is separated from, and how would you define the
term "separation" in that context?
The PRESIDENT: I think it might be better if we have one question
at a time, Mr. Gross.
Mr. GROSS:I am afraid I was allowing my enthusiasm to take me ...
The PRESIDENT:Not at ail, but Ithink it will be casier if we get one
question at a time.
illr. GROSS:Yes, sir. If you have understood the questions would you
take them all one at a time.
Prof. LOGAN:Thank you, Mr. President. Yes, I will endeavour to.
This is difficult to answereither yes or no, and I presume I should make
a speech at this point. WITNESSES ANDEXPERTS
393
Mr. GROSS:Yes, if you will address yourself to the question, please,
sir.
Prof. LOGAN:The first thing I think that has to be considered is that
under the statemcnts, as developed by Dr. Verwoerd, and under the
whole idea as developed, as I understand it, in South West Africa, the
person who was born, livcd in and died within the Police Zone area out
side the Reserves would be doing so by his own volition and he would
have-based upon his culture group affiliation as a Nama, or a Dama,
or Herero, or whatever group-a homeland to which he properly belonged
and on that homeland he would have a right to a vote and a right to a
participation in whatever form of govemment was existent upon that
homeland. Now this type of government would vary considerably,
depending upon the nature of the culture of the group-the culture level
of the group----at the particular time. That is, there would be a different
type of govemment in a Bushmen surrounding than there would be in a
Herero or Ovambo milieu.
Now he would have, in the Police Zone, no voting rights; he would
not be entitled to vote for the officiais of the area in which he was then,
of his own volition, domiciled. But the man for whom he was working
would, at the same time, have no voting right within the area of the
Dama homeland, or the Nama homeland, or whatever it happened to be.
That is, each would devclop in a separate way, separately within his
own homeland area.
I do not know whether I have answered this question ...
Mr. GROSS:Weil, sir, I wish you to answer to your own satisfaction.
I ,vill pursue the line and perhaps you can elaborate it in response to
specifi.c questions.Iwill, for the sake of clarity, withdraw at this point,
Mr. President, if I may, any other questions which I may have com
pounded to my first, addressed ta Professor Logan.
Now. in the context of the answcr, which you have just givcn, you
used the expression, if I am not mistaken, "by his own volition" and
you used the expression, the homeland ta which he "properly belonged".
These are the phrases I noted at the time. Now, in your use of the term
"volition", do you consider the cconomic constrictions which frequently
interfere with free choice in the lives of ail of us, including Natives?
Prof.LOGAN:Yes.
Mr. GROSS:Therefore, at best, "volition" is a highly qualifi.ed concept,
isit not, sir?
Prof.LOGAN:Yes.
Mr. GROSS:Weil, to what extcnt is it an absolute? Could you tell me,
for examplc, under what circumstances, by what objective criteria, a
determination could be made whether an individual was residing or
remaining at work in the southem sector by his own "volition"?
Prof. LOGAN:Yes, today, with the economic development of the home
land areas still in an embryonic stage, it is quite likely that many people
are quite forced, economically, to stay in an area in which they are able
to obtain a higher standard of living than they would if they retumed to
the Reserves. With the developmcnt that is going forward as rapidly as
it has been in the nine years that I have known South West Africa, this
is atemporary thing and eventually, a considerable portion at any rate
do not ask me for percentages please-of the people of the Native groups
who are residing today in the Police Zone and working there, will be
able to fi.ndeconomic opportunity at least equal ta what they arc getting SOUTH WEST AFRICA
394
today in the Police Zone, and so they will be able to return to the home
land areas.
There are such things, for example, as the proposed development of
meat canning factorics, in connection with Ovamboland, There is the
already established fumiture factory in Ovamboland. These are going
to start to employ people, these are going to bring cash into the area and
the cash being brought into the area will support traders and other
entrepreneurs, within the area. These traders and entrepreneurs will be
Natives. The fumiture factory wi11be operated by Natives. Consequently,
there will be the opportunity to retum, and this is increasing very rapidly
within the area today, you can see it visually increasing.
Mr. GROSS:I do not want to interrupt you, but your reference to the
word "return" is puzzling to me, and perhaps, might need clarification
to the honourable Court. \Ve are talking about an individual who, in
this case, is bom (and perhaps, if you want, you can add his family as
well), in the southem sector. In what sense, if any, can he be said to
"return" to a homeland?
Prof. LOGAN:Weil, in a great many cases, it is a case of retuming to
the homeland. The Herero ...
Mr. GROSS:The "homeland" of that individual, sir?
Prof.LOGAN:Yes, if I may ...
Mr. GROSS;Please, I just wanted to be sure ...
Prof. LOGAN:A Herero, bom in the \Vindhoek location, considers from
the time he begins to walk and talk, that he is a Waterberg, or an
Otjituuo or an Epukiro or an Aminuis or an Ovitoto, Herero. At puberty,
this child, male or female, who has been dressed in a certain costume,
which is that of a small European child, retums to his home Reserve
and there undergoes the puberty ceremonies, which are very long and
extensive. He or she stays there for some months.
Mr. GROSS:In every case, Professor Logan?
Prof.LOGAN:\Vell, I would not say in every case. There are, perhaps,
some individuals who do not do this, but in the great majority of cases
they return to the home Reserve. Furthermore, the child, in many of
these societies, isot brought up by the parent, but the child is brought
up by the grand parent because therc is the jumping over of one generation
in the development of the child, and ...
Mr. GROSS:You mean a grandparent in the southem sector?
Prof. LOGAN:Well, this is the point I am about to get at. In man y
cases, the grandparent is on the Reserve and the child returns to the
grandparent on the Reserve at some age, such as 5 or 6 years old, stays
there through puberty and then, if he or she wishes, returns to the Police
Zone. So there is a strong affiliation, even in the quite sophisticated
society of the town Native of Windhoek, the most sophisticated city as
far as Natives are concerned, with the Reserve, which may be, in some
cases, several hundred miles away. I am sorry to prolong this so long.
The PRESIDENT:Not at ail, give your answer.
Mr. GRoss: Pardon me, Mr. President?
The PRESIDENT:The witness was apologizing for being long and I
simply remarked "not at all" and to give his answer to his satisfaction.
Mr. GROSS:Yes, sir, thank you, sir.
Prof.LOGAN:Thank you, sir.
:1\fr.GROSS:I will try not to match your responses with the length of
my questions. With respect to the concept of "return"-let me put it WITNESSES ANDEXPERTS 395
to you-you have, I believe, testified that you have spent some time on
20 or more so-called "White farms" on which persons classified as Natives
resided?
Prof.LOGAN:That is correct.
Mr. GROSS;These were, were they not, in the southern sector outside
of the Reserves?
Prof.LOGAN:That is correct, yes.
Mr. GRoss: Now, is that perhaps, where you, among other places, ob
served the practice of the non-White children "returning" to their home
land (in that sense of the word) to go through these puberty rites, which
you referred to, or other exercises of that nature?
Prof. LOGAN: In part, but this also happens with the Natives in the
location at Windhoek, at Katutura or the old location in Windhoek.
Both the town Natives and the farm Natives.
Mr. GRoss: I was asking whether you had observed situations ...
Prof. LOGAN:Yes, I have, that is, I have known individual cases
where I can name the person, and the child sent and so on.
Mr. GRoss: Yes, so that, for exa.mple, how long would he spend in his
so-called "homeland" which he had never seen up to that point?
Prof. LOGAN:This would be a tribal matter, as well as a persona! mat
ter, but in many cases the Herero child returns at a very early age, 5 years
old, 6 years old, something of that sort, and remains there until 13 years
old or something of that nature-! mean, a matter of a number of years
in quite a formative stage of the child's life.
Mr. GROSS:And normally goes to school in Ovamboland or wherever
it might be, during this formative period?
Prof. LOGAN:Well, if I may correct this, it would not be Ovamboland
because only the male Ovambos corne to work in the Police Zone and
there are relatively few Ovambo families living in the Police Zone. It
would be in the case of a Herero and so on.
Mr. GRoss: Yes. First, let us confine ourselves to the Ovambos. How
many Ovambos permanently reside in the southern sector outside of the
Reserves? Can you tell the Court?
Prof. LOGAN:I could not tell the Court.
Mr. GRoss: There are some hundreds or some thousancls, as faras you
are aware?
Prof. LOGAN:Probably several thousand.
Mr. GROSS:So that when you wcre talking about retum to the home
land in the sense in which you used the phrase, you were not referring to
those several thousand Ovambos?
Prof. LOGAN;No, I am referring to the large number of Hereros and
Damas and Damaras and others, and so on.
li.fr. GRoss: Well now, if we confine ourselves for the moment to ...
I am anxious for the Court to understand quite clearly what you mean by
the concept of "returning to the homeland", because it enters so deeply
into the policy and concept; for example, with respect to the several
thousand Ovambos who are permanently resident, and not recruited for
labour, but are permanently resident, has it been the result of your obser
vation and experience that many of the offspring of these Ovambos
permanently resident in the southern sector, outside the Reserves,
return to Ovamboland, during the tender age of 5 to 13?
Prof. LOGAN:I know nothing about detribalized Ovambos. I have had
no connection with them whatever. I have been discussing the Herero and396 SOUTHWESTAFRICA
the other groups that make up the great proportion, not this small
fragment of Ovambos. As far as I was concerned, I was talking here
about the tribes that are resident within the Police Zone outside the
Reserves generally, and return to the Reserves still within the Police
Zone. Because, you see, that is where the large numbers of families are
concerned.
Mr. GROSS:\Ve are talking in the mass, here, in the round?
Prof. LOGAN:Yes.
Mr. GROSS:You said "fragment", I am talking about 3,000 individual
human beings, and you refer to a "fragment".
Prof. LOGAN:\Vell, yes, but I am talking about some hundreds of
thousands of others.
Mr. GROSS:Quite so. But would you be willing-1 do not mean to
argue with you-to clarify the matter, to talk about what I am talking
about?
Prof. LOGAN:\Vell, I cannot, because I do not know about it.
Mr. GROSS:Weil, that is what I am trying to explain. Now, the 3,000
Ovarnbos is what I am talking about. Now you described them, if I
understood you correctly, as a "fragment".
The PRESIDENT:A fragment of the total number.
Mr. GRoss: Of the total number. Now, I am talking about even a
smaller "fragment" of the total number. I am talking about one persan:
the individual I putto you at the outset of this line of questions. Your
reply tome, if I understood you correctly, and please correct me if I am
wrong, involved a total picturc of a group and practices which you
described as pertaining to a group or certain members thereof. ls that
correct?
Prof. LOGAN:Of several groups and the individual members thereof,
yes.
l\frGRoss: Now, then, I have asked you and would like to repeat my
question for clarification, with the Court's permission, about those
individuals who do not go through the procedures which you have
described and who may or may not be, therefore, "returning" to their
homeland in the sense in which you used the term. I would revert tothat
expression. In the case of an individual who has been born and who has
always lived in the southern sector, who is a Herero, let us say, who would
be returned to or who would voluntarily go to, the homeland, the
Reserve-in what sense could he be said to be "returning" to that home
land or that Reserve, in any sense of the word?
Prof. LOGAN:Yes, I think so. I think that there is the strong thought
in their minds that they are of a particular group and of a particular
area and that they belong to that. There is, of course, always the renegade,
aJways the person who is the non-conformist. Even in Native groups,
I am sure there are these individuals but they are the rare ones, and to
try to steer an entire programme to fit the one individual or the small
number of individuals who do not want to conform to the over-all pattern
is, I think, quite impractical. Basically, ail of the Natives feel that they
belong to a particular group and not just a Herero group. but a He
rero Waterberg group, and they would consider that as their original
area.
Mr. GROSS:Professor Logan, perhaps it would clarify further-you
referred to "all of the Natives". \Vould you please define the term "Na
tives"? WITNESSES ANDEXPERTS 397
Prof. LOGAN:Yes, a Native is a member of one of the indigenous
tribes of South West Africa.
Mr. GRoss: "A member?" How would you define the term "member"
in that concept?
Prof. LOGAN:A person who was born within the parentage of this
particular group.
lVIr.GROSS:And how would you determine the classification or mem
bership of the parent? By the same device, by the same procedure?
Prof. LOGAN:Yes, it is a lineage matter.
Mr. GROSS:Now, I refer to the Memorials, which are one of the Appli
cants' pleadings, at I, page rog, and which contain the census according
to the classifications of which rights and status are allotted, and the
laws and regulations apply. I would like to read to you the definition of
"Native" which counts with regard to the individual rights and individual
liberties, the "fragments" of the total group. "Natives-Persons who
in fact are, or who are generally accepted as members of any aboriginal
race or tribe of Africa." Are you familiar with that census category?
Prof. LOGAN:Not in those words, I could not recite it, no. But it is
essentially, I think, what I just said. You use the word "aboriginal",
I use the word "indigenous".
Mr. GROSS:Weil, this is not my word, sir. I did read the census cat
egory-"aboriginal race or tribe". I did not understand you, in response
to my question, to refer to a concept of general acceptance. Did I mis
understand you?
Prof. LOGAN:Well, I would gladly put it in, if it would help.
Mr. GROSS:It would help us understand the meanings which you are
attaching to words that affect the lives, welfare and freedoms of individual
beings. I am anxious that the Court understand the terms fairly you are
using and that I am trying to elicit ...
Prof. LOGAN:I think it is generally accepted by the individual, him
self,that he identifies himself as being a member of one of the indigenous
aboriginal tribes or races of the Territory.
Mr. GRoss: Do you understand the policy which you are testifying
with respect to,and I speak now specifically with reference to the analysis
which you say you have made of the social implications and effects of
the policies and practices affecting the freedoms of individual persons
in that context of your study and consideration, did you consider the
implications with respect to individual freedoms and related questions
of the concept of basing classification on "general acceptànce", as dis
tinguished from birth (in this case, from antecedents)?
Prof. LOGAN:But I do not think that they are generally separated in
the minds of the people concerned, that the person who is born ...
Mr. GROSS:Which "people", for the sake of clarification?
LOGAN:We are speaking about the Natives, I think, are we not?
Prof.
Mr. GRoss: \Ve are talking about how you tell a Native and there-
fore I thought that we ...
Prof. LOGAN:Well, the way that you would tell a Native is a ~wo
fold one. 1f there is any question in your mind, the easiest way 1s to
ask him and I think he will almost unquestionably say "I am a ... "
and then he will tell you. He will tell you his tribal group and he will
tell you the sub-group even although he is a business man in the Loca
tion of Katutura in Windhoek, he still considers himself as a Herero
of a certain group.398 SOUTH WEST AFRICA
The second way is by looking at him. When you look at him you will
see two different things: first his pigmentation-the shape of his face,
the nature of his hair-this separates immediately the Nama, let us say,
from the Herero, it separates the Khoisan group from the Bantu group:
secondly, his garb, because he will wcar clothing in almost all cases that
matches the others of his particular group. So he associates himself,
he affiliates himself, with the group and so he is generally accepted as
a member of that group by that group and by all the other groups be
cause he advertises exteriorly, in his very dress, which group he belongs
to. You can tell a Nama from a Dama or from a Herero woman by the
nature of the hat she wears or the wrappings of a turban about her
head and this is general acceptancè, I think, by her of the fact that she
is Herero, Dama or Nama. Also she is accepted by the group as being
of their group, otherwise she would have great difficulty walking about
the streets of Windhoek wearing the wrong tribal dress. l think for a
Nama woman to appear in a Herero dress would cause a great deal of
consternation among the Hereros and would react very violently upon
this woman, and so there is a great deal of conformance within them
selves in this regard.
Mr. GROSS: Have you ever encountered a so-called Native of South
West Africa outside the Territory of South West Africa-say, in the
streets of New York or San Francisco?
Prof. LOGAN: No, I have never met one in New York or San Fran
cisco.
Mr. GROSS: Have you ever seen a Native fully clothed who was not
wearing the special garb of the tribe.
Prof. LOGAN: Yes, the business men that I spoke about earlier and
some of the others in Windhoek, dressed in clothing exactly like you
and I are wearing here at the moment. Yes.
Mr. GROSS: Weil in that case, under your concept of classification or
differentiationwould it not be casier to tell what race or tribe they
belonged to if they were not wearing clothes? .
Prof. LOGAN: Then you would have to go strictly to the phys1cal
characteristicswhich arc quite clear eut among the differcnt groups.
You can tell them facially from one anothcr, you can tell them by
stature and so on from one another, in most cases quite clearly and the
second thing is, if you ask the individual, to return to what I saiclearlier,
what group he is he will tell you instantly and usually quite proudly be
cause they are proud to belong to their particular group . . . they are not
ashamed of H. They are proud to belong to their group, there is a strong
feeling ofrapport and of pride in their particular group.
Mr. GROSS: I am sure of that, sir. Would you say it is comparable,
perhaps, to the feeling ofrapport and pride of one of our fellow country
men thinking of Ircland, from which his ancestors came, for example?
Prof. LOGAN: I think it is much deeper than that, much deepcr.
Mr. GROSS: I see, sir. Weil, now I noticed in your reply that you
referred a good deal to appearance, garb and dress. On the basis of
your analysis of the social phenomena and economic basis of the society,
would you say that rights, duties and status are allocated on the basis
of garb, dressor appearance?
Prof. LOGAN: No, only in a roundabout way. They are allocated on
the basis of belonging to a particular culture group and this culture
group is, in part, identified by the garb it is wearing but nobody is WITNESSES AND EXPERTS 399
allocating the rights or privileges on the basis of the way in which a
turban is worn. No.
Mr. GROSS:It is a rather serious thing, would you not agree, to consider
the basis upon which individuals are classified, which classification
determines their rights, duties, privileges, and the limitations imposed
upon their freedoms, that the classification method is, shall we say,
first,relevant to the question of a study of their relationship between
the individual and the society?
Prof. LOGAN:That was a very involved one.
The PRESIDENT:Do you understand the question?
Prof. LOGAN: I am afraid I do not.
The PRESIDENT: Perhaps Mr. Gross would put the question in a
different form.
Mr. GROSS:I asked you, sir, in your study of the economic basis of
the society, and I am talking now specifically about the Southern sector
outside the Reserves ...
Prof. LOGAN:Yes, I understood.
Mr. GROSS: In your study of the economic basis of the society~in
your study of the social implications and effects of the policies and
practices affecting the freedoms of individual persons in that area-did
you take into account, or do you give any wcight to, the method by
which individuals are classsified, and on the basis of which classification
rights, duties, privilegesand burdens are conditioned?
Prof. LoG.·\N: I did not make any statistical, any analytical study of
this. This falls, I think, within the political category in a way in which
I said I was not expert. However, I am quite capable, I think, of making
somc non-quantitative but qualitative judgments upon it. Yes.
!l!r. GROSS: Would it help to clarify the matter in your mind if I
said that I was addressing myself solely and exclusively to the qualitative
aspect of the matter, from a sociological and human point of view?
Prof. LOGAN:Yes.
Mr. GROSS:Thank you. Will you continue, then, with your answer
on that basis? What conclusions, if any do you reach, as an expert or
otherwise, with respect to the relevance of the basis upon which clas
sification is made, in the context of the determination of individual
rights, of liberties?
Prof. LOGAN:The classification is made chiefly on the basis of the
culture group to which the particular individual belongs. Now this
culture group, in the census classifications that were just read, lumps
a large number of groups together as Natives and as such gives a general
category, but this category is split immediately into a number of dif
ferent classifications based upon the tribal or cultural affiliations of
the group and for administrative purposes it is always handled on the
tribal or culture group level. This to my mind is the reasonable and prac
tical way of handling the situation because of the basic affiliations of
the individuals within the tribes with one another and with their
tribal group and bccause of the contrast in cultural levels which exist
between the different groups. To try to do it by any other basis would
work great hardships on large numbers of people.
Now it is quite obvious that there are always exceptions, that there
are some individuals in any tribal group who do not fit into the general
pattern that is established by the Administration in handling it. I
think this is true in any kind of society that we want to consider any-400 SOUTH WEST AFRICA
where. There is always the individual that does not fit the general pat
tern. This may be the outstandingly good individual, I mean, outstand
ingly well-developed individual, it may also be the extremely backward
individual, speaking personally now, the one whose personality has not
developed and so on, or the one whose personality nas developed very
rapidly and gone much further. I think therc is the same individual
variation among any of the Native tribes that we have been talking
about here, that we will find among any European community or
any Oriental community or any other community that we want to
look at. There is this same individual variation but the pattern, the
norm of the individual group that is being concerned with, sets a standard
that is aimed at in the development of that particular group, aimed
at in the development of that group by the Administration, and rights and
privileges are accorded to these people commensurate with their stan
dards, commensurate with their cultural position at the given time.
At the present time, in some cases, it is very low. Among the Bushmen,
for example, there ...
Mr. GRoss: Are we talking about the southern sector, outside the
Reserves?
Prof. LOGAN: I am sorry. But you see each of the individuals that is
within the southern sector is still affiliated with a Reserve or homeland
that is not within the White area of the southern sector and the thing
cannot be dissected, it cannot be excised as we did earlier as a hypothet
ical exercise.In practice it cannot be separated, it must be looked at as
a whole picture, as a totality. If we chop it apart, especially as far as
the southern sector is concerned, the Reserves must be included with
the farm areas and the town areas in order to get the proper picture.
Consequently (we will have to eliminate the Bushmen because they are
essentially outside that area) there is still great cultural difference be
tween the different groups within this and each of them is accorded rights
and privileges in accordance with his cultural position, his cultural level.
Mr. GROSS: Are you aware, sir (and this will be the only reference
again to the census classification), that the rights and duties and privileges
and status of individuals, let us say, within the southern sector outside the
Reserves, are based upon the classification which I have read, and which
makes no reference to tribe or culture or configuration thereof? It
uses the term "Natives", and that describes them as an aboriginal
descendant or words to that effect. We are together on that, are we sir,
that that is the census category?
Prof. LOGAN: That is the census category.
Mr. GROSS: And that is the basis, as far as your studies showed, on
which rights, privileges and status are based in the southern sector?
Prof. LOGAN: Well, no, because the rights and privileges in the south
ern sector are not based on the census.
Mr. GROSS: Classifications, sir?
Prof. LOGAN: I don't think they are based on the census classifications,
they are based on the tribal affiliations.
Mr. GROSS: May I, then, read to you, from the Rejoinder (which is the
pleading of the Respondent I referred to before) the following statement
by Prime ll.finister Verwoerd, which is quoted at VI, page 4r:
"The Bantu [I mark the word] must be guided to serve his own
community in all respects. There is no place for him in the European
community above the level of certain forms of labour." WITNESSES ANDEXPERTS 401
Does the worçl "Bantu" convey to you a linguistic, a racial or a tribal
implication?
Prof. LOGAN:All three.
Mr. GROSS:All three-and therefore it is synonymous is it, or is ît
not, with the word "Native" in your use of the term?
Prof.LOGAN:No, it is only partly synonymous with the word "Native"
because the Khoisan group, the Namas, must be included.
Mr. GROSS:I see. So that when you take the term "Native" as you
use it (and as it is commonly used in the Territory, I assume), itis synony
mous with "Ban tu" and "Khoisan" and they are regarded as aborigines.
And, secondly, is it or is it not correct that the rights and duties and
privileges ofindividual persons in the southern sector outside the Reserves
(we are talking about that for simplification) are determined and allotted
on the basis of classification as a Bantu? Is that your understanding?
Prof.LOGAN:No, I repeat that it is still on the basis of tribal affiliation
and Bantu is a larger category and so it is on the basis of Herero or
whatever the Ban tu group may-be, and the Khoisan group has to be in
cluded because they are considered cqually in the eyes of the administra
tion.
Mr. GRoss: Then when the statement is made bv the Prime Minister
I am not asking you to interpret his statement, but whethcr it reflects
your understanding and analysis of the policy pursued in the Territory
you studied-that there is no place for him, i.e., the Bantu, "in the
European community above the level of certain forms of labour", does
that, or does it not, have any relevance to whether the Bantu in question
is a Herero or a Dama or, by chance perhaps, the offspring of a combincd
or mixed marriage? Does it make any difference in respect of this state
ment, or this type of statemcnt, which relates to Bantus generally?
Prof.LOGAN:I'd Iike that question again.
Mr. GRoss: Is there any relevance to the problem we are discussing
is there any relevance or any consideration which bears upon whether a
Bantu is a Hcrcro, a Nama or Dama, or the product of a mixed marriage
-is there any bearing between his so-called tribal affiliation or cultural
configuration and the factthat a Bantu cannot rise above the level of
certain forms of labour in the European community?
The PRESIDENT:Does the witness understand the question?
Prof. LOGAN:I am afraid I do not, no.
Mr. GROSS:I will try it once more, with the Court's permission, and
I will tryto simplify it.
The statement which I have quoted is in your mind, is it? "There is
no place for the Bantu in the European community above the level of
certain forms of labour."
Prof. LOGAN : Yes.
1\fr.GROSS:Did I understand you correctly to say that the tribe, or
culture, or any sub-group within the Bantu concept, affects the deter
mination of the level to which the Bantu may rise in the Wnite com
munity? Does his tribal affiliation have anything to do with it?
Prof. LOGAN:Well, I am just afraid that I am lost as to what is being
requested here. I understand the words but I don't understand what is
being asked.
The PRESIDENT:Perhaps Mr. Gross will put it again to you.
M::r.GROSS:I hesitate to trespass on the Court's time. With all respect,
Mr. President, I have tried three times ...402 SOUTHWESTAFRICA
Prof. LOGAN:I am not trying to evade the question, sir.
The PRESIDENT: I think if the question is put in a shorter context
Mr. Gross.
Mr. GROSS:I am endeavouring to do so. This, of course, involves a
complex of ideas and concepts and it is difficult, in fairness to the witness,
to put it in a sentence.
The PRESIDENT: It is because of that thatit is difficult to understand.
Mr. GROSS:I will try it once more because I think it is important
and will not perhaps, I hope, trespass on the honourable Court's time.
The statement is made by the Prime Minister that "there is no place
for the Bantu in the European community abovc the level of certain
forms of labour".
Prof.LOGAN:Yes.
Mr. GROSS:Does the fact that a Bantu happens to be a Herero or a
Dama, or a child of a mixed marriage, have anything to do with the level
which he can achieve above certain forms of labour in the "European
community"? Do you understand that?
Prof. LOGAN:Yes, I understand that. The ...
Mr. GROSS:Can you answer yes or no, perhaps? I tried to formulate
it so that it could be answercd yes or no. Docs it have anything to do
with it-yes or no? You can qualify the answer if you like.
Prof.LOGAN:No, Ithink it has nothing to do with it.
Mr. GRoss: It bas nothing to do with it? Thank you. The phrase
"European community"-have you heard that expression used?
Prof. LOGAN:Yes.
Mr. GRoss: What do you take its signification to be? First, may I ask
you what the word "European" in that context refers to?
Prof. LOGAN:"European" means a person whose origin, either directly
or ancestrally, was from Europe. His parents, or he himself, have im
migrated from Europe at some time in the last 300 years or so.
Mr. GROSS:So, for examp1e, if you or I shou1dgo to South West Africa,
we would be "Europeans", would we?
Prof. LOGAN:Yes, because our ancestry also came from Europe by
way of America and so we would be Europeans. That is correct.
Mr. GROSS:Now, suppose, for example, that you had a child of a mixed
marriage between a "European" in this sense and, let us say, an Asian,
a person born in Asia, wouid that child be a Europcan?
Prof.LOGAN: I wouldn't know how that would be looked at.
Mr. GROSS:You don't know what the word "European" would mean
in that situation-the word ''European" as used in South West Africa?
Prof. LOGAN:\Vell, if it was a child of a mixed marriage between one
of the indigenous tribes and a European I could answer it, but how a
Eurasian child would be viewed I don't know.
Mr. GROSS:Does appearance have anything to do with it, with the
concept or classification of European?
Prof. LOGAN:If one were to have to determine what a particular
person was, the first thing to go by would be his appearance. There is
also, I believe, a certain qualification in parifhe is generally accepted
as a European, that is, by the other members of the Europcan com
munity and by the members of the non-European community.
Mr. GROSS:May I phrase my question this way, does the fact of
colour or appcarance detcrmine whether he is accepted as a European
or not? WITNESSES ANDEXPERTS
Prof. LOGAN:To a large extent. Not totally, because it could also be
the manner in which he lived in parts, in a small part.
l\Ir. GRoss: What do you.mean by that?
Prof. LOGAN:Wcll, if a man was of very slightly mixed blood, that is,
largely European with just a bit of Native blood-1 arn not talking of
Asiatic now, I am talking of Native blood-and he was living with a
Coloured community, then he might be considered a Coloured, even
though he looked very much like a White man. There are undoubtedly
some Whites who have a bit of coloured blood and passas Whites.
Mr. GROSS:The phrase "pass as vVhites" is of interest, Professor
Logan.
Prof.LOGAN:It is actually an American expression I think.
Mr. GRoss: I think it is. I was wondering, for example, how your
comments would relate to a person who is, shaU I say, obviously White.
Is that a forrn of words which you would accept?
Prof.LOGAN: Y es.
Mr. GRoss: And if a person is obviously White, does that mean that
he would be accepted as a European?
Prof. LOGAN:Yes.
Mr. GRoss: This would be then on the basis of appearance solely?
Prof.LOGAN:As I said before, primarily. If he lived, however, as a
Coloured, with a group of Coloureds, and was generally accepted by the
Coloured community then, even though he looked Wlute, he might very
well be considercd a coloured.
Mr. GROSS:Suppose this gentleman were a lawyer, a professional per
son, practising in Johannesburg?
Prof.LOGAN:Well, I really don't know because, first, Johannesburg
is outside South West Africa and this is the first time in my life I have
ever been in a court and I am not acquainted with court procedure in
South West Africa or in Johannesburg. I don't know what would happen.
Mr. GROSS:I will take any city you wish. I am talking about a South
West African, who is obviously White, who practises law or a profession
in Johannesburg or Birmingham, England, you can call it any place
you say.
I want to ask you, with regard to the limitation upon his rights on the
basis of colour or appearance which I understand to be the case in South
West Africa, whether that does relate solelyto the fact that he lives in
South West Africa and that the standard upon which his rights are based
depend on his colour-do you understand my question?
Prof. LOGAN : y es.
l\fr. GRoss: Do you regard this classification and thcse limitations of
rights, onthat basis, as having any implications and effects in the socio
logical sensethat you took into account in your analysis of the situation,
with respect to the policies and practices affecting the freedoms of the
individual persans?
Prof.LOGAN:Yes.
Mr. GROSS:Do you think that it is by some objective standard or
criterion which you may have in mind-a valid basis, sociologically
speaking- I ask you as an expert?
Prof. LOGAN : Do I think it is a valid basis?
Mr. GRoss: Yes.
Prof. LOGAN:Do I think it is a valid basis to use colour as the basis
for allotting rights and burdens?-no, I do not. SOUTHWESTAFRICA
M.r. GROSS:You do not take it as a valid basis?
Prof. LOGAN:No.
Mr. GROSS:Are there any objective criteria or standards on the basis
of which you express that judgment?
Prof. LOGAN:Yes, because I think I expressed earlier here that I
think there are great variations within any particular group, and I
think there is as much variation within a Coloured society or within a
Native (to use the South West African term), or as we would say, within
a Negro society-I think there is as much variation, individual variation,
there as there is in other areas, and thereforeIthink that a culture basis
for division is far moreimportant than a purely colour one.
Mr. GRoss: And the classification "Bantu" is one that is cultural?
Prof. LOGAN:No, the Bantu itself is partially racial, partially cultural.
Mr. GROSS:And partially appearance?
Prof. LOGAN:Weil, this would be a combination of racial and cultural.
Mr. GROSS:So that with respect to the classification of "Ban tu" and
the allocation of rights and duties, this has nothing to do with the sub
group or the tribe within which the Bantu individually fall?
Prof. LOGAN:Weil, taking the Bantu alone, that is a collective category
for a number of tribes.
Mr. GROSS:And that is synonymous with "Native" if you add "Khoi
san"-is that correct?
Prof. LOGAN:Yes, in my estimation.
Mr. GROSS:And we are discussing the allotment of rights and burdens
and privileges on the basis of classification as a Bantu-that is the
question?
Prof.LOGAN : All right, yes.
Mr. GROSS:Do you consider, on the basis of the criteria to which you
answered my question with respect to the validity or otherwise of ailot
ment of rights on the basis of colour, that it is valid in the same sense
to allot rights and burdens and duties on the basis of whether an individ
ualisa Bantu?
The PRESIDENT:Are you speaking about the southern area exclusively?
Mr. GROSS:I am talking about the southern sector outside the Reserves.
Prof.LOGAN:Yes, I think it is reasonable to allocate rights and privi-
leges and burdens (I believe you said) on the basis of a man being a
Ban tu in contrast with him being of some other tribal affiliation or some
other parentage line.
Mr. GROSS:Yes-"some other parentage line" being in this case-?
Prof. LOGAN:European, or Coloured.
Mr. GROSS:European or Coloured?
Prof. LOGAN:Yes.
Mr. GROSS:Now, what criteria or standards would you apply in coming
to your judgment that it is valid or otherwise? \Ve are talking here
about individual freedoms and the social implications thereof. Upon
the basis of what criteria or standards would one reach a judgment with
respect to the validity or otherwise of the allotment of rights and burdens
as between, Iet us say, a Bantu and a White, solely on the basis ofthat
group classification?
Prof.LOGAN:Since that group classification takes, to my mind, into
account various things other than race, namely culture and culture level,
meaning technological level, meaning degree of sophistication, politically
and sociologically and so on, the rights and privileges are awarded to WITNESSES AND EXPERTS
the individual group, and I repeat group---not the Bantu as a whole,
but the individual subgroup beneath the Bantu.
Mr GROSS:That is not my question, sir.
Prof. LOGAN:Well, I am afraid I cannot answer your question, be
cause the Bantu are not considered, other than in census figures, as a
total group, they are considered individually on the basis of the affiliation
that exists within the larger Bantu category.
Mr. GROSS:Considered by whom, sir?
Prof. LOGAN:Considered by the individual membership---the Herero,
the Damara, whichever it happens to be-and at the same time con
sidered by the Administration, by the Government.
Mr. GROSS:Again may I corne back to the question we had so much
difficulty with, but which again becomes confused in my mind: how,
then, do you reconcile the statement by the Prime Minister of the Repub
lic governing this Territory as a mandate, as you are aware, that "there
is no place for the Bantu in the European community above the level of
certain forms of labour"?
Prof. LOGAN:At the present time none of the Bantu groups, whether
it be Herero or Damara or what, is technologically, education-wise,
culturallyin any way, as a group capable of carrying on activities above
the level just mentioned, above the level of labour. I do not think the
Prime Minister said-although I am not responsible for his statements,
and I do not know all the things that he has in the back of his mind, and
I do not know what came before and after the statement that you men
tion-but I think that the Prime Minister had in mind, as is normally
the case in discussing things of this sort in South West Africa, that it is
always subject to change, that with the improvement in the level of the
Native peoples, their level of privileges and of duties will change; that
when they rise to higher levels within their own community, within
their own group, then they will acquire a higher status.
Mr. GROSS:Did you in your analysis and study of the situation in
South West Africa, in the respects relevant to your testimony, proceed
from the focal point of the individual as an individual, or as member of
a group in every case?
Prof. LOGAN:Basically as members of a group.
Mr. GROSS:The focal point which you used in your studies, then,
regarded each and every individual so-called "Native" in the Territory,
within the area we are defi.ning, as a member of a group?
Prof. LOGAN:Primarily, yes.
Mr. GROSS:Did you consider in any respect, and if so what respect,
the limitations on freedoms imposed on individuals from the standpoint
of any other context or focus than as a member of a group?
Prof.LOGAN:Yes, of course, because there is always the exceptional
individual, and where there is the exceptional individual then naturally
one has to take him into account. In the case of the exceptional individual,
sometimes the regulations bear heavily upon him-I think there is no
question of this. There are in every one of the communities, every one
of the Native groups, I am sure, in South West Africa one, or some, or
sometimcs a reasonable number of people who have the ability to have
privileges at a higher level than is accorded to the group. This is true in
any society, and one has to aim at the best for the greatest number of
people, and that is what is being aimed at in this particular case, ail the
way through-the prevailing level of the greater part of the group. SOUTH WEST AFRICA
A few, yes, I think unquestionably are harmed by this; we have exactly
the same thing in our own societies.
Mr. GROSS:Professor Logan, Ishall endeavour to make my questions
shorter and more specific if I possibly can and, with the President's
permission, may I invite you to match me if I succeed?
Prof. LOGAN: 1'11try, sir.
Mr. GROSS: I would like to refer, Mr. President, to the verbatim
record of 8 July at pages 365-366, supra, in which you, Professor Logan,
were referring, among other things, to the question of population den
sity-and you stated that this was with respect to the northern Reserves,
I believe, was it not, sir? Shall I read it first and then ask you to qualify
it?
Prof. LOGAN:Please, since I don't know page 365.
Mr. GROSS:Right.
"The population density [and I quote] as I indicated, is fairly
high. It is beginning to push perhaps, against over-population, it
is reaching saturation in the area. This means that subsistence
agriculture, followed continuously far into the future, would lead
to poverty in the area, would lead to malnutrition and so on. The
population pressure is seeking escape in several directions."
This is on page 365, supra. You recall that?
Prof. LOGAN:Yes.
Mr. GROSS:Then, finally, just one sentence from the same page of this
verbatim. Among other things, you referred again to the matter of
seeking escape in several directions, and you said finally:
" ... the other means of escape is to shift from a subsistence agri
culture base alone, to some sort of base in which cash is involved
and, in this, the Ovarnbo have corne to be increasingly interested in
going outside Ovamboland to work".
I thinkithas been established, has it not, sir, that there are approximately
25,000 to 26,000 Ovambos who are normally recruited for labour?
Prof. LOGAN:Yes.
Mr. GROSS:Incidentally, with respect to the Ovambos recruited for
labour, ·you have testified that they go on contracts ranging from one
to two years. Is that not correct substantially?
Prof. LOGAN:Yes, that is substantially correct.
Mr. GROSS:I wanted to ask you in that connection, before coming
back to my main question, what is the average rate of return of an in
dividual Ovambo labourer-rate of return to the southern sector after
his sojoum home, on the expiration of his contract?
Prof. LOGAN:You mean cash return?
Mr. GRoss: What is the average number of times, let us say, in which
the individual returns to the southern sector for the purpose of labour?
I mean how many successivè contracts of shorter duration would be,
on the average, negotiated with him?
Prof. LOGAN:I cannot answer specifically, but a great proportion of
those who go the first time, return at least a second time and there are
many contract Ovambos who have been a number of times into the Police
Zone.
Mr. GROSS:So that, from your observation and study, would it be WITNESSES AND EXPERTS
correct to say that at least a substantial number of the Ovambo male
labourers, who are recruited to go to the southern sector, do return
often and spend a good part of their working lives there, would you say?
Prof. LOGAN: I would not go as high as that, but they make several
one or two-year visits to the Police Zone-one or two-year contracts.
Mr. GROSS: But you are not sure how long in the aggregate how much
of their working lives on the average they spend there? You don't have
the information?
Prof. LOGAN: No, I don't have the information.
Mr. GROSS: Now, going back to the quotation-going back to the
main question I addressed to you before the question of the return of
individuals-with regard to the major question of the population pres
sure and thi~means of escape by shifting from a subsistence agriculture
to cash, the Ovambo have come to be increasingly interested in going
outside Ovamboland to work. Is this population density, the population
pressure that is involved, a phenomenon which has a tendency to in
crease or decrease?
Prof.LOGAN: The population pressure?
Mr. GROSS: Yes.
Prof. LOGAN: The population pressure is increasing. Under the old
tribal conditions of earlier times the mortality rate balanced the birth
rate and there was very little increase in the numbers of people, but with
the health measures that have been introduced in recent years the
mortality rate, particularly infant and disease rate, bas been greatly
dropped and this has resulted in quite a soaring of population.
Mr. GROSS: Therefore this bears, does it not, at the present time at
least, on the question of the extent of the volition of an individual working
and living in the southern sector and not in Ovamboland or, in this case,
take your pick, of any Native living and working in the southern sector.
The population pressure and its consequences in the northern areas,
does it, or does itot have an effect on the exercise of his volition, in the
sense in which you use the word?
Prof. LOGAN: Any man in Ovamboland can still live and exist at
a normal Ovambo standard without going out ...
Mr. GROSS: I am talking about the other way round, sir.
Prof. LOGAN: 13ut, if he wishes to achieve anything above this level
then his easiest way and his best way of doing it is to go out.
Mr. GROSS: I am talking about 1t from the other side, sir. Would
you takc it now from the standpoint of the individual residing, living
and workinfi in the southem sector who is considering whether to exercise
his volition m favour of staying where he is, subject to the limitations on
his freedoms which are admitted to exist, or to go, whether he has been
there beforc or not, to his territory. In exercising that volition, ifhe
were aware of the problems, would the population pressure and its
consequences affect his freedom to make a decision?
Prof. LOGAN: But the population pressure just described is only
in Ovamboland; and ail of the other Natives, which I take you to be
talking about, would not be going back to an over-populated Reserve.
They would be going back to their own Herero or Dama or Nama
Reserve, which would not be over-populated. The southem Reserves
are not over-populated.
Mr. GROSS: So that the answer to my question is that the persan
exercising the volition that we are talking about would have to decide SOUTHWESTAFRICA
whether or not to move himself and his family to a Reserve within
the Police Zone. Is that it? That was what your answer implied?
Prof. LOGAN:Yes, and therefore there is no relation to this population
pressure in Ovamboland. The two are totally distinct from one another.
Mr. GROSS:Yes. Now, with respect to the Ovambo who is recruited
for labour and who goes to the southem sector, his volition is affected
by the conditions in Ovamboland which you have described, and he
goes to the southern sector, as you have testificd I think, to obtain
cash in order to live above the subsistence level that prevails in Ovambo
land. Is that correct?
Prof. LOGAN:That is correct.
Mr. GROSS:So that in his case, in the case of that individual or the
group of 26,000----theycorne to work in the southern sector for economic
gain which, to them, means living above a subsistence level or not.
Is that correct?
Prof. LOGAN:That is correct, yes.
Mr. GROSS:So that, in their case, if they were subjected to limitations
imposed upon the freedoms by reason of being present in the so-called
White territory, in your judgment would they have a free choice
exercise of volition-in the sense in which you use the word, as to whether
or not to stay home or to go to work for cash elsewhere?
Prof. LOGAN:I believe they are subjected to most of the limitations,
as you put it, that are already existent and affecting the other people.
Mr. GROSS:They are, sir, we can take that as given. My question is
that being the case, and they having no place but a bare subsistence
economy to live in in Ovamboland, one in which population pressure
is increasing-whether you would care to say whether you believe that
such a labourer, or such a group of !abourers, has a free choice in the
exercise of volition, whether or not to stay home or to cotoethe southem
sector for cash.
Prof.LOGAN:They have a free choice.
.Mr.GROSS:They have a free choice to stay in a subsistence economy
or to try to improve their lot by coming to the southern sector?
Prof. LOGAN:Correct.
l\fr. GROSS:And this is the sense of the word "volition" that you
used?
Prof. LOGAN:Yes.
The PRESIDENT:What is the meaning of "free volition" or "free
choice" whatever was the term you used, Mr. Gross?
Mr. GROSS:Yes, sir, would you explain to the Court, sir, what, in
your response to my question, you had in mind with regard to the
phrase "volition".
The PRESIDENT:"Free volition?" If those were the words used, what
is meant by them?
.Mr.GROSS:"Free volition." I asked you and you said "Ycs". Would
you elaborate, if you please, sir?
Prof. LOGAN:To my mind "volition" means "of one's own will",
of "one's own desire", and I think the word "free" is unnecessary in
the case here. By this I mean that the people who wish to corne to the
Police Zone to work make this known to their local chief, to their local
headman, and to the proper authorities representing the Whites of the
Police Zone; they volunteer, in other words, for labour, they are not
conscripted; they volunteer for labour and then at a certain date are WITNESSES ANDEXPERTS
told to report at a certain recruiting headquarters from which they are
transported into the Zone.
Mr. GROSS:Mr. President, may I clean up my grammar, with the
permission of the Court and the witness by striking out the word "free"
and just using the word "volition" in terms of the response. Thank
you, sir. The pleadings of the Respondent in the Rejoinder-I have
referred to VI, page 203-----containthe following sentence, which paren
thetically refers tohe Applicants and States: "Applicants' basic premise
is, of course, false: there is in fact no 'population pressure upon the land'."
Would you comment on that statement in the light of what you have
said?
Prof. LOGAN:Yes, I think that if you refer back to my testimony of
yesterday, you will see that I said "this is approaching population
pressure", I do not think I said "was over-populated". The area is not
over-populated, it is approaching this; furthermore, there is within it
it being a purely agricultural area-no opportunity for developing much
of a cash economy under the existing physical conditions. When these
are changed by the bringing in of the irrigation of water and so on,
the whole situation will change, but at the present time this is the
situation. Therefore the area, with its expanding population, is headed
towards eventual population pressure which is seeking outlets in varions
ways as we indicated. But I do not feel that it is an area yet of over
population; already people are beginning to find ways of solving the
problem in their own manner. The area is one-if I may clear one point
-of subsistence economy, but subsistence economy does not necessarily
denote impoverishment or malnutrition or anything of that sort. All
of these economies were, or are still, subsistence until the influence of
the European within the last 70 years, and consequently this is just one
area that still remains at subsistence economy Ievel; but this is not a
case of impoverishment or malnutrition or anything detrimental.
Il.fr. GROSS: I would like to remind you, Professor Logan, that in
your testimony which I have referred to on page 365, supra, of the
verbatim of 8 July, I quote the following sentence: "The population
pressure is seeking escape in several directions."
The PRESIDENT:Where on the page it is, Mr. Gross?
Mr. GROSS: Page 365 in the second paragraph-the middle of the
paragraph.
Prof. LOGAN: "Population pressure" and "over-population" are
two different things, and there is population pressure here but there
is not yet over-population: I would make a distinction between the two
of them. I do not think the area is overpopulated: there is a pressure
upon the land already.
Mr. GROSS:Professor Logan, if I may suggest, sir, I do not mean to
curtail your response, but we might save time if we understand the ques
tion. I want to go back to the sentence I quoted from the Rejoinder, VI,
at page 203: the sentence is: "Applicants' basic premise is, of course,
false: thereis in fact no 'population pressure upon the land'." Now I read
the sentence from page 365, supra, of the verbatim of 8 July, in which
you say: "The popula tian pressure is seeking escape in several directions."
The PRESIDENT:Mr. Gross, if you read the preceding paragraph, you
will see it has been said, partly at least in the context, that the popula
tion pressure is from Angola.
Mr. GRoss: \Vell, Mr. President, if I then may, sir, ask Professor Logan SOUTHWESTAFRICA
410
for the clarification or elucidation of this point. When you said that the
"population pressure is seeking escape in several directions", what did
you mean by the phrase "population pressure"?
Prof. LOGAN:I mean that it is approaching saturation. May I put it
on a personal individual basis-a man has a piece of land, he has several
children, this land has to be divided among several children: where can
they go, they cannot continue to farm that piece because there will not
be sufficient food produced upon it. They must go somewhere; so, some
go to the east into the forest area and pioneer there; some decide that
maybe they can engage in some kind of business locally; others decide
that they will go to the Police Zone as labourers; this is not yet over
population, but there isa pressure upon the resources of the land.
Mr. GROSS:One more question on this; would you be prepared to ex
press your expert opinion, as a geographer who has studied the area, with
respect to the statement I have quoted from the Rejoinder, that: "Ap
plicants' basic premise is, of course, false: there is in fact no 'population
pressure upon the land' "?
Prof. LOGAN: Ithink we are using two terms.
Mr. GROSS:We, being who, sir?
Prof. LOGAN:The person who wrote that report.
Mr. GRoss: Yes, sir.
Prof.LOGAN:... and myself are using the two terms somewhat loosely,
as perhaps I have done earlier here. I think that there is no over-popula
tion, there is some population pressure.
Mr. GRoss: Would you be prepared to express a view as to whether
the Applicants' premise that there is population pressure is false?
Prof. LOGAN:Yes, I would say that the Applicants' contention is false.
Mr. GROSS:That there is no population pressure?
Prof. LOGAN:No.
Mr. GROSS:That there is population pressure?
Prof.LOGAN:There is no over-population, but there is population pres
sure.
Mr. GROSS:The Applicants' statement said nothing about over-popu
lation, would you bear with me. The statement quoted is: "Applicants'
basic premise is, of course, false: there is in fact no 'population pressure
upon the land'." Would you characterize that statement, that premise
of the Appiicants, as false?
The PRESIDENT:I do not think you can put a question such as that,
Mr. Gross. You can ask the witness whether or not he agrees.
Mr. GRoss: Would you agree, if you were asked the question, "Is the
statement that there is population pressure upon the land a false or true
statement", how would you answer the question?
Prof. LOGAN:I would answer it, that it was ... I am sorry I have lost
the statement now. The statement is, that there is over-population.
IlfrGROSS:There is "population pressure upon the land"-that is the
statement. If you were asked your expert opinion as a geographer, hav
ing ...
Prof. LOGAN:I would have to say that there is population pressure
upon the land. I would also want to say that there is no over-population.
Mr. GRoss: Thank vou. Now, I would like to refer to a comment in
your testimony with respect tothe communication among varions tribes.
I refer to the verbatim record of 8 July:
"The language differences between each of the individual groups WITNESSES AND EXPERTS 4II
within the area-the ones I named a moment ago-are, in nearly
every case, so profoundly different that one group cannot speak to
the other, there is no way of communicating in their own languages
between one another, they cannot understand each other. ... none
of the groups are able to converse with one another within their own
language patterns." (Supra, p. 368.)
Now, in order to refresh your recollection about the groups referred to
I will read:
"There are two basically completely different languages within the
area; the Khoisan ]anguage of the southern portion (the Nama, Da
mara and Bushmen language) is basically different in all of its fon
damental characteristics from the languages of the Bantu peoples."
(Ibid.)
I beg your pardon, I think that the groups you are referring to are
further back in the record. I think they are-correct me if I am wrong
"the Ovambo, the Okavango, the inhabitants of the Caprivi Strip, the
Kaokovelders, the Herero, the Damara, the Nama and the Bushmen".
The PRESIDENT:Would you give me the page, Mr. Gross.
Mr. GROSS:At page 368, the first paragraph of Professor Logan's
ans\ver to the question of Mr. Muller.
Let us clarify the record here, because the context is somewhat con
fusing, I think. When you refer to the language differences between each
of the individual groups within the area (the ones I named a moment ago)
were you referringto the Khoisan versus the Bantu, or were you referring
to the separate groups enumerated earlier on that page?
Prof. LOGAN:I think there is a parenthetical expression in it that says
"for the most part" or "in most cases". If I allow that to stand then I am
referring to all the sub-divisions within the groups.
Mr. GRoss: No, that is not what you did say. May I refresh your recol
lection asto what you said, sir? Would you care for me to read it again?
"The language differences between each of the individual groups
within the area-the ones I named a moment ago-are, in nearly
every case, so profoundly different that one group cannot speak to
the other, there is no way of communicating in their own languages
between one another, they cannot understand each other. [And then
you said, later] ... none of the groups are able to converse with one
another within their own language patterns."
Now would you .. ,
Prof. LOGAN:The last sentence is incorrect.
Mr. GROSS: It may be modified ...
The PRESrDENT:I think not, 1'1fr.Gross, it says "aside from certain
curions exceptions ... none of the groups".
Mr. GROSS:"Aside from certain curions exceptions, such as the Damara
who speak Nama, none of the groups are able to converse with one an
other ... " Are there any other curions exceptions?
Prof. LOGAN:Yes, thère are a couple of others. The Kaokovelders are
either Nama who can speak to other Namas, or splinter-groups of Herero
who can converse well, or poorly, with other groups of Hereros. I think
that is the limit of the exceptions.
Mr. GRoss: Right, now for the sake of clarity in your response, will
you address yourself, if you please, to the groups which do not involve412 SOUTH WEST AFRICA
the so-called "curious exceptions". With respect to these groups and the
problems of communication to which you refer, do any of them, or do a
substantial number of them, speak a language other than their own lan
guage in the sense in which you refer to "their own language patterns"
in the testimony?
Prof. LOGAN: No, there is nothing in South West Africa comparable
to Swahili, for example, on the East coast, or to Papiamento in the Ca
ribbean, or pidgin English in the South Pacifie. There is no lingua franca
that is generally used.
Now among the Natives of the Police Zone farms and Reserves a fairly
high proportion speak Afrikaans and so Afrikaans becomes something of
a lingua /ranca there, but Afrikaans is, of course, a European language
-it is Holland's Dutch, once removed-and it is the language of a good
portion of the White population of the Territory. So this is used by some.
When you get into the Reserves of the north, where the White influ
ence has not been felt as strongly in the local communities, then there is
not even Afrikaans as a Zingua franca.
Mr. GRoss: The testimony given on 7 July 1965 was being given by
Dr. Bruwer who, with respect to the question of the devclopment of lingua
franca, said as follows when he was asked about the language position in
response to a question by an honourable Member of the Court:
"N ow, Mr. President, that is the language position, basically, apart
of course, from the fact that in the schools, and in practical use, the
people also make use of either English or Afrikaans. Asto the devel
opment of a Zingua franca, I cannot say that a Zingua franca, apart
from Afrikaans and English, has developed in South West Africa, a
language which one could say is, as such, something that was devel
oped in South West Africa and that is understandable by all the
people. I have tried, Mr. President, to indicate to the honourable
Court the great differences between the two language families that
we have."
And then he made the following comment in his testimony, to which I
will call yourattention:
"As to the use of English and Afrikaans as media of communi
cation, Mr. President, I have always been astonished that it is pos
sible inSouth West Africa, practically everywhere, to make onesclf
understood in either English or Afrikaans. As a matter of fact, in
Ovamboland-1 have more knowlcdge of the Ovambo people, I
think, than any other-it has always astonished me that they speak
an Afrikaans which is not influenced by their own language [and
then he goes on to discuss that, which I think is irrelevant to this
purpose] ... one of the things that bas interested me very much,
Mr. President-the fact of the use of a language in such a form that
one could say that it has developed into a Zingua franca, and that
applies actually to both the two official languages, Afrikaans and
Eng!ish ... " (Supra, p. 328.)
\Vould you comment on that in terms of your testimony with regard
to the difficulty of communication in the absence of a Zingua franca?
Prof.LOGAN: I would agree quite thoroughly with it. I would not have
assumed that Afrikaans was quite that widespread in Ovamboland, and
I am sure it is not in the Okavango, as perhaps that seems to imply, but
I would subscribe toit completely, yes. WITNESSES AND EXPERTS
413
Mr. GROSS: Therefore, the development of a lingua /ranca, in this sense,
is something which you have observed, is it?
Prof. LOGAN: No, I say that there is not a lingua /ranca other than
Afrikaans.
:111GROSS: \Vell I am talking about lingua franca in terms of a language
used by more than one language group. They communicate with each
other through the medium of Afrikaans, is that correct?
Prof. LOGAN: Yes.
Mr. GRoss: Professor Bruwer stated that "the fact that the use of a
language [which interested him very much] in such a form that one could
say that it has developed into a Zingua franca, and that applies actually
to both the two official languages, Afrikaans and English".
I thought, if I understood you correctly, that you said you agreed
with Professor Bruwer's statement which I read to you. Did I misundcr
stand you, sir?
Prof. LOGAN: Well, I must be misunderstanding myself. Yes, I would
agree with what is said there, with what you have just read.
Mr. GROSS: That the Ianguage has developed in such a form that it
has developed into a lingua /ranca and that applies actually tobath Afri
kaans and English. You agree with that, sir, do you?
Prof. LOGAN: Yes.
llfrGROSS: So that anything that might be in the record that might
be understood as saying that you do not think there is a lingua /ranca is
not correct, is that correct?
Prof. LOGAN: Weil you see I use the term lingua /ranca apparently
differently from you and }Ir. Bruwer. Lingi,a /ranca, to my mind, is a
language which has developed out of several other Ianguages and is used
by a wide number of people. That is the case with Swahili, which is not
the language of any people, it is a language drawn from several different
languages. Pidgin English is the same way, Papiamento is the same
way, they are made up of several different languages. But in this case
Afrikaans has been adopted as a Janguage which is used by a number
of people. Thcrcforc if we use the term lingi,a /ranca loosely to includc
a language which has been adopted by others, then ycs, this would be
correct.
Mr. GROSS: \Vell, I think that takes us far enough in this direction, the
point being, apart from the usage of your interpretation of the phrase
"lingua franca", as distinguished from Profcssor Bruwer's, that there is,
in your observations on the basis of study, a large degree of communi
cation possible among the various groups.
Prof.LOGAN: But only by going to a European language, not within ...
Mr. GROSS: I am trying to avoid confusion by assuming that this is the
situation, which I am sure you and Professor Bruwer are right in de
scribing. Regardless of the medium of communication, whether it be
English or Afrikaans or both, thcre is-according to this tcstimony, if it
is understood correctly-is there not, a high degree of communication
possible by word of mouth, by speech, among the various groups, even
though their own tribal languages differ? Is that correct?
Prof. LOGAN: That is correct, except in the Native Reserves of the
north, as I said at the beginning of my statements here, particularly in
the Okavango, where Afrikaans is still not even used.
i\1r.GROSS: \Vhat about Ova.mboland, sir?
Prof. LOGAN: Professor Bruwer knows far more about Ovamboland SOUTHWESTAFRICA
than I, and, consequently, I would bow to any testimony that he stated,
on Ovamboland.
Mr. GROSS:So that an Ovambo, the average or typical Ovambo or
however you would describe him in group ternis, is capable of speaking
a language other than his own, and, in fact, rnany Ovambos do. Is that
correct?
Prof. LOGAN:If that is what Professor Bruwer said, yes.
Mr. GRoss: Have you been in Ovamboland?
Prof. LOGAN:Yes.
Mr. GROSS:Did you discuss matters affecting the welfare or interests
or conditions of the people there?
Prof. LOGAN:Yes.
Mr. GRoss: In what language did you speak, sir?
Prof. LOGAN:Principally in English.
Mr. GROSS:Did you speak with any Natives-dassified as Natives?
Prof. LOGAN:Yes.
Mr. GRoss: They spoke to you in English?
Prof. LOGAN:In most kraals you can find a person who speaks English
because this is a man who has been in the Police Zone, as a contract
labourer.
1fr. GRoss: You spent some time in Windhoek, or other areas of the
southern sector outside of the Reserves?
Prof. LOGAN:Yes.
Mr. GROSS:Did you discuss matters with non-Whites, persans clas-
sifi.edas non-White?
Prof. LOGAN:Yes.
Mr. GRoss: In what language did you speak there?
Prof. LOGAN:In the Police Zone, nearly all Natives speak either Afri
kaans or English, basically Afrikaans.
Mr. GROSS:And these persans, with whom you talked, were not all
Ovambos, were they?
Prof. LOGAN:Oh, no.
Mr. GROSS:So that an Ovambo who speaks English or Afrikaans is
capable of communicating with a Herero who speaks English or Afri
kaans?
Prof. LOGAN:Absolu tely.
Mr. GROSS:So there is between them that possibility of communi
cation?
Prof. LOGAN:That is quite correct.
The PRESIDENT:I think Mr. Gross that there is no inconsistency be
tween what the witness says now and what he said at page 368,
supra, because he was there speaking of inability "to communicate with
one another within their own language patterns", that is on page 368.
Mr. GROss: Yes, sir. I had, with respect, Mr. President-! am afraid
I did not state my question clearly-proceeded from that to a consid
eration of the problems of communication and the means, and mode of
communication, without implying that this was attributable to the wit
ness's statement. Thank you, sir.
The development of this capability of communication, in a language
other than the vemacular, or tribal, or whatever you may call another
local language-that was in response to a need, would you say?
Prof. LOGAN:Yes.
Mr. GROSS:And on the basis of your observation and study, would you WIT)l"ESSES AND EXPERTS
regard it as important, from the standpoint of the development of the
individual, the ability to communicate with others, that he do receive
language instruction?
Prof. LOGAN:Absolutely.
Mr. GRoss: In Afrikaans, or English?
Prof. LOGAN:Yes.
Mr. GROSS:Had you corne to a conclusion as to what level it would
be desirable or necessary to carry him in his learning, in his learning, his
accomplishment in one of the Zingua /ranca languages, in terms of Dr.
Bruwer's cla;;sification?
Prof. LOGAN:Yes.
Mr. GRoss: And approximately what would be your conception of the
level to which that education should be carried in the case, let us say,
of an individual in the Police Zone outside the Reserves?
Prof. LOGAN:To a level sufficient to allow him to communicate clearly
with anyone.
Mr. GROSS:On any particular range of questions, or all questions per
taining to his life in the modem sector?
Prof. LOGAN:Well, yes, so that he can converse in a normal manner
with anyone about any practical subject.
Mr. GROSS:The next line of questions I have, relate to a statement
you made in your testimony on 8 July in the verbatim record, at page
383, supra, in response to a question addressed to you. You stated "I
don't necessarily agree with everything in the Odendaal Commission re
port". Do you recall having said that, sir?
Prof.LOGAN:Yes.
Mr. GRoss: You have studied the Odendaal Commission report?
Prof.LOGAN:Yes.
Mr. GROSS:Did you have anything to do with the preparation of the
report?
Prof. LOGAN:Nothing whatever.
Mr. GROSS:ln the Odendaal Commission report itself, I quote from
page 427, paragraph 1431, the Commission makes the following state
ment:
"The moral and economic principles of a modern economic sys
tem are different from those of traditional groups where the group
and not the individual is the focal point. The modern economic sys
tem and the traditional system are therefore not comparable or read
ily reconcilable. Their problems are different, their human values
and motivations are different. Consequently, there has to be a dif
ferentiated policy."
In general, is that one of the findings or considerations of the Oden
daal Commission report with which you agree, or disagree?
Prof. LOGAN:I do agree with it.
Mr. GRoss: ln his testimony of 5 July, which is in the verbatim, at
page 269, supra, Dr. Bruwer was asked the following question by the
Applicants:
"Do you consider, as a social anthropologist and as a member of
the Odendaal Commission, that there are any individuals catego
rized as non-White in the southem sector who have attained the
status of the focal point as an individual?" SOUTH WEST AFRICA
The answer was:
"The focal pojnt, that is where one can now say that it is the cri
terion of the modern economy that complies, I think that one could
well say that there may be individuals of that nature."
That was in the context of the southern sector; we were addressing
ourselves to the southern sector outside of the Reserves with 125,000
Native persons, as they are categorized, who live there. Do you agree
with the response of Dr. Bruwer that one could well say that there may
be individuals in this area to whom the focal point, the consideration of
moral and economic principles, is applicable?
Prof. LOGAN : Yes.
Mr. GRoss: As individuals?
Prof.LOGAN: y es.
Mr. GROSS:Have you held discussions with such individuals in your
studies in South West Africa?
Prof. LOGAN: Yes.
Mr. GROSS:By what criterion or standards would you be prepared to
express a judgment or reach a conclusion as to whether the individual
bas attained that point of development, or whatever the phenomenon is,
that entitles him to be viewed from the focal point of an individual as
distinguished from the focal point of a group? Could you answer that
question?
Prof.LOGAN: Yes, when he has acquired a persona! stature in business,
in education, in his thinking so that he begins to separate himself from
the group and stands above the group.
11Ir.GRoss: Now, if you were judging a person's rights or duties, on
the basis of this consideration, could you advise the Court, or state to the
Court, any criteria or standards upon which your judgment would be
based, other than what I have just said? How would you know whether
to apply thesc standards which you have mentioned to a particular indi
vidual? Would vou leave it to the individual to make the determination
and advise you "whether he has matriculated to that extent?
Prof. LOGAN: No, I think that it is quite clearin many cases, when you
encounter such a person, a persan who has had an education above the
first two or three years of schooling, when the persan owns a business or
conducts some kind of professional development or operation; this person
obviously stands above the rest of the community and is differentiated
from the rest of the community.
Mr. GROSS:At that point of his accomplishment, then, is it your view
that he has attained a status at which he should be judged as an individ
ual and not as a member of a group in terms of his rights and duties
and freedoms?
Prof. LOGA.N: He will be judged as a member of the group who bas
achieved these things and will achieve this status within his group.
Mr. GROSS: So that the limitations imposed upon his freedoms will
always be regulated or measured by reference to the fact that he is clas
sified in a certain group? Is that correct?
Prof. LOGAN: Yes, I think so, exactly the same way as you are clas
sified as an American lawyer rather than a Dutch lawyer or a Japanese
lawyer, within your group.
Mr. GROSS:Classified by law?
Prof. LOGAN: Just thinking generally, in as far as your passport is WITNESSES AND EXPERTS 417
concerned, as far as your salary is concerned, this all fits within your
particular group to which you belong.
l\:1r.GROSS:Are we talking about the classification among professions
or are we talking about classification of individuals, for the purpose of
determining whether restrictions or limitations should be imposed upon
their rights or freedoms? It was the latter that I was talking about.
Prof. LOGAN:Well, I would have to know, first, what you mean by
limitations of rights and freedoms.
Mr. GROSS:You have testified, I believe, in the following words, at
page 343, sHpra, of the verbatim of 7 July:
"I am quite aware, however, of the rights and privileges and the
limitations thereon, as anyone living in and observing critically and
carefully a society ordinarily is, and consequently I think I can
talk with a fair degree of certainty in regard to how much freedom
or lack thereof there is on the part of the Native group in South
West Africa."
I am talking now, about the question of "freedom or lack thereof", with
respect to a particular individual and when I use the phrase "limitations
imposed upon freedom" I am using it in the same sense in which, I take
it, you were using it, or do you have a special sense of the word "free
dom"? Would you care to define it for the Court?
Prof. LOGAN:Well, it becomes difficult to know what is referred to by
"limitations upon frcedom" for the man ,vho is, let us say, a tradesman, a
merchant in the Native community, a Herero who has acquired consid
erable money, and has a shop, and so on; he can continue to be a trades
man in the Native area, in the township of Katutura in Windhoek; he
cannot trade, he cannot set up a shop in the White area of Windhoek.
This may be looked upon as a curtailment of his freedom. Now, in ex
actly the same way, however, a White merchant cannot set up a shop
within the Native area of Katatura; he can sell merchandise within the
White area of Windhoek but not within the Native area; and so there
is a limitation and a curtailment in both directions here, upon both of
the groups involved.
Mr. GRoss: You say that there is a limitation?
Prof. LOGAN:Yes.
11r. GROSS:Imposed, or is it voluntary on the part of the individual
is it imposed by the Government, or is it voluntary?
Prof. LoGAIS: Itis imposed by law.
Mr. GROSS:So that now we understand each other on what we mean
by the imposition of limitations; what is left now is to develop an under
standing for the benefit of the Court as to what we mean by freedoms
is that correct?
Prof. LOGAN:AH right.
Mr. GRoss: Now, are you aware of any deprivation of freedoms with
respect, let us say, to the ability to attain a certain level of employment,
merely on the basis of race or colour?
Prof. LOGAN:Yes.
Mr. GROSS:Would you regard that as a limitation upon freedom?
Prof. LOGAN:Surely.
Mr. GRoss: Yes.
Prof. LOGAN:But it must be viewed in the whole context of the coun
try, because it works in both directions. SOUTH WEST AFRICA
Mr. GROSS:We are talking now, Professor Logan, in the context of
the individual who has obtained his degree or status of being a focal
point for our discussion as an individual, and I am referring to the im
position of limitations upon the freedom of an individual. i\iay I ask
you, sir, do you regard limitations of freedom as being characteristicaHy
individual in their application.
Prof. LOGAN;Sorne are individual, some are group; there are bath
types of limitations imposed in the area, yes.
Mr. GROSS:Can a limitation be imposed upon a group---a limitation
of freedom-which is not imposed upon the individuals composing that
group?
Prof. LOGAN:Probably not.
Mr. GROSS: Probably not, sir. Buta "group" in that context isa pure
abstraction, is it not, if we are talking about limitations on freedoms,
and merely describing a number of individual persons whose freedoms
are curtailed-is not that correct?
Prof. LOGAN:Yes.
Mr. GRoss: With respect to the individuals whose freedoms are cur
tailed, we have now established that one of the freedoms would be the
freedom to obtain work or to perform services at a level higher than,
let ussay, some forms of labour, if he bas theinnate capacity to perform
services at a higher level. Would you agree that is a deprivation of the
individual's freedom?
Prof. LOGAN:That is correct, within the particular area concerned.
Mr. GROSS:The area of an individual, I should think, would be bound
by ...
Prof. LOGAN:No, not the area of the individual, the geographical area.
The Native cannot work above a particular level in the European portion
of the Police Zone.
Mr. GROSS:That is what we are talking about.
Prof.LOGAN:Within his own Reserve, however, he can go to any level;
within the Native township within the European area of the Police Zone
be can go to any level; in Katatura in Windhoek he can operate any
kind of machinery, he can be a doctor, he can go to any level desired,
but not within the White area.
Mr. GRoss: I think the Courtis aware of that, that has been brought
out, that there is a cornpensatory factor. This has been established;
that certain people by reason of race are deprived of freedoms here; the
compensation or equivalence thought to be fair is that other people in
turn are deprived of freedoms somewhere else-this the Court under
stands. But if we could confine ourselves, if you will, to the individual
who is spending his working life in a particular situation-working in
a mine, or working in a factory, or living all his life so long as he can work.
in the home of a White employer in Windhoek-such a person is deprived
of certain freedoms, and it is those to which we are addressing our
selves.
Prof. LOGAN:But he is only deprived of these because he likes to live
in Windhoek, or to work in that mine, or work in that farm or factory,
and if he does not wish to liveinWindhoek, then he can go to his Reserve
area and live there and enjoy those freedoms.
Mr. GROSS:So that the price of his living in Windhoek, the price which
he must pay for the privilege of living in Windhoek, is a limitation im
posed upon his freedoms-is that correct? WITNESSES ANDEXPERTS
Prof. LOGAN:A limitation imposed upon certain freedoms, yes. The
freedom to go above a certain level economically, but only that.
;\lr. GROSS:Is this, Professor Logan, what you had in mind when you
testified in the verbatim record at page 354, supra-that would be on
7 July-as follows-I will read from the text of your testimony, so that
you have it clearly; you said, among other things, as follows on that page:
". . . they [that is, in this context I believe you were referring to
the Herero] are engaged in a wide variety of occupations. The Herero
are quite frequently in town; the women work as laundresses and
housemaids for the most part; the men work at a number of different
jobs, ranging up to as high as truck driver and chauffeur; they work
as deliverymen, and positions of that sort."
I call your attention to the phrase you used "as high as". Would you
exp]ain what you meant by that phrase?
Prof. LOGAN:Weil, again they are limited in being employed at a
higher level by the Job Restriction Act within Windhoek-we are talking
about within the towns.
r1IrGROSS:I am talking about any place you wish to talk about within
the southern sector, outside the Reserves.
Prof.LOGAN:Yes, that is correct.
l\'1. Ross: Just to localize it, so that we know what we are talking
about.
Prof. LOGAN:But it is not true within Katatura.
Mr. GRoss: I am not asking you, sir, where it is not true-we can
corne to that, perhaps, later, if it is relevant.
The PRESIDENT:I think perhaps the witness had better answer the
question, if you can, directly; if you need to add an explanation, then
add the explanation.
Prof. LOGAN:But Mr. President, the point is that within the Police
Zone outside the Reserves there still is the Native area within Windhoek.
l\Ir. GRoss: I object to that, Mr. President-it is not being responsive.
The PRESIDENT:Well, I suppose the Court may as well know what is
in the witness's mind, Mr. Gross, and this has been said more than once
-I think we ail know it-what is being said at the moment.
Mr. GROSS:I will not formally object.
The PRESIDENT:\Vell, continue the cross-examination.
l\Ir. GRoss: Do you wish the witness to continue?
The PRESIDENT:No, continue the cross-examination.
l\Ir. GROSS:We are talking about the group of individuals who live
in Windhoek, or an individual who lives in Windhoek, now. You have
explained to the honourable Court what you meant by the phrase "as
high as" in the testimony which I have quoted, and I believe you tes
that you had in mind the restrictions
tified, if I understood you corrcctly,
that were put upon his achieving higher employment status-is that
correct?
Prof. LOGAN:That is correct.
Mr. GROSS:Now do those restrictions, on the basis of your study and
analysis, have any relationship to the individual's innate capacity or
personal potential and ability?
Prof.LOGA,."IT :hey have no relation to this, no.
:11IrGRoss: They are based entirely, are they, on his classification
under the census?420 SOUTHWESTAFRICA
Prof. LOGAN:That is correct.
Mr. GRoss: And would you, sir, in your use of the word "freedom"
in the context in which you said that you felt capable ta talk about it
-to describe it with a fair degree of certainty-regard this limitation
as a limitation imposed upon the freedom of these people that we are
discussing?
Prof. LOGAN:Within the area to which it applies, yes.
Mr. GROSS:Would you explain to the Court how the individual whose
freedom is limited in this respect is made any happier or easier by know
ledge that somebody else somewhere else is also being deprived of his
freedom; would you please express a judgment concerning what relevance
that has ta this individual's attitude?
Prof. LOGAN:lt has no relevance, but the man has the opportunity
himself to go to another area and there have the job at a higher level,
and that area may be only one mile away within the Native area of the
City of Windhoek.
Mr. GROSS:Suppose he does not want to do that-suppose he prefers
it where he is-would that affect your response?
Prof. LOGAN:Yes, it would affect my response-in precisely the same
way that the European farmer on a drought-stricken farm in the south
would like to go to the Okavango and farrn in a good area, and is pre
vented from this.
Mr. GROSS:Sir, may I ask you, without indulging in anything, or
attempting to suggest anything personal about this, do you, in your
approach toward this matter, always evaluate the question of whether a
person's freedom is being limited by reference to what somebody is doing
to somebody else?
Prof. LOGAN:No.
Mr. GROSS:Do you have any objective standards or criteria-would
you know when you were being, in the good old American expression,
pushed around?
Prof. LOGAN:Yes.
Mr. GROSS:What, then, relevance-again I ask the question-does
it have in terms of the individual whose freedom is being curtailed to
know that somebody else is also suffering somewhere else-if he chooses
to go there, he will see somebody else suffer in the same way he does
is that what you are telling the Court?
Prof. LOGAN:Not exactly, no.
Mr. GROSS:Well then, I would like you to explain to the Court-and
Iwill attempt not to argue with you on this point but genuinely to under
stand you-for the benefit of the Court: what relevance, if any, is there
to what happens somewhere else, or can happen somewhere else, in the
question whether an individual's freedom is being curtailed or Iimited,
where he lives, where he works and where he wants to stay-what is the
relevance of the other factor?
Prof. LOGAN: I think everyone's freedom has always been curtailed
by something, somewhere, and the attempt is being made here to develop
an area on a basis of groups.
Mr. GROSS:An area in the southern sector?
The PRESIDENT:He is answering your question, Mr. Gross.
Mr. GROSS:Mr. President, I find it very difficult to undcrstand whether
he is being responsive. · WITXESSES AND EXPERTS 421
The PRESIDENT: Sometimes the Court may find the question very
difficult to understand.
Mr. GROSS:If the witness, 1\lr. President, finds my question difficult
I urge that he request clarification, but I apologize for interrupting.
Prof. LOGAN:I am talking about the Territory, the entire Territory,
and the attempt that is being made to develop the entire Territory for
the best interests of the groups, and I repeat groups, that are inhabiting
it; and sometimes, in the development of groups of people, the interests
of individuals have to be sacrificed, and I think that in this case the
interests of some individuals had to be sacrificed to develop the groups
of the area.
Mr. GROSS:Are you finished, sir?
Prof. LOGAN : Yes.
Mr. GROSS: On what basis do you determine, and who makes the
determination, who sacrifices what?
Prof. LOGAN:I could not answer that-it is a hypothetical question
that could be answered in many ways.
Mr. GROSS:You will limit your answer to the general statement that
you made that some people have to be sacrificed?
Prof. LOGAN:Yes.
Mr. GROSS: Would you care to indicate an approximate percentage
of the population who must pay that price, in the context of the southern
sector of the Territory?
Prof. LOGAN:I find this difficult to do, to put a percentage basis on it.
Mr. GROSS:Are you making a moral judgment, sir?
Prof. LOGAN:No, 1 am not making a moral judgment-1 mean, I find
it difficult to say thatI per cent. or 3 per cent. or S per cent. are being
sacrificed. It would be a very small percentage in the situation as it
stands today.
Mr. GROSS:Would you regard S percent. as a small percentage?
Prof. LOGAN:Yes, I think so.
Mr. GROSS:You would be prepared to sacrifice 5 percent. of 125,000
people to accompHsh the objective to which you refer?
Prof. LOGAN:We have done this in war, as many times.
Mr. GROSS:Do you regard this situation in South West Africa as a
matter of war?
Prof. LOGAN:No, I do not know any more peaceful area in the world
than South West Africa.
Mr. GROSS:Let us talk about the peaceful context, then. The sacrifice
is to be made in a given area by a given set of individuals. May I corne
back to my question?
Prof. LOGAN:Surely.
Mr. GROSS:On the basis of what criteria is it to be determined who is
to be sacrificed and how many?
Prof. LOGAN:The ones who arc least in conformance with the pattern
of the group, the normal situation of the group.
Mr. GROSS:Suppose, for the sake of our hypothesis that they happen
to be persons of a highly superior innate capability-would that affect
the answer to the question?
Prof. LOGAN:Yes, it would affect it. I think that the people who were
of a higher development would find their own way of handling the situa
tion, that they would not insist on remaining in the area which was an
tagonistic to them, but would find thcir means of dcvclopment within 422 SOUTH WEST AFRICA
the area in which they fitted, in which they wished to develop their own
group.
Mr. GROSS:In other words, could we say, to escape from that situa
tion? Would you accept that phrase?
Prof. LOGAN: Yes.
Mr. GROSS:You would. And would that, in your judgment as a student
of man and his relation to land and the sociological studies you have
made, would that course be likely to drive out or induce those to escape
who might make the most contribution to the situation by remaining?
Prof. LOGAN: No, I think that they would make their contribution
within their own group. If you had a lawyer or a doctor who had been
well-trained-1 am speaking here of a Native one within the White area
ofthe Police Zone-and this lawyer or doctor, having been trained, would
not then attempt to find clients among the White population, but
rather would go with the Native population and thereby would raise the
whole status of the Native population, of the group to which he be
longed.
. Mr. GRoss: Suppose that he didn't like to live among the Native
population but wanted to live where he was, where he was bom-in the
Southern sector. Does that have anything to do with the decision?
Prof. LOGAN; He could still do this.
Mr. GROSS:Subject to the deprivation of his freedoms?
Prof. LOGAN: No, he could still do this within the Native township
in Windhoek. He could be with a group of 15,000 other Natives and .find,
within that group, a number of his own particular cultural group-
Herero or whatever he is.
Mr. GROSS: And that township would be, let us say, near Windhoek?
Near the city?
Prof. LOGAN: Yes, a mile from Windhoek.
Mr. GROSS:And would he then, in pursuit of his happiness in this form,
would he go to Windhoek occasionally? Would that fit into the scheme?
Prof. LOGAN: Surely.
i\fr.GROSS: And for what purpose would he go to Windhoek?
Prof. LOGAN: To buy goods that were not available within the Native
township; to take a trip on the train; to do things of this sort.
Mr. GRoss: To attend lectures, perhaps?
Prof. LOGAN: He could attend lectures, yes.
Mr. GROSS:He could participate in the life of the community subject
to the limitations on his freedoms?
Prof. LOGAN: Not in the social aspects of the life of the White com
munity, no.
Mr. GRoss: How many non-Whites presently reside in Windhoek?
Prof.LOGAN: ln Katatura you mean? Inthe Native area of Windhoek?
There are somewhere around 20,000 between Katutura and the old
location of Windhoek.
Mr. GROSS: Do any non-Whites work and reside in the homes of White
employers as domestics? You referred to that in your testimony.
Prof. LoGAN: Yes.
Mr. GRoss: Are they people?
Prof. LOGAN: Surely.
Mr. GROSS:Do you have any idea roughly how many there are of that
category?
Prof. LOGAN: No, I don't. It will be sevcral thousand. WITNESSES ANDEXPERTS
Mr. GROSS:And are they among those whom you think would find
their freedom and pursue their happiness in the townships by leaving
Windhoek if they felt that they were being denied freedoms?
Prof. LOGAN: Well, they live in the home in Windhoek. On their day
off or their hours off they frequently go to Katutura, which is only a
short distance away and there is a regular bus service. They go there to
visit their relatives and their friends.
Mr. GROSS: So when you talk about the person escaping from the local
situation are you talking about occasional visits to the townships?
Prof. LOGAN:No, we were not speaking in that category, we were
speaking about escaping in order to get a higher job classification.
Mr. GROSS:That is what I thought we were talking about, sir.
Prof. LOGAN: Well, now we seem to have drifted towards social
aspects.
Mr. GROSS:I apologize for leading us into the drift. I do want to stick
to the point, which is a basic point, obviously.
With respect to the several thousand non-Whites who live in Windhoek
and work there, is there any way in which they can escape from the
limitation upon their freedoms except by going to the townships, to the
Reserves, or to some homeland?
Prof. LOGAN: I fail to know what these restrictions are upon their
freedom that you are speaking about.
Mr. GROSS: I thought we had agreed, sir, that one of them, and this is
one that you mentioned yourself perhaps-maybe I did-is the ceiling
placed upon achieving employment above a certain level. I thought you
had agreed that that was a limitation.
Prof. LOGAN:That is correct. But you have already employed these
people in someone's home and that takes care of the situation then.
Mr. GROSS:The person employed as a domestic wishes to, let us say,
become a nurse. Shall we indulge that hypothesis?
Prof. LOGAN:Yes.
Mr. GRoss: Do you consider a nurse as being higher than a domestic?
Prof. LOGAN:Surely.
Mr. GROSS:Actually ail fonns of labour, I suppose, have a comparable
dignity, but this is, in these terms, howevec
Prof. LOGAN:Yes.
Mr. GROSS:Now, is the limitation imposed upon this persan, or this
group, which you testified is irrespective of their innate capacity or
ability,is that limitation one which you would regard as a limitation
upon the freedom of that individual?
Prof. LOGAN:But there is nothing to prevent this domestic servant
from becoming a nurse. There are large numbers of native nurses in
Windhoek.
Mr. GRoss: In Windhoek?
Prof. LOGAN:Yes.
Mr. GRoss: All right. Then there are not limitations placed in every
respect?
Prof. LOGAN:No.
l\fr.GROSS:Now, are there any male non-\Vhites who live in Windhoek
in domestic service or otherwisc?
Prof. LOGAN:Yes.
l\Ir.GRoss: Now, suppose such a person felt he had the capacity ta
rise higher than, let us say, a truck driver or a messenger and rcmain in SOUTH WEST AFRICA
424
Windhoek and spend his working life there. Could he do so? Would he be
free to do so?
Prof. LOGAN: He would be living in Katutura, not in Windhoek.
He would be living in the Native township and he would be curtailed as
far as employment is concerned within the area of the outside of Katu
tura. He would be unable to go to higher job classifications. Within
Katutura he could go as high as he wishes.
There is a British Petroleum station exactly like one finds here in
Den Haag and it is run by Natives, owned by Natives, there is no Euro
pean money in it whatever. There is a cinema ...
Mr. GROSS: I have not sought to suggest that Katutura was a barren
wasteland, but I am referring to the individual who wishes to work in
Windhoek and live in Windhoek and he is in domestic service now.
Can he rise higher than domestic service and remain in ·windhoek,
living there,is what I am asking you now?
Prof.LOGAN: Not in \Vindhoek, but in Katutura one mile away.
Mr. GROSS: Or in New York, or in Spain. But I am talking about
whether he can live in Windhoek except in the capacity of domestic
service.
Prof.LOGAN: No.
Mr. GROSS: Now, with respect again to the use of the focal point of the
individual as distinguished from the focal point of thegroup-I quotefrom
the words of the report of the Odendaal Commission to which your at
tention has been called-would you say that the difference of perspective
with which one approaches this matter is Iikely to affect one's judgment
respecting the degree, and kind, of limitations which should be imposed
upon freedoms?
Prof.LOGAN: Yes.
Mr. GROSS: Would you say also that the divergence of the perspective
might lead to differing uses of concepts in terms of reference?
Prof.LOGAN: Y es.
Mr. GROSS: For example, let us take the term "the Natives" which
you have used numerous times in your testimony-"the Natives". Is
this a scientific or technical term as you use it?
Prof.LOGAN: No. If you were going to use a scientific term you would
use Bantu or Khoisan, or indigenous or aboriginal population or "one of
the Aborigines". Native is a more colloquial term. I am a native of
Massachussets. You are a native of New York, or somewhere in the
United States.
Mr. GRoss: Now, when you talk about the group in terms of, let us
say, from your testimony, the Herero. Let us take that phrase which
appears, among other places, in the verbatim record of 8 July on page 369,
supra. You say, and I would like, with the Court's permission, Mr.
President, to read a very brief excerpt so that this is in context, as
follows:
"The Herero are a cattle people and all of their tribal law and
tradition, their customs, including marriage, and a variety of things
of this sort, are basedupon the tactthat they are a cattle people,
that is, one buys a bride in cattle, there is a bride price in cattle
paid. The fact that [I am skipping a sentence] they were nomadic
people and that the men were warriors, and that the women did
other things and the children did other things, means that today, WITNESSES AND EXPERTS
following the same pattern, the men, as I indicated before, are, so
tospeak, 'unemployed warriors'."
Do you recall that testimony?
Now, when you referred to the Herero as "cattle people" what would
be the relevance of that description to the half of the Hereros who are,
in the wonls of the Odendaal Commission report, ''absorbed in the diverse
economy of the Police Zone of the economic sector". Are they cattle
people, those Hereros?
Prof. LOGAN: They are no longer cattle people economically, but the
fact that they still bring up their children in the tribal traditions reflects
a good deal of this (if I may use such a terminology) cattle philosophy
-a philosophy involving cattle, involving herds and so on-from the
past. This is carried over. The past is very close in South West Africa.
They were a cattle people until 1900, 1905, 19ro, in roo percent. of the
cases, and in probably 70 per cent. or so of the cases today still have
strong affiliations with cattle. The business man among the Herero in
Katutura very frequently owns cattle today on the Reserve in Water
berg or Otjituuo.
Mr. GROSS: Are you through, sir?
Prof. LOGAN": Yes.
Mr. GROSS: Does the fact that a Herero does not own cattle change his
category, sir?
Prof. LOGAN: I don't think so as far as his tradition, as far as his
thinking, as far as his philosophy is concerncd.
Mr. GROSS: But he will always be one of the "cattle people"?
Prof. LOGAN: He still is, but I won't say he always will be, no.
Mr. GROSS: Now, you say also that the Herero "buys a bride in cattle,
there is a bride price in cattle paid". From your observation of the Herero
who are absorbed in the diversified economy of the southern sector, how
many cases have you observed or heard of in which a Herero in that
situation has bought a bride in cattle?
Prof. LOGAN: I know of two cases in Windhoek and in the only two
cases I do know of, the marriage took place on the Reserve and cattle
were paid, and in one case the man was a business man, in the other
case a chauffeur in Windhoek.
Mr. GROSS: These were two cases tha t you encoun tered? Now are there
other cases of which you have heard in which cattle were not paid?
Prof. LOGAN: These are the only two I know of in regard to this.
Mr. GROSS: And are there many cases?
Prof.LOGAN: I don't know of any.
Mr. GROSS: You have never heard of any case in which a Herero living
in the economic sector has married without paying cattle or vice versa?
You don't know of them?
ProL LOGAN: I do not know of them.
Mr. GROSS: So that when you refer to the Herero as people who are
cattle people and that is one who buys a bride in cattle, you are referring
to certain characteristics or customs which relate to a group of people
in a particular context and at a particular time, are you? You are not
referring to the characteristics of the people?
Prof. LOGAN: No.
Mr. GRoss: Therefore, in tenus of the question of the imposition or
otherwise of limitations upon freedoms, the fact that the Herero is a
member of a "cattle people" is irrelevant, isn't it-would you say? SOUTHWESTAFRICA
Prof. LOGAN: I wouldn't say itwas irrelevant.
Mr. GROSS:You would not say it?
Prof. LOGAN: Iwould not say it was irrelevant.
Mr. GROSS: I see.
The PRESIDENT:Would it be convenient, Mr. Gross, if we discontinued
at this stage?
Mr. GROSS:Mr. President, may I make a statement to the Court?
The PRESIDENT:If it is in relation to the examination of this witness.
Mr. GROSS:It is in relation to the examination of this witness.
The PRESIDENT:Very well then.
Mr. GRoss: It is really a matter of the balance of convenience of the
Court. I am aware of the fact that the testimony of other witnesses is
impending and Ithink that under the circumstances, entirely on my own
responsibility, sir, I wouldsay that perhaps I will reserve the right, if you
permit me to, to continue cross-examination if it were proper to ask whe
ther Members of the Court also wish to address, because I would not wish
to keep the witness here merely for my convenience over the weekend.
The PRESIDENT:Well, it is now one o'clock, Mr. Gross, and I think
the witness will have to corne back on Monday in any case. And then
there is Professor van den Haag who is coming on Montlay for cross
examination by yourself. I think perhaps the rnost convenient course is
to interpose Professor van den Haag, but the Courtis in the hands of the
Parties. The intention was to endeavour to enable Professor van den Haag
to retum on Montlay, I gather, to New York or elsewhere in the United
States and, for that reason, I think perhaps it is better to interpose
Professor van den Haag. Would that inconvenience you?
Mr. GRoss: Not at all, Mr. President. My hesitation in bringing the
matter up at all derives frorn the fact that I only have ro or 15 minutes
more and I just wanted to raise the balance of convenience.
The PRESIDENT: I think IO or 15 minutes more is too much.
Mr. GROSS:Thank you sir. •
The PRESIDENT:The Court will adjourn until Montlay. It is under
stood that Professor van den Haag will be in attendance on Montlay
morning at IO o'clock. Is that correct Mr. de Villiers? .
Mr. DE VILLIERS:Yes, Mr. President. That is correct. We would not
like to keep Professor Logan unduly if we knew that the rest of his cross
examination and, say, questioning by the Court would not take longer
than half an hour at the utmost, perhaps we could dispose of this witness
firstand then carry on with Professor van den Haag. But I would suggest,
if it meets with your approval, Mr. President, that we leave that to a
discussion between the Parties and perhaps we could advise you whether
we could corne to any agreement aboutit.
The PRESIDENT:I think that is a more convenient course. Certain
Members of the Court desire to ask questions but I do not expect that
they will run into great length of time, soif itis more convenient to the
Parties to continue and dispose of the evidence of Professor Logan first
thing on Montlay morning, then that will meet with the convenience of
the Court. But we are anxious, at the same time, to ensure that we do
dispose, if we can, in the morning also, of Professor van den Haag.
Mr. DE VILLIERS:We shall keep that in mind.
The PRESIDENT:If that can be done. If it can't be done then we shall
have to go over into the afternoon, so that we do dispose of Professor
van den Haag's evidence within the day. That is understood then? WlTNESSES ANDEXPERTS
[Public hearing of I2July z965]
The PRESIDENT:The hearing is resumed. I regret to state that Judge
Badawi has not recovered from his indisposition and will be unable to
resume sitting before the recess for summer. Judge Koretsky is suffering
from a slight indisposition following an accident. He hopes to be here
later in the morning.
I widerstand that the Parties have agreed that Professor van den
Haag should first be called. If so, Professor van den Haag should corne
to the podium.
Mr. DEVILLIERS:Mr. President, before cross-examination begins may
I say something to the Court? Professor van den Haag asked me to in
tima te that there are two matters on which he would like to make a
brief staternent to the Court before cross-examination starts. One con
cerns an impression which he got from reading the record for correction
purposes. The record in one respect conveys an impression, or may be
read as conveying the impression, which he did not intend to convey.
He would just like to rcctify that. The othcr matter concerns a statement
which he made in regard to a report which appeared in the New York
Times; he did not have the source available at the time and he was asked
to bring it. He would like to make a statcment on those two matters
before cross-examination.
The PRESIDENT:Are there any objections?
Mr. GROSS:No, Mr. President.
The PRESIDENT:Very well, Professor van den Haag.
Mr. VANDENHAAG:M.r.President, on page 160, supra, and also on
pages 155-156, supra, of the verbatim record for 23 June, I made certain
statements which may make it appear ...
The PRESIDENT:On page 160, is it?
Mr. vANDENHAAGA : nd pages 155-156,of the verbatim record o23June,
I make statements which may make it appcar as though I, myself,
testified inthe Brown case, which was decided by the Supreme Court.
I just wish to state that I did not testify in that case. Indeed, in that
case no experts were used on the side of the defendants, or respon
dents, who rested their case on the stare decisis of Plessy v. Fergiison
and therefore did not call any experts. My own testimony, to which I
refer inthe two pages, occurred after the Brown case, and in application
of it. Iwanted to have this clear for the record.
The second point: when I last had the honour of being here, I referred
to a statement which I attributed to Professor Clark. This is on page 163,
supra, of the record of 23 June.
The PRESIDENT:Where does it appear on page 163?
Mr. VANDENH " AAG: It is in the middle paragraph. In this I stated that
I read Professor Clark's advocacy of resegregation in an interview that
he had given to the New York Times. My mcmory was somewhat decep
tive,what I actually read occurred in the Judgment of the United States
District Court in Stell v. Board of Education. In a footnote (I think I
handed this document in already but I will do so again) on page 13 there
is this reference which, with your permission, I will read.
"Dr. Clark, in the interview, suggested special remedial classes
for Negroes in Northern schools, in effect a suggestion of resegrega
tionas an educational necessity." SOUTHWESTAFRICA
The PRESIDENT:Mr. Gross?
Mr. GROSS:Forgive the interruption, but I am not certain to whom
the quotation is attributed, that the witness has just read.
The PRESIDENT:To Professor Clark I think.
i\lr. GRoss: But I mean whose characterization was it ...
11.fr.VAN DEN HAAG: Yes, that was the characterization of Judge
Scarlett in the federal court in the case of Stell v. Board of Education,
which I only dimly remembered. Since that time I looked up the inter
view, which is paraphrased in the case, and this interview which ap
peared in the United States News and World Report for 10 June 1963 has
a passage which must be the passage to which the federal court referred,
which is very brief so I may read it to you.
Professor Clark tells the interviewer that, and this is on page 40 of the
United States News and World Report for 10 June 1963:
"I think that in the schools of America today there must be a
specialtype of crash programme to see that Negro pupils are brought
up to an acceptable and respectable level of academic performance."
The interviewer then asks:
"Do you want Negro pupils to be given special treatment because
they are Negroes?"
to which Professor Clark replies:
"\Vell, Negroes are being treated as Negroes now, to damaging
effect, so if they must be treated as Negroes for beneficial effect
this must be done."
Obviously the Judge in the case I just mentioned interpreted this as
an advocacy of resegregation by Profcssor Clark and I paraphrased the
Judge's opinion. Having looked at the original document, I wish to make
it clear that this was apparently a judicial interpretation of the document
and I am not as sure as Judge Scarlett was that this is really what
Professor Clark meant. Therefore I should like to modify the statement
I originally made. I stick to my own view that segregation would be
useful for educational purposes, but I do not wish to attribute this view
to Professor Clark. I am not altogether sure what view he would hold
on the matter at this time. Thank you.
The PRESIDENT:Mr. Gross, will you cross-examine?
Mr. GRoss: Thank you, Mr. President. Dr. van den Haag, incidentally
I notice that leamed counsel for the Respondent refers to you as van den
Hague; which is the correct pronunciation?
l\IrVANDEN HAAG: It depends in which country I am in.
"1\fr.GROSS:In Rolland?
Mr. VA:-i"E::OHAAG: van den Haag.
Mr. GRoss: I shall refer, Mr. President, with your permission, to the
page citations in the first instance to the verbatim record o22 June and,
for the Court's convenience, shall simply refer to "at page so and so"
without referring to the verbatim each time, unless the President wishes
it otherwise.
The PRESIDE:,,T:Is it from the same verbatim?
l\Ir. GRoss: Yes, l\Ir. President. \Vhen I switch over to another ver
batim, as I shall subsequently, I will endeavour to advise the Court.
Is that satisfactory, sir?
The PRESIDENT:Certainly. WITNESSES ANDEXPERTS
Mr. GROSS:Dr. van den Haag, I should like to address a few questions
to you, if I may, to complete the record with respect to certain answers
you gave in response to one or two questions. You stated that you were
born of Dutch nationality. You were born in Rolland, sir?
Mr. VANDENHAAG:Yes, sir.
Mr. GRoss: And then you went to the United States. You are an Ameri
can citizen, sir?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:I should like to ask you a few questions in connection with
your appea'.rances as expert on matters concerned with segregation in
the United States, according to your testimony at page 135, supra.
You testified that you had appeared as an expert three times in the United
States federal courts and once or twice in New York State courts, and
I understoocl you to say that these cases concerned segregation?
Mr. VANDENHAAG:The ones in the federal courts. The New York
State cases were cases in which I q_ualifiedas an expert in sociology but
had nothing to do with racial matters.
Mr. GRoss: I see sir, thank you. Now, with respect to the three ap
pearances as expert in the federal courts, could you, without trespassing
too much on the honourable Court's time, indicate very briefly the major
issue in each of those cases?
Mr. VANDENHAAG:Yes. In each of these cases a group of local citizens
appeared as interveners in court cases brought by the parents of Negro
pupils who wished that the Brown decision be applied locally, a desire
resisted by the School Board, and in which the party for which I ap
peared as an expert took part. My testimony in all these cases referred
to the factual basis of the Brown case which, as you will recall, refers to
"modern authority" and to psychological experts, if my memory does
not deceive me, which would have shown that segregation is inconsistent
with the Fourteenth Amendment of the United States Constitution in
asmuch as it refuses the equal protection of the laws to Negro pupils.
This was based on a demonstration of injury, attributed to "modern
authority" and I discussed the proof for such a demonstration of injury
and indicated that it very clearly had not been proved, that indeed the
major evidence given by Professor Clark was clearly indicating that de
segregation is injuriousto Negro pupils rather than segregation.
Mr. GROSS:And what was the disposition of those cases, if you please,
sir?
Mr. VANDEN HAAG:If my memory does not deceive me, two were
won in the courts in which I appeared, the third was lost-that is, in
two the School Board won and in the third the applicant won-and in
the Court of Appeals, as far as I remember, one or two are still pending
and one was overruled because the Court of Appeals felt that the factual
proof did not interfere with the Supreme Court's judgment in Brown,
which the Court felt was based on legal rather than factual considera
tions.
Mr. GRoss: Do I correctly understand, sir, that in each of those cases,
then, that you mentioned, you were testifying as an expert witness
against the factual basis upon which you assumed the Supreme Court's
decision in the Brown case rested?
Mr. VANDENHAAG:That is quite correct.
Mr. GROSS:May I ask, sir, were you a paid professional witness in
each case? SOUTH WEST AFRICA
430
M.r.VAN DEN HAAG: I did submit a bill in two of the three cases.
1',lr.GRoss: And you appeared in the New York State case, you say,
in a case which had nothing to do with race relations?
I\IrVAN DEN HAAG: Nothing at all.
.Mr. GROSS:Thank you. I should like to refer to your testimony at
pages 140-I4I, supra, and we are referring to the record of 22 June, Mr.
President, in which you said "I reject the idea of racial inferiority or
superiority, though I am willing to accept the idea of racial differences".
Before I ask several questions à propos of that testimony I should like
to read into the record at this point, with the permission of the honourable
President, the following sentence from the Counter-Memorial-that is,
of course, Respondent's pleadings, as you know-11, page 471,paragraph
23, as follows:
"The policy of separate development is not based on a concept
of superiority or inferiority,ut merely on the fact of people being
different."
I will not ask you, sir, to comment on the Counter-.Memorial unless you
wish to, but my questions relate to your own statement, and I should
Hketo ask you first whether the idea of "radai inferiority or superiority",
in your phrase, refers to innate or biological distinctions?
M.r.VAN DEN HAAG: I think it does, yes.
M.r. GRoss: And does the phrase "racial differences" as you used it
refer to physical distinctions only?
M.r.VAN DEN HAAG: No, sir, I think it refers to physical distinctions
which are correlated with psychological differences.
Mr. GRoss: Then you draw a distinction on a race basis, do you, be
tween differences of a psychological nature between races as such?
.Mr.VAN DEN HAAG: I think, and I think this is very generally recog
nized, there is a correlation between physical genetic differences and
differences in endowrnent of a psychological sort. May I add, Mr. Gross,
that I am not an expert on this particular point? I merely reflect here
what I regard as the consensus of the experts on this point.
Mr. GRoss: What I should 1ike to make certain, if I may, for the
clarification of your testimony and the Court's edification, is what you
had in mind when you used the term "racial differences". Do I under
stand you to say, sir, that you have in mind physical distinctions plus
(1think you used the word) endowments or psychological characteristics?
Mr. VAN DEN HAAG: To be entirely clear, plus observable psychological
characteristics which the experts think may be in part inherent.
Mr. GRoss: With respect to your use of the term "endowment" or
"psychological distinction", do you regard that as an innate distinction?
Mr. VAN DEN HAAG: Sorne of these the experts regard as innate, and
I tend to reflect their opinion on this point.
Mr. GROSS:Would it be as accurate to say that the experts reflect
your opinion, sir? I would like the Court to have your opinion.
Mr. VAN DEN HAAG: No, it would not be, I think, because you see I
have not made any investigations, nor wou]d I be competent to make
any investigations on whether some traits, be they physical or be they
psychological, are genetically inherent-1 am not competent to make
these, but I am competent to indicate, if you wish, the reason why I
convinced myself that the experts' view on this matter is likely to be
correct. WITNESSES AND EXPERTS 431
;\lr. GROSS:And as you understand the experts' view which you are,
in your phrase, "willing to accept", the racial differences to which you
refer are endowment, and appearance, and psychological characteristics,
and you arc wiHing to accept them as applicable to races as such?
)fr.VA:f DEN HAAG: Yes, sir.
Mr. GROSS:Do you consider that there are exceptions possible within
a given race?
Mr. VAN DEN HAAG: Well, I do not think it is even a matter of excep
tions, ;\frGross; there is a strong degree of overlap. To indicate what I
mean, suppose you take a simple physical characteristic, such as colour
of the haïr, or its texture, it is likely to apply to an average of a given
racial group, but within that given racial group--suppose that it is
black-haired, just as an illustration-there will be some blond-haired
people that are as blond as, if not blonder than, the members of a different
group; so that we speak, then, here of averages-there are obviously
individual cases in which there is a fairly strong overlap.
i1Ir.GROSS:Would you be willing, Dr. van den Haag, then to qualify
your phrase "the idca of racial differences" to read "the idea of average
racialdifferences"? '
Mr. VAN DEN HAAG: Ycs, sir, I had that in mind .
.Mr. GROSS:You have that in mind. Now, sir, in that context, then,
would "average" refer to a mathematical or a numerical average?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GRoss: By a majority?
Mr. VAN DEN HAAG: Well, a numerical average-now, you are asking
me a little more than I know---certainly would involve differences among
the pluralities of true races; whether it involves the majority I am not
willing to say, because I do not know.
Mr. GRoss: With respect to those members of the race, the Iess than
plurality or less than majority, would you then regard that there are no
racial differences between them and another race?
Mr. VAN DEN HAAG: This I could not say; I would say that on certain
traits they may overlap with another group, but whether they will over
lap as a whole I could not say.
Mr. GROSS:So that would you agree that your use of the phrase "racial
differences" is not a scientific or technical phrase?
Mr. VAN DEN HAAG: No, I think that scientific use involves a reference
to the average. As far as I know, no scientist has specified so far the
quantitative proportions.
Mr. GROSS: Are the "racial differences", in your use of the term,
relevant to the imposition of limitations upon the freedom of individuals
merely by reason of their classification as members of a particular race?
Mr. VAN DEN HAAG: I think they would certainly be relevant to make
a rational classification, which would then involve the allocation, possibly,
of distinctive activitîesand, possibly, limitations. I would be careful to
use the phrase "limitation of freedom" which you use because that would
involve, if I understand it correctly, that the freedom of one group is
more limited than that of another group, and I would not justify that.
Mr. GRoss: You would not justify that, sir?
Mr. VAN DEN HAAG: Not that the freedom of one group be more limited
than that of another group, but I would justify the freedom of both
groups in certain respects bcing limited so as to establish a differentiation.
Mr. GROSS:Thank you. When you referred to "rational classification",432 SOUTHWESTAFRICA
would you regard the following as a rational classification in your mean
ing of the phrase: a classification of vVhites as "persons who are obviously
Whlte, but excluding persons who though obviously White are generally
accepted as Coloured"-would that be a rational classification, in your
use of the phrase?
Mr. VANDENHAAG:Yes, if I understand your question. You mean to
say, ifl may rephrase it, whether a classificat10n should be a social one ...
Mr. GRoss: No, sir, I asked you whether, in your use of the phrase
"rational classification'', you would regard the classification which I have
just cited to you as a "rational classification",in your use of the
phrase.
Mr. VANDENHAAG:The classification you have cited is how people
regard each other-is it not based on that, or didI misunderstand you?
Mr. GRoss: It is how the Government classifies people in the case of
South West Africa, to be specific.
The PRESIDENT:Mr. de Villiers?
Mr. DE VILLIERS: May I put somethlng, please, to the Court? My
learned friend has on previous occasions put this classification to witnes
ses. I have no objection at all, obviously, provided he puts it correctly
and fully. When he says "persons who are obviously White", that is not
the classification. The classification is "persons who in appearance obvi
ously are White"-that is stated as the first criterion, and then corrected
by this exception of "but excluding persons who although in appearance
are obviously White are generally accepted as Coloured persons". That
is allI wanted to bring to the Court's attention.
The PRESIDENT:Mr. Gross, when you are putting the question I am
sure you will do your best to keep it precisely to the classification which
is revealed as that which the Government made for census purposes.
Mr. GROSS:Yes, Mr. President-! regret that I did not have the text
before me-1 thought that I had repeated it a sufficient number of times
in this honourable Court to remember it-1 obviously did not, and I shall
endeavour to correct my ways.
Would you, sir, having listened to the correction made by Mr. de
VilHers, then revert to my question: do you regard the classification,
properly read, as a "rational classification" in the sense in which you
used the term?
Mr. VANDENHAAG:Possibly so-1 would have to know more about
the basis of the classification, but I think it could be a rational one.
Mr. GRoss: In your usage of the term? Thank you. Now, does the
existence of "racial differences", in your use of the phrase, warrant the
enforced social, political or economic subordination of one race to an
other?
Mr. VANDEN HAAG: If by subordination you mean oppression, the
answer is no, in my view.
Mr. GROss: Does it justify the imposition of the limitation of freedoms
in the sense of setting a ceiling on economic achievement?
Mr. VANDENHAAG:If the purpose there merely is distribution of in
carne that is disadvantageous to one of the groups, I certainly would not
think it is justified. If the purpose is to enforce or keep to a differentiation
to avoid clashes and strife, then I think it might be justified.
Mr. GRoss: The justification in that case would be for public order,
would it, sir?
Mr. VANDENHAAG:Yes, sir. WITNESSES ANDEXPERTS 433
l\Ir. GROSS:On page 142, supra, in discussing groups and group for-
mation, you made the following statement:
"... no-one has really been able to show exactly what is required
[this is with respectto group formation]-a group becomes a social
group ifit feels and acts like one ... [then you added] ... there are
cases where there are rather few common customs, but perhaps a
common enemy, or something like that ... ".
I should like to ask you, sir, whether it begs the question of what is a
social group to say that "a group becomes a social group if it feels and
acts like one"-is not the question at issue precisely what itconsists of?
Mr. VAN DEN HAAG: \Vell, if it begs the question, Mr. Gross, then we
have all begged the question for quite a while-that is ail sociologists.
Mr. GRoss: That I have no doubt is true, sir, yes. Would you answer
my question?
Mr. VAN DEN HAAG: Yes; I do not think it does. I think when we refer
to a group in the sociological sense we refer to a consciousness of kind, or
of group membership, that expresses itself in observable external mani
festations.
Now when I referred to the group I referred to these external manifes
tations and I was trying to establish why they occur in a manner char
acteristicfor the group, the special feelings of solidarity that, say, Ameri
cans have in common as distinguished from Frenchmen who have them
in common with other Frenchmen rather than with Americans. Let me
say once more I have found no reason for that but the feeling itself,
which I simply have to take as an ultimate datum, and then I speculated
on what may lead to the feeling and I found that there are a variety
of things that seem to be helpful but none that seem to be totally indis
pensable.
M:r. GRoss: When you then refer to the word "group" in this sense,
do you also include national groups? Are the people of the United States
a "group" in this sense?
Mr. VAN DEN HAAG: Yes, sir. They are what is called a secondary group
in sociology. ·
Mr. GROSS:And if therc are people within the group who do not feel
likethe other members of the group, are they still mcmbers of the group?
Mr. VAN DEN HAAG: Yes, but they forma sub-group-a sub-culture
being a member of the major culture.
Mr. GRoss: Is that always on a group basis or can it be also applied
to with respect to an individual attitude or feeling? Do you understand
my question?
Mr. VAN DEN HAAG: Not fully.
l\Ir. GROSS:A group is composed of indi·viduals, is it?
l\Ir.VAN DEN HAAG: Yes, sir.
Mr. GROSS:And feelings-are they emotions of individuals or groups?
11-Ir.AN DEN HAAG: Yes, sir. They are certainly emotions of individ-
uals; we speak of a group when the emotions of individuals seem to Iead
to similar manifestations which seem to be identical or simi!ar among
individuals in respect of particular objects.
Mr. GRoss: So that when I referred to the feelings of an individual
and asked if an individual feels he is nota member of a group, whether
that means that he is not a member of that group-is that a correct
statement?434 · SOUTHWESTAFRICA
Mr. VANDENHAAG:No, sir, I do not think so. What it probably means
is that he is alienated from the group of which he is a member and as I
tried toindicate in direct examination, this is usually partly an effect of
neurotic disorder. Let me, if I may, illustrate this. Take a group based
biologically,but elaborated culturally, such as man and woman. I have
not the slightest doubt that there are some men who identify not with
other men but with women; and there are some women who identify
not with other women but with men. Nonetheless, I think, if we are asked
to classify groups, I would classify the men with men regardless of their
individual feeling though I would admit that they constitute perhaps a
sub-group of men; and similarly among women; that is, I would say
that biological identity and their original psychological characteristics
classifythem with a group with which they are classified from the outside,
even though they might individually protest. This individual protest,
this alienation from their own group I would regard as a sign of pathology.
Mr. GRoss: You testified I believe that in a sense of the term "group"
which you use, that the citizens of the United States forma group.
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:If an individual citizen of the United States decides to
move shall we say to England and reside there permanently, is that a
sign or symptom of alienation or neuroticism?
Mr. VANDENHAAG:Not at all. The residence is not I think in this
case terribly relevant. However, if he moved to England and disavowed
his American citizenship and origin, and denied it, so to speak tried to
pass as an Englishman, then I would be somewhat more suspicious.
But may I also add in this particular case you have chosen an example
of two groups that are very similar having rather common traditions,
language and so on, so that the passing from one to the other by an in
dividual may be due to motives that are not pathological, provided that
it is, so to speak, an avowed and open passing, such as, say, the poet
T. S. Eliot made, who as you certainly know was barn an American and
became an English citizen largely because, I think, not only did he reside
in England but he felt that his roots were there. I think in this case there
was nothing pathological aboutit.
Mr. GRoss: Yon yourself came to the United States at what age, sir?
Mr. VANDENHAAG:I think I was 22.
Mr. GRoss: You became an American citizen?
Mr. VANDENHAAG:Yes, sir.
Mr. GRoss: Did you abandon or forsake your original group?
Mr. VANDENHAAG:\Vell I certainly never denied it. I did not feel
that there was a conflict between the two groups. But, since I decided
to make my life in America I decided to become an American citizen.
Mr. GRoss: But you do not feel you are passing as an American in
your sense?
Mr. VANDENHAAG:Well, to tell the truth, sir, the longer I stay in
America the more European I have been feeling in some ways.
Mr. GRoss: By European do you mean Dutch or ... ?
Mr. VANDENHAAG:Specifically yes. Dutch/Italian~I was brought
up in Italy.
Mr. GRoss: Would you regard that ... I wiil not pursue this matter
further ... itis difficult to retreat from the pleasure ...
The PRESIDENT:You had better stop where you are.
Mr. GROSS:Yes, sir. At page 142, supra, you testifi.ed as follows that WITNESSES AND EXPERTS 435
the word "ethnie" means both culture and biological origin, or at least
a perception of biological similaritiesnd dis-similarities including such
things such as various physical characteristics, and you were asked the
question by the learned counsel "Perhaps we could get it clear ... what
distinction would you draw ... between an ethnie group and racial
distinctions", and so forth, your answer was "ethnie group is a sub-group
of a race", for example-"thc Jews as an ethnie group being part of the
Caucasian race". Then you said-"these terms are used in a variety of
ways by a variety of people". Focusing down to one person and that is
yourself who is using the terms, how do you define the term "Caucasia.n"
in that context?
:Mr.VAN DEN HAAG: \Vell, I think I meant generally speaking the
major group called "white" usually.
Mr. GRoss: You would use the word "Caucasian" as a synonym for
"white"?
Mr. VAN DEN HAAG: Yes. I did in this context.
Mr. GRoss: In this context of course. Now are there, as far as you
know, Jews in North Africa or Yemen or elsewhere who are not white?
Mr. VA:-l"DEN HAAG: 1 do know that for instance in Abyssinia there is
a tribe, the Falashah, who are Jewish, at least hold a form of biblical
Judaism; and there are Negroes who are Jewish in Harlem (a part of
New York). Itis a small sect of Negro Jews; some of them have recently
become Jews. I would make a distinction here between religious and
ethnie groups, that is, an ethnie group may have a variety of religions.
On the whole, in the case of the Jews, the religion has been quite corre
lated to the ethnie group, but there are exceptions.
Mr. GROSS:You would qualify the statement?
Mr. vAX DEN HAAG: Of course.
l\IrGROSS:I will now turn to certain questions, if I may. :Mr.President,
w:ith regard to certain national situations and I refer first to page 143,
siipra, in which you referred to the partition of India, the lndian sub
continent, and also the removal of ethnie Germans from Poland and
Czechoslovakia at the end of the war. The question was asked to you
whether the instances you cited seemed to be merely as having a negative
effect of separation, of discrimination, or what-have-you, or whether it
was also to be perccived of as having a positive value and your answer
was-"perhaps partition was the best way of preserving in the long run
the peace among them"-by which I take it you mean between India
and Pakistan and the populations thereof?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS:Was this, sir, this answer of yours, what you would regard
as a value judgment?
l\Ir.VAN DEN HAAG: No, sir. This is an empirical predictionItmay be
wrong but it is not influenced by my persona! preferences for partition
or against it. If you take, and the question I think referred toit, order as
a value-and this is simply the value judgment of the questioner, then
the question arises how is it best preserved? My answer was that in some
cases I think separation may preserve order better than non-separation.
Mr. GRoss: \Ve are talking now about this particular case to which
you testified in the sense of actually saying that "perhaps partition was
the best way of preserving in the long run the peace among them".
Mr. VAN DEN HAAG: Partition would be the means and peace would
be the end-peace is the value judgment.436 SOUTH WEST AFRICA
Mr. GROSS:But "the best way" is nota value judgment?
Mr. VAN DEN HAAG: No, "the best way" is not by war-using the
word "best" in an instrumental sense-that is, it is simply a more effi
cient or effective means to achieve an end which is of value.
Mr. GROSS:And you say that that is based on expericntial prediction?
Mr. VAN DEN HAAG: This is my prediction and judgment of the situa
tion-obviously also that of the Indians and Pakistanis; but it would
be very hard to prove this either right or wrong ultimately since this is
the way history went, we cannot say what would have been the result
if it had been otherwise.
Mr. GRoss: You say that this is the attitude of the Indians and the
Pakistanis?
Mr. VAN DEN HAAG: They separated and I guess they wanted to.
Mr. GRoss: Are you guessing now, sir? Are we talking now about
your experiential prediction with regard to the preservation of peace in
this area-you have made a statement here which relates to a given
situation-you are testifying as an expert and forgive me if I seem to be
pressing this point to argument but I wouJd like to know whcther your
reference to the lndians and the Pakistanis as feeling the same way you
do reflects your experience or is it based upon evidence which is in your
possession ?
Mr. VAN DEN HAAG: No, sir, I have no special evidenceIt is my inter
pretation of thefact that partition took place.
Mr. GRoss: Are you saying to the Court-do you wish the Court to
believe-that this is the "best" way of doing it because it happened?
Mr. VAN DEN HAAG: No, sir, I did not imply that this is the best way
possible-alternative ways might have been better. This is the way that
has been taken and I was asked "might it have advantages" and my
response was that it might have the advantage of preserving the peace,
possibly better than other ways hut now that you ask me I would be
unable to say that it is the best of all possible ways.
Mr. GROSS: In other words, you would qualify the answcr you gave
to this in this way, I take it, and let it stand at that.
Mr. VAN DEN HAAG: Let me put it this way. if people were different
from the way they are, thcre would perhaps have been found a better
way. People being what they are they chose this way and I think, apart
from passion, those who wcre at least more cool-headed among them
probably assumed that this wou!d be a cost!y way but also the best of
the available ways to reduce strife and conflict. My suspicion is that they
might have been correct but I would not say that I can prove that any
more than anyone else.
Mr. GROSS:Now on page 144, supra, you referred to Ruanda-Urundi,
which you described as formerly a Belgian colony. Are you aware, sir, of
the status of Ruanda-Urundi?
1\frVAN DEN HAAG: Itis true that they are two independent countries.
Mr. GRoss: No: prior to their independence.
Mr. VAN DEN HAAG: I thought that they were a Belgian colony, I
might have ...
l\Ir. GROSS:For the record, you would not dispute the fact that they
were actually under United Nations trusteeship?
Mr. VAN DEN HAAG: I did not make this distinction, Mr. Gross.
Mr. GRoss: Now there you said, at page 144, referring to separation
that: "though economically quite unviable, inmy opinion, [it}nonctheless WITNESSES ANDEXPERTS 437
was indicatcd for reasons of group confüct." Now was that a value judg
ment, sir?
Mr. VANDENHAAG: Perhaps I should make clear that this was an
opinion-a value judgment is an opinion but not all opinions are value
judgments. This is an opinion that I have of the facts in this matter.
It may be a false opinion, but it is an opinion on facts and not on
values.
Mr. GROSS:Is your opinion in this respect based upon what you would
regard as objective standards?
Mr. VANDENHAAG:Yes, sir.
l\lr. GROSS:What for example? Would you give the Court an illustra
tion?
Mr. VANDENHAAG:My impression was that the separation avoided
bloodshed which would have been greater had there been no separation.
l\Ir. GRoss: So the Court may take your testimony in this respect as
your impression?
Mr. VAN DEN HAAG:Yes, sir. I have not been in Ruanda-Urundi.
Mr. GRoss: Now with regard to your testimony with respect to the
United States, at pages 145-146, supra, particularly, you refer to the
"Japanese relocation" which you described in the following terrns
''the line of demarcation was an ethnie line"-1 think the words you
used were on page 146. Unfortunately, Mr. President, I do not ...
The PRESIDENT:It is at the top of page 146.
:Mr.GROSS:Thank you, Mr. President.
The PRESIDENT:The Japanese were certainly not the only group in
the United States that was ethnically related to an enemy alien group.
Mr. GROSS:Thank you, sir. Now you refer to the fact that Dean
Rostow of Yale had expressed the view that the United States Supreme
Court decisions upholding this action were, in the words he used and
which you quoted, "extraordinary", that is at page 145. And that the
"decision was opposed by many people", in your phrase (p. 146). Will
you indicate to the Court whether you oppose that decision in the sense
m which the term is used in the testimony?
Mr. VANDENHAAG:I think the decision at the time was rather un
warranted and hastily taken and I would not have approved of it, had
I satin Court.
Mr. GRoss: Yes, sir. Now with regard to the United States immigra
tion policy and quotas, to which you referred, you cited the comment
at page 146, by Professor Bru ton Berry, President of the State University
of Ohio, in his book called The Race and Ethnie Relations, and you referred
to his statement "the quota system based upon national origin has
remained intact". First, may I ask you, Dr. van den Haag, do you regard
the examples of the Japanese removal action, which you oppose, and
in my view, if I may say so, sir, properly oppose, do you regard that action
and the immigration restrictions to which this quotation refers, to illus
trate a general policy or practice on the part of the United States Federal
Government, in the area of race relations?
Mr. VAN DEN HAAG:That is a question which I find very hard to answer
because what is the general policy of the United States, in this respect,
is highly controversial. Nowyou see, the very words "the United States"
leave me in doubt. Right now, for instance, the President has proposed
reforrn ofthe immigration ]aw, and if I may, I would like to quote from
an article in the New York Times, which appeared on 19 June 1965: SOUTH WEST AFRICA
"The United States Immigration Law based upon racially angled
national origins quotas, makes a strange counterpoint toits progres
sive laws against racial discrimination at home."
So what the Times here is saying, in this first paragraph, is, that in the
United States we have, on the one hand, policies which deny differentia
tion and certainly deny any form of oppressive discrimination, but we
also have, on the other hand, policies which affirm this, sometimes on
the state and, in the case of the Immigration Law, on the federal level.
Now the Immigration Law may be changed in Congress, but, as the
editorial I just quoted points out, though the President wants it changed,
it is very uncertain that the Congress will change it, so when you refer
to United States policy, it depends whether you have in mind the Presi
dent, the Congress or the courts. Each seem to have a slightly different
policy in this respect.
Mr. GROSS:I would like to corne back to my question, if I may, sir,
and ask you in a slightly different way than I did before, would you be
prepared to express an opinion whether the two situations to which you
referred, this Japanese relocation action and the Immigration Law, are
exceptions to the federal policy and practice, with regard to race rela
tions?
Mr. VAN DEN HAAG: They run counter to the developments since
Brown v. Board of Education on the federal level. yes.
Mr. GRoss: Would you answer my question, if you wish to, more
directly? Would you regard these two cases as illustrative of a general
practice, or as exceptions tohe general policy and practice, of the United
States Government?
Mr. VAN DEN HAAG: I am sorry, but this involves a judgment I cannot
make, but I would be willing to say that both policies exist and that the
policy indicated in the Immigration Laws and the Japanese relocation
is rarerthan the other.
Mr. GROSS:Do you know of any other illustrations?
Mr. VAN DEN HAAG: Yes, on the State and local levels ...
Mr. GROSS: No, sir, that is part of the confusion which I am engendering
as a failure onmy part to keep ...
Mr. VAN DEN HAAG: You mean, on the federal level? I do not know
of any other cases ...
Mr. GROSS:The distinction between the federal level ... so when you
say it is rarer, you are not referring to any other cases?
Mr. VAN DEN HAAG: Not that Iknow of, no.
Mr. GROSS:So far as you know, it is unique?
Mr. VAN DEN HAAG: Since there are two cases, neither can be unique .. ,
Mr. GROSS: I am talking about the Japanese relocation action.
Mr. VAN DEN HAAG: Recently-of course if you go further back and
even the present policy towards lndians-it would not be unique.
Mr. GROSS:·So you analogize this to the fact that the Indians are
what, sir?
Mr. VAN DEN HAAG: The Indians were located ...
Mr. GROSS:At what time are you speaking of now, sir?
Mr. VAN DEN HAAG: At various times; there is a long history, as you
are certainly aware, Mr. Gross, of locating and relocating lndians force
fully to various Reservations.
Mr. GROSS: Is that the policy in practice today,sir?
Mr. VAN DEN HAAG: At the present time, they still are being located WITNESSES ANDEXPERTS 439
andrelocated, forinstance the Senecas in New York. Just recently, they
were forcefully deprived of their home ground, and relocated because
some, the majority, apparently, of the people of New York, or at least,
of the state government, represented in this case, by Mr. Moses, wanted
touse part of their reservation for electrical dam building, and so on.
Mr. GROSS:Are you aware, sir, that their land was bought at fair
prices determined by the courts?
Mr. VANDENHAAG:Yes, by the law of eminent domain, and quite
against ...
Mr. GROSS:And you refer to this as "forcible removal", do you?
Mr. VANDENHAAG:Yes, sir, it was enforced by the courts.
Mr. GRoss: Was this on the basis of the fact that they were Indians?
Was this on a racial basis?
Mr. VANDENHAAG:Yes, sir, they owned that land on a racial basis;
it had been given to them because they were members of an Indian tribe.
Mr. GROSS:Have you ever heard of the law of eminent domain being
applied in New York to property owned by Whites?
Mr. VANDENHAAG:Yes, I have. Lots of people are so relocated and
not on a racial basis, but in this case it was on a racial basis.
Mr. GROSS:In this case, it was on a racial basis, in the sense that emi
nent domain was exercised because they were lndians? Is that what you
mean by "on a racial basis"?
Mr. VANDENHAAG:That I could not say, sir. I do know that it affected
them as Indians, and broke, in the opinion of many legal experts, treaties
that they, the Indian tribes, had made with the United States, which
were overruled, as it were, by the law of eminent domaîn. But I do not
think it was applied because they were Indians, it was applied because
people wanted the land.
Mr. GRoss: That's right, I think. Thank you, sir.
The PRESIDENT:Was all the land in the Reservation required for the
public purpose which you indicated?
Mr. VANDENHAAG:Sir, I did not quite understand.
The PRESIDENT:Was all the land in the Reservation required for the
public purpose that you indicated?
Mr. VANDENHAAG:No, only part of it.
Mr. GROSS:On page 147, supra, of the verbatim of22 June 1965-you
are now referring to the United Kingdom-you said "the last Conserva.
tive Government imposed some restrictions" and then later, "as the
Labour Govemment came to power it,contrary toits promise, did not
change these restrictions", and then you said "the reason given, very
Iargely, was that owing to cultural and ethnie differences, it would be
very hard for the population to absorb a great number of these aliens"
(p. 147). Now, without the least intention of engaging in and intervening
in British political affairs, what was the nature of the promise made by
the Labour Government?
Mr. VANDENHAAG:To abolish these restrictions that had been im
posed by the Conservative Government, at least, in electoral speeches,
that was the drift of the matter.
Mr. GROSS:That was the drift, sir? And that was for total abolition,
was it,or for modification?
Mr. VAN DEN HAAG: As I understood it, itwas total abolition.
Mr. GROSS:And did the promise include accomplishment at any par
ticular time, by any particular period, so far as you are aware? SOUTHWESTAFRICA
Mr. VANDENHAAG:I have not followed British politics sufficiently
to say that, but, Mr. Gross, I have before me an article in the Sunday
Times of 13 May 1965, the headline of which is "Labour to put New Curb
on Immigrants", the body of the article clearly indicates that what are
meant are Coloured immigrants, so I think I got the drift correctly. I
have not read all the electoral speeches.
Mr. GROSS:You were referring to a "drift" then, sir?
Mr. VANDENHAAG:Yes.
Mr. GROSS:And, now, you further testified, on page 147-you were
asked in this context with regard to these restrictions, the question, "For
the good of the population as a whole?" And your answer started with
"Undoubtedly" and then proceeded. Now was this response a value judg
ment on your part?
Mr. VANDENHAAG:It assumed certain values, Mr. Gross. It assumed
that order is a value. Then it made a statement on whether this policy
would be promoting order or not, and I felt it would. But of course, there
was a value judgment, or at least an acceptance of a value judgment,
inasmuch as I implied that the preservation of peace and order are desir
able. They may require the use of some means which, in turn, may be
regarded as costs.
Mr. GROSS:And in this case, applying that to the situation to which
you are referring here specifi.cally,it was your opinion that this was fi.tted
into that category?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:And that reflected the value judgments or the values upon
which your judgment was based-is that correct, sir?
Mr. VANDENHAAG:Yes, sir.
Mr. GRoss: Now in respect of both the United States and the United
Kingdom, is it within your knowledge to state whether or not, when
persons withinrestricted categories are admitted, limitations are imposed
by law upon their freedoms in the countries to which they are admitted,
respectively?
Mr. VANDENHAAG:To my knowledge, not. The purpose, I think, of
the immigration restrictions both in the United States and in England
now, as I understand it, is to keep people in their original location so
as to avoid relocating them once they have entered either the United
States or England. In other words, to make it possible within these coun
tries, to pursue a policy of freed unhindered movement, immigration
has,in part, been restricted.
Mr. GROSS:And when they are admitted and become members of the
national community are any ceilings placed upon their economic oppor
tunitiesby reason of their origins?
Mr. VANDENHAAG:Not de jure, no, not by law.
Mr. GROSS:Not by law. I am talking about by law. Are any limita
tions placed upon their freedoms on the basis of their national origin?
Mr. VANDENHAAG:Not that I know of, sir.
Mr. GRoss: Now, I should like to turn to page 147, supra, of the ve_r
batim of 22 June 1965, in which you compared language employed m
the Canada Yearbook of 1932, to that employed in the Yearbook of 1963.
In the former you testified that the phrase "assimilable type" had been
used,and in the latter the phrase-! take to be the key phrase-"adapt
ability to the Canadian way of life." You stated that: "My feeling is that
itmeans quite what was meant in 1932, although it put it a little less WITNESSES ANDEXPERTS 441
bluntly .." What knowledge, if any, sir, do you have with regard to
Canadian immigration practices in 1963?
Mr. VANDENHAAG:No more than I have quoted, sir.
Mr. GROSS:This is ail you know about the situation?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:Do you have any more information or knowledge concern-
ing the immigration policies of Canada in r93z?
Mr. VANDENHAAG:No, sir.
Mr. GRoss: Excuse me, did you finish?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:Is there any evidence which supports your so-called "feel
ing"-a word you used-that the different language used in these two
Y earbooks means the sarne thing?
Mr. VANDENHAAG:I think that I gave some statistics at the time,
which I could find again, which seemed to me to bear out the statement
but at any rate my interpretation was simply based on a comparison of
the two texts.
Mr. GRoss: And of your persona! judgment concerning it?
Mr. vANDENHAAG:Yes, sir.
Mr. GROSS:In respect of your testimony with regard to Canada, the
United States and the United Kingdom, may Iask you, sir, whether you
would characterize your testimony in respect of each or all of these areas
as "expert testimony" in your understanding of the term?
Mr. VANDENHAAG:My testimony was based on a study of the docu
ments which I quoted and an interpretation thereof and I would regard
this as properly falling within the province of my expert ...
Mr. GROSS:Would you say, sir, that any opinions based upon a study
of a document become "expert opinions" by reason of that fact?
Mr. VANDENHAAG:Not any opinions, but reasonable opinions some
times do, yes.
Mr. GROSS:On the part of anybody?
Mr. VANDENHAAG:No, sir. I think the study of a medical document
by a medical expert--even if he only has that document before him-I
would classifyas leadingtoan expert opinion. Astudy of the same medical
document by a non-expert, a non-physician, may not be leading to an
expert opinion.
Mr. GROSS:So that what qualifies him to express an opinion is his
range of expertise?
Mr. VANDEKHAAG:He brings to the study of the document experîence
with similar documents and of the facts that are being described in them.
Yes, sir.
Mr. GROSS:And you consider that the testimony which you have given
is all directed to, is opinion based upon,ur expert knowledge?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:Without exception, sir?
Mr. VANDENHAAG:Well if you mention a particular point I might
be classifying as an exception but on the whole, of course, I tried to
present to this Court my opinion as an expert.
Mr. GROSS:And that would reflect, for example, your characterization
of the meaning of the language in the two reports of the Canadian Year
book?
Mr. VAN DEN HAAG:\Vell there are two kinds of experts who generally
undertake this sort of characterization,either legal experts whose spe- SOUTH WEST AFRICA
ciality would have been a study of the language, or social experts who
are accustomed to comparing language sometimes with history and with
historical uses of it and historical customs and derive their conclusions
therefrom. I would not qualify myself as a legal expert but I would qual
ify myself as a social expert.
Mr. GROSS: Now, addressing you as a social expert, I turn to pages
r47-148, supra, of the verbatim record. You were asked by Counsel for
Respondent-this was à propos of aspects of the situationtn the United
States-you were asked for examples of official action, other than by
federal action, making racial distinctions in the United States. Then, on
page 148, you referred to certain unoffi.cial and voluntary move
ments in the United States, including certain characterizations of a group
called "The Nation of Islam" to which you referred. Do you recall that
testimony generally in that respect, sir?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GRoss: And you referred to the facts that certain writers had ex
pressed extremely high regard for the movement, and that its protago
nists have pointed out, and you said, "... I think quite correctly, that
the members of the movement are distinguished frorn many other Negro
citizens of the United States by their better deportment, their abstinence
from alcoholic beverages, and various drugs, their exemplary family life,
and generally what you would speak of as an integration of personality".
Do you regard this, sir, and is this what you want the Court to under
stand, as your characterization of the "members of the movement" in
question? ·
Mr. VAN DEN HAAG: Yes, sir.
Mr. GRoss: You testified on page 148 in response to a question which
I will read to avoid the risk of paraphrasing erroneously, at the bottom
of this·page:
"Mr. DE VILLIERS: Now, before you leave those, is it not some
times suggested that leaders of a movement like this-Moslem move
ment you have just referred to-are rather eccentric or fanatic?"
Then you said:
"I rather think they are myself but that I think is usually the
case with the founders of either new religions or new movements
of this kind."
Would you care to clarify the apparent inconsistency between the ref
erence to the designation of the members of this groupas people of "inte
gration of personality" and "fanatics and eccentrics"?
Mr. VAN DEN HAAG: Yes, sir. The leaders of new, political and religious
movements are quite often, in my opinion, people who are pathological,
usually paranoiac with megalomanic and persecution delusions. To give
one illustration, Mary Baker Eddy is very well known as the founder
of the Christian Science movement. From the documents available to
us it seems entirely clear that she had the characteristic syrnptoms of
delusions of reference which are characteristic of paranoia.\Vhen she had
some bodily pain she attributed it, for instance, to someone far away
using magnetic rays on her and so on and so on. These are indications
normally regarded as indications of paranoiac system of delusions of ref
erence. This did not in any way prevent Mary Baker Eddy from founding
a major Christian denomination and my experience with the followers WITNESSES AND EXPERTS
443
of that denomination is that they are often exemplary people who in
all psychological respects I would regard as not only well adjusted but
partly better adjusted than the average. I would make a similar state
ment about the Jehovah's Witnesses, another ...
Mr. GROSS:... I would appreciate, if the President permits, if you
would confine yourself to one question at a time. Mr. President, I did
not want to trespass on the Witness's answer but I would like to keep
on this subjectifI may, sir?
The PRESIDENT;By all means.
Mr. GROSS:Is the view you have just expressed with respect to the
membership of this group, would you say, as a social expert, the general
attitude held by Negro leadership in the United States towards the "Black
Moslems", as they are called?
Mr. VANDENHAAG:Most of the non-Moslem leaders are opposed to
the Moslem movements and consequently actas opponents of it but I am
neither opposed nor in favour of it not being directly involved in Negro
politics so I am giving an outside judgment on the psychological inte
gration of the members of the movement.
Mr. GRoss: You would not be prepared to deny that, or would you be
prepared to say whether or not, the announced programme of the group
includes violence and threats of violence against the White community?
Mr. VANDENHAAG:The movement in itself has often been accused
of that, it denies that its aim is violence although I would certainly be
willing to say that sometimes speeches made and actions taken seem to
indicate that it is in favour of it so the situation here is equivocal and
I can do no more than indicate that.
Mr. GROSS:I will not pursue this line too far, Mr. President, unless
the Court wishes, otherwise I would, however, like to ask one other ques
tion in regard toit. The question I have is with respect to the distinction
you draw between the leaders and, as you cal! them, "members" of the
group. The leaders of the group you do not regard as persons with what
you have described as "integration of personality"?
Mr. VANDEN HAAG: \Vell, this would get us into something rather
technical there, their paranoia may be egosyntonic, but it still remains
paranoïa; that is, it may be highly integrated, it may even lead them to
engage in more effective action, nonetheless, I would regard it as a patho
logical phenomenon.
Mr. GROSS:I would like to refer to your testimony on page r48, with
respect to what you described as "major Negro movements in the United
States are certainly not the ones I have mentioned". You referred to an
organization which you described twice as the "National Association for
the Improvement of Coloured People". Is that the same organization as
the National Association for the Advancement of Coloured People?
Mr. VANDENHAAG:Yes, sir, I am sorry I have misquoted.
Mr. GROSS:You said that the "National Association for the Improve
ment of Coloured People", and others, are taking a much more moderate
Iine,are probably more influential among Negroes as a whole, and you
said that when I asked on page r49, with reference to the National Asso
ciation for the Advancement of Coloured People, whether it advocates
some form or other of voluntary re-location. Your answer was: "I do
not think so." Do you have any doubt about that matter, sir, as to the
programme or declarations of the National Association for the Advance
ment of Coloured People, with regard tore-location? SOUTHWESTAFRICA
444
Mr. VANDENHAAG:I am convinced that they do not advocate re-
location.
Mr. GROSS:So, you would amend your response to clarify the record.
Mr. VANDENHAAG: I think it meant the sarne, but ...
The PRESIDENT:He does not agree with it, he does not think so.
Mr. GROSS: I understood the context to mean that you do not think
their programme is one for re-location.
Mr. VANDENHAAG: I think you are correct.
Mr. GROSS:And are you certain that it is not?
Mr. VANDENHAAG:Reasonably certain, yes, sir.
Mr. GROSS:Now on page 149 of the transcript, you made the following
statement, among others, of which I will cite just one sentence, although
you may wish to consult the context-1 think it is fairly cited: "... Negro
leaders are the first to point out that desegregation has made very little
practical progress". That is in the middle of page 149. Is that still your
view today, sir?
1\fr.VAN DENHAAG:Yes, sir.
Mr. GRoss: That that is the view of Negro leaders, sir?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS: I should like, Mr. President, with your permission, sir, to
emulate the witness and refer to the New York Times of Sµnday, 27 June
1965, from which I should like to quote a few brief excerpts, and will
produce for the documentation, with the President's permission.
The PRESIDENT:Mr. Gross, you are cross-examining at the present
moment. If you wish to refer to the document in order to make a quota
tion to the witness and ask him whether he agrees or disagrees, it would
be competent for you to do so, but not for the purpose of producing it.
Mr. GROSS:Thank you, sir. I wanted to make clear that the entire
story was available and in the Court. The following is datelined Wash
ington D.C., 26 June, and reads as follows:
"In its first year in force the Civil Rights Act of 1964 is believed
to have eliminated more racial discrimination than all the Federal
Laws, Court Rulings and Executive Orders in the decade preceding
it. Government officiais and civil rights leaders agree that the Act
has met with greater and easier compliance than anyone expected,
and it has become a tremendous psychological force in softening re
sistance to desegregation."
Then quoting briefly further in the same story:
"The law has aiso brought compliance by entire communities that
had held out against Court order desegregation. Leroy Collins, direc
tor of the Community Relations Service, an agency created by the
law to help bring compliance, said: 'For every incident of defiance
and violence you can name, I can name you hundreds where, with
out fanfare, Southerners White and Black, are putting aside the old
ways and facing up to the necessity of resolving their common prob
lems'."
Could I ask you, sir, whether or not you agree with the statement in
this Times story, that in the first year of its existence the Civil Rights
Act of 1964 has eliminated more racial discrimination than all the federal
laws, court rulings and executive orders in the decade preceding it? Do
you agree with that, sir?
Mr. VANDENHAAG:I certainly do not. WITNESSES AND EXPERTS 445
Mr. GROSS: Yes, sir. And do you agree that it has become a tremendous
psychological force in softening resistance to desegregation?
Mr. VANDENHAAG:I do not agree with that either, sir.
Mr. GRoss: So that you would disagree with the concededly un-named
government officials and Civil Rights leaders that are referred to?
Mr. VANDENHAAG: Not only that, but I would also point out that
Leroy Collins has a rather interested view point. He is in charge of bring
ing about and making effective the law, and I think he says it is effective
because hc is in charge of it. He would otherwise have to say that he
did a very bad job.
Mr. GRoss: So you think he is a biased witness in that respect?
Mr. VANDENHAAG:Very much so, sir.
Mr. GROSS: Now we turn now to a new line of questions, Mr. President,
if I may, that relate to pages 149-150, in which you gave the following
evidence:
". . . one has to make a distinction between segregation and dis
crimination . . . I would liketo use the word segregation to mean
separation, which, of course, need not require or be connected with
oppressive mcasures, but can be so used in the same way a knife
may be used to eut a roast or can be used for murder".
And then referring back to your view that "segregation does not have
to lead to discrimination", you then defined discrimination as follows:
"... if by discrimination we mean, as I propose we ought to, placing
someone, or placing a group, at a disadvantage that is not warranted
by any relevant elementin the situation in which the group is found".
Do you adhere to that definition?
Mr. VANDENHAAG:Yes, sir.
Mr. GRoss: Now would the word "disadvantage" as used in that defi
nition, include limitations imposed upon freedom of members of a racial
group as such: such as, for example, setting a ceiling on their economic
advancement?
Mr. VANDENHAAG:As I tried to indicate before, sir, that would depend
on the situations. There are two factors that I would regard as relevant
here, first the qualifications of the members of the group: if they are
prevented from taking a job because they are not qualified to take it,
this I would not regard as ...
Mr. GROSS: May I repeat my question-you seem to be confused?
Mr. VANDENHAAG:I am trying to give the background for my answer.
The second relevant consideration would be: supposing that some mem
bers of the group are qualifted for a position that they are prevented
from holding, despite their qualifications-! think this is what you had
in mind-it may still be in the interest of the two racial groups or com
munities involved not to allow them to do so under certain circumstances,
namely when, although this, the assumption of this job, would serve
their personal and individual interests, it may bring about disorder within
the community and may lead to the dissolution of tribal or cultural bonds,
which is regarded as undesirable. So that, may I put it this way, any
social measure, whether it be a traffic law or laws of the kind that you
have indicated, though meant to be for the benefit of the great majority,
and to yield a net benefit to society, may lcad to some disadvantage for
individuals who fmd themselves in special situations. This is undoubtedly
so, both in my writings and teaching, I have always told my students SOUTH WEST AFRICA
that I cannot think of a single social measure which would not affect
some individuals in a way which, with regard to the individual situation,
is unequitable, but which nevertheless can be justified in terms of the
general social advantage or disadvantage.
Mr. GRoss: Sir, would it be possib1e to answer the question which I
intended to put to you: does the term "disadvantage" as used in your
definition of "discrimination" include legal limitations imposed upon
freedom of members of a racial group as such, for no other reason th:m
their membership-on no other basis-and I have given as an example
the setting of a ceiling on economic advancement. Could you answer the
question whether this is within the concept of your term "advancement",
as used in vour definition?
Mr. VAN, DEN HAAG: This is sometimes, but it is not always, a net
disadvantage, that is it may work to their benefit in the long run and
to the benefit of the average of the group, but it may also be a disadvan
tage for some individual members.
J\lrGROSS: Dr. van den Haag, in your testimony at page 135, supra,
of the verbatim on going back to that page, if I may-as part of your
qualification of expertise, you testified that you had given special atten
tion to minorities problcms and then you used the following expression
or characterization: "as to ail groups other than the dominant one in any
given society." Would you explain to the Court, sir, what the concept
of the "dominant group" is in this context?
Mr. VANDENHAAG:It is the group that sets the tone, influences, in-
forms and shapes the culture that prevails in the terri tory.
Mr. GRoss: Does it have any economic implications?
Mr. VANDENHAAG:Not necessarily, no.
Mr. GRoss: Does it have any economic implications in any situation?
You said "not necessarily".
1\IrVANDENHAAG:An implication I take to be a necessary attribute
and that is not the case. Of course, it could.
l\IrGROSS: In other words, is it your testimony that if a group exer-·
cises economic control it is a dominant economic group?
Mr. VANDENHAAG:\Vell, certainly Iwould call it a dominant economic
group, yes.
Mr. GRoss: And that would fit in within your concept of "dominant"
groupas you used it?
Mr. VANDENHAAG:It could be a part of it, yes.
Mr. GRoss: Thank you, sir. Now, I should like to read a quotation
from a work by Professor Brewton Berry, whom you cited, on techniques
of dominance, and the citation is from Chapter 14 in Race and Ethnie
Relations (published in Boston in 1965), at page 327. You citcd this au
thority, as you may rccall, at page 146 of the verbatim, in another con
text. The passage which Ishould like to quote to you and then, subse
quently, follow with a question or two, is as follows:
"Whenever racial and ethnie groups corne into contact [and then
I skip some irrelevant phraseology] the group which enjoys the
greater prestige and wields the power is invariably jealous of its
status, will not surrender its prerogatives without a struggle and
is determined to defend its own values and its culture against com
peting and conflicting systems."
That is from page 327. WITNESSES ANDEXPERTS 447
Mr. van den Haag, I should like to ask you-in terms of your simile
of separation or segregation as a knife which could do harm or good-do
you agree that segregation, or separation (whichever you prefer) readily
becomes discrimination if a dominant group wields the knife-dominant
in the sense that you used the term?
Mr. VANDEN HAAG: That dcpends entirely on the intention of the
dominant group. If you are asking me to tell you what I think this in
tention usually is, I can only tell you it depends on the particular cir
cumstances. I would not agree with Professor Berry's idea that this is
invariably so and I wish to call to your attention that I have used Pro
fessor Berry's book ...
Mr. GRoss: In a different context?
Mr. VANDENHAAG:Not only that, but only to quote passages which
he himself quotcd from other authorities.
Mr. GROSS:You disagree with·the opinion or judgment which I have
quoted from Professor Berry?
Mr. VANDEXHAAG:Yes, sir.
Mr. GRoss: Now, if, however, it may be that in certain situations
(and I take that from your answer) this would be valid in certain situa
tions-is that not correct, sir?'
Mr. VANDENHAAG:Yes, sir.
llfr. GROSS:In "certain situations"-which I believe is the phrase
you used, or words to that effect-if one group exercises economic con
trol or "economic domination" in the sense we have established between
us, what safeguards, if any, would be necessary and feasible to assure
that such dominant group exercises its control in a disinterested manner
for the general public welfare?
l\fr.VANDENHAAG;Well, I think it is in the interest of the dominant
group itself to do so.
Mr. GRoss: "To do so'', meaning what, sir?
Mr. VANDENHAAG:To exercise its power in the interests of ail, for
if it did conceive of its own interests quite narrowly and impose great
disadvantages on those who are not dominant, I think in the long run
it would be to its own disadvantage. I do not know of any external
controls that could be so used and I would like to point out, Mr. Gross,
that it is contended, at least in the United States, that in the South,
where they have been segregated, Negroes have heen exploited and I do
not deny that that has been the case, I merely deny that it must be the
case. It is also contended in the United States that in the North, where
Negroes have not been segregated, the Negroes have been equally ex
ploited and in fact people say more so. So that the presence or absence
of segregation is,in my opinion, not significant in trying to determine
whether there is exploitation.
Mr. GRoss: You understood, sir, did you, that my question was, I
repeat: what safeguards are necessary and feasible to assure that the
dominant group exercises its control in a disinterested manner? Did I
understand you to say that enlightened self-interest is the safeguard?
Mr. VA~ DEN HAAG:I cannot think of any legal safeguards that w~uld
be very helpful. In this connection, may I point out that the Constitu
tion of the United States has not been changed since the Fourteenth
Amendment was passed, but that it is now interpreted in a way that
would eliminate segregation, whereas previously it was not so inter
preted. This may illustrate my contention that any law that you would SOUTH WEST AFRICA
pass would not automatically be a safeguard-it all depends on how it is
being used. The same Fourteenth Amendment, in other words, was used
50 years ago in one way and is now used another way.
Mr. GROSS: That is so. Would you wish the Court to understand that
you do not assign safeguarding values to the Constitution of the United
States?
Mr. VAN DEN HAAG: Not in the respect that you refer to.
Mr. GROSS: Thank you, sir. Now, your definition of discrimination
refers to disadvantage not warranted by any relevant element in the
situation-! quote the words "disadvantage", "warranted" and "ele
ment" in that definition. I am referring to the verbatim record of 23 June,
page 150, supra, Mr. President. Do the words "warranted" and "rele
vant" in this context involve value judgments?
Mr. VAN DEN HAAG: I think the word "warranted" is a value judgment
which assumes the value of "relevant"; but the relevance itself is a
factual matter.
Mr. GROSS: I am not sure I understood you, sir. You said that the
word "warranted" assumes a value judgment? .
Mr. VAN" DEN HAAG: Yes, sir. It assumes that relevance is of value;
and so "warranted" is a value judgment about the necessity of the dis
tinction being "relevant" to the situation.
nfr. GROSS: So what is "warranted" in a particular context or situation
depends upon the eyes of the beholder? Is it on the judgment of the
person who is making the decision as to what is warranted and what is
not?
Mr. VAN DEN HAAG: WeH, I do not think that value judgments are
quite so arbitrary.
Mr. GRoss: They can't be good or bad, sir, would you agree?
Mr. VAN DEN HAAG: Certainly they are hard to prove.
Mr. GROSS: I am not trying to qualify a particular value judgment
I am asking you as a social expert, as I think you have described your
self,sir-whether in this context of your own definition of the word, the
word "warranted" is interpreted in a particular context on any basis
other than a subjective evaluation of the person making the judgment?
May I put my question in that way, sir?
Mr. VAN DEN HAAG: Yes, sir, I think I grasped your question, but
perhaps I was not as clear in my answer as I should have been.
You see, as I said when I proposed this originally, I think in each situa
tion specific criteria are relevant. In a scholastic situation, for instance,
scholastic performance is relevant and not, say, religion or sex. In a
religioussituation religious belief is relevant and if, say, you are selecting
girls for a chorus line, aestheticand erotic appeal may be relevant. So,
when I speak of "warranted" I mean simply the value judgment that
relevance is of importance to the situation and that judgment could be,
if you wish, regarded as a value judgment.
1\fr.GROSS: Do you regard this type of value judgment. with respect
to what is warranted and what is not warranted in a particular context,
to be an attribute or specialty of the science of sociology?
Mr. VAN DEN HAAG: No, sir.
Mr. GROSS: May I ask you, sir: is the word "discrimination" a word
or concept which is commonly used by sociologists in what may fairly
be called a pejorative sense?
Mr. VA~ DEN HAAG: Yes, sir. WITNESSES ANDEXPERTS 449
Mr. GRoss: Does the word "discrimination" have a connotation of
hostile or adversary relationship between groups in a society?
Mr. VANDENHAAG:As it is now used in a political context we usually
speak of "discrimination against" which is synonymous with "placing
at a disadvantage for irrelevant purposes".
Mr. GROSS:Is there an element of hostility or adverse relationship
implicit in such a situation of discrimination?
Mr. VANDENHAAG:Not necessarily, no.
Mr. GROSS:One can discriminate against another, in this sense of the
word, with benevolent motives?
Mr. VANDEN HAAG: Well, that doesn't follow. You asked whether
there was hostility. Now, it may simply involve a preference for those
for whom the discrimination is in favour.
Mr. GRoss: A preference by thosewho do the discriminating, you mean?
Mr. VANDENHAAG:Yes.
ÎlfrGROSS:\Vould that be reasonably regarded by the victims of the
discrimination as a hostile or adverse preference?
l\fr. vANDENH' AAG:Perhaps we disagree on the use of the word hostile.
They may not feel that they are being discriminated against because
they are hated, they may simply feel that the discriminator prefers an
other persan or group. In other words, if I grade my students unfairly,
making an unwarranted discrimination, preferring, say, ail the prettier
girls and giving them "A's" and giving bad grades to ail the less attractive
girls, I do not think that the less attractive girls will necessarily feel that
I am hostile to them, they will merely feel that I am friendly to the more
attractive ones.
Mr. GRoss: Would that, sir, as a psychologist, make them feel very
much better?
Mr. VANDENHAAG: It makes them feel that I am weak, and my weak
ness leads me to be unfair, but not that they are being persecuted.
Mr. GROSS:So that perhaps you would prefer the word "unfair" to
"hostile"?
î\1Ir.VANDENHAAG:Yes, sir.
Mr. GROSS:Would it be compatible with the objective of promoting
well-being and social progress in any society if a government by official
action fosters such an unfair or, if I may say, adversary, relationship be
tween groups?
Mr. VANDEN"HAAG: I should certainly think that any government
that deliberately places a group at a disadvantage does something, and
this is a value judgment, that I would regard as unjust.
Mr. GRoss: If a law is passed, would that be a deliberate action of the
government, normally spcaking?
Mr. VANDENHAAG:Yes, sir.
l\fr. GROSS:Or if regulations are issued, are they normally deliberately
issued?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:Now I would like to quote from the testimony of Professor
Bruwer, a professor and social anthropologist of renown who was a
member of the Odendaal Commission, and who testified on 6 July (in the
verbatim record at p. 3ro, supra)-and I quote from my cross-examina
tion of him--I asked: "The decisions (parenthetically, Dr. van den Haag,
this referstothe imposition of Jimits on freedom upon persons by reason
of their race-this was understood between the witness and myself, I450 SOUTH WEST AFRICA
believe it is fair to state) are made by administration, which then is con
trolled by one group. That is correct?" Answer: "That is correct, Mr.
President." And I asked: "And it is controlled by the group whose happi
ness is,in your terms, determined to a large extent by the limitations
imposed on the freedoms of the other group. Is that correct?" Answer:
"That is correct." Did you understand this exchange?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS: In your opinion, as a sociologist, would you describe such
asituation as the one which I have read to you in this colloquy as one
in which discrimination may be said to cxist?
The PRESIDENT: Mr. Gross, is the quotation you are making from
Professor Bruwer in relation to the southern sector only, or in respect to
South West Africain general?
Mr. GROSS: For the purpose of my question, Mr. President, I would
say it applies generally to South West Africa.
The PRESIDENT: What is the page of the reference?
Mr. GROSS: Page 3ro, supra, of the verbatim record. I would say also,
Mr. President, that it applies as well to the southern sector. May I
continue, sir, or would you want further elucidations? Thank you.
Would you, sir, respond to my question, or would you like me to
repeat it?
Mr. VAN DEN HAAG: I should say, as I tried to say before, if there is a
limitation imposed, be it economic, be it on freedom, and so on, and
that limitation is imposed unilaterally on one group without being im
posed in a manner that is more or less symmetrical on the other group,
I would regard this as discrimination. However, if the limitation is im
posed on one group, supposing for instance that you were to say members
of a certaintribe or group cannot become lawyers ina certain city, but
they can become lawyers in a different city or in a different group, where
as members of another group cannot become lawyers there, then I would
not regard it as discrimination; that is, discrimination involves a uni
lateral imposition of a disadvantage not cornpensated for by any ad
vantage to be achieved elsewhere.
Mr. GROSS: Would you clucidate for the possible interest of the Court
what you mean by "here" and "there'' in that context-1 am talking
about one place, and I was addressing my question to that.
Mr. VAN DEN HAAG: I am not, as you know, famiiiar with Africa, but
if I may give an illustration in the United States-if you were to say to
a lawyer born in Cleveland, Ohio, that he cannot become a lawyer in
New York but only in Cleveland and some other places, perhaps. and
at the sarne time to say to lawyers born in New York that they cannot
become lawyers in Cleveland, and so on, then I would not regard it as
discrimination; but if, on the other hand, you were to say to the Cleve
land lawyer "You cannot become a lawyer in New York", and say to
the New York lawyer "You can be a lawyer both in New York and
Cleveland", then I would regard it as discrimination, assuming that the
qualifications are equal in both cases.
Mr. GROSS: So that the key to your answer, if I understand you cor
rectly, sir, is a proper definition ofhe area within which the asserted
discrimination takes place?
Mr. VAN DEN HAAG: No, sir-1 perhaps was notas clear as I wished;
the key to my answer is that bilaterality, that is that the limitations,
be imposed equally on bath groups. WITNESSES ANDEXPERTS 451
Mr. GROSS:Now may I corne back, sir, to my question, in terms of
my question to Mr. Bruwer and his answer-this is still at page 3m,
supra:
"And it is controlled by the group whose happiness is, in your
terms, determined to a large extent by the limitations imposed on
the freedoms of the other group. Is that correct?"
His answer: "That is correct." Now I ask you, sir, in your opinion as a
sociologist, would you describe such a situation as one in which discrimi
nation may be said to exist?
Mr. VANDENHAAG:Sir, let me try again; you are now referring to
happiness, a term that I prefer not to use because itis rather hard to ...
Mr. GROSS:Do you know it, sir, in the Constitution of the United
States, the Declaration of Independence?
Mr. VANDENHAAG:Yes, sir, I am rather familiar with them, but I
stillthink it is a very hard term to define and to measure; but at any
rate, I would say if you were to say that the happiness of one group is
determined or depends on the limitations of another, if this is wholly
unilateral-that is, if you could not say that the happiness of the other
group depends on the limitations of the first-then you may speak of
discrimination; if it is bilateral you may not.
Mr. GROSS:Yes, sir. And are you familiar with any diversified or in
tegrated economic society within which this principle operates-an
exchange of deprivation of freedoms within the same economy by official
action?
Mr. VANDEN HAAG: I understand that that is the case in South
Africa, but you ask me whether I am familiar with it--certainly not.
Mr. GRoss: Are you familiar with it anywhere, sir?
Mr. VANDENHAAG:Not out of first-hand experiencc.
Mr. GROSS:Yon never heard of such a situation?
Mr. VANDENHAAG:I have heard of it-1 am trying to convey that
but I am not familiar with it.
Mr. GROSS:Have you heard of such a situation existing anywhere
elsethan what you heard about South Africa and South West Africa?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:Would you name one or two illustrations?
Mr. YAN DEN HAAG:History has quite a number.
Mr. GRoss: The current, contemporary world, sir?
Mr. VANDENHAAG:No, I cannot off-hand tell you.
Mr. GRoss: Now may I read from your work The Fabric of Society,
the well-known text, properly esteemed, published in 1957 and, I believe,
co-authored, if I am not mistaken, with Ralph Ross. At page r6x of
the work to which you referred in your testimony-that is, you referred
to the work-I do not think you referred to this quotation, but I read,
if l may, sir:
"Prejudices are the ideological links in the historical chain that
keeps the disdained group bound to its low status. When the low
status of the slighted group is used to inflict material disadvantages
on its members, they are 'discriminated against'. Their common
characteristic,such as skin colour or nationality, is regarded as
sufficienterse to deny them the parity of advantages or opportuni
ties they seek, though it be without relevance, or the common
characteristicis taken to indicate incapacities, for instance stupidity,452 SOUTH WEST AFRICA
which, were they present, would be truly clisqualifying. This last
implies that the irrelevant common characteristic of the group
ought not to serve as a basis for discrimination against it, unless
indicative of relevant incapacitating traits, which stands to reason."
Do you still consider at the present time these to be correct views, as
they were in 1957?
Mr. VAN DEN HAAG: These are, I think, correct views, and they are
consistent with what I have tried to testify to here.
Mr. GROSS:That, of course, the Court will have to decide.
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS:Now these references specifically to "material disadvan
tages" would relate, would they, sir, to economic disadvantages?
IlfrVAN DEN HAAG: Yes, sir.
Mr. GROSS: Would they relate to the imposition of ceilings upon
economic advancement based solely on race, without regard to individual
qualities?
Mr. VAN DEN HAAG: Provided that these ceilings are imposed only on
one group in a specific situation, and not on the other.
Mr. GRoss: Yes, sir, that is what I am referring to. The specific situa
tion, however, to which I invite your attention is one, let us say hypo
thetically,in which you have a large number of different races, classified
as such, working and, to a large extent, living in the same economic and
geographical area-would this correspond to the context or situation
that you have in mind in answering my question?
Mr. VAN DEN HAAG: I have not understood this fully, sir.
Mr. GROSS:I see, sir. I think I can state it in a sentence: in a situation
in which, let us say, two different races live and work together in the
same economic environment, would that be a context or situation to
which your response referred? You used the phrase "in a situation"
would that be a situation as you used the term?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS:Thank you. I would like to refer to page 150, supra, in
which you testified as follows:
"... in our memory very clearly I suppose is that [this is one case
you cited] of the Jews in Germany, who were certainly slaughtered
(discrimination is not enough) [I take it that you probably meant
'\vas not enough', but it appears in the verbatim record as 'is not
enough'J; yet there was no segregation of any length preceding this
slaugh ter ... ".
This was à propos of your views expressed in the testimony regarding
segregation and its implications. Can you tell the Court, sir, àpropos of
the question of length of time "preceding the slaughter", as you referred
toit, when was the requircment introduced in Germany that ail persans
classified asJews must wear a Star of David badge in public?
Mr. VAN DEN HAAG: I do not know the exact time sequence, but my
opinion was, and is, that to the extent to which segregation was intro
duced in Germany, it was introduccd as an effect of the planned slaughter
or discrimination and not as a cause; and the point I wished to make,
and pcrhaps did not succeed in ma.king as clearly as I wanted, is that
segregation is not necessary as an instrument for discrimination, though
it can be so used, and that discrimination and even slaughter can be
planncd without prior segregation; but of course then in the act of WITNESSES ANDEXPERTS 453
slaughter, or in the time most proximate toit, you willnecessarily have
to impose some segregation to undertake it.
Mr. GROSS:Could you explain to the Court, sir, why, as a sociologist,
or any other field of expertise you cared to identify yourself with,
segregation was a relevant prelude or preliminary to slaughter?
Mr. VANDEN HAAG: Yes, sir, because if you wanted to select Jews
for slaughter, you had to select them; the act of scgrcgation was simply
part of the act of selection. They had to be distinguishcd from non
Jewish Germans so as to be selected and sent into concentration camps,
which werc füled with them; so here the separation was simply incident
to the slaughter, as it was incidentally also in countries such as Poland
and Rolland and many others, where the Gennans did not even have
time to introduce a preliminary period of segregation of any length, but
directly selected them out; but of course this sclection, transportation
and so on involved segregation as a prelude to death.
Mr. GROSS:\Ve are not referring to that, sir. Are you familiar with
any limitations that were imposed upon the freedom of Jews prior to
their slaughter?
Mr. VANDENHAAG:Again as an instrument to keep them, so to speak,
ready for the slaughter that was clone, yes-all kinds of limitations.
Mr. GROSS:And whcn the sign appeared on a park bcnch saying no
Jews were allowed-this was an incident to preparing them for slaugh
ter?
Mr. VANDEN HAAG: No, sir, this was just an expression of general
spite and hatefulness, I would think.
Mr. GROSS:So that this is an element of segregation, or separation,
if you use the terms synonymously?
Mr. VANDENHAAG:I do not think that even at that time in Germany
there was anything that I would seriously call segregation. It was done
to some extent in certain other countries in which it was geographically
more easy-for instance, in \Varsaw, where the Jews were confincd to a
ghetto-but it was really not done in most of Germany at least before
the start; they were simply selected and sent to concentration camps,
which is an act of segregation. Now thcre were a number of special mies
that applied to them, to Jews, before, such as making them wear distinc
tive garb or signs-things like that-but all thcse secmcd to me to be
part of a deliberate plan on the part of the Government to makc them
abjects of hate.
Mr. GROSS:And that, therefore, was an element of the plan which was
perhaps relevant to slaughter, perhaps not, depending on the intention
of an administrator-is that what you would say, sir?
).fr. VAD"EN HAAG:Yes, sir.
Mr. GRoss: The limitations of freedom upon them by reason of their
race, you are telling the Court, was merely a part of the plan for their
slaughter. Now were there other limitations of frecdom imposed by Nazi
Germany upon other than Jews, for example, those who exprcssed politi
cal opinions addressed to the regime?
Mr. VANDENHAAG:Weil yes, under somewhat different laws. In the
case of the Jews these were imposed merely because these people were
Jews; in the case of political and so on it was introduced by more normal
individual legal procecdings-l think in many cases at least-for the
administration of justice in Nazi German y certainly is a doubtful proposi
tion to begin with but therc were also other races, as I think you suggest,454 SOUTH WEST AFRICA
who were being oppressed and slaughtered by the Nazis-the Jews were
not alone-the gypsies and others were involved but of course the main
harshness and cruelty of the Nazis did fall on the Jews.
Mr. GROSS:\Vould you say, sir, that the Jews under Hitler were
discriminated against?
Mr. VANDENHAAG:Certainly.
Mr. GRoss: Now with reference to page 151, supra, where you were
asked for a general comment on possibilities of comparing, and I quote
from the question-" the American Negroes" with "indigenous inhabi tants
of Africa" and you answered-"the American Negroes originally came
from Africa but I think there are very major differences. One is a purely
biological one" and then I skip ... "lt is generally said that African
Negroes, on the whole, are purer Negroes whereas it is generally accepted
that there is about a 30 per cent. admixture of non-Negro genes, or
blood, in the American Negro". Do you recall that testimony?
Mr. VANDENHAAG:y es, sir.
Mr. GRoss: Do you wish to qualify it in any way before I ask you
questions aboutit?
Mr. VANDENHAAG:No, sir.
Mr. GROSS: I have not seen the revised verbatim. In this response to
the question of comparing the "American Negroes" with the "indigenous
inhabitants of Africa", did you intend to refer to al! American Negroes?
\Vould you answer that "yes" or "no"?
l\lr. VANDENHAAG:\Vell it is a little difficult for the reason thaI ...
Mr. GRoss: But you used the phrase ... I just was trying to get for
the Court the benefi.t of the use of the phrase. Did that phrase refer to
all American Negroes?
:Mr.VAN DEN HAAG: Let me explain, sir, that these are statistical
matters. When I speak of a 30 percent. admixture, for instance, I do not
mean that I can state or that I do believe, that every American Negro
has a 30 percent. admixture of genes-what I do mean is that I am in
formed by genetecists, of which I am not one, that on the average one
may speak of such an admixture. Ido not think that there are any scien
tificstatements that are made in modern science that are other than
statistical in this sense.
Mr. GROSS:So that your answer is with respect to a statistical base
in which you are dealing with averages rather than concepts of a race,
is that correct?
Mr. VANDENHAAG:The concept of a race is a concept of an average,
sir. The members of a race are not all identical in any particular respect;
on the average certain types in a race are more frequent than they are
in another race and that gives us a distinctionItis a frequency statement,
never a statement referring to all members.
Mr. GROSS:I see. So that phrase "such as the American Negroes"
means the average American Negroes?
Mr. VAN DEN HAAG: Right.
Mr. GROSS:Would you undertake to define to the Court a description
of an average American Negro?
Mr. VANDENHAAG:I would not, sir. I am not competent to do so.
Mr. GROSS:But it is a concept whîch you have in mind in using the
phrase?
Mr. VANDENHAAG:y es, sir.
Mr. GROSS:But you could not explain to the Court what it is. WITNESSES ANDEXPERTS 455
Mr. VANDENHAAG:I accept this as we always do in science from a
related science, namely in this case. the biologists. Now you see to give
a biologica.lly correct description of American Negroes, l would have to
have greater competence in biology than I have or than I need to be a
sociologist. As a sociologist I am only interested in the social perception
of the Negroes not in their biological substance.
Mr. GROSS:Your reference to the purely biological difference, then,
in your response to Mr. de Villiers' question, was irrelevant to your ...
Mr. VANDENHAAG: Itis fairly irrelevant and if you wish I will with
draw it.
Mr. GRoss: Not at all; that is entirely up to you. Now do you regard,
on the basis of your discussions with geneticists or scientists in fields
other than your own, that there is a distinction between genes and blood
-you use both?
Mr. VANDENHAAG:I used them synonymously. I think blood is a
colloquial expression for genetic differences.
Mr. GROSS:So that you did not mean blood literally?
Mr. VANDEN HAAG: No, sir. There are, incidentally, I happen to
know, differences in the blood composition, but I could not tell you ex
actly what they are-! understand there is a difference in the time
of coagulation.
Mr. GROSS:You mean between the average Negro and the average
White?
Mr. VANDEN HAAG: Yes, surgeons tell me that they have to pay
attention to that.
Mr. GROSS:And are there differences within each race as well? Have
you consulted surgeons on that question?
Mr. VANDENHAAG:Certainly, there are differences regarding ...
The PRESIDENT:I do not know what relevance the last two questions
have, Mr. Gross.
Mr. GROSS:Sir, the relevance, with all respect, is to the witness's
expert testimony, if it is expert testimony, about a 30 percent. admixture
of non-Negro genes or blood in the American Negro, and I am trying to,
with all respect, get from the witness clarification as to words and phrases
he uses here which are so wide as his expertise, as I understand it.
The PRESIDE~T:Very well.
Mr. GRoss: Now would you say, sir, as a sociologist that the term
"American Negro" in this context is a stereotype?
Mr. VANDENHAAG:I would not say so, sir. It can be so used but you
can certainly speak of the American Negro, you can speak of the German
type or the Italian type and so on. It may be used as a stereotype if
it is used to mean every single German or every single Negro is such
and such-that would be a stereotype but if it refers to a frequency
distribution of types,be they physical or psychological, it is a perfcctly
legitimate and scientific description.
Mr. GROSS:Now is there a scientific description that covers the category
of an off-spring of a mixed Negro-White marriage?
Mr. VAN DEN HAAG:In certain countrics there usually ...
Mr. GROSS:As a scientific matter, sir.
Mr. VANDENHAAG:As among geneticists, is that what you mean?
Mr. GRoss: In any capacity which you represent as an expert ...
Mr. VANDENHAAG:Well, I am nota geneticist so I would not be
able to respond to your question if it was meant to be genetical, but if SOUTH WEST AFRICA
456
it is meant to be social, we do not make such a distinction except to say
that sorne Negroes are more white, more light or something likc that
and othcrs are less so.
Mr. GRoss: Purely visual, sir?
'Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS: So that as far as you know there are no scientific or genetic
criteria which are applicable to the mixed off-spring of a mixed marriage?
Mr. VAN DEN HAAG: I cannot commit myself on that, as I said, I do
not know enough about it.
Mr. GRoss: I see. At page 151, supra, of your tcstimony, you said-
"... the Amcrican Negro does have Arnerican culture, an American
Negro sub-culture ifyou wish-a sub-culture just as that of say long
shoremen may be called a sub-culture owing to specific circumstances
of their life".
Does the American Negro here in this context refer to the average, as
you have used the term, the "average American Negro"?
Mr. VAN DEN HAAG: Yes, sir. Now I am fully aware, if I may expand
a little on this, that of course there are lower-class, middle-class and upper
class Negroes and that they partake in part of Negro culture and part
of middle class, or upper class as the case may be, culture that if they
are longshoremen they partake in part of the sub-culturc of longshoremen
and part of that of Negroes. But this is very common and would apply
to everybody-that is we are all usually members of more than one sub
culture.
Mr. GRoss: You use the terms "Arnerican Negro sub-culture": were
you referring to a statistical base in that ...?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS: That you were referring to "sub-culture" as a common
feeling among the average American Negro-1 am not trying to put words
into your mouth, I am trying to elucidate your rneaning.
Mr. VAN DEN HAAG: I think this would be correct and I would for
instance make this dear if you refer to linguistic habits which are cer
tainly part of a sub-culture, you would find that certain expressions,
modulations of phrase, terms and so on are more often used by Negroes
say than by non-Negroes. Of course, there is individual variation in this,
nonetheless you can characterize a group in these terms.
Mr. GROSS: So that by education and environment you change the
sub-culturc pattern in your terms?
Mr. VAN DEN HAAG: To some extent, yes.
1\frGROSS: To some extent-to what extent is it? Is it perpetual and
frozcn?
Mr. VAN DEN HAAG: I think it is fairly ultimately ineradicable, that
is education has the effect of making people acquainted with othcr sub
culturcs and acquaintcd with the culture at large but it does not usually
extinguish the feeling of belonging or deriving from a sub-culture.
l\1rGROSS: I would like to invite vour attention now to another area
of inquiry. At page 132, supra, you'say that-"in principle, whercver
there is a Native culture that has any sort of strength ... I would make
every effort I could to maintain it" and if it was necessary "to bring
about a change, I certainly would want to do it in the slowest and the
most supervised way". And then on page 153 you say-"there are ca~es
when the change occurs suddenly and without regulation by supenor WlTNESSES AND EXPERTS
457
authority". I should like to ask you, sir, whether this change to which
you refer relatesto rapid or other social change?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS:Now is a social change, rapid or othenvise, a concomitant
of economic development?
l\frVAN DEN HAAG: It can be. Social change can occur independently
of economic development; it can also be an effect of it; it can also be
a cause of it.
Mr. GROSS:If you as a sociologist or observer would be confrontcd
with the situation of a diversified economy in which you had persons
who might perhaps be regarded as less educated, less favoured-would
their social change be a concomitant of the economic condition in a socio
logical sense?
Mr. VAN DEN HAAG: I do not think that can be said generally one way
or the other. It depends on numerous factors. \Ve have circumstances
in which the social change bas taken place without any visible economic
cause and has had economic effect sometimes and sometimes not. We
have other circumstances where it can be clearly shown that the social
change is an effect of an economic change.
l\fr. GROSS:So that you would not be prepared to say that economic
development is normally a cause of social change?
Mr. VAN DEN HAAG: Itcan also be an effect.
~fr. GRoss: It can be either one or the other?
Mr. VAN DEN HAAG: In fact, if I may point out, the last 20 years or
so there bas been a considerable change of view on this matter. Many
people in the United States felt that the bcst way to help the undeveloped
countries was by direct economic help, largely investments and indus
trialization,and that that would help their economic advancement. Now,
however, and this has occurred perhaps in the last five years, many social
scientists inthe United States are of the opinion that social change ought
to and must preccde the economic change as that economic change would
become as effect. So there is a relationship, but it can be viewed in dif
ferent ways.
Mr. GRoss: Economie development does have some effect upon social
change?
Mr. VAN DEN HAAG: Oh yes. Sorne effect certainly.
i\Ir. GROSS:And if it is, say, an economic environment in which you
have different races, in which both races are absorbed in the economy
this could have normally, and would have, a social effect on that com-
munity? ·
Mr. VAN DEN HAAG: I would like ta be able to give you a clear answer
but unfortunately the facts do not permit it for if you look at the Jews
in Germany, which we have just discussed, we did have a case here that
both groups at least were equally participant in the economic activity
without hindrance and so on, and the total ultimate effect so far, has
been one that we are ail so fully aware of. Other cases have had a more
happy outcome. I do not believe that one can say, generally speaking,
that economic integration Jeads to the social change that is desirable,
that is, some sort of peaceful relationship between the two groups, it
may lead to the opposite.
Mr. GROSS:One question with respect to clarification of the case you
just cited. Do I understand you correctly, sir, to say that what happened,
as you put it, in Germany, was due to the fact that the Jews were in- SOUTHWEST AFRICA
458
volved in an economic situation with non-Jews? I am not sure I under
stood your answer.
Mr. VAN DEN HAAG: I am sorry if I was not clear. No, I did not say
that it was caused by the economic situation. I merely wished to say
that the economic situation or integration, did not prevent it. That is,
that economic integration, co-operation, equality and so on, do not serve
to prevent racial or ethnie hostility and so on.
Mr. GROSS:Now, I am going to invite your attention, with the hon
ourable President's permission, to your testimony, at page r54, supra,
of the verbatim record of 22 June 1965, in which you referred, in response
to a line of questions by distinguished counsel for the Respondent, to
the Brown v. Board of Education case; I shall try to keep my questions
brief, with a view to terminating our interview this morning. The testi
mony is that:
"... 'modern authority' has demonstrated that segregation.is 'inher
ently unequal' so what the Court said was in fact, that social scien
tists who were prominent in the lower courts in these cases, have
demonstrated that even when facilities are altogether equal, the
mere fact of segregation inflicts an injury on at least one of the
segregated groups, and is therefore inherently unequal".
This is your characterization of the Brown decision?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GRoss: Now I will return, Mr. President, if I may, to the verbatim
of 23 June. I refer to page 154, supra: you were asked by Mr. de Villiers
"That·proposition of the inf!iction of injury, did it relate in the particular
case to the situation of Negro school-children attending segregated
schools?" "Yes, sir", was your answer. Now, proceeding from that, I
would like to ask you, sir, whether you regard it as a correct statement
that psychological injury is inflicted by segregation-would that state
ment be generally accepted in your branches of social science in the
United States?
Mr. VAN DEN HAAG: I do not regard it as a valid statement at all.
I do feel that there is no evidence whatsoever for it and I do not think
that sociologists today would be ready to seriously report that such evi
dence is available although, as I tried to point out, they would be quite
reluctant, for reasons of policy or fashion, to state this.
Mr. GRoss: Now, I believe you testified to that, sir-that their desire
not to express their views would be unconnected with their scientific or
objective judgment?
Mr. VAN DEN HAAG: That is correct, sir.
Mr. GROSS:For reasons which you indicated, I believe you said "not
fashionable"?
Mr. VAN DEN HAAG: That is correct, sir.
Mr. GROSS:Yes, I see. Now, you referred, at page 155 of the verbatim
of 23 June, to the fact that "a brief amicus curiae was signed by a number
of social scientists"-this was in the Brown case.
Mr. VAN DEN HAAG: Yes, sir.
Mr. GRoss: A brief appended to the Applicants' briefs. Are you familiar
with the numbcr and identity of the scientists who signed that brief?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS:Then you would take it as correct, that there were 35 such
scientists, from 13 States? WlTNESSES AND EXPERTS 459
Mr. VANDENHAAG:Yes, sir.
l\lr. GROSS:Of the United States. Are you familiar, sir, with the terrns
oftheir concurrence in the brief?
Mr. VANDENHAAG:Yes, I have read the brief amicus curiae,in fact
I have it here.
Mr. GRoss: So that you do know, as a fact, that they all did concur
inthe conclusions and opinions expressed in the brief, with the reserva
tion that there were some differences of opinion concerning the conclu
siveness of certain items of evidence?
].\fr. VANDEN H.uG: Yes, sir. l\fay I point out, sir, that since that
time, I have written ...
Mr. GRoss: I have not quite finished my question, sir. I wanted to
make sure that the Court understood the terms of the reservation of the
scientists. I want to make further reference to this, concerning the con
clusiveness of certain items of evidence and concerning the particular
choice of words and placement of emphasis in the preceding statement,
that is, the brief itself: "We are nonetheless in agreement that this state
ment is substantially correct and justified by the evidence and the dif
ferences among us, if any, arc of a relatively minor ordcr and would not
materially influence the preceding conclusions". I quote from page 177.
Now, do you have any basis for an opinion, sir, as to what weight was
given by the Suprcme Court or any justices thereof, to the concurrence
of these authorities in this brief?
Mr. VANDENHAAG: Yes, sir, I do. I think that considerable weight
was given to them. I believe I quoted to you last time an opinion by
Professor Kurland, a Professor of Law at the University of Chicago,
which indicated as much, and if I may add to it, let me here quote a
paper by Dr. Alfred Kelly ...
Mr. GROSS:Does this represent your opinion, sir? My question was
whether you had any evidence to support your opinion.
Mr. VANDENHAAG:I fully agree with Professor Kurland and with
Professor Kelly on the opinion which I am about to read, that the Su
preme Court's decision in Brown v. Board of Education, was strongly
influenced by the evidence presented by the social scientists in the ap
pendix to the decision and quoted in footnote II.What leads me to this
opinion is that the court speaks of "modern authority" and of "contem
porary psychological knowledge", references which I believe cannot be
but to the evidence presented in this connection. Now I would like to ...
Mr. GROSS:I would prefer not, Mr. President-in the interests of time,
I have asked the witness for his own opinion and he proposes to read the
opinion of others.
The PRESIDENT:I think that the witness should answer the question.
Mr. GRoss: Then. sir, may I continue? Thank you, sir. As a matter
of fact, then, I believe you have testified, have you not, that you do not
know of any basis for an opinion as to the weight, if any, given by the
justices of the Supreme Court to the scientific authorities who signed
this reportr
l\Ir. vANDENHAAG:No one, not even the justices ...
Mr. GRoss: Nobody ... so you do not purport to have judgment, ex
pert or otherwise on that?
Mr. VANDENHAAG:No, but there are references in the judgment to
modern authority, which are ...
Mr. GROSS:Yes, we understood that. Now, in the amicus curiae brief, SOUTHWESTAFRICA
to which we are referring and about which you testified on 23 June, the
brief discusses a report of the so-called mid-century White House Con
ference on Children and Youth, does it not?
!\fr. VANDENHAAG:Yes, sir.
Mr. GRoss: Are you familiar with that White Bouse report?
Mr. VANDENHAAG:It was prepared by Professor Kenneth Clark and
I have reviewed its contents in the article which I submitted to the Court.
Mr. GRoss: It was prepared by Kenneth Clark; it was discussed and
signcd by numerous scientists, was it, sir?
Mr. VANDENHAAG:Yes, sir.
l\frGRoss: Now, are you familiar with the conclusion of the report?
-as follows, on page 168 of the brief:
"The Report brought together the available social science and
psychological studies which were related to the problem of how racial
and religious prejudice influenced the development of a healthy per
sonality. It high-lighted the fact that segregation, prejudices and
discriminations ... "
The PRESIDENT:Mr. Gross, I think if you are cross-examining a wit
ness, you cannot ask a witness in relation to a factual situation, as to
how a report, with which he had nothing to do, came into being. You
can ask him whether he agrces with a conclusion or opinion expressed.
You cannot quote, for the purpose of putting on the record as evidence,
the factual details in respect of the matter.
Mr. GROSS: .M.r.President, with respect, sir, I will attempt to make
dear the purpose of this quotation. I had planned to ask the witness for
his concurrence or non-concurrence with the conclusion of this report ...
The PRESIDENT:A conclusion you may put to the witness, but not
how the report came into existence. . .
Mr. GRoss: AU right, sir; thank you, sir. I will, with the President's
permission, ask the Court to ignore the question and the witness to ignore
the question, and ask you whether you agree with the following charac
terization of the report, which I read from page 168:
"The Report îndicates that as minority group children learn the
inferior status to which they are assigned, as they observe the fact
that they are almost always segregated and kept apart from others
who are treated with more respect by the society as a whole, they
often react with feelings of inferiority and a sense of persona! humil
iation. Many of them become confused about their own persona!
worth."
Do you agree with that, as a fair characterization of what the report
indicates? You testified that you were familiar with the report. Do you
regard this as a fair characterization of what the report indicates?
Mr. VANDENHAAG:You mean, do I .. .
Mr. GROSS: I have just read to you .. .
Mr. v ANDENHAAG:Yes, I understand. Do I regard this as the opinion
that the report expresses?
Mr. GRoss: Yes, sir.
].frVANDENHAAG:Certainly, that is the opinion that the report ex
presses.
Mr. GROSS:Now, I would like to turn to the question which was ad
dressed to you, by Mr. de Villiers ...
Mr. DE VILLIERS:]\Ir. President, I am sorry to interpose ... WITNESSES ANDEXPERTS
The PRESIDENT:Yes, i'ifr. de Villiers.
Mr. DE VILLIERS:My learned friend has had his election not to call
evidence. If he wishes to put a conclusion to the witness and ask him
whether he agrees with that, that is perfectly permissible, but to build
a record by reading portions from a report, and just asking the witncss
whether he agrees that that is what the report says-that, I submit, is
not permissible.
The PRESIDENT: It does not make what is said in the report evidence
at all; if experts are being cross-examined, as I have already indicated,
cross-examining counsel may put to the witness whether he agrees with
an expert conclusion. You ask him whether, in point of fact, that was a
fair statement of what the report indicated. That makes it no evidence,
Mr. Gross, of any fact.
Mr. GROSS:Sir, with respect, I had intended and hoped that it would
make it perhaps relevant to the testimony of the witness that this report,
if I understood you correctly, the White House report, which is what we
are referring to,was the work of Professor Clark, is that ...
Mr. VANDEN HAAG: Largcly so.
Mr. GROSS:Largely so. This conclusion I have quoted is a description
by the signers of this brief as to the nature and character of the report.
Now I was leading to another question, sir, with which I would like to
connect up.
The PRESIDENT:Very well.
Mr. GROSS:The question I have just asked-with ail respect, I think
that the interposition of distinguished counsel was somewhat premature,
because this is part of the line of questions in which I would like, with
the Court's permission, to corne to the second related part, and then ask
the witness for his opinion.
The PRESIDENT:Whether he agrees with a scientific opinion?
Mr. GROSS:That is right, sir. Now then, the amirns brief then goes
on to say, at page 171:
"Conclusions similar to those reached by the mid-century White
House Con/erence Report have been stated by other social scientists
who have conccrned themselves with this problem. The following
are some examples of these conclusions."
There are three of them, and I should like, with the Court's permission,
to read each one of the three and ask whether you agree or disagree with
them. The first is the conclusion "that segregation imposes upon indi
viduals a distorted sense of social reality". Do you agree with that or
not, sir?
Mr. VAN DEX HAAG: No, sir.
i!fr.GROSS:The second is "that segregation leads to a blockage in the
communications and inter-action between the two groups. Such block
ages tend to increase mutual suspicion, distrust and hostility." Do you
agree with that, sir?
Mr. VAX DEN HAAG: No, sir.
Mr. GROSS:And thirdly, "segregation not only perpetuatcs rigid ste
reotypes and reinforces ncgative attitudes towards members of the other
group, but also leads to the clevelopment of a social climate within which
violent outbreaks of racial tensions are likely to occur". Do you agree
with that, sir?
Mr. VAN DEN HAAG: No, sir. Let me add that I am aware that not SOUTHWESTAFRlCA
only is there no evidence for the contentions you have just mentioned,
but whatever evidence appears in the body of the report that you have
just mentioned, bas been largely faked.
Mr. GRoss: Has been largely what, sir?
Mr. VANDENHAAG:Faked.
Mr. GROSS:Faked? F.A.K.E.D.?
Mr. VANDENHAAG:Yes, sir.
Mr. GRoss: By whom, sir?
Mr. vANDENHAAG:By Professor Kenneth Clark.
Mr. GRoss : Are you finished, sir?
Mr. VANDENHAAG:Yes, sir.
Mr. GROSS:On page 162, supra, of the verbatim of 23 June, Mr. de
Villiers asked you the following question: "Did you find anything inher
ently improbable in the description as contained in Book III (Il) of the
Counter-Memorial?" This referred to the different population groups in
South West Africa. I should like to ask you, sir, have you read the Reply
of the Applicants in these proceedings?
Mr. VANDENHAAG: I went through all the documents, but rather
superfi.cially, so I would not wish to vouch that I will remember any
details.
Mr. GRoss: You testifi.ed, I think, sir, with respect to the question
asked you with regard to Book III you did not find anything inherently
improbable?
Mr. VANDENHAAG:Yes, I studied this at the instance of Mr. de Villiers
somewhat more carefully, and came to the conclusion that you just quoted
me as making.
But you did not study the Applicants' pleadings with the
Mr. GRoss:
same degree of care?
Mr. VANDENHAAG:I did not read all the volumes with equal care,
that is true.
l\fr. GRoss: Can you say, in the same sense in which the question was
addressed to you, whether you fi.nd anything inherently improbable in
the Applicants' pleadings?
Mr. VANDENHAAG:If you would be good enough to refresh my mem
ory, I could answer that.
Mr. GROSS:\Vell, Ijust wanted to know whether you could answer it
in the same terms that you did the Book III question.
Mr. vANDENHAAG:Three weeks ago my memory was fresher than
it is now.
Mr. GROSS: I see, sir, so that when you answered the question that
there was nothing inherently improbable in that book of the Respondent's
pleadings, you did not have in mind what was in or might be in the Ap
plicants' pleadings-is that correct?
Mr. DEVILLIERS:I am so sorry, that is not put in correctly. I putto
the witness a particular description contained in Book III, I did not put
a whole book to the witness. I am sorry that I have to interfere.
Mr. GROSS:Mr. President, I think the record will show ...
The PRESIDENT:Mr. Gross, before you pursue this question, you had
better referto the record.
Mr. GRoss: Yes, I was just going to, sir. I thought I had read it, sir,
but apologize for not having done so. Quote, page r62, supra:
"... [do] you find anything inherently improbable in the description
as contained in Book III of the Counter-Memorial?" WITNESSES AND EXPERTS
The PRESIDENT:What was the answer to that?
Mr. GRoss: The answer was: "I am aware, as any sociologist is ... "
-it is a rather long one, Mr. President, it is a paragraph in the middle of
page 162, but the witness attempts to respond to that question put in
that form, sir.
The PRESIDENT:Did he say in that that there was nothing in Book
III which wa.sinherently improbable?
Mr. GROSS:I took that to be the whole purport of his answer, sir, in
that respect.
The PRESIDENT:But where in his answer?
Mr. GROSS: It is the middle of page 162, supra.
Mr. DE VILLIERS: Mr. President, perhaps I can hclp; it started at
page 160, there was an interposition and discussion and it all related
back to the question in the middle of page 161, supra.
":'\fr. van den Haag, particularly in our Book IIIof the Counter
Memorial, we gave detailed descriptions of the various population
groups exîsting in South West Africa and I asked you whether you
had read that."
That was the description referred to.
The PRESIDENT:Further in the page there, the question is also put
by i\1r. de Villiers to the witness as:
"I merely asked you to indicate whether, in the light of your
general knowledge of human relationships over the world, you find
anything inherently improbable in those descriptions."
Mr. GROSS:Yes, sir, and my whole point solely, now, is to pursue the
line no further, but I wish to say for clarification that my question was
directed at precisely the sa.me area which is covered by the Respondent's
question. I asked the witness whether hc had _read the Reply covering
the same points, and I was asking whether he had found anything in
herently improbable in those sections.
The PRESIDENT: Ithink not, Mr. Gross, you have put a question to
the witness at large in respect of Book III of the Counter-Memorial and
the Applicants' Pleadings.
Mr. GROSS:AH right, sir, I apologise, and I would like to continue.
The PRESIDENT:Please do.
Mr. GROSS:At page 164, you were asked (assuming this was à propos
of Book VII of the Counter-Memorial and referred to the educational
policy),and I will read the question:
"... assuming the correctness of that proposition about the aims
and the nature of the Bantu education system, would you, in the
context of such an educational system. expect that the mere fact
of separation of children into different schools must inevitably
inflict psychologicalharm?"
And in the course of your reply, you said, inter alia, at the end of your
response:
"... an attempted homogenization would certainly be harmful to
bath, as we1las unsuccessful".
Would you expia.in to the Court what the significance of the word "homo
genization" is in this context?
Mr. VAN DEN HAAG; Yes, sir,I think it will rcfer to an educational
policy which treats different groups, having different cultures or sub- SOUTH WEST AFRICA
cultures, and, perhaps as a result of genetic differences, different attitudes
and endowments, homogenization would treat these groups, education
ally as though they were the same, and, for instance, instruct them in
the same language although they have different native Ianguages, in
struct them in the same activities although they are likely to go through
different activities, familiarize them with the same stock of ideas, al
though in their different cultures, different ideas prevail, and so on.
The effect of that is that you are likely to alienate the groups from their
own culture and estab1ish, and badly, a sort of common homogenized
culture instead, which Ithink does a damage educationally and psycho
logically.
Mr. GRoss: \Vould you describe the term "homogenization" or "homo
genized" as scientific terms~terms as applied to anything other than
milk?
Mr. VAN DEN HAAG: \Vell we speak of heterogeneous groups and
homogenous groups, and of course if there is heterogenous and homog
enous, then you can homogenize, you can transform one into the other,
or try to.
Mr. GRoss: And a "homogenous group" would be, what, sir?
Mr. VAN DEN HAAG: A group of the same kind. It depends in what
respect you want to speak of homogenous, you can speak of homogenous
with respect to tallness, hair-colour or weight, or anything else.
Mr. GROSS:And in the sense you use the tenn "homogenized" in your
response to Mr. de Villiers' question, what were you referring to: height
or what other characteristic?
Mr. VAN DEN" HAAG: Iwas referring to sub-cultures.
Mr. GRoss: To "sub-cultures"?
Mr. vAN DEN HAAG: Or cultures.
Mr. G Ross: Not races?
Mr. VAN DEN HAAG: These too if you wish, but races cannot be homog
enized physically, in a school at lcast.
Mr. GROSS: So that what you were talking about was homogenization
of cultures, isthat right?
Mr. VAN DEN HAAG: That is right, sir.
l\fr. GROSS:I would conclude, Mr. President, if I may, sir, with one
or two questions. On page 174, supra, of the verbatim, you were asked:
''What happens when there are attempts at assimilation of one group
with another, ... " and your answer on page 174, was as follows:
"There are circumstances when this can be successfully accomp-
lished, when it is carefully regulated, ...the attempt to do so by
coercion is not likely to be successful ... "
May I ask you, sir, whether you would regard attempts to separate
groups by coercion as likely to be successful in the sense which you have
used the term?
Mr. VAN DEN HAAG: There are in some cases, I think indicated, when
you have a case where there is one very highly developed culture, using
this word vaguely, but Ithink we understand what it means, and an
other that is more primitive. What is likely to happen is that the highly
developed culture exercises a great attraction on the group that has a
primitive culture.They may be attracted to this culture and ta participa
tion in it, even though such participation or attempted participation in
it may be their own undoing, particularly when the participation happens WITNESSES AND EXPERTS
as rapidly as their attractionto the developed culture may lead to. In
this case, I think it is not only useful but, I could say, almost necessary
for a governmental authority to either avoid or retard this process by
measures, which in this case, will have to be compulsory. May I give an
instance-American Indians, as you certainly will know, were very at
tracted to the culture of the colonists and particularly, among other
things, attracted to alcoholic beverages, which ended up being in large
part, as they themselves complained, their own undoing. In some places,
though quite belatedly, Indians were therefore excluded from places
where alcoholic beverages were purchasablc and it was prohibited by
law to sell them to them: as I said, it was too late. But here you have an
instance where a somewhat more advanced culture both attracted the
less advanced culture and resulted in the undoing of those who were so
attracted and not prevented from indulging in this somewhat suicidai
attraction by superior authority. Thus in somc cases I should think that
compulsion is not only justified but necessary to keep cultures apart.
Mr. GRoss: Now would that go so far as total separation of races?
Mr. VANDENHAAG:I think that if we had engaged in that with respect
to lndians, the lndians would still be alive today, and would probably
be happier than their remnants are.
Mr. GRoss: Have the Indians been absorbed into the economy of the
United States?
Mr. VAN DEN HAAG:\Vell, if you consider killing an absorption, they
have.
Ilfr. GROSS:Do you consider killing an absorption into the economy?
Mr. VANDENHAAG:No I do not.
Mr. GROSS:My question was, have the Inclians been absorbed into
the economy of the United States?
ilfr. VANDENHAAG:They have largely <lied.
Mr. GRoss: Had they ever been absorbed into the economy?
Mr. VANDENHAAG: Yes, sir. Those that have remained have been
absorbed.
Mr. GRoss: Those that have survived.
Mr. VAN DEN HAAG:Yes, sir. The process of attempted absorption led
to a very reduced survival.
Mr. GROSS:That is right, sir, and I think it was deplorable-may we
talk about the contemporary conditions? In a diversified modern econ
omy, let us say hypothetically dependent for its existence or success
upon labour of one group, can you as a sociologist envisage a successful
govcrnmental coercion which prevents assimilation, in the sense in which
you used the term?
Mr. VAN DEN HAAG:I eau, sir.
Mr. GRoss: WouId you defi.nethen again what you mean by "assimila
tion" in that context? You refer to Indians drinking-that is not assimi
lation, Itake it in the context here is it, sir? Please statc it in your own
way if you will.
Mr. VANDENHAAG:It was in the contcxt of the Indian life at the time.
With referencc to your question, may I assume that I have it clear:
you want rne to state what I mean by assimilation, or ...
Mr. GROSS:\Vhether your term "assimilation", taking that as the
predicate of my question-whether you can visualizc that govemmental
coercion against assimilation is likely to be successful?
Mr. VANDENHAAG:I would say that it could be successful. If the SOUTHWESTAFRICA
work of the people involved in industry would be temporary rather than
permanent, if their residences are with their own tribe or race rather
than mixed in with others, and if provisions are made to make it possible
or even necessary for them ultimately to transfer back to tribal areas,
then.l would say that what would happen, probably, is that they would
acquire some of the elements of the culture that is foreign to them, but
they would certainly not fully assimilate, or the assimilation would be
greatly retarded.
Mr. GROSS:One final question if I may, Mr. President. Dr. van den
Haag, in the conclusion of the 35 scientists who subscribed to the amicus
curiae brief in the Brown case, the following sentence appears: "The
problem with which we have here attempted to deal is admittedly on
the frontiers of scientific knowledge." Would you agree, sir, with this
characterization of the problem of race relations in modern society?
Mr. VANDENHAAG: I would think that their statements were at the
frontiers of scientiiic knowledge, meaning by this that they were not,
contrary to the impression they give, established by any sort of evidence.
Mr. GROSS: I am sure that you did not mean to evade my question,
but do you agree with the statement that the problem of race relations
is "admittedly on the frontiers of scientific knowledge"?
Mr. VANDENHAAG: I do not find your statement, Mr. Gross, sufficient
ly intelligible to either agree or disagree. There are specific aspects of
that problem that have been well settled for a long time, there are others
that have not beensosettled; thatis true for almost all problems I knowof.
Mr. GROSS:So that you :find this conclusion of these 35 scientists as
unintelligi ble, sir?
Mr. VANDEN HAAG: No, I find it a literary conclusion, to which I
would not give much weight.
Mr. GROSS:Thank you, sir. That is ail, Mr. President. Thank you, sir.
The PRESIDENT:Professor van den Haag will return at three o'dock
this afternoon, to which time the Court will now adjoum.
* * *
The PRESIDENT:I understand, Mr. Gross, that you have completed
your cross-examination?
Mr. GRoss: That is right, Mr. President.
The PRESIDENT:Certain Members of the Court desire to ask some
questions of Professor van den Haag but before they do so, there are
certain questions I would like to put to him in relation to his evidence
this morning. You referred to a certain report, Professor van den Haag,
as having been faked. So that I may understand precisely, to identify
the document, is that the document which is shown as an annex in the
Supreme Court case of Brown v. The Board of Education?
Mr. VANDENHAAG:Sir, the annex amicus curiae is based on ...
The PRESIDENT:No, firstly is that the document?
Mr. VAN DENHAAG:No, sir.
The PRESIDENT:Which document were you speaking about?
Mr. VANDENHAAG:The document on which it is based.
The PRESIDENT:What document is that?
Mr. VANDENHAAG:This is the report to the White House Conference
on children and youths, which is referred to in the annex which you have
just mentioned, Mr. President. At the rccent-1 am reading from Pre
judice and Your Child, a book that I have put in the record ... WITNESSES AND EXPERTS
The PRESIDENT:Just identify the document, that is ail I want.
Mr. VANDENHAAG:At the recent mid-century White House Conference
on children and youths, a fact-finding report on the effects of prejudice,
discrimination and segregation on the personality and development of
children was prepared as a basis for some of the deliberations. ln foot
note z it is made clear that this is the report called "Effects of prejudice,
and discrimination on personality development-Fact-fi.nding Report
Mid-century White House Conference" by Kenneth B. Clark. When I
spoke of "faked" I meant that document.
The PRESIDENT:I want to ask you a few questions about that. When
you use the word "faked" do I understand you to mean that it was a
doctored :report so asto convey a false or misleading impression?
Mr. VANDENHAAG: y es, sir.
The PRESIDENT:Of course that is a fairly serious charge to make
against a confrère in the field of study in which you are engaged.
Mr. VANDE:NH ' AAG:Yes, sir.
The PRESIDENT:On what grounds do you express the view, stating
them precisely, that it was a fake document?
Mr. VANDENHAAG:Professor Clark stated in the report mentioned,
and in various other places which I mentioned in my examination before,
that he had made observations by presenting dolls to Negro children in
segregated schools and had found that these Negro children, although
Negro children, think of themselves as identical with the White dolls.
The PRESIDENT:You have already dealt with this in your evidence
before so there is no need to goon ...
Mr. VANDEN HAAG: And now, Professor Clark indicated that this
shows the damages brought about by segregation, discrimination and
prejudice, particularly by segregation. However, he withheld from the
courts and did not, in the document which I have just quoted, call at
tention to the fact that in previous observations on Negro children in
non-segregated schools he had found that more Negro children in these
non-segregated schools identify with the White doll and thus indicate
confusion of personality, damage and so on. Now it is very clear to my
mind that what Professor Clark's observations seemed to show, if they
show anything, is that desegregation or integration is damaging and
segregation is, comparatively speaking, healthful. However, Professor
Clark indicated the opposite conclusion and this was what I had in mind
when I said "faked".
The PRESIDENT:The fact that he did not produce or reveal this pre
vious observation, is sufficient to justify,u are saying, that his report
was doctored for the purposes of giving a false impression. Is that correct?
Mr. VA:ND 'ENHAAG:I thought and I previously used the expression
"misleading" which is perhaps somewhat more correct, he did not only
not produΠit on this occasion or refer toit, but also in prior court tesh
mony in the lower courts he did not refer toit and atone point, in one
of the courts, he did refer to experiments undertaken with 300 children
but gave, I must assume deliberately, the impression that these experi
ments with these 300 children, which can only be the ones I have just
referred to, led to the same conclusion as the experiment with the 16
children, whereas in fact they led to quite the opposite conclusion. I in
dicated as much in my article in the Villanova Law Review which is
also in the record of this Court.
The PRESIDENT:You did not then use the word "fake" did you? SOUTHWESTAFRICA
Mr. VANDENHAAG: Iused the word "misleading".
The PRESIDENT:The word "fake" does not convey merely misleading,
it is preparing a document to convey a misleading impression and pre·
paring a document to convey that impression deliberately ...
Mr. VAN DEN HAAG: I wou1d ...
The PRESIDENT:No, first answer the question please. Is that what the
word "fake" means?
Mr. VANDENHAAG: lthink so. I have certainly ...
The PRESIDENT:I understand then that it is the fact that he did not
produce to the court or inform the court in the Brown case of this other
experiment that you say justifies you in using the word "fake".
Mr. VANDENHAAG:Yes, sir. That is the way I used it in this occasion
but Iwould like to refer to my conclusion in the Villanova Law Review
article which is as follows ...
The PRESIDENT:Before you do that I just want to finish my question,
sir. The factthat he did not produce the results of his previous experi·
ment you say is not capable of any other interpretation except that he
had clone it deliberately to mislead the court?
Mr. VANDENHAAG: If I gave that impression I wish to withdraw it
and refer rather to the conclusion that I would like to offer.
The PRESIDENT:Weil that is the impression that you intended to
convey to the Court, is it not?
Mr. VANDENHAAG:No, sir. I had notas carefully thought about the
meaning of the word "faked" in the sense of deliberate intent to deceive
as you have now clarified it. I am not sure about the deliberateness of
Professor Clark-1 have no means of ascertaining whether he gave this
misleading impression out of, shall we say, innocent incompetence or
out of sophisticated malice.
The PRESIDENT:Then it was an unfortunate word to use.
Mr. VANDENHAAG:I am sorry and I will withdraw it. May I ...
The PRESIDENT:Did you want to add something to your explanation?
Mr. VAN DENHAAG:Yes, I wish to point out that I was not intention·
ally trying to convey this impression. In my article I wrote as follows,
in conclusion:
"From Professor Clark's experiments, his testimony and finally
his essay, to which I am referring, the best conclusion that can be
drawn is that he did not know what he was doing; and the worst
that he did."
I am not sure whether the "worst" applies, in which case the word
"fake" would be justified, or the "best", in which case the word "in·
competent" would be better.
The PRESIDENT: You chose the word "fakc" however. That is all I
wanted to ask you.
Mr. GROSS:May I be pennitted to addrcss a question à propos of the
exchange?
The PRESIDENT:Well I think not, Mr. Gross, unless you think it is
important to your case. We have concluded your cross-examination but
the Court will give you permission to do so.
Mr. GROSS:This will be very brief. I should like to refer to the testi·
mony of the witness, page 157, supra, of the verbatim record of
23 June, in which the witness, and I quote ...
The PRESIDENT:What transcript is it and what ... WITNESSES ANDEXPERTS
Mr. GROSS: 23 June, Mr. President, page 157.
The PRESIDENT:Yes.
Mr. GRoss: The witness said: "As a matter of fact, in prior experiments
which he"-referring to Professor Clark-"forgot to mention to the
courts." May I address one question to the witness as to the significance
of that comment, as bearing on possible bias as an expert, sir? Upon
what information do you base your statement, Dr. van den Haag,
that Professor Clark's memory failed him in this respect?
Mr. VANDENHAAG:The word "forgot" was meant ironically. I was
not sure whether Professor Clark actually forgot his own experiment or
whether he deliberately failed to inform the court of it, as I have just
indicated to the honourable President. I can only repeat I prefer to as
sume the best hypothesis, namely that he forgot.
Mr. GRoss: Thank you, Mr. President.
The PRESIDENT:Certain .M.embersof the Court desire to ask the witness
certain questions. I call upon Judge Koretsky.
Judge KoRETSKY:Professor van den Haag, my questions are due to
the fact that this is, as far as I know, the first occasion on which questions
of social philosophy and sociology have been raised in this Court. Un
fortunately I did not have the advantage of being acquainted with all
your theoretical books. I did not find them in our library, except one
booklet written in the polemic with Professor Clark where you make
many references to differences with him, and the book that you produced
with Professor Ralph Ross-Passion and Social Constraint. At the same
time I see that you have led, or tried to lead, the Court through the jungle
of literary opinions. But did you carry out your researches on the basis
of your own factual observations, of your own data which you obtained
from the great mass of facts and under a special programme, as modern
sociologists do with recourse cven to the help of computers? I had an
opportunity during my small illness, to look through your, may I say
frankly, rather paradoxical book ...
The PRESIDENT:Will you put the question, Judge Koretsky?
Judge KoRETSKY:With respect, Mr. President, will you permit me
this short introduction? Many of the conclusions made by our expert do
not refer to the many facts and I do not understand how he cornes to his
conclusions even in his books. I find on page 187 references to suicide
and so on, pages 210, 222 and so on, but I ask him, do you consider it is
sufficient to refer merely to individual observations made by certain
research workers? Did you consider it necessary to verify the facts upon
which you, or the authorities which you have referred to, have based
your or their statements?
Mr. VANn EN HAAG:Your honour, sociology, as in all the social sciences,
involves both theory and empirical research. I am not myself an empirical
researcher. I am a theorist. The task of the theorist consists of inter
preting, in the light of theories, the data collected by empirical observers
to fi.ndout whether they support one hypothesis or the other, one theory
or the other. This is my task.
As for the verification of individual researches, I have no opportunity
of doing these. AUresearches in this field are undertaken by individuals.
Computers, unfortunately, merely reflect the data that are put into them
and the reliability of these data, of course, depends on the reliability of
the individuals involved. Now, let me point out that generally in the
sciences reliance is put on the observations of others,ifthis were not so470 SOUTHWESTAFRICA
we would each have to start from the beginning. In the physical sciences
it is sometimes possible, of course, to repeat an experiment and when we
have experiments in the social sciences we, too, can rcpeat them or can
ask ourselves whether appropriate conditions for controlling and so on
are present. But may I point out that even though I felt, and stated,
that Professor Clark's conclusions and the evidence presented before
the Court were highly misleading, I at no time doubted his actual data,
that is, the statistics that he gave I have accepted and I would accept
the statistics that any scientist of good standing gives, unless I have
special reasons to believe that he was wrong or incompetent.
When I spoke wrongly of fake and, more correctly of misleading, I
referred to Professor Clark's unwillingness to present his data or his un
willingness to interpret them in the light of reasonable scientific criteria.
I at no time doubted his data or, for that matter, anyone else's data.
Judge KoRETSKY:You considered many facts at the same time. You
have made reference to some facts in Brazil, and so on. You made this
statement in Court. Did you yourself try to inquire whether these facts
were there or not?
Mr. vANDENHAAG:Ars longa, vita brevis. If I were to go Brazil to
attempt to verify the researches made there, and then to go to Hawaii
and so on, I would not be able to do many of the things I want to do.
\Vhen an article appears in a professional journal, such as the two articles
on Brazil that I quoted, which appeared in the two leading American
professional journals, and I know of no research throwing doubts on the
result of these articles, I will, as everyone else, accept them.
Judge KoRETSKY:Yes, I understand that you cannot go to the barber's
shop to see if it is correct that the owner refused to serve one Negro as
referred to in your statement. But you had other facts to check. Did you
present here the statements of many wrüers and scientists and scholars?
Did you give an exhaustive picture of the trend, of the literature even
in the United States on social subjects?
Mr. VANDENHAAG:No, sir, I did not. In the first place, I have only
one subject to deal with and, in the second place, I cited only those
views that I felt I can endorse, aware in fact, not of contrary data, but
of different conclusions and views, but since I do not endorse them I saw
no reason to cite them. I am certainly aware that not everyone would
agree with all of my conclusions.
ln direct examination I think I was asked which of my conclusions
Ithought would meet a consensus of my colleagues and which would not
and I tried, tothe best of my knowledge, to answer these questions.
Judge KoRETSKY:Yes, but at the same time you continued the po
lemic with your colleague Professor Clark. This may be a one-sided state
ment. ln your book Passion and Social Constraint, page 102, you wrote:
"Scientists too forrn groups and then sometimes wilfully delight
in distinctive terminologies. There is competition and even 'imperi
alism' among the Jearned specialists."
I understand that there is a difference of mind, and for me as a Judge
it is very interesting to know the position of others. But what is interesting
for me now is did you corne across, in the scientific literature, a tenden
tious selectionof tacts or even slanderous statements which you have
repeated here in your statement? How do you sort out the pure grain
of facts from the noxious weeds? WITNESSES ANDEXPERTS 471
Mr. VANDENHAAG:I wish, your honour, that there were a general
formula, but there is not. It is entirely true, as you have just suggested,
that scientists are fallible and certainly I am fallible. I can only do what
I have tried to do-----togive you my view, I hope instructed by what
scientific competence I can claim, to the best of my knowledge. I cer
tainly am capable of making mistakes, so are all of my colleagues. If
you look at the history of science you will find that between 50 and 100
years ago almost every social scientist in America was willing to prove
to you that Negroes can be shown to be biologically inferior. This is a
view that, as I indicated, I do not hold and for which I think there
was never any evidence. Nonetheless, it was, 50 years ago, the consensus
of American scientists. It is now the consensus of American scientists
that it can be shown that Negroes are exactly the same as Whites in ail
psychologic,ù respects. My own view is, and has been, that neither of
these two contentions has been shown so far and that science is subject
to fashions, which can be quite misleading.
I am afraid I have no general formula to tell you when to recognize
truth and when not. You have to go into the particular case, judge the
competence of the observations and interpretations according to general
criteria of scientific methodology, which is what I have tried to do.
Judge KORETSKY:It is very difficult to have a polemic in this stage
of our Court. Is it not known that in their laws, constitutions, decrees
and practice of courts, different governments combat prejudices, partic
ularly racial prej udices,th çl.ifferent degrees of insistence? Did you know
that some governments regard them with indifference or evcn sometimes
pursue a policy based on prejudices? You mentioned some countries in
passing. How do these different policies influence the spread or the atten
uation or slackening of prejudices?
Mr. VANDENHAAG:That is a very difficult question.
Judge KORETSKY:I understand that you have read the constitutions,
laws and decrees directed against racial prejudices of the countries you
mentioned here in Court.
Mr. VANDENHAAG:I am not altogether sure what laws and decrees
you have in mind.
Judge KüRETSKY:If you mention Brazil, perhaps. You know the Con-
stitution? ·
Mr. VANDENHAAG:No, sir, I have not read the Constitution of Brazil.
Judge KüRETSKY:You do not know the Constitution of Brazil?
?>1r.VANDENHAAG:No, sir. l\fav I point out that when I referred to
Brazil I did not refer to any laws at 'an. I referred to the factual behaviour
of people in Brazil, not to the behaviour that is prescribed by law, but
the behaviour that actually takes place in Brazil.
Judge KCJRETSKYB : ut did you differentiate between the practice of
States and acts of certain individuals? I mentioned the barber shop owner
in Brazil, or certain groups within a given State or States. I am more
interested in the attitude of the government itself.
Mr. VANDENHAAG:Weil, it depends on what you are interested i~.
At the moment when I discussed Brazil, I tried to point out that Brazil
is often regarded as one of the few countries where there is no racial
prejudice, not because of laws but perhaps because of history and other
factors. I pointed out that this impression is not confirmed by the data
collected by the two scientists that I quoted. I did not indicate that
this practice was approved by the Brazilian Govemment, or corresponded472 SOUTH WEST AFRICA
toits laws or was contrary toits laws. I did not undertake any research
in that direction.
Judge KüRETSKY: But I return to my first question: how do the dif
ferent policies ofhe governments influence the spread or the attenuation
or slackening of prej udices?
Mr. VAN DEN HAAG: Well, that really depends on the situation. In the
case of German y, there you had a Government quite malevolently leading
the German people and trying to exacerbate the perhaps pre-existing
slight prejudice; that Government, under special conditions, succceded
fairly well even though, we are told, the major injury to and slaughter
of the Jewish people was undertaken in such a way that most of the
Germans were unaware of just what the German Government was
doing.
Now, in other cases, in the United States, for instance, in the north
we have had numerous laws, of which the Civil Rights Act that Mr. Gross
cited is only the last. In the state of New York, in which I live, for
instance, for more than 20 years there have been all kinds of laws on
the books to prevent discrimination in employment, to prevent discrim
ination in housing, to compel landlords to sell or rent their houses regard
less of race, religionand other factors. Itis more or less the consensus
of all concerned that this has not so far improved the situation of the
minorities that were meant to be protected by these laws to any signif
icant degree.
Such a conclusion, of course, is somewhat speculative. Perhaps with
out these laws the minority would be even worse off. What we can say is
that it is not much better off than it was before these laws. This is the
view of the leaders of the Negro community. So that I would say the
effect of laws meant to protcct minorities in integrated or non-segregated
conditions is very hard to judge and possibly it leads to more formal
than substantial fulfilment of the demands of the minorities.
Judge KoRETSKY: ma you study yourseJf this question more pro-
foundly?
Mr. VAN DEN HAAG: Did I study this question more profoundly?
Judge KoRETSKY: Yes.
Mr. VAN DEN HAAG: Well, I would hate to say that I am more profound
than others~I have certainly paid a great deal of attention to it, and
my own conclusion is that in certain situations when the prejudice that
you mention is largely based on ignorance, then appropriate legal and
educational provisions can be of considerable help. On the other hand,
if the prejudice is not based altogether on ignorance but on deeper-rooted
emotional dispositions of the prejudiced persons, then I feel that Iaws
or cognitive means of any kind are fairly useless.
Judge KüRETSKY: Useless?
Mr. VAN DEN HAAG: Useless.
Judge KoRETSKY: Useless! You mentioned just now about a minority
-may I putto you this question: you have in your statement confirmed
that you were occupied with a subject called "minority problems", and
you have also taught on this subject in your courses, and you explained
what you have in mind on the straight question of Mr. de Villiers-that
was in the verbatim at page 135, supra. He asked you: "What docs that
subject comprise?"-the minority problems-and you answered: "In
effect, although conceptually, it of course applies to all minorities, that
is to all groups other than the dominant one in any given society"; I WITNESSES AND EXPERTS
473
understand that you know that there are some societies where the minor
itiesarc not under the domination of the majority?
Mr. VAN IJEN HAAG:Yes.
Judge KoRETSKY:I understand your statement to apply to a situation
where the minority is under the dominance of another group, which is
amajority one. I should be interested to know whether you have carried
out research into a situation where the dominant ethnie group is quan
titatively a minority group, and not a majority group-what socio-politi
cal consequcnces might one expect in such a case?
Mr. VAN DEN HAAG:I must say that I have not carried out this re
search; it is a question thatI have posed to mysclf and that has always
intrigued me-the situation that you mention, your honour, occurs in
Abyssinia (or Ethiopia)-it occurs in a number of other countries in which
a numerical minority sets the tone of the culture, and in some cases even
monopolizes political life,and it would be indeed very interesting to find
out what the situation is-my own researches on this matter have not
gone far enough to give any answer.
Judge KoRETSKY:Thank you, Mr. President. I thank you for your
patience.
The PRESIDENT:Judge Forster.
Judge FORSTER'.Monsieur van den Haag, j'ai moi aussi. dans votre
déposition figurant au procès-verbal du 22 juin (Supra, p. 149), relevé la
précisionsuivante touchant les termes de discrimination et de ségrégation,
je cite:
"Je crois qu'une distinction s'impose entre ségrégationet discrimi
nation, bien que, d'aprèsle dictionnaire, ces deux termes aient à peu
près le mêmesens; je préfèreemployer le mot de ségrégationau
sens de 'séparation', laquelle bien entendu n'implique nullement des
mesures d'oppression ou n'est nullement liéenécessairement à des
mesures d'oppression; elle peut jouer Je mêmerôle qu'un couteau,
qui peut êtreutilisé soit pour couper de la viande soit pour assas
siner.Il n'est pas de la nature du couteau d'êtreutilisé à des fins
illégitimeset il n'est pas, je crois, de la nature de la ségrégation
d'aboutir à discriminer, nous voulons dire, comme je propose de le
faire, désavantager une personne ou un groupe d'une manière qui
n'est pas justifiée par les élémentspertinents qui caractérisent la
situation dans laquelle se trouve la personne ou le groupe.
Je m'explique. Dans mon enseignement, je classe les élèvesselon
les résultats obtenus. C'est une forme de distinction et on peut l'ap
peler discrimination. Ceux qui ont de bonnes notes ont certains avan
tages et ceux qui en ont de mauvaises subissent certains inconvé
nients. Mais ceci sera considérécomme légitime parce que j'ai ap
pliqué en l'espèce, et j'espère toujours le faire, un critère pertinent.
Si je devaisnoter non pas d'après les résultats scolaires mais, disons,
d'après le sexe, la religion, le charme, la taille, ou tout autre critère
sans pertinence, je crois que l'onpourrait parler de discrimination."
Monsieur van den Haag, compte tenu de cette terminologie, je voudrais
vous poser deux questions seulement.
Première question: pouvez-vous me dire si, en tant qu'expert en so
ciologie, vous estimez que la discrimination raciale (celle qui comporte
désavantage). érigéeen doctrine, légalement instituée par tel gouverne
ment et systématiquement appliquée par lui depuis des décades à une SOUTH WEST AFRICA
474
population africaine, est de nature à accroître le bien-être matériel et
moral, ainsi que le progrès social de ladite population?
Mr. VAN DEN HAAG: Would you like me to answer this first question
fi.rst? I understand that you are asking whether material discrimination
deliberately imposed by a government against a racial group would inter
fere with the welfare of that racial group----do I have your question cor
rectly, sir?The answer is yes, if it is discrimination in the sense in which
I have defined this term, and which you were good enough to quote
then, indeed, such discrimination, whether imposed by the government
or any other authority, wou]d interfere with and impair the welfare of
the group discriminated against. However, if it is merely segregation,
then I would not think, whether it is imposed by the government or by
another authoritv, that it necessarily interferes with the welfare of either
or both of the segregated groups, but on the contrary it could be of help
and increase the welfare of the groups involved.
Judge FORSTER: Je vous remercie, mais je faisais état de la discrimi
nation en opposition à la ségrégation tel que cela est défini dans le
passage que j'ai lu de votre déposition.
Et maintenant, voici ma deuxième question: sous quelle rubrique (dis
crimination ou ségrégatfon) classez-vous par exemple le fait, dans tel
territoire, de fixer les droits et devoirs des habitants d'après la race, la
couleur, l'origine nationale ou tribale de l'habitant (ceci est ma première
question de ma seconde question)?
Mr. VAN DEN HAAG: Yes, sir. I would call this discrimination if it im
poses unilaterally a disadvantage on one of the groups. If its purpose,
however, is merely to separate the two groups by race or any other cri
terion without imposing disadvantages on one group that are not imposed
on the other, then I would call it segregation and would not regard it as
necessarily disadvantageous.
Judge FORSTER: Je vous remercie. Sous quelle rubrique (discrimina
tion ou ségrégation)classez-vous par exemple l'interdiction faite à l'in
digène, en raison de sa race, de pratiquer certaines professions tel1esque:
prospecteur en minéraux précieux, négociant en métaux précieux non
travaillés, administrateur,administrateur adjoint, administrateur de sec
tion ou de sous-sol, chef de brigade, surveillant des chaudières et ma
chines dans les mines appartenant à des personnes d'ascendance "euro
péenne"?
Mr. VAN DEN HAAG: This would entirely depend-if people, because
of their race, are prevented from holding the jobs you have just listed,
and are not offered elsewhere similar opportunities to hold jobs of similar
status, so that the whole purpose is to deprive them of a higher status
they may otherwisc have achieved, then I would call it discrimination.
If, on the other hand, these people, because of their race, are prevented
from holding the jobs you Iisted in a given place under given circum
stances, but arc permitted elsewhere to hold jobs of a similar kind,
whether they be exactly the same jobs or not-jobs, however, that would
give a similar social status-if they are so permitted elsewhere, then I
think this would be part of segregation and not of discrimination. Now
I may, if you will be good enough to allow me, add that such a measure
may always have some disadvantages for some individuals who would
have liked to practise law in a given place where they are not allowed to,
or to be inspector of mines in a given place where they are not allowcd to,
but such individual disadvantages I would not call discrimination unless WITNESSES ANDEXPERTS 475
the whole group is placed at a disadvantage in the manner I have just
indicated. The reason why I think sois that I cannot think of any social
measure meant and perhaps effective in enhancing the welfare of one or
two groups which would not, at times, place some individuals at some
disadvantage.
The PRESIDENT Any other questions, Judge Forster?
Judge FORSTER:Je vous remercie. Enfin, sous quelle rubrique (dis
crimination ou ségrégation)classez-vous par exemple les restrictions au
droit d'habiter dans une zone urbaine, restrictions dictées par des con
sidérations de race ou de couleur?
Mr. VANDENHAAG:My answer is analogous to the one I just gave.
If this means that people are deprived of advantageous locations without
being offered other locations cqually advantageous or similar in advan
tages, thcn I would call it discrimination bccause they would be deprived
irrelevantly of opportunities to which, in my opinion, they are entitled.
If, on the other hand, they are prevented from locating themselves in
one place but allowed and able to locate themselves in another place
about equally advantageous, then I would say this falls within the rubric
of segregation.
Judge FORSTER:Je vous remercie. Et pour terminer, sous quelle ru
brique (discrimination ou ségrégation) classez-vous par exemple le fait
de refuser à l'indigène en raison de sa race ou de sa couleur, l'égalitéde
chances avec le Blanc quant aux possibilités d'atteindre tel but dans la
vie?
Mr. VANDENHAAG:I must apologize-I did not understand the last
phrase----would you be good enough to repeat it?
Judge FORSTER:Je m'excuse d'avoir une mauvaise diction. Voici ce
que je voulais dire: sous quelle rubrique (discrimination ou ségrégation)
classez-vous par exemple le fait de refuser à l'indigène en raison de sa
race ou de sa couleur, l'égalitéde chances avec le Blanc quant·aux pos
sibilitésd'atteindre tel but dans la vie?
Mr. VANDENHAAG:I do not understand "tel but"-such an aim in
life, I woulcltranslate it, but I have not understood what aim.
The PRESIDENT:Particular goal in life.
Mr. VA:- DEN HAAG:Yes, that is what I understood, but it is not en
tirelv ...
The PRESIDENT:What particular goal in lifc is it, Judge Forster, that
you have in mind?
Judge FORSTER:Sous une autre formule: j'ai étudiépour devenir in
génieur un jour; j'arrive dans un tel pays et vous me dites: "Vous avez
toutes les capacités pour êtreingénieur, mais vous ne pourrez pas exercer
ici", alorsu'un autre, Blanc, qui est dans les mêmesconditions que moi
et fait les mêmesétudes, a passéles mêmesexamens pourrait s'installer
et exercer la profession d'ingénieur.
l\Ir.VA~ DENHAAG:Thank you. I have now understood. My answer
is that if the cngineer is prevented because of his race from practising
his profession in one place and not allowed to practise it in any other
place, I would regard this as discrimination. If the engineer is prevented
from practising his profession because of his race in one place and a White
engineer would be permitted to practise his profession in any place, then
too I \Vould regard this as discrimination. If, however, the engineer be
cause of his race is prevented from practising his profession in a given
place, and a White engineer is also prevented from practising his pro-476 SOUTHWESTAFRICA
fession in a given other place, then I would regard this as merely incident
to segregation and not to discrimination.
Judge FORSTER:Et si dans la zone où vous permettez à cet indigène
d'exercer la fonction d'ingénieur, il n'y a pas de travaux d'ingénieur?
Mr. VANDENHAAG:I am not able to handle ...
Judge FORSTER:Je m'excuse, je manie une langue qui n'est pas ma
langue maternelle. Vous m'avez répondu. Sur la base de votre réponse
je vous dis ceci: si l'Etat permet à cet ingénieur indigène d'exercer sa
profession d'ingénieur dans une zone ou dans une réserve où il n'existe
point de travaux d'ingénieur, est-ce que cela sera de la discrimination
ou simplement de la ségrégation.Autrement dit, vous donnez une auto
risation à quelqu'un d'exercer un métier qui n'a point son emploi dans
telle zone. Est-ce que cela est de la discrimination ou de la ségréga
tion?
Mr. VANDENHAAG: Imay point out that the linguistic difficulty was
mine and not yours. I should certainly say that if he is permitted to
carry out his profession in an area where there are no material possi
bilitiesto carry out his profession then in effect he is not permitted to
carry it out, and I would then call it discrimination and not segregation.
However, I would say that if there is a reasonable chance that he can
carry out his profession, although perhaps not immediately, but if ar
rangements are being made along those lines, I would have to mitigate
my statement accordingly.
The PRESIDENT:Any other questions, Judge Forster? Does any other
Member of the Court desire to ask a question? Mr. de Villiers, you desire
tore-examine? I beg your pardon, Sir Louis.
Judge Sir Louis MBANEFO:One leading off from the questions you
have just been asked. Let us take South West Africa, that is a territory
which has, one might put it, whether a mandated territory or not, a
government that runs its affairs, and in a democratic society, there is
tremendous pmver in a govemment and power is captured through the
ballot-box. If you are denied the right to vote in a society in which your
interest is involved, would you consider that by itself a discriminatory
act?
Mr. VANDENHAAG:There are two points which I wish to mention
-perhaps just one. The word "democracy" is subject to many inter
pretations; I like to defme it to mean a governmental system where at
least a substantial group of the citizens are able to elect and oust their
govemment by legitimate means. However, if I corne to defi.nethat sub
stantial group, I have never been able to find a clear-cut formula and
I would like to indicate why that is the case. I am not sure whether this
must include people between the ages of 18 and 21 or over 2r.
Judge Sir Louis MBANEFO: I am sorry to interrupt you. Perhaps you
would put it simply-having a voice and determining your own affairs
as a people.
The PRESIDENT:I think the witness has started to respond-he spoke
about a democracy. I think the witness is entitled to explain in what
sense he understands the term. Will you continue.
Mr. VANDENHAAG:I am trying to answer the question as I understand
ît. There are other countries, such as Switzerland, which are generally
referred to as democracies and where women, who are at least half the
population, are not allowed to vote and I am aware of this being inter
preted to mean that Switzerland is nota democracy. The very term "de- WITNESSES A)ID EXPERTS
477
mocracy" was invented in Athens at a time when the vote was limited
to males who were free, that is, not slaves.
The PRESIDENT: Bring us up-to-date, witness.
l\frVAN DEN HAAG: I conclude from this that what is essential to
democracy is certainly that there be freedom of speech and of political
activity, but that one may speak of a more or less extended democracy
in that we may distinguish various countries according to the degree to
which democracy has bcen extended. Now ifyour contention is that in
some parts of Africa the vote is not given to some of the citizens, I should
certainly say that democracy has not been extended to these citizens.
~owever, I would also compare such a country with other countries in
which the vote is given to every citizen but no opportunity is given to
them to vote for an opposition ticket. This seems to me considerably
worse, in respect to the freedom of the inhabitants.
Judge Sir Louis MBANEFO: That does not answer my question. My
question is do you consider a denial of right to vote, the right for instance
either to have a voice or to control whoever has a voice in determining
your affairs, a denial of that right on the grounds of colour-do you
regard that as by itself discriminatory?
Mr. VAN DEN HAAG: No, sir, I do not.
The PRESIDENT: The real question was "why you do not".
Mr. VAN DEN HAAG: I am sorry. For the reasons 1 tried to indicate
before, namely that I fi.nd that in many States, for a variety of reasons
other than placing people at a disadvantage, some of the citizens are not
allowed to vote. I am convinced that the Swiss Government has no par
ticular intention of placing women at a disadvantage in denying them
the right to vote and I am not sure whether the circumstances to which
you allude might or might not be similar to those. I could imagine, of
course, their deprivation of the right to vote is used, as you suggest, for
purposes of discrimination and I would notassent to any statement that
indicates that it must always be so used because we have numerous in
stances to the contrary.
Judge Sir Louis MBANEFO: My comment to the questions you have
been asked by Judge Forster-you talk about if a person was allowed
to practise in one place and not in another place-who allows him?
Mr. VAN DEN HAAG: I think it must be the govcrnment.
Judge Sir Louis MBANEFO: And if hc has no voice in that government?
Mr. VAN DEN HAAG: That would still be the same as, I am sorry to
have to refer to it once more, laws about marriage, child-bearing or
special occupations undertaken by the Swiss Government about women,
even though women have no right to vote for or against it. I still would
not regard that as discrimination.
Judge Sir Louis MBANEFO: Now at page 148, supra, of your evi<lencc
on 22 June, you said-"Perhaps, the most important, or at least the
most numerous, of such groups was the Universal Association for Negro
lmprovement formed by Marcus Garvy and which flourished very much
in the r92os, etc." Do you accept that the reason behind the movement
to return to Africa was to escape from racial discrimination practised
in the United States which the Negroes regarded as oppressive?
Mr. VAN DEN HAAG: I do not think so. Itwas not quite that simple.
As you certainly are aware, Marcus Garvy himself felt that regardless of
circumstances even where they are not in the least disturbed Negroes
would be better off having their own country. He went so far, towards478 SOUTHWESTAFRICA
the end of his life, as to support the Ku Klux Klan, insisting that the
Ku Klux Klan's principle of separation was correct even though he did
not agree with all the means. So my view of the ideas of Marcus Garvy
is that he thought that separation was desirable in principle regardless
of the circumstances in the United States. As you certainly know, he
was himself born in the West Indies and I think for him that was a
political matter rather than a matter of escaping from oppression, al
though I would certainly say that at that time in particular there was
plenty of oppression in the United States.
Judge Sir Louis MBANEFO:What political motivation would you say
was behind the movement?
Mr. VANDENHAAG:I think it was a feeling of national or racial iden
tity. I think it was that Negroes did wish to have, or thought they wished
to have, a separate national entity of their own. If I may suggest this,
I think many Jews went to Israel largely because of being oppressed and
mistreated in other countries but, I think, a number of Jews went to
Israel from countries in which they were not in the least oppressed,
merely because they preferred to live and share a national community
with people with whom they felt ethnically identified, and I think this
may have been a motivation of many Negroes too.
Judge Sir Louis MBANEFO:I do not want to go into argument, but
would you tell me from which book on the Universal Association for
Negro Improvement, where you got the material you have just given
the Court?
l\IrVANDENHAAG:Yes, I can, in fact it is in the record. I offered it ...
I thought I had it here in duplicate, but I cannot find it. The book is in
the record. I offered it in the record the last timI was here and I think
we will easily find the title.
The PRESIDENT:Perhaps it can be identified by 1\frde Villiers later
on.
Mr. VANDENHAAG:I think it will be very easy. I have another copy
of the book with me, but for some reason I do not have it on my table
here.
The PRESIDENT:Does any other Member of the Court desire to ask a
question? If not, Mr. de Villiers, do you desire tore-examine?
Mr. DE VILLIERS:I have no re-examination, Mr. President. I would
like to express our appreciation to the Court for the special session this
afternoon at some inconvenience to itself, so as to be able to continue
the examination of this witness. May the witness be excused, Mr. Presi
dent?
The PRESIDENT:If no Member of the Court desires him, he can be
excused. I assume that there is no objection, Mr. Gross?
Mr. GROSS:No, Mr. President.
The PRESIDENT:Very well, you may stand down, Professor. Professor
Logan will now be call~d to the stand. Is Professor Logan here?
Mr. DEVILLIERS:No, Mr. President, we have not got Professer Logan
here. \Ve understood the arrangement this afternoon to be that we would
only finish Professor van den Haag's evidence. Professor Logan will be
available tomorrow morning.
The PRESIDENT:There must have been some misunderstanding then,
Mr. de Villiers, because it was assumed that we would dispose completely
of both witnesses during the course of today.
Mr. DEVILLIERS:I am sorry, Mr. President. WITNESSES ANDEXPERTS 479
The PRESIDENT:If he is not here, there is nothing we can do aboutit.
Mr. DE VILLIERS: I am sorry, that was not conveyed to us, as far as
I know.
The PRESIDENT:Then could you indicate to the Court, Mr. de Villiers,
that apart from Professor Logan, of whom certain Members of the Court
desireto ask questions you have another witness.
Mr. DE VILLIERS:Yes, Mr. President.
The PRESIDENT:Will he be a short or a long witness?
Mr. DE VILLIERS;I have Mr. Cillie, whose evidence-in-chief should
take less than the rest of tomorrow monùng's session, which would Leave
a full day on \Vednesday, for cross-examination and questioning by the
Court.
The PRESIDENT:Mr. Gross, the Court does not seek to tie you at all
in any way, but do you think that if the examination of the witness to
be called concludes tomorrow, that you can deal with the witness in
cross-examination Wednesday morning. You do not know, of course,
what he is going to say.
Mr. GROSS:On Wednesday, sir?
The PRESIDENT:Yes.
11fr.Gnoss: If he does not take all morning to answer one question,
sir.
The PRESIDENT:It depends on how long the question is.
1fr. GROSS: I will undertake to conclude without fail, sir.
[Public hearing of IJ July I965]
The PRESIDENT:The hearing is resumcd. Professor Logan will you
corne to the podium? Mr. Muller?
Mr. MULLER:Mr. President, before the witness proceeds may I mention
that he was asked on Friday to obtain, if possible, certain information
for the Court. He has such information available if the Court will permit
him to furnish it now.
The PRESIDENT:It related to the number of the non-Whites in the
southern sector, excluding the Reserves. Js that correct?
Mr. MULLER:Yes, Mr. President, the Natives on the farms in the
southern sector.
The PRESIDENT:Well, pcrhaps, Mr. Gross, it would be convenient for
the witness to state it now.
Mr. GROSS:May I proceed with cross-examination, sir?
The PRESIDENT:There are certain facts which were requested by me
in the course of the cross-examination _ofProfessor Logan. Perhaps he
should give them now before you firùsh your cross-examination. Professor
Logan, would you just give the details of those figures? ·
Prof. LOGAN: Yes, Mr. President. The total population of South West
Africa according to the 1960 Census was 526,00+ This is taken from the
Odendaal Commission report, page 37, table XVI. The population domi
ciled in the northcrn sector, outside of the Police Zone, was 286,485,
constituting 54.5 percent. of the population. This figure is obtained from
the Odendaal Commission report, page 39, table XVIII. The population
domiciled in the southern sector, within the Police Zone, totals 239,519,
or 45.5 percent. of the total population of the Territory.
Taking only the Southern sector, the composition of the population
domiciled there is as follows: European 73,464; Non-European 166,055; SOUTHWESTAFRICA
totalling to the 239,519. Now, of the non-European portion of that, that
is of the composition of non-Europeans domiciled in the southern sector,
and this information is taken from the Odendaal Commission report,
page 41, table XIX, on the Reserves, or home areas, 38,648; outside of
the Reserves in the urban areas, 59,073, and outside the Reserves in the
rural areas, 68,334.
Of this latter group 4,020 are Coloured persons and Rehoboth Basters
and the Native group consists of 64,314.
This figure of 64,314, representingthe Native persons domiciled on the
farms outside the Reserves in the Police Zone, includes men, women and
children. In lieu of absolute figures for this, it is estimated that 25 per
cent. of this figure would be adult males. The position would then be as
follows: adult male Natives-16,078, women and children-48,234.
These figures do not include either northern or extra-territorialNatives
contracted from outside the Police Zone under temporary contracts. If
information is desired on this, it is in the Counter-Memorial, Book V, Il,
at page 74, but this was outside the framework of the question asked.
The total Natives working on European farms in 1960, that is, in
cluding the contract Natives recruited from outside the Police Zone,
was 25,087. This is taken from the Counter-Memorial, Book V, Il,
page 74.
Mr. President, I trust this will cover the information desired.
The PRESIDENT'T . hank you. Mr. Gross, will you continue your cross
examination?
Mr. GRoss: Thank you, ilfr. President. I should like to address one or
two questions to you with respectto the statement just made. You refer
red to temporary contracts. You testified, I believe, did you not, that
you did not have information concerning the average length of time which
these labourers from outside the sector spend in the southern sector?
Prof.LOGAN:That is correct. I do not have specific information.
Mr. GRoss: Do you have information concerning the average number
of contracts which are made with any class, any group, of the Natives
who corne to the sector for work?
Prof.LOGAN:No, I do not.
Mr. GRoss: You do not know, therefore, whether any of these in
dividuals, or how many of them, spend a substantial portion of their
working lives in the sector?
Prof. LOGAN:As I said the other day, there are a large number of
them who renew their contracts after their period of return to Ovambo
land and corne back, but as to percentages or total figures, I do not have
the information.
Mr. GRoss: Do you know, sir, what definition or significance the word
"domiciled" has in this connection?
Prof. LOGAN:Yes, in working this up yesterday, I proposed putting
the term "domiciled" in. It was not in the original statement as we
worked it up. It is a reference to whether or not their permanent place
of residence is within one zone or the other: the place where the family
is located, where the place of recognized residence is. This works in
both directions because there are the few White administrators in the
north who we also eliminated from this picture.
Mr. GROSS:Could it be, sir, that you have excluded from the catcgory,
of those you term "domiciied", individuals from the north who perhaps
spend a good part of their working lives in the sector? WITNESSES AND EXPERTS
Prof. LOGAN:I don't think so, no. I don't think so because the de
tribalized Ovambos would be included in here.
:Mr.GRoss: But you don't know how many of the Natives from out
side do spend a substantial portion of thcir working lives in the sector?
Prof. LOGAN:No, I said that I did not have that information.
Mr. GROSS:I see. Then I will continue with other questions, Professor
Logan.
The reference I shall make, Mr. President, is to the verbatim record
of 9 July, and I should like to call your attention, sir, to pa400, supra,
of that verbatim record, in which you stated as follows, in response to a
question I had addressed to you: I asked you whether we were talking
about the southern sector outside the Reserves and you replied as follows:
"I am sorry. But you see each of the individuals that is within the
southern sector is still affi.liated with a Reserve or homeland that is
not within the \Nhite area of the southern sector and the thing
cannot be dissected ... "
I should like to ask you if you would, please, explain to the Court
what meaning you wish the Court to attribute to the word "affiliated"
in that reply?
Prof. LOGA;-,:That there is a feeling on the part of the individual,
and an acceptance by the group involved, that this individual is a part
and parcel of that particular group, that particular group being a group
basically domiciled, resident upon a Reserve.
Mr. GROSS:Is there any standard or objective criterion which you
would apply to determine whether a specific individual is "affiliated"
in this sense of the term?
Prof. LOGAN:I would not know how to determine such a thing pre
cisely, no. The individual feels in his own mind, the community accepts
him outwardly, openly, and therefore he is a member of that community.
I don't know any way of measuring it other than to ask him and also to
ask his community, which means his Headman of his local area, as to
whether or not he is a member of that community. The communities
are strong bodies within themselves and they have a strong social organi
zation and an outsider is distinctly an outsider, or one of the in-group
is distinctly one of the in-group, and I think there is very little marginal
room here.
î\Ir. GROSS:Are you talking, sir, about the groups within the southern
sector outside the Reserves-the communities that is?
Prof. LOGAN:Yes, I am.
';\fr. GRoss: Now, I just want to remind you once more. Your state
ment was that each of the individuals, that is within the southern sector,
is still affiliated with a Reserve or homeland and I would like to ask
you whether, in your use of the term "affiliated" in that testimony, an
individual who was born and lived ail his life in the urban area of Wind
hoek, let us say, and works there and has never been in a Reserve or
homeland physically, is still "affiliated" with a Reserve or homeland in
your sense of the word?
Prof. LOGAN:Well, I believe that if you refer to other parts of that
same testimony you will recall that we had a considerable discussion on
the fact that the Native normally returns to his homeland during a
period of his youth, and so I believe that the number of individuals who
had never been to a Reserve would be very tiny indeed. SOUTII WEST AFRICA
Mr. GROSS: Well, for example, sir, would this apply to the detribalized
Ovambos who live in the southern sector outside the Reserves?
Prof. LOGAN: The detribalized Ovambos would perhaps be different
but most, I believe, of the detribalized Ovambos still return to Ovambo
land on occasion.
Mr. GRoss: And that constitutes "affiliation" with their homeland,
in your sense of the tcrm?
Prof.LOGAN: Yes, I think so-yes.
l\1rGROSS: Are there any consequences with respect to individual
freedoms, or group status, or any other consequences, economic or social,
which arise from the concept of "affiliation" of each individual with a
Reserve or homeland?
Prof. LOGAN: Yes, I think it gives thern a whole body of tradition and
culture to which they can adhere, and results in a stability in the com
munity which would be non-existent were you to remove it, were it not
there. The most pitiful situation anywhere in the world, I think, is the
persan who does not belong to any group, and to separate such groups
from their parent community would, I think, be a disastrous event.
Mr. GROSS: Would you apply the term "affiliation", sir, to a White
person in the sector in relation to the White group?
Prof.LOGAN: Yes, the White group feels affiliated with other members
of its own national group, its own language group-the German with the
German group, the Afrikaaner with the Afrikaans group, and so on.
Mr. GRoss: So that "affiliation" in this sense would not be-or would
it be-a scientific or technical term?
Prof. LOGAN: No, I think it is a tenu in common, ordinary English.
Mr. GROSS: Would you say that scientific and technical terms are not
ordinary English?
Prof.LOGAN: Well, I think there is a scientific nomenclature, a scientific
language, which uses certain terminology which does not ordinarily show
up in the ordinary vernacular speech, and also sometimes terms from
the vernacular speech are somewhat warped or confined in scientific
language, and I did not mean this in any such terminology here-I have
no separate and special meaning for the term "affiliated".
Mr. GROSS: So you are not using this term in any expert sense or tech
nical sense?
Prof.LOGAN: Well, not in any highly specialized sensc, no.
Mr. GROSS:Very well. I would like now to refer to the verbatim
record of 8 July, at page 371, supra. In response to Mr. Muller's request -
to state your opinion as to whether the different population groups in
South West Africa can be treated unifonnly for purposes of economic
development and administration, you responded that it is necessary to
recognize the "profound difference between the European and the non
European", as well as the marked differences "within the non-European
group"; and in your response you stated further:
" ... it is quite necessary to tailor the attempts to advance each
of the individual groups to the immediate needs of that particular
group, rather than to try to spread one type of blanket dcvelopment
over all of the groups".
Would you explain to the Court in what respects, if any, your statcment
applies, let us say, to the half of the Herero who are "absorbed in the
diversified economy of the southern sector", in the words of the Odendaal
Commission report? WITNESSES AND EXPERTS
Prof. LOGAN: The Herero are absorbed as workers on farms operated
by Europeans; they are absorbed as employees in the businesses and
industries operated by the Europeans. Now, to submit them to the same
requirements of education, for example, and of training to which you
would submit a Bushman group who have never been exposed in any
way to anything mechanized or anything urban would be, I think, an
insult to the Herero people, because the Herero people are at a much
higher level than this; but at the same time, to expose the Herero people
to the possible exploitation of them by Europeans within the area of the
Native townships where they have already set up businesses, the shrew
der, more experienced European might very well put them out of business
in very short order-this is a protective device in the second case, it is
an educational device in the first. These are quite different peoples, and
I feel that to try to apply the same set of regulations, or the same pro
posais for advancement, to the three different groups, meaning the
Bushman, the Herero and the European, to take three radically different,
separate entities here, would be extremely impractical, it would be
dangerous and in some cases it wonld be insnlting to an already well
developed culture.
Mr. GROSS: I would like to direct your attention to the Herero group
that you mentioned. You said, if I understood you, that half-you con
firmed, did you, the Odendaal Commission statement-the Herero are
"absorbed in the diversifi.ed economy"?
Prof. LOGAN: Yes.
Mr. GRoss: Now would you say, sir, that the (to use your phrase)
education and training of the half of the Herero who are "absorbed in"
the "White economy" should be the same as, or should it be different
from, the education and training of the other half of the Herero who
are not "ahsorbed" in the economy?
Prof. LOGA:'C Yes, I think that there should be a difference between
the different members of the community, the different groups in the
community.
Mr. GROSS: Yes-the different members within a group ... ?
Prof.LOGAN: Within the Hcrero community, in the different portions
of the Herero community.
Mr. GROSS: So that you would think that it would be sound to differ
entiate within a groupas well as between groups, would you, sir?
Prof.LOGAN: Yes, definitely.
j\1.GROSS: Confi.ning ourselves for a moment to the differentiation
within a group, forgetting for the moment the group concept as such-if
we can think about individuals for a change-what is the reason why
there should be separate consideration given to the education and training
of these individuals who comprise the half of the Herero "absorbed in"
the "White economy"?
Prof. LOGAN: Sorne of the Herero are at a considerably higher stage
and standard than other Herero. Now there should be a possibility for
such people to go further ahead, in order to advance the remainder of
the Herero community. It is for this reason that bursaries are available
to the different groups to go as far as university in the Republic, and this
has been accepted from time to time by Hereros who have clone this;
and the hope is, then, that they will return to the home community and
aid in the elevation of that community. The unfortunate thing is that
some of them do not, but it is hoped that they will return and raise the SOUTHWESTAFRICA
standard of the entire group. To have them raise the group from within
is infinitelyetter than to have an outside group, such as the European,
corne in and try to raise the group, because they understand one another
better than outsiders understand them.
Mr. GROSS:You say that it is hoped that-if I understand you cor
rectly-please correct me if I am wrong-the educated Herero will
retum to his Reserve ...
Prof. LOGAN:Orto Windhoek, yes, or somewhere.
Mr. GROSS:Or to Windhoek?
Prof. LOGAN:Yes.
l\lrGROSS:Suppose that he is an educated Herero who resides in
Windhoek-is it hoped that he would remain there? I do not understand
your comment, sir.
Prof. LOGAN:No, I said if he was sent under a bursary to the Republic
of South Africa, then it would be hoped that he would return to Wind
hoek, to the Herero community at Windhoek, or to the Reserves-if he
were a doctor, say, perhaps to the Reserves, if he ,vere in other fields,
perhaps only to Windhoek-to try to elevate his own community in
that area.
Mr. GROSS:By Windhoek-perhaps the source of our misunderstand
ing, sir, is your useof the word "Windhoek"-do you mean the citv of
Windhoek? ·
Prof. LOGAN:Yes.
Mr. GROSS:To live in the city of Windhoek?
Prof. LOGAN:Yes.
Mr. GROSS:It is hoped that the educated Herero will live in the city
of Windhoek?
Prof. LOGAN:Yes, that is correct.
Mr. GRoss: Not in the township ...
Prof. LOGAN:Well, he would live in the portion of \.Vindhoek which
is the township of Katutura.
Mr. GROSS:Therefore by Windhoek you mean Katutura in this respect?
Prof.LOGAN:Yes, because the city of Windhoek is divided into various
parts, one of which is the Native township of Katutura, and so he would
live in Katutura.
Mr. GRoss: May I rephrase my question, then? When you refcr to
"it is hoped that" (1 shall ask you in a moment who is hoping) the
educated Herero will live in Katutura, in the case of Windhoek, or live
in a Reserve or homeland-that is your testimony, sir?
Prof. LOGAN"Y : es, that is right.
Mr. GROSS:ln other words, would it be fair to say that it is hoped that
the educated Herero will not be part of the so-called "White" economic
community?
Prof. LOGAN:I did not say that I hoped that he would not be a part
of the White community-it is just in the nature of things, in the law,
in the general practice of the area, that the Herero would not be a part
of the European community, and I would not expect him to be; the laws
are set up in such a way that he would not be a part of it, and the whole
social system is set up in that way.
Mr. GROSS:So that when you say "it is hoped", are you referring,
sir,to the legislative and administrative policy or practice?
Prof. LOGAN:\Vhen I say "it is hoped" I am meaning that the Govern
ment hopes, the Administration hopes; Iam sure that most of the people WITNESSES AND EXPERTS
of Windhoek m any community, White or Herero or any other, hope,
and I hope, and I hope everyone else here hopes, that he will become a
member of that community and raise the standards of that community,
because the effort is to try to raise the standards of the community and
especially from within as well as from without.
Mr. GRoss: The effort is to raise the standards of the community
that is conceded. What effort is there to raise his standards in the "White
economy" in which he is absorbed, if he wishes to remain there?
Prof. LOGAN:To raise his level in the White economy?
Mr. GROSS:We had agreed, sir, I thought, to speak about individuals
for the time being-I am talking about Hcrero individuals who are
absorbed in the "White economv"; what efforts, if anv, are made to
enable him to be absorbed in the·economic community, the \Vhite com
munity? Are there any, sir?
Prof. LOGAN:Yes, I think there, are rather a great many: there is,
for example, a number of adult evening courses that are run specifically
for Natives by the Education Department of the Administration in
teaching a large number of subjects which are of basic assistance to the
Native in acquiring a higher status economically within the White
economy.
Mr. GROSS:We will corne back in a few moments, with the President's
permission, to the question of education-1 will take that in another
context. The next reference I would make, Professor Logan, is to page
371, supra, the same verbatim record-this is just by way of clarifica
tion of what may or may not be a typographical error in the verbatim
record, sir. Referring to the United States you stated that-
"The Negro and the American speak the same English in America
-slight differences in dialect, but basically the same thing-we are
certainly able to communicate with one another."
Prof. LOGAN:I do not like the way I phrase that first part "the Negro
and the American" because I consider the Negro an American, if this is
the way I understand the ...
Mr. GROSS:I had not really asked my question, I thought you wanted
to say something; I thought you might wish to correct that-how would
you prefer it to stand, sir?
Prof. LOGAN:I would say the Negro and the vVhite speak the same
language or whatever ...
Mr. GROSS:"... speak the same English in America"?
Prof. LOGAN:Yes.
Mr. GROSS:And do all Negroes speak the same English in this sense?
Prof. LOGAN:Well I believe I said other than slight dialect differenccs
they speak the same English.
Mr. GROSS:And there are slight differences in dialect on the part of
the White English-speaking persan?
Prof. LOGAN:\Vell, the White person or the Negro person have dialect
differencesbut basically they can understand each other.
Mr. GROSS:I primarily wanted to give you an opportunity to correct
that in the record. You do not wish the Court to draw any inference
from the statement in any aspect relevant to this case, or do you, sir?
The PRESIDENT:What does that question mean, Mr. Gross?
Mr. GRoss: The witness made this comment about the Negro and the
American speaking the same English in America which has now been SOUTH WEST AFRICA
corrected. In the context-I will find it in a moment, sir-on page 371,
supra, in which the witness was discussing "profound difference" between
the European and the non-European, and be went on on the same page
to refer to differences between the situation in the United States and
South West Africa, in the course of which he used the expression "the
Negro and the American speak the same English in America", and I had
meant to ask the witness by my question, Mr. President, what significance
ifany, he considered that remark to bear in respect of any issue in this
case ...
Prof. LOGAN:That was a slip of the tongue and I would like the word
"American" removed and "White" or some other term put in and I do
not know why I made the slip. I consider the Negro as much an American
as I am.
The PRESIDENT:I understand.
Mr. GRoss: Now at page 372, supra, of the same verbatim, in response
to Mr. Muller's question whether the various groups in South West Africa
identifi.edthemselves as separate groups, you responded in part as follows:
"... each one [that is group] represents and considers himself to be
a member of a distinct group, a separate group.
This is sometimes a friendly difference, as between the Nama and
the Damara; sometimes it is quite an antagonistic difference, the
groups do not get along well together; if they are mixed thoroughly,
then all kinds of friction may develop."
Do you recall that testimony?
Prof.LOGAN;Yes.
:i\frGROSS:Would you regard the difference, ifany, in this context,
between the White group and the non-White group as a friendly or
antagonistic difference in the sense in which you have used the terms
in response to Mr. Muller?
Prof. LOGAN:I am not positive, hearing this corne at me now, whether
this was in reference to only the Native groups or the non-White groups
or whether it was in reference to the European group and the others.
I willsay here though that the reference, as I intended to make it there,
was aimed only at the non-White group but there is much more friction,
far more friction between the various non~\Vhite groups than there is at
all between the White and any fragment of the non-White group. Thcre
is generally a friendly relationship existing everywhere in South West
Africa between the European group and any part of the non-White
group.
Mr. GROSS: It does not quite clarify it for me. it might for the Court,
sir; I would Iike if I may to pursue the question one or two notches
further. You refer in your answer to my question, I think repeatedly,
to the word "group"~would you say, sir, that it would be an observable
phenomenon in South West Africa that some members of the \Vhite
group have prejudice or feeling of hostility against members of non
White gronps, in the sense in which you have used the word?
Prof. LOGAN;I think there is very little, and I repeat, very little,
hostile feeling on the part of Whitcs toward the Native community and
I think there is equally little hostile feeling on the part of the Native
element towards the White community, or if you wish I will say non
\Vhite because I am not intentionally omitting any coloured groups here.
There are amicable relations existing almost entirely between the Euro- WIT.NESSES AND EXPERTS
pean group and the other group; there are always individuals, as we
keep repeating here, who do not conform to the norm and there are
White individuals who do not conform to what I just said but these are
rare. The abuse of a Native or the bad feeling towards a Native is not
any greater than and probably notas great as the abuse of a child by his
own parents in a good many White communities that I am acquainted
with and yet we gencrally say we like our children and gct along in a
friendly manner with them. 1 think that basically thcrc is an amicable
relationship between the groups.
Mr. GROSS: Would you regard it as a normal or legitimate purpose of
governrnent to protect individuals against the unusual. exceptional or
whatever phrase you want to use, prejudice of members of one group
against another?
Prof.LOGAN: Yes, I think that is an element of government.
Mr. GRoss: Now, therefore, the fact that it may be exceptional in
your tenns-is that fact, if it is a fact, relevant to the question of whether
or not the government in South West Africa ought to protect mcmbers
of one group from the consequences and prejudices of members of an
other group?
Prof.LOGAN: Yes, I think this is an important item in any community
-in South West Africa too.
Mr. GRoss: I shall corne back to that also in connection with another
question addressed by Mr. Muller to you. To what cxtent, if any, are
group differences-hostile, friendly or antagonistic-to what extent, if
any, are such differences (in the sense in which you used the word) at
tributable to environmental or educational factors?
Prof.LOGAN: I am afraid I do not quite understand the question.
Mr. GROSS: May I repeat the question? I will shorten it because I
wanted to make sure we were using the same words. To what extent, if
any, are group differences-antagonism, friendship or whatever you wish
to say-attributable to environmental or educational factors?
Prof. LOGAN: I do not think to anyextent attributabletoenvironmental
factors, whether it be social or physical environment. I do not think to
any extent to educational factors. Perhaps the Jack of education over a
long period of time enhances problems between the various Native
groups and perhaps proper education over generations would obliterate
this but I do not think that these are attributablc to environmental or
educational differences.
Mr. GRoss: But you think that education may be relevant to the
elimination of antagonism?
Prof. LOGAN: Yes, I think so.
Mr. GROSS: Would communication between groups be relevant?
Prof. LOGAN: Of course, vcry much so.
Mr. GRoss: Now, as an expert in geography, whose study invokes the
relationship between man and land and the sociological aspects thereof,
would you then say that some at least of the differences, in terms of
antagonism or hostility, are the result of Jack of communication between
the groups?
Prof. LOGAN: Yes, the lack of communication and with it lack of under
standing which goes with communication.
Mr. GRoss; What do you mean, sir, when you use the phrase "if they
are mixed thoroughly" as you did in your response to Mr. Mu\ler's
question? Would you explain that to the Court? SOUTHWESTAFRICA
Prof. LoG.rn: Yes, if you were to put side by side witlùn a housing
area of an urban community, a Damara, a Nama, a Herero, Ovambo,
mixing them thoroughly, bouse by house down the street, then I am
afraid there would be considerable difficulty between them, whereas if
you have one area which is purely Herero and another area which is
purely Damara, then the hostility is not so likely to occur.
Mr. GROSS:So that by the phrase "mixed thoroughly" in this context
you wish the Court to understand that you are referring to residential
location, sir?
Prof. LOGAN:Weil, yes. The same thing would be true if you mixed
in a collective gathering of individuals standing together in an open space.
There might be some difficulty between them.
ilfr. GRoss: Who would "them" be, sir?
Prof.LOGAN:Between the different groups that Ijust named-between
the individuals of these groups.
Mr. GROSS:Would you say, sir, that congregating in the street is a
fonn of mixing which you fear would arouse ... ?
Prof. LOGAN:Yes, but congregating in the street is under somewhat
of a contro1led circumstance. However, when they congregate somewhere
else under other circumstances there may be clifficulty, as there often is;
on a Saturday night when a number of them have had a bit to drink and
different groups run into one another there may be a fight, and this
occurs sometimes in Windhoek specifically.
l\IrGROSS:So that you were not using the tenn, or were you using
the term, "mixed thoroughly", in a technica1 or scientific sense?
Prof. LOGAN:No, there was no scientific or technical terminology
implied.
Mr. GROSS:The purpose of these questions, Mr. President, is simply
to demonstrate, and to clarify whether these phrases are used by this
expert witness in a technical or scientific sense. You understand that,
sir, the purpose of my questions?
The PRESIDENT:The phrase "mixed thoroughly" does not sound
scientific.
Mr. GROSS:Pardon me, sir?
The PRESIDENT:lt does not sound scientific, 1\frGross.
Prof. LoG,L": I did not intend to use it scientifically, sir.
Mr. GROSS: In your testimony would you say that you have used that
term as a persona] value judgment?
Prof. LOGAN:A personal value term.
Mr. GRoss: Yes, sir. If it is not scientific, what is it? You are here as
an expert witness.
Prof. LOGAN:Weil, I do not think that every noun or verb that I use
in my testimony is scientific and I think we have ordinary language which
is used in addressing a body like this; we address parts of it in ordinary
language to make it comprehensible to the group and it is the normal
language that I use. I am sorry that it is not al! scientific.
l\fr. GROSS:That is no reason for regret, sir; it is a question of clarifica
tion. By "mixing thoroughly" then, you do not mean the terms to be
taken in a literai sense either, do you?
Prof. LOGAN:I do not use the terms in a literai sense?
Mr. GROSS:Do you intend this term to be taken by the Court in a
literai sense?
The PRESIDENT: I suppose in a descriptive sense, l\fr.Gross. I think WITNESSES AND EXPERTS
that every Member of the Court would understand what was meant by
that.
Mr. GROSS: Yes, sir. Well,ifthat is the case, of course, I shall now turn
to pages 373, supra, of the verbatim record and I would quote your testi
mony in the following respect. You said among other things:
"To permit total equal opportunity for all groups to do every
thing that they wished would result in exposing many of the groups
to very unequal competition. This competition would corne, of
course from the more advanced groups. This might be competition
from the European."
Now, applying this statement to the southern sector outside the Reserves,
does it suggest to you that the European group should be denied what
you referred to as "total equal opportunity" in order to protect the non
\Vhite group from their unequal competition?
Prof.LOGAN: Definitely, yes.
Mr. GROSS: Are you aware of any measures which, by law or administra
tion or any policies, in this sector outside the Reserves, deny the Euro
pean group "total equal opportunity", in order to protcct the non-Whites
from unequal competition?
Prof. LOGAN: Yes, sir. I think we have been through this before.
The European is not permitted to operate a shop or a store or any kind
of business within a Native area and, consequently, since he cannot do
this, heis denied a right. This is to protect the Native within that Native
area.
Mr. GROSS: Now I am talking, sir, about the situation prevailing in
the southem sector outside the Reserves.
Prof. LOGAN: So am I.
Mr. GROSS: I had not quite finished my question, sü. That is perhaps
why we are at loggerheads. I now am referring to the situation, I repeat,
in the southern sector outside the Reserves, and for the purpose of my
question am notreferring to Native locations. I am rcferring to areas in
which non-Whites spcnd their working day.
Prof. LOGAN: No, in that case he is not restricted in any way.
l\frGRoss: In that case, my question to you, sir, is, in that context
are there any laws or regulations or practices, of which you are aware,
which deny to the European group in that area, "total equal opportunity"
-your phrase-in order to protect the non-White in that situation, from
"unequal competition"-in your phrase?
Prof.LOGAN: No, not in the European zone.
l\Ir.GRoss: Now, I call your attention to page 373, supra, and speci
fically to Mr. Muller's question-"Do you consider that measures of
differentiat:ion to protect the various groups are necessary?" And I
direct attention also, to your response, which ranges from page 373 to
page 375. Now, Professor Logan, I should like to ask several specific
questions concerning certain of your statements, impressions, or opinion
as expert, as the case may be, as to which the Court perhaps may benefit
from clarification. Several questions which I shall ask you will be pri
marily within the context of your earlier testimony, on 7 July, in the
verbatim, at pages 338-339, supra, in which you stated that in 1961,
you studied-and I quote from your testimony at page 339 of this
verbatim-"the contrasting utilization of similar areas by different
economies and by different population groups", and that this study in-490 SOUTH WEST AFRICA
cluded "the southern half of the territory at that time, the area inhabited
... by the Whites of the Police Zone" (p. 339). My questions will relate
specificallyto this area, the southern sector outside of the Reserves, and
I suggest, if I may, with the perrnission of the Court, that you confine
your responses to this area. Do you understand, sir?
Prof. LOGAN: Yes.
:Mr. GROSS; Now, did your studies include uti1ization of the areas of
the southern sector outside the Reserves?
Prof. LOGAN: Yes.
Mr. GROSS:Did your studies include rural areas?
Prof. LOGAN: Yes.
Mr. GRoss: And did they include urban areas?
Prof. LOGAN: Yes.
1\IrGRoss: The Odendaal Commission report, which you have testified
you studied, contains the following findings, among others. I will cite
three, one of which I have already referred to.At page 31, paragraph
II3:
"Large numbers [this rcfers to DamarasJ were absorbed in the
economy of the Southern part of the country and displayed excep
tional aptitude as employees."
"With the development of a new economy in the southern part
of the country, considerable numbers [this refers to the Nama]
were employed by \\l'hite employers." (P. 33, para. II8.)
And finally,
"Approximately half of the Herero are absorbed in the diversified
economy of the Southern Sector of the country ... Lîke the other
groups in the Southern Sector, they too were strongly influenced
by the changes brought [about] by civilization and Christianity."
(Para. 127.)
I should like to ask you, sir, are these statements which I have just
quoted from the Odendaal Commission report confirmed by our own
studies?
Prof. LOGAN : Yes.
Mr. GROSS:Now, on the basis of your analysis of the area which we
are discussing, the so-called "White Sector" or "White area"-the
southern sector outside the Reserves-have you any opipions concerning
the nature and extent to which the absorption-! use the Odendaal
Commission report words-of these people into the economy of the
southern sector affects their traditional institutions. I may say, paren
thetically, that you used the phrase "traditional institutions" at page
374, supra, of the verbatim, as you may recall. The question therefore
is, do you have any judgments or impressions, based upon your study of
the area, as to the extent, if any, to which the absorption of these people
into the economy has affected or does affect their "traditional institu
tions", in your sense of that latter phrase?
Prof. LOGAN: Inasmuch as many of these people are herdsmen and
such, on European farms, or as we in America would call them, ranches,
these people still are carrying on, in part, their traditional way of life,
which is that of herding, and consequently many of their institutions
which revolve about hcrding, still remain. Many of them have at least
a veneer of Christian religion so the former religions have, in part, been
lost and been supplanted by Christianity. They have taken on the WITNESSES A~D EXPERTS 49I
wearing of European garb and things of this sort, which has changed
their traditional way of lifo. And they are fixed in one place, not nomadi
cally moving from season to season and from yea.r to year, and this has
changed their traditional position. They receive a regular wage and a
regular food ration, and so on, which affects the very unreliable marginal
position in which they were in nomadic tirnes, in pre-White times. I think
to this degree, in these manners perhaps I should say, their traditional
pattern ha.s been changed.
l\frGRoss: Now, sir, would you address yourself to the non-Whites in
the urban a.reas of this Sector?
Prof. LOGAN: Yes, there, there has been much more change, because
in the urban areas they are no longer grazing to the same extent. Nor
mally, they still have some flocks of sheep and goats which they rely
upon for a portion of their food supply, which are grazed on the town
lands. But they are no longer following their traditional pattern of
grazing as they did ea.rlier, and they are more shifted into the European
style of culture.
Mr. GRoss: Is the Court to understand from your response that the
answer to my question is yes, that the absorption into the so-called
"White econorny" does have an effect upon the traditional institutions
of these people ?
Prof. LOGAN: Yes, it does.
Mr. GRoss: It does. And your reference to grazing and sheep and
goats, that is, is it not, irrelevant to, for exarnple, the several thousand
non-Whites who live and work in \Vindhoek in domestic service?
Prof. LOGAN: Yes, except that most of these people-you see, this is
where I have difficulty when I am forced to talk only about the one a.rea
of the European zone-still have, as I have been saying again and again
here, their connections back to the Reserve and on the Reserve they
frequently still maintain their herd or their flock of domesticated ani
mais, looked after by a member of the family, a direct mernber or an
indirect rnember, a cousin or perhaps a daughter or son.
M.r. GRoss: But is it your testimony that the several thousand-I
believe this appears from your testimony in the record-non-Whites,
male and fernale, who reside in homes in the city of Windhoek as domestic
servants, maintain flocks of sheep or herds of goats or other animais out
side the city, is that what the Courtis to understand?
Prof. LoÏ;AN: No, not outside the city. On the Reserve from which
they came originally and these are looked after by some other member
of the family, perhaps an immediate member, perhaps a fairly rcmote
member, but that they still have the animais on the Reserve from which
they carne originally to the city of Windhoek, and so there is still this
connection.
l\Ir. GROSS:Do they get milk, cheese, from their animais?
Prof. LOGAN: No. The milk and cheese is either eaten by the relatives
or the milk, transformed into cream, is sold to the creameries and they
receive cash, but you see the important thing is that they are not in
terested in the milk and the cheese, they are interested in the number of
heads of animais, because their traditional wealth has always been reck
oned in heads of animais, and so a man is wealthy if he has a number of
heads of animals, not a bank account in the local bank.
Mr. GROSS:Have you, in your studies, encountered non-Whites who
were serving as domestic servants in the homes of Whites?492 SOUTHWESTAFRICA
Prof. LOGAN:Yes, many.
Mr. GROSS:Could you advise the Court how many, on the average,
heads of cattle, if any, a domestic servant in that situation has? Is that
a question you understand, sir?
Prof. LOGAN:Yes, I understand.
Mr. GRoss: Would you answer it?
Prof. LOGAN:I have not made any census survey of it and I am sure
this is not in any census figures, but a man with whom the domestic
servant-! suppose you mean a female domestic servant-the man
would ...
Mr. GRoss: I was taking two categories-non-White females and non
White males ...
The PRESIDENT:We do not want all the details surely, Mr. Gross.
It is getting far away from the issues in this case to be talking about
female employees working in domestic service and whether they have
so many cattle and whether the male domestic servants have so rnany
cattle. Surely questions can be put in the broad sense and some informa
tion be got with which the Court will be suffi.ciently satisfied, without
going into all this detail. This case \vill never finisifwe proceed upon
this basis.
Mr. GROSS:Yes, Mr. President. \Vith deference, then, I shall tum to
another question.
You, in your testirnony, at page 375, supra, in the verbatim, referred
to education within the framework of-1 will read the exact language~
in response to Mr. Muller's question whether measures of differentiation
to protect the various groups are necessary, which I have read, did you
take into account the extent, if any, to which social change has been
brought about by economic development in the area in question, and
I am referring specifically now to the economy in the urban areas?
Prof. LOGAN:Yes, I did.
Mr. GROSS:Now I call your attention to page 375 of the same verbatim
record, in which you stated as follows:
"Now perhaps the better thing to do is to permit the original
traditional institutions to remain and then to develop, within the
frame,vork of the traditional institution, something in the way of a
better way of life from the practical point of view, from the very
materialistic point of view, to give them better food, to give them
health services, to educate them, but to educate them still within
the framework of their old traditional society ... "
Do you recaJI that testimony, sir?
Prof. LOGAN:Yes, that is right.
Mr. GRoss: Was your testimony that I have just quoted intended to
apply to the non-White "absorbed in" the economy of the urban area
of the White sector? ·
Prof. LOGAN:Yes.
Mr. GROSS:And in that context would you be good enough to clarify
the meaning of the phrase you used, "... to educate them still within
the framework of their old traditional society"?
Prof. LOGAN:Yes, to break clown their social systems as they recog
nize them, to change their thinking in regard to their ancestors, in
regard to their chieftainships, in regard to their marriage customs, in
regard to all of the things that constitute their basic traditional patterns, WITXESSES AND EXPERTS 493
just in order to teach them better to read and write and keep books would,
to my mind, be a sad situation. These people ail have a proud heritage
of thcir own culture and within that culture system they are basically
happy. Now to remove them from this culture system or to remove
this culture system from thcm and try to superimpose another one
upon it is what I think would be a bad thing and I think it is much
better to try to do this within the framework of their own, still recog
nized, tribal or cultural system. I am not trying to advocate the perpetu
ation of tribalisrn in the worst senses of that tcrm but to try to raise the
group, still within the framework that thcy rccognize.
Mr. GRoss: Are you finished, sir?
Prof. LOGAN:Yes.
llr. GROSS: In your view should such education-to which you referred
in respect of persons who are absorbed in the so-called "White cconomy"
-should such education equip them to compete more effectively within
that economy?
Prof. LOGAX:Yes, naturally.
Mr. G1wss: Is it your impression, sir, on the basis of your analysis,
that the educational practices are designed to enable them to compcte
more effectively within the "White econo!J"ly"?
Prof. LOGAN:Yes, it is.
l\frGROSS:Could you then reconcile that, if indeed you can see that
it is inconsistent, with the imposition by government regulation and law
of ceilingsupon the improvement of their economic levels above certain
forms of labour?
Prof. LOGAN:We go back to the samc thing again, that there is a
cciling ifthey wish toremain in the White territory.
Ilfr. GROSS:I think you did not understand my question, sir?
Prof. LOGAN:I am sorry thcn.
Mr. GROSS:I think, if I may say so without a disputation but just to
clarify, your mind seems to be; pcrhaps, focused on arcas outside the
area of our discussion. Now I am confi.ning, or attempting to confine,
my remarks to a non-White person "absorbed in" the White economy,
in the terms of the Odendaal Commission report, who is being educated
or who has been educated in that same area, who is absorbed in the econ
omy and who, by preference, or economic necessity or reasons of health
or any other factor, wishes and intends to remain wbere be is. Now I am
taking that person and I am asking you, sir, whether you can say wbether
or not be is being educated in order to compete more effectively in that
cconomy where he is?
Prof. LOGAN:No, he is not being educated to compete more effectively
in that economy where he is, if he refuses to leave that area and go else
where to seek a bettcr job.
.Mr.GROSS:And if he is precluded by health or by economic circum
stancc or merely by rcason of his human dcsire not to move himself and
his family, are you saying, sir, that if he remains whcre he is, it is at the
pricc of not receiving an education requisite to bis advancement in ac
cordance with his capabilities?
Prof. LOGAN:No, he will receive the education alright but he will be
limitcd on how high he can go, yes.
111r.GROSS:Would you regard, sir, on the basis of your analysis that
it is sound public policy, moral policy or evcn social policy to educate a
person to a level of accomplishment which the law prohibits him from494 SOUTHWESTAFRICA
achieving if he remains where he is? Would you answer that question,
sir?
Prof. LOGAN:But the law does not prohibit him from returning to, or
going to, an area where he can practise it and so ...
Mr. GROSS:You judge that as responsive to my question, sir? You have
finished your response? · ·
Prof. LOGAN:Yes, I have.
Mr. GRoss: You cannot then answer it in the tenns, or do not wish
to answer it in the terms in which I asked it-whether or not, if he is
educated to a level which he is prohibited by law from achieving in the
economic context in which he is absorbed, that is sound, social, economic
or moral policy?
Prof. LOGAN:But again you are trying to separate the whole position
which is a unit; and to separate this, to excise it-as you said earlier
is illogical and impractical. We are talking about a man moving r mile,
we are not talking about a man moving to the ends of the earth and
therefore I see nothing v.'rongwith the situation as it stands. No.
Mr. GROSS:Professor Logan, I will not ask you a question of a legal
nature or implication, but as a geographer-as a scientist who has studied
sociology-are you or do you consider yourself, familiar, shall we say,
with the phrase or the concept "strenuous conditions of the modern
world"?
Prof. LOGAN:Yes.
Mr. GROSS:Are you aware, for example, that in the Covenant of the
League of Nations, Article 1, paragraph 1, the stated principle is that
the government here is under duty to help the individuals inhabiting
the Territory; "to stand by themselves under the strenuous conditions
of the modern world"? Now, in your opinion, are all the "measures of
differentiation", in Mr. Muller's phrase which I quoted earlier, now
applied in the southern sector (and he did not qualify) appropriate to
the end of helping the individuals of whom I have just been speaking
"to stand by themselves under the strenuous conditions of the modern
world"?
Prof. LoGAN: I do not know about all the conditions. I would say
that by and large most of the differentiations are essential.
Mr. GROSS:Would you include job reservation in that category?
Prof. LOGAN:This is perhaps the only place where I would differ from
the basic pattern as established generally.
Mr. GROSS:And why would you differ, sir?
Prof. LOGAN:Because thcre are exceptional cases, the individual that
you want to bring out, from time to time, who perhaps would be able
to conform and be able to work to the best of his ability within the
European area. The moment, however, a door is opened to a situation
of this sort, then the entire attempt at a development, a parallel elevation
of groups, a whole concept, begins to break down. And consequently, as
we came back to earlier here, in this same Court, it is my feeling that in
some cases it is necessary to jeopardise the absolute happiness, perhaps,
of acertain very small proportion-if it becomes a large proportion then
the whole thing is changed, but as yet, in South West Africa it is a small
proportion of the group---in order that the set of circumstances, the set
of conditions and the set of plans be allowed to operate.
Mr. GRoss: Would you apply the judgment you expressed, with
respect to job reservation, to the general principle or policy of setting WITNESSES AND EXPERTS 495
ceilings of accomplishment upon a person because of his race in that
communitv?
Prof. LOGAN:lt is not because of his race; it is because of his whole
culture group, but yes.
Mr. GROSS:You would express-yes, what, sir? I want the record to
be clear, in justiceto you.
Prof. LOGAN:Will you ask the first part of the question again? I am
not trying to be obstructionist.
Mr. GROSS: I just want to be sure the record is clear for the sake of
your testimony. I intended to ask whether the judgment you expressed,
with respect to the Job Reservation Act (in regard to which I unclerstand
you expressed your disagreement for prevailing policy on that point,
subject to the qualifications you made) would be the same with respect
to the general policy of imposing by law a ceiling upon economic ac
complishment?
Prof. LOGAN:\Vell I do not think there is a ceiling imposed upon
economic accomplishment, no.
Mr. GROSS:\Ve have, I think, brought out in the earlier record, have
we not, references made by high officiais of the Government-specifically
Prime Minister Verwoerd which is quoted in the Pleadings of Respondent
-that in the White area there is "rio place for"-1 think he used the
word "Ban tu" -above the level of certain forms of labom. Do you recall
that?
Prof. LOGAN:That is right.
Mr. GROSS:Ignoring the implication of the word "Ban tu", I am asking
you whether you would care to express a judgment concerning the policy
which is implicit in that statement, that there is no place for the, shall
we say non-White, in the "White area", above the level of certain forms
of labour?
Prof. LOGAN:And of course the important thing here is "in the White
area".
Mr. GROSS:That is the important thing. From what standpoint is it
important?
Prof. LOGAN:Because he is permitted this development in the other
area.
Mr. GROSS: I see, sir. Now, you concluded your testimony on direct
with the statement, and I quote from page 375, supra, of the verbatim
I have cited that:
"... if ail controis were to be abolished [this is the language of
Mr. Muller's question] in the area and all differentiation between
groups ignored, I am afraid a rather chaotic situation would de
velop".
That was your answer, sir?
Prof. LOGAN:That is right.
i\fr. GROSS:Have you ever heard, sir, of any suggestions being made
soberly or responsively by anybody in South West Africa or elsewhere
that 'ail controls" be abolished?
Prof. LOGAN:Not in South West Africa, no, I think that is a general
feeling in other places though, is it not?
Mr. GROSS:I would not wish to express an opinion about it-1 think
the Court would be more interested in yours-and I just want to pursue
that, to ask what other arcas-where, in what context-have you heard SOUTHWESTAFRICA
a suggestion, if you have, that ail controls (the phrase you used) "be
abolished",
Prof. LOGAN:All the controls we have just been describing?
l\fr.GROSS: Yes.
Prof. LOGAN:This was a hypothetical question which was asked me,
which is frequently stated, that there is too much control in South
West Africa, and then what would happen if this control were removed;
,his is a hypothetical question which I think is quite frequently put.
And I was answering a hypothetical question, and so, if ail controls were
removed, then I would assume that there would be a chaotic situation.
Mr. GRoss: \Vould that be true in any social situation, sir?
Prof.LOGAN:Yes, it would be true in any social situation, but it would
be much more true where you had great differences in cultural levels.
Mr. GROSS:It would be less true in the United States, let us sav?
Prof.LOGAN:If all controls were removed. "
Mr. GRoss: \Vere abolished?
Prof. LOGAN:All right, abolished.
Mr. GROSS:Now, just to pursue this one or two questions further:
with regard to your phrase "all differentiation between groups ignored",
have you heard it responsibly suggested, sir, that it is either desirable
or possible to ignore ail differentiation between groups?
Prof.LOGAN:Again, this is in answer to a hypothetical question.
l\lr. GROSS:This is my final question, l\fr. President, with respect and
with your permission. Are the true and only alternatives represented by
the extremes-I shall quote from the Odendaal Commission report and
give the citations in a moment---0f, on the one hand, in the language of
the Odendaal Commission report, "wiping out the differences between
the groups", and, on the other hand, "complete socio-economic integra
tion"-the language is used in the Odendaal Commission report at
page 427, at paragraph 1434. Do you regard those as true and/or only
alternatives? Wiping out the differences between the groups, on the one
hand, and complete social and economic integration, on the other?
Prof. LOGAN:\Vell it seems to me those are nearly the same thing,
are thev not?
Mr. GRoss: I do not know what they are, sir. You stated at an earJier
phase of your testimony that you did not agree with everything in the
Odcndaal Commission report, did you not, sir?
Prof. LOGAN:Yes, that is correct, sir.
Mr. GRoss: Now, the Odendaal Commission report language I have
just cited-this is not my language, sir-states these as extremes, or as
the alternatives, not as the same thing.
Mr. MULLER:Mr. President, may I ask my learned friend, Mr. Gross,
to indicate where the Odendaal Commission deals with these two matters
as bcing alternatives.
Mr. GRoss: I am about to read from the Odendaal Commission report.
The PRESIDENT:Would you identify the page, Mr. Gross.
Mr. GRoss: Yes, sir. This is page 427, paragraph 1434. I shall read
several sentences; I would invite your comment Professor Logan, to a
series of questions.
"\Vhere there are no significant differences between co-existing
groups or nations, it might be sound and desirable to apply a policy
calculated to wipe out the differences between the groups, i.e., a
policy of assimilation or complete socio-economic integration. WITNESSES AND EXPERTS 497
However, where, owing to fundamental differences in socio-cultural
orientation, stages of general development and ethnie classification,
the differences between the groups concemed are of so profound a
nature that they cannot be wiped out, a policy of integration is un
realistic, unsound, and unclesirable, and cannot but result in con
tinuai social discrimination, discontent and frustration, friction and
violence-a climate in which no socio-economic progress can be
expected to take place."
Now, sir, I should like to clarify exactlywhat I meant by stating these
as extremes. They are two extreme forms of stating the same point, as I
understand this quotation. Can the problem, in your judgment, be validly
and justifiably statcd in terms of such extreme formulations as a policy
calculated to wipe out the differences between the groups, or, stating it
in another cxtreme form, complcte socio-economic integration?
Mr. GROSS: Mr. President. Professor Logan, I would like to start
afresh with you, not requesting the Court to ignore the question previ
ously asked, but to clarify it and start afresh with you in that respect.
Iintend to ask you, sir, with respect to the phrases used in paragraph
r434 of the Odcndaal Commission report, whether what I took as the
extreme or polarized forms of expression of the phrase "to wipe out the
differences between groups" on the one hand, and the phrase "complete
socio-economic integration" on the other-whether those extreme forms
of expression, in your view, were the only alternative to the absence
thereof, or to some othcr policy which was not based upon that, such as
the policy of scparation or apartheid?
Prof. LOGA:s'T : he two situations, as given in the paragraph referred
to, which I have had the opportunity of reading, apply to two totally
different types of situation. The first, a relatively homogeneous society
in which there are no sharp group diffcrences, as stated quite clear1y,
I think, in the opening phrase, which slipped me when it was read tome
earlier, and the second in which there are extremc differences between
groups. In the first case it is quite rcasonable to wipe out such differences
as do exist, they being minor differences because we are dealing with a
relatively homogeneous society as proposed. And, secondly, in the latter
case, the one of great group differcnces, there the groups, it says, and I
agree with it, should be developed separately one from the other, in
order to develop each of them as wcll as possible, as rapidly as possible
and as far as possible, but because of the different requirements of the
different groups a differcnt approach is necessary. That is how I interpret
the paragraph and as I personally belicvc to be the situation.
Mr. GROSS: Thank you. Now, would the testi.mony you just gave in
response to my question apply without qualification to the situation in
which the non-White is "absorbccl in" the economy of the White in the
southern scctor, in the urban arca, let us say?
Prof.LOGAN:Yes.
Mr. GROSS:It would?
. Prof. LOGAN:The first vwuld apply, or ...
Mr. GROSS:Docs your rcsponse to my question apply, without qualifi
cation, to the situation of the non-White who is absorbed in the White
economic community in the southern sector outside the Reserves?
Prof. LOGAN:Yes, my reply does, because the individual is still a
member of a group.
Mr. GROSS:Now, what do you mean by separate development in that SOUTHWESTAFRICA
context-separate from whom, and development to what end? What do
the two words mean?
Prof. LOGAN:Sepa.rate from the other peoples not of his group around
him as, for example, separate from the European group for whom he is
working and towards the end of raising the entire level of his group, of
the particular individuaI Native's group.
Mr. GROSS: Rather than the level of the economy in which he is
absorbed? .
Prof. LOGAN:The aim is to develop the various groups. This would
perhaps partly raise the level of the economy of the White sector, but
the main emphasis in this report, and the main emphasis as I see the
group development pattern in South West Africa, is to develop the groups,
each of them. Therefore it is to develop the Native group as well as to
develop the White economy, not basically to develop the White economy,
no.
Mr. GROSS:The individual Native who is absorbed in the White
economy-are we talking about him?
Prof. LOGAN : Yes,
Mr. GROSS:In what respect is he developed in the context of advance
ment in that economy under the prevailing system as you understand
it, sir?
Prof. LOGAN:As l explaincd a bit ago, there are programmes for at
tempting to give him a better education, to do better things for himself
within the area, subject, of course, to the fact that there is a ceiling placed
upon his economic attainment.
l\frGROSS:I think perhaps in this context it would help to clarify
matters, if you would say what you perceive, as I believe you said you
did, to be difficulties or objections to the imposition of ceilings such as
the Job Reservation Act? Will you explain your previous response to my
question? You differed with the Government policy in that respect?
Prof.LOGAN:I said that I differed with the Government policy because
it does prevent certain individuals from reaching higher than they might
do otherwise, but that I still felt that it was necessary and while I don't
necessarily approve whole-heartedly of such measures, it is necessary in
ordcr to carry out the full development of the programme as envisioned.
I believe I said that in the earlîer testimony.
Mr. GROSS:It is necessary, sir, to impose limitations upon his eco-
nomic advancement?
Prof. LOGAN:That is correct.
]\frGROSS:In order to serve what objectives?
Prof. LOGAN:In order to prevent the breaking-down of the entire
programme that is being developed because then if one exception was
made, in the case of this particular individual we have in mind, then there
would immediately be another one of less validity, and then another one,
and eventually the system would break down because of a trcmcndous
number of exceptions beîng made endlessly. Of course if exceptions are
made in one direction then they should be made in the other direction.
Mr. GRoss: And the "other direction" being, in this context, excep
tions in respect of the White in the White area?
Prof.LOGAN:No, the exception of the \Vhite being allowed to develop
things in the Native area then.
lvlr. GROSS:So would you say, sir, that you see this or you discuss it,
and your testimony to the Courtis entirely or basically, within the con- WITNESSES ANDEXPERTS 499
cept of development of the \Vhite economy and society in one area and
the development of the non-White society or economy in the other area?
Prof. LOGAN:That is correct.
Mr. GROSS:This is the basic premise of your testimony?
Prof. LOGAN:That is correct, ves.
Mr. GROSS:Thank you, sir. No further questions.
The PRESIDE KT: Certain Members of the Court desire to put questions
to Professor Logan. I call upon Sir Gerald Fitzmaurice.
Judge Sir Gerald FITZ)IAURICE:Professor Logan, in spite of all the
ground we have travelled over, l do not think it is yet entirely clear
what is the basis of the various distinctions made in South West Africa
between different groups, and between the Whites as a group and the
non-Whites, and I want to put a series of points to you with a view to
clarifying that; and to save time, when you agree with what I say, will
you just say "yes" or "correct", or something like that? Of course, if you
donot agree, then give your reasons.
Now, in your evidence the other day you were very emphatic that
colour as such was not the basis of these distinctions. I take just one
passage from the verbatim of 9 July on page 403, supra, in which, in
answer to a question addressed to you by Mr. Gross, you said: "Do I
think it is a valid basis to use colour as the basis for allotting rights and
burdens?-no, I do not." That is correct, I think, is it not?
Prof. LOGAN:Correct, yes.
Judge Sir Gerald FITZMAURICEW : eil then, you say that colour is not
the basis of these distinctions, and the general picture you painted was
something like this, of South West Africa as a territory which is really,
as it were, split up into a number of semi-self-contained areas and local
ities,and in each of these areas or localities one group has full political
and civil rights; but in the same area or locality members of other groups
would or might have lesser rights or restricted rights of somc kind; and
you gave us an example, if l remember rightly, an obvious example
-you said that in the White sector outside the reserved areas the non
Whites did not have any voting rights, but in their own homelands they
would have voting rights, and that similarly in the White sector (I will
call it)the non-Whites were subject to certain restrictions, for instance
as to what jobs they could take on, but in their own reserved areas or
homelands they would not be so subject-that is a correct general pic
ture, I think?
Prof. LOGAN:Yes.
Judge Sir Gerald FITZMAURICE\V : ell, now, do you see, Professor Lo~an,
any resemblance between that situation and the situation which m1ght
obtain in a federal State? For instance-! am not thinking specially of
the United States of America, but of any federation-in a federal State
you have got a conglomeration of separate states, and in any one state
the residents or the persans who are admitted to the register of voters
would have full voting rights as regards local elections and state elections,
but in another state they would not have; and similarly, in their own
state, they would be subject to no restrictions as regards place of residence
or conditions of work and so on, whereas in another state of the federa
tion conceivably they might be, and if there was such _asituation none
of that would have any specific reference to colour, for mstance. Do you
agree that there is some resemblance between the two situations?
Prof. LOGAX:There is some resemblance, yes.500 SOUTH WEST AFR[CA
J udge Sir Gerald FnzMAURICE: I do not want to push the analogy
too far, ofcourse-there are differences, too. \Vell now, if that is so, then
would it be correct to say that in your view the various distinctions
which cxist in South West Africa are based on a mixture of group and
locality-that is to say, on membership of a group, be it a White or a
non-White group, the members of which belong or are deemed to belong
to a particular area or locality?
Prof. LOGAN: That is correct-that is exactly right.
Judge Sir Gerald FnzMAURICE: And according to the theory, if I may
so ca/1it, even a non-White born in the White sector, and working there,
and having lived there ail his life-he is regarded not as being, so to
speak, a member of the White sector but as bcing a member of his racial
group, and only in the homelands of that group would he have full rights.
Prof. LOGAN: That is correct.
Judge Sir Gerald FnzMAURICE: Would you admit, Profcssor Logan,
that that is carrying the theory about as far as itwill go, this last case?
Prof. LOGAN: Yes, I think so.
Judge Sir Gerald FnzMAURICE: Now I want to test the matter just
a little further and consider what I might call the reciprocity aspect.
The logic of the theory, of course, requires that in the non-White areas
White persons should be subject to restrictions broadly corresponding
to restrictions which non-Whites are subject toin the White area. I won
der how far that is actually the case; for instance, to take an obvious
example, in Ovamboland would White persons be subject to the same
restrictions as regards the work they could do, the jobs they could take,
that an Ovambo worker would be in the White sector?
Prof. LOGAN: Yes, if they were coming in as independent individuals.
To begin with, they could not corne in as independent individuals into
the area, and therefore they could not hold jobs within the Ovambo area.
Now the exception, of course, is the obvious one: the administra tors,
the medical people, the missionaries and the educafors who are in the
area are employed beyond any èonceivable job classification, but this
is in order to attempt to raise the level of the Ovambo people generally;
they are there ternporarily from outside of the area. But a private entre
preneur cannot go into the area and opcratc without running immcdi
ately foui of the regulations and Iaws. There have in the past been the
Iicenscd traders within the area. These are being gradually closed out
in place of the Ovambo traders within the area; eventually they will be
closed out completely.
Judge Sir Gerald FrTZMAURICE: Yes, I see. \Vell then, would it be
broadly right to say that the sort of job which an Ovambo cannot do in
the White sector, a White person would not be able to doin Ovamboland?
Prof. LOGAN: This is the theory, and this will be the situation as the
development proceeds, yes.
Judge Sir Gerald FnzMAURICE: Thank you. Weil now, let us corne to
the actual disabilities which are imposed upon the non-Whites in the
White sector. The theory, I think, leads us to this conclusion: that on
the basis of it the imposition of some disabilities are or may be justified,
but clearly it cannot lead to the conclusion that any disability you could
think of would be justified merely because a similar disability might be
imposed upon a White in a non-White area; for instance, to take a ludi
crous but not absolutely impossible example, if there was a law by which,
although Whites in the White sector were entitled to wear thcir normal WITNESSES ANDEXPERTS 501
footgear the non-Whites had to go barefoot, Ithink one would say that
that was clearly unjustified and discriminatory-you would agree with
that, would you?
Prof. LOGAN:I would agree.
Judge Sir Gerald FITZMAURICEA : t any rate it ,vould be unjustified
and discriminatory unless there were some really compelling reason for
it, if one can think of one. So that broadly to justify disability, particular
disability,and to make it non-discriminatory one has to have some good
reason for it other than simply colour as such. That I think you will
agree with too. Now I just want to consider in relation to this question
ofjob reservation in particular, what are the reasons why, in the White
sector, non-\Vhites are prohibited by law from undertaking certain work,
and I want to recall to you the evidence you gave on that point the other
day, it has not been referred to this morning but it is to be found on
page 405, supra, and Ishould like to read to you just two short passages,
which you answer in reply to a question by Mr. Gross. The first-
"At the present time none of the Bantu groups, whether it be
Herero or Damara or what, is technologically, education-wise, cul
turally in any way, as a group capable of carrying on activities above
the level just mentioned, above the level of labour."
And then coming to the question of the "exceptional individual" which
was put to you by Mr. Gross you said-
"In the case of the exceptional individual, sometimes the regu
Iations bear heavily upon him-1 think there is no question of this.
There are in every one of the communities, every one of the Native
groups, Iam sure, in South West Africa an, or some, or sometimes
a reasonable number of people who have the ability to have privi
leges at a higher level than is accorded to the group. This is true in
any society, and one has to aim at the best for the greatest number
of people."
And then you went on to point out in other parts of the same record
that of course the skilled individual was not permitted to exercise his
special skillsin the 'White sector, but could always do so if he went to
the homelands or to the Native towns, and so on the basis of that evi
dence, Profrssor Logan, there emerges a picture which is something like
this and I shall just put it to you whether you agree with it, namely that
these restrictions in respect of the work that can be done are not imposed
on the non-\Vhites because of colour but because it so happens that at
the present stage of their development, the non-Whites considered as a
group, well to put it like that, do not have what it takes to do work
above a certain level.
Certain (perhaps a number of) individuals may have that skill, but
their interest must give way to the general interest, would that be roughly
a correct picture of what you say?
Prof. LOGAN:Yes, it would.
Judge Sir Gerald FITZMAURICEW : ell, no,vI had been going to ask
Professor Logan how the general interest was served by the interest of
the individual having to give way in this respect, but I think that ques
tion has in effect been put to you this moming by Mr. Gross and you
have answered it. But I would like to pursue it just a little further because
this question of a skilled individual non-White is clearly a key question502 SOUTHWESTAFRICA
in this case and I am not satisfied we have got completely to the bottom
of it. To begin with, one thing which has puzzled me in this case and
perhaps you can help me on it, Professor Logan, is why if the reason
which you give for having these restrictions on jobs is the correct one,
why is it necessary to have laws which prohibit people from taking certain
jobs? If the great mass of the non-\Vhites concerned are not capable of
working above a certain level, then clearly even in the absence of laws
they would not get the jobs or if they did get the jobs they would not
hold them for very long; no employer would employ them. Therefore,
one would think that it was quite unnecessary to have an elaborate set
of restrictions as to the particular jobs that can be clone. Now what I
really want to put to you is this. I want to get your views generally,
and more specifi.cally Iwant to ask you whether in that situation it does
not begin to look a little as if these laws are aimed precisely at preventing
the man who would be able to do the job from doing it?
Prof. LOGAN:Yes, I think that the basic aim is to try to force this
man to do that job elsewhere than in the White community, to force
him to do it in his home community, so that it will aid in the raising
of the level of his home community, and that would be my explanation
of it. If I were going to work it out I would have done it for that reason;
ifI had passed such a law it would have been for that reason. Actually,
I think that there is very little hardship as a result of this at the present
time and Ithink, knowing how things have changed in the nine years
that I have known South \Vest Africa myself, I think that in the event
that the situation changes, the law will be changed; maybe not the entire
law, but the categories within it would be changed-that is, if there were
a large number of Native or non-White peoples who were able to do a
certain type of work, and this type of work was totally unnecessary on
the Reserve and there was a demand for a number of positions opened
for them within the White community, then I think the law would be
amended because the whole situation has been a situation of flux, that
is these things are rigidly stated but they do change. There has been a
great deal of change in South West Africa from the social point of view
in the period of years that I have known it. 1 am not acquainted with
the laws and so I do not know what has been done in the legal frame
work but I think that there is sufficient flexibility and adaptability on
the part of the Administration, the Government, to bring about such
a change. This is my sincerc bclicf.
Judge Sir Gerald FITZMAURICES :o, Professor Logan, you would agree
then that these laws are not made exclusively because the great mass
of the non-\Vhites are not up to doing certain jobs, they arc made at
least partly in the interests of the policy of separate development.
Prof. LOGAN:I think it is made largely in the interest of the policy
of separate development.
Judge Sir Gerald FITZMAURICEY : es, but at the same time you say
that it is also dependent upon the factual situation, that at present there
are a comparatively small number of persons amongst the non-'Nhites
who would have the capacity to do jobs above a certain level but that
if that situation were to change then probably, in your opinion at any
rate, the policy would be changed.
Prof. LoGAN:That is correct.
Judge Sir Gerald FrTZMAURICET :hank you. That is all, Mr. President.
The PRESIDENT:Are there any other Members of the Court who desire WITNESSES AND EXPERTS 503
to ask any questions? I only want to ask you a few questions, Professor
Logan. The first is: in your visits to South West Africa, on the two occa
sions you were there for research purposes, were you free to rnove where
you wanted to and obtain such information as you thought necessary
or was what you did in the forrn of what might be called a "conducted
tour"?
Prof. LOGAN;First, I have been there three rather than two times,
and there has never been any attempt in any way made to restrict rny
movements or to conduct my movements. I have been free to travel any
where I wished at any time. This started with the day I anived, when
I was virtually unknown in the Territory and I was able to go anywhere
I wanted. I have been on the Reserves with and without the conduct
of the superintendent or any other European or non-European employee
of the Bantu Affairs Department. I have always had open to me the
assistance of the Bantu affairs people on the Reserves but sometimes
I have, without any protest whatever, been on a Reserve for upwards
of a week without notifying the superintendent of the fact and then even
tually made a courtesy call upon him as I left explaining that I had been
here or there. I have not been followed by the police in Windhoek ... as
a matter of fact the number of police are far too few to look after a persan
like myself or any other person travelling about the Terri tory. There has
been the offer very frequently of a say "conducted tour" but much of
my work has been done entirely by myself, that is travelling with my
wife, my two daughtcrs, one or several of others, in our own vehicle. \Ve
have had various vehicles, one imported from the States, other~ purchased
locally, which we have used as a camping base; we have been away from
the city for long periods at a time. I am sorry to have prolonged that
so long.
The PRESIDENT:Another question I wanted to ask you about is the
use of the terrn "subsistence level''. Sometimes the words "subsistence
level'' isadorned by another word so that it becomes "bare subsistence
level''.ou spoke about the area to the north bcing that of a subsistence
economy, would you just elaborate what you mean by "subsistence
level''? Does it in particular indicate that it is a poverty level?
Prof. LOGAN:No, it does not. Subsistence means that there is no cash
and usually no barter involved, that the people produce everything that
they need and furthermore they need everything that they produce and
so that they do not produce a surplus for sale nor do they purchase from
outside. But from the standards of health and nutrition this may be very
adequate, in fact it may be vcry good in some cases, and we must realize
some of the idyllic examples of the primitive world as the South Sea
Islands and such.
The PRESIDENT:\Ve will keep to South West Africa.
Prof. LOGAN:I am sorry, sir. Now if the word "bare" should be inserted
before it, or we said it was a marginal subsistence cconomy, then we
would bring in the matter of impoverishment or malnutrition, etc.
The PRESIDENT:Did you see any signs of impoverishment or malnu
trition in all your visits to South West Africa?
Prof.LOGAN:The only examples are on some of the extreme southern
Reserves in which the conditions are very poor because of the climatic
situation existing. This is the homeland of the people, but some of these
people have a bare subsistence economy. These people are now at the
present time being moved from such areas to the areas farther north SOUTHWESTAFRICA
which have been purchased under the Odendaal plan, as part of the Nama
Homelands, and these Reserve areas will be within, I think, the next
year or two, totally abandoned.
The PRESIDENT:In the areas to which they are being moved, have
they previously been occupied by the White sector of the community?
Prof. LOGAN:Yes, they were previously occupied by White karakul
sheep farmers.
The PRESIDENT:And I think you spoke about that before in your
testimony.
Prof.LOGAN:That is correct.
The PRESIDENT:The other question I want to ask you is in relation
to the \Vhite sector, southern area, excluding the Reserve areas. Can you
describe the general conditions in which the non-White people live in
that area? First away from the farms, in the urban area of Windhoek
for example.
Prof. LOGAN:Do vou want the ...
The PRESIDENT:The general conditions, I do not want the details.
The general conditions-are they poor, good or indifferent-that is what
I want to know.
Prof. LOGAN:In 1956 they werc deplorable; in 1965 they are moder
ately good.
The PRESIDENT:\Vell, you can just develop it a little bit more, would
you?
Prof. LOGAN:Yes, they have had a shift from the self-made, very
wretched housing, from the very poor sanitation, from the lack of con
veniently placed water supplies, etc., to well-built substantial housing,
good sanitation conditions, water brought directly to the home and great
improvement in matters of transportation to and from work, etc., within
the Native townships and this is true, not just in Windhoek but in each
of the other urban communities throughout ail of the Territory.
The PRESIDENT:And generally, the condition of the non-White people
in the urban area, in other words, do they appcar to be dcpressed or
otherwise?
Prof.LOGAN:No, they are not depressed. They are dressing welJ, they
are eating well, they have improved very greatly in the nine years that
I have known the area. There is considerable cash resulting in consid
erable purchase of a largenumber of necessary and luxury items by thcm.
For example, cameras, cigarettes and soft drinks and ice-cream which
do not corne within the necessity category, therc arc large purchases of
these today by these people, ail of the time, in the city of Windhoek
and in the other communities like that in the Territorv.
The PRESIDENT:Wîll you give us the picture as to conditions of living
on the farms?
Prof. LOGAN:The conditions on the farms are quite variable, depend
ing on the individual farmer, the European farmer. In some cases, he
bas developed nice, quite presentable bouses for them to live in, usually
four rooms, cernent blacks structures with windows and doors; these are
sometimes occupied by the Native, or sometimes he prefers to build his
own building alongside the old pondok-style building, as it is referred
to,made of sheet-metaI, etc. and to live in this,it perhaps is better aer
ated and this is perhaps part of the reason. Others merely provide build
ing material and the Natives construct their own dwellings. The dwellings
are adequate under a mild climate such as exists. WITNESSES AND EXPERTS 505
The food, the nutrition, is perfectly adequate. It is monotonous (I
would not want to eat it), but it produces a perfectly healthy condition
and itis what they desire ta eat in most cases. They will refuse articles
of food that I would eat, very frequently, their tastes are different and
this explains perhaps, the monotony of the diet. But the diet is thoroughly
adequate. Furthermore, they are receiving a cash wage which is allowing
them gradually ta advance in material belongings.
The PRESIDENT:That is all I wanted to ask you, Professor Logan.
l\Ir. ;1ller, do you desire to re-examine?
Mr. MULLER:Mr. President, no. No questions in re-examination.
The PRESIDENT: I think Professor Logan can now be released from
further attendance.
Mr. ?IIULLER:As the Court pleases.
Prof. LOGAN: I would like to thank you for your indulgence.
The PRESIDENT:Mr. Muller, will you ...
~1r. lHunER: Mr. de Villiers will present the next witness who will
be l\lr. Cillie.
The PRESIDENT:~fr. de Villiers.
~Ir. DE VILLIERS:Mr. President, in our letter of 6 July, we notifted
the Applicants that l\lr. Cillie's evidence, "will also relate to issues arising
under Applicants' Submissions 3 and 4. 11r. Cillie is a leading South
African journalist of 30 years' standing and editor of Die Burger for the
last 11 years. Die Burger supports the policies of the present Government
regarding separate development of the various population groups in
South Africa and South West Africa, and has played a leading part in
shapiug and propagating it." The letter originally stated "drafting" but
that was a typing errer which has becn correctcd, Mr. President-leading
part in shaping and propagating it. "As political observer and analyst,
l\Ir. Cillie will testify on the political aspects and implication of the poli
cics of differentiation applied in South Africa and South West Africa,
and of possible alternatives thereto, with special regard to the feasibility
or otherwise of application in practice of a suggested norm and/or stan
dards of a content as contended for by the Applicants."
i\IrPresident, 1 have indicated to the Registras and also to my learned
friends, that i\lr. Cillie may, in the course of his testimony, refer to the
political map of Africa at the back of Book Iof our Counter-1\Iemorial,
II, so that it may be available to the Court if the Court might wish to
refer ta it. I would suggest that i\Ir.Cillic make both the declarations
provided for in the Rules.
The PRESIDENT:Is the affirmation before the witness? Would you make
bath affirmations, l\Ir. Cillie.
l\Ir. CILLIE: In my capacity as a witness I solemnly declare upon my
honour and conscience that I will spcak the truth, the whole truth and
nothing but the truth. In my capacitv as an expert I solemnly declare
upon my honour and conscience that rriystatements will be in accordance
with mv sincere beliefs.
The !)RESIDENT:Mr. de Villiers.
i\lrDE VILLIERS:Mr. Cillie, you were born at Stellenbosch?
?vlrCinu:: Yes.
i\1r.DE VILLIERS:Stellenbosch is a university town near to Cape Town?
i\fr. CILLIE: Yes, and the second oldest town in South Africa.
l\IrDE VILLIERS:What was your descent?
}Ir. CILLIE: Mr. President, I am a South African of mixed Huguenot506 SOUTH WEST AFRICA
and Dutch descent. You can see that from my name. It is a corrupt
spelling of the original French Ceillier, and that means that my ancestry
in South Africa goes back to the second half of the seventeenth cen
tury.
Mr. DEVILLIERS:Your father was a professorat the University?
Mr. CILLIE:Yes, my father was a Professor of Education at Stellen
bosch University. He was Dean of the Faculty of Education and a one
time Rector of Stellenbosch University. He was regarded as a sort of
eider statesman in the educational field in South Africa, especially on
the Afrikaans side.
Mr. DEVILLIERS:You went to school at Stellenbosch?
Mr. CrLLIE: I went to school at Stellenbosch and went on to the Uni
versity and took a degree, rather surprisingly, in mathematics and phys
ics, in 1935.
Mr. DEVILLIERS:And what did you do after that?
Mr. ÛLLIE: I joined the editorial staff of Die Burger immediately
afterwards and I have been with the paper ever since. That means it is
going on for 30 years now.
The PRESIDENT:I did not catch that, how many years?
Mr. ÛLLIE: Going on for 30 years, Mr. President.
Mr. DE VILLIERS:Did you become chief sub-editor, also known in
some organizations as night editor, in 1939?
Mr. CILLIE: Yes, during the war years I was chief sub until the year
1944.
Mr. DEVILLIERS:What did your duties, in that capacity, involve?
Mr. CILLIE: You had to put the whole paper together at night and
you had, in those times, to handle all the war news; we are a morning
paper, so that we had to do all this work at night, putting the paper
together.
Mr. DE VILLIERS:You say you were there almost right throughout
the war? Did you become Foreign Editor of Die Burger in 1944?
Mr. CILLIE: Yes, I was appointed Foreign Editor in 1944 and I held
that position for about four years until 1948.
Mr. DE VILLIERS'W . hat did your tasks as Foreign Editor involve?
Mr. CrLLIE: Handling the foreign news and commenting on inter
national affairs in general. That was during the immediate post-war
period.
Mr. DE VILLIERS:And in 1948, what did you then become?
Mr. CILLIE:I was appointed Assistant Editor in 1948 and I held that
position until 1954, when I became Editor-in-Chief.
Mr. DE VILLIERS:Mr. Cillie, in order to give the Court an indication
of the extent to which your tasks at Die Burger have qualified you for
the evidence you are about to give, will you explain to the Court, briefly,
what Die Burger is and generally what role it plays in South African
politica11ife.
Mr. CILLIE:Mr. President, Die Burger is quite an institution in South
Africa. It was started in 1915; that was at the time when the Nationalist
Party, the present Government party of South Africa, was founded.
The first editor was Dr. D. F. Malan. He held the position of Editor
during the formative years of the Paper, together with the position of
Cape leader of the Nationalist Party. He was the man who later on be
came Prime Minister. He first became Cabinet Minister in 1924 and in
1948 he became Prime Minister. Die Burger was in at the birth of the WITNESSES AND EXPERTS 507
Nationalist Party and it has always had the closest relationship with the
leading Nationalist Party circles. Dr. Malan, in a sense, used Die Burger
to clarify his own thinking on politics, he worked out his ideas in advance.
Die Burger was, from the beginning, quite frankly an opinion forming
paper, not in the sense of a popular paper, expressing existing public
opinion, but also looking ahead and forming public opinion, trying to
see ahead what public opinion should be, rather than what it was.
\Ve have, right through our existence, had that approach to politics
in South Africa. We put emphasis on thinking ahead, trying to take the
lead in certain matters, also acting as a forum for all the various Afrikaner
groups, especially the Afrikaner groups, because race relations in South
Africa is not merely a political matter, it involves the churches, it
involves the universities, the intellectual groupings and organizations,
organizations like SABRA, the South African Bureau of Racial Affairs.
We have acted as a forum and as a clearing-bouse for ideas in general.
Mr. DE VILLIERS: I think you may be going a little bit fast for the
interpreters, will you try to keep that in mind?
Mr. ÛLLIE: I wilL
Mr. DE VILLIERS:How would you generally describe the phase of
South African politics at the stage when you joined Die Burger?
Mr. C1LL1E:I joined Die Burger in 1935. That was during what we
call in South Africa the Fusion period, the time when Generals Herzog
and Smuts, who had been the two main adversaries in South African
politics up to that time, when they came together to form the so-called
Fusion Government. We were an opposition paper then, supporting at
that time a very small Nationalist Party, which had been broken down
by this Fusion process to, I think, a representation of about 19 mernbers
in the House of Assernbly, which is our Second Chamber. I lived through
the eventual split between these two Generals on the war issue in 1939.
Those were the days when the Nationalist Party was really developing
its thinking and its later programmes as an opposition party. I think the
basic preparatory thinking for the whole apartheid policy or the whole
policy ofseparate development, was done during those years, from 1933-
that was two years before I joined Die Burger-up to 1948. In those 15
years the Nationalist Party grew from this srnall opposition party to the
governing party. It took power in 1948. I lived through that whole period
and Isaw the formulation of policy, the discussions that led to the even
tual final enunciations of these policies. And, of course, when the party
took over power, as happens in these cases, the perspective broadened,
the thinking did not stop. Under the burden of responsibility, they had
to adapt certain of their policies, they had to think a bit further than
they did in opposition, and we tried, on Die Burger, to play also there,
a constructive role.
That more or less covers the period up to the tirne when I took over
in 1954.
Mr. DE VILLIERS:And since that tirne?
Mr. CILLm: \Vell, we have tried to be true to that tradition of playing
this constructive role in South African thinking, not only as far as the
Nationalist Party is concerned, but the whole South African public.
We gave great emphasis to thinking ahead and the formulation of policy.
\Ve also encouraged public discussion on points of difference. We never
tried to dampen down any discussion that could be in any sense con
structive.508 SOUTH WEST AFRICA
Mr. DE VILLIERS:Did your views, or the views of Die Burger, at all
times agree with those of the Nationalist Party Government?
Mr. CILLIE: I hope not, Mr. President. By the very nature of a journal
ist's position differences in emphasis and differences about priorities are
bound to arise, and such differences have indeed arisen from time to
tune. Our relationship with the Party has sometimes been described as
a sort of marriage, in which the partners never really think in terms of
divorce but do think, sometimes, in terms of murder.
In that sense, of course, we have differed on applications, on adminis
tration, and so on. I don't think we have ever differed to an extent that
would have given our persecutors any comfort, because the differences
were always directed to the better implementation, the better and wiser
implementation of the basic policy, to which we are utterly committed.
We did help in building up this policy of separate development, and we
have certainly no idea of ever turning against it. We are totally com
mitted to the basic principles of this policy.
Mr. DEVILLIERS:Do you consider that Die Burger has taken a leading
part in the shaping of the policy?
Mr. CILLIE: Oh yes, I do think so. I do hope so. ln fact, I am quite
sure that we did often scout ahead and skirmish ahead in these matters.
We have a horror, Mr. President, of any sort of stagnation or any sort
of complacency in public life, also in these matters, and we do try to
scout ahead and skitmish ahead and always to play this key role, which
I think we have played up to now.
Mr. DE VILLIERS: Now, could you tell the Court whether you, as
Editor of Die Bitrger, corne into contact with foreign opinion, foreign
criticism of South African policies and so on?
Mr. C!LLIE: Indeed Ido, Mr. President. It is quite a preoccupation of
mine. In my position you have to have these contacts with people.
People corne to you from the outside world; you yourself go on travels
and you meet these criticisms in these places all the time. I think it is
not always realized that we are a very open society, that we have in
South Africa certainly the freest and most vigorous newspaper Press in
the whole of Africa. Yon have to meet arguments from the opposition
all the time; you have to meet foreign criticism and foreign questions,
and I have had my share of that. I have also written for overseas papers
at their request; I have written for sections of the British Press and
sections of the Press in this country. I have also taken part in debates
with critics of the South African policy. So I have been in very close
touch with all these deve1opments a11these years.
Mr. DEVILLIERS:Have you paid any visits overseas yoursclf, in the
course of your duties?
Mr. CrLLIE: Yes, several. I paid a visit to the United Nations and I
took part in Chatham House Conference in 1954 in Lahore, where the
whole theme was the multi-racial Commonwealth. I was a member of
the South African delegation there and, of course, at that time wc had
to meet the beginning of what later became a storm of criticism of South
Africa's racial policies.
Mr. DE VILLIERS:Mr. Cillie, I should lîke you to take for granted that
other witnesses like Dr. Eiselen, Professor Bruwer and Professor Logan
have given the basic facts to the Court about different population groups
in South Africa and in South West Africa-<lifferences between the WITNESSES AND EXPERTS
509
groups and so forth-so that you need not deal with the factual field
again, apart from any comment you want to base upon that.
I should like you to concentrate on the political aspects and implica
tions of the differences between the various groups-on the forces behind
those political aspects in their historical setting, in their present context
and as a matter of future prospect. And I should like to begin by asking
you, what do you consider as the main determinant of the policies of
differentiation as now applied in South Africa and in South West Africa?
Mr. CILLIE: Mr. President, apart from the realities of the South
African situation itself, I would say that the main force that shaped
these policies has been the experience and the history of the Afrikaner
people in South Africa. By the term "Afrikaner" I mean the Afrikaans
speaking population of Western European descent. Their language has
become quite a distinctive)anguage. It evolved from the Dutch. \Ve can
still understand each other-at least 90 per cent.-and the African
traditions of these Afrikaans people go right back to the beginning of
the European scttlement in 1652. There were various accretions to this
central Dutch core-French and German and British, mainly. My own
name, as I mentioned, is French. This original settler population devel
oped, as time went by, a sense of its own identity. This apparently
happened at quite an early stage, at least among some of the settlers.
Although they were ruled from Rolland, the great distance and thcir
own distinctive circumstances and interests soon led to the emergence
of what I would call a sub-national personality.
As early as the beginning of the eighteenth century, according to the
records, some of them were calling themselves Afrikaners, meaning
"people of Africa", and they were, even at that time, asserting rights
and freedoms against what they regarded as tyrannous and arbitrary
acts of the Dutch authorities-more specifically, the Dutch East India
Company, because the whole settlement was a commercial undertaking
of that Company. In the perspective of today it was the beginnings of
what people would nowadays call anti-colonialism or nationalism, H you
like. In fact, a distinct people of western European descent, with its own
way of life and speaking a more and more divergent form of Dutch, was
then being born in Africa.
lts standards and its customs, deriving from Europe, were too different
from those of the other peoples of the sub-continent for more than what
one would call marginal mixing. These other peoples, the Bushmen and
the Hottentots in the west and the varions migrant Bantu tribes that
werc then moving clown the eastern sicle of the sub-continent, had tribal
and national identities of their own.
Mr. DE VrLLIERS:Was there ever any conscious attempt at welding
all these different units into one people, in the modern sense of the term?
1\1.r.CrLLIE:No, that was quite unthinkable. Mr. President, these people
were too difierent altogether for any idea of wclding them together into
one nation in those days.
Mr. DE VILLIERS:So far you have spoken in general as from the time
of the first Dutch settlement. Do you attach any importance to the
British take-over of the Cape and its effect?
Mr. CrLLIE: Indeed I do, Mr. President. I think that it was a verv
decisive cvent indeed in the cvolution of this new White nation of Africa
-this British take-over during the Napoleonic Wars. The second and
final British occupation took place in 1806. It eut off the Cape settlers5ro SOUTH WEST AFRICA
from their Dutch homeland physically and finally and left them to their
own resources, either to preserve their own emerging identity as a separate
people, or to be assimilated to the British way of life. I think it can be
described very simply as a choice between integration or assimilation
with the British world as it then was, on the one hand, and, on the other
hand, their own separate way as a distinctpeople of Africa. ln a way I
think they chose both, in the sense that the British impact on the
Afrikaner people was quite considerable. They took over many customs
and attitudes of life which I would describe as distinctly British.
But more influentially and lastingly this Boer people, this Afrikaner
people, chose the way of anti-imperialism or anti-colonialism or national
ism, which all corne to the same thing, namely the building up of a
separate national identity, involving the refusai to be absorbed into a
greater and, to them, largely alien whole-in short, what in the political
language of today would be called "the way of separate national develop
ment". That was their choice, as far as the majority were concerned.
l\1r.DEVILLIERS:How, more particularly, was that choice manifested?
Mr. CrLLIE:The Afrikaners, after the British occupation, asserted this
will to separate freedom in various ways, but mainly by trying to get
away physically from British rule, and by creating their own republics
and forms of government to the north of the Cape. It was possible in
those days, because South Africa is a very large country. The distance
between Cape Town and Johannesburg, is, I think about the distance
between this city and l\foscow, and parts of the interior then were quite
empty of people or very thinly occupied by migrant and warring and
sometimes settled Bantu tribes.
In this way various Afrikaner states came into being, some of them
ephemeral and some more lasting. But it was the age of expanding
Western imperialism and what has been unkindly called "the scramble
for Africa", and British power at that time was gradually extending
itself northwards from the Cape over the whole of Southern Africa.
In the end there came the Anglo-Boer \.Var at the turn of the century,
in which the Free State and Transvaal Republics were overwhelmed
after three years of struggle. We regard that as actually the first anti
colonial war in Africa of this anti-colonial century. lt was a war, from
the Boer point of view, from the Afrikaner point of view, against im
perialism, against foreign domination and, positively, for national free
dom and separate national development. Although it was lost on the
battlefield it was, to a large extent, won in the minds and the hearts of
people, including the British people.
Eight years afterwards Parliament at Westminster granted complete
internal self-rule, not only to the two vanquished republics, but to the
whole of South Africa, apart from the protectoratcs.A State wascreated
a new State, the Union of South Africa-consisting of four former British
colonies-the two Republics, Natal and the Cape-and they in timc at
tained complete indcpendence, first as a member of the Commonwealth
and later outside the Commonwealth as the Republic of South Africa.
It all happened rather slowly by prescnt-day standards, partly because
the times, I think, were more leisurely, and partly because of the presence
in South Africa of a fairly big minority of British extraction who quite
naturally applied the brakes to the Afrikaner-led drive for independence
and republicanism. For very many years this was actually the main pre
occupation of South African politics-this building of a bicultural nation WITNESSES ANDEXPERTS sn
between two very tough strains, Western European strains, both western
in outlook, but speaking different languages and maintaining their own
institutions in many spheres of life, as thcy do up to this day. I do think
that, considering the weight of a rather bitter past and the vastness of
the human problems involved and the depths of the mutual fears, we
did rather well in this respect in the time and with the resources at our
disposa!.
Mr. DE VILLIERS: What respect is it you mean particularly?
Mr. CiLLlE: I think that we did succeed to this point, that today En
glish- and Afrikaans-speaking South Africans of European descent are
gradually becoming integrated into a single South African nation on the
basis of mutual respect for each other's institutions and traditions. I do
not think it is an accident that this is happening under the political
leadership of the Nationalist Afrikaners, who, after all, do embody the
outlook and the tradition of a distinctive South African nationhood.
So we now have an established White African nation that bas won its
freedom in the hard way, and in an often desperately slow way, and a
nation, I think, who must in no way be confused with European settler
minorities elsewhere.
Mr. DE VILLIERS: What do you consider to be the significance of that
distinction?
Mr. CILLIE: The Afrikaners, by being eut off from their original Dutch
homeland, ceased to be colonials-colons-more than a century and a
half ago, and those European people who came later during the time of
British rule are now largely falling in with that view, the basic view that
we are there to stay as a White African nation, and in the second place
that we are there to stay with full control of our destiny as a nation. By
that I mean that colonial minorities tend to hold on as long as possible,
and then they abdicate, or they depart under the usual anti-colonial
pressures; but a nation cannot do that-by its very nature it cannot do
that; a nation has to defend its freedom and its right to self-determination
to the very last and, even if beaten down by superior force, it has this
inner compulsion to start its struggle for freedom all over a.gain. That,
Mr. President, as I sce it, is the sort of mentality people from outside
are up against when dealing with the White Africans of South Africa.
I stress the point because the dangers of misunderstandings and mis
calculations in thesc matters are very great, and I think very real.
The PRESIDENT:Mr. de Villiers, when are we going to be connected
up with South West Africa?
Mr. DE VILLIERS: I am coming to that immediately, l\frPresident.
The PRESIDENT:Weil, please do.
Mr. Crnm: In many quarters I think we are being, quite wrongly,
grouped with the so-called colonialists, the relies of the age of imperialism
that have to abdicate, or be forced to do so---but, in fact, the \Vhite
African nation is largely a child of anti-imperialism and anti-colonialism,
with all the inner strength that thatbackground implies. We regard our
sclves as one of the free nations of the earth, and we feel ourselves better
equipped than most for the role on account of a longer and more thorough
apprenticeship.
Mr. GROSS:Mr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS:I should like to reservc a gencral objection to this witness
propagating a doctrine in this court-room rather than testifying to it5IZ SOUTH WEST AFRICA
which, in my respectful submission, is what he is doing in these last few
minutes, sir.
The PRESIDENT: The last few minutes have been something which
seem to me to be very unconnected with the issue which has been placed
before the Court, Mr. de Villiers. You said you were going to corne to
South West Africa-well, please do corne to South West Africa.
).frDEVILLIERS:Yes, Mr. President, the next question will bring us
there, I think.
The PRESIDENT:Please put it.
Mr. DEVILLIERS:l\:1r.Cillie, I want to ask you whether you think that
the factors you have just stressed are of importance as regards policies
concerning relations between the various population groups, White and
non-White, in Southern Africa-in South Africa and in South West
Africa?
Mr. CrLLIE: Of course they are-I think they are fundamental. If you
subscribe to a credo of nationalism or anti-colonialism, you cannot stop
short at championing the freedoms and the rights of those whom you
regard as your own group. Within the geographical borders of South
Africa, as it was established in 19ro, and within the geographical borders
of South West Africa, we have this great variety of non-White peoples
towards whom we had and we have responsibilities very akin to those
of the \Vestern European colonial powers towards their colonial peoples.
i\frDE VILLIERS:How have these responsibilities been approached in
the context of South Africa and South West Africa?
1fr.CrLLIE:Well, as happened elsewhere, our relationships with these
peoples became more urgent as the tide of anti-colon1alism gathered
force during this century. As their aspirations and ambitions grew, we,
the ruling White Africans in these territories, in South Africa as well as
South \Vest Africa, had to see toit that our trusteeship did not degenerate
into oppression. There were two obvious lines of thinking in this matter
which could be followed, and both have their adherents in South African
polltics. The one way is to regard the whole of the South African popula
tion, or the whole of the South West African population, as potentially
one nation, and to try to integrate them all-all these vastly disparate
elements-into one all-embracing social and political structure. People
of my way of thinking rcject this course completcly, and I think this
rejection has gathered force in South African politics as the position
developed during the last 10-20 years. Thesc solutions do open up a
prospect of the White Africans in thcse two countries being politically
overwhelmed by the sheer weight of non-White numbers, and the over
whelming involves not only the White Africans, it involves the smaller
non-\Vhite groups. I think wc fecI about this whole idea of integrating
the whole of the South African and the South West African population
into one single nation more or less as the British would have felt about
a plan, quite hypothetical, for granting India its freedom, not as a
separate grouping of peoples in a separate country, but by integrating
India's millions into the British social and political structure-in
short, by trying to make one nation out of the 40-50 million Britons and
the 400-500 million Indians and Pakistanis. Obviously one can only at
tempt solutions like these when dealing with fairly small minorities who
are in addition not too divergent from the main group. \Vhen dealing
with majorities, or collections of minorities that could be manipulated
as majorities, evcn the beginnings of such an integration policy raise WITNESSESANDEXPERTS 513
such fears among the ruling people that the policy itself never gets off
the ground.
Mr. DE VILLIERS: Can you indicate whether the one-nation concept,
with or without qualifications, has been advocated in politics in South
Africa and in South West Africa?
Mr. Crnrn: It has been done very vehemently, both in South West
Africa and in South Africa. It has its full-blooded supporters in South
African public life, some of them very prominent and intelligent people;
there are also groups who do not go the whole hog, who do not tell the
whole story and who do not chart out the whole course-one could call
them people who advocate a sort of middle-of-the-way policy. \Ve have,
for instance, a party who advocates a general but strictly qualified fran
chise under which people would attain political rights on the basis of
their level of civilization, with no regard to their group affiliations.
These and even more watered-down middle-of-the-road solutions are
being offered continually to the South African electorate by South
Africans.
The PRESIDENT:Mr. de Villiers, I would be very glad if you would
indicate to the Court, having regard to the detail and the nature of the
witness's evidence so far, to what particular issue in the case you say
it is relevant.
Mr. DEVILLIERS:It is relevant, Mr. President, to the issue of a conten
tion as \Véunderstand it on the part of the Applicants of the existence
of a norm of non-discrimination or non-separation in its particular appli
cation to the political sphere.
The PRESIDENT:Well, in what way is it relevant?
Mr. DE VILLIERS: The political sphere in Southern Africa, the norm
and the standards of the same context. We wish to indicate by this evi
dence, as I put to the Court before, that the application of such a norm
in the political sphere with or without qualifications in Southern Africa,
including in that South Africa, just as any other country in the world
may have been relevant, is unviable and quite impossible, that it is not
being put into practice in those parts of the world, and if it should be
put into practice it would lcad to chaos. I understood my learned friend's
case to be-he put it specifically that way in his Reply which is before
the Court, at IV, page 441, which I have quoted to the Court before,
and in subsequent elaboration of his case in Oral Proceedings before this
Court-that in the political sphere it means the application of norms
and standards which rcquire in South West Africa the application of a
system of universal adult franchise within one single political unit. The
purpose of this evidence is to show how completely impossible that whole
concept is when regard is to be had to the well-being and progress of
the peoples concemed.
The PRESIDENT: At the moment I do not see that all this detailed
evidence is necessary, but the matter will be considered between now
and 3 o'clock. Did you want to say something, l\fr. Gross, before the
Court adjourns?
Mr. GROSS:If I might rcserve a moment, if it pleases the honourable
President, to respond to the comments of the counsel for the Respondent,
but I ,vould be prepared to do so on resumption, subject to your pleasure,
Sir.
The PRESIDENT:The hearing is resumed. Mr. Gross, I understand you
desire to address the Court? SOUTH WEST AFRICA
Mr. GROSS: Yes, if you please, Mr. President. The Applicants would
respectfully request the opportunty to indicate points of procedure with
out trenching on the merits, in the context of the present cvidentiary
situation and of the remarks of the Respondent's counsel in his inter
ventions, sir.
In four points, Mr. President, these are, briefly stated:
(r) As the honourable President will be aware, the Appiicants respect
fully have maintained a general objection to any and to all evidence,
proffered or led by Respondent, on a foundation such as that laid by the
Respondent with respect to this witness. The Applicants refer specifically
to the formulation that the witness will testify, and I quote from the
letter of the agent of the Respondent, dated 6 July 19651, as follows:
"Witness will testify with regard to the feasibility or otherwise
of application in practice of a suggested nonn and/or standards of
a content as contended for by Applicants."
The Applicants' general objection to this foundation is reaffirmed on
grounds previously stated, sir.
(2) The Respondent's counsel in his last intervention made reference
to the Applicants' Reply, IV, page 44r. The Applicants would respect
fully draw to the Court's attention the language employed in the Reply
at that page, the context in which it was employed, and the United Na
tions judgments to which the statements on that page are footnoted.
(3) The witness has been qualified, and has taken declaration, as an
expert in the field of journalism and his opinions, in the Applicants' re
spectful submission, should be confined to that fieldin hiscapaci ty asexpert.
(4) In respect of evidence offered or given by the witness as a witness
rather than as an expert, it is respectfully submitted that the evidence
thus far adduced is immaterial, and at best of tenuous relevance. The
Applicants respectfully suggest that evidence regarding, and again I quote
from the letter of 6 July 1965 of the agent for the Respondent to the
Applicants: "political aspects and implications of the policies of differen
tiation applied in South Africa and South West Africa" is embodied in
extenso in the voluminous written pleadings filed by the Respondent. If
Respondent desires to cumulate or amplify such evidence the Applicants
would have no objections, subject to the wishes of the honourable Court,
to the production of supplementary documents in terms of Article 48 of
the Rules of Court, reserving the Applicants' right to comment upon
such documents, subject to permission granted by the honourable Presi
dent. Thank you, sir.
The PRESIDENT:\Vell, Mr. Gross, with regard to the last point that
you have raised, the Court has already ruled that the Respondent has
the right to call oral evidence and unless the Respondent is prepared to
accept the stipulation which you have indicated, the matter must rest
there. There isnocapacityof the Court, unless such evidenceis irrclevant or
otherwise inadmissible, to exclude it. That is the right of the Respondent.
So far as your general objection is concerned that is noted, and of
course it will be, as I have indicated throughout, for the Court in its
final deliberation to determine to what extent any evidence which has
been admitted, subject to objection, is relevant to the issues v,rhich the
Court will decide, and what weight will be placed upon it.
Mr. GRoss: Yes, sir.
1See Vol. XJI, Part IV. WITNESSES AND EXPERTS
SIS
The PRESIDENT: So far as the question of the expert position of the
witness is concerned, the Court does not think that that is limited to his
expertise as a journalist. Experts may qualify in other fields than that
which is their normal qualification, if they reveal a special knowledge
which is far in excess of that which is normally held by a Iay person and,
where a witness so qualifies, it is a question of the weight to be accorded
to his opinion, not a question of the admissibility of the expert view
which is expressed. That again is a matter which the Court will consider
in its dcliberations.
So far as your second objection is concerned I am afraid I have not
the document before me but that will be noted and regard will be paid
to it by the Court.
The que:;tion which was raised by me with Mr. de Villiers was the
extent to which certain evidence of the witness is relevant to any issue
in the case. It seems, Mr. de Villiers, that the evidence is fairly remote
from the issue-the question that the Courtis concerned with is whether
or not the Respondent has discharged its obligation under the terms of
the Mandate, paragraph 2 of Article 2. In other words has it promoted
to the utmost within the meaning of those words: "the material and
moral well-being and the social progress of the people of South West
Africa". One of the two grounds which were indicated by you this morning,
if I didn't misunderstand them, was that the policy of integration or
non-separation if applied in South West Africa would not be viable, and
not being viable it would accordingly not be for the social, moral, or
material wefare of the people. But so much of the evidence given by
the witness has been directed to South Africa itself, and whilst the policy
of apartheid is pursued in South Africa as well as in South West Africa,
it does not follow that because a policy is or is not viable in South Africa
that it is or is not viable in South West Africa. The circumstances are
somewhat different. You have a very substantial number of White people
in South Africa and only a small proportion of the total population in
South West Africa happen to be White. I am sure you will do your utmost
to bring the witness to the issues in relation to South West Africa. So
far as the second question of evidence of Statc practice in relation to
alleged international custom is concerned, it is difficult at the moment
to see why it is necessary or relevant to adduce evidence as to State
practice in South Africa, since it is not disputed that that practice does
not accord with, but is contrary to, the custom which the Applicants
have relied upon undcr Article 38, paragraph (b), of the Statute. All
that one need say at the moment is that a great deal of the evidence
which has been given by the witness, whilst itexplains the policy of
apartheid, is not yet very closely at all linked up with South West Africa.
I think that the Court must leave it to counsel to bring the evidence
as quickly as possible to the issues which the Court has to deal with.
Mr. DE VILLIERS: Thank you very much, l\fr. President. May I offer
a very brief word in explanation? I think it may help in the further
presentation of the evidence. I may say with respect that I am fully
in agreement with the proposition that the Courtis concerned with South
West Africa and not with South Africa, and I would be the last one to
try and cnlarge the issues in the case so as to comprise a full survey of
whatever policies or practices or laws may be applied in South Africa.
But, l\fr.President, in the context of deciding what is best in South \Vest
Africa, particularly the political implications of what is urged upon us5r6 SOUTH WEST AFRICA
by the statement of the norm and/or the standards to be applied, as
advanced by the Applicants, we find it impossible to isolate the case of
South ,vest Africa from Southern Africa generally. There are certain im
plications which run over the border lines~not only into South Africa
but also into other parts of Southern Africa. Itis not our idea to enlarge
unduly upon those as regards matters of detail, but we thought that it
would be relevant to draw the Court's attention to that, and the witness
intends to do so, not only because of implications in South Africa itself
but in Southern Africa in general, in the two directions, (r) as regards
the negative implications of the application of a norm and/or standards
as contended for in the political sphere and (2) the positive aspects and
positive prospects attached to proceeding upon the basis of differentiation
as the South African Government is doing at the moment. I may say
that the witness has given almost a third of his evidence-in-chief. We
shall not take an undue time aboutit, I should say about another hour
should sec the evidencc-in-chief through-and this is the only context
in which those matters outside of South West Africa are brought into
the picture at all.
The PRESIDENT: The Court will, of course, permit you, on your under
taking to connect it up with South West Africa, to proceed, Mr. de Villiers,
and the actual relevance of it and the Court's determination thereon will
be a matter for subsequent deliberation by it.
Mr. DE VILLIERS: Certainly, Mr. President. Mr. Cillie, you were dealing
with the possibility of applying so-called middle-of-the-road policies
policies of moderation, moderating somewhere between an cxtreme of
differentiation and one of in tegration and as to their actual advocacy
in the Southern African scene. I don't think you had completed what
you wanted to say upon that subject.
Mr. CILLIE: Yes, I was saying, Mr. President, that the idea of what
Icall a one-nation concept, the idea of bundling a lot of divergent pcoples
together, and trying to form one nation out of them, both in South West
Africa and in South Africa, has its very vehement propagandists in South
Africa, some of them very prorninent in public lifeI was saying also that
we have a party there which advocates for both South Africa and South
West Africa the idea of a qualified franchise under which people \Vould
attain political rights on a basis of their level of civilization and with no
regard to their group affiliations. These policies are propagatecl in South
Africa, they are freely propagated in the Press and through political
parties and they are offered continually to the South West Africans as
well as to the South Africans. They get full play but they have in actual
fact made no headway at all during the last I7 years since r948, ever
since the Nationalist Administration came to power. The advocates of
these policies have consistently gone back, not only in the number of
their parliamentary scats but also in the aggregate vote, and that goes
equally for South West Africa, where they have gone back even further
than in South Africa itselt The reason, I think, is fairly simple, because
every so-called middle of the road policy, every policy that suggests giving
]imited rights to these various groups inside one political structure, does
raise fears immediately that the end of this policy is a position of one
man, one vote, and that once you start, there is no logical, and indeed
no practical stopping place short of universal suffrage.
Mr. DE VILLIER:s: Now, Mr. Cillie, could you then indicate what you
regard as the alternative to a policy either of building one intergratcd WITNESSES AND EXPERTS 5r7
nation out of all the constituent elements, or of middle-oHhe-road pol
icies. What do you regard as the alternative?
Mr. CILLIE: I think we have chosen in South Africa, through our polit
ical processes, what I regard as the only fondamental alternative to this
impossible principle of a one-nation concept in either ofhe two territories.
And I do not think that fondamental concept is in conflict with fonda
mental Western principles. Just as the Western European imperial powers
decolonized, not by integrating their various colonial peoples with the
ruling people back home, but by separation, by letting them advancc
separately through their own separate institution, we chose the way of
separate development-trying to build up these vastly disparate non
White peoples into self-respecting and self-governing organic entities.
Mr. DE VILLIERS: Do you think this comparison between the cases of
relationships within South Africa and South West Africa and the de
colonization process by the Western powers is really a valid one?
Mr. ÛLLIE: Yes. We have been told that this is not valid, because,
whereas the Western powers had all their colonial peoples in separate,
distant lands which could in time develop into separate independent
states, South Africa has her under-developed non-White peoples within
her borders and within the borders of South West Africain two geograph
ical units. Now, our answer to that is, firstly, that, basic psychological
facts about the relations between groups do not change by virtue of a
mere change in circumstances. To take a parallel, the British people's
aversion to being outvoted by an overwhelming majority of Indians,
would certainly have been increased rather than decreased if thcy had
had to share the same country with an Indian majority. And, in the
second place, there is nothing immutable about national borders or polit
ical institutions,especially if one looks at the way many of them came
into being. We have, in fact, in pursuance of this policy of separate
development, started tentatively to redraw the map of South Africa and
South West Africa. We are only at the very beginning of the proccss
of demarcating more clearly the ancestral and future lands of the various
Ban tu peoples-that is what the political section of the Odendaal report
is about-and these areas are to form the basis of Bantu provinces and
Bantu states with their own self-governing institutions.
Mr. DE VILLIERS: \~/hat is the object of crcating these various separate
Ban tu and non-White political units?
Mr. CILLIE: It is the way we have chosen to meet the urge of self
determination and freedom which is a universal and natural urge, as it
emerges arnong the non-White peoples of South Africa and South \Vest
Africa. We are giving them increasing rights and responsibilities in
running their own affairs. We are, in effect, doing inside the geographical
frontiersof Southern Africa what the Western European imperial powers
did, and are doing, about their own colonial peoples: granting them
their own scparate freedoms without jeopardizing the existing freedom
of the-shall we call it the metropolitan people, the ruling people.
Mr. DE VILLIERS: Do you think that in the South African context
and in South West Africa there is a greater risk involved in this process?
Mr. Crnm: Oh yes, very definitely. It is a far more risky process
for us, this granting of separate freedoms, for the simple reason that we
shall have to live very closely with what we are doing and what we are
going to do. By the very nature of our position as a White nation of
Africa, we cannot pull out and go back to some safe metropolitan haven.518 SOUTH WEST AFRICA
We have to sit it out, we have to put these Southern African non-White
peoples on their feet and we hope to lead them, as best we can, through
their adolescence and to maturity; and then we have to recognize the
new personalities that have grown up ncxt tous, we have to co-operate
with them for all future time, and for the common good, because there
is nothing static about this concept of separate development. It is the
principle by which we are trying to meet the challenge of change, and
as I have tried to show it is nothing alien, as far as we can see. It is
rooted in Western European principles of freedom, as we understand
them.
Mr. DEVILLIERS:Mr. Cillie, you have now dealt with the alternatives
of the process of integration, trying to make one nation, on the one
hand, and the process of separate development, the broad nature of
which you have sketched, on the other, and then with various suggested
middle-of-the-road policies.If I may revert for a moment to the way
in which I understand the Applicants to put their case in regard to a
norm and/or standards in the political sphere. I understand them to
suggest that it may be permissiblc, under certain circumstances, to have
differentiation, but that that ought to be coupled with freedom of choice
on the part of the individual, so that where provision has been made for
the group to which the individual belongs, the individual would never
theless have the freedom to say no, I would rather have for myself the
provision which is being made for another group. Now if we are to apply
that idea to the political context of the various groups in South Africa
and in South West Africa, what do you see as the prospects of such a
possibility?
Mr. ÛLLIE: Thev do not work, and will not work, Mr. President,
because in the political sphere, that is a very nice theoretical idea when
you are dealing with very small minorities; they can have their own
separate institutions and they can still share in the power at the centre.
But we have had those situations in South Africa, we have had positions
like that, and we have seen the results. I think of the common-roll vote
for the Bantu of the Cape Province that we had up till 1936. These
people could corne on the common roll with the Whites at a certain
level of development, and it became such a disrupting influence in, shall
we say White politics, that by common consent, or almost unanimous
consent in the end, this cornmon-roll vote was removed. As I say, you
can deal with these situations when you deal with very small minorities,
but we in South Africa are not dealing with small minorities, these are
big minorities, these are in fact peoples, and this sort of solution, having
separate institutions for these people, and then allowing them on the
basis that counsel suggested, to allow them ...
The PRESIDENT:Mr. Gross ...
Mr. GROSS:Counsel for the Applicants, or the Applicants, have not
suggested anything with respect to South Africa. It is the understanding
of the Applicants, respectfully, that the witness is testifying with regard
to South Africa. I understand Respondent's question was addressed to
South West Africa and I object to these polemics regarding South Africa,
which are irrelevant in anv event.
The PRESIDENT:\Vell, Ï\lr. de Villiers, I think, perhaps, unnecessary
time is spent in debating the admissibility of evidence, but do please
keep the witness's attention directed to South ·west Africa, the evidence
does tend to wander too much at large, in my view. WITNESSES ANDEXPERTS
519
Mr. DEVILLIERS:May I just indicate that we have had other evidence
about other countries and other situations in the world in testing out
whether these norms and these standards can be said to be of general
application or can be applied to good effect. South Africa provides purely
an illustration in this respect.
The PRESIDENT:There is no dispute about South Africa, about the
practice in South Africa, l\fr. de Villiers, the practice in South Africa is
that there there is differentiation, that is conceded, there there is scpara
tion, that is conceded; what purpose is there in having further evidence
in respect of an undisputed fact?
Mr. DE VILLIERS:With respect, Mr. President, it does not concern
the fact of the application of policies of differentiation; it concerns the
suggestion with which we are met, that we are to impose an element of
rigidity into the situation in South West Africa-an element whereby
the different groups are not treated entirely as different groups, but
whereby a certain individual choice is to be permitted. That is the sugges
tion with which the witness is dealing at the moment-he is merely
illustrating it, as I understand, in regard to a particular situation, but
I shall ask hirn to deal with it more particularly in regard to South West
Africa. Will you please, Mr. Cillie, in dealing with this question, apply
it specifically to the South West African situation?
Mr. CILLIE: Yes, I was thinking that we have had these experiences
and we are going to have the same experiences ...
The PRESIDENT:I think it better, :i\fCillie,ifyou respond to the
question which is put to you by counsel-will you put your question
to the witness again, Mr. de Villiers.
l\frCILLIE: Applying this to South West Africa, I was saying that
we have had the situations, we have had experiments in Southern Africa
on those lines, and I do believe that it is going to work out the same
way in South West Africa. I cannot see it working differently in South
West Africa from the experience that we had in South Africa.
Mr. DE VILLIERS: Now, you were dealing with the point that the
general policy of separate development is not a static one, that the
whole concept of it is not static, but dynamic, and I should like you
to indicate to the Court what you consider to be the positive values
ofan approach of separate development, particularly as applied to South
West Africain the general context?
Mr. CILLIE: Yes, as counsel suggests, there is nothing immutable
about this policy of differentiation and demarcation. In fact, the whole
Odendaal report is an advance on previous solutions. The whole idea
implies differentiations and demarcations, but it is adapted as we go
along. Particularly, we foresee that in South West Africa as well as
South Africa, as political organs and economic and social institutions
develop among the various non-White peoples, there will arise possibili
ties of contact and consultation between the established White authoritv
and these various new and separate entities. Less and less it is going to
be in Southern Africa a matter of unilateral decisions and arrangements.
It stands to reason that, as children grow up and develop a will of their
own, their wishes have to be taken into account in the affairs of the
family, and that is what we are driving at·.
Mr. DEVILLIERS:How then do you see the question of ultimate shape,
of where this is leading to?
Mr. CILLIE: Well, that is a very large question, Mr. President. I can520 SOUTH WEST AFRICA
only say that it would be futile now to draw up detailed blue-prints for
these territories when dealing with such dynamic processes. There are
certainly going to be in Southern Africa some black States, and I foresee
one in South West Africa itself-at least one. These States in Southern
Africa are not only being created by South Africa, it is also being clone
by the British. They are leading to independence the three so-called Pro
tectorates-Bechuanaland, Basutoland and Swaziland. But certainly
not all the non-White peoples of South West Africa and South Africa
can look forward to a separate existence in eventually separate States.
On the basis of the principle of separate development we shail have to
attempt all sorts of varied and flexible solutions. Self-detennination,
freedom, as I see it, after all do imply freedom to delegate or to share
some aspects of that freedom.
Mr. DE VILLIERS: Could you give the Court examples of the type of
flexible solutions which you foresee?
Mr. CrLLIE: Yes, varions models and patterns have been tentatively
held up at various times. The Prime Minister of South Africa himself
spoke in terms of the concept of a commonwealth of nations in South
Africa and South West Africa, as the freely associated grouping that
may eventuate from the policy of separate dcvelopment. On other oc
casions he has referred to aspects of the European Common Market,
which seems to be a combination of economic interdependence and poli
tical independence. \Vhat we find attractive about these groupings,
whatever difficulties they may run into, is that they reject the idea of
majority rule and they substitute methods of consensus in getting to
common purposes. That is partly why we tend to reject the prospect of
a federation as an over-all solution for South \Vest Africa or South
Africa, because the concept of federation does seem to retain the principle
of majority rule, which we fi.ndinappropriate and unacceptable in terri
tories in which all peoples are in fact minorities. So, if you tie yourself
clownto a federal solution, you do seem to put the whole idea of separate
deveiopment into a sort of strait-jacket; you work to a preconceivcd end,
and it is an end mainly conceived by the present leading White people.
Obviously the form of future co-operation has to be brought about
through consultation of the various groups involved, and you are only
now building up the other personalities with whom you are eventually
going to have a dialogue.
Mr. DE VILLIERS: So I gather from what you have said that you do
not regard separate developrnent as an end in itself?
Mr. ÛLLIE: No, certainly not. It is not an end in itself. I think it is
generally conceded nowadays, on the international plain, that in the
modern world nationalism îs not enough. In this sense the mere building
up of group identities is not enough; it is our way to better co-operation
and a more satisfactory co-existence of the peoples of South Africa and
South West Africa. We sincerely believe that, by recognizing and pro
viding for these separate identities and by removing mutual threats to
those identities, you can attain a multi-national deal that would be more
lasting then any othcr conceivable order. I think that to break down
national frontiers indiscriminately, as a way to international co-opera
tion, is obviously political madness. You have, in the international
sphere, to recognize the difference between peoples, you have to respect
national frontiers, and only then can you begin transcending them.
That is our basic approach in South Africa and South \Vest Africa, and WITNESSES ANDEXPERTS 521
I subrnit that it conforms very closely to the very best Western European
and indeed international thinking on the question of co-operation be
tween peoples.
Mr. DE VILLIERS:What do you think as to the possibilities of the
extent of co-operation between various units in Southern Africa that
could corne from this approach?
Mr. CILLIE: You are talking about Southern Africa?
Mr. DEVILLIERS:Southern Africa generally.
Mr. CrLLIE: Yes, our theoretical thinking goes further than the geo
graphical frontiers of South West Africa and South Africa. I would refer
the Court to a map in the end of the Countcr-Memorial, IL Politically
it is a bit out of date, of course (the date of the map is 1963), and since
this map was made, there have emerged two new black States. Northern
Rhodesia has become Zambia, a new independent African State, and
Nyasaland has become Malawi. This also is embodied in the statements
of the South African Prime Minister: we are thinking not only in terms
of a commonwealth or a common market for the peoples of South Africa
and South West Africa-we include in our future thinking the Protec
torates, that are very closely linked to South Africa economically; we
include the Portuguese Territories, Southern Rhodesia and possibly
Zambia and Malawi. This map is a political map, but if you have a map
showing the inter-dependence of these various territories, showing the
lines of communication, the bonds of investment and of development,
the flowing of technological information, you would realize that this is
already a very interdependent collection of territories. We include them
in our thinking because South Africa does not want to be thrown into
isolation into a corner in Africa, not only on our own behalf, but because
we believe that we have a lot to offer to these other peoples and territories
of Africa. \Ve have the experience, we have the know-how, we have more
resources than some of these others, and our strength could form the
basis of a very strong and vcry fruitful association of States.
M:r. DE VILLIERS: So you see these as realistic possibilities for the
future?
J'lfCILLIE:Yes. Granted more-or-less orderly and peaceful evolution,
Mr. President, a vast range of possibilities do suggest themselves in
Southern Africa.
J'lfDE VILLIERS: What do you mean by that proviso-"granted
more-or-less orderly and peaceful evolution"? Did you say that?
Mr. CrLLIE: \Vell, there is the rub. The successful implementation of
this promising, but very difficult policy in Southern Africa is utterly
dependent upon the sustained will and the capacity of the present leading
people, the White people of South Africa, to carry it through. It is depen
dent on these people's willingness to take the long view and to shoulder
the necessary financial and other burdens and to make the needed adapta
tions. They have to recognize, in short, and they have to keep on real
izing, that they have to lead others to self-realization and freedom if they
themselves want to remain free in the truest scnse of the word. That is
the sort of enlightened self-intcrest, the sort of caring for other groups
than your own, that becomes increasingly difficult when you feel your
sclf threatened. Any sort of generosity, I should say, all wisdom in states
manship is to some extent a fonction of a sense of security. Threats to
that security, of course, could arise from various sources, in South Africa
and South West Africa. I would like to distinguish between two kinds 522 SOUTH WEST AFRICA
of threats. The one sort of threat cornes through encroachments. If a
group encroaches on the preserves of another you get a feeling of fear
and you engender bitterness and hostility which make all sorts of positive
and constructive action very difficult. That is the one sort of threat that
could upset, what I call orderly evolution. You really cannot expect the
White South Africans in South Africa and South West Africa to act
gencrously or wisely if they are continually being threatened in their
social institutionsor in their economic position by encroachments by
other $roups; it puts their backs up, and instead of co-operation and
friendlmcss you get tension and hostility.
Mr. DE VILLIERS:Do you regard that as a factor which would be
harmful to general development?
Mr. CILLIE:Yes, that is the real justification for some of the legislation
that has been under attack in this Court and in other forums. Sorne of
these measures may become unnecessary in the light of changing circum
stances. Sorne of it may seem stupid to people who do not understand
the situation-! can well imagine that there is almost no country in the
world that has not got some legislation that appears stupid to outsiders.
I can say that, in so far as such laws stand in the way of the principle
of separate development, they will have to be changed or revoked in
time. Here again there is nothing immutable about the South African
set-up. \Ve do change and we do adaptas we go along.
Mr. DEVILLIERS:Have you any examples in mind?
Ilfr. CILLIE:I believe there has been some talk in this Court about the
training of non-White engineers. Ido not know what the exact legal or
administrative barriers to such training may be, but 1 know that if they
do exist they will have to be relaxed or removed, because obviously
you cannot have economic development in the Bantu areas without
engineers, prefcrably Black engineers. We shall need in South Africa
in the future al) the engineers we can get, and we shall have to train them
as we train non-White doctors and teachers and indeed ail sorts of
professional people, to serve their own pcoples. But then, again, you
·cannot risk sabotaging this whole constructive outlook on the part of
the Whites by allowing a process of encroachment to put economic and
social fears into the hearts of the White people.
Mr. DEVILLIERS:You mentioned one type of threat to the possibility
of security and orderly development. Have you any other in mind?
Mr. (ILLIE: Yes. This I regarded as a threat from the inside, threats
arising from the situation itself. But the South African Government has
had to try to act generously and decently and wisely during the past
17 years under a mounting threat of coercion and intervention from
outside.
The PRESIDENT: I don't think this needs·any development, does it?
In what way is this going to carry the case any further?
Mr. DEVILLIERS:Mr. President, this brings in the factor of an attempt
to impose a norm and/or standard from outside. That is the relevance
of the evidence as we see it.
The PRESIDENT:How is that relevant, Mr. de Villiers? Even if there
were attempts to impose a norm from outside, if a norm or standard
exists does it matter whether it has been sought to be imposed from out
side? If on the other hand no norm or standard exists does it matter
whether one was or is sought to be imposed?
Mr. DE VILLIERS:Yes, but an attempt to impose standards or so- WITNESSES AND EXPERTS 523
called standards which have not attained the force of law, nevertheless
by political pressure. That is'the context.
The PRESIDENT: It seems to be very remote from the issue which the
Court has to dctermine at the moment. We are not, in this context,
concerned with every possibility; we are not concerned with the action
of other nations; we are concerned with South Africa's discharge of its
obligations in relation to the Territory of South West Africa. lt seems
to me that the evidence which you are seeking now to open up has little
to do with the issues the Court has to decide.
Mr. DE VILLIERS: But it is coming directly to the suggested content
ofthe norm, Mr. President.
The PRESIDENT: How does it corne to the content of the norm? ·
Mr. DE VILLIERS: The content of the norm as applied in the political
sphere, namely the content of universal adult suffrage within the frame
work of a single territorial unit.
The PRESIDENT: Mr. Gross?
Mr. GROSS: Mr. President, with respect, I believe that counsel is
making a legal argument and I would not wish to presume on the Court's
time to request an opportunity to answer it, but this is a misrepresenta
tion, surely unwitting, ofthe Applicants' case. With all respect, sir, I just
will note an objection on this line of argument by the Respondent's
counsel.
The PRESIDENT: The objection is noted, Mr. Gross.
Mr. DE VILLIERS: Mr. President, I am sorry, but this is a fondamental
matter to us, and perhaps I don't see it correctly. My learned friend, in
his presentation to this Court on 17 May, two days before the final
amendment of his submissions, presented to the Court what he described
as the corpus of fact upon which he relies and he made this statement
in that record of 17 May:
"The norm of non-discrimination or non-separation, when broken
down into its component parts-and we shall have more to say
about this shortly-for example, in the economic field, in the eco
nomic life of the community, could be, properly is to be, conceived
and spoken of as the norm of non-discrimination or non-separation
in economic affairs. In the area of education it is a norm against
discrimination and separation on racial grounds in the educational
field. Similarly,n the political and civil liberties fields, they become
norms or sub-norms, whichever phraseology is preferable, rules
which prohibit discrimination or separation in respect of the partic
ular area of human activity or human intercourse which is involved."
(IX, p. 284.)
And that, Mr. President, with respect, links up with the explanation
which I have referred to·in the Reply at IV, page 441, the wording of
which I wish to read to the Court, because it is so explicit:
"With regard to political rights, the relevant and generally ac
cepted norms by which the obligations stated in Article 2, para
graph 2,of the Mandate should be measured, have been established
by the United Nations. These include the institution of universal
adult suffrage and the promotion of participation on the part of all
qualifi.ed individuals in all Jevels of governmentand administration,
within the framework of a single territorial unit."
The witness is about to address himself to the question of attempts SOUTHWEST AFRlCA
being made from outside in the political sphere, quite apart from the
legal proceedings here, to impose a norm of that nature in the political
sphere upon South Africa and upon South West Africa. And it is, in my
submission, highly relevant that he should deal with the effects which
those attempts have in practice and upon the well-being of the people
concerned. .
The PRESIDENT: In short, you are saying now that part of the Ap
plicants' case isthat the Respondent should have given universal suffrage
to the peoples of South West Africa?
Mr. DE VILLIERS:Within the framework of a single territorial unit,
Mr. President.
The PRESIDENT:Yes. That is, you state, part of the Applicants' case?
Mr. DEVILLIERS:Yes, Mr. President.
The PRESIDENT:This is the first time I have heard you state that,
Mr. de Villiers, but still, if you say that it is part of the Applicants' case
then proceed with the evidence.
Mr. DE VILLIERS:That would appear to be the case, as stated here,
sir, explicitly.f my learned friend tells me that that is not his case and
can tell me in substitution what his case is in the political sphere, then
perhaps I could deal with it.
The PRESIDENT:Yes, Mr. Gross?
Mr. GROSS:I hardly know how to proceed, Mr. President. This seems
to require legal argument of the sort which I know, with ail respect and
deference, is not in place here. Just for the sake of the record I should
like to read the sentence following the two sentences quoted by Respon
dent's counsel on IV, page 44:r, of the Reply.
"For an elaboration of the views of the United Nations which
have given rise to thisstandard, and of compliance by Administering
Powers therewith, the Courtis referred to Annex 7 hereof."
The Annex sets forth, in some detail, the judgments of the United
Nations with respect to the cognate areas of trusteeship and sets forth
the policies, as we elaborated, which explain and elaborate the two sen
tences quoted by the Respondent. But, without vcnturin·g to go into an
elaborate argument, there are of course all sorts of qualifications upon
the phrases used, "the institution of universal adult suffrage" and the
"participation on the part of all qualified indivicluals". There is no abso
lute or mechanical standard which is applicable or not, without reference
to the issue in this case, which is that apartheid, which denies all effective
rights of participation-denies suffrage totally-is a violation of the
Mandate. That has been, and remains, our case. We believe that the
United Nations standards, as elaborated in the Rep1y, may be considered
and, with all respect, should be considered by this honourable Court in
interpreting the Mandate and applying the undisputed facts of record
constituting apartheid in this respect. I apologize if I have exceeded the
Court's patience with an argument. This is directed to, and responsive
to, the comments made by the Respondent's counsel.
The PRESIDENT:Mr. de Villiers, you must just proceed and the Court
will have to deterrnine later on what relevance the evidence has.
Mr. DE VILLIERS:Thank you, Mr. President. i\fr. Cillie, would you
indicate to the Court very briefly what you consider to be the effect
upon the prospective well-being and progress of the peoples concerned
of what you have called "pressures from outside"? WITNESSES .-\N'D EXPERTS
Mr. ÛLLIE: Yes, l\k. President. These pressures have, in my view,
been increasingly directed to the main purpose of making South Africa
itself,and South \Vest Africa, conform to this standard of one man, one
vote-this standard of universal adult suffrage. It was my conception
of the case of the Applicants that this was what they wanted in South
West Afrirn, and ifyou want that in South West Africa, and wc have to
grant that in South West Africa, with such a system in a territory next
tous, which we administer as an integral part of the country itsclf, there
would be no valid reason for refusing to do so at home. This certainly
would, and does, create the utmost resistance and the utmost resolution
in the \Vhite population of South Africa to resist ail these pressures.
\Vhen applied to South West Africa, this sort of one man, one vote
thinking would create havoc in inter-group relations in that Territory.
The dominant group, in terms of numbers, is the Ovambos, whom I
believe form about 45 per cent. of the total population. On the basis of
one man, one vote their numerical preponderance could be exploited by
ruthless and ambitious men to subject ail the other groups to Ovambo
rule. Not only would the \\'hites be submerged-and they are going to
forrn for a very long time the framework and the sinews of the administra
tion and economic development in that Territory-but also the most
under-developed non-White groups, the weak groups such as the Bush
men or the tribes of the Kaokoveld would be submerged. Thirdly, you
are going to submerge the most highly developed of all the non-White
groups which are, I think, the Coloured people of South West Africa and
the distinctive Rehoboth people. It means to these people, as it means
to the Whites, that they are being forced to commit a form of national
suicide, and that prospect evokes ail the forces of resistance that you
would expect in any nation in similar circumstances.
M.r.DE VILLIERS: What conncction do you see between this attempt,
or this threat, cal! it what you like, from outside to attempt to impose a
standard of that kind and the prospects of evolutionary development
which you put to the Court before?
Mr. CILLIE: As I said, it does raise fears among the ruling VVhitesas to
their position and their safety, and itdoes make them behave in more
negative ways than is appropria te in the circumstances, than they should
behave. The Whites certainly are not going to surrender themselves to
so-called majority rulc based on the numerical preponderance of the
Black peoples in South Africa or South West Africa. They woulcl resist
it as meaning the end of their world, and they will deal with it as such.
Mr. DE VILLIERS: Would that rcsistance corne from the White people
only?
M.r.C1LL1E: No, I don't think so. As they become wise to what is the
probable end product of this, some of the minority groups would act
likewise. In fact, we are ail minority groups in South Africa. South
Africa and South West Africa are really a collection of minorities and
you can only get a prcponderant majority by a ganging-up of various
minorities, say in the name of their blackness, or in the name of their
non-whiteness, or what you will. I think the resistance will not be con
fined to the \\'hite people only.
l\frDE VILLIERS: Now, what do you see as the prospective effect of
serious attempts to impose a norm or standards of that kind on un
willing people in South Africa and in South West Africa?
l\frCILLIE: I think the cffocts are going to be very evil, because, to526 SOUTHWESTAFRICA
put it in philosophical terms, unity is really a divine idea and the corrup
tion of the best is the worst. Satan himself is supposed to be a fallen
angel. Soif you try to impose unity, which is a very great and idealistic
concept, ifyou try to impose it on peoples who are not ripe for it, you
are going to get the most devilish results.
The thinking on the other side has lately been directed to economic
sanctions as a means of forcing South Africa to abandon apartheid as a
policy in South Africa and South West Africa. And ail discussions-and
they have been many: these discussions have taken place in various
forums, also in the Security Council-point to the conclusion that sanc
tions, to achieve any sort of notable results, have to be backed by a
naval blockade. That would be an act of war, of course, and be regarded
as ...
Mr. GRoss: Mr. President, may I interject at this line of question and
answer, sir, pleasc?
The PRESIDENT: I frankly don't see what we have got to do with this
part of your presentation, !\fr. de Villiers.
Mr. DEVILLIERS:Mr. President, I shall not press it upon the Court if
that is how you firmly feel aboutit. My concept of it is that the well-being
and progress of the peoples of South West Africa have very definite con
nections with the weU-being and progress of other peoples in the whole
of Southern Africa. The whole concept of the Mandate is that of a terri
tory to be administered as an integral portion of South Africa. The funds
and the resources for development are, to a large extent, coming from
South Africa. The whole well-being and progress of Southern Africa of
which these peoples form part, is being held up to the Court as part of
the implications of this litigation-implications which extend so far
beyond the borders of South West Africa itself. Surely it must be, with
the greatest respect, a relevant consideration to bring to the attention
of the Court that these implications do exist.
The PRESIDENT:To what extent is it relevant to determining whether
at the time the Application was fi\ed, there had or had not been a breach
by the-Respondent, of the Mandate? Are we speaking about the question
of the future or present threats of imposing sanctions upon South Africa?
Mr. DEVif.LIERS:Mr. President. the relevance of it, in my submission,
is this: that the allegation that there has been a violation of the obliga
tion of Article2 of the Mandate, takes the form implicitly, and explicitly
on occasions, that there is to be applied in the political sphere a system
of universal adult suffrage, that that is to be imposed upon people,
whether they be willing or not to accept it, that is, universal adult suf
frage within the contcxt of a single territorial unit, and these are implica
tions of the situation which arise.
The PRESIDENT:They are implications of today are they-implica
tions of today?
Mr. DE VILLIERS:That has been part of the case, as I understood
it, as presented to the Court, namely that the situation with which the
Courtis dealing, is nota static one; it is a dynamic one; it is a developing
one. My learned friends have not confined their case to what happened
as at the date when these proceedings were initiated.
The PRESIDENT:Very well, Mr. de Villiers. All the Court can indicate
to you at the moment is that it seems to be wandering some distance
away from the issue the Court has to decide.
Mr. DE VrLLrERS:\Vell, Mr. Cillie, would you briefly conclude what WITNESSES AND EXPERTS 527
you consider to be the implications of attcmpts to cnforce standards
of the nature I have mentioned, from outside.
Mr. CtLLIE: Well, as I said, these discussions at the United Nations
and elscwhere point to a desire to impose a certain system on South
Africa, and as I said, if it is going to be done in this way, in the way
that is being canvassed, certainly it is going to be a mortal threat to
the whole of Southern Africa. Innumerable tensions would be created
and sharpened, perhaps to the point of sporadic revoit and group wars,
and by the time that South Africa itself gcts propcrly strangled econo~
mically, practically the whole of the sub-continent would be in a state
which I fi.nd rather ghastly to contemplate. I am assuming that on the
other side there will be forthcoming the unified and sustained will and
the military resources to see this thing through, and I realize that this
is quite a large assumption, but it is the one on which our persecutors
are working. In actual tact, I think tremendous international complica~
tions are bound to dcvelop with any such worsening of the South African
position.
Mr. GROSS:Mr. President.
The PRESIDENT:Yes, Mr. Gross.
Mr. GROSS:I objcct strenuously to the polemic or propaganda which
has just been enunciated. I feel it my duty to indicate that the Applicants
strongly resent the use of this honourable Court as a forum for this
type of unsupported accusation lodged against the organization which
is responsible for the supervision of the Mandate, and I would request
the honourable Court to note that a strenuous objection is made to this
line of questioning and to this line of response.
The PRESIDENT:I do not think there is any reference at all to the
United Nations or any organ of the United Nations, Mr. Gross. The
reference is to "persecutors". There is not the slightest doubt whatever,
Mr. de Villiers, that in the presentation of the witness, there are great
overtones of politics which may have a bearing on the case which we
have to decide, but, surely, itcan only be a pcripheral one?
Mr. DE VILLIERS:l\Ir. President, if you will bear with me for a mo
ment ...
The PRESIDENT:I think the Court has been very patient in respect
of a great deal of this evidence, i\Ir. de Villiers.
Mr. DEVILLIERS:Yes, but I find myself at a disadvantage, with respect.
The form which the proceedings have taken has made it impossible
for me to do what I indicated to the Court earlier on was our intention,
before the presentation of the factual aspects of the case to the Court
-and that is, to indicate to the Court the enormous importance of the
political aspects of this case. I do not want to present an argument to
the Court aboutit at the moment, but those political aspects which are,
very often in our submission, played down by the Applicants, when it
suits them, are, in our submission, of the essence of this whole case
concerning the well-being and progress of the pcoples concerned.
Ihave not becn able-in the way in which the case has progressed,
and in the way in which the presentation is now taking place, of to a
large extent presenting evidence before there has been argument on the
factual aspects where these matters can be brought together, as we
intend to do eventual!y for the benefit of the Court-to lay that founda
tion as I should have liked todoit, in a way which can only be done in
argument. I should like to have this evidencc as to the political implica-528 SOUTHWESTAFRICA
tions of the subject on record. The idea is not to create atmosphere;
the idea is not to bring political overtones into a Court of law. After
all, Mr. President, we objected, and objected most strenuously, to the
use of this Court for the trial of a case which is, in essence, a political
case; the Court overruled those objections and the case isnow in this Court.
The PRESIDENT:Whatever purpose for which you are seeking to in
troduce the evidence. ilfr. de Villiers, there does not seem to be the
necessity for the polemics which are introduced by the witness into the
presentation of his views, as an expert.
Mr. DEVILLIERS:Very well, ]\frPresident.
Mr. Cillie, could you indicate to the Court whether you consider that
outside interest, outside criticism, outside discussion of the situation
has no bearing and no possible influence for the good of the peoples
concerned?
Mr. CILLIE:Well, outside criticism, if it is informed, has always been
welcorne in our country but these pressures that have been building up
have not been well-informed, they have been emotional and they have
been directed to what we regard as a total destruction of the present
South African order. I think these pressures have done great damage
to the processes and the speed of that sane and orderly evolution that
we want in South West Africa and in South Africa.
\Ve do want time and opportunity to work out the solutions to a
vastly complicated and, I think, a universally important human problem.
The only sort of pressure, if one can call it that, the only sort of help
that is going to do any good at all, as far as I can see, is that which
encourages us to go ahead and put our principles into practice with
all deliberate speed. Those principles, as I have tried to show, are rooted
in our history, v.rhichis part of Western history, which is part of universal
history. These principles are not strange or alien, only their application
in our situation is bound to be a very great test of statesmanship and
ingenuity.
Mr. DE VILLIERS:Thank you.
The PRESIDENT:Mr. Gross.
Mr. GROSS:Mr. President, I should like to cross-examine briefly but
I wonder whether it would be convenient to the honourable President
and the Court if I were granted 20 minutes in which to prepare my
notes with the objective of finishingthecross-examination this afternoon?
The PRESIDENT:Certainly, l\fr. Gross.
* * *
The PRESIDENT: Mr. de Villiers, just before the cross-examination
commences, during the course of this afternoon you made some obser
vations to the effect that you had been prejudiccd in presenting the
question of relevance of evidence, and in some sense, by reason of the
fact that you had not fully opened the case upon the facts, as I under
stood it.
Mr. DE VILLIERS:Mr. President, may I correct that. I did not suggest
prejudice. I merely meant that it was a matter with which I would
deal adequately at a later stage, but, because of the fact that that foun
dation had not been laid, it was a little more difficult for me to explain
the relevance than it would otherwise have been. That is all, I did not
suggest any prejudice.
The PRESIDENT:Because you will recall that in the Order which the WITNESSES ANDEXPERTS 529
Court made with respect to procedure, on 24 Mav, it was indicated that
you had the right under paragraphs I and 2 to plead such facts, or open
the case in such way as you thought fit.
Mr. DE VILLIERS:That is certainly so, sir. But we took the decision
ourselves, namely that to deal with that aspect of the matter fully at
that stage would have meant a much longer opening at that stage than
was being conternplated, and we thought it would be more convenient
to leave It over till later. That is just an historical part of it; I did not
imply any criticism of your ruling, Mr. President.
The PRESIDENT:Then, do I understand that in no way have you
been prevented, in the course of this aftemoon's proceedings, from eli
citing all the facts that you needed to elicit from the witness?
.Mr.DE VILLIERS;No, i\fr. President.
The PRESIDENT:Vou have elicited al!?
Mr. DE VILLIERS: Yes, I have presented certain parts more briefly
than I might otherwise have done, in the light of your remarks, but
that was also my decision.
The PRESIDEKT:You do not seem to be very unhappy about that?
Mr. DE VILLIERS:No, Mr. President.
The PRESIDENT:Mr. Gross-
Mr. GRoss: Mr. President-Mr. Cillie, as you know, I do not have
the advantage of a verbatim record, and therefore I shall attempt to
rely on my notes to quote your testimony accurately; I shall reconstruct
it to the best of my ability, and if I paraphrase it incorrectly, l wish
you would please correct me at once and l shall give you every oppor
tunity, as the Court would wish me to, not to misrepresent your testi
mony-1 am working from my notes. Now, 1\frCillie,I will confine my
questions entirely to the mandated Territory of South West Africa, and
if I do not specify that fact in any particular context or question, I trust
that you will understand that that is the scope, and the purport, of the
questions I shall ask. You testified, substantially, to the following effect,
that within South West Africa, there is a great variety of non-White
people for whom "we have responsibilities", generally similar to those
of colonial powers-did I get your thought accurately?
Mr. CILLIE: Yes, it could be a parallel responsibility.
Mr. GROSS:And you wcnt on, I believe, to say substantially that,
my notes show, the ruling White group had to see toit that trusteeship
was not used for o:ppression-is that correct, sir?
Mr. ÛLLIE: I thmk I actually said that trusteeship should not dcgen
erate into oppression.
Mr. GRoss: That is perfectly all right, Sir. My emphasis for the purpose
of the next question is with regard to the use of the word "trusteeship",
and the interpretation you would wish the Court to place upon the word,
particularly in the context of this litigation, and generally as well. I
should like, with the President's permission, to read from a statement
by Prime -Minister Verwoerd in the House of Assernbly Debates in the
Third Session, Second Parliament on 4 i\Iay to 8 May 1964. This is at
column 5636 to column 5637 and it was on the date of 8 May 1964, and
the statement reads, in relevant part, as follows:
"It is perfectly clear that the Government adopts the trusteeship
principle; the Government accepts its position as trnstee; it acts
in the spirit of the mandate, and in accordance with that spirit has
taken certain obligations upon itsclf; it has taken upon itself the530 SOUTHWESTAFRICA
obligation to promote the wellbeing and the progress of those people.
[This is the Debate concerning South West Africa, I may remark
parentheticallyl It has to do what it regards as being in the best
interests of the inhabitants. It was appointed as trustee and its
duty isnot to ask what others want or how itcan secure peace for
itselfwith other states, the question which it has to ask itself basi
cally isthis: How can I promote the best interests of the inhabi
tants? Our policy is based on our belief that whatever others may
say, the only way in which we can test our policy and our actions
isby asking ourselves whether yveare honestly and sincerely doing
what a Christian guardian can be expected to do for the peoples
entrusted to his care."
I should like to ask, Mr. Cillie, whether you would take this as reflecting
the official position and policy of the Nationalist Party?
Mr. CrLLIE:Oh, yes, definitely.
Mr. GROSS:And of the Government, as far as you know?
Mr. CrLLIE: Yes.
Mr. GRoss: Do you use the word "trusteeship" in the same sense,
for the purpose of your response to my question, as the word as used by
the Prime Minister?
Mr. CrLLIE: Yes, I think so.
Mr. GROSS:Now does that concept of "trusteeship", in your under
standing, sir-I do not ask you, of course, to speak for, or interpret the
comments of, the Prime Minister, but in your understanding of the word
"trusteeship"-does it connote or imply any responsibility to account
to others?
Mr. CrLLIE:You are speaking about South West Africa?
Mr. GROSS:Ali my questions wi11be directed with respect to South
West Africa. My question-would you like me to repeat it, sir?
Mr. CrLLIE:Yes, please.
Mr. GROSS:Certainly. In your concept of the word and your inter
pretation of the concept of "trusteeship" as you use it, and I take it
you were referring, were you not, to the responsibilities of the Govern
ment with respect to South West Africa-in your appreciation of the
word "trusteeship", in the context and sense in which you use it-does
it imply or connote in any way a responsibility to account or report
to any body or agency outside of the Government itself?
Mr. ÛLLIE: Not that I can see, no.
Mr. GROSS:The way the word is used, then, if I understand you cor
rectly, refers entirely, doesit, to self-reporting, self-accountability?
Mr. CrLLIE: Well, in a sense man does not live unto himself alone
but in this technical, political sense it is accountabilityto yourself and
to your conscience.
Mr. GRoss: In other words it is, in this context, and in this sense,
merely another way, is it, of saying "I act in accordance with my con
science", you wouid say?
Mr. CILLIE: I would put it more broadly than that, but you could
put it that way.
Mr. GRoss: Well, would you put it broadly? I would like the Court
to understand precise!y what your meaning is here, sir.
l\frÛLLIE: You see, a nation's conscience is a very complex idea
the conscience of parliament is part of a nation's conscience, the con
science of the press is part of the nation's conscience; it means a very WITNESSES AND EXPERTS 531
broad accountability-it does not mean that you sit in a room and you
ask yourself "What does my conscience dictate?"-it is a complicated
political concept in that sense.
Mr. GRoss: Yes, sir. We take it in the terms in which, according to
my notes, you used it, in the context of the ruling White group-could
you define for the Court the connotation or meaning of the phrase "ruling
White group"?
Mr. CILL!E: \Vell, it is obvious that the ruling power presides at the
moment in South West Africa and in South Africain the hands of the
White group-the predominant power, not the exclusive power, but the
predominant power-that is what I meant by the ruling White nation.
Mr. GRoss: That applies to South West Africa, does it not, sir?
l\IrCILLIE: Yes.
Mr. GRoss: Now with regard to the White population of South West
Africa, are they the "ruling group" in South West Africa according to
your understanding of the term you use?
Mr. CrLLIE: No. Surely they are not an exclusive ruling group in South
West Africa; South West Africa is partly ruled from South Africa. I mean
that the White people of South \\Test Africa have not got exclusive power
over the Tcrritory of South West Africa.
Mr. GROSS: I am trying to understand, Sir, and so that the Court can
understand, what the content and meaning of your phrase "ruling White
group" is~acting as trustee with respect to the Territory, if that was
your meaning?
Mr. CILL!E: No, I would say in this sense that there is a double ruling
power-the Government of the Republic of South Africa in the first
instance, in the overriding instance, and then you have the local White
group in South West Africa.
l\lr. GROSS:And the "White group" of South Africa is composed, in
your interpretation of the phrase, of what elements or organs-in your
sense of the phrase, "White group" in the sense of ruling?
l\IrCILLIE: Are you talking about the ruling White people of South
Africa, South West Africa ... ?
Mr. GRoss: Weil, sir, you have used the expression, if I have it cor
rectly in my notes, that "the ruling White group" had to see to it that
trusteeship was not reduced, or words to that effect-used-for oppres
sion, and obviously there are important concepts involved here, and it
seemed tome that the Court might wish to have clarification of the use
of your phrases therc.
Mr. CrLLIE: The ruling power of the White nation in South Africa is
expressed through Parliament, of course.
l\fr. GROSS:So that by "the ruling White group" in the sense in which
you use it here you mean the Parliament of South Africa?
l\fr.(ILLIE: And in a lesser sense the Legislative Council in South
West Africa~in a subordinate sense.
Mr. GRoss: And that is a ruling White group that is selected how,
in the case of the Parliam.ent?
Mr. Crurn: The Parliament of South Africa?
Mr. GRoss: The "ruling White group" in the sense you use the term,
the Parliamentary segment of the ruling White group-how is that se
lected?
Mr. CrLLlE: Parliament, of course, consists of members chosen by the
White electorate in constituencies, and also four members representing532 SOUTH WEST AFRICA
the Coloured people of the Cape. There are also various nominated sena
tors in the Upper House-some of them are chosen by electoral college,
some are appointed for special knowledge of non-White affairs, and I
believe there is consideration-I cannot give you now a whole lecture
on the composition ...
Mr. GROSS:No, sir, that is not necessary-I think you have answered
my question, unless you wish to add to it-that this, as I understood
you to say, segment of the "ruling White group" is elected by White
persons in the population of South Africa-that is correct, sir?
Mr. CrLLIE: Yes, and of course there are members from South West
Africa itself-there are six members.
Mr. GRoss: Yes, sir, who are also, I understand, am I correct, elected
by \Vhites in South West Africa?
Mr. CILLIE:A \Vhite electorate.
Mr. GRoss: Yes, sir. Now I believe you testified, or implied in your
testimony, that in the course of the development of the policy of apart
heid or separate development there had been, and I believe you said
constantly are, middle-of-the-road suggestions being made-did you
testify substantially to that effect, sir?
Mr. CrLLIE: Yes.
Mr. GROSS: I think you testified, did you not, sir, that these middle
of-the-road suggestions are made by certain political parties, or members
of political parties?
Mr. C1LLIE:Yes. They are more than suggestions-they are worked-out
policies.
Mr. GROSS:And they are proposed or projected by members of the
Parliament, among others?
Mr. CILLIE:Amongst others.
Mr. GROSS:And I suppose, as in every parliament, votes are taken
to determine the results?
:i\IrCILLIE: Yes.
Mr. GRoss: And those votes are not always unanimous, I take it?
Mr. CrLLIE:They are never unanimous.
Mr. GRoss: Never unanimous. And now, when there is a dissent, and
I am speaking now particularly about matters affecting racial relations
policiesin South West Africa-and may I parenthetically ask you: have
there been cases in which there have been dissents expressed in the
Assembly on these matters?
ll'lr.CrLLIE:Oh, yes, there was quite a debate on this Odendaal report,
as you know.
Mr. GROSS:And I believe there was a rather substantial minority
opposed to that?
Mr. CrLLIE:Yes.
Mr. GROSS:Would you say, sir, and I am referring to your description
in respect of the exercise of trusteeship in the sense of consulting oneself,
in the Prime Minister's phrase, or consulting one's conscience-who
determines, for example, when a strong or a large minority in the House
of Assembly has a conscience on a matter which is not that of the majority
--do you regard that the majority vote determines in every case where
the balance of right or morality is in respect of the decisions to be made?
Mr. ÛLLIE: No, not necessarily. The majority is not always right;
as a theoretical proposition moral right may reside in a minority, of
course. WITNESSES AND EXPERTS 533
l\lr. GRoss: But in the case of a conflict of view, and particularly
one deeply held, who then is to serve as the judge to decide whose con
science is right inthe case of a conflict of that sort?
Mr. CILLIE:ln these practical political matters you have to corne to
decisions, you cannot sit and wait indefi.nitely for some sort of divine
light, you have to take a dccision as best you may.
Mr. GROSS:And that may or may not reflect what perhaps all of the
members of the Parliament would regard as conformable to the require
ments of conscience in a particular racial policy?
Mr. CILLŒ: No; it certainly may militate against the conscience of
the minority.
Mr. GROSS:And similarly, sir, with respect to the conscience of the
executive arm of the Government, would that or would it not be a factor
of the official or officiais who might be in office from time to time? Did
you understand my question?
Mr. C1LLIE:No, not very clearly.
Mr. GRoss: In respect of the executive branch, the sector of the ruling
White power that is represented in the executive branch of the Govern
ment, would you or would you not say that the factors of conscience,
or self-judgment, or call them whatever you prefer, would vary from
time to time depending upon the incumbent in such office?
Mr. CrLLIE:Yes, it may vary.
Mr. GROSS:And would it be possible that persons in office from time
to time might have different conscientious or subjective views concerning
the rightness or wrongness of policies?
Mr. CrLLIE:Certainly.
Mr. GROSS:\Vhat, if any, safeguards would exist, then, with respect
to the rightness or wrongness of the decisions of that segment of the
ruling White power?
Mr. CILLIE;I do not understand that question, I am afraid.
Mr. GROSS:\Vhat safeguards would exist to assure the rightness of
decisions made by the executive branch of the ruling White power in
a particular situation?
Mr. CILLIE:The usual safeguards of democracy-there is always the
right of revision-you can always take a vote on another day, or after
another General Election; you have that safeguard of revision.
Mr. GROSS:Now if the question arase in the context of a dispute
with regard to what was right or wrong with respect to the rights or
freedoms of the non-White groups in South West Africa, would they have
a voice in the decision that you have referred to?
Mr. CILLIE:Not a direct voice, no.
Mr. GRoss: In what form would their indirect voice be manifest?
Mr. CILLIE: We would soon know if we made a really ghastly mess,
you know-that would be apparent very soon, because they do have
their ways of expressing themselves.
Mr. GROSS:Those ways, sir, are by what means-if you would give
the Court an illustration.
Mr. CILLIE: By making representations to authorities; by sending
deputations; by giving interviews to newspapers.
Mr. GROSS: ln other words you would say, sir, that they have the
right of petition and do they have any other ways or methods of express
ing their consternation or ...
Mr. CILLIE:We are trying to build that up--we are trying to build up534 SOUTH WEST AFRICA
organs of self-government in order to give them that orderly way of
expressing themselves-that channel for consultation-an officialorganic
channel for consultation.
Mr. GRoss: When you use the term "organs of self-government" do
you mean organs of self-government within certain areas?
Mr. CILLIE:Yes.
Mr. GROSS:Now may I confine your attention for a moment to the
southem sector, outside the Reserves; do you know what the population
of that area is?
Mr. CILLIE:The figures have been mentioned, but having had a mathe
matical training, I am very bad at figures.
Mr. GROSS:Would you regard it as of significance to qualitative or
moral judgments concerning the matter, whether there are a few people
or a substantial number?
Mr. CILLIE:Yes, in terms of divine morality one man is as important
as a thousand, I think.
Mr. GRoss: Suppose we take it between us then, as I think the record
does show it, that there are approximately 166,000 of these persons
permanently resident in tlùs sector and some 27,000 who live there from
time to time under work contracts-a total of I94,000 persans; men,
women and children.
Mr. CILLIE:Is that in the southern zone?
Mr. GROSS:We are talking now about the southern sector-the total
non-White population of the southern sector. With respect to these
people, these individuals ...
Mr. CrLLIE: I am sorry, Mr. President, I think that is the figure for
the non-Whites outside the Reserves in the Southern sector.
l\Ir. GROSS:I said the southern sector, sir. I was now going to talk
about the sector outside the Reserves. I think the record will show that
I said southern sector but in any event I appreciate the suggestion.
Mr. CrLLIE:Outside of the Reserves in the southern sector.
Mr. GROSS:The figure was put in this morning I believe; I was now
going to corne to that-the total non-Whites outside the Reserves in the
southern sector are 128,000 and if you include the migrants from out
side who corne in on work contracts-155,000. We will now confine our
selves to the non-Whites in the southern sector outside the Reserves.
With respect to these people, sir-1 paraphrased your answer and de
scribed it as a right of petition---do they have any other methods of
expressing a voice or participating in decisions with respectto legislation
considered or passed by the House of Assembly?
Mr. CILLIE:Any other apart from ... ?
Mr. GROSS:Apart from what I think we agreed between us, did we
not, would amount to right of petition?
Mr. CILLIE: You are asking in effect if they have-I am sorry Mr.
President, I should be addressing you.
The PRESIDENT: Not at all. You are addressing me while you are also
replying to Mr. Gross.
1\fr. CrLLIE:Thank you.
Mr. GROSS:\Ve are speaking to each other through the Court, as I
understand it, sir.
Mr. CrLLIE:I think what you are asking me in effect is whether these
people in the southern sector, the non-White peoples there, have any
organs of self-government. WITNESSES AND EXPERTS 535
Mr. GRoss: Well I do not know quite what that phrase means. I have
preferred to put it in the form of the question which I addressed to you
-whether they have any method or means of voice other than the right
of petition with regard to decisions made by the legislature of South
Africa which, as I understand it, passes laws with respect to their wel
fare-that is correct, is it not?
Mr. CILLIE:Maybenot at the moment-this whole situation isevolving,
as you know.
Mr. GRoss: When you say "maybe not" do you have doubt about
that matter, sir?
Mr. CILLIE: Well, I am not so conversant with the precise position
there.
Mr. GROSS:In South West Africa?
Mr. CrLLIE:In South West Africa-I do not know whether they have
little councils, perhaps they have spontaneous councils which make
representations to the Government-1 do not know.
Mr. GROSS:How long have you resided in South West Africa, sir?
Mr. CILLIE: I have never resided in South West Africa. I have been
there on and off on visits.
Mr. GROSS:Approximately how much time, would you tell the Court,
have you spent there?
Mr. ÙLLlE: I would not like to make an estimate-it would be a
matter not of months but of weeks.
Mr. GRoss: And what portions of the Territory have you visited, sir?
Mr. CrLLJE:The north, Windhoek and Rehoboth.
Mr. GROSS : The north being what, sir?
Mr. CILLIE:Up to Ovamboland.
Mr. GROSS:How much time did you spend in Ovamboland approxi-
mately?
Mr. CrLLIE:That was just a flying visit.
Mr. GRoss: A day or two?
Mr. CILLIE:Yes, maybe.
Mr. GROSS:How much time did you spend in other areas of the
Southern sector outside of Windhoek?
Mr. CrLLIE:I was in the Rehoboth area for say a week or so.
Mr. GROSS:So that you do not regard yourself-would not wish the
Court to regard you-as thoroughly knowledgable about situations in
South West Africa, by reason of what you would cal! first-hand know
ledge?
Mr. Crum: No, I am not testifying as an expert witness on the situa
tion in South West Africa.
Mr. GROSS:Are you testifying as a witness who bas knowledge of
South West Africa at all in any sense of the word other than as a persan
who has visited it for a few weeks?
Mr. CILLIE:I am an editor of a newspaper. I have a newspaper editor's
knowledge of South West Africa which has to be pretty extensive.
Mr. GROSS:That is based upon reports received, no doubt, sir?
Mr. CILLŒ:Yes.
Mr. GROSS:Now you had used in your testimony the expression, I do
not think I had finished that line of testimony-1 am not certain that I
recall your answer-1 just wanted to ask you one more question with
respect to the persans we are discussing who are involved in rny question
to you in the southem sector, the non-Whites. I believe you said that, SOUTH WEST AFRICA
in so far as you know they do not have any participation in the Govern
ment in South Africa that passes laws with respect to the Territory.
Mr. CILLIE:No direct participation.
Mr. GROSS: No direct participation and I think you testi:6.ed that
the only indirect participation they have is by submitting petitions or
requests or making noises, would that be a fair interpretation of your
testimony, sir?
Mr. CrLLIE: Well, I think it is a very derogatory way of describing
petitions, as making noises.
Mr. GRoss: Well, I thought you said that they have ways of making
their affairs known-their objections known-I will not insist on that
phrase. Is there any other method by which they can advance their in
terest other than by submitting petitions or making statements?
Mr. CrLLIE: Many of them are in fact linked up with their tribal
organizations in the various non-White areas and these have been built
up further. The idea is to build them up into organic and representative
institu tians.
Mr. GROSS: Thank you, sir. In your testimony you refèrred, if I under
stood you correctly, to "integration" in the sense that, according to my
notes, the policy of "integration" is feared by the White ruling group.
Is that a substantially correct version of your testimony?
Mr. CILLIE: Yes, that is a generalization-I should say by the large
majority of the ruling group.
Mr. Gnoss: And what to your mind jsthe meaning of the word "inte
gration" used in your response to Mr. de Villiers' question?
Mr. CrLLIE: I de:6.nedit more closely as what I call the one-nation
concept~the forming of one nation in the modern sense of the word or
the generally accepted sense of the word, out of various and divergent
peoples.
Mr. Gnoss: You were thinking, sir, of political integration in that
sense?
Mr. CILLIE: No, I think I was thinking ... I cannot remember the
context ... I was thinking in general of social, economic, political inte
gration~we do not think we can separate these concepts very clearly.
Mr. GROSS: \Vell, can we discuss one aspect of that for a moment,
with the President' s permission: the economic integration that you
mentioned. \Vould you regard what the Odendaal Commission report
refers to as "[the absorption of] approximately half of the Herero"
this is one example-as they put it, in the "White economy" of the
southern sector, as a form of "integration" in the sense in which you use
the latter word?
Mr. CILLIE:No, it would be a partial integration only-even economi
cally it is only a partial integration.
Mr. GROSS: And what makes it "partial", sir, in your sense of the
term?
Mr. ÛLLIE: That they are not completely accepted; they are not com
pletely accepted even economically inside the ...
Mr. GROSS: By "accepted" do you mean, sir, that they are subject to
certain limitations enforced upon their freedoms?
Mr. Crurn: Well, you are speaking economically now ...
Mr. GROSS: I am talking about economic integration.
Mr. C!um: There are certain limitations on their economic advance
ment. WITNESSES AND EXPERTS 537
Mr. GROSS:And who imposes those limitations, sir?
111r.CrLLIE: The laws of the Parliament of the Republic of South
Africa.
Mr. GRoss: Of what you talked about as the "ruling White group"?
Now in the "diversified economy of the southern section" South West
Africa, as the Odendaal report described it,are Whites in competition
with non-Whites for positions and jobs?
11IrCILLIE: That would only be for lower rate economic jobs-it could
possibly happen.
i\Ir. GRoss: Now, do they compete only at that level for any reason
that relates solely to the capacity of the individual persons involved?
Do you understand my question?
Mr. C1LLIE: No.
Mr. GROSS:I am not sure I understood your response. I will rephrase
my question, if the President will permit. You said, ifI understood you,
that the competition between the \Vhite and the non-White cxisted
only at certain levels, and I understood you to say "at certain lower
levels".
Mr. CrLLIE: Weil, possibly at lower levels.
Mr. GROSS:Weil now, perhaps I could statc my question this way.
For what reason, if any, would it be truc that competition between Whites
and non-Whites in the economy does not exist at higher lcvels than you
have in mind in your response?
i\frCILLIE: Well, there are several answers to that-the first part of
the answer is what I tried to explain in my main evidence, that you have
to protect the sense of security of the \Vhitcs in order to make them be
have wisely. If they are racked with fears, hostilities and bitterness they
cannot behave as real trustees should.
In the second place you are telling these groups that thcir real future,
their advancement, unlimited advancement, does not lie in this southern
sector, it lies in their varions homelands. You want to direct their ambi
tions, you want to direct their encrgies to the development of their own
homelands.
Mr. GROSS:Do I understand you to say that in order to alleviate or
avoid tensions or jealousy or other emotional phenomena that might
interfere with the sound exercise of conscience on the part of the trustee,
non-Whites are deprivcd of economic advancement up to the level of
their individual capabilities?
;\Ir. CrLLIE: You can only deprive a man of something that he has al
ready had. This is no deprivation.
Mr. GROSS:Sir, I am sure you misunderstood me, because your answer
baffles me and rdo not want to argue with you. Do you mean to say that
you cannot deprive a man of an opportunity to achieve something he
has never had?
;\fr. CrLLIEBut we are opening up opportunities ail the time.
)fr.GROSS: In the southern sector of the Terri tory outside the Re
serves?
1\Ir.CILLIE: Even there, I would not be surprised if opportunities are,
all the time, openîng up on a limited scale, but the opportunities are
certainly not going to be unlimited.
Mr. GRO!:S:Have there been any restrictions or alleviations of the
job reservation policy, so far as you arc awarc, within the last year?
Mr. CrLLIE: The job reservation policy is a vcry, very flexible policy538 SOUTHWESTAFRICA
indeed. I have not got the details here, but the job reservation policy is
being applied with the greatest flexibility all the time.
Mr. GROSS:By flexibility, you mean that the ceilings are being raised?
Mr. C!LLIE: No, in effect, job reservation demarcates jobs to certain
races in certain areas of employment and the flexibilities corne in when
you raise either the percentage of Whites or the percentage of non
White or Blacks or Browns or whatever you have, because this is not
merely a question of reservation as between Whites and non-Whites, it
is a question also of reservations between these various groups.
Mr. GROSS: I am talking only about the ceiling set upon a person be
cause he is non-White. There are such ceilings, are there, applicable in
the Territory?
Mr. CILLlE: Yes, but now again ...
Mr. GROSS:You cannot answer that question?
Mr. ÛLLIE: lt is a varied position altogether because there is no ceiling
to a non-White doctor, following his profession in the southern sector,
there is no ceiling at al]to that. In certain areas of employment there
are certain limitations, but it is noa universal ceiling that kceps every
bodv down to the levcl of ...
Mr. GROSS: Idare say that there would be no universal ceilings, exccpt
thë blue sky. I was just asking whether therc are, or are not, ceilings
which are imposed upon non-Whites, solely on account of the fact that
they are non-White. Can you answer that, yes or no?
Mr. CILLIE:Would you repeat that, please?
Mr. GROSS:Arc there ceilings imposed upon non-Whites, solely on
the basis of their being non-White?
Mr. CILLIE:Yes, as long as you say this is a selective process and not
a ...
Mr. GROSS:You cannot answer that, yes or no?
The PRESIDENT:Let the witness answer bis question.
Mr. CILLIE:It is not a general ceiling. Your question seems to imply
that there isa sortof general ceiling keeping everybody clown. That is not
the position.
Mr. GRoss: I am not implying anything, sir. Can you tell the Court
whether or not there are any ceilings placed upon economic advance
ment with regard to non-Whites, solely on the basis that a person is a
non-White?
Mr. CILLIE:Are you talking about the southern sector, now?
Mr. GROSS:Yes, sir.
Mr. C1LLIE:Yes.
Mr. GRoss: That is ...
Mr. C!LLIE:The answer is yes.
Mr. GROSS:And the answer is "yes" to the question that there are
ceilings placed upon non-Whites, solely because they are non-\Vhites?
Is that correct?
Mr. CILLIE:No, I would say no. If you put it like that, I would say
placed upon them because they do not belong to the \.Vhite group.
Mr. GROSS:You would prefer to state it that way, sir?
Mr. C1nIE: Yes.
Mr. GRoss: Ali right, sir. Now, I would like to refer to the testimony
of Professor Bruwer on 6 July, at page 296, supra, in which Professor
Bruwer was asked to define the term "integration" and he stated as
follows: WITNESSES AND EXPERTS
539
"I would say that integration would be where you create a society
by giving rights and privileges to members of other groups, who
have already got their rights and privilegcs in another area, in that
specific Society of another group."
That was his response. Then, just to complete my question, on page 297
of the same verbatim, in response to a question as to how he understood
"economic integration", he said "what I understand by economic inte
gration would be that one would have ail the rights and privileges con
nected with the economy of that country". Would you accept that as a
definition of economic integration?
Mr. CrLLIE: Well, I would have to think that over. I would not put
it exactly Hke that, but it sounds tome more or less correct.
Mr. GROSS: Now, you having used the phrase "economic integration",
I should like to ask you, again, if I have asked you before, how you
define that term, in your usage of it?
Mr. CrLLIE: It is very difficult. You know, you sometimes think that
you have a clear idea of these concepts and then when you have really
to define it, it becomes rather difficult. Economie integration, to me,
would be the idea of what I call a one-nation concept in the economic
sphere, that everybody would be able to advance in a single economic
structure, to the limit, that there would be no limitations, no differentia
tions, no discriminations at ail.
Mr. GROSS: No discriminations bascd upon ...
Mr. CrLLIE: Upon group affiliations, at ail.
Mr. GROSS: Upon group affiliations. where the individual would be
given economic opportunities in accordance with his innate capability,
quality, capacity, would that be within your concept?
Mr. CrLLIE: Yes. In one area, in one economic structure.
~Ir. GRoss: Weil, we are talking now about a particular area and a
particular economic structure, to wit, the southern sector, and in order
to avoid confusion in the Court's mind, which bas sometimes been
engendered in mine, as to whether we are talking about one area as
against another or within one area, if you will bear with me, we will
.confine ourselves, as I saidat the outset of this line of questions, to the
southern sector outside the Reserves.
The PRESIDENT: You askcd him what he mcant by an integrated
economic society.
Mr. GROSS: Economie integration within this area, yes, sir.
The PRESIDENT: That was at large was it not?
Mr. GROSS: If it was, sir, then I will apologize to the witness for
having forgotten the point of my own Iine of questions. I would like to
ask you then, with respect to your answer to my question as at large,
would you give the same answer with respect to the limited area? I am
now discussing the southern sector outside the Reserves.
Mr. CtLLIE: Yes, I would have to change my terminology, but it would
be the same sort of idea of a one-nation concept operating in that area.
)fr.GROSS: Now, within this area. Professor Bruwer, in his testimony
at page 319, supra, in response to a question, testified-and I will qualify
this by saying "in effect" because it is a fairly lengthy exchange but the
"effect" was, and I will ask you to comment about it, assuming I am
correct in my paraphrase of it-that "thcre will always be a need for
non-White labour in the White sector". Do you agrcc with that state
ment, sir?540 SOUTH "WEST AFRICA
Mr. CILLIE:Always is a very long time.
l\fr.GROSS: Would you then agree with the following statement,
which is more specific? It appears at page 320 of the same verbatim.
I asked Professor Bruwer "I take it that the Odendaal Commission con
sidered that the present non-White population was an indispensable
feature of the functioning of the White economy. That is correct, is it
not?" And l\lr. Bruwcr replied "Mr. President, that is correct, for the
present and the foreseeable future". Would you agree with that?
Mr. ÛLLIE: That would be a better ...
Mr. GROSS:For the foreseeable future?
Mr. CILLIE: Yes.
i\fr. GROSS:That non-White labour is an indispensable feature for
the functioning of the "White economy"?
Mr. CILLIE:As I told you, I have no very close knowledge of the local
conditions in that area, but I would accept Professor Bruwer's opinion
about that.
Mr. GROSS:Does your newspaper have an editorial policy, with respect
to South West Africa, on this matter?
Mr. ÜLLIE: We wouid probably fo1lowthe line that Professor Bruwer
has taken.
Mr. GROSS:Now, I would like to clarify, for the benefit of the Court,
the basic element or premise of separate development or apartheid,
with respect to the problem of physical separation of races. Docs the
policy of separate development involve a substantial physical separation
of races in different territories, different areas, economically speaking?
l\IrÛLLIE: I am not quite sure what you are driving at. It docs en
visage a substantial physical separation, but there is no idea of really
cutting up the South African economv ...
Mr. GROSS:South West Africa. "
Mr. Cu.LIE: ... South West African or South African economy in
watertight compartments. That would be utter foolishness.
l\frGROSS:Weil, just to a,·oid more general terms than the question
may warrant. physical separation in the economic context-by that I
meant, does the policy of separate developmerit or apartheid contcmplate
the physical separation of non-Whites from the \,Vhite economv, in any
area of South West Africa? ·
Mr. CrLLIE: Yes. You said substantial, you used the qualification
"substantial"-you have now made it absolute.
Mr. GRoss: I have now said "any", yes.
Mr. (ILLIE: Yes, certainly, if you have hornelands for people, you
expect that as these lands develop, that a substantial majority of them
will, in the end, makc their home there, make their living there.
Mr. GROSS:There will then be, under this premise of separate develop
ment, never a total physical separation, from the standpoint of the
operation of the "White economy", so-called, in South West Africa?
Is that correct?
Mr. CILLIE: No, no, we shall need them and they will need us, for a
long time to corne, you see. I mean, this is a mutual co-operation, that
you will need labour from those areas and that labour will need the
work that you can supply.
Mr. GROSS:And that is in the foreseeable future?
Mr. CILLIE: In the foreseeable future.
l\fr. GROSS:Now, with respect to those non-Whites who will be inel- WIT:SESSES AND EXPERTS 541
igible or else unwilling, or for some reason do not remove themselves
physically from the White economy, will they remain under the apartheid
policy, subject to restrictions upon their freedoms, so long as they remain
in the "White economy"?
Mr. CrLL!E: That was rather difficult to understand, but as I under
stood it, there is no question of forcibly making a physical scparation ...
Mr. GROSS: Perhaps I may resta te my question, sir. With respect to
the non-Whites who remain for any reason in the "White economy",
willthey, under the policy of separate development, be subject to limita
tions upon their freedoms, such as, for example, job reservation?
Mr. CILLIE: Yes, but with the various flexibilities that we do have
in changing drcumstances.
Mr. GROSS: But, in principle, as a matter of policy, there will be some
limitations imposed by reason of their colour. Is that correct?
Ms. CtLLIE: It is not a question of colour. It is not mainly a question
of colour, it is a question of different peoples. These people are lesser
developed, they are different from us and they haven't attained the
Western standard of living. I don't know why you are concentrating
on colour.
Mr. GROSS: I am not concentrating on colour, sir, except that itseemed
that the Odendaal Commission constantly uses the expressions "White"
and "non-White", and l was rcfcrring to colour in the sense in which
the Odendaal Commission used the word "VVhite" or "non-White". l had
no other meaning in minci. Now, just to clarify the answer to my question,
would a non-White pcrson, who remained in the economy, then be sub
ject to restrictions or ceilings. as a matter of policy, under the doctrine
or policy of apartheid?
l\IrCILLIE: The ceilings could be raised in certain cases. In other cases,
the ceilings do not exist. l told you a non-White doctor was quite free
to operate in that sphcrc.
Mr. GROSS: So that thcre is no policy or principle. with regard to
ceilings placed on the advancement of non-Whites in the "White ccon
omy"?
Mr. CILLIE: No, this is an empirical policy. It is not a question of
principle that you have limitations and keep them there for cver, never
lift them and never adapt them. This is a changing situation.
Mr. GROSS: Do you foresee thcn, sir, that the restrictions, or ccilings,
or limitations will be liftecl with respect to the non-Whitcs in the "White
economy"?
Mr. C1LLIE: In somc cases they don't exist now.
Mr. GROSS: Where they do exist now-would you answcr my question
in those terms? Do you foresec that they will be lifted in the policy of
apartheid?
l\IrCILLIE: I can see them being adapted, but as l sec things at the
moment I cannot sec some of them being lifted in the foreseeable future.
l\IrGROSS: So that some will remain? Would vou sav that it was a
fair interpretation of your testimony that those \vhich "rcmain will be
retained on the ground of preventing the White group from devcloping
jcalousies, or other emotions, which will preclude them from bcing fair
trustees? Is that a fair paraphrase of your testimony, sir?
Mr. CrLLlE: No, I don't think so. These people will certainly not stay
there if greater opportunities open up to them back in their homclands.
If there were more work therc, more advancement and no limitations542 SOUTH WEST AFRICA
at ail in their particular sphere of employement, they would prefer to
go back. Nothing would prevent them.
Mr. GROSS:Now, this is what I was referring to before about the
problem of remaining within the area which I am talking about. I am
talking about the non-White who remains in the area. What would be
a fair paraphrase (or state it in your own way)-what would be a fair
explanation of the reason why certain ceilings will be imposed on a non
White who remains in the White economy, other than the one I have
mentioned? What reasons would you assign for the maintenance of
ceilings?
Mr. CILLIE: But I told you that there were there two considerations:
on the one band, the protection of the White man's feeling of security,
protecting it against encroachment and making it possible for him to
follow a statesmanlike policy; on the other hand, there is also the object,
in certain cases,whether you really want this particular Herero or Ovam
bo to go back to his homeland and to serve his people there. On the
one side you could say it is a negative consideration, on the other side,
a positive one.
Mr. GRoss: The two elements, then, with respect to the non-White
who remains in the "White economy" are, fi.rst, if I understood you
correctly, to prevent encroachment on the \Vhite and, secondly, to facil
itate the ·white serving as a good guardian. Is that a fair paraphrase?
Mr. CrLLIE: That is only one part of the story.
Mr. GROSS:Are there any other factors relevant to the non-\Vhite
who remains in the White sector?
Mr. CILLIE: No, you were talking about the limitations, any sort of
limitations. I was saying that these limitations have a double function.
They are a guard against undue encroachment and they also serve as
an encouragement for non-White groups and non-White peoples who
are qualified to serve their people in the areas where they establish their
homelands.
Mr. GROSS:Do I understand you to say that the ceilings imposed
upon the non-\Vhite are designed to encourage him to leave the area?
Is that what you meant?
Mr. Crurn: Yes. Weil, you put it rather as if it were a question of
driving him out. If you have a ceiling here and you don't have a ceiling
there, people are inclined, if the economic possibilities are there, to prefer
the area where there is no ceiling.
Mr. GRoss: That would be an observable human phenomenon, would
you say, sir?
Mr. Crurn: Yes. I think a Spaniard would rather not work in Rolland,
he would like to work in Spain if the economic opportunities \Verethere.
Mr. GROSS:If Rolland limited his freedom?
l\frCILLIE:They do.
Mr. GRoss: I did not know tha t, sir. Now, I would like to read to
you a quotation from the verbatim record at page 3I7, supra, in which
Professer Bruwer responded to a question I asked him, my question
being:
"So that an individual and his family, who were born, perhaps,
in the White sector, have the option of remaining there so long as
he pays the price of the limitation upon his freedom, or else taking
himse!f and his family and removing outside the area. Is that the
alternative posed by the Odendaal Commission?" WITNESSES ANDEXPERTS 543
and Mr. Bruwer answered:
"Mr. President, that is the alternative within this framework
[meaning the framework of the policy of apartheùIJ."
Do you agree with Mr. Bruwer in his response to me?
Mr. C!LLrn: Yes.
Mr. GROSS:Would you characterize this situation in terms of an option
to remain or escape? Would you accept that characterization?
Mr. CILLIE:Escape is a very hard word in this connection.
Mr. GRoss: I won't press it, sir. You have referred several times in
your testimony, if I correctly understood it, once in particular, to re
drawing the map of South West Africa, if I understood the expression,
and that the Government was only at the beginning of demarcating
the areas and that there would be Native states under the present pro
jected plan. with their own self-governing statesI think you called them,
in the "way we have chosen" were the words I quoted.
Now, first,with respect to the re-drawing of the map of South \Vest
Africa and the process of demarcating the areas, are you aware whether
the Government has consulted with the supervisory agency over the
Mandate, specifically with the United Nations or any other international
agency, with respect to rc-drawing the map of South West Africa?
Mr. C!LLIE: I would think not.
Mr. GROSS:When you say "the way we have chosen", what, sir, do
you mean hy "we"? Who is "we"?
Mr. CrLL!E:Yes, that is rather a broad "we". I think I was thinking
generally of the Govcrnment and the ruling party in South Africa.
Mr. GROSS:Then, if I understand you correctly, that would be a
unilateral determination made by the ruling party, the ruling people?
\Vas that the phrase you used in your testimony?
Mr. C!LLIE: If you want to call it that.
Mr. GROSS:I wouldn't care what you wish to call it, sir, I was just
wondering what your meaning was, whether or not the "we" meant the
ruling White group in the context of your expression.
Mr. CILLIE: Yes, the ruling White party, the ruling White Govern
ment in South Africa. One would not like to include in this gene'[al
ization the whole of the Opposition.
Mr. GROSS:Now, you also referred in your testimony, according to
my notes, to the fact that "there will arise new possibilities of contact
and consultation and it stands to reason that as children grow up their
wishes have to be taken into account". \Vere you using the analogy of
the child to ail of the non-Whites as a group in South \Vest Africa?
Mr. CrLLIE:As groups.
Mr. GROSS: Do you accept the term "group" as applying to non
Whites as such?
Mr. CILLIE:No.
Mr. GROSS:In respect of the relationship between White and non
White, how would you characterize the collectivity known as the White
as distinguished from the collectivity known as the non-White? What
word would you use other than group?
Mr. C!LL!E: But thcre is no collectivity of the non-Whites. Except
in one's mind, there is no collectivity of non-Whites.
The PRESIDEN'TT : here is a mathematical collectivity, I suppose.
Mr. GROSS:Now, I am referring, sir, to the collectivity which is corn-544 SOUTH WEST AFRICA
posed of persans whose freedoms, or opportunities, are established or
limited on the basis of their classification as non-White. Is that a sufficient
designation of a collectivity?
11r. ÛLLIE: But there are differentiations between them too, you see.
It is not a question of a universal set of limitations imposed upon all
non-\Vhites in South \Vest Africa, or in South Africa. There are differen
tiations between these various groups.
Mr. GRoss: Are you aware of any legislation which fixes rights, or
limits rights or freedoms, such as job reservation, which is based upon
the mere fact of being non-White?
.Mr. Crum: I am not so sure. Yes, you could have some legislation.
Mr. GRoss: You could have~but do you, sir?
Mr. CrLLIE: I think we have. That may happen. But I am just sug
gesting to you that there is no such thing as a universal set of limitations
applying to everybody.
Mr. GROSS: I am not intending to refer to universals, sir. I would
Iike, however, to ask you a few more questions and conclude.
You said, in your testimony, that you could foresee at least one Black
state in South \~lest Africa. Was this a correct rendition of your testi
mony?
Mr. CILLIE: Yes, that was a personal opinion.
1fr. GRoss: Now, is it an opinion of the Nationalist Party or the
Government, so far as you are aware?
Mr. CrLLIE: No, I think it is a general idea amongst nationalists.
I don't think it has been forrnulated in a policy statement, but you can
see that some sort of viable state could be formed out of Ovamboland.
Mr. GRoss: And do you foresee any other viable, so-called Black states
in South West Africa?
?.IrCrLLIE: Not very easily, no. I can see some collections, if they
want to get together. They could perhaps form collectivities, as you
call it.
Mr. GROSS:Briefly, in responding to ].\fr. de Villiers' question as to
what you regard as threats to orderly evolution, you referred to threat
of "encroachment" by one group upon the "preserves" of another. \Vould
you apply that staternent specifically to the southern sector ~utside the
Reserves, the so-called modern economy of South West Afnca? \Vhat
would be the "preserves" of whorn, and what would constitute "encroach
ment", in your use of the phrase?
Mr. CrtLIE: Well, that is very difficult. You ask me for examples
now from a territory that I don't know very closely. There is certainly
not a very highly developed economy in the southern sector of South
\Vest Africa and these encroachments, or dangers of encroachment, really
arise in industrial situations.
Mr. GRoss: Excuse me, sir, have you finished? Would the "encroach
ments" you refer to include economic competition?
Mr. CILLIE: Yes, unfair econornic competition.
Mr. GRoss: What do you mean by "unfair", sir, unfair by reason of
race or are there any other criteria?
Mr. Crurn: Well, people on a lower level of civilization are sornetimes
willing to work at lower rates and you have to protect the civilized
standards.
Mr. GRoss: But would this, or would it not, be a justification for
setting ceilings on the non-White? WITNESSES ANDEXPERTS 545
Mr. CrLLrn:It would certainly be a justification for demarcating rights
and demarcating ...
Mr. GRoss: I asked you about setting a ceiling on non-Whites-would
that be a justification or explanation for setting a ceiling on the level
which a non-White could attain?
Mr. CILLIE: Well, if you can remove the ceiling with safety to group
relations, certainly,by all means let us do so. But if you have ccilings
for a good reason, because if they were removed you would have an ugly
group relations problem on your hands, I would say, keep the ceilings
rather than have that.
Mr. GROSS:Does the element of cushioning the Whites against eco
nomic competition from the non-Whites enter into the policy to which
you are referring and which is described as apartheid, or separate devel-
opment? .
Mr. CrLLIE: "Cushioning"-I think that again is a loaded word,
Mr. President.
Mr. GRoss: \:Vhat word would you substitute then?
The PRESIDENT:I think you had better substitute the word yourself
becausc you are seeking an answer, rather than ask the witness, Mr. Gross.
Mr. GRoss: \Vell, I like the word "cushioning". Would you respond
in the following form? Does the prevention or limitation of competition
between White and non-White enter into the policy of apartheid, or
separate development? Does it play arole in the policy itself?
Mr. CILLIE:Certainly, the limitation of competition in the sense that
you cannot have indiscriminate competition between these various
groups.
iVfr.GROSS:Mr. President, I have a few more questions. I heard the
bell. I \vould like the guidance of the President. May I continue? I think
I can finish, sir.
The PRESIDENT:Yesterday, Mr. Gross, you said you could finish your
cross-exarnination of a witness in a quarter of an hour if the Court
continued into the luncheon hour, which the Court did not see fit to
do, but it has taken you an hour today to complete that task. How
long do you say it will take you tonight?
Ilfr. GRoss: About five minutes. May I ask, sir, is the Court to have
a session tomorrow rnorning?
The PRESIDE:'-ITI: must first direct a question to Mr. de Villiers.
i\frde Villiers, is the present witness your last witncss before the surnmer
recess?
Mr. DE VILLIERS:Yes, Mr. President. I did not expect this degree of
co-operation in curtailment of the tirne to be taken by the witness, so
there is nobody to follow hirn.
The PRESIDENT:Very well, then pcrhaps we might continue and see
whether ,ve can conclude this evening.
Mr. GRoss: Yes, sir. Thank you for your patience, sir. I rcally would
like to address myself to not more than two more lines of question.
These fall into the general area of testirnony with respect to education
and I should like torefer to the Reply of the Applicants, at IV, page 451,
which is headed "Government and Citizenship in Dependent Territories,
as viewed by the United Nations" and the sub-heading is "United
Nations policy regarding establishment of universal adult suffrage". I
should like to ask your comment on the following brief quotations,
which I should Jike to read to you, sir. SOUTH WEST AFRICA
The first is a quotation from the Repertory of Practice of United Nations
Organs which is cited in the footnote.
"Among the forms of development supported by the acbons of
the Trusteeship Council, either by approval of existing policies or
by recommendation, has been ... the introduction of methods of
suffrage leading eventually to elections by universal adult suf
frage ... "
Do you favour the introduction of methods of suffrage which might
lead eventually to elections by universal adult suffrage? Would that be
compatible with the policy of apartheid or separate development?
Mr. ÛLLIE: Well universal adult suffrage is quite compatible with
the policy of apartheid as long as you define the group in which this
voting power operates.
Mr. GROSS: May I define it for you, sir, so that you can answer my
question briefly and responsively? I defi.ne the group as ail those who
may be determined to be qualified in a geographical area specifi.cally in
this case South West Africa.
Mr. C!LLIE: And you are asking my opinion on that as a prospect
for South West Africa?
Mr. GRoss: Yes, sir, that is allI am talking about, sir.
Mr. CILLIE:It would mean chaos. .
Mr. GRoss: It would mean chaos. And then secondlv-I read from
the same page-this is from the report of the Trusteeship Council and
it is cited on page 232 in the footnote:
"The Trusteeship Council has consistently recommended 'such
democratic reforms as will eventually give the indigenous inhab
itants of the Trust Territory the right of suffrage and an increasing
degree of participation in the executive, legislative and judicial
organs of government' ... "
Do you agree with that standard, sir?
Mr. Crnm: Yes, if I heard correctly I think that is quite a good
standard but then I am nof quite sure that I heard correctly.
Mr. GROSS:
"Such democratic reforms as will eventually give the indigenous
inhabitants of the Trust Territory the right of suffrage and an in
creasing degree of participation in the executive, legislative and
judicial organs of government ... "
Mr. CILLIE:Yes, if that word "organs" means different organs for the
various groups I agree with it.
Mr. GROSS: Would you take it perhaps, for the sake of another re
sponse, as meaning one organ, either in the sense of a unitary organ of
a State or several organs in a federated State?
Mr. ÛLLIE: Yes, as I told you, I do not like the concept of federation,
because it does put the whole development into a strait-jacket. But if
these people, once they know their own minds, once they have built up
self-governing organs through which they can express themselves, if they
want to federate say, a certain group of peopJes including perhaps the
White people in South West Africa, if they want to federate, I would
agree, because then they have a will of their own.
Mr. GRoss: But it would have to be, in your opinion, in order to avoid WITNESSES AND EXPERTS 547
whatever the word vou used was, "disaster" I think, an agreement
among separate groups, is that correct, sir?
Mr. C1LLIE:Yes.
Mr. GROSS: And finally the Trusteeship Council in 1950, following upon
a recommendation to the British administering authority of Togoland,
in this case, noted with satisfaction, and I quote:
"... that a beginning has been proposed by the Coussey Committee
in the introduction of methods of suffrage on all levels of govern
ment, appreciating the difficulty of introducing at once a modern
system of suffrage, recommends that all necessary educative mea
sures be undertaken to prepare the population for the adoption of
universal suffrage with the least possible delay."
May I ask you, sir, first do you regard this standard, as thus expressed
by the United Nations organ in question, a revolutionary standard or
an evolutionary standard?
Mr. Crnu,:: I don't know enough about Togoland. It may be perfectly
ailright for Togoland.
M:r.GROSS: Therefore you would not be prepared to reject this as a
principle or standard in certain areas?
Mr. C!LLIE: No, certainly if they are a fairly homogeneous people or
you can weld them togcthcr by some system of education in the fore
seeable future, I see no objection to that sort of ...
Mr. GROSS: But in South West Africa you would not agree to any of
the elements of this-"the introduction of methods of suffrage on ail
levels o( government, appreciating the difficulty of introducing at once
a modern system of suffrage"-would you disagree with that in South
West Africa? ·
l\frCrnIE: Yes, but in South West Africa you have these very dis
parate elements, and I cannot see you getting them to work in one
system at all, unless you impose it with force majeure, and that iscertainly
going to start enmitics between the various groups that you will never
sec the end of.
!\frGROSS: And may 1 ask the ncxt element? Do you agree with this
element of the United Nations standard which enters into those for
which the Africans tru\y ... ?
The PRESIDENT: It is not a United Nations standard, it is a United
Nations observation in relation to one particular trusteeship territory.
Mr. GROSS: 1 accept that correction, sir.
"recommends that ail necessary educative measures be undertaken
to prepare the population for the adoption of universal suffrage with
the least possible delay".
Do you feel that that is not applicable to South West Africa without
dire cqnsequences?
i\1rCILLŒ: No, not in that form, notas a single territorial unit or a
single political system. that cannot be done.
Mr. GROSS: And "educative measures"?
Mr. C1LLJE: \Ve can do the cducation all right.
Mr. GROSS: \Vould the educative measures prepare the population
for the adoption of universal suffrage? Would that be incompatible with
the situation in South West Africa?
Mr. CIL LIE: I do not see how education is going to make an Herero
Jess of an Herero. Jt is going to make him more of an Herero, and that SOUTH WEST AFRICA
goes for an Ovambo too, and for ail the peoples of South West Africa.
Mr. GROSS: One final question, Mr. President, if I may. The Counter
Memorial, which is one of the Respondent's pleadings in the case, in
Book IV, Chapter VII, at 11,page 471, statcs as follows:
"The policy of separate development is not based on a concept
of superiority or inferiority, but merely on the fact of people being
different.''
Now, would you regard the assignment of priority rights to Whites
in the White sector of South West Africa or to "white domination"-!
quote the phrase by Prime ~Iinister Verwoerd which is quoted in the
Rejoinder, V, page 213-or your own phrase "White rule", as being
compatible with equality between the Whites and the non-Whites?
Mr. CrLLIE: This is balanced by priority rights for the varions non
\Vhite peoples in other parts of South West Africa.
Mr. GROSS: Within the area itself in which the non-Whites are "ab
sorbed in the economy"-in the words of the Odendaal Commission
report-and where in the foreseeable future they will be needed-in that
context would you regard these phenomena, White domination and so
forth that I have just mentioned, as being compatible with equaiity
between Whites and non-\Vhites in that sector?
Ilfr. CrLLIE: No, there is no equality of Whites and non-Whites in the
White sector, just as there is eventually going to be no cquality between
Whitcs and Ovambos in Ovamboland.
Mr. GROSS: Now, confining ourselves finally to the White sector, is
the economic subordination of the non-Whites in that sector equivalent
to "inferiority" in any sense of the terrn?
Mr. C1LLIE;But you talk as if these people are doing the Whites a
wonderful one-sided favour by working for them. Thesc people need
work, they come there to work, they get paid for it. l am not aware of a
terribly passionatc urge in this particular sector of South West Africa
for breaking ceilings or changing racial demarcations, I have never
heard of it.
Mr. GROSS: Or economic equality?
Mr. CrLLIE: I have never heard of a tremendous movement therc,
because these people arc fairly low down in the economic scale, and, of
course, as they corne up, adjustments are going to be made.
Mr. GRoss: Thank you, Mr. President, for your patience.
[Public hearing of I4 July r965]
The PRESIDENT: The hearing is resumed, and I call upon Judge
Forster who desires to put a question to the witness.
Judge FORSTER: Monsieur l'expert, pouvez-vous me dire, en votre
qualité d'expert en apartheid, le souci majeur qui dicta l'application
de l'apartheid dans le Sud-Ouest africain. Est-ce le souci d'accroître
le bien-être matériel et moral, ainsi que le progrès social des habitants
du Territoire ou bien est-ce le souci de protéger les intérêtsdes Blancs
moins nombreux que les indigènes.
Mr. CrLLIE: I would answer that question by saying that it is really a
matter of both purposes. The White people of South West Africa is also
a people of South West Africa. The policy there is followcd for the pro
tection of ail groups. Do I have to expand on that, Mr. President? WITNESSES ANDEXPERTS 549
The PRESIDENT:No, you just give the answer that you feel that you
should give to any question which is put to you. Is there any further
question, Judge Forster?
Judge FORSTER:Non, merci, Monsieur le Président.
The PRESIDENT:Sir Louis?
Judge Sir Louis MBANEFO:My question seems to lead off from the
last question, and in doing so I would like to refer you to some passages
of your evidence. Sorne of them I shall quote from the verbatim record
of yesterday morning; the transcript of your evidence of yesterday
evening has not yet been supplied, so I have got to read from my own
notes, and if it is not correct, will you please correct me?
Mr. CILLIE: I shall do so.
Judge Sir Louis MBANEFO:Now, in the verbatim record at page 508,
supra, you were asked to give the main determinant of the policies of
differentiation, and at page 512,s-upra,you said:
"Wdl, as happened elsewhere, our relationships with these
peoples became more urgent as the tide of anti~colonialism gathered
force during this century. As their aspirations and ambitions grew,
we, the ruling White Africans in these territories, in South Africa
as well as South West Africa, had to see to it that our trusteeship
did not degenerate into oppression."
I take it you mean oppression by the non-vVhites against the Whites?
Mr. Crnm: No, that meant that in our trusteeship as White people
we did not, as the urge to freedom gathered momentum amongst the
various non-White peoples, oppress them just for the sake of maintaining
the status quo. "Oppression" was referring there to possible White
oppression of the non-White people.
Judge Sir Louis MBANEFO:Thank you. And you said, further down:
"These solutions [by people who wanted integration] do open up
a prospect of the White Africans in these two countries being politi
cally overwhelmed by the sheer weight of non-White numbers, and
the overwhelming involves not only the White Africans, it involves
the smaller non-White groups."
Mr. CILLIE: Yes. I would like to put it even more broadly than that
because, as I stated somewhere else, there is no single people in South
Africa or South West Africa that forms a majority. \Ve are in fact all
minority peoples.
Judge Sir Louis .MBANEFOY : es, you said that yesterday.
Mr. CrLLIE: Yes, and as regards non-White numbcrs, one could
envisage a political movcment that tries to unite all non-White peoples
of South Africa and South West Africa on the basis of non-Whiteness;
in other words, a racially contrived majority that could be used by
:ruthless men to oppress not only the \\'._hitcpeople but all minority
peoples-in fact, the whole of the South African population, in the end.
Judge Sir Louis MBANEFO:And you also said, at page 512, sitpra:
"\.Vhen dealing with majorities, or collections of minorities that
could be manipulated as majorities, even the beginnings of such an
integration policy raise such fears among the ruling people that the
policy itself never gets off the ground."
Mr. Crnrn: Yes.
Judge Sir Louis .MBANEFo:Now the question I want to ask: is it550 SOUTHWESTAFRICA
correct to say that the basic reason for evolving the policy of apartheid
was to safeguard what one of your colleagues called "White nationalism"
in South Africa?
Mr. CrLLIE:That was a basic reason.
Judge Sir Louis MBANEFO:That is a basic reason?
Mr. CrLLIE:That is a basic reason.
Judge Sir Louis MBANEFO:To avoid being overwhelmed?
Mr. C1LLIE:Yes.
Judge Sir Louis MBANEFO:By the more numerous amount of people?
Mr. CILLIE: Yes, to avoid losing our freedom, to avoid losing the free-
dom that we w'onin a very hard way in South Africa.
Judge Sir Louis MBANEFO:That assumes a basic antagonism between
the two nationalisms.
Mr. CJLLIE:Basic antagonism? No, not necessar.ily. l donot see why
there should be a basic antagonism at al!.
Judge Sir Louis MBANEFO:But if that is so, then why should the mere
mention of integration raise fears amongst the minds of the people?
Mr. CILLIE: Well, you do not want to subject your own nationalism
to any other sort of nationalism-I mean, it does raise fears, as it would
raise fearsin any similar situation where you have two peoples, say the
Dutch people and the German people. Their nationalisms may not be
basically antagonistic, but I think that as soon as you start trying to
integrate on that basis, if you try to integrate the Dutch with the German
people, you immediately would see the most awful results in the form of
hostility and bitterness between these two peoples. Nationalisms can
live together, but as soon as there is the threat of one overwhelming the
other, then you have a situation almost bordering on war. I do not see
that there is any-there need not be any basic hostility; it is a question
of coexistence, a coexistence of two different nationalisms.
Judge Sir Louis MBANEFO:Your example of the Dutch and the Ger
mans I am afraid I find difficult, because the Dutch and the Germans
do not occupy the same terri tory, except in the time of occupation during
the war.
Mr. C1LLIE:Yes, but I did yesterday go into the question that we
are demarcating, that w:e are re-drawing, in a way, the map of South
Africa and South West Africa; we are beginning to make these demarca
tions.
Judge Sir Louis )!BANEFO:What is hoped to be achieved ultimately?
Mr. CrLLIE:A peaceful coexistence, a peaceful co-operation, between
these various peoples.
Judge Sir Louis MBANEFO:And you say that this cannot be achieved
in any other way except by a policy of apartheid?
Mr. CrLLIE: Not that I can see, sir; I cannot envisage it. There are
people in South Africa who differ from me and take various other views,
and they state their case quite openly-we argue these things in the
ordinary, democratic way, we argue it very vehemently, but that line
of thinking-the opposite to my line of thinking-on integration has
been losing ground all along the line during the last, say, ro t20 years.
Quite objectively, I donot think you can win the White people of South
Africa for that prospect.
Judge Sir Louis MBANEFO:I just want to get clear in my mind, you
see,the whole picture. You talk of political separation, but you do not
talk of economic separation. WITNESSES AND EXPERTS 551
Mr. CILLIE:No.
Judge Sir Louis MBANEFO:ls it true that in apartheid-! believe you
said something similar yesterday, but if I am wrong, will you please
correct me-you do not go the whole way in talking of geographical
separation or territorial separation of the groups?
Mr. CILLIE:No, only as muchas possible-if you demarcate a home
land for a people you do envisage that the large majority of them will
eventually find a living and a home there, but to talk about a complete
physical separation with everybody on this side of the line and all other
people on the other sicleof the line-itdoes not make sense in the modem
world-1 do not think so.
Judge Sir Louis MBANEFO:You accept the characterization that it
makes economic nonsense?
Mr. CrLLIE: Yes-it makes economic nonsense if you build a sort of
wall between peoples who are so very closely inter-locked and so closely
inter-dependent in many ways, and I do not sce that political separation
involves economic scparation-you can have a great degree of economic
intcr-dependence and still have political independence.
Judge Sir Louis MBANEFO:So that in the field of economy, apartheid
does not offer the Natives anything new because you already have eco
nomic integration and you do not intend under apartheid to separate
that.
Mr. CILLIE: No, it does offer the prospect of intense development of
their territories, of the varions non-White homelands; it does offer that
prospect.
Judge Sir Louis MBANEFO:Yes, but already the Mandatory is com
mitted to do that. under the Mandate. It is committed to develop the
Territory material1y, socially and morally to the maximum.
Mr. CrLLIE: You sec this is a co-operation really, because the White
people, who are the leading people in many respects in South Africa at
this moment, do offer the know-how, thev offer the administrative and
technological abilities for the developmerÏt of the other peoples, and on
the other hand they accept the labour of the non-White peoples. It is an
inter-locked co-operation; it is give and take on both sides.
Judge Sir Louis MBANEFO:lnter-locking in the economic field?
Mr. CILLIE: Yes, in various ways-by labour, by investment, in all
sortsof ways-there is this inter-dependence and I do not see that ending.
There will always be this inter-dependence between these various peoples.
In fact, we are in rather an opposite position to, say, the European
Common Market, where you first had independence and now they are
working for economic inter-dependence with the retention of a large
measure of political independence. We start from the point where we
already have economic inter-dependence, and we try to give these various
non-White groups forms of self-government and forms of political self
expression.
Judge Sir Louis MBANEFO:Now, I want to read to you from astate
ment by Professor Logan, at page 405, supra:
"In the case of the exceptional individual, sometimes the regula
tions [introduced in South West Africa] bear heavily upon him-1
think there is no question of this ... A few, yes, I think unquestion
ably are harmed by this; we have exactly the same thing in our own
societ ies."552 SOUTHWESTAFRICA
In the course of implementation of the policy this says a few people will
be harmed. Do you accept that?
}Ir. ÛLLIE: We get these odd cases in South Africa and we try our
best to accommodate them.
Judge Sir Louis MBANEFOT : he few, I take it, are those who have ambi
tions to get higher, men of exceptional ability, and I think also that in
the report by the ûdendaal Commission it says that in the Ovambo area
you have approximately 40 percent. of the population are already liter
ate, 40 percent. of the population of ûvambo would give you something
like 95,000 people. Now this few referred to by Professor Logan-have
you tried to work out the degree of misery or how many people would
be affected by implementation of this policy?
l\lr. CrLLIE:No. I mean, being literate does notmake you an exceptional
individual. I think, as far as I gather from your quotation, Professor
Logan was talking about "exceptional individuals" and, of course, we
need these people. If we find in one of these lesser developed groups
exceptional individuals, say in the sphere of administration or in the
sphere of medicine or science, we need them. I mean their own people
need them and we need them to build them up as leaders for their own
people. So, in fact, I think if cases of that kind are brought to the atten
tion-and as I have said, we have an open society and such cases canal
ways be brought to the attention of the authorities by way of the press,
by way of deputations and things like that-we do our best to accommo
date these cases. As I said yesterday, the policy of separate development
is a dynamic policy and it is capable of adjusting itself to the circum
stances as they arise.
Judge Sir Louis MBANEFO:\Vhere I mentioned the 40 pcr cent., I did
not intend that 40 per cent. would be the few but even if you have
I per cent. of the 40 per cent. as the few you are talking about a few
thousands.
Mr. CrLLIE:I could not really put a figure on the exceptional individu
ais in that particular case. Education isgoing ahead there. Education is
a huge movement. You have to build it from the bottom up and you have
to work up to the university standard. To lift the educational standards
of a people is nota simple process, it becomes a whole pcoplc's movcment.
Judge Sir Louis MBANEFO:For these few, they may be a thousand or
more people in South West Africa. the policy offers them nothing. I wonld
like to see what they get out of it-for the misery that they suffer, what
do they get out of it?
l\fr. C1um: No. This is nota question of misery, it is a question of,
in some cases, facilities not being available perhaps for further study,
and we are doing our best to supply those deficiencies. After all, we are
committed to separate development, we need ail the talent that we can
get, ail the leadership that we can get among these people, and you can
be assured that we are doing our best to accommodate all these people
who are of any use in leading their own people to self-expression and
self-realiza tion.
Judge Sir Louis MBANEFO:We have been told in the course of this
sitting that any Bantu in South West Africa who goes abroad and studies
as an engineer should not expect employment in the Wbite sector because
they would not have him-rather that he would not be allowed to work
in a position where he would have White people under him.
Mr. CrLLIE:Yes, that is rather difficult in South Africa-that position WITNESSES A~D EXPERTS 553
is rather dclicatc, but if we have a man like that, we shall find him a place
in the homelands, certainly.
Judge Sir Louis MBANEFO: But the existence of that, you would accept,
is unfair discrimination?
Mr. CILLIE: Yes, it bears rather hard on a man like that if he has this
tremendous desire to work in the White area, but I do not think that
that is a position that is likely to arise-thscope for his talents and for
his know-how is ailthe time being expanded insidc the Bantu homelands,
and we shall find quite a lot of work for him to do in those areas.
Judge Sir Louis MBANEFO: Now you said, and if I am wrnng please
correct me, that the whole idea in South West Africa envisages having
at least one African State that will be viable and others that will not be
viable.
Mr. CrnIE: I suggested that as rather a persona! opinion, because of
the numerical strength of the Ovambo people and also the resources of
the area in which they live. That was more a persona! opinion, because
it also depends upon whether the Ovarnbos want to be a separate viable
state in the end.
Judge Sir Louis MnANEFO: I see you have got your White state on one
side in the White area, now in the Native Reserves would you envisage
a bigger ultimate status, independent states or local governments or
what? Iwould like to get this clear because ...
l\frCrnIE: Sorne of those units could obviously not be independent
states in any accepted sense.
The PRESIDENT: The witness might complete his answer to the question.
Mr. Cru.IE: Sorne of them are so small and the numbers are so Iow
that obviously you cannot speak of all those smaller areas as viable
states. You cannot envisage that, not for the foreseeable future. But the
immediate outlook is that we want them to be self-respecting peoples,
we want to develop their institutions and their organs of self-govern~
ment, and then they will have an organized voice in their own affairs;
they will have a voice which could be heard in the councils of South
Africa, they could talk to the Government in an organized way, not
merely by way of individual agitators and so on. You want to build up
their personalities and then you can talk to them.
Judge Sir Louis MnANEFO: You see, what I find difficult is the term
"self-government". That is a very nebulous term because you probably
have about 50 degrees of self-government.
Mr. Cru.rn: Yes, I agree with you. The degree that is attained by
people depends on so many factors that you just have to start the process
and see where you get, to see what these peoples are capable of and
whether a people is viable or not. If they cannot build a viable state or
viable governmcnt, then you have to make other arrangements, perhaps
bring the various groups together and ask them: How do you see your
future? This is nota matter for unilateral dccision, asI explained yester
day.
Judge Sir Louis MBANEFO: Could you, for instance, say what is the
dcgree of self-government you expect them to attain in ten years from
now?
Mr. ÛLLIE: I wouldn't like to bind myself to timetables at ail in these
matters. Timetables can be very dangerous. You can work on a tentative
timetable and I do not know enough about these territories and about
the administration there even to suggest a tentative timetable, but I SOUTHWESTAFRICA
554
should think that the administration itself would work to some sort of
timetable. They would say: next year we are going to have this sort of
council, perhaps a nominated council to start with, then the elective
process will be brought in. They could wor/{ to a very flexible timetable
and I think that is the way things are being done in South Africa and in
South West Africa.
Judge Sir Louis MBANEFO:I take it, then, that in introducing the
policy to the people you have to explain it to them and get their approval
or consent-some sort of consent?
Mr. CILLIE:Yes.
Judge Sir Louis MBANEFON : ow, what would you be offering them that
would make them agree to the policy?
The PRESIDENT:You mean, what are you doing now, or what will
you do in the future?
Judge Sir Louis MBANEFOW : hen you explain to the people you say to
them: look, this is what we are offering you under this policy, that you
will get, maybe next year, or in five years' time, or ultimately. Have
you worked that out clearly in your mind?
Mr. C!LLIE:No. That is the sort of thing that arises through the process.
There are already tradîtional organs of expression amongst some of these
people, and as you progress the whole process becomes a two-way process
and you are in constant consultation with these people. Their will be
cornes more and more important as they develop. It is not a question of
promises, it is a question of co-operation from day to day.
Judge Sir Louis MBANEFO:Do you envisage a situation where you
might withdraw from that policy if it did not meet with the approval of
the people?
Mr. CILLIE: Yes. Certainly we cannot indefinitely impose a policy on
a people that rejects it; if the plans do not work, if it is utterly rejected
by masses of people, then we have to think again. I don't think there is
any evidence that these policies are rejected by masses of people and
that they simply won't have anything to do with them.
Judge Sir Louis MBANEFO:Well, they cannot reject it until they
understand what it is, and that is what I am trying to find out.
Mr. C!LLIE: Yes, but it is being explained to them. It is going to be
explained to them more and more, and they are going to be asked to
co-operate with it. Certainly, if, in the process, we find points of friction
and if their objections are valid, we shall make the necessary accommoda
tions.
Judge Sir Louis MBANEFO:"We", being the Government.
Mr. C!LLIE: Yes. I was talking in the sense of the administration, of
the ruling White people.
Judge Sir Louis MBANEFO:And would any adjustment involve adjust
ing the position or attitude of the White population, or White national
ism, if I usethe expression as meaning the composite idea?
Mr. CILLIE: We are making adjustments all the time. The buying of
land, for instance, is done at the expense of ·vested White interests. Of
course, they are paid for it, but it is mainly the White taxpayer who
bears the burden of the buying of land to extend these people's home
lands. That is one way in which we are adjusting ourselves to this new
reality.
Judge Sir Louis MBANEFON : ow there is just one last question I would
liketo ask. There seems tome tobe an assumption that if a Native, an WITNESSES ANDEXPERTS 555
Ovambo, or Dama, was given education, or put in a township, he wouldn't
want to go back to his homeland.
The PRESIDENT:Is this a question or is it a statement?
Judge Sir Louis MBANEFON : o, I am saying that there is an assumption
in the evidence, in the formulation of this policy, that if a Native was
educated, or had reached what is described here as the focal point, he
would not want to go back to his village.
Mr. CILLIE: \Vell, you could have cases like that. \Ve do have cases
like that. I think that is a phenomenon that is not only true of people
in South West Africa. It is also a universal phenomenon, that people
eut loose from thcir origins and places of birth and do not return. It is
rather sad, but there it is.
Judge Sir Louis MBANEFO:I don 'twant to start an argument about
that, but it doesn't seem to have been the experience in West Africa.
The PRESIDENT:\Vell, I don't think that statement can be made,
Judge Mbanefo.
Judge Sir Louis MBANEFO:I am sorry. Why I mentioned that is
because yesterday you scemed to indicate that the persan who is dis
criminated against in the southern sector, outside the Reserves, will
have his compensation by going back.
Mr. CrLLIE: Yes, but I don't think that this matter of discrimination
in the southern sectorisas important as has been made out in the cross
examination. I think this has been blown up. These are matters of life
and death, and these points are trivial, piffiing points which do not affect
the real case.
Judge Sir Louis MBANEFO:Life and death for whom?
Mr. CILLIE:lt is life and death for all the peoples of Southern Africa.
Judge Sir Louis MBANEFO: And for an educated Native who has a
ceiling put on his economic oppor tunities it is more a matter of life and
death than for anybody else?
Mr. CILLIE: No, but, in fact, sir, these vast deprivations that are
sometimes imagined are not there. The people who work in the southern
sector-I suppose one has to go and look at them really to find the real
position. I mean, we are an open society and injustice is brought to light
somehow ...
Judge Sir Louis MBANEFO:What, then, is the purpose of the Job
Restriction Act?
Mr. CILLIE: I think I explained that yesterday, that these Acts are
there, on the one hand to guard against encroachments, to protect the
varions peoples, to protect their sense of security, their security itself,
and on the other to encourage the various non-White peoples, if they are
ambitions and are very, very capable men, to pursue theîr highest
ambitions rather in serving their own groups than in ttying to compete
and, in a very difficult situation, to embitter group relations in South
Africa. On the one hand there is the negativc aspect of protection and
on the other it does tend to channelize the ambitions and capacities of
these people.
The PRESIDENT:I desire to ask a few questions of Mr. Cillie, but, before
I do so, I wish to ask the Agent for the Applicants a question. Do the
Applicants contend that their final submissions, as filed in the Court,
contain, in the content of the obligatory norm for which they have con
tended, an obligation to grant universal adult suffrage in South West
Africa within the framework of a single territorial unit? SOUTH WEST AFRICA
556
Mr. GRoss: No, sir.
The PRESIDENT:Thank you. I just desire to ask a few questions. I am
seeking only information.
In South Africa, as I understand the position, the policy of apartheid,
or separate developmcnt, is a political policy based upon a claimed neces
sity to protect the White civilization of South Africa. Is that correct?
Mr. (ILLIE: Yes, itis correct, Mr. President. It is much more.
The PRESIDENT:To what extent is it beyond a political policy?
Mr. CILLIE: It has social aspects; it has econonùc aspects and, as far
as the protection of White civilization is concerned, it is also designed
to protect the evolutionary situation. It is not just a question ofprotecting
a group, it is protecting that group in all its relationships. You have a
very complicated network of relationships in South Africa and the policy
of apartheid is designed not only to protect the group as a physical,
separate, entity, but also to protect all these various relationships and
also to makc evolutionary development possible.
The PRESIDENT:That, I understand, as you have said, is the policy
in practice. That is the manner in which it is being, you say, devel
oped?
Mr. CILLrn: Yes.
The PRESIDENT:But you told us yesterday about the original settle
ment of the Cape and the extension of the areas of the Whites' settle
ment centuries ago farther north. so that there was established, as you
stated, a Western civilization and that they established in South Africa
their homeland and it is now their homeland, they have no other home
land.
1\IrCrLLIE: That is true.
The PRESIDENT:That involves upward of how many million people?
Mr. Crurn: The White population is about three-and-a-quarter million
people.
The PRESIDENT:And you say that before 1948, certainly from the
early forties, the thinking was in political circles, I suppose, primarily,
or was it in sociological circles.
l\lr.CILLIE: This was a whole movement involving many institutions
and organizations, l\lr. President. It was not only a question of a political
party. The churches were involved because the churches are up to their
necks in group relations questions all the time, both the churches and
the universities. This was a broad national thinking process that was
going on during those years.
The PRESIDENT: It was not the policy, then, created by any particu]ar
single individual or any single party.
Mr. CrLLIE: No. In fact, it was an extension of what went before. It
wasn't a new policy just thought up, you know. If there is one man who
was actually the basic architect of this policy I would name General
Herzog, because he was the man who started the idea, especially of
separate territorial development, of territorial separation, or segregation
as it was called in those days. He initîated that policy, but we had to
specd things up considerably, especially in this post-war period.
In Africa, some of the Colonial powers thought they had another
50 to IOO years to develop their policies, and then they found that they
had only about 5 years, or cven lcss. In South Africa'there was this con
sidcrable speeding-up. General Herzog certainly never, as far as we know,
thought fo terms of 1ndependcnt Black states. He did think in terms of WITNESSES AND EXPERTS
557
self-governing Black areas. \Ve had to take all this further you see, under
the pressures of the times, and pressures of conscience too.
The PRESIDENT: Although it arose in the manner in which you de
scribed, and you say was intended to be in the interests of all the separate
communities-1 will call them- or groupings, nonetheless each grouping
would have an interest in it because of their desire to maintain their own
separatc national identity?
Mr. ÛLLIE: Yes, that is how we thought about it.
The PRESIDENT: So that, so far as the European people-we should
callthem South African, White, people--arc concerned, in South Africa,
the policy is supportcd by the majority or only by a small minority to
protect their interests, as you stated yesterday, as a White civilization
in their own homeland?
.Mr. CILLIE: You see, if you could strip the policy of all its side issues,
1 do think that you would fmd that it is the vast majority of the South
African \Vhites who would support the basic principles of the policy,
but there are arguments about implementation and there are different
nuances. There arc, in fact, also White people who do believe ina policy
of integration. Itis vcry difficult in politics to gct an exact division; the
issues are not always posed very clearly, they get muddled up.
The PRESIDENT: I am aware of that!
Mr. CILLIE: They do get muddled up and for me to say this is supported
by 90 per cent. <;ifthe White people would be presumptuous, because it
v,·ouldbe very d1fficult to prove.
The PRESIDENT: You yourself, are unacquaintecl with South West
Africa, except by reference?
i'.\lCILLIE: Yes, by a few visits and by reading and by the usual in
formation that is at the disposai of a newspaper editor.
The PRESIDENT: Sir Louis "l'llbanefobas directed questions to you to
seek to ascertain in what direction the policy of separate development
will lead one in South West Africa. You are unable to express any view
with any precision as to what lies in the future?
Mr. C1LLm: Yes, 1 think what Sir Louis wanted of me is a sort of blue
print, and I thought that was the general tenor, to give a more complete
picture, and I can appreciate that desire. That is a very legitimate desire,
but this policy is, as I said, dynamic, it is an open-end policy, and you
have to see where you get as you move along.
The PRESIDENT: \Vell, your concept then. is that the group or separate
development in South West Africa will follow an evolutionary course or
that it is the desire, rather, of the Administration, to follow an evolution
ary course, in which the peoples of each particular group will have full
libertiesboth political, social and othenvise, within their own groups but
will be unable to share the rights of others outside their groups?
Mr. C1LLm: Yes, it will not be a complete separation like that, but ...
The PRESIDENT: By and large?
Mr. ÛLLŒ: By and large.
The PRESIDENT: When you speak about-this is a separate matter
altogether-thc ruling White, does that mean anything else than the
White people who happen to have charge or control of the reins of
Government? Has it any connotation of racial superiority?
Mr. ÛLLIE: No, I am very open-minded about the question of racial
superiority, l\Ir. President. I am not an anthropologist and people are
arguing about this al! the time. I keep an open mind about it; there are558 SOUTHWEST AFRICA
facts of development in Western tenns and of underdevelopment, but I
do not like using the words "superiority" or "inferiority" in these
contexts.
The PRESIDENT:That is ail I wanted to ask you.
l\fr. GROSS:May Iexpress on behalf of the Applicants, sir, our gratitude
for the patience with which the Court has listened to our case and to
wish the Members of the Court and the honourable President a pleasant
summer, sir.
The PRESIDENT:Yes, l\fr. de Villiers?
Mr. DE VILLIERS:I should very much like to associate myself with
what my learned friend has said, on behalf of my colleagues and myself,
and I should like to add in the list the very hard working Registrar and
his personnel.
The PRESIDENT:The Court will adjourn, and before it does adjourn,
it would wish to the Agents and counsel of the Parties some opportunity,
during the two months of recess, for relaxation from the heavy respon
sibilities they have all carried during the course of this case.
The Court will adjourn until 20 September, at 3 o'clock in the after
noon, unless it is otherwise ordered and the Parties notified in the
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PRINTED IN THE NBTHERLANDS
Procès-verbaux des audiences publiques tenues du 15 mars au 14 juillet, du 20 septembre au 15 novembre, le 29 novembre 1965, le 21 mars et le 18 juillet 1966, sous la présidence de sir Percy Spender, président (Annexes aux procès-verbaux - suite)