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VOLUME XPRINTED IN THE NETHERLANDS Tlie present volume contains the continuation of the oral arguments
on the merits and the elridence of witnesses and experts in the Sotdth
West Africa cases and covers the period 15 June to 14 July 1965. The
beginning of the oral arguments onthemerits (15lZlarchto 15June 1965)
ispiiblished in VolumeVIII, pages 105-712,and Volume IX, pages I-6j8.
The proceedings in thesecases,which were entered on the Court's General
List on 4 November 1960 under numbers 46 and 47,were joined by an
Order of the Court of 20 May 1961(SoztthWestAfrica, Orderof 20 May
1961, I.C.J. Repovts1961, p. 13). Two Judgments were given, the first
on 21 December 1962(SouthWestAfrica, I-'relinzinary Objeci!iotJwdg-
ment,I.C.J. Repork 1962, p.31g),and the second on 18 July I 66 (South
West Africa, Secod Phase, Judgment,I.C.J. Hefiovkr966, p. 4).
Cross references correspond to the pagination of the present edition,
the volume being indicated by a roman figure in boId type.
The Hague, 1966.
Le présent volume contient la suite des plaidoiries sur le fond et les
dépositions des témoinset expertsdans les affaires dSud-Ouestafricnilt;
il porte sur la période allant d15 juinau 14 juille1965.La première
partie des plaidoiries sur le fo(15mars-15 juin 1965)est publiéedans
le volume VIIT, pages 105 A 712, et le volume IX, pages I à 658.Ces
affaires ontétéinscritesau rBle généralde la Cour sous lesno3 46 et47
le4 november 1960 et les deux instances ont étéjointes par ordonnance
de la Cour lezomai 1961 (Sud-Ouestafricaî'lt,ordonnancedu20mi 1961,
C.I.J. Recueil 1961, p. 13)Elles ont fait l'objet de deux arrêts rendus
le 21 décembre 1962 (Sud-Ouest africain, excefilions@kliminaires, arrêt,
C.I.J. Reczfieil1962,p. 319) et le 18 juillet1966 (Sud-Ouestafricain,
deuxième$hase, arrél,C.I.J. Reczfieil966, p. 6).
Les renvois tiennent compte de la pagination de la présente édition,
un chiffre romain gras indiquant le numéro du volume auquel ilest
renvoyk.
La Haye, 1966. CONTENTS . TABLEDES MATIERES
PART II . ORAL ARGUMENTS (continued)
DEUXIÈME PARTIE . PLAIDOIRIES (suite)
ANNEXES TO THE MINUTES (conti.ltued)
ANNEXES AUX PROCÈS-VERBAUX (suite)
Page
20. Rejoinder of Dr . VerLoren van Themaat (South Africa).
15 VI 65 ........................
Creations of International Customary Law .........
General-requirements ................
Concordant practice as regards a matter within the domain
of international relations.............
Repetition over aperiod of time ............
OpiîzioJuris .....................
General acquiescence by other States ..........
Dissenting State ..................
Fishericcaese.....................
21. Rejoinder of&I rde Villiers (South Africa). 15-VI 65 ....
Application of the above requirernents to Applicants' conten-
tion regarding law creating process ...........
concordant practice ..................
Speech can seldom amount to practice ........
Inconsistency between viewing activities of ~Lited
Nations as amounting both to negotiation and to
norm-creation ..................
1962 Judgment ..................
Inconsistency (cont.) ................
Judge Bustamante ................
Judge Jessup ...................
Judge Morelli ..................
Observations....................
Conclusion as to concordant practice .........
Matter within domain of international relations ......
Slavery and genocide ................
Distinction with apartheid ..............
Repetition over a period of time ............
Purpose of requirement-testing process ........
OpinioJwis ....................
ResoIution 1702 (XVI) on South West Africa .....
General acquiescence ................
Position ofa dissenting State ...........
Judge Sir Gerald Fitzmaurice ..........
Article38 does not require unanimity ........
Reasonable to regard collective acts of international
institutions asevidence of generapractice .... SOUTH IVEÇT AFRICA
Page
Goodrich and Hambro ............. 30
R . Higgins .................. 31
Jenks .................... 32
Il'hcther Respondent qua mandatory can rely on its
own dissent ................. 33
Standards contention ............. 34
Xfandatory could establish binding internatiorial
legalrelation for mandated temtory ...... 35
Terms of Mandates ............. 35
Uentwich ................. 35
Wright .................. 36
Permanent Mandates Commission ....... 36
Hall ................... 36
Traditional rules not meshed with organized inter-
national community's processes ......... 38
W'hethercentralization of normative processes ... 38
Distinction between cornpeting intereçts ofStates and
promotion of comrnon interests ......... 39
Applicants' contentions have revolutionary implica-
tions .................... 40
Article 38 (1)(c)-General Principles of Law ........ 41
Effect of Article 38 (1)(c) ............... 42
Lauterpacht .................... 42
Cheng ....................... 43
Matters of secondary and ausiliary nature ....... 44
Cor/u.Channelcase ................. 44
Schwarzenberger .................. 45
Parry .................. ... . 45
Cavari: ..................... 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 nnalogy ............... 47
International consensus as general principle ...... 48
Incorrect analogy ................. 48
Effect of active opposition of a State ........ 48
History of drafting ............... 48
Associatioii of general principles with ideas of equity and
natural justice .................. 49
Drafting liistory ................. 49
Article 38 (1) (dl-Judicial decisions and teachings of
pubiicists ..................... 50
Judge Spiropoulos ................. 50
Sabbati?tocase ................... jI
Conclusion-no norm-creating process of the sort conteiided
for by Applicants can exist.............. 52
Whether Applicants have established the existence of a norm
with the content defined by them ............ 53 Page
What is its content? .................. 53
Distinction with minorities provisions ......... 54
Whether a mernber 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
Article38 (1) (~lj-Conventions ............. 59
Articles55 (cj and 56 of the Charter ......... 59
Presuppose existence of human rights and funda-
mental freedoms ................ 60
Distinctions as to race, ses, language or religion ... 60
Article 73 .................... 61
Article 76 .................... 61
Do Articles 55 (c) and 56create Iegal obligations? ... 62
Yearbookof I.L.C. 1949 ............. 62
Bentwich and Martin .............. 64
De Visscher .................. 65
Coodrich ................... 65
Yearbookof1.L.C. 1949 ............. 65
European Convention of Human Rights ....... 66
Uoes not prohibit differentiation as such ....... 66
UniversalUcclaratioiiof HumanRights ....... 66
ReIied upon as an interpretation of the Charter... 68
Xot intendeci as such .............. 68
Urording ................... 68
Not intended risbinding ............. 68
Not intended as a reflection of esisting State
practice ................... 68
Debates in the General Assembly ......... 68
Conclusion ................... 71
Xot intended to psohibit differentiation ...... 71
Article rz(6)of the Charter .............
72
No obligations on non-members of United Nations . . 72
I.L.O. Constitution ................. 74
Contemplation ofdiflerentiation .......... 74
-4uthoritative interpretations............ 74
Convention on discrimination in employnient (1958) . . 75
Article 38 (1) (b) ................... 76
Evidence and further materia1 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 ................. .7s
Article 38 (1) (d)-judicial decisions and teachings of
publicists ..................... 73
No authority quoted by Appiicants .......,.. 78
Wengler ...................... 78
The role of the Court asan organ of the United Nations ...
OpefizngStaienzentin regard tothe evidence ......... 82
Submissions I,2, 7 and 8 have been disposed of ..... 82 SOUTH WEST AFRICA
Page
Submissions 3 and 4 ................. 83
Existence of norm or standard ............ 83
Purpose of evidence ................. 83
No international custom .............. 83
Circunlstances which require differentiation ..... 83
Activities in international bodies .......... 83
No evidence to show good faith ........... 84
Scheme of presentation of witnessesi ..........
Possibility of deposition...............
Submission 5-unilateral incorporation .........
Submission 6-militarization ..............
Submissiori 9-unilateral modification ..........
Further reference to documentary sources ........
22. Hearing ofthe witnesses and experts (18-2 V3I65) .....
Evidence of AIr .Eiselen (witness and expert) ........
Examination by Mr. Muller ..............
Witness questioned by Judge Jessup ..........
Witness qüestioned by Judge Sir Louis Mbanefo...........
LVitnessquestioned by the President ..........
Evidence of Nr .van den Haag (expert) ..........
Examination by Mr .de V-illierson qualifications.....
Examination-in-chief by hIr.de Villiers .........
23. Replies to questions put by the Court on 22 June 1965 ...
Reply by Mr .Gros ...................
Reply by Rlr .de Villiers .................
Criticism of the Applicants' contentions .........
The Court cannot decide a case on the basis offacts not
raised in the pleadings; illustrations frommunicipal latv .
Continental system ofprocedureure................
Procedure in international tribunals: commentators and
case-law ......................
Amendments to the submissions and interpretation of the
new submisçions ..................
Further reply by hlr .Cross ...............
Further reply by Mr .de Villiers .............
24. Hearings of the witnesses and experts (co~tl.)........
Evidence of blr .Bruwer (mitness and expert) ........
Cross-examinationr byubIr. Gross..............
Witness questioned by Judge Jessup ..........
Witness questioned by Judge Sir Louis hibanefo .....
Evidence of Professor Logan (witness and expert) .....
Examination by Mr .Riuller...............
Preliminary cross-examination by 'hlr . Gross concerning
witness's qualifications ...............
Cross-examinationlr byMhir.Grossnt............... CONTENTS XII1
Page
Evidence of Mr .van den Haag (con!.) .......... 427
Staternent by A.I.van den Haag ............
Cross-examination by Mr .Gross ............ 427
Witness questioned by the President .......... 428
Question by Mr .Gross ................. :::
Witness questioned by Judge Koretsky ......... 469
Witness questioned by Judge Forster .......... 473
Witness qiiestionedby Judge Sir Louis Mbanefo ..... 476
Evidence of Professor Logan (cont.) ........... 479
Stdataent.......................ing certain population 479
Cross-examination by Mr .Gross (conl.) ......... 480
Witness questioned by Judge Sir Gerald Fitzmaurice ... 499
Witness questioned by the President .......... 503
Evidence of Jfr.Cillie(witness and expert) ........ 505
Examination by Mr .de Villiers............ 505
Cross-examination by Mr .Gros ............
Witness questioned by Judge Forster .......... 5428
Witness queçtioned by the Presidentis.......... ..... 548
555 PART II (continued)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held /rom15March to14July, 20Sepdember to
1.November and 29November 1965, 21 March and
on 18 July1966,the President, Sir Percy Spender, presiding
(continued)
PARTIE II (suite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues du15 mars au rqjuillet, d20sefitembre
au I5 novembre,de29 novembre1965, le21 mars
et le 18 jzti1966,sous Eaprésidencede
sir Percy Spender, Présidefit
(suite) ANNEX TO THEMINUTES (continued)
ANNEXE AUX PROCÈS-VERBAUX (suite)
20. IiEJOINDER OF DR. VERLOREN VAN THEBIAAT
AGENT FOR THE GOVEHShfENT OF SOUTH AFRICA AT THE PUBI-IC HEARING
OF 15 JUSE 1965
Mr. President, this rcview will dealwith the sources of rules of inter-
national customary law as well as the process of creation of such lalvs, in
as far as thiç is relevantto the present case made bu the Appljcants.
Special attention will be givcn to points arising in connection ~vith
Applicants' contention that the norm is a rule of customary international
law which binds Kespondent.
Now the laie Judge Manlcy O. Hudson commented as follo~~son
custoniary law in genernl; he stated, and 1 quote from his book The
Permanenl Court of InterrtationalJustice1920-1942, New York. 1943 .t
page 609, the following:
"I?iternational Castom.Article 38 of the Statute also directs the
Court to apply 'international custom,asevidenceof ageneral practice
accepted aslaw'. Thismight 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 tothe special law embodied
in conventions accepted by the parties. It is not possible for the
Court toapply a custom; instead it can obsen-e the general practice
of States, and if it finds that practice is due tn conception that
the law requires it,it may declare that a rule of law exists and
proceed to apply it. Theelements necessary are the concordant and
recurring action of numerous States in the domain of international
relations, the conceptioii in each case that such action was enjoined
by law, and the failure of other States to challenge that conception
at the time. The apprcciation of these elements is not a simple
matter, and itis atask for persons trained in law."
Then I procecd to tlic'following comment by Oppenheirn in his well-
known work on Inter~tationaLaw, Volume 1,Eighth Edition, at page 26.
He states there:
"International juristsspeak of a cwstom when a clear and contin-
uous habit of doing certain actions hagrown up under the ae@s 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-Xonvegian Fisheriescase, 1.CJ. Reports 1951 ,tpage 191, ïvhere
he said: "Customary international latvisthe generahzation of the practice
of States."
There are various theories as to the basis upon which customary inter-
national law becomes binding. Most of thcm fa11into 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 isoften
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 ginérale dzc Droit inter-
natio~zal,Paris, 1930, at pages 91 and 92; former president Basdevant,
"Règles généralesdu Droit de la Paix", to be found inthe Recueil des
Cours of the Hague Academy, VoIume 58, 1930, Volume IV at pages
504-520, and then especially at page 518. I may also refer to Judge
Morelli's Nozioni Di Diritto Internazionale, Padua, sixth revised edition,
1963, pages 25-31) and Professor Verdross, "Das volkerrechtliche Ge-
wohnheitsrecht", to be found in the Japanese Annzlal of Intemational
Law, 1963, ai pages r-3.
hlr. 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
tothe generalagreement which exists in regard to practical aspects of the
principles which are indeed germane to this case, itis unnecessary for us
to make a choice between the respective theories.
Most authorities require the presence of two elements before a rule of
international custornary law can be said to have been establisked : in the
first place a clear and consistent practice, and in the second place what is
usually referred to as the opinio iuris sive .pzecessitatis.
It does not appear necessary to refer to al1the numerous authorities on
the subject. tVernayrefer, for instance, to Professor Delbez,Les principes
géntaux duDroit inteïnutional fiublicParis,1963, at page 47 ;the editorial
comment by Joseph L. Kunz in the Americun Journal of International
Law, Volume 47, 1953, at page 665. There isplenty 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 wlien he was President of the Irlternational Law Com-
mission in 1950. In the I'earbook of theIniemalionai Law Corîznz2ssz'u?z,
1950, Volume a,at page 26, we find a surnmary by Judge Hudson of the
ele~nents 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 domain of
international reIations.
Sscogzdly,there muçt be a continuation or a petitionof the practice over
a considerable period of time.
Thirdly, there must be a conception that the practice is requircd 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 dealingwith the subject will
also be followed here.
As to the firsfthat 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. vERLOHEN VAN THEMAAT 5
editorial comment on the nature of customary law, in the work 1 have
already referred to,AmericlanJournal of i~zternationalLaw, 1953, page
666. He states tkere:
"There must be a 'practice', whether of positive acts or omisçions,
whethi:r in time of peace or war. This practice must refer to a type of
situation falling within thedornain of international relations."
This Court, in the Colombian/Peruvian Asylum case, I.C.J. 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 O#the UnitedStates oj Americcailz Morocco,I.C.J. Refiorts1952,
at page zoo.The relative requirement of international ciiçtomary law was
previously defined in various ways. In the S.S. Winzbledon case, 1923,
P.C.I.J., Series A, No. r, 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.I. J., Series B, No.12,at page 30, mention ismade
of an "unvarying tradition". Then in Judge Anzilotti's dissenting opinion
in the LegalStattis ofEastern Greenland case, 1933, P.C.1.J., Series AlB,
No. 53, at page 91, the definition of this elernent of customary law is
"the constant and general practice".
The next authority 1 wish to refer to is the President of the Soviet
Association of International Law, Professor Tunkin. He states in an
articIe entitled "Kemarks on the Juridical Nature of Customary Norms
of International Law", in the CaliforrciarzLaw Review of August 1961,
Volume 49, at page 421:
"Customary norms of international Iaw stem from international
practice.The practice of States may consist in their taking definite
action under certain circumstances, or, on the contrary, abstaining
from action."
Then, Professor Guggenheim, in Traité du Droit ilzternationalpublic,
Geneva, 1953 ,t page 49, adoptsthe requirement of the Wimbledon case
that there 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 Yearbookof International Law, Volume 30, 1953, at page 68, and
in that passage Judge Sir Gerald Fitzmaurice discussed Judge Read's
dissenting opinion in the Fisheries case, in which the latter statedthat
claimswhich have not been maintained bythe actual assertion of sover-
eignty caniiot establish a practice of States. In this regard Judge Sir
Gerald Fitzmaurice wrote, and 1 quote from page 68-
". . . it is believed to be sound principle that, in the lomn, it is
only the actions of States that build up p~actice,just as it is only
Practdce('constant and uniform' as the Court has saidj, that con-
stitutes zssageor custom and builds up eventually aruleofcustomary
international law".
It follows from the authorities quoted that resolutions of organs of
international organizations by themselveç canriot create rules ocustom-
ary law. The accent falls on the acts of the States concerned, their
practice or conduct.
The next authority Iwish to referto is Max Wagemann, "Die Gewohn-6 SOUTH WEST AFRICA
heit als Volkerrechtsquelle in der Rechtssprechung", Sckweizerisches
Jahrbuchfür internationalesRecht. Volume X, I953a ,t page 65. He states '
that although acts and declarations of organs of international organi-
zations are regarded as possible evzdenceof an inter-State practice, the
Court does not give them much weight. He quotes, in this respect, the
Reservations to the Conventiolz on Genocide, Advisory Opialzion,1. C.J.
Regorts 1951, at pages 24 and 25.
In this case it was argued and 1 quote from page 24: "that there
exists a rule of internationalaw subjecting the effect of a reservation to
the express or tacit assent of al1the 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 z j :
"At best, the recommendation made on that date by the Council
constitutes the point of departure of an administrative practice
which, after being observed by the Secretariat of the League of
Nations, imposed itself, so 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 itcannot be concluded that the legal problem of the
effect of objections to 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 tothe Secretary-General's
practice which "is a continuation of that constantly followed by the
League of Nations" (p. 36).They felt 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 nile"-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 inferred from the report of the International Law Commission of
19501 . refer toGeneralAssembly, Oficial Re$ovls, Fifth Session, Supple-
ment No. 12, Document A.1316.
Part II of that report discussed "ways and means for making the
evidence of customary international law more available". In that Part II
of the report resolutions of organs of international organizations were
not mentioned as evidence of custornary international law. Practice of
international organizations was mentioned as possible evider~ce of
international Iaw and it was recommended that, in order to make such
aspects of international la~vmore readily ascertainable, a réfiertoirof
the practice of the organization of the United Nationsbe made available.
The distinction here is clear. Customary rules may be created within
an organizationsiich as the United Nations or the International Labour
Organisation on $~oceduralmatters. Examples thereof are, for instance,
whether the inatter isan important question in terms of Article 18 of
the Charter (a matter on which this Court has also given an Opinioii),
the manner of voting, what matters are to be placed on the agenda, and
so forth. But, apart from this,as Professor Tunkin wrote in theCalifornia
Law Revim (1am again quoting from the same article in Vol. 49,August REJOINDER OF DR. VERLOREN VAN THEMAAT 7
1961 ,.426): "... there is no international body in existence with
authority to give a customary rule of conduct juridical power."
May 1also refer to an article under thetitle "InternatioJus Cogens"
which Professor Schwarzenberger wrote in the Texas Law Review of
March 1965 1.quote from pages 471-472:
"While sovereign States are free to create jus cogens on a con-
se?zs.rtloting 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 mattus
recomwzendatio?ze6syathe General Assembly, no repetifion, however
insistent, can transformtherigk of individtmkMenzberStates not tu
takeactiononsuchrecommendations intolalabzbseof suchfreedomand
soid0 a legalduty to acceptsucha vecommendation."
This brings me to the secondof theelements into which Judge Manley
Hudson ha5 divided this concept of customary law. The second element
is the conti~zuation,r repetition,of the+racticeoveva considerablperiod
of timri.Kow, in thefirst place,I quote frarnthe Panevezys-Saldutiskis
Railway case in the 1939 ,.C.I.J., Series AIB, No. 76, at page 36. In
that case a consideration was that the relevant "rule of conduct has
been observed for a verylong time".
Then Inlay also quote from an article by Kopelmanas, "Custom as a
means of tlie creation of an International Law", which isto be found in
the British Yearbook of InternationalLaw, No.18, 1937,at page 127,in
which the author mentions the "repetition of sirnilar acts".
Then Professor Delbez-the work already referred to, Les Princiees
généraux d~4droit internationalflubliThird Edition, 1964, at page47:
requires for the existence of a rule of custornary :"finélémen mtaterzel
(consztetudo),consistantdaizskarépétztiopnrololzgéetconstante desmêmes
actes extérit:zcri, other words "a material element (consuetudo) con-
sisting in the prolonged and consistent repetition of the same external
acts".
The degree of ernphasis laid upon this requirement may conceivably
vary in accordance with the theory supported by the particular com-
mentator asto tlie basis of creation of customaIaw. On the basis of the
consensual theory, the length of the period may possibIy, in itself, be
less important than other elements relied upon as showing tacit consent
or acquiescence. On the basis of theories tvhich view the subjective
element an the part of States concerned as a conviction thatsuch rule is
a legally binding provision,a lengthy period of practicewill usually be
necessary before the existence of such a conviction can be established.
Yet even a support of the consensual theory, Professor Tunkjn writes
in the same article in the CaliforniaLaw Review-I am quoting from
page 424: "The creation of a customary norm of international law is a
historical process; the elements of the norm of law evolve graduallp."
Judge M.orelli, in the work already referred to, Nozioni Di Divitto
I?ttemta;zfo.itwehich strongly supports the theory which 1 might call,
perhaps, the oflinio juritheory, in the sense of a conviction that a
binding norm exists, states at pages 29 and 30, in paragraph 18,and 1
translate from the ItaIian-it is our transI on':
1The element of long continuance (diurnitas) which, moreover, is
historicalIy 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, 1 would like to refer the Court to the Advisory Opinion on the
Free City of Danzig and the i~zternational Labour Organisation, 1930,
P.C.I.J., Series3, No. 18, at pages 12 and 13. There practice \vas 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 sufficient
to establish a rule of international customary law. But this was a special
practice, only referringto onearea, and only asbetween Poland (Danzig)
and the Commissioner. Moreover, the participants in the alleged custom
were agreed as to the existence thereof.
Itis only natural, Mr. President, that in the case of suggested estab-
lishment of a gemral customary rule of international law-that is not a
local n~le 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 conceptiortthat the practice is reguirad by, or consisterbfwilh,
Prevaili~zginternational law.
Oppenheim, inthe work already referred to-his well-knoivn work on
international law, at page 26-distinguishes between a custorn and a
usage: a usage exists "when a habit of doing ce]-tain 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 1
quote again from a passage which 1have 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 1 also quote from Professor Delbez-the work already
referred to, atpage 47-where he states in respectofthe ço-called ofiinio
juvis sive necessitatis:
"C'est sur la nature de cet élémentpsychologique que se heurtent
Ies doctrines. Les positivistes ramPnent l'opinio juris à un acte de
volonté de plusieurs Etats, à iin accord tacite (conception volon-
tariste). Les objectivistes posent que l'opinio constitue la recon-
naissance obligatoire d'un droit préexistant (conception intellec-
tualiste)."
In other words, as regards the nature of the psychological element,
doctrines are in conflict-the positivists reduce the opiniojuristo an act
of will of numerous States to be bound by a tacit agreement (the volun-
tarist conceptiori). The objectivists state tliat the opinio constitutes the
obligatory recognition of a pre-existing right (the intellectualist con-
ception).
1 have already referred to Judge Hudson's necessary element of
cnstomary law, nameiy "the conception in each case that such action
was enjoined by law". REJOIRDER OF DR. VERLORES VAN THEMAAT 9
On the basis of the consensual tlieory, this element means, as Professor
Tunkin puts it in the cited article at page423, that the practice "has
been accepted or recognized by the States as juridically binding as a
norm of la~v".He continues to state thntsuch acceptance or recognition
"is, in its juridical sense an expression of the will of the State of its
agreement to regard this or that customaryrule asa norm of international
law".
The fact that General Assembly resolutions of the type in issue herc
are not legally bi~iding, and that this body has rio nor~native polvers
under Artide IO, has alrcady been referrcd to by my learned colleague,
and 1 need not therefore deal with it here.
That is. then, the conclusion of this third element referred by Judge
Hudson.
1 now corne to the fo~rthelement ; the foiirth is thegenaracquiescence
in thepracticeby otherStales.
Now, &Ir.President, the question which arises here is whether a State
can be bound by a rule of customary international lam if such State has
consistently voiced its objection to such rule, and resisted it in its
formative rirocess. It must be emphasized at the outset that this question
has to be disiinguished from another question, namely whether a general
rule of customary law needs either the express or the tacit consent of al1
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 unaiiimous consent, acquiescence, or recognition for the creatlon
of a rule of customary law. 'l'hey thereupon deal generally with the
question wliether such rule cnn be established inthe 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
custornary Lawduring 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 asce~~ain,this Court, and al1authorities 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 theI.C.J. Reporls1950,
page 266, and the Fisheriescase, thnt is, the Judgrnent of18 Deccmber
1951(1.C.J. Re$orls 1951 ,. 116).
Inthe Asylum case, a case which was also referred tby the Applicants,
at IX, pages 350 and 351 of the verbntiin record of 19 May, it was
stated. and I quote from pages 276-277of the 1.C.I. Reports 1950:
"The Party which relies onn custoni of this kind must prove that
this custom is established in such a inanner that it has becorne
binding on the other Party. The Colombian Government must prove
that the rule invokcd by it is in accordance with a constant and
uniforni usage practised by the States in question, and that this
usage is the expression of a right appertaining tthe State granting
asylum and a duty iiicumbent on tlie territorial State. This follows
from Article 38 of the Statute of the Court, which refers to inter-
national custom 'as evidence ofa.gencral practice accepted as lan.'.'IO SOUTH WEST AFRICA
Then 1 refer the Court also to the well-known passage in the Fisheries
case (I.C.J.Reports 1951, at p.II~), and 1 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 Nomegian coast."
This case was quoted in Our Rejoinder, V, at page 141. It "as aIso
referred to by the Ap--icants in the verbatim record of 19May, at IX,
pages 350-352.
Now. the -4~~licants submit that this ~articular Dassaae from the
~isherbs case ;; irrelevant; they say so ai page 350: andvthey Say so
because, at page 351 (1 quote from the same verbatim record)-
"... the court ernphasized many other factors as well, including
Nonvay's long historical daims, its peculiar economic dependence
on fisheries, the general tolerationof 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
Fishevies case to mean-and I quote from a part of a sentence at page 370
of his DeveLopmento#the Inter.nationa1Law by the International Court,
London, 1958-"that the Court found itself unable to give toa practice
which was preponderant, thougli not universal, the status of a binding
ruIe of international law". The particular sentence proceeds, but that
is not relevant for Our purposes. The passage from Judge Lauterpacht ai
pages 191-192, referred to by the Applica~its and also quoted by them
in the verbatim record of 19May, at IX, page 352, should, in Our sub-
mission, be regarded in the light of what the judge said at page370.
The next authority, Mr. President, to tvhorn 1 should like to refer, is
Professor Verzijl, who wrote in the Nederlaf~risTijdschrift voov Inter-
nationaal Recht,Volume 1,page 260 (that is the volume dealing with the
years 1953-1954). asfollows:
"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 Nonvay inasrnuch aç she has always
opposed any attempt to apply it to the Nonvegian coast'."
Judge Sir Gerald Fitzmaurice, in "The Law and Procedure of the
International Court of Justice, 1953" (Bhtish Yearbookof Ilzter?tational
Law, Vol. 30, pp. 24-26) referred to the Fisheries case, especialIy the
passage at page 131. in connection ivith 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 Nonvegian contention that Nonvay
had always dissented from certain rules even at their ince$tioland
had therefore acquired an exemption from them. The essence of the
matter is dissent from the rule while it is in processoj becomingone,
aizd beforeethas crystulliz~dintoa definiteand generallyaccefibdrde
ofEaw."
1skip 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 io the REJOINDER OF DR. VERLOREN VAN THEMAAT II
validity of the rule. That iwhy dissent must be eupressed at that
stage inocder to confer exemption: otkerwise it is too late."
1may refer also to the Rejoinder, V, ai page 141, in this connection,
where another quotation is given from Judge SirGerald Fitzmaurice's
article, with thesarne tenor.1 should further like to qiiote the author 1
have already referred to, Joseph L. Kunz, in the Americatz 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
subrnitting 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
of customary general international law."
~nd' Professor Tunkin in the sarne article in the CalifornianLaw Review
goes even further than that-1 quote from pages 428 and 429-when
he says :
"The concept tha.t customary norms of international law re-
cognized as such by a large number of States are binding upon al1
States not only has no fondation in modern international law but
is fraught with grave danger." (Italics added.)
Finally, Mr. President, I çhould like to quote from the work by
Professor A. Verdross, Volkerrecht, Fifth Edition, 1964, at page 141.
1 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 hss regularly
resistedit. Thus, this Court states, for instance, in the case of
Diplornatic Asylum that a certain usage cannot be held against a
State which has refused to ratify an agreement which intended to
codify such usage (1.C.J.Rsfiovts 1950, 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 relatingto
customary law in as far as it is relevant to the present case1 thank the
Court for the courtesy shown and 1 respectfully request that hlr. de
Villiers be allowed to address the Court in continuance of the argument. 21. REJOINDER OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMEKT OF SOUTH AFRlCA AT THE PUBLIC
HEARINGS OF 15-18 JUNE 1965
Mr. President, letus 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' subrnissions before the
Court. For convenience I shaIl tnke them alsoin the ~vayin 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 ofeach of those elements.
The basic question is, Mr. President, can these elementsever be estab-
lished by referring only to activities of international organizations? Can
the activities of such organizationsever 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 first
one, the Court will recall, consists of "the concordant practice.by a
nurnber 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 hisrecently published work, The Sourcesand Evidences
of Intenzational Law, at page 62.Here we have the following essentials
of the concordant practice by a number 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 oin international organizations
like the United Nations and itç organs and the International Labour
Organisation-how do those fit intoa picture oftkis kind?
The only practice carried on in these organizations, substantiaIly
speaking, is that of talking and of voting. It is true that for the purposes
of talking, of making proposals, of voting, of ccimingto 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 rnay be possible, as my learned friend Dr. verLoren van Themaat,
pointed out by reference to some of the authorities quoted by hm, that
within that organization, for that limited purpose, certain custorns may
originate which are regarded as being binding within that lirnited sphere.
But when it cornes to the sphere of substantive legal relatjonships be-
tween States relating to their substantive rights and obligationsinty se
and as between themselves and the United Nations or the organizatlons
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 tesvery 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 x3
could eventually land up with an obligation in lam, to speak and vote in
international organizations.
But, hlr. 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 themeIves consists of talking and of voting, of
making proposals. Rarely, there may be sornething in the nature of a
legal act involved in a statement. The Court knows the examples, the
type of thing where there rnay be a forma1 legal act, a plcdge, for in-
stance, oran admission against a party. Something of that kind, although
consisting of speaking, is also in Iaw regarded as a formal act, for in-
stance, the act of entering into an agreement, the act of legislating in
cases where that might occur-1 am speaking generally now. It is
possible that to a limited extent one may have that sort of thing within
the speaking activities of States in the organs concerned.
But again, Mr. 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 rnay afford evidence 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 ariadmission against a State and, 1 suppose, that could have a
greater evidential value thaii where a State claims, in its own favour,
that a certain practice is being condiicted.
But, Mr. President, in view of the fact that the purpose of the organs
concerned is directed at recominendations and, urithin a very limited
sphere, at decisjons in ad Jrocsituations, and not at the creationof 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. 1 may refer the
Court to a passage in the work by Dr. Parry to which 1 have refcrred, at
page 63. Dr. Parry there cites a passage from the Fisheries case, dealing
exactly witli this question of proof of practice, as follows:
"This cannot be cstablished by citing cases where coastal States
have made extensive clairns, but have not maintained their claims
by the actual assertion of sovereignty over trespassing foreign
ships ,.. The only convincing evidence of State practice is fo 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 surnmed 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 claims, declarations,
municipal legislation, etc.' And he comments [citing then from the
articleby Judge Fitzmaurice in the British YearbookofInterlaalional
Law, XXX (19531, pp I, 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, decfarationç, dlplo-
matic statements, etc.,it is l~lievedto be a souiid principlethat,,in
the long run, it is only the actionsof States that build iip practice,I4 SOUTH \EST AFRICA
just as it is only practice ("constantand uniform" as the Court has
said) that constitutesa usage or custom and builds up eventually a
rule of customary international law'."
The learned 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, itshould,
in sorne respects, be still further narrowed.
But the emphasis again falls, Mr. President, not on drawing an absolute
line and saying ". ..well, statements in themselves can never be relevant
to the question of practice"; that is nat the purpose of drawing the line;
statements can be relevant, but al1 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, tlie value which they could have, could, at most, be some-
thing additional, something auxiliary, something ancillary. They could
be somethingon 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 jsasserted that a practice of States has originated and
that such practice has developed into a custom, to refer to the whole
evidential field and, particularIy, to the actual actions of the States
concerned-the actual practice.
One knows, Mr. President, from the authorities-the commentators-
to whom 1 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 dernon-
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 ofthe various States
to such a problem coming before these bodies are completeIy divergent.
We 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 asit came before them
from time to time. Some States take up an attitude that there is a legal
obligation to dosomething; some Statestake 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
ata 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 abiiga-
tions and rjghts as among the various States or between a particular
Stateand the Organization?
Very often, because of the functions 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 learned friend, hlr. Grosskopf, traced the development REJOINRER OF MR. DE VILLIERS
I5
and the alterations in the Applicantç' 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 norm andstandards binding upon the Court
itself and iipon the Respondent. The purpose of referring to it at this
present stage, Mr. President, is to go back to the first of these three
attitudesand to contrast that xvith what we have at the moment.
We find, Mr. President, that the Applicants' contention which they
advancedto the Court in 1962 in the Preliminary Objections proceedings,
and the findings of the Court on that question, are directly in conflict
with this norm theory which isnow prescnted to the Court on the basis
of those sarne events, largelp, coupIed 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
prerequisitc for jurisdiction the existence of a dispute "which cannot be
settled by negotiation", and that our fourth prelirninary objection was
worded to this effect: "The alleged conflict or disagreement is not a
dispute which cannot be settled by negotiation in the meaning of Article7
of the Mandate." It mraswith particular reference to this issue that the
nature of the functions 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
otker Members of the United Nations, holding identical views with
the Applicants, on the other hand. But though the dispute in the
United Nations and the one now before the Court may be regarded
as two different disputes, the questionsat issue are identical. Even a
curçory- exainination of the views, propositions and arguments
consisti:ntly maint ained by the two opposing sides, shows that an
impasse was reached before 4 November 1960when the Applications
in the instant cases were filed,and that the impasse continues to
exist." (I.C.]. Refiorts1962.)
Later, on the same page, the Court said this:
"It is immaterial and unnecessary 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
callsfor determination of only the question of jurisdiction. The fact
that a deadlock was reached in the collective negotiations in the paçt
and the further fact that both the written pleadingç 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 lvould lead
to a settlement."
Then, at page 346, Mr. President, the Court said:
"It is, houlelier, further contended by the Respondent that the
collective negotiations in the United Nations are one thingand direct SOUTH WEST AFRICA
iiegotiations between it and the Applicants are another, and that
no such direct negotintions have ever been undertaken by them. Rut
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
thisis obvious even from their oral presentations before the Court,
there is no reaçon to think tliat the dispute can be settled by further
negotiations between the Parties.
Aloreover. diplomacy by conference or parliamentary diplomacy
has corne to be recognized in the past four or five decades as one of
the cstablished niodes of international negotiation. In cases where
the disputed questions are of comnion interest to a group of States
on one side or the other in an organized body, parliarnentary, 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 rnutual interest to many States,
whether in an organized body or not, there is no reason urhy each of
them should go through the formality and pretence of direct nego-
tiation with the common adversary State after they have already
fullyparticipated in thecollective negotiations with the same State
in opposition."
Now, Jlr. President, the point 1 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, thuç 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 bythe Court "So long as both sides
remain adamant", the Court is talking of two sides, two parties. In other
places the Court refers to a "common interest" of a "gronp of States"
vis-à-vis the "adversary State" in these "collective negotiations".
So. Mr. President, viewing the rnatter in that light, the presupposition
is that either of the two sides to this disputemay be right and the other
one rnay be wrong. It is, in essence, something different from saying that
the one party has theauthority to lay down its will, to impose its will on
the other party, and to say to it: "Here 1create a norm by which you wili
be bound-you, and other States falling witliin the compass of this nom."
The presupposition of a dispute between parties standing on the same
footing is further emphasized by the fact that there is an idea that that
dispute rnay well have been capable of solutioii by negotiation, in prin-
ciple, but that in this particular case that has proved to be impossible,
both parties remaining adamant. That factor is further emphasized by
the stress laid on the Iact 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 onIy for South
Africa, but also for other States, how strange would be this very idea
that there could possibly have been a thought even of further negotiation
betïveen one State, South Africa, and this law-giver which is insisting
on applying its law to al1 the States to which this might apply. XEJOINDER OF MR. DE VILLIERS
I7
[Public IzearingO# 16 June 19651
Mr. President and honourable Members, at the conclusion yesterday
1 was dealing with certain extracts from the Judgment of the Court in
1962 on oilr Preliminary Objection No. 4, relating to the question
tvhether there was a dispute which could or could not be settled by
negotiation, and 1 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 tlirough
custom and through practice as a mle of customary law were then relied
upon by th:m in argument and by the Court in its finding on the question
of a dispute, as showing that such a dispute existed, andthat the eventç
in the United Nations urere 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 cvents as negotiations
between the Respondent and various other States, presupposed that
there were two parties to this dispute standing on an equal footing with
cachother, that one or the other might have heen correct in the attitude
it took in that dispute, and that that was the exact antithcsis of the
relationshi~i for whicli the Applicants now contend-that of a law-giver,
on the one hand, able to enforce its will upon the subject, on the other
hand.
Proceeding from there, Mr. President, 1 may point out that the same
approach emerges from the separate opinions of Judges who agreed with
the co~iclusion arrived at by the Court-Judges who gave opinions on
the majority side.
In the opinion of Judge Bustamante we find ai page 3Sj that he
said the follou~ing:
"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-
whelming proof not only of the fact that repeated and reiterated
negotiations tookplace, in which the Applicants and the Respondent
participated, but also that al1the efforts made tofinda conciliatory
solution resulted in failure.(I.C.J. Reports 1962, 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, Mi. P.resident, when we turn to the minority opinion of Judge
Moreili, 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 iri which those negotiations in the United
Nations were to be seen.
Judge Morelli's view waç, and he emphasized at page 573 of the sarne
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 interest of
al1the States Menibers as a group".
Now, Mr. President, 1 submit that the considerations arising in the
present coritext are analogous to the considerations expressed here by18 SOUTH WEST AFRlCA
the learned Judge. They emphasize how difficult it would be to say that
because of events in the United Nations bodies there could have been
enerated a nom in regard to these individual relationships between
Etates. The learned Judge ernpharized 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
ofal1theStates BIernbers as a group, and that led him to 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 to be seen-the
significance to be attached to them-was very pertinently in the mind
of the Court. Itwas a matter on which, as these passages show, there
were divergent opinions between different Mernbers of the Court, and
yet one finds that, despite the pertinent attention given to 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 laxvunder
which the relationship between the participants in the events was to be
seen, not as that of equally negotiating parties at all, butas 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,
hir. 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 significance to be attached to the cvents connected with the issue to
which 1 have referred, then surely, if there 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 to be taken
of the situation-another view which could have had a ver pertinent
consequence on the conclusion to which the Court came on t g e 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 light.
This, Mr. President, is a factorwhicli 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 mayof contrast to what they said at the time of the
Preliminary Objections as to the rnanner in which United Nations
proceedings were to be seen, we findtliat they said the following in the
written Observations, 1, at page 454:
"The essence of the United Nations and its role in international
affairsare ive11described in the ivords of Goodrich and Simons:
'The United Nations is fundamentally a voluntary association of
states, witha set of organs and procedures through uvhichitsMember
states have agreed to CO-operate, under stated conditions, for
cornmon purposes. Like the League of Nations before it, the essence
of the United Nations [and, if 1may interrupt here the words were
underscored in the Observations themselves] is that techniques
previously wsed 2%international relations-the concerotf powers, Ihe
snternational conference,peaceful methods of settling disputes-have REJOINDEROF MR. DE VILLIERS r 9
beeninstilutiolaalizedand madepart of the eslablishedand recognized
process ofcondrccting inleraationalafairs'."
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 al1about."
It seems, Mr. President, that one need wonder no longer; one has now
discovered that the United Nations is really a quasi legislative body.
1 referred to this matter, Mr. President, under the heading of the
first of the essential elements for the generation ofa norm, or an obliga-
tion, or a principle of international customary law. i.e., the reqtiirement
of a concordant practice in relation to a type of situation falling within
the domairi 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 asa 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 urhich one looks in order to see whether such a ruIe of
customary law has 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
somethingdifferent: it is sornething standing almost in contrast, in most
respects, to what one would expect for purposes of a practice which
could generate a norrn of customary international law.
1 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.
hlr. President, one will recail that the nom 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 dealing with
the question whether a norm of such a content can in fact be said to
have been practised-1 am dealing only nowwith the suggested processes
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 sitiiation, having
regard to the suggested content of the norm, which would, $rima facie
at least, not fa11within the domain of international relations. It would
fa11prima faciewithin the dornain of domestic relations within a State-
the relationship between the authority andthe inhabitants, the subjects,
or the citizens of the State, as the case might be.
should not Sayimpossible, butit becomes somuch more difficult tosay-1say-
that there has been an international practice, which canbe said to be
relied upon with a view to generation of a norm of that kind. It becomes
a factually difficult proposition, and it becomes even more difficult if that
factual proposition is to relate purely, as my learned friends contend,
to the everits in international organizations, and if it is not to have
regard at al1to other aspects of inter-State practice and of actual practice
within States.
My Iearned friend in that regard referred to analogies which he said2O 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, isa 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 1 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 internatioiial law in regard to
international traffic in sIavery, before the question of domestic slavery
was touched upon at ali in international reIationships. Domestic slavery
existed fora long time in certain countries, long after the first internation-
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 al1 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 law grew out. But.
Mr. President, even to this day, there are commentators who Say that
if it were tobe contended that there is a custornary rule of international
law prohibiting domestic slavery, it might still be difficult to establish
that. I do not Saythat it would be impossible; I am merely pointing out
what the real situation would appear to be in regard to slavery-sorne-
thing which started to receive attention asrearIy as,1think, the previous
century, and y+etwe still have that situation of uncertainty concerning
the international legal aspects.
My learned friend says that although in the 1,eague time it was per-
fectly in order to differentiate-itwas 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 Lautecpacht edition, 1955, says the following in
Volume 1,at page 733 :
"It is difficult to Saythat customary International Law condemns
two of the greatest curses which man has ever irnposed upon his
fellow men, the institution of slavery and the trafic in slaves."
Earlier,in 1945 the same learned author hadstated in An Internatio~zal
Bill ofthe Rightsof 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 isa grave reflection on the modem
Iaw of nations, in which the individual is said to be the mere object
of Iaw, that the attempts to abolish slavery by international agree-
ment and to vindicate the freedom of man in its primary and most
fundamental aspects as part of international law have so far re-
mained unsuccessful." REJOINDER OF MR. DE VILLIERS 2 1
Schwarzt:nberger states at page 5 1, with reference to elernentary
considerations of humanity, the follotvjng:
"It would be equally difficdt to found the admissibility of such
considerations fierse on a general principle of law recognized by
civilized nations. If reasons forsuch 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." (IlzterfiationalLaw, 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 ethnic or religious group concerned forms an
entirelyseparate part of a domestic population, that it isentirely con-
fined to the limits of one particular state, or imay 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, unless the practice must consist of certain States making
forma1 demands as if as of right, and the other State accedes to those
dernands as if acceding to an obligation upon it to desist because those
other States Say: "we have a right to demand that you arenot to practise
genocide in any forrn in respect of a domestic population"? How eIse
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 reLiedupon, how often would one expect some-
thing of that kind to happen, viz., that a claim 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
to it,the other State says: "yes, 1 agree: there is a rule of customary
international law wkich prohibits me from doing sou?
The Applicants in various respects compare the policy against which
they Saytheir 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 verbatjm record of r4 May, at IX,
pages 272 and 273;in the verbatim of 19May, at IX, pages 355 and
the case on the Resemiatiolzsto the Conventionon the Prevention and
this Court "regarded genocide as violative of international law event case
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 rny submission, at Ieast 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
particuIar 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 ofthe convention, and it made an analysis
of circumstances as a basis for dealing with that question. In the course
of that analysis the Court spoke of the "principles underlying the
conventionn-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, if we 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 hurnanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations ..."
In that broad sense then, >Ir. President, the Court çpoke of the back-
ground considerations which undeday 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 "principIes". It was not speaking of particular
obligations or particular rights, the Court was speaking of those broad
underlying principles, and particularly 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
national law, probably as part of international customary law. Alter-ter-
natively, the matter can be viewed in the sense propounded by Schwar-
zenbergei, in his i~zternatioolLlaw, 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 recornmendation
of the General Assembly. Aç, however, ths recommendation was
unanimously adopted by the General Açsembly, its contents may
be considered to have become binding on al1 the members of the
United Nations by way of estoppel. Itisabo possible to infer that
the Court identified itself with this conception. Then the Courtmay
be understood [then, in that event] to have held that the principles
Iaw-creating processes available to the Court." the thrd of the
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 Iaw-creating procesç, a process of creation of rights and
obligations which would be binding upon a party without its consent
and, in pnrticular, that something happening in international forums
could be regarded as creating a practicetvhich 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 find that in the verbatim
record of xg 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 stoutlp 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 al1
civilized States 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 underIying 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 Iofty purpose as may be held in
mind by those who Say that this policy is to be outlawed. It is a differ-
ence, as 1 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 dejend the
policy Say that they are the only possible policies that could work in the
interests of al1concerned, without those policies and without their basic
approach there would be absolute chaos and that the peoples involved
would sufîer to an extent which is almost unpredictable? If we have
those circumstances, Mr. President, then surely al1analogy 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 fa11away.
That brings me, Mr. President, to a consideration of the next element
of importance in the generation of a rule of customary international law,
and that is the continuation or repetition of a practice over a considerable
perlod of tjme. Here again, one starts wjth the conception of wha: is a
practice, a matter with which 1 dealt under the previous head. It 1sthe
practice that is to be repeated over a period of time, not statementsand
resolutions reflecting what the views of particular States might be.
Those statements and resolutions, as 1 have said, might perhaps be.used
to throw light upon practice, to demonstrate what practice really ls, to
show in what light it is to be seen, but mere repetition of statements,
particularly in the face of oppositionand resistance to them, could never
qualify as showing an international practice inthe sense as contemplated.
In the case of the norrn, as suggested by the Applicants, they would,24 SOUTH WEST AFRICA
in order to comply with this requirement of the generation of a rule 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 1 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 onlyinregard to customary international
law, but also in regard tomultilateral conventions par!icularly, sometimes
even ordinary bilateral treaties. There is first a testing out of theçtan-
dards involved-the standards which are prima facie in existence or
contemplated wkich, in themselves, are non-binding, and which are to
be first tested out properly.
If we take it under the first head-the creation oflaw, of obligations,
by treaty or convention-what is the cornmon practice in that regard?
One finds that the matter is discussed tentativdy for some time. Later
on, a conference may be organized, and at this conference there may be
discussions-if necessary, there may be technicnl advice, expert advice
and assistance-and if the conference cannot corne to a conclusion, it
adjourns and cornes back to itstask later, orthe effort is abandoned and
taken up again ai a later stage, depending upon how difficult a particular
problem may be. Sornetimes success is achieved easiIy and quickly, but
sometimes it is not. Eventually, when the whole matter has been 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 al1 those processes have been gone
througii 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 theirfurther detailed consideration
with a view to ratification or non-ratification. So, Mr. President, it is a
carefully devised procesç, providing every opportunity for testing
whether these standards, sought to be elevated to the Ievel 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 deIeterious effects.
In the case of the generation of rufe by practice, a rule of customary
law, a jortioriMr. President, the testing out processesbecome even more
important, and this would scem 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 ha5 been
tested out for some time. The regular practice over periods of years
would indicate to States tu 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 nom which they suggest has
corne into operation rnust, initself, be regarded assuficient tobring that
norm into operation, even in the face of opposition, and as being binding REJOINDER OF MR. DE VILLIERS 25
upon those who have opposed it. It is, Mr. President, also in that sense a
complete evasion and acomplete refutation, 1 should Say, of theprinciples
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 iuris sive wecessitatisHere again, Mr. President, it
is an element whicli 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 invoIved this element of acknowledgrnent of obliga-
tion, or whether it was merely one of courtesy or one which in some
other xvaydid 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 ultirnate 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. 1 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 resoIutions upon a particular subject. In order to
see whether they really invoIved this particular element,one would have
to analyse those resolutions themselves; one would have to start with
the resolution, have regard to its contents and see whether that in itself
involved any indication of what the opinion of the participant States
-States who vvoted for the resolution-was on the questions of their
rights and obligations interse, or the rights and obligationof aparticuIar
State vis-A-vis the United Nations.
Let us take one resolution as an example, but before I do so, may 1
point out that a further element of investigationmight 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; orle 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 sjmpIy bypass jtand say: "We look at an accumulation of
resolutions, and they provide the answer."
1 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 Iist which they give in their Reply. It is resolution
NO. 1702 of the Sixteenth Session of the General Assembly (19December
1961) on the question of South West Africa. That was the resolution,
the Court rnight recall, which was taken shortly before the visit of the
Carpio Conimittee to South Africa and South West Africa. It was on the
basis of this resolution tlw the furtker steps were taken which made
that event possible.
Noiv let us start with the Preamble. The very first paragraph referred
back to previous resolutions, particularly the declaration on the granting
of independence to colonial çountries and peoples; and then the third26 SOUTH WEST AFRICA
one "Notes [correct text :"Noting"] with approval the special report of
the Committee on South West Africa", and the next one says ths:
"Bearing in mind the findings, conclusions and recommendations
of the special report of the Comrnittee on South West Africa on the
measures to be taken to ensure the institution of the rule of Iaw
and such democratic processes, reforms and programmes of assis-
tanceas will enable the Mandated Territory of South West hfrica 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 Cornmittee"-those are to be
gone intoto see what was the ratio of what goes into this resolution, what
really moved the various States to vote for this i-esolution.
We go on, and we have some indication. The question related to ~vhat
the Committee considered to be necessary for the institution ofthe ruk
of law and snch 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 Statesin
regard to an obligation of a particulakind on the part of theGovernment
of the Republic of South Africa.
The next paragraph in the preamble reads:
"Noting with deep regretthat the Government of the Republic of
South Africa has prevented the Comrnittee on South West 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 oapartheid, the deep emotional resentments
of al1African peoples, accompanied by the rapid expansion of South
Africa's military forces, and the fact that Europeans, both soldiers
and civilians, are being armed and militariIy reinforced for the
purpose of oppressing the indigenous people, al1 ofrvhich createan
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 policyofapartheid alleged to be ruthiessly
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 iiidigenous peopleJ'-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. Rut again, hlr. President, it is part of this
case which my learned 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 al1in
the field ofallotment of rights and obligations".
Then, &Ir.President, the next paragraph proceeds to Say:
"Considering thatthe Government of South Africa haspersistently
failed in its international obligations in adrninistethe 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 couid have various
ideas as to what these international obligations were that were being
referred to in this part of the Preamble. ProbabIy 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 1 Say, various Statesmay have interpreted that in a
differentway.
The following paragraph reads :
"Reaflrwing 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 wholIy neutral as far as this particular
question is concerned.
The final paragraph reads as follows:
"Convincedthat the irnplementation of resolution 1514 (XV) and
the discharge of the responsibility of the United Nationsnder the
Charter towards the international community and the people of
South West Africa require the taking of irnmediate steps by the
United Nations."
And then cornes the operative part of the resolution. We see the
reasoning, therefore-it al1 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 steps are then set outin the operative part, and1 should iike to
refer to a fcw (it is unnecessary to go through the whole process):
Firstly, the General Assembly "Solemnly roclaims the inalienable right
of the people 'of South West Africa to inaependence and national sov-
ereigntyW-a statement, therefore, Mr. President, of a policital airn for
the particular people-no reference whatever to a concept, to an opinio
juris,in relation to the suggested nom.
Secondly :
"Decides to establish a United Nations Special Committee for
South West Africa, consisting of [a certain number of members-1
am not reading al1that], whose task will be to achieve, in consulta-
tion with the hlandatory Power, the following objectives:
(a) A visit to the Territory of South West Africa before IMay
I962;
(b) The evacuation from the Territory of al1 military forces of
the Republic of South Africa ;
(c) The release of al1political prisoners without distinction as to
party or race."28 SOUTH WEST AFRIC.4
1 might remind the Court in passing that no political prisoners were
found.
"rd) The repeal of a11laws or replations conhning the indigenous
inhabitants in reserves and denvinp them al1freedom of movement.
expression and association, an3 2 al1 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 Legislstive As-
sembly, based on universal adult suffrage, to be held as soon as
possible under the supervision and control of the United Nations."
Ido 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 come back to the condemnation ~vhichwe there find of "the
intolerable system of apartheid". \Ve are not told what the reasons are
for finding it to be "intolerable", except that Ive 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 "al1 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 sarne kind adopted at the previous session, then
we find what the authors of the resolution probably had in minci. At
page 222 of the Reply, IV, the Applicants quoti: this resolution 1596of
the previous Session, and if 1am not mistaken it isone ofthose referred
to in the Preamble of the resolution with which we are dealing. There
the Assembly noted:
'<
with graveconcern the continuing deterioration in the situation in
South West Africa resulting from the continued application, in
violation of the letter and spirof 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 ali 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, hlr.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 thnt nature, how
does one infer from that tlie opinio juris sivs necessitatiwith reference
to such a highly technical norm as now contended for by tlie Applicants?
Finally, there is the element of general acquiesccnce, 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 thernselves, aii
act of demand to which there could be a reaction indicating a submiçsion
to an obligation. Rut one would 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 never 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, thenub of this whole issue. That is the
major obstacle which the Applicantsmust attempt to by-pass, and which
they attempt to by-pass in al1these 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, to 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 law 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
openljr and consistently made known its dissent, at the time when
the nr:w rule came, or was in process of coming, into otherwise
general acceptance, then the dissenting State could claim exemption
from the rule even thoughit was binding on the community generally
and had become a general rule of international law".
1 may point out, Mr. President, that the honourable author discusses
the same principle also in the Reczteil des Cours,1957, II,at pages ggto
101.
Now, how do the Applicants attempt to meet this vital difficulty, this
vital difficiilty 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 fa11by the Ray in whick they seek to
meet it-by the measure of success or otherwise which they attain in the
attempt at meeting this probIem. 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) (6) :"... says nothing about unanimous
consent as a prerequisite to the coming into being ofa customary norm."
That is in the verbatim of rg May, at IX, page 347.
Certainly, Mr. President, Article 38 (1) (b), of course, says nothing
about that, but Article 38 (1) (bj or any part of Article 38 was not
intended to set out in detail the various requisites of law-to bring into
being niles or principles or obligations or rights in internationalla-,.It
referred under certain broad headings to methodç known to international
law, of bririging such obligations and rights into existence. Articl38 (1)
(a) says nothing about the requirements for having a valid treaty. It
says that conventions can give rise to international obligations, and tlie
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 coiivention 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. Al1 that the Court has to
decide by applying the law, and the law is not intended to be codified in
Article 38. 1do iiot think 1need say anythingfurtherabout 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 general practice accepted as law". Now, Mr. President, if the s~g-
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 aslaw, then this is a purely
legislative argument, becauseit does away withal1 the known principles
of the approach of international law to the field of evidence to which
national law has corne to form part of the Iaw. Even, Mr. President, in
so far as the suggestion is that one must look at those acts as evidence
bearirig much weight in çuch an enquiry 1have dready dealt with al1the
considerations why we have said of these acts that to the extent that
they could be relevant at all, the weight to be assigned to them could
be very Little,it must depend an prirticular circumstances. The circum-
stances of this case do not seem to support any suggestion that much
weight could be attachedto thern, any more than in sny normal or other
situation where the whole effect of the practice in the internationa1
institution could really be merely of an auxiliary orni-ancillary nature-
where itcould be additional to what must really bbe considercd, narnely
the actual consistent practice.
Next, we find, ai IX, page 348. of that record of 19May ".. . a veto
power over the process by whicli customary law ernerges undermines the
capacity of international society to develop international law to meet
developing needs ...". Rlr.Preçident, this is, again, a purely legislative
argument-an argument which presupposes the desirability ofa capacity
on the part of international society to develop international Lawto meet
developing needs.
It map 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 oan 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 rvillingnessof the various
States comprising international society on the basis of ecluality to subject
tis contending for a process which falls clearly outside that which isd
desired hy the States now forming international society, then he 1s
briiiging a ure legislative consideration to thc Court and not a legal
argument. Ife isarguing for reforrn. even for revoliitioifone wishes, but
not for application of law.
Then, Mr. President, the AppIicants seek to rely-at page 347 in
the record of 19 hlay-on Goodrich and Hambro. The passage is the
following:
"Al1 the various organs of the United Nations will simultaneously
be engaged in thus interpreting different provisions of the Charter
and will build up the practjce dich \vil1gradaally assume the
character of customary law."
Now, Mr. President, in the contest it is perfectly clear that al1 the
authors were dealing with \vas a possibility of generation of custom with-
in the interna1 organization of the United Nations itself relating to
matters of procedure and the like, and aot relating to substantive obiiga-
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. Sothat doesnot help the Applicants as far astheir fundamental
problem is concerned. REJOIBDER OF MR, DE VILLIERS 3I
Next, the Applicants quote certain passages from a work by Mrs.
R. Higgins. We find quotationsin the verbatim record of 19 May, at IX,
page 348. and 358, in support of their contention. The passage at
page 348 1sa very general one, speaking of flexibility possiblein regard
to the generation of international custorn; then at the sarne page we
find this passage :
"Resolutions of the [General] Assembly are not per se binding
though those rules of general international law which they ernbody
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 provide declarations on international law
are invariably based on other quasi judicial foms of support."
Mr, President, that passage in itielf appears to be quite innocuouç. It
acknowledges the basic proposition that the resolutions are not fier se
binding, but then it assigns to such resolutions the possibility of providing
evidence of a custom. It puts the possible wveightto be attributed tothis
source of evidence somewhat higher than 1 should be prepared to do so,
with the greatest respect and submission, for the reasons which 1 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 fundamental
problem-the problem of the dissenting State. The Applicants rely more
directly on the passage at page 347. 1 think it may be as wcll to refer to
the wording of that after all:
"Of a11these sources, that iç [thoçe mentioned in Articl38 (I)]...
international custom is the most flexible, the most fluid and as such
is exceedingly responsive to the changing nccds of the international
commiinity. Customary international law is therefore perhaps the
most 'political form of international law reffecting the consensus of
the great majority' [ofStates]."
Kow, hls. President, the Applicants emphasized these worcls "the
consensus ofthe great majority" ofStates. However, Mr. Presidcnt, they
did not quote the passage immediately following upon this one. It isin
the work ofMrs. Higgins-The Develofinzelto tf I~~ternationalaw through
thePoliticai!Organs of the UnitedNations at,pages 1-2 and reads: "The
emergence of a customary rule of law occurs where there has grown up a
clear and continuous habit of performing certain actions in thc conviction
that they are obligatory under international law." Later on the sme
page, >Ir. President, there occurs the further passage which is relied
upon by the Applicants, namely: "Collective acts of States, repeated by
and acqiiiesced in by sufficient nurnbers with sufficient frequency,
eventually attain in the statuç of law" (p. 2).
Now. Blr. President. taking this whole context it seems perfectly clear
that the aiithoress did not purport to propagate a new basis for the
generation of custornary law, but that she was merely seeking to apply
well-recognized principles. Her references to "great majority" and to
"sufficient riumbers" clearlp do not irnply anp view thatagreat majority
could impose its will on a small dissenting minority. She certainly says
nothing of 1he kind. She speaks of giving effect ta clear and continuous
habit of performing certain actions in the conviction that they are
obligatory under international law.32 SOUTH M'EST AFRICA
So, what she says, hIr. Presideiit, in regard to these collective acby
States, the weight to be attributcd to them, the inferences to be drawn
from them, certainly does 11otrnean that she suggests that if there is
opposition by a State or by a ~ninority group of States, until the coming
into existence of such a rulof customary law, any collective will or even
collective actsby other States can bind such an opposing minority. What
she says is perfectly compatiblewith the widely held view that customary
international law can nrise among certain States, although iiot binding
dissentients.
Indeed, Mr. Presiderit, the passages relied upon are compatible even
with the elementary proposition that the active consensus of al1 States
is not required for the coming into existence of a mle of 'clistomarylaw,
but that such a rule %vitbe binding also on non-consenting States ~vhich
did not espressly dissent from the rule during its period of gestatioShe
merely puts the proposition in general when she speaks of "collective
acts ... by sufficient numbers with sufficient frequency" by the great
majority of States. It is a gerieral proposition; itdoes not purport to
deal with the problem which arises when there is active opposition.
hlr. President. in concluding my remarks on the Applicants' attempted
reliance on the work of hlrs.Higgins, 1may point out to the Court, in
no unkind sense, that the work is a research student's thesis. As Ihave
said,1 do not niean that in an imkind sense as far as Mrs. Higgins is
concerned-1 have certainly not read through the whole work to see
what rnerit it lias or what it inay iiot have as a work of its kind. The
point 1want to make is this, that that mere fact shows the lengths to
which the Applicants find it necessary to go in order to try to find some
support forthis 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, Alr. President, the Applicants attempted to rely on certain
estracts from the works ofDr. Wilfred Jenks. That we findin the ver-
batim record of 19 May, at IX, page 350. and at page 358; but again,
none of these passages even rernotelg implies that any process of Iaw
exists whereby a majority ininternational society can impose its willon
a dissenting minority.
In particular,we find the Applicants rely on a passage which reads as
folloras(itisquoted at IX, p. 358, ofthe verbatirn record of 19 May) :
"The will of the community constitutes the basis of obligation but
the la~vof the cornmunity cornes into being by al1 the processes of
legal development and growth known to mature legal systems."
1 should like to pause for a moment at that sentence, because it is the
key to the whole passage. A coiitrast is drawn between the distinctions
"the \+-iof the community" and "the law of the comrnunity". The
will of the community coiistitutes the basis of obligation but the law
of the community cornes into being by the known processes.
Then the passage proceeds:
"It isthe willof the comrnunity that principles and rules evolved
in accordance with these processes of growth shall be regarded as
binding. Treaty, custom, the generai principles of law recognized
by civilized nations, judicial precedent and the opinions of the most
highly qualified publicists, al1 fa11naturally into place as methods 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 contextin which Dr. Jenks was demonstrating the possibilities ...for
accommod;iting law-creating by the organized international community
within the three main subsections of Article 38 (1)of the Statute". 1
state it again-"for accommodating Iaw-creating by the organized
international community", for accommodating that within the three
sections of Article 38 (1)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 Iegal
obligation, in a jurisprudentialsense. He was comparing in that respect
whât he regarded as being the ultimate source, viz., the of the worId
community, with other alternatives that corne to mind in the theories
and the discussions of academic lawyers, namely the theories of natural
or fundamental rights of States, or the consent of States, or other theories
that have been suggested. It is inthis will of the community that he
sees the ultimate source of the obligation, and he sayç 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 tliose law-creating processes that they are there. It fit3 in
perfectly nith the situation so forcibly stressed by other commentators
too, namely that it isbecause many of the States of the world, particularly
the major States, but also the smalIer ones, do not want an i~iternational
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 probIem which is here in issue, narnely
whether a majority of the world community, employing tliat term in a
philosophical sense, can bind a dissentient minority. Consequently, he
also provides rio support whatever for the Applicants' contention.
Next ive fiiid, atIX, page 348, of the verbatim record of 19 May, that
the Applicants said the following:
". . . Kespondent cites an article by Judge Sir Gerald Fitzrnaurice,
which suggests that a State dissenting from a general norm being
forrnecl in the internationalcommunity, may enjoy an exemption
therefi-om even if the nornl is brought into being for international
society as a whole. Respondent's reasoning, however, ignores the
role and the capacity in which Kespondent 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 thiç litigation were
apartheid within the Republic of South Africa itself."
At an ea.rlier stage,Mr. President, the Applicants said, and 1 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, butthat the Respondent, as sover-
eign within the Republic of South Africa itself, might conceivably34 SOUTH WEST AFRICA
claim an exemption under familiar doctrine-might itself claim an
exemption from its application on the ground of its clear, open,
consistent opposition to the norm. This conceivabiy might be claimed
by Respondent with respect to its domestic jurisdiction as sover-
eign.
Witli respect to the mandate institutionhotuever, the Respondent
is not beforethe Court qua sovereign but as mandatory, and even if
Respondent qua 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 claim
exemption from a legal norm which has been created by the over-
whelming consensus of the international comrnunity, a consensus
verging on unanimity." (IX, p. 305.)
Now, as a matter of firscomment, hlr. President, itwill be observed
that the later admission which came on 19 May-in the passage which I
read first-is a more explicit one than the earlies in so far as it concerns
the position of the Republic of South Africa with respect to its own
policies in its own country.
The earlier admission in the second passage is put more tentatively:
"This conceivably might be claimed 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 traditional doctrine would be relevant
only if the subject of this litigation were apartheid within the Kepublic
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 ciaim that
exemption in respect of its own policies in its oarn territory.
But, Mr. President, in addition, we find that no reasoning, apart frorn
what 1 have just read to the Court, was suggcsted in support of the
distinction sought to be drawn between Respondent's position in its own
territory and Respondent's position as Mandatory, hecause that now, in
the final analysis, appears to be the rnanner in which Applicants seek to .
meet this basic, this fundamental difficulty about the dissentient State.
They attempt to meet it, Mr. President, apparently, by conceding that
no norm biiiding on Respondent could arise in the face of its disselit! as
far as South Africa is concerned, and by seeking to draw this drstinction.
It really amounts to this, that, for the purposes of their norm argument,
they now fa11hack 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 thiç, that tliestandards, although rlot
binding in themselves, became binding upon Respondent because of
Respondent's position as a Aiandatory. Its relationship as Mandatory to
the so-calledorganized international community, or to supervisory bodies
m 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 sl-~owni,n my submission,
that it has no substance.
Now we corne back to the nonn argument. That was said tobe some-
thing which constitilies legal obligations quite 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 fundamental
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 coiitroverted in respect of the standards theory.
This is, in effect, what the Applicantsyhere. As Ihave said, we have
really disposed of that suggestion before. I think 1 couId usefully add
something as to the merits of this distinction especially. within the
sphere of international relations, the function that could be assigned to
the hlanda.tory in respect of the external international relations of the
mandated territory, 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 roinrespect of its own territory,
particularly 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 law capable of entering into binding international
legal relations on behalf of the mandated territory.This, indeed, appears
from the terms of the mandate instruments thernselves. 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 territory", without qualification.
(Mandata Dependenciesand Tratsteeshzp,p. 234. )hat was for al1the B
Mandates, except Tanganyika. In the case of Tanganyika there was a
more aualified formulation. Article o of that Mandate redaced the words
"appl&able to his contiguous ter&-y'' by the phrase "&ady existing,
or wliich rnav be concluded hereafter. with the a~nroval of the Leaeue
of Nations, r;specting the slave trade, the traffic inL;rrns and ammunicon
[and some other matters mentioned] ''(p. 234) . his formulation, with
the approval of the League of Nations, came, as 1 have said, in the case
of the Tanganyika Mandate; it did not occur at al1in the formulation in
the case of the other B htandates.
Duncan Hall, in his well-known work Mandates Dependenciesand
Trtdsteeship(1 quote the wording at p. 234) points out that in the case
of two of thern, the A Mandates, those for Palestine and for Syria, the
corresponding articles were to the çame effect as that relating to'ran-
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 thcB Mandates.
The important point which emerges from these provisions isthat 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. Hyrnans in his report as something
involving a full exercise of sovereignty.
Now that recognition, Mr, President, of the generaI competence of the
mandatory in this respect appears also from the League practice. Norman
Rentwich says, in his ~vell-knownwork, at page 105:36 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, of the Mandates Commission. It was manifest that the treaties
did not apply as of right to the mandated territory even ~vhereit
was adrninistered as an integral part of the Mandatory's territory,
since inlaw the mandated area was a separate entitgi.It has, how-
ever, become the regular practice for the Mandatory ta provide in
any commercial treaties with foreign States, and other conventions
affecting the rights and privilegesof its subjects abroad, that the
instrument shall apply ta any territories in respectofwhich it holds
a Mandate in the same way as it does to its Colonies. The inhabitants
of mandated territoriesobtain, therefore, rights of trading and
carrying on their business or profession in foreign countries, and
enjoy rights with regard to industrialproperty under the same terms
asthe subjects of the Colonies. In passing,itmay be rnentioned that
extradition treatiesof a Mandatory are now regularly extended to
mandated territories." (The Mandates Systewz,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 prirnarily 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 loanswithout prior Council consent". (Mandates Under
theLeagueof Nations, p. 122.)
As regards treaties prorriding benefits, the Permanent Nandates
Commission in its Sixth Session in 1925, at page 172 of the relevant
records, suggested to the Council that it might jthese are suggestions to
the Council as to what it might do) :
"1. Recommend that the mandatory Powers, and also aiL 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 ifpossible and expedient and if the
provisions of these internationa1 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
rnandated territories;
3. Request the mandatory Powers to i~idicate, in their annual
reports the reasons and circumstances ~vhich have prevented the
application to mandated territories of the special treaties or con-
ventions which they may have concluded with other Powers during
the period under review."
Those were the recommendations.
And according to Duncan Hall, in the work to which Ive 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 reg~darly to the mandated territories." (Man-
datesL)epewdenciesand Tuusteeshifi,p. 235.)
Mr. President, tlie conclusion then is-resulting from the wording of
the instruriients, their ordinary legal consequences, the commentç and
the practice in the League time-that both as regards the incurring of
obIigations and as regards the acquisition of benefits, the mandatory 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 esceptions which arose
in that regard in practice were, as far as we could ascertain, generally
found to relate only to one pnrticular matter, namely settlement of
boundarieç of mandated territorieç. One could quite understand thatthat
would be amatter 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 provision therefor, in ArticI7, paragraph I,of our
Mandate and corresponding articles of other mandates, by agreement
between the mandatory and the Council.
But with that necessary qualification-and as 1 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 func-
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 superviçory organ upon a mandatory which
did not wish to agree. This was al1in 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 al1the internationa
Conventions in force in the territory. Tables of that kind were givcn
in the annual reports for other territories. 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 territory,
then it becomes confirmed that the purported distinction which the
Applicants draw between the Respondeat 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 to
South Africa itself, Respondent would be the responsible authority to
decide whether to incur, or to decline to incur, rjghts and obligations
which are being generated in international society. Respondent would be
the authority whose volition would in this respect be the decisive factor,38 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 Iaw.
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 mandatory would be deciding as
to which obligations should be binding in international law on the
mandated territory. It would be the function of the mandatory to do so,
Mr. President, because the mandatory is entrusted 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 forthe
mandatory to judge whether a particular practice which seems to be
arising in some circles in international societjr 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
that 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 1jmt have rcferred, no other State orotganiza-
tion couId 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 necessitatiscould, 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
internationallaw appIicab1e to the territory, in so far as it depends on
volition, or render it inapplicable to the territory.
So, kir. President, that purported distinction again shows the utter
lack of any legal basis for the Applicants' contention in respect of noms.
Apart frorn being devoid of merit for these very reasons 1 have just in-
dicated, because it isthe task of the mandatory to decide in this respect
whether it wishes to CO-operateor 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 iiltiniate result the Applicants, in
effect, haveto fa11back 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 fundamental 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,
page 350 of the verbatim record of 19 May that the traditional formula-
tion-
". .. is meshed witli the emergence of customary international law
as a consequence of State practice, rather than as a resu!t of the form
standard and norm-setting processes of the organized international
community, acting through its competent organs".
May 1 pause there. The word "forrn"appcars to be a mistake in the
sentence; apparently it should either not be there at al1or it should be
the word "formal", or something similar. The emphasis is on the emer-
gence of cu~tomary international law as a consequence of State practice REJOINDHR OF h1R.DE VILLIERS 39
rather than as the result of the standard and norrn-setting processes of
the organizt:d international community. It may be that the intention
was to speak of forma1 processes in that regard, through its competent
organs. The quotation proceeds:
"As such, the statement just quoted overlooks the centralization
of the normative process in international socicty 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 aa suggested argument in
support of the general contention, it is entirely question begging. The
two factors relied upon in this Iast çentence as 1 read them are, "the
centralization of the normative process in international society", that is,
a centralization which is said to have arisen from the other factor, nameiy
"the existence and the expanding role and the ever-increasing importance
of a decisive nature of the internationalinstitutionsthemselves".
Mr. Presicient, 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? 1s it not the very
crux of the issue whether it can now be said thatimportance of a decisive
nature is to be attached to the internationalinstitutionthemseIves? But.
Mr. President, apparentIy the Applicaiits do not rest othe mere assertion
contained in this passage ; they argue further in the record, in passages
which woulii appear to be relevant to this contention, especially 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 Asylzrm and Fisheriescases for instance
-a case of the adjustment of directly competinginterests of States-and
with that they contrast the case of promotion of common interests and
collective interests of States and of the organized international com-
munity taken as a whole.
1 should like to refer the Court to the passage, in the record 19 May,
in which the Applicants then apply this suggcsted distinction:
"The proof of custom appropriate to the evolution of a customary
norm of international law of this character is a consensus manifest
from the forma1 actç of the competent organs of the international
comrnunity ['of th~s character' refers to the later category where
there is said to be a comrnon interest and a collective interest]. Such
a law-creating procedure [the Applicants say] is a functional re-
quirement of the conternporary order, even given the rudimentary
nature of the collective processes now existing. Such a procedure
parallel:; the evolution of custom by State practice, which is ascer-
tained by the inter-action of States. Here it is generated through
expressions manifesting a collective judgrnent, a coIlective will."
PX, P. 352.1
So, %Ir.President, it iça matter of considering xvhat merit there is in4O SOUTH WEST AFRICA
this suggested distinction. In Oursubrnission, there is none and there can
be none. The distinction, indeed, comes very strangely from the Ap-
plicants who have consistently urged upon this Court that there is a
conflict ofinterest between themselves and the Respondent concerning
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 intereçt, but when it comes to the drawing of this distinc-
tion they say this matter of the application or othenvise of the suggested
norm relates to a sphere where there is a ccillectivity of interest, a
promotion of cornmon 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, noauthor-
ity whatsoever is quoted for that suggested distinction or for the legal
effect attributed to it. 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? Iç that
not entirely revolutionary, Mr. President? The understanding 1 have of
the international Iegal order is that which emerged from discusçions such
as those contained in the book ofJudge Morelli which 1 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 equalityin what might be called a society rnerely because
it comprises these variouç entities or eIements. 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 jsto be generated a law applicable to the relationslip between
these entities in the international society, it is alaw which they create
themselves by their will,by their CO-operation and agreement. That is
the way in which it isbrought into being,
That stands in marked contrast to the situation wkich obtains within
a dornestic municipal society, in which the individual is born into an
order wIiere the collectivewill, actingthrough the legislature or whatever
the authority may be, is imposed upon individuals whether they Iike it
or not. and where those Iaws are to be accepted by the jndjvjduals 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. 1s riot 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 wiU
which is expressed not by unanimity, but on the majority principle? It
is true he says iit must be a vast rnajority; it must be something ap-
proaching unanimity, but it still falls short of unanimity. And he says
that the collectivistic willisnow 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 4 1
Mr. President, wllat 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 al1the nations in the world were to agree-al1 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 ovei-the production of nuclear weapons or upon attempted space
travel, or iipon both. Couid that collective will now bc imposed as a
matter of law upon the Soviet Union and the United States in this matter
of common concern tothe whole of humanity, in view of the implications
which those matters might have on its future and upon its existence?
1s not that the effect of what my learned friend is contending for? And
what wodd 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 urgcd upon this Court and which this Court is asked to
endorse and appIy in this case?
If the major portion of the world were to turn Communist, Mr. Presi-
dent, and only the United States of Arnerica 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 thisis a matter of cornmon concern, this collectivistic will decides
that it is a matter of common concern, and the whole world is now to
beconle Cornmunist, that there is to be now a norm of non-capitalisrn?
Mr. President, it becomes absurd, 1s not this the very negation of the
order wkicli does exist, and in which this Court itself finds its own
existence as part of that order, which this Court is asked to appIy as the
internationid 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 1havc mentioned in the Security Council?
1 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-calledcollective will or general combined interest is entirely without
merit or substance.
That concludes what 1wanted to Say on the process of the generation
of a mle or obIigation in customary international law, within the con-
templation of paragraph (6) of Article 38 (1)of the Statute, but before
1 proceed to paragraph (c), Ishould just like to Say thisin general before
leaving these two main, primary sources ofinternational obligation. as
contained in (a) and (b) :
The Applicants' contention avoids entirely and seeks to short-circuit,
in the manner which Iindicated 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 internationaltreaties 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 Applica.nts' probiem about imposing the will of a majority, however
large, upon that of a minority who insists that its will is noto be bound
by this new suggested norm in international Society.
Now the Applicants attempt to overcorne that difficulty, with reference
to the third of the paragraphs, i.e., in Article 38 (1)(cl, the paragraph
which authorizes the courts to apply "the general principles of law
recognized by cisrilized nations",42 SOUTH WEST AFRICA
Mr. President, the meaning and the scope of this paragraph have been
discussed by various authors. Some of them have suggested certain
difficulties, certain uncertainties about aspects of the meaning and the
scope of the paragraph and the provision. But again, it is a case where
the differencesbetween the views of these authors do not seem to matter
at al1for thepurposes of this present case. There is a substantial measure
of agreement underlying al1 these various different formulations upon
the matters which do seem to be relevant and decisivefor purposes of this
a few expressions ofaview and of comment by certain of the well-knownrt to
writers.
1 should like to refer first to Sir Hersch Lauterpacht, in his work
Private Law Sourcesand Altalogies ofInterlzationalLaw, 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 whch in its
sub-paragraph 3referred to "the general principIes of law recognized by
civilized nations". And then, at page 69, the learned author pioceeds:
"The will of States as expressed in treaties, or, failing that, in
international custom, rernains thus the primary sources of law. If,
however, these sources are silent, the Court, far from having to
general principles of law which are tthus definitely recognizedfas 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 recognized by civilized nations'? Bearing in mind
that they are not identicalwith decisionç ex aeqctoetbono, which are
dealt with separately, we rnay point to three sources from which
the answer to the question may be drawn. (a) It may be drawn,
firstly, from the study of international arbitration before the
establishment of the Permanent Court of International Justice. Such
an investigation, to which the last parof 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 al1or in the main systems of private jurisprudence.
(b) The query may be answered, secondly, on the ground of a
simple logical inference drawn frorn the context of Article 38 (3).
The Statute refers here to such general principles of law as are
neither international law proper nor consicterationsex aequo el botto.
This means that although the Court may apply, for the purpose of
a particular case,ade of criminal or administrativela~vof sufficjent
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 othenvise 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 ofthe Committee, from whom the substance of
the clause originated, explained its meaning by reference to the
principle of pes igdicataadopted by the tribunal in the Pzms Fund REJOINDER OF MR. DE VILLIERS
43
case; alid 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 al1 such general .principles of cornmon law,
being a part of international law, are applicable to international
affair~.~"
In the footnote No. 3, Mr. President. there is a reference to what Lord
PhiIlimore 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
a11nations in foro domestico.such as certain principles of procedure,
the principles ofgood faith, of res iudicata, etc." (pp,70-71).
1should like to refer next to the work by Dr. Cheng-General Principles
of Law as AflpEz'ed by InderncltiolaaECourts und Tribzmaks. 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 various niles oflaw which express the
essentialqualities of juridical truth itself, in short of Law."
May 1pause there for amoment? 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 niind is this-that he speaks of a rule as sornething which is
specifically binding in a particuiar relationship, such as an obligation as
between paiticular perçons or parties, whereas a general principle is
something niore general. It is something which underlies that rule and
other rules andmay serve in helping to interpret and apply the rules. As
1Say, that usage of distinction between rules and principles is not univer-
sal, but 1 arn merely explaining in what sense the distinction is being
drawn here,
The author proceeds :
"Thus, 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 isa principle of law
and not of another cognate social discipline, such as religion or
morality? The recognition of its legaI character by civilized peoples
supplies the necessary element of determination. Lord Philiimore
also explained that the principles referred toinArticle 38 1 (c) were
those which tvere 'accepted by al1nations in foro domestico'.M. de
La PradelIe took them to mean that general principles of law were
the basis of the municipal law ofal1or nearly al States. The recog-
nition of these principles in the municipal law of civilized peoples,
where the conception of law is already highIy developed, gives the
necessary confirmation and evidence of the juridical character of the
principle concerned."
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 issomethingsubsidiary to the main sources of rights and obligations
found under heads (a) and (21).They are general principles of law
applied by civilized Statesilafo~odomestico-in other words, in their own44 SOUTH WEST AFRICA
domestic legal systems. They are the underlying general principles in
those domestic systems and theyare applied in so far as theyare general
in the sense of being common to these various systerns, 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 £romthat 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 obligatioii 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 Iaw, individual persons, corporations, the
person, or the subject and the State-al1 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 onefirst has to determine
mainexheadings of sources of international obligation and right-treatye
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 cuçtornary practice as betweeri States or indeed
in the practice or jurisprudence of courts of law and international
tribunals. Then the analogy drawn from domestic law assists. It assists,
for instance, in the interpretation of the treaty, inbringing to bear upon
the interpretation of a treaty or a convention the general pnnciples
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 intreaty relationships. Let us suppose there is a vrolation
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, inmestic
relationships, from which the Court can draw.
And ço,hlr. Preçident, the same applieswith regard to the generation
or the effect or the interpretation of international custornary law.
Questions may arise which have never been settled in an exact sense in
relation to a suggested custom, andthe answer may be supplied by these
general principles of law. In the CorfitChanfiel 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 saidto constitute an inter-
national delinquency. It could not rely on an exact precedent in al1
respects, orit was suggested that it could not rely on an exact precedent
in al1respects in the international custom, and therefore it drew upon
the general principles applied in the various domestic systems in ordec
to supply the answer.
But there must first be somethiiig basic; Mr:President, something
upon which it issaid there is a concept already recopized 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 forthe purposes of which one can
draw on this additional, thiç çubsidiary 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.
1 may refer the Court further to Schwarzenberger, at page 43-just a
brief passage, referring to Article 38 (1) (c), which isto 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 ths law-creating
process appears advisable." (InternationalLaw, p. 43.)
The emphasis is on the generality of the principle as something which
could be of assistance in a subsidiary, in an auxifiary, in an ancillaryway.
I should like to refer also to the following passage in the work of Dr.
Parry, to which 1 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, 1 refer to Louis Cavaré, Le Droit international
public fiositij, Volume 1, 2nd edition (Paris), 1961. At page 220 he elim-
inated from this source of law first the concept of equity, then general
principles of justice, or natural sentimentof justice-he eliminated those
possible constructions and said they were obviously not what was
intended; and thereafter he said (1quote our free translation) : "Al1that
rernains ... 1sa rational interpretation: general principles of Iaw signify
general principles of internai law [internal meaning domestic, municipal
law]. It concerns rules common to the majority of legislations, principles
above al1controversy, whch constitute the legal heritage comrnon to aL1
civilized nations."
Next, 1 refer to Paul Guggenheim, Traité deDroit internationalp~blic,
Volume 1,1953, at pages 15r-153. 1 read only a passage at pages 151
and 152, again a free translation:
inserted in the Statute 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 fiUthese, it should therefore be
necessary to create legal noms such as those accepted ia foro
domestico by al1 civilized States. The overwhelming majority of46 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-
na1 Iegislations of civilized States."
So, Mr.President, again on this general survey it becomes clear that
this concept, defined in Article 38 (1) fc) of the Statute, cannot assist
the Applicants in any way as regards their basic problem, their problem
of bringing into effect in international Iaw 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 itis sought to be applied,
how can that in any way be said to accord with the basic considerations
here, the basicunderlying principles of munjcjpal law of al1or nearly al1
States which are to be applied to fil1the gaps that there may be in inter-
national legal situations?
Itis clear,Mr. President, that itis merely by analogy that one comes
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. Itarises merely in order to serve to interpret or in order to assistin
interpreting and giving effect to an existing or a suggested obligation
falling under the heads (a) and (b) ofArticle 38 of the Statute.
Under those circumstances, hlr. 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 17 June 19651
Mr. President and honourable Members, just before the adjournment
yesterday 1 dealt with certain authorities and commentators on the
concept of general principles of law recognized by civilized States or
nations. 1need not repeat what 1 said then. Tlie 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 fom~ the underlying basis of
municipal law ofal1or neavZy al1States-the basic underlying principles.
Therefore, Mr. President, they could never include something which is
possibly now in the process of being incarporated in the legislation of
some States because it is necessary ta have legislation in order to brinit
about at dl in the municipal systems of States-something which is now
being incorporated, or may have been incorporated, in the legislation of
someStates but not of others-something to which certain States agree-
and those States are now takjng steps towards making it apart of their
municipal system, but certain States do not agree and emphatically
object to any atternpts at enforcing such a rule upon themselves.
That fundamental difficulty in my learned friend's case cannot be
overcome by attempting to appiy 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 VILLIERS
47
protests. Jlr. 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 Iaw, of
premising the existence of rigeneral principle of law upon evidence
of universality, or the absence of anp protest, or upon a sense of
obligation with respect to duty. As such, it is tlie source of law
least closely tied to the ideas of legal obligation associated with the
approach of Iegal positivism."
Rlr. President, al1 1 need say about that is that ûccording to the
authorities 1 have referred to, the general concept, the underlying ideas
~4th regard to this source of law, make it perfectly clear that we are
dealing with 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 tivo wajrs in
which Article 38 (1)(cl rnight establish their contention that a legal
nom of non-discrimination and non-separation has come iiito being, and
ive find it putinthis way in the record of 19May:
"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 estabIishing, by comparative law
analysjs, an essential precondition for the assertion of the norm of
non-discrimination and non-separation as a 'general principle oflaw',
within the meaning of Article 38 [I)(c)." (lx,p. 353.)
If 1 may pause there for a moment, hlr. President. In the first place,
we çhall 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 virtualiy every State"-certainly
not, hlr. President,in the sense in which my learned 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 difierentiation in the sphere of allotment of
rights and duties ofwhich he speaks. Butthat is a matter to which 1shall
come later. We shall show, Mr. President, that, in so far as there are
attempts in this direction, such principles are still in the process of being
incorporated-such principles in the municipal legal systems. Therefore,
the principle itself can never be said to be the basis of the law in such
municipal systems.
Secondly, we want to point out that this suggested application of a
principle by civilized nations is not a correct analogy and application as
contemplated by Article 38 (1) (c). As 1 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-perçons, individuals, corporate persons and individ-
uals, or the person and the State-relationships in municipal law, and
they are then transferred from municipal law by analogy into the
situations urhich obtain in international law. If one were to apply that
method of application in this particular instance, one would have tosay
that if there were a norm of non-differentiation as between individuals
within a State on the basis of membership in a race, class or group, as a
relationship existing between those individuals and the State authority,
then the analogous position in international law would be that an48 SOUTH WEST AFRICA
organization like 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 al1nations are to be treated equally. That ïvould 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 systerns, therefore that
legislationought to be elevated io a rule of inti:rnational latv and made
applicable in the domestic sÿstems of various other countries. That would
be a form of application of theçe priircipleswhich could never have been
contemplated, and, indced, it is clear from the history and background
that it was never contemplated by the authors of tlis Article of the
Statute.
1 proceed with the Applicants' second suggested approach. They Say
at page 353 of that same record: "The second apyroach might be to
regard the international consensus, as, for example, evidenced in the
Reply al IV, pages 493-510 a, a general principle of law recognized by
civilized nations everywhere in the world."
Again, Mr, President, thisisa cornpletely 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 happens within a municipal
system. Then it would be true to say that in somemunicipal communities
such consensus, as spoken ofby my learnedfriend, may have a normative
effect-such consensus, although not a real consensus in the sense of
involving unanirnity, but in the sense in whicl-i my learned friend uses
the term, of a preponderant majority, such ELpreponderant majority
might be able to impose its will upon a disseiitient 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
1aw which could, as such, be taken from a municipal systern and trans-
planted into theinternational system becanse that isthe very essence of
the difference between the international society and municipal law
society, the very essence of the difference to wliich 1referred yesterday,
namely that in the municipal societies one very often has this collectiv-
istic approach under which there is an authority ïvhich can impose its
will by way of legislation, because that is constitutionally provided for,
whereas in international society that authority is Iacking; 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 theIaw of nations.
Now, Mr. President, in this sphere of the application of Article38 (1)
(c), also, the active opposition or objection otithe part of a particular
State or States against the generatioir of a rule of international law or
against the application of a so-called "princi~ile" 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 notonly from the analysis 1have 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, asit 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 Mr. 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 $votés-verbau ox 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 it. 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 1 Say, the report of what Mr. Root actually said was a
very brief condensation. M. Fernandez said the following:
"It seems to me 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 whoIe
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-serious, of a rule whose Iegality it had systematically contested
at al1times.
1 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.i'
That was at page 345 of the same record, hlr. 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 referredto in the
new formulation, which went into the Statute in point 3, were these
which were accepted by al1 nations i7zforo domestico, such as certain
principles of procedure, the principle of good faith and the principle of
ves judicata.That is at page 335. His further explanation was that by
"generaI principles of law" he had intended to mean "maxims of law".
Mr. President, the Applicants Say, further, that a restrictive inter-5O SOUTH WEST AFRICA
pretation of Article 38(1) (c) (by which they apparently mean an inter-
pretation which differs from theirsl-
"... 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 (Le.,
"general principles") as "the legal conscience of civilized nations", and
they Say that hl. de Lapradelle said that the general principles
would enable the International Court to "judge in accordance with law,
justice and equity". Butthey failed toexplain to the Court, hlr. President,
that those expressions were used in respect of the initial formulation as
proposed by Baron Descamps, and that they didnot relate to the formula
eventually agreed upon and inserted into the Statute, but that the
formnla which eventually went into the Statute indeed arose because 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 LapradelIe had spoken. M. de Lapradelle's statement is to be
found in the +rocès-verbaux at page 295,and it is quite clear that there
he was speaking beforethe Root-Phillimore proposa1 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 mies of
international law applicable in this form, are not assisted at al1 by
Article 38 (1) (c), and it fortifies the conclusian already reached by
reference to the concept contained in the Article and its purpose.
That brings me then to Article 38 (1) (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, hlr. President, in this
respect, that Applicants do not quote any authors, or, for that matter,
judgments of courts to establish that their norm 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 rg May, atIX, pages 357 to 359, and they particularly attempt to
rely upon authors in order to bolster up their contention that consensus,
custom.sense in which they usethat terrn,~vould be suficient to establish
Mr. President, 1 have already deait with the authors on whom they
rely-hlrs. Higgins, Dr. Schacter and Dr. Jenks-and indicated that
they, in tmth, provide no support whatever, even for the contentions of
fhe Applicants. The only other author to whom they refer in this respect
1s Judge Spiropoulos, the honourable Member of this Court, that is at
M, page 357of that record, and the quotation was to this effect, "natural
law sets off the ethical conscience of mankind against the wll of a sover-
eign State". That is ail-"natural law sets off the ethical conscicnce of
mankind against the wilt of a sovereign State". Now my learned friends
seek to apply it in ihis way; they say- REJOINDER OF MR. DE VILLIERS
5I
"... consequently, the collective will of the organized international
community becomes endowed with alaw-creating cornpetencewhich
can overcome the defiance of a non-conforming State, particularly
one which stands alone".
Mr. President, al1 I need Say is that the honourable author of the
particular passage would, with respect, probably be most surprised to
hear that tkmt is a true application of what he said.
Those are the only authors on whom rny 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 theydo not even
attempt to reIy 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 tha.t is in the Sabbatinocase. The reference we
find in the same verbatim record of 19 May, at IX, page 358. That was
friendsiSay in that respect-tes Supreme Court in 1964, and my learned
"... it is a case, and it is cited here only as, bearing upon the
proposition that juridical relevancewas accorded to the concept of
consensus in construing 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 ovenvhelrning majority
within a group, and contends that "consensus" in the international
community may be said to have a Iaw-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 1 could find in the whole
judgment to the concept of consensus. It is neverthelesç interesting to
refer to the case because it goes on to another proposition which 1s
pertinent, but 1am afraid not as supporting the Applicants' case indeed
it tends in the opposite direction.
The Court was concerned there with a question-1 need not go into
instanceskbyomunicipal courts. The Court dealt with one instance whereme
it was suggested that international Iaw 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
expropriate 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 ht:ad-note:
"The greater the degree of codification or consensus concerning
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 SOUTE 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 S.zrfirenaeCourt Reports, II
L/Ed. 2d. U.S. 376, p. 807.)
It will be imnediately 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 1have checked on it ; it would
seem to be a word for word rendering of the particular portion of the
judgment .
13utthe judgment goes on now to apply this concept in the particular
case, and it states, at page824:
"There are few if any issues in international law today on which
opiiiion seems to be so divided as the limitations on a State's power
to expropriate the property of aliens."
This fact,iz., that opinion in international law amongst cornmentators
and publicists and authorities was so divided in that respect influenced
the Court in coming to its 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 pa825, after
looking at the practical implications involved:
"Tt is difficult to imagine the courts of this country embarking
upon adjudication in an area which touches more sensitively the
practical and ideological goals of the various members of the
community of nations."
That was a major consideration why the Court decided to stay its
hand.
So again, hlr. President, that is an authoritywhich does not support
my learned friend, it goes the otherway.
This. Mr. President, brings me to the conclusion of the review of these
various sources of international law mentioned in Article 38 (1) (c) in
their application to what one might cal1 the stiggested "norm-creating
processes" relied upon by the Applicants. The Court will recall that 1
dealt with them in the context of saying "let us forget for the moment
about the actual content of the suggested notm, let us assume any
content-content x-and then we shall stillsee that these suggested
procedures could not, as a matter of norm-creating processes, bring about
the desired result of abinding rule of law, binding upon a dissentient
State". 'i'hat proposition was supported,1 submit, entirely in regard to
the heads (b), (c) and (d). In regard to (a), conventions, 1 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. 1said 1 would have to deal later
with the question whether the content of those particular provisions
constituted an obligation according to the suggested norm relied upon
by my learned friends. As far asthe second aspect is concerned 1 dealt
with the attempted 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 find a basis forthe Appli-
cants' case in such "interpretation" has failed and how dangerous would
be the implications of acceding to a contention of that kind.
In regard to al1other 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 byrny learned friend,1 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 shed of
support for their contention, their revolutionary contention in this
respect. On the contrary the review 1 have given has shown, in rny sub-
mission, that al1the traditional rules and principles of international law
make it periectly clear thatthat is not the rnethod by which an obligation
can be irnpi~sedupon a State.
1therefore turn now to deal with the rnatter on the basis of having
regard to the content of the norm itself-of the suggested norm. It is, for
the reasons 1 have mentioned, really unnecessary to do so except in
relation to the particular provisions of the Charter and of the I.L.O.
Constitutioii, but I shall nevertheless, Mr. President, also consider the
possible effect of other sources of law1 shall attempt to demonstrate to
the Court that, with reference to al1these various sources of international
law, and, havirigregard to the actual practice of States and to actual
principles of Iaw 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 1 have mentioned.
However, before 1 can proceed to this dernonstration, 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 thatmy learned friend, Mr. Grosskopf. dealtwith
tliat rnatter quite extensively in his argument which is reported in the
verbatim record of 9 June, particularly at IX, pages 534-542 a,d 1
need not repeat what he said to the Court. 1 merely waat to refer to
certain safient featureç as the basis for the part of the argument which
is to foilow.
My learned friend pointed out, Mr. President, that the definitions
given by the Applicaiits in their submissions and in their forma1 expla-
nations of their submissions are absolute in terms, absolute in the sense
that upon iinalysis the content of the suggeçted norm involves a pro-
hibition againstall 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 al1
one can infer if one has regard to those, shalI ISay, forma1 definjtions
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,
kas distinguished" as to racial, tribal origin and so forth inthis allotment.
P. 374.)
One finds this feature also in the definition given aIV, page 493 of
the Reply, which definition is incorporated by reference in the forma1
explanation tendered of the submission, wliere again we find that al1
that is statt:d is that the allotment of rights and obligations on the basis54 SOUTH WEST AFRICA
of mernbership in such a group, etc., is prohbited, if that alIotment
proceeds on the basis of such mernbership, ratfier than on the basis of
individual merit or capacity. Therefore, again, it becornes clear that the
objection to a distinction or a differentiation is absolute in that sphere
of allotment.
In other ways the Apphcants have made it clear-there are other
statements on the subject-that they are not relying upon alleged un-
favourable efiects -~ differentiation. that thev are not relvin~ uDon
suggestions of improper motives or purposes at&ched to différen?iation.
That iç. in Oursubmission. because thev reaLizethat if thev were to do so
that would opin up an area of factuaf dispute and enquiry in this case
which they want to avoid, and so they have made it perfectly clear that
we have currectly 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 confiict
with the norm) whether or not that differentiation isintended 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 fornlal ex-
planations-the formal expositions-in the Applicants' submissions, or
from their forma1 explanations of those subrnissions, or from these
informa1 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 suggestednorm in its implications in various situations,
then my learned friends Say: No, you are ascribing to us something that
we do not say, ~vhichis not our contention. Yoii are distorting u?hat we
Say. You are ascribing to us extreme attitudes and then trying to make
them ridichus. You are reallp presenting a caricature of what Ourcase
isand you arereally indulging in a "sleight ofhand"-that is an expression
also used by them in that respect.
But, Mr. President, they make these protestations, they Say they are
not relying upon differentiation but upon what they cal! "discrimina-
tion"-the nom of non-discrimination and non-~eparation~and yet,
when it cornesto defining and explaining what the distinction is, they fall
back upon that self-samedefinition. 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 improper
purpose or anything unfavourable attached to it, or any qualification
attached to it whatçoever. The allotment 011 the differential basis
indicated-is said to be proscribed in itself, and the reason forits being
proçcribed 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 at!itude
with reference to caseswhere theyare forced to admit that differentiation
is legally permissible and, indeed, desirable. They were confronted time
and again with this situation in regard to the rninorities 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, whereaç in the case of apartheid the
differentiation isimpermissible-that happens to be impermissible", they
Say. But then, when they go into a further explanation,+one finds that
they come back to this again: that in the case of apartheid one has this REJOINDER OF hlR. 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 membexship in
a group, amongst others, because of the consideration that he is norrnally
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 mernbership 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 quaIifications suggested to apply tothe purpose of the provisions
and to the factor that the individual might not suffer hardship in the
in the group.ase by reason of his ability normally to renounce membership
My learned friend, MI-.Grosskopf, also pointed out that in fact these
factors bring about no distinction whatsoever; that, where the object of
differential provisions iç an object 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 both instances it applies to the whole of those
groups and to al1individuals within those groups.
It may welI be, hlr. President, that the differential rneasures 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 group as a whole, and for al1members of that group.
Then again, Mr. President, on this question of assuring that the indi-
vidual does not suffer by reason of his rnembership in a group; surely
it is a matter which requires a weigking-up in cases where there is a
differential measure, because of the fact that some individuals in a group
may be affected differently from others. Consequently, one has to weigh
up and Say "Now, on the whole, what is better-the individual rnay
suffer in solne respects, some particular respects where fie may want to
do something, but on the whole, do the advantages which he derives
from being a menlber of this group, and which the group of which he is a
member, derives from the differential rneasure-do they not outweigh
the particular disadvantages whch 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,
fxcept only for this factor to which my learned friend refers, and that is,
in the case of the minorities treaties, the individual may be able to quit
<<ç 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. And56 SOUTH WEST AFRICA
indeecl,Mr. President, one can see that he could have difficulty about
making that an absolute criterion, because 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 forfeitingyour religion" (1am dealing
of course with the casewhere such differential measures are conceived of
as beneficial).SureIy, 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 ariother group is to have
different rights and different obligations, then one finds that the element
of compulsion cornes into it automatically. Rfernbersof the one group are
not allowed to share the special benefits stipulated for the rnembers of
the other group, and vice versa. And therefore, Mr. President, in situa-
tions ofthis kind,is it realistic 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?
1 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 Indian group as long
as they stay within that reservation, as Iong 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 inteilded for the protection of
the group, and that is that they may not sel1those rights to outsiders
because othenvise the protection will fa11away. Therefore that element
of compulsion is there in order to enable them to enjoy the protection,
and is it realistic to Say: "Yesbut the mcmber ofthe group can escape
that-he can be taken up in the large comrnunity 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.
SOin a11these instances it is not so easy to Sayyou must draw your
dividing line on the basis of ability to quit a grciup,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 al1 cases, but that in these
other cases of what they admit to be permitted differentiation, the
individual is normally free to quit hisgroup.
My learned friend, Mr. Groççkopf, therefore dekonstrated to this
Court that the contrasts which we have here are reaIly 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 cIear dividing Iine between, what is permissibIe differen-
tiation and what isimpermissible 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
specificprovisions of internationai 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
effect in the end have no definition, because there is first an absolute
definition, then certain qualifications are suggested, but in tend 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 absolute basis; we shall test on the basis of
taking the Applicants at their word when they say that the alleged norm
rneans that the allotment of rights and duties or1the basis of membership
in a race, class or grouisimpermisçibIe everywhere and anyvhere in the
world. Thatthev said several times. That is. after all. the sienification of
their ~ubrnissio~s; in No. 3 tkiçsigr&cation appeari fromUthe&oiding
of the Submission itself. and in Submission No. A from the wordin~ of
the Submission read with the formafe~~lanationf and those definzyois
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 by 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 ;tgood deal of thought to this matter and it seems to us that
the only fair way of doing this would be to assume that the qualifications
involve that differential allotment of rights, etc., in the spheas defined
by the Applicants, would nevertheless be permissible if such differen-
tiation could be said, firstly, 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 sufferby 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 ofqualification, 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.
1 rnay 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 forma1 explanation of the sub-
missions, in order to see what the caseis 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 statedor incorporated
in those submissions and in that esplanation, then we need only dem-
onstrate tha.t sucfi an unqualified norm does not exist. It would not be
necessarp for us tu chase possible qualifications svhich may, or may not,
have been intended by the Applicants. 1 say it might well have been
possible for us to approach the matter in that way-to look only at the
submissions and the forma1 explanation with a view to demarcation of5s SOUTH WEST XFRIC.4
what the case is which we have to meet, because, &Ir. 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 1 must, with respect, emphasize to the Court. The presence or the
absence of a qualification in the suggested norm can make all the practical
difference to the case which one has to meet as a matter of fact and,
therefore, tothe case which one-has to present to this Court on issues of
fact.
It would 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 injuriaus intent towards some or al1of the inhabitants, or
if it was practised with an oppressive or injurious effect for çome or al1of
the inhabitants, then the whole nature of the case on the facts wodd
change. Then we would be called upon to demonstrate, and we tvould
wish to demonstrate, and it would be open to us to demonstrate, thatthe
differentiation in fur,has no such intent attached to it, and that in faci
it does not have the consequence assigned to it.
But, Mr. President, if that is the case which we are called upon to
meet, then it must be fairly so stated so that we 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 are seriously suggested as qualifi-
cations to the nom, alter the type of sit,uation which, either by descrip-
tion in a document, or by existence in practice, could be relied upon as
a factto show the absence of such a qualified norm. and therefore it
would again alter the fieldof enquiry xvhich we are called upon to under-
take in order to refute the case being made against us.
If the Court should find (1am just postulating a theoretical possibility)
that there has been established against the Respondent a case on the
basisof a qualification which isnot expressed in the case brought against
us by the Applicants, then it would, in effect, rncan there has been a
failure ofthe principIes of natural justice because it would, in effecrnean
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 wouId amount to. That emphasizes thc importance of a
clear intimation, whether forrnally or informally or both, by the domifius
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 isthe
purpose which is served as a matter of natural justice, or is intended to
be served, by formal subrnissions in proceedings of the kind before this
Court-the purpose which is intended to be served by forma1 pleadings
and the forma1 prayers in pleadings of the more concise nature with
which we are acquainted in our normal municipal practices.
technical line of approach. We are quite prepared to do it to the extentn-
of looking, not only at the letter of the Submissionç and the forma1
explanation, but to go further and to Iook also at the other explanations
which have been offered by the Applicants' representatives, provided
-and thiç 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 rveare called upon tn meet. In so far as they
are clear and they tell us fairlywhat 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 come in the forma1
part of the case.
On the basis of facts which 1have 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
informa1 but emphatic ones which 1 have cited to the Court, that they
are not bringin or asking us to meet any case of alleged oppressive,
injurious, or o% erwise unfavourable purpose or effect. That is why I
said that we regard ourselves as being in a position tllat we no longer
have to meet a case of that kind. That does not seem to be a qualification ;
it seems perfectly clear that thatis no longer, and it definiteIy 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 1men-
tioned this moming, as arising from the discussions on the rninorities
treaties, the Applicants have not been equally clear, and,as 1have 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 thatsuch qualifications may be intended to form part
of the Applicants' case.
SO,Mr. President, we traverse again-we can do itmuch 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 to us that they were relying upon as at the stage
of the Reply. Substantially,those arestill the same provisions relied upon
by the Applicants. We demonstrated in the Rejoinder, firstly, that no
"norm of non-discrimination or non-separation" was contained in either
of these two instruments, and, in any event, neitherof these instruments
purported to amend or supplement the provisions of the Mandate.
1 shall now, Mr. President, because the Applicants have reverted to
this area of controversy in the oral reply, revebriefly to these matters.
Firstly, 1 shall deal separately with the Charter where the reliance is
mainly on the Hurnan Rights provisions and particularly those contained
in Articles55 (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-
gcsted content of the norm, with orwithaut the qualifications whkh 1
have mentioned.
If one reads tliose two provisions together,Nr. President, for present
purposes, beginning with Article 56 and then reading from that on to
Article 55 (c),the effect is as follows:
"All Members pledge themselves to take joint and separate action
in CO-operationwith the Organization for the achievement of the
purpose .. ."to "prornote . ..universal respect for, and obseryance
of, hurnan rights and fundamental freedoms for al1without distinc-
tionas to race,sex, Ianguage, or religion."
Now, Mr. President, for present purposes what are the important
features there? If we look for words of legal obligation, we find them60 SOUTH WEST AFRICA
only in these words "Al1 hlembers pledge themselves to take joint and
separate action in CO-operationwith 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. Presidcnt, 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 fundamental freedorns.
So, Mr. President, it is quite clear that there aspresupposition that
those human rights and fundamental freedomsexist. 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 law 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
merc1y 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.
So it is clear that the Charter did not purport to create those human
rights and freedoms; it did not purport to define them either orto clothe
them with legal vaiidity.
And that brings us to the phrase "without distinction as to race, sex,
Janguage or religion". Again in the context, Iilr. President, it becomes
clear that that phrase relates to the observance of these human rights
and fundamental freedoms (lvtiatever they might be) for all people. It
does not, in general, relate to the allotment of rights, burdens, privileges
and so forth, outside the sphere of what might be termed human rights
and, in particiiIar, Mr. President,it does not prescribe a rule of mechanical
abstention from differentiation under al1 circumstances. The effect of
what is said is, that in prornoting respect for aiid observance of these
fundamental rights and freedoms, you are to do so for al1persons; you
are not alIowed to Say "1 am doing so for some of my citizens and not
for others,bccause some are of fhiç race andothers are of a differenrace
or because some are of this religion and others are of a different religion
or sex, or group, as the case rnay be". That you are not allomed to do.
You are not allowed, 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 al1 ofthem, irrespective of what race or
colour or group or sex or language group, or religion they belong to.
But there isno staternent of any norm, of any rule-that there isto be
a mechanical abstention from differentiation in seeking to promote this
purpose.
Mr. President, 1 submit that that is not only abundantly clear from
this 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 rules of logic and basic principles of interpretation REJOINDER OF MR. DE VILLIERS 61
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 (6) 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 tlieir varying stages of advance-
ment'."
Al1 that, Mr. President, is in a prograinrne of promoting their well-
being and progress. Surely those words, ifthey have any meaning at all,
have the meaning that the administering nuthority is to have regard to
those varying circumstanccs pertaining to the peoples concerned,
various cultures, various circumstances and varying stages of advance-
ment, so the only inference that can be diawn is that the necessity, the
desirability, of diffcrentiation 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.
As to Article 76, regard should be had to paragraph (6) which qualifies
the general objective of promoting political, econoniic social and educa-
tional advancernent with the words ". ..as inay be appropriate to the
particular circumstances of each territorp and its peoples and the freely
expressed wishes of the peoples concerned".
Again, Rlr.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 need of possible difierentiation on that basis. 11it u7ere
not, >Ir. President, for this clear meaning of these Articles, then it
would have beeii quite impossible for the Union of South Africa to
become a signatory to the Charter, because of its insistence at al1 times
that a method of mechanical abstention from differentiation in dealing
~6th the problems arising from the plurality of its peoples could never
be subscribed to by it.
Air. President, 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 said at V, page 131 of the Rejoinder:
"Thus, on Applicants' argument, a Mernber of the United Nations
would not be entitled to provide special protection or speciai public
conveniences for women, or would not be entitled to grant separate
public holidayç for different religious communities on their respective
religioris days, or to establiçh different public scliools for various
language groups or even for the two sexes. Inthe words ofSir Hersch
Lauterpacht (cominenting on aprovision in n proposed International
Bill of theRights of hian)-
'.. . itrnust be borne in mind tliat "equal treatment in al1 re- SOUTH WEST AFRlCA
spects" . . does not imply identical treatment ... A purely
mechanical absence of differentiation rnay result in inequality and
injustice'."
And uFereferred 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 exampie now of the Respondent's at-
tributing an extrerne position to them, sornething which they never
intended.
But, Rlr. President. is that realIy so? Even ifwe bring into play the
morning, which the AppIicants raised with reference to the rninoritieshis
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 atall? Would one say that that is for the
individual rather than for the group? Would one Say, Mr, President, that
the individual who migfit find himseIf or herself affected by this, could
clearly escape the adverse effects by simpIy quitting the group? 1 have
heard of certain opcratioiis that could be conducted to make a woman
out0f.a man,but 1have never heard of the opposite type of operation as
a possibility. even in modern science. Again take the different provisions
for different reIigious communities; there is a complete lack of realism in
saying that the individual can escape that position by quitting his group.
hlr. President, the interpretation 1 have suggested to the Court as
being the natural one, the only one, that could have been intended,
having regard to the Ianguage of the particular Articles and to the
Charter as a whole, and to the implications 1 have mentioned, finds
considerable support from commentators and also from indications in
the history ol these provisions both before and after they came into
existence.
Therewas a divergence of viewshown at various stages on the question
whether Articles 55 (cl and 56could be said to bring about legal obliga-
tions at al1. Of course, it is a matter with which I am not particularly
concerncd. As far as 1 am concerned there is an obligation, in so far as
one can cal1it a lcgal obligation, to CO-operatewith a view to the pro-
motion anclencouragement of respect for these basic rights and freedoms.
Mycontention isthat the method by which the objective is to be pursued
was not laid down with reference to a meclianical abstention from
differentiation,and that position does not affect my argument in this
case at all.
AS 1 Say, some commentators differed on the question whether legal
obligations iverc intended at al1in these provisions, and indications on
that subject are afforded by 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 1949 Yearbook of the Com-
mission.
were espressed by sorne members infectaodebate, onvaatproposed provisions
(Art. 7) fora draft declaration on the rights and duties of States. That
proposed Article 7 would read: . REJOINDER OF MR, DE VILLIERS 63
"Every State has theduty to treat al1 the persons under its juris-
diction with respect for human rights and fundamental freedoms
for al], without distinction asto race, sex, language, or religion."
(Yearbook of the ~nter?zadzonalaw Commission, 1949 , .164.)
So the proposa1 here was that it should be stated specifically that every
State kas that diity.
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 persons under their jurisdiction with
respect. for human rights and fundamental freedoms without
distinction as to race, sex, language or religion. They had merely
agreed to proniote international CO-operationto that end. Article 7
of the Declaration \vent beyond the Charter in attempting to lay
down :ilegal 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 fundamental freedoms' was not defined
either in the Charter or in the Universal Declaration of Human
Rights."
Mr. Brierly said the following apage 168:
"To Say, however, that no distinction could be made on any of
the four grounds as they stood was another matter altogether. That
went f;ir beyond anything in the Charter or inthe rules of general
interna.tiona1 law outside the Charter. He felt that it went beyond
anythiilg that present-day world opinion would be prepared to
accept. Probably more than half the Members of the United Nations
made a distinction between the sexes, and if the Beclaration 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 Ras Mr. Brierly's objection.
A view to some extent to the contrary was expressed, inter alia,by
Mr. Scelle, ;it pag169. He said:
"He disagreed with the Chairman's view that the Charter did not
impose any positive obligations in the matter. 12Thileit did not
establish specific obligations or specific rights, in Articl55, for
instance. certain real obligations were implied, though vaguely
expressed. The Charter provision that Xembers of the United
Nations should promote respect for hurnan rights constituted an
obligation, though not a very strict one."
Therefore, to that limited extent, there was an indication by him of
an obligation, Mr. President, but as 1 çay, 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 articIe was approved,
first by six votes to four, and subsequently by seven votes to five. One
finds that in documents A/CN.d/SR.23 and 25 and in the Yearbookof64 SOUTH WEST AFRICrl
theZnternatioaalLaw Commissiolz,I949, at pages 170and r79. The voti~ig,
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 matter.
For complete~iesssake, the subsequent history of theDraft Decla~ation
olaRights and Duties O/States,which was considered by this Commission,
ma17be very briefly noted. It is summarized as follows in Everymas's
United Nations, Sixth Edition, 1959 at page 410:
"At its1949 session the General Assembly commended the draft
Declaration to the continuing attention ofmember states alid of
jurists of al1 nations. It also invited the suggestions of member
states on: (1)whether any further action should be taken by the
Assernbly 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 ta form the basis of a definite
decision regarding the Declaration on Rights and Duties of States,
the General Assembly at its sixth session 1951 decided to postpone
further consideration of the rnatter, but inany case to undertake
its consideration assoonasamajority of member states hadanswered. .
Eighteen member states by October, 1952,had sent in their corn-
ments. No comment has been received since thatdate and no further
development kas 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
D~aftDeclaratiost 0% Rights and Dufies of Stateswhich 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 discussa matter in terms of suggested standards and the long
waj7 one has to go before one ends up withan internationallegal obli-
gation.
A number of authors on international law have also eupressed the
view that the provisions of Article55 (c) and 56 donot impose binding
obligations. So we find Bentwich and Martin in A Commentary on the
ChavterO/ theUnifedNations, London, Igjï, at pages S and g,wrote the
following:
"Article I (3)[of the Cliarter] does not amount to a guarantee
that the United Nations will presently enforce the uridisturbed
enjoyment of human rights and fundamental freedoms. That is the
ultimate purpose, but the Charter only asserts that the organization
will strive to promote, and encourage respect, for liuman rights, e.g..
by studying the state of these rights in various countriesby trying
to find a common denorninator acceptable to allor at least to the
majority of States, and by endeavouring tci secure the adoption of
suitable international conventions."
That was the basis on which the Charter started, blr. President-this
process of striving towards a study of the matter, trying to frnd a corn-
mon denominator acceptable to the various countries, or at least by the
rnajority, and endeavouring to secure the adoption of suitable interna-
tional conventions. RE JOINDER OF MR. DE VILLIERS 65
At page 118 of the same work, specifically regarding Articl56 of the
Charter, the author stated:
"A promise to take joint and çeparate action 'in CO-operationwith
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 doeç not permit Members to remain inactive
in the face of. positive recommendations, they have no direct
responsibility for the achievement of theurposes stated in Article
55.They need not act unless the Orgaiiization takes the initiative."
As 1 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 itdoes not involve
any obligation to abstain mechanically from differentiation.
Charles cle Visscher,Theo~y and Reality in Pablic I?ztenaalionalLaw,
Princeton, 1957 , rote, at page126:
"Thi: Charter envisaged human rights as a source of moral
inspiration and a principlof collective action for the organof the
United Nations. That is why in a serieç of articles it assigns to the
United Nations the functions of prornoting 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 coul<lnot have intendedto impose upon States Members the legal
obligation to grant or guarantee themto their nationalsby interna1
legislafion."
Then Goodrich, The Unite dations ,959 ,t page 246, after referring
to Articles1, 13,55, 56,62 and 76 of the Charter, remarked:
"It is tobe noted, however, that nowhere in the Charter is the
phrase 'Iiurnan rights and fundameiital freedorns' defined. Some
de1egai:ionsat San Francisco desired sucha definition but recognized
that time did not permit attempting it. Furthermore, it is to be
noted that while there are repetitive enurnerations of United
Nations purposes and functions, the key words are 'promoting',
'encoui-aging' and 'assisting in the realization of', not, 'protecting,
safeguarding and guaranteeing'."
Then there was another interesting facet of the discussions in the
InternationaI Law Commission in 1939, ifwe may go back to that for a
moment. Mr. Cordova said, as reported in the 1949Yearbook, at page
168: "The instances which had been quoted concerned political rights,
but those were ~iot fundamental human rights." In other words, Mr.
President, Ire laid stress on this aspthat there isanother limit to the
scope of these articles-they concern human rights and fundamental
freedom only, and matters ~vhichfa11outside 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, Rlr. Cordova, political rights were not
fundamental human rights. This \vas confirmed by Rh. Scelle.He said
at page 169 that:
"... [he] thought that a clear distinction should be drawn between
politicalrigkts and the fundamental human rights. UntiI recent
years vromen had not had the right to vote in such civilized countries
asFrance and England in which the fundamental human rights had
yet been fullyrespected and recognized constitutionally."66 SOUTH WEST AFRICA
Xow, Mr. President, subsequent events confirmed both 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
fundamental freedorns and the equal concern for everybody, independ-
ently of race, colour, group, religion, sex, and so forth.
The European Convention on Human Rights provides an interesting
illustration on al1 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-
and found essential to have a much clearer definition than one had in they
Charter-a specific definition-as to what fundamental freedom and
human rights were contemplated, and to define them exactly so that
every State couId know where it stood. Indeed, a recent commentator,
G. L. Weil, quoted by us in the Rejoinder, V, at page 152, referred to tlie
rights protected by the Convention as "rights wkich States were wilfing
to enforce because of their precise definition".
The Convention, like the Charter, doeçnot prohibit officia1differentia-
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 Keplyof
the Applicants at IV, page 509,and it reads as follows:
"The enjoyment of the rights and freedoms set forth in this
convention shall be secured without 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, &IrPresident, it is a criterion of discrimination, and the gist of the
Article is the securing of the enjoyment of these rights and freedo~ns.
It enjoins that the rights and freedoms set forthin 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 other subjects or other aspects of life. On the
ather hand, it makes the fact clear that in regard to these fundamental
rights and freedonis 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 fora party 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 rnatter is commented upon in the Europaaiz Convelztion
on Humaa Rights Manual, published at Strasbourg in 1963, at page 67.
It ma- be useful, >Ir. President, in thiscontext, to Saysome more also
on the Universal Declaration of Hurnan 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 REJOIKDER OF MR. DE VILLIERS 67
accepted i~iternational hurnan rights norrn" (IV,p. 501). Theyapparently
rneant to tfescribe it as a legally binding undertaking in the form of a
declaratiori (IV, p.493). So that is the basis of their discussion of this
Universal Declaration, that is,affords evidence for the proposition that
officia1 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
Declaration 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 specific. They now use this Declaration under the
rubric of Article 38 (1)(a) of the Statute of the Court as one of "the
forma1 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 find in the verbatim record of 19May. 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 themçelves, constitute
evidence of the correct interpretation and application of the relevant
Charter provisions".
And the ilpplicants continued further on:
"It is possible.. .for the Respondent to take up one or the other
ofthese resolutions or declarations and parse them and analyse them.
The central noint is that. taken in their totalitv as well as severallv.
they eçtabliih overwhelmingly the interPretaiion placed upon the
relevant Charter ~rovisions bv the Mernbers of the United Nations.
speaking with a ;onsensus which approaches unanimity, This iç the
significance of these resolutions and declarations."
Mr. President, 1 have dealt before with the merit or otherwise, in
general, oi this contention regarding so-called "authoritative inter-
pretation" by organs, by majorities, even by large majorities, of the
United Nations. 1 need not repeat what 1 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 norrn-creating
process in general. We could further demonstrate what Ihave 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 actualiy
happened in this particular aspect of so-called authentic interpretation.
We shalI do so with a purpose not confined to Article 38 (1) (a) of the
Statute, becaiise the purpose of this authentic interpretationwould seem
to extend beyond merely relying on convention: the contention again
speaks of this so-called conscnsus approaching unanirnity as a force to
be taken into account in this respect.
We look at the matter with a view to these questions: firstlp, does the
Universal Declaration purport to "interpret" the actual provisions of the
Chat-ter, or was the intention sornething totally different, narnely to
create something new, that is,a political platform for further political
action, or something similar? SecondIy, Mr. President, was the Declara-65 SOUTH WEST AFRICA
tion intended to reflect or does it in fact reflect a "general practiceof
States "accepted as law", or, put in other words, was it inteiided that
its content should be regarded as binding custornary law? Does it contain
any evidence tending in that direction? Thirdly, was the Declaration
intended tocreate binding obligations in any other irrciy?
Now, Mr. President. even a cursory glance at the Ueclarntiori itself,
and at the discussions which prcceded 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
codd be called "legislative arguments" of the type 1 have meiitioned
here, arguments dealing with the desirability of having certain things
rather than with a contemplation that there islegal obligation already
existing in that regard. And after thispreamble. the content of the
Declaration is [prociairnedj-
<... as a common standard of achievement for a11peoples and al1
nations, to the end that every individual and every organ of
society. ..shall striveby teaching and education to promate respect
for these rights and freedoms and by progressive nieasures, ... 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 imylementation of an ideal, a common standard of
achievement .
Ifwe turn to the background and the discussions which preceded the
adoption of the Declaration. we immediately find that it \vas intended
as the first step in a process which contemplated the subseqiient drafting
of a convention to be ratified in the ordinary way, and the ultirnate
creation of methods of implementation of such a convention. So al1those
stepç still lay in the future, before one could reach the stage which mp
learned friend says has been reached by some short-circuiting process.
The first step, the Declaration, was never intended to create binding
obligations. In fact, when a proposal was made that the discussions
should be postponcd to the next Far in order to improve tlie contents
of the Declaration. that proposa1 was rejected. A number of States ad-
vanced as the reason for their rcjecting of the proposa1 thatthe Declara-
tion was not binding in any event, and that improvements could just as
well be made to its contents at a later stage. The discussions also show
thatthe Declaration wns 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 carried the esplicit and the implicit acknowledg-
ment that current State practice did not accord ~vithwhat \vas visiialized
in the Declaration, ~vhichis directly contrary to the basic principles on
which my learned friend \vould have to establish a norm of customary
law.
On a reading of the discussions In the General Assembly tfiese facts
I have mentioned, become immediately apparent, and we shall giveonly
a few examples to illustrate this. We commence with >Ir. \Iratt of REJOINDER OF MR. DE VILLIERS 69
Australia-this is in the GelaeraAssembly,Oficial Records, Third Session
Part 1,Plenary. page 876:
"Whatever ils importance, however, the declaration did not by
itself constitute an international charter of hurnan 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 a11peoples of the ~vorld;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, Rlr, Davies of the United Kingdonl in the same record, at page ,
883, said :
"Th;it declaration was, however, only a first step. While 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 article0 would have the effect of transforming the
declaration into a pact which would be legally binding upon the
signatciry States; it was in contradiction to the last paragraph of the
preamble."
Next, MI..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 theNew Zealand deIegation
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
shouldeventually 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, effectiverneasures of implernentation. 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 theStates ratifying
it. It was tobe hoped, moreover, that a series of international con-
ventions would progressively elaborate and define the principIes 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 ofinformationwllich the Third Committee had nowon its agenda.
In the opinion of the New Zealand delegation, the Commission on
Human Rightsin its work on the covenant shouldin the first instance
concentrate on only some of the rights set forth inthe Dec1aratio.n.
The other rights would be dealt with later."70 SOUTH WEST AFRICA
Mr. President, ths 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 bat.
We find that in the same record, ai page 867:
"M. Cassin [of Francel-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 inniind, 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 declarationof human rights in themselves did
not constitute an adequate reason why the Assembly should not
adopt it. Itcould always be improved later."
Mr. Campos Ortiz of Mexico said at page 885 of the same record:
"... his delegation considered that the universal dedaration of
human rights was a truly fundamental document. Although it was
not a legal document with binding force, that declaration wnuld
serve as the basis for the realization of orle of the highest aims of the
United Nations, that of developing and encouraging uiiiversal re
spect for human rights."
Mr. Pearson of Canada, at page 898 of the sanierecord,remarked that :
", . . his Government regarded the universa1 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 aIong the same lines by the representative of
Paraguay in the same record, at page 901-1 do not think 1 need read it
al1 tothe Court.
Mr. Katz-Suchy of Poland said, at page 904 of the sarne record:
"The Polish delegation had welcomed the formation of the Com-
mission on Human Rights. In the Econornic and Social Council it
had expressed its disappointment at the fact that the Council had
only prepared the draft declaration and iiot the draft convention
nor the rneasures of implementation which should have been
elaborated simultaneously, especially in view of the fact that the
declaration, as presented, was only an expression of principles ~ith
no legal force, withno provisions for implernentation, and with only
moral value."
He said further, at page gog :
". ..he would not have hesitated to vote for it, in spite of its many
imperfections. It had 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 urgelicy."
Then, &Ir.President, 1 might point out that the President of the RE JOINDER OF MR. DE VILLIERS 7I
General Assembly, irnmediately 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 step since it was not a convention by which States would be
bound to carry outand give effect to the fundamental hurnan rights;
nor wouId it provide for enforcement; yet it was a step fonvard in a
great evolutionary process."
Mr. President, to suggest, as the Applicants do, that in these circum-
stances the Declaration amounted to an "interpretation" of the provi-
sions of the Charter, and accordingly falls under the rubric of Article 38
(1) (a) of the Statute of the Court, is completely untenable. Equally
untenable, Mr. President, would be any suggestion that tlie contents of
the Declaration reflect a generaI practice accepted as law which could
bring into operation the Iaw-creating source of international custom in
terms of Article 38 (1)(6) of the Statute. Indeed, nearly 17 years have
elapsed since the adoption ofthe Declaration, and still no agreement has
been reached on the contents of the proposed Convention.
Finally, t:he whole tenor of the discussions showed that there was no
general intention to formulate a fundamental norm of mechanical non-
differentiation, either absoluteor 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 2 of the Declaration, there-
fore, tend to create awrong impression as to what the real intentions of
the speakers were, as one finds them expressed in the debates. In fact.
Mr. President, the Soviet Union and certain other delegations exerted
every effort toinsert clauses which, they said, were designed to assure to .
ethical or religious groups the use of their mother tongue, the right to
have their own schools and the right to develop their own culture, which
proposals would, if inserted,have involved differentiation on those bases,
on the basis of membership in a group. There were arguments against
those proposals at that particular stage, but those arguments in not a
singk instance suggested that such forms of differentiation on the basis
of membership in a group were contrary to the contents and spirit of the
DecIaration. 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 amendmcnt ... 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 uith the "rights of jndividuals" in this Universa1 Declaration;
they were not concerned with a guarantee of the "rights of certain
groups". That was what the Soviet Union proposals were concerned with.
How, Mr. President, does this stand by cornparison 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"? It does not fit in,Mr. President.72 SOUTH WEST AFRICA
&Ir.Davies, of the United Kingdom, stated, with regard to one of these
aniendments :
"Paragraph 2 of the USSR amendment to article 3, was a new
version of an article on minorities which had already been discussed
and rejected by the Third Committee. It was better 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 Minoritieswas in the process of examining the question. Rloreover,
the USSR amendment was concerned only with national minorities.
There were, however, also cultural minorities. Ilraft resolution C
of the Third Cominittee showed that the Assembly, as the United
Kingdom delegation had aIready pointed out, was not indifferent to
the fate ofminoritieç."
That statement was at pages 884-885 of that record.
So,Mr. President, the review shows very clearly that there is no basis
whatsoever for relying on the eventsin 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 norm 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
mell6oodtowards attainment of a cornmon ideal. That is the basis upon
which the Respondent has to stand, and is standing, in tliis respect, and,
Mr. President, these events do not help in the least towards showing that
a binding norm to the contrary has been established.
1 think that should suffice in regard to the human rights provisions in
Articles 55 (c) and 56.
My leasned friend, still under Article38 (1) (a) of the Statute of the
Court,sought to rely alsoon the provisions of Article2 (6)of the Charter.
On 19May, atIX, page 346 of the verbatim record, aftcr referringta the
"norrnativc capacitieç of the General Assemb1y"-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 competence of the United
Nations is dramatically evidenced by Article 2,paragraph 6, of the
Charter which 1 quote:
'The Organization shall ensure that States which are not
Members 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 itçelf makes clear the cxtcnt to which the inter-
national legalorder has found it necessary to abandon the strict
requirements of universal iovereign consent."
Now, what is the implication there, hlr. President? 1s it an implication
that, by making this agreement amongst themselves, the Members of
the United Nations have imposed obligations on non-rnembers of the
United ;Nations? If that is the suggestion, it iscertainly not borne out
either by the lvording of the provision, or by the Iogic of the situation,
or by the comment of eminent commentators.74 SOUTH \t'EST AFRlCA
to aiiy possible obligation on thepart of non-members at all, and certainly
not any under Articles 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 IegisIative function, in the
ordinary sense, either as regards Members or as regards non-members.
That brings me, Rlr.President, to the end of consideration of provisions
of the Charter in the sense under consideration. What remains under
Article 38 (1) (a) of the Statute is the Applicants' reliance on certain
provisions of the International Labour Organisation Constitution.
hlr. President. we dealt with the provision relied upon by my learned
friends, actually one in the Declarationof Philadelphia, inthe Rejoinder,
V, at page 133, where we set out its wording, as follows:
LI1...al1human 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 articlewe have dealt
with in the case of the Charter. 1s the implication one of an absolute
mechanical abstention from differentiation. or a prohibition of unfair
discrimination? ive pointed out in the Rejoinder that thelatter was quite
obviously the correct interpretation,and that the use ofthewords "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. 1 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 in the verbatim record, at IX, pages 337, and
the following? We geta 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 all.
If we test again on the basis of what the Applicants reaLly say their
norm amounts to in their formal definitions of that norm, ifwe test it
on that absolute basis, or even if we test it with reference tothe suggested
qualifications, we corne to the same ansxver that here this document did
clearlynol 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 isal1we are concerned 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, hfr. President, if we go into the matter to see whether there
was such an authoritative interpretation, something which realIy pur-
ported to interpret what was already in the Constitution as distinct from
atternpts at creating somethng new, then we findthere is nothing of
the kind in the whole history referred to by my learned fnend. REJOINDER OF MR. DE VILLIERS
75
I referred the Court before to the clause in the I.L.O. Constitution,
whichmakes it clear that a dispute as to the interpretation or application
of provisions would be referred to the Court for adjudication; it would
noMy learned friends Say, in the verbatim record of 18 May, at IX,.
Page 339 :
"Al1 conventions, reports, resolutions and conclusions emanating
from the International Labour Organisation or its Governing Body
must nt:cessarily be consistent with the Constitution of the Organi-
zation ..."
May 1 pause there for a moment, Mr. President. U'hyis that so? Does
one presuppose that if a board of directors of a Company takes a resolu-
tion, thatthat must necessarily be ilztravires the Constitution? If that is
so,why does one ever have litigation on a question of ultravires? But,
be that as it rnay, in the case of this Organisation this iseven further from
the truth for another reason, namely because those organs are entrusted
with functions that could go beyond what is already agreed tu in the
Constitution, i.e., functions relating to the preparation of draft conven-
tions for the future, which could then be referred back to the members
for ratification.
The stateinent by my learned 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 diçcussion must, in turn, be consistent with the provisions."
1 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-discrirnina-
tion, be illustrative (illustrativat 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 istotally 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 lts
known objections to any such line of development, is just another lof-m
of assigning legisIative powers to that Organisation by a large majority
capable of binding an opposing and contesting minority.
I may, in passing, Say that the Applicanfs rely in the verbatim of
18 May, at IX, page 338, particularly on a specific Convenkpn,
which isthere referred to as the "Convention and Recornmendation76 SOUTH WEST AFRICA
concerning 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 1x3 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, in1958-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 Statesand so forth; one must regard this
process, tkis so-called consensus, approaching unanimity, as in itself
nom-creative. 1submit that argument also refutes itself.
Mr. President, that concludes then what 1 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 (1) (a) of the Statute.
Inregard to the other heads of generation of rulesof international Iaw
contained in (b), (c),and (d), I need not Say much at this stage. We
could, for instance, in regard to Article38 (1)(b), have rested upon the
subrnissions 1 have already addressed to the Court, namely that the
Applicants have made it plain that they do not brin before the Court
any evidence as to actual practice of States, but that tey 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 sufficient as a norm-creating process under this head,
even in the face of active opposition by the Respondent.
Itcould suffice for rny purposes entirely to rest on our answers that
contention,without having regard to the application of Article38 (1)(bj
or the principles contemplated therein, to the specific norm, with the
content as relied upon by rny 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
(r) (b) of the Statufe.
Before leading the evidence, we shall indicate in more detail, Mr.
President, what the evidence will be about. 1 shallat 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 facts 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 fa11
into two categories: firstly, the category of those which have peculiar
problernç arising from the CO-existence of different racial, ethnic, and
national groups, CO-existencein 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 doeç not have that problem, either because
there are not sufficient nurnbers of a divergent population group to
create any 1-ealproblem, or because, substantially, there iç no plurality
at all.
One tvill 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. It must do so in the interests
of the peoples concerned. It isquite impossible to expect uniformity of
approach aiid practice along the lines of a norm as suggested by the
Applicants. An attemptto 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 insome
parts of the world, including South West 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 1 have described before,
We shall endeavour to demonstrate by evidence that if those standards
were properly put to the test, how calamitous the results would be, and
that therefore, in so far as any standards may exist in the conceptions
and theoriei of some people, time must necessarily show in practice that
those standards require substantial adjustments, in some respects ai
least cornplete reversal, and that when the Court is asked to short-circuit
the normal testing processes, it iç in effect asked to endorse a legislative
process, or to indulge in a iegislative processwhich can hava the most
disastrous consequences for a very large portion of mankind.
[Public hearing O/18 June 19651
Mr. President and honourable Members, 1 was dealing at the con-
clusion yesterday with some of the purposeç, the main purposes, to which
the evidence to be called will be directed, particularly in the context of
the provisions of Article38 (1) (b) of the Statute and the attempt of the
Applicants to bring their case under that heading.
To what 1said yesterday Imight 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 ishad to the necessary elements for the
generation of such a norm they certainly do not exist in respect of the
proceedings ofthose bodies.
That 1 think ought to sufficeat tkis stage, with respect, in regard to
our case as il.will be further presented with reference to Arti38e(1)(b) .
In regard to Article 38 (1)(c) we have already shown in principle,
Mr. President, and with subrnission, that that head could not açsist the
Applicants with a view to the creation of an obligation of the kind.They SOUTH WEST AFRlCA
78
could not rely on it as binding the Respondent withoul its consent and
deNevertheless, the evidence of the tenor which 1 have indicated will
also further dernonstrate, in Our submission, that there is in fact no
generaliy recognized principle which accords with the Applicants' norm.
That brings me to Article 38 (1) (d). Now the mere fact that my
Iearned friends could cite no authority at a11in siipport of their suggested
norm, that hlr. Prcsident, is, in itself, in my subrnission, a significant
feature. Surely, ifthey could contend even plausibly that there 1s such a
norm which has just come int'oexistence, 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 come 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 come 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 corneinto existence, but what
he saysabout it 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 Wilhelrn Wengler, a German authority in
international law, and I refer to his work Volkerrecltt1964V ,olume II,
pages 1028-1029.
There is, in the 196r (III) Volume ofRecueil 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.
1 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 extcnt of the prohibition of discrimina-
tory treatment on the basis of sex, which is the subject of heated
disputein the constitutional law of many States, has to be answered
uniformly in al1 countries since, and because, the human rights
protected by International Law include the right of equal treatment
of the sexes. But even the differential treatrnent of the inhabitants
of a State in accordance with their origin, their standard of educa-
tion, and even their race, etc.. is clearly not as stringently forbidden
by the principles of International Law in respect of hurnan rights
as in the case where the relevant precepts are ptrenched in the
constitutions of individual States or are embodiedin special treaties.
What is prohibited in terrns of the legal views currently held by
most States, is the deliberate 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 the~r
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 perçons who are regarded
as its citizens for the purpose of International Law, by granting
certain groups lesser political rightshan 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 aiithor 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 appIy the same civil and criminal law in respect of
al1 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 al1population groups."
Then, in a footnote, at page 1028, 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 claim a human
right of protection of their group identity, in particular by the grant
of special legal rights to them."
The author proceeds:
"The displacernent of the protection of particular minority rjghts
by the legal recognition of universal human riglits, could be used as
an argument tending in this direction. The question must probably
be solved in conjunction witk the right of self-determination, If a
population group, whose feeling of affinity appears to entitle it to
self-determination as a potentialIy independent people of an inde-
pendent State is denied the creation of such a State because expe-
diency dictates that in the interests of al1theinhabitants a particular
territory should, notwithstanding the diversity of its inhabitants,
rernain 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 mernbers of religious
population, there does indeed existta human right to the free exercise
of religion, but no human right to a position which is privileged by
cornparison with that of the rest of the population."
1 have read, Mr. President, our own translation from the Gerrnan. 1
emphasize that this was a work which appeared in 1964, last year, and
it refutes entirely in these varions ways the suggestion of the existence
of a norrn as relied upon by the Applicants.
It remains for me, Mr. President, only to refer to certain invitations
extended to this Court by the Applicants to act in what 1could perhaps
conservatively describe as a rather peculiar and unconventional way for
a court of law.
I have reierred, Mr. President, to formulations by the Applicants in
regard to approval being sought for novel law-creating processes attrib-
uted to organs of the international politicai 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
In the verbatirn record of 18 May, at IX, pages 328-329 .hey place
special emphasis on the fact that this Court is the principal judicial organ
of the United Nations, orof the Charter, as they put it.
Then on 19 May in the relative verbatim, at IX, pages 353-354 t,ere
is a significant passage which 1 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 Article38
in the light othe needs of the developing international legal order,
givi~igto Article38 a dynamic content, and thereby giving fulscope
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 tha Charter itself. This of course
applies with even greater force to the mandate instrument, an
international rcgime. The Statute of the Court,asan integral portion
of the Charter, underscores the point that this Court itself is formally
constituted as an institutionalcomponent of the organized inter-
national comrnunity, thereby making it highly appropriate to give
effect to the law-creating processes active in other segments of this
same international community, ofwhich the Court is the high judicial
tribunal."
Mr. President, this must mean and can meari 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 Court is rnerely asked to fulfil its function
of applying the law,why is al1the verbiage necessary? What does it al1
mean? Why is there al1this reliance upon the Court beinan integral part
of this structure of organized international society, and,as such, required
to give effectby dynarnic and flexible means to the concepts wkich 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 purposeç, revolutionar~r justice. Thereisnrged upon the Court the
same dynarnic approach and flexible principles of interpretation in
accordance with which so many States wkich are diagnosing the present
position of the United Nations, have contributed to such a vital extent to
present difficulties.
They arein effect assigning to this Court a most unworthy role in this
whole process, viz., that of a revolutionary t.ribuna1 to aid and abet,
and to rubber-stamp, the usurpation, by the political majorities in
international organs, of Iegislative powers which have not been granted
to them in the constitutiveinstruments orwith 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 fulfil.
That stands, Mr. President, in rnarked contcaçt 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 he struck a note which
he considered so appealing at that stage, that ke found it desirable to
repeat it again at the conclusion of his oral rejoinder in those proceedings.
' We find it referred toat VII, page 261 of the Oral Proceedings on the
1962 Preliminary Objections. It iç the second sentence on that page of
the record, as I Say, at the opening stage, and then at the concluding
stage, atpage 368, of that record. 1 should Liketo 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 fiIernbers of the Court, may 1 conclude in
thanking the Court for its attention, with a statement with which
1opened my comments:
'It ispossible to acliieve the Rule of Laiv oiily because this
Court sits.'"
Mr. President, that again demonstrates the change ivhich lzas 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 sometking towhich he is
not entitledinlaw. In our submisçion, Mr. President, only time can bring
a solution ti3 the political aspects of this dispute which has found itself
in the procei:dings 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 lead to the Court will
undoubtedly reveal to the Court the enormous fund of goodwill still
existing throughout Africa amongst al1 her peoples, amongst Black,
White and Brown, across colour and ethnic lines, a fund of goodwill
waiting to Ise tapped in circumstanceç inwhick one people does not feel
itself threatened by a~iother.
My learned friend speaks of qualitative versus quantitative aspects of
development, contrasting those features with one another. He speaks of
moral versus material progress. Mr. President, does he really think that
South Africa'spolicies are concerned onlywith 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 thathas produced nothing good
for their souls?
Mr. Presitlent, 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 manis rising to a position
not of domination but of equality, of friendship and CO-operation, can
that ieave the sou1af the White 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 mistakeç can be rectified, and
sore points can be eliminated or eradicatcd. Surely that is where dyna-
mics and flesibility are to play their part, but then at history's own pace.
My learni:d friend,by asking thisCourt 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 thua 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 resiçted and resented by the peoples themselves. And therefore,
Mr.President, the following of this coursby the Court would have a very
good chance, to put it at its Iowest, of spelling disastrous revolution rather
than constriictive 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 suggesticin 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
dis utes as may be referred to it by the parties.
Pthank 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-
ceedingswhich is the presentation of Our caseon the facts,with reference
to the evidence to be iead.
Ishall present to the Court a brief opening staternentin 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. When we were
thinking of a differenttype of dispute to be canvassed in the evidence,
we contemplated dealing fairly extensively with the facts which are
already on record in the pIeadings 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 tliose 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 z, 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.
Ihave already indicated in my legal argument-the rejoinder on the
law-what the broad purposes will be of the evidence to be Ied 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. I,2,7 and 8.Nos. I and 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 aIways been common cause that Respondent
refused, in fact. to render reports and to transmit petitions to the
United Nations and the only issuewith respect to Submissions 7 and 8
and the relevant part of Submission 2 has, therefore, concerned the
question of a legal obligationorotherwise to submit reports andtransmit
petltions. That issue. together with the question pertaining to the lapse
or othenvise 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 ta
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-Submiççion No. honcerning 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 83
Our further conduct of this case is, therefore, directat meeting the
charges invalved in Subrnissions 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 forrnulated, constitute in effect
one submission only and can. for al1purposes in the further proceedings
in this case, be treated as one. We have also demonstrated that the
Applicants' whole case on this subject now rests on the single proposition
that there is in existence the alleged norm and/or standards which pro-
hibit the Respondent from distinguishing as to race, colour, national or
tribal origin, in establishing the rights and duties of the inhabitants of
the Territory.
We of course admit, Mr. President, that Respondent's policies and
practices in South West Africa do distinguish as to racial orthnic origin
in establishing the rights and dutiesof the inhabitants, and; therefore, if
a legal norm and/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.
Conseque~itly, the only matter on which questions of fact now arise
regarding Submissions 3 and 4 is the alleged existence of the norm and/or
standards alid their alleged applicability to South West Africa.
I have already indicated broadly the object of the oral testimony
which will be directed to this question. It is,1imay put it briefly again,
to demonstrate that there is no international custom evidencing a general
practice by which a norm andlor 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. In other words, it is directed in that sense, at paragraphs (b)
and (c) of Article 38 (1) of the Statute of the Court, that is, the Ap-
piicants' case sought to be made under those heads.
In particular, Mr. President, I can indicate very briefly that we want
to show, firstly, that there is no evidence of a general practice accepted
as Iaw, 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 persons on the
basis of menibership in a group, race and so forth, and to demonstrate,
MI. President, that the application in such circumstances of a nom or
standards as contended for by îlre AppBcants, would not only militate
against peace, order and good government, and thus also against the
whoIe concept of promotion of well-being and progress to theutmost, 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 faras there may be any standards existing in the world
today suggesting theapplication of such a norm, have not been tested in
practice and we want to show that if they should be tested in practice
then the need for revision and reversa1 would become manifest in respect
of particular parts of the world.
This, Mr, President, would, in our submission, therefore, assist ,to
demonstrate how impossible it is, infact and in law, to regard activities84 SOUTH WEST AFRICA
in international bodies, as relied upon by the Applicants, as an rtdequate
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
plw 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 iact,operative in different countries of the 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 policiiesand 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 Reçpondent's policies on an
entireIy different basis, namely as being tainted with irnproper motives,
or as being oppressive of certain groups-findings which were largely
based on incorrect or distorted facts or assumptions or on deiiberate
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, îhen, as regards the actual evidence and the witnesses
concerned, inasrnuch as the nature and the purpose of the contemplated
evidence has changed in the way 1 have indicated. the position of pro-
posed evidence of individual witnesses has also been affected. The listof
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 specificaIly 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 progresç ofal1 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
topromote, and are having the effect of promoting, to the utmost well-
being and progress and that a reasonable mand.atory government could
decide upon those policies as being the best suited to the circumstances.
That approach has become unnecessary and, as 1have said, in so far as
the witnesses rnay still refer to the policies, it will not bthatrpurpose.
It will now only be for the purpose and in the ccintext of illustratinand
demonstrating the untenability of the norm and the standards relied
upon, to dernonstrate, 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 circumstanceç, 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 consequences of doing away with differentiation under such circum- REJOIKDER OF MR. DE VILLIERS
85
stances. The impossibility of applying qualifications of the kind 1
postulated yesterday which arose in the discussion of the minwities
trenlies, will also receive considerationhir.President.
A certain number of the witnesses originally conternplated will, in
these circumstances, now fa11away because of the altered situation. In the
case of other witnesses, some of them willomit evidence which \vas
originally ctintemplated for them and they will adapt their presentations
along the Iines which 1 have already indicated. And also it has been
necessary tel add new witnesseç to cope with particular aspects of this
altered situation.
We shall indicate aswe go along, Rlr. President, which of the witnesses
will, in theçe circumstances, now no longer be required. The names of
most of the new witnesses contemplated have already been submitted
to 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 ~elatively short tirne to those alterations, Iam unfortunately
not in a position, Mr. President. to indicate definitely now that those
lists are frnally and necessarily complete. In fact, we are still in contact
lvith a few potential witnesses whose names have not been submitted in
lists,and it rnay be that we rnay have to pray the indulgence of the
Court to add their names in due course; but 1can 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.
1 can also give the Court the assurance that as we contemplate the
situation at the moment, as we see it, the number ofsuch witnesses couId
not be large, maybe two or three, maybe four or five; 1 could not see
anything substantially in excess of that a5 at present advised, but the
probabilities are that it would be less than the limit 1 have indicated.
That rnatter 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 contempIation of indicating a broad classification of wt-
nesses, that is, witnesses falling into particular categories dealing with
particular srtbjectç. Before I deal with that, may 1 first indicate that aii
the witnesses can, broadly speaking, be classified as experts,in the sense
that by reason of acadernic qualifications or special study, andlor 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 witnesseç rnay, in the course of their testimony and probably d,
refer to facts which are already on record, but they will do so only as a
basis for expressing their opinions or forthe 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, hlr. President, we contempIate and suggest, with respect,
that each ofthe witnesses be regarded as comingwithin the dual capacity
of witness and expert, andthat therefore boththe declarations prescribed
at Article 53, paragraphs 2 and 3, of the Rules of Court, ought to be
taken by them.86 SOUTH WEST AFRICk
Therefore, in so faras we speak of witnesses inthiscontext, we intend
to referto 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 resentation of the
evidence, Mr. President, here afso Our earlier ideas R ave been affected
by the change which has corne about. IVe thought formerly that we
could have the witnesses in particular cstegories;that is, general aspects
of Respondent's policies, and particular applieci aspects thereof in the
sphNow, that again has largelyomibeen affected, as 1nSay, 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 divide 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 1have already indicated.
We shall present the witnesses on the general aspects first. Broadly,
that willbe 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.
1can mention some of those reasons : inthe first place, there are a few
witnesses whose testimony will fa11in both of these cornpartments; in
other words, they will present testimony of a general nature, but also
concerning particular subjects. Secondly, Mr. Yresident, the witnesses
come from al1over the world-we have to make practical arrangements
with respect to their availability at particular trimes,arrangements also
about travelling and accommodation, and although these are planned
in advance, they are sometimes upset by unfort:seen circurnstances and
we rnay have to adapt ourselves to that. Then, inthe third place thereis
also a complication which arises from the fact that there wiIl have to be
special interpretation in the case of witnesses who do not speak either
French or English, and the sequence in tvhich such ~vitnessesare 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
attention has been given, but it can also to some extent affect the order
of presentation,
We shall, however, Mr. Yresident, adhere as faras we practicably can
to this order of presentation,and in so far as it may becorne 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 rny
Iearned friend on behaIf 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 wedecide accordingly, we shall raise the matter
in Court after discussion with the representatives for the Applicants.
New, upto this point l have dealt with the matter of evidence only REJOINDER OF MR. DE VILLIERS a7
with regard to the issue now before the Court in respect of the Applicants'
Submiçsions 3 and 4. In regard to their Submission No. 5, concerning
alleged unilateral incorporation, the Applicants have hardly addrcssed
any oral argument to thiç Court, as the Court will recall, and in view
thereof and 0.fthe 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 raiçed undcr the Applicants' Sub-
mission Bo. 5.
1have virtually finished this, Mr. President. Ifyou could give me, Say,
two or three minutes more 1 could finish it before the adjournment.
IVith regard to Submission No. 6, that iç, militarization, the Appli-
cantç, although accepting for purposes of these proceedings the statement
of fact contained in our pleadings, persistintheir charge that liespondent
has established military bases in South West Africa, but here also they
advance only very brief argument tothe Court in these Oral Proceedings.
We propose to adduce expert testimony of onIy 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 consistof the
expression of expert opinion on the question whcther any installations in
South West Africa are of the nature of military bases. It will be given by
an expert witness who is in any case called to testifyin regard tomatters
which arise under the Applicants' Submisçions 3 and 4.
The Applicants' final Submission No. g,which concerns moc-lification
of the terms of the Mandate, rests entirely of course on charges made by
them regarding their other Submissions 3, 4, 5and 6. and therefore no
separate testimony will be adduced by us conccrning issues raised under
Submission 9.Biit the evidence led in regard to 3, 4 and 6 will ofcourse
then indirectly serve also as an answer to the Applicants' Submission
No. g.
Then, Mi.. President, after the oral testimonp has concluded we shall,
in accordance with the directive of the Court, present oiir address to the
Court with regard to the issues raised under the Applicants' Submisçions
3, 4, 5, 6and g,and as 1have said before, we may then supplement the
record, in so far as it may be necessary, with a reference to documentaq
sources which are in any event avaiIable to the Court. 22. HEARING OF THE WITNESSES AND EXPERTS
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
Appficants' Submiçsions Nos. 3 and 4, that is, whether a legal norm of
non-discrimination or non-separation andjor standards of that nature,
do exist,and apply to South West Africa. The points to which his evi-
dence will be directed wiUbe 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 interestç 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
suMay 1, Mr. President, cal1the 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 : will be glad if Dr. Eiselen will come fonvard and
make the solemn declaration of witness and expert, as provided for in
the Rules of Court.
Mr. EISELEN:Mr. President, and honourable Members of the Court,
in my capacity as a witness, 1 solernnly declare on my honour and
conscience that 1wilI speak the truth, the whole tmth 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 my
sincere belief.
The PRESIDENT M:r. Muller-you may keep your seat ifyou prefer.
Mr. MULLER: 1shall later. Thank you Mr. President. Dr. Eiselen,your
full narnes are Werner WillihlaxEiselen. 1sthat correct?
Mr.EISELEN:That is correct, Mr. President.
Mr. MULLER:1 shall state your academic qualifications and ask you
to Say whether I have correctly stated thern. You hold a Bachelor of
Arts degree of the Pretoria University.1sthat not so?
Mr. EISELEN:That is correct.
Mr. MULLERM : aster of Arts degree of the Stellenbosch University?
Mr. EISELEN :Correct.
Mr. MULLERA : nd a Doctor of Philosophy of the University of Ham-
burg.
Mr. EISELEN :Correct.
Mr. MULLER : hat was your special field of study, Dr. Eiselen?
Mr. EISELEN:My special field of çtudy, hlr. Presidentwas African life
and languageç, linguistics and social anthropology as wellas physical
anthropology.
Mr. MULLERW : hat officedo you hold at present? WITNESSES AND EXPERTS 89
&Ir.EISEI-EN A:t present,1 hold the officeof Commissioner-General for
the Northern Sotho ethnic unit in the Republic of South Africa.
hlr. MULLERm : at are the functions of a Commissioner-General of
one of the ethnic groups in South Africa-very briefly stated?
hlr.EISELEN: Mr. President, the function of the Commissioner-
General is, in that area, to be theepreçentative of the Government that
has to receive from territorial authorities existing for that ethnic unit
such submissions as they wish to bring to the notice of the Government
of the Republic-he has to convey those to the Government 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 ethnic
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 al1 the fields of the contempIated
development .
Mr. ~IULLER:Am 1 right, Dr. Eiselen, in stating that you have a
particular and intimate knowledge of the Bantu peoples of South Africa?
Mr. EISELEN: Mr. President,in reply tothat question 1 would say that
1 have sperit 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 agher standard of civilization.
1 do not know whether 1should at this stage give you a full résuméof
the various contacts which 1 have had with the Bantu people; they begin
with my early youth as 1 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
T grew up among the Bantu people, speaking the language of .that
particular section,as whose Commissioner-General 1 have been appointed
by the Govi:rnment, speaking their language frorn early youth. 1 have,
in taking ari interest in the work ofmy father, of course learnt to deal
with both sections of the Bantu community-both the Christian section
of the cornmunity and the heathen community-so that 1 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.
Rlr. MULI.ER : r. Eiselen, you have already explained to the Court
wtiat your particularfieldofstudy was as a student. Now, after obtaining
your doctorate, what appointrnents did you hold in South Africa?
Mr. EIÇEI.EN: Mr. President, after coming back to the then Union of
South Afric;~,1was appointed to a poçt in the University of Stellenbosch
after a short time as a teacher in various high-schools;1 was appointed
to this post in Stellenbosch with a speciaI task of building up there a
department of African Iife and studieç. 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 scientifiç point of view. That isSay,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 earlibut those were the first
two that carne 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
problerns, and so forth, othe Bantu people, of Africa in generaland of
those of the Republic, then Union, in particular.
Mr. MULLER W: hat position did you eventually hold at the University?
Mr. EISELE-J :1 started as a lecturer, working in both directions, in the
fieldof teaching Bantu languages and doing social anthropology. AS the
department grew 1was able to withdraw from the Iinguistic side and to
concentrate on the line of social anthropology, and in due course 1
beMr.eMULLERssor:ihat position did you hold after1936;'ro1933 to 1936.
Mr. EISELEN:Mr. President, after 1 had been at the University of
Stellenbosch for almost ten years, doing work in the academic field,I
felt very strongly that1 might be of more use to my country if 1gave
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 idetliat the education of the
Bantu people was not receiving as much attention asit should receive,
because itwas always being dealt with by the same persons who were
attending to the education of the white people, and being white people
themseIves, they sometimes tended perhaps to pay less attention to the
second part of their task, and it was, therefore, contended th~twas in
the interestsof the Bantu people that education should be handled by
peopIe 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 al1 the necessary steps for its development. At
the invitation of these people, 1 undertook to take upon myself the
post of organizing and directing this effort in the Province of the
Transvaal.
Nr. MULLER: Dr. Eiselen, just before tiie adjournment 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 1 assumed was
then known as that of the ChiefInspector of Native Education. The real
reason ~vhy these posts were established was that advisers of the Govern-
ment in this respect, among whom Dr. Loram ranked highly together
with many educational experts, were ofopinion 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 circurn-
stances, the way of life and the Ianguage of these people to take charge
of education, and, a1 said,1did so at the special invitation of Dr. Loram
whose name may perhaps be knowii, because he waç afterivards called
to a Chair of International Race Relationships in one of the foremost
U.S.A. universities.
Mr. MULLER:In your capacity as Chief Inspector of Native Education
in the Transvaal, did you come into close contact with the Native
peoples, the Bantu people, of the Transvaal?
Mr. EISELENY : es,Mr. President, 1 came into very close contact,
especially with those who liad already received education-that is to
Say, the teaching personnel ofthe various schooIs, but1 also came into
contact with a great number of church people who were at that time
conducting the schools asmanagers, and perhaps more important than
that, 1was able to corne into contact with many of the people whom we WITXESSES AND EXPERTS 91
were trying to persuade to make the necessary arrangements for the
schooling of their children, namely thechiefs and the tribal aristocracy,
so that 1 think that during that period of my life 1made contact with
various, al1 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?
Blr. EISELEN:1 held that appointment for II years, from 1936 to
1947, and perhaps 1 should explain why 1 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 World War had corne to itconclusion and there were a number of
new ideas in regard to the further development of the coming young
nations of theworld. With these ideas,1 maysay here, 1 was in complete
sympathy, but 1 felt that in South Africa they were being applied in the
wrong way,and that we did not getthe opportunity-1, in my particular
office-of building on those foundations which had been laid, but that
there was :itendency to break away from that firrn 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 intoa rather revolutionary process of rnaking the education serve
not the needs of the people so much, but serve the education trends and
the needs, of an ideology, narnely the ideology of integatingthe Bantu
people as soon as possible-of making them accept the values of a
culture, of a people, not their own-away of life not their own-without
allowing them the necessary time or the free choice whether they wanted
to do so; andit was for that reason thatI handed in my resignation and
returned to the University. in this case the University of Pretoria,
where 1oct:upied the Chair for Social Anthropology.
Mr. ~~ULLER: How long were you at the University of Pretoria?
Mr. EISELEN:1 was at the University of Pretoria only for two years.
ASI was no Ionger in direct government service at the university 1had
ample opportunity of expressing my views, writing articles on the
situation, writing articles on the development of thentu people, on the
whole question of the policy as between the various sections of the
population in South Africa.1 made full use of those two yearç and at the
end of those two years 1was called away from that post and asked by
the Government-there had been a change of Government at that time-
to undertal~e the task of Native affairs. 1 was made Secretary, that to
Say, Head of the Permanent Department of Native Affairs in the then
Union.
Mr. MULLER : ow long did you hold that position?
Mr. EISISLEN1 :heId that position for 11 years, until 1 retired on
reaching the age limit.
Mr. NULLER:In what year?
Mr. EISELEN: That was in 1960. In 1g601 retired and that was after1
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 al1 the parts ofthe Union. In the course of my visits to the various
officesofrny Department and visits to the various population groups in
the Bantu areas of the Union, 1 could build up closer contact in practice
with those other portions of the population whom 1 had not known so
well, not from youth upwards. And I also had the opportunity then ofg2 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 1venture to say that 1should be expected to know a little about the
Bantu people and their particular circumstarices 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
BaMr, EISELEN:Yes, Mr. President, in 1945 ,t 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 Professor in hi5
younger years in CapeTown, 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 1 had contacts and who knew a lot about
my work in the Union of South Africa as educationist, that 1was invited
to serve on this Commission which visited Basutoland and spent some
time there in1945 ,nd also published its report on Education for Basuto-
land in the same year, making various recommendations, recommenda-
tions which 1still today believe were very sound and on the lines ofwhich
the education in Basutoland was reorganized at the time.
hlr.MULLER D:id you serveon any other Commissionsin South Africa
itself
Mr. EISELEN:In South Africa itself, while 1 was still Professor at the
University of Pretoria, 1 was asked by the Government to serve as
Chairman of the Native Education Commission, to investigate the
question ofthe history and the development of Bantu, of Native educa-
tion, as it was called at that time, in the Uniof 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 earlyin 1949
and worked on this project off and on until 1951 when the report was
published. The report wasquite wellreceived by the Government, debated
in Parliament, and most of the recommendations were accepted, although
it took some tirne before the Government was abIe to act on the major
reMr. MULLER:ns.Dr. Eiselen, IIwillask you questions later relative to
education as a particular subject, but before doing so 1 would like you
to deal with the policy of separate development applied in South Africa
and South West Africa.
First of all, with regard to SouthAfrica, willyou tell the Court whether
there are particular circwnstances 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. 1
have the firm belief that in South Africa, in the present Republic of
South Africa and abo in the Territory of South West Africa, we have
those particular circumstances which make it necessary to have a
definite policy, should 1 Say an educational policin a broad sense, of
leading the black people, the Bantu people, ta higher stage of civiliza-
tion: thatwe have those particular circumstances which 1 would like to
put to you, Mr. President, in a little more detail, explaining why we refer WITNESSES AND EXPERTS 93
to our couiitry as a multi-community country. We have a nurnber of
different comrnunities living within the borders of the Republic of
South Africa and the Territory of South West Africa. 1 shall presently
return to this matter and Say why we rather insist on not calling our
country a rnulti-raciaI country, but speak of our country as a country
whose inhabitants form a plural community, or form a number of
communities.
Perhaps 1 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
characterist.ics with their mentalrnake-up. That is ~vhythe 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.
1would like to Say, first of all, that we cal1 these people, a11of them
together, Bantu people-the black people of South Africa-that is
because they al1speak alanguage belonging to one and the same family
of languages, which have the sarne kind of rnorphology, the sarne kind of
syntax, anri 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 Germanic,
Romanic, Indo-Gerinanic languages that we are used to, they belong to
the agglutiiiating 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 1 am not going to weary you, Mr. President,
with such details,1 merely want to Say that they al1 speak languages
belonging tithat 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-ne would almost Say they require more intelligence if you want
to speak them properly.
1want to Say this, that they are not primitive languages at al1 and
that 1 tkink 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 Bantu
type of lankwage.
Now there are certain other things which are common to al1the Bantu
people. They al1have their subsistence economy, hoe culture and animal
husbandry; they a11have tlieir patrilineal structure of society (1 am
speaking of the Union of South Africa. now the Republic of South
Africa-as regards South West Africa 1 will presently have to add some-
thing tothat); furthermore, it is common to the Bantu people that their
political life is linkwith respect for their aristocracyand the chief as
the head of thc aristocracy, and also linked with their belief in fore-94 SOUTH WEST AFREC.4
fathers-the worship of their forefathers whose living representative
arnong 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,
if they can afford it ; their custom of lobola, or bogadi, tisto Say that
instead of a bride being expected to bring a dowry, as is done in Our
European life, it is, onthe 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 somethng-a large nurnber
of cattle, as a matterof fact-by way of compensation.
Then the last common factor that 1would like to name characterizing
the Bantu is their custom of initiation. when the people reach adoles-
cence.
Now 1 have tried, Mr. President, to indicati: that the Bantu people,
in a way, belong together-the same branch of the human family, the
same branch of the language family-but I have now to add that in
addition to that, oras against that,they differ in many ways so that they
cannot be regarded just as one single peopIe. They cannot, for instance,
just offhand understand the language of another population group. With
your permission, Mr. President, 1would 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 Zuiuland; the Basuto people in Basutoland and
parts of the Free State which border on Basutoland; the Bechuana liying
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 1 am now serving as link with Our Government, in the
Northern Transvaal; and then, finaIly, two smaller groups, the Bavenda
of the far north and the Shangaan of the north eaçtern part of the
Transvaal. Al1these people have their own lanpage and a Zulu person
cannot understand a Suto person any better than a German can under-
stand an Englishrnan, 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. 1 might, iflt
will interest you, Mr. President, and the Members of the Court, JUS^
mention certain other things in lvhich these various peoples of South
Africa differ.
I have inentioned language. The next that one sees readily is that they
differ in the way inwliich they dress, tliey al1have their national way of
dressing.
They aIso have thejr 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 differentway of living together. Their kraals, thais
the term that was applied to their villages, are very different, the Be-
chuana people living in sometimeç big villages with up to 50,000 people
livingina village, while Xhosa people in the Eastern Province you would
hardly ever find living in clusters wherethe numbers who belong to that
cluster would exceed, Say, 20 or 30 families.
You furthermore have other djfferences, siich as the preparation of WITXESSES AND EXPERTS 95
food-the staple diet is not at a11the same for the various people-the
way in which they store their grain, and generally in connection with
arts and cra.fts.
But, corning now to the social and political side, 1would like to say
that they do not have the same lawç of inheritance. As we cannot deal
with al1of them, I would like to quote just one example. With the Xhosa
people, those are the peopIe that are now in the Transkei who have
received independent government, their inheritance and Iaw 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 so involved that it was seldom before the
death of the reigning chief that it was realIy known who his successor
would be. That iç because of the belief, Mr. Prcsident, that it is not a
good thing i.o have a person designated as your successor whilst you are
still alive, because he might take the necessary steps to remove you
before your time had really come.
As against that, you have amongst the Basotho an entireiy 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
of the young chief they drill a new fire, a new fire, in a cerernonial way,
and everybody has to fetch fire from this sacred fire of theirs which
represents tlie new chief who willreign in hiç father'sstead.They actually
cal1their 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 fire was made.
Now, 1 animentioning these matters only, &Ir.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. In
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 tkis animal as the emblem of their tribe, and verv often as
sornething which has to be worshipped, sornething that certainly must
not be eaten.
Now, we tio 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 exoganiy, with others it is not, so that it is far easier to find great
and important differcnces between these population groups than the
matters in which the one resembles the otfier. The last one,excepttheir
ordinary history and traditions which bind the people together-I ~ould
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 dice and interpreting frorn the
way in wliich they fall; and the Bavenda people have the ceremonial
wooden bowl which is ornarnented with various totem animalç, in ivhich
they allow a light fruit kernel to float on water, and it will float to
indicate the cause of their clifficulty in connection with which the
question is put to this divination apparatus.
1 hope I have not wearied you with this exposition, ;\Ir. President, SOUTH WEST AFRIC.4
96
but that is how Our Bantu peoylcs, in the Union of South hfrica-now
the Republic-differ.
Mr. MULLER: Dr. Eiselen. having described tiiese differences between
the Bantu groups of South Africa, there are, of course, also other groups,
other than Bantu groups. klrhich are they?
Mr. EISELEN:In the Republic of South Africa?
Mr. ?I~ULLER Y:es.
Mr. EISELES: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, but1 would like
to point out that my own persona1 contacts have been with the Bantu
people in particular.
&Ir.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 livi: as one unit?
Mr. EISELEN: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.
Nr. MULLER: Living apart. Has that conie about by governrnental
fiat,oris it a matter of historic evolution?
Mr. EISELEN : That is a matter of historical evoIution.
Mr. MULLER:Will you describe to the Court, L)r.Eiselen, the historical
evolution which has brought about the circumstance tliat we do find in
South Africa of the groups occupying, largely, separate areas.
Mr. EISELEN : Mi- President, if may request the opportunity, before
answering &Ir.Muller's question, of just explaining why1 putbefore you
a description of the various Bantu population groups, itis because I
wanted to make cIear that we have, in the Republic of South Africa, a
multi-community country, that while these eople are also different in
race, the race is not of great concern tous. !~e do not think that it is
correct,we think as arnatter of fact that it is niisleading to refer to our
country as having a race problem, because that always causesa confusion,
because we are then confused with the countries that have only a racial
problem. At later stages1 will again probably have to refer to this, but
at this initial stag1just 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 com-
munity. They differ from the white people there not to any marked
extent in their community and in their cultural life, theyspeak the
same language, they have the same religion, they have the same belief,
they have the sarne pursuits, and in every manner of way lead, or try to
lead, the same Iife as the white people-the white Americans-of the
United States to such an extent that, to us, it issornetimes a matter of
surprise that they should still be referred taç Negroes and not merely
be called Americans. But perhaps that is just unnecessary cornrnent at
this stage.
Mr. MULLER: Good. May 1 repeat my question, and that is willYOU
describe briefly to the Court the historical eveiits which brought about
the circumstance in South Africa that the difîerent population groups
occupy, largely, different areas?
Mr. EISEEEN: bZr. President, the area which is now known as the
RepubIic of South Africa was not originally inhabited by the people who WITNESSES AND EXPERTS
97
riow live tkere. The original inhabitants did not include any white
people or any Bantu people; both of them are newcomers, if you take the
very long lriew, to thispart 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 1do 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 1 would like to cal1 the
Trâns-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 Iiad the Bantu people corning from the north, you had wkite
people coming from the south.
Now the country was not entirely uninhabited. You had living in the
country at that time the Bushmen and various Hottentot tribes. It is
rather difficult to reconstruct the picture-one has to reIy very much on
guess-work in doing so; one can only judge by the various relics which
the Rushmen have left in various 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 Bantu people gradually eliminated the
I-Iottentots, but did not kill off the womenfolk, but kept those and lived
with tliem, added some new 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 difficuIt to pronoiince, which both 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 isof course well known where the Europeans came from;
the Europeans were all, more or Iess, of Germanic stock, West Euro ean
stock. And now the interesting part is that the Bantu occupieBthe
northern, the Trans-Orange, part and the white people gradually
occupied tlie area to thesouth of that. The Bushmen and the Hottentots
rlisappeared in various ways; there tvere certain of the diseases-small-
pox-which overwhelmed the Hottentots in the European area, but they
also ming1t:d with the slaves who were imported at one stage into the
Cape Colony, and also with white people, and formed the coloured people
of todaq7-part of the coloured people. How exactly, as 1Say, the original
inhabitants in the northern areas occupied by the Bantu disappeared we
cannot Say. The important point is that neither of tkose original peoples
living in South Africa play any important part there now-they are just
a few, tiny reninants, and some larger remnants ~vhich have been
preserved in South West Africa.
I should like to add sornething, Mr. President, about the way of
occupation. Ifonesays that the Bantu people occupied the northern part
of the present RepubIic of South Africa, the northern and the eastern
part, then one is inclined to tliink that they now occupied that country
as a mhole. But that is not so, because of their wayof life, their economic
pursuits, their way of subsistence. They were only interested in those
parts of the country which had a fair rainfall, and which were well-
mooded, because that type of country with tlieir implements they were
able to till. They were not interested in the extensive grass-veldt of the
Republic; what js known as the high-veldt and the middle-veldt, and
which fornis by far the Iarger portion of the country, was not occilpied98 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 ownneeds, they tilled only small parts of the
country; they used somewhat larger parts for tlieir animal husbandry.
but also round about those particular areas which they occupied.
And now, Mr. President, if you wiLllook 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 ofthe land, along their mountain ranges, to the eaçt of thoçe
mountain ranges, with a good rainfall, the well-wooded country; and
then in the north, in what we cal1the 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, wkich
the Bantu preferred as their residential sites1am saying thisto 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 1 \vas trying to point out, Mr. President, theae are sti1l the areas in
which they Iive today which are still regarded as their homelands, that
is tosay 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 findthat 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 hispeople into armies, and that he made use of
them to ravish the country, to exterminate his less-powerful neighbours
and to 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 ofhisgenerals also
made themselves independent from Chaka hirnself-the one who is best
known in history is Mzilikazi, who set himself up as the war-lord in the
Transvaal. Urell, the effect of these wars of extermination, were such that
the period is describedby our Bantu 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 acustom with the Rantu-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 1 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 hirn
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 altbough it had been their desire, as ex-
pressed in the manifesto 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 both cases there arose
very serioiis 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 thesewhite trekkers from the south,
that they consoIidated their strength as far as they could andthey 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.
WelI, you find then that into this sparsely populated country, ravaged
by wars, Iiever very fully occupied, the Europeans came in and they
settled there and they brought into the country-and that perhaps is
sornething 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 traditionalhomelands. That is how this part of
the country came to be occupied in this ~iarticular 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. EISI~LEN : r. President. a1 tried to point out, the Bantu people
were at that time, after their war-lords had been removed, once more
residing in or returning to the areas which they had originally chosen for
themselves and in which they had traditionally lived and they were left
in those areas undisturbed according to the promise, given by the leader
Piet Retief, that itwas the desire of the European people to live with
them in peace as neighbours. There were exchanges of land to some
extent aftt:rwards but in no really radical way was the occupation of the
Kantu 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 peopb addedto 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 1910 what was the
position in regard to what is now known as the Transkei?
Mr. EISISLEN :he position of the Transkei, Mr. President,was that it
was part of the British Colony of the Cape beforeunion 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 Britisli people of the
Eastern Province and not contacts with the trekkers, the people who
set out to form a new nation towards the north.
Well, now in the Transkei the British Government Ilad, in the course
of the hist:ory of this particular area, attempted to introduce various
policies, the one after the other. Those of you, Mr. President, who per-
Iiaps know a Iittle of our South African history, wiII know that to the
grcat annoyance of Our çchool pupils thcy have to learn about so many100 SOUTH WEST AFRICA
Kaffir wars. There were so many that I cannot quite remember the
number, 1 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
particularIyforcattle, the Bantu people would come across those borders
and that would çtart another Kaffir war. Great Britain first tried to have
directrule. They tried to establish offices-almosmilitary occupation-
in that area and to abolish Bantu chieftainship and to mn this country
as a complete dependency of the Cape Colony.
WelI, 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 thaat the time of the Union you
finda sort of a mixture of two things in the Transkei. You will fanpart
of the country organized inio districts run by local councils and district
councils, with no chiefs, and then you find the northern part of the
country with paramount chefs, and you find both these groups-the
representatives of the localcouncils and the distri councils and the
people appointed by the paramount chiefs-together meeting as an
authority for that whole area and being a local governi~ig body in the
whole of the Transkei.
That was the position round about 1910,
Mr.MULLER : he 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 ofSouth Africa.
hlr. MULLER: At the time were any other portions, occupied by the
Rantu at the time, excised from the area which becarne the Union of
South Africa?
Mr. EISELEN:hIr. President,in answering this question we now come
to a very important stage in the development of South Africa and in the
development of the concept of Bantu homelands.
The PRESIDENTI : think we will come toit on Manday, at 3 o'clock in
the afternoon. Before we adjoilrn, Mr. Muller, 1 wonder whether it is
necessary to go into al1the detail that you have extracted from Dr.
Eiselen.1 am sure the Respondent's regard this important to their case
but we are, after all, concerned with South West Africa, and 1 am
wondering whether it is necessary to go into al1the detail that we have
heard so well expressed by Dr. Eiselen this rnorning.
air. MULLER: With respect. Mr. President, I did not expect so much
detail myself but it can be considered to be shortened iso far as South
Africa itself is concerned.
[Public hearing O/ 21June 13651
Mr. MULLER:Dr. Eiselen. just before the adjournment on Friday I
had put to you a question which then remained unanswered. 1will repeat
the question to you. At the time-this is1910 ,he time of the.Union-
were any other portions occupied by the Bantu at the time excrsed from
the area which became the Union of South Afrjca? You then indicated WITNESSES AND EXPERTS IO1
that you would be answering the question, and as a result of the adjourn-
ment it is to be answered now.
Mr. EISELEN h:lr. 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 alrnost solely by Bantu, with very few Europeans, and the
traditional chiefs were runninghese countries in their own way. It was
therefore the intention of the British Govemmentto allow these partic-
ular areas to remain without the Union, outside the Union, until çuch
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 : hat was the policy applied, afteUnion, wit: regard
to the areas occupiedby the Bantu in South Africa?
Mr. EISELEN : fter the Union of South Africa had been established,
the firstGovernment, fully representative of the new South African
nation that: had beenbuilt upwas formed and this Governrnent rvasted
no time in applying its mind to the question of the South African
traditionalpolicy, to which 1 have referred previously, and how the
Bantu areas and the Bantu people should be dealt with. Accordingly, in
1913, legis!ation was passed to set apart those areas actually occupied
and tradltionally 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 Government of the Union of South
Africa would endeavour to extend the area of these territories. So you
had the Governnient ofSouth Africa following the lead given by Great
Britain ancl setting apart these homelands for the Bantu people, really
consolidating the positionas it existed in practice, but promising to
extend the areas.
Mr. MULLER :ould you tell the Court, very briefly, what was done
in practice to implement the policjustdescribed?
Mr. EISELEN :A Commission, known as the Beaumont Commission,
uras appointed, Mr. President, to go into the question of how these Bantu
areas could be extended. Unfortunately, the First World War intervened
and, forthi: time being, this niattwas shelved. After the First World
War had corne to anend, there was a change of governmenin the Union
and the new Governinent had the desire to make this extension of the
Bantu territories part and parce1 of comprehensive legislation. It was
not at first possible to obtain theecesssry support in Parliament-a
fruition until the ye1936,when legislation was passed to set aside very
large additional areas-seven-and-a-quartermillion morgen. Then at the
same time this was embodied in other legislationforming part ofwhat
was then called the policyof segregation. Provision wasmade for the
developmerit of theçe Bantu areas, not merely the fcncing off of those
areas, but reai development of the areas, and therefore a Native trust
was set u to undertake thiswork, as well as a Native development fund
into whicY al,the monies which accrued tothe Government from Natlve
taxation were paid.1 just want to make this point, Mr. President, that
the monies required for buying the additional land were voted direby102 SOUTH WEST AFRICA
Parliament frorn ordinary State funds, but that the monies used for the
development came at that time from Native taxation, the whole of which
was handed over to the trustand tothe development fund.
Mr. MULLER : OW was this programme affected by the Second World
War?
Mr. EISELEN: 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. ~IULLER:Will you please explain to the Court the next stage of
development ?
Mr. EISELEX: The next stage, Mr. President, was when, after the
War-as sooften happens after wars-a new Government took over and
this govemment decided to apply seriously the whole legislation of 1936,
to make it quite clear that it was going to continue to improve the Bantu
homelands and to give to the Bantu people a development of their own.
As a matter of fact, they set out their policy in a statement which 1
would like to quote to you, Mr. President, and which 1 have therefore
translated into English. It states, inter aEia, 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 ethnic communities, entitled to
develop in their own territoriesas self-supporting ethnic units, and
to foster national pride and self-respect ~vhich,iturn, 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 interestç,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: Mat were the particular otijects of the policy just
stated?
Mr. EISELEN:The particular objectç 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 caled
the Policy of Distinctive Development. Th~shas been very much mis-
understood, especially the name "apartheid", and therefore 1 think 1
sh. uld 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 object of the Government to initiate in South
Africa a development which would enable the different population
groups-the different comrnunities-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
furtherthan was done under the previous name of segregation, and to WITNESSES AND EXPERTS 1'33
enable the Bantii neighbours to become independent, self-respecting,
self-supporting communities, with the help of the white man.
Mr. MULLER:Can you tell the Court, briefiy, what legislative rneasures
were enacted to implement the policy which you have described.
Mr. EISELEN: Mr. President, the first steps which the Governrnent
took, afterit 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 al1 education was required; the second commission
which was appointed was a socio-econorniccommission to investigate the
viability of the Bantu homelands, and to go intothe question of how this
couId be accelerated. The various enactrnents, to which Mr. Muller
referred just now, were first of all the Act on Bantu Authorities, which
was passed in 1951-that was after the Government had exarnined the
recomrnendations of the Education Committee-which was to give form
and shape to the Iocal authorities othe Bantu people in their hornelands.
As 1 have explained, these homelands 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 shouldtherefore be reorganized insuch a way that they could
take a reaI and a progressive part in shaping the future of their areas.
Then the secondlaw which \vas passed was the law on Bantu education,
in 1954. I shall not deal with the contents of that because we will be
coming tothat Iater on, Mr. President. Then in 1957,there was the Bantu
Investment Corporation Act to enable the Government to invest monies
in the pump-priming of the development of the Bantu areas. In the year
19 jg,we see a very important announcement made bythe Prime Minister
in which he stresses that the Governrnent is prepared to go the whole way
in allowing the Bantu hornelands to become free, self-ruling, self-
supporting countries developing to, if possible, entire autonomy, and
then, perhaps, forrning part and parce1of a South African commonwealth
of peoples.
And that was followed by a further lawin the same pear, 1959 n,amely
the Law on Promotion of Self-Government for the Bantu Homelands.
Mr. MULLER:Has the law on self-government of the Bantu hornelands
heen appIied to any portions in South Africa itself?
MT.EISELEN: 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 thls
request and in CO-operationwith the Transkei Territorial Authority the
necessary documents and legislation were prepared and, in due course,
pasçed 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 mosl ways; and, of course, having the right to
claim stili further independence also, in respect of those rnatters in con-
nection with which it still finds it more profitable, at the moment, to
rernain under the wing of the Government of the Republic.
Mr. MULLERW : ould you state shortly what is being done in regardto
the developrnent of the Transkei aç a Bantu homeland?
Mr. EISELEN: The Commission to which 1 referred a few minutes ago,
Mr. Presiderit, the Socio-Economic Commission, produced the volumi-
nous report making many recomrnendations and asking the GovernmentIO4 SOUTH WEST AFRICA
to spend great sums of money on the development of these areas. The
Government acccpted this, in principle, and in1960 drew up a five-year
plan for the development of the Eantu areas, both 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 rnoney are being spent on the pump-
priming of the development of schemes, programmes, projects in Bantu
areas, and in this connection 1feel it should be said, Mr. President...
The PRESIUENT1 :recognize the representative for the Applicants,
Mr. G~oss: 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, the 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 wll state, Bfr.Gross, the grounds of your
objection.
Mr. GROSS: The Applicants would first respectfully reaffirm the letter
of 20 June 1965 to the Deputy-Registrar l,to which the honourable
President has referred, as reflecting their viewsas now in the record of
the Court. In conformitywith 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 cIarity 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
colourable connection so far as the Applicants perceive, with respect, to
the allegation of the violation of Articl2 of the Mandate and ArticIe 22
of the Covenant in accordance with the appLication and the pleadings
before the Court.
For the rest, hlr. President, the Applicants would respectfully reaffirm
and stand upon the considerations reflected in paragraphs 3, 4 and 5 of
the Ietter of 20 June 1965 which are likewise reaffirmed in open court
and these reservations and observations relate riot only to the testimony
now in progress, but to other witnesses that may be called under the
same conditions. Thank you sir.
The PRESIDENT : r. Gross,inthe transcript of Friday last,the points
to which the evidence of Dr. Eiselen isto be directed, at page88, supra,
are stated by Mr. Muller to be:
"The points to which his evidence will be directcd will be the
following: the partjcular cÎrcurnstances a~idconsiderations which
influence governmental policies and practices in territories such as
South Africa and South West Africa,which are inhabitcd by different
population groups, the objects of the policy of separate development
and whether, inthe interests of the inhabitants,it would be reason-
able,juçt and equitable to require that a norm andjor standards of
the nature suggested by the Applicants, should be applied in South
West Africa,"
SeeVol. XII,Part IV. WITNESSES AND EXPERTS IO5
In what sense is it that you seek to indicate to the Court that that
was not sufficient information as to the nature of the evidence to be
given by tlie witness?
Mr. G~oss: Mr. President, with respect, the first element to which
objection would be taken, and strenuously, is the characterization of the
testimony proffered, whcther as witness or as expert. which includes the
reference to the phrase "norm and/or standards of the nature suggested
by the App1icsnts"-1 quote that language, Mr. President, from page 88,
sztpra,to which the honourable President has referred, from this ver-
batim. A primary objection perceived by the AppIicants 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 Ietter 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 furtlier confused by references repeatedly
made in the course of the Respondent's oral argument, which again
purported to characterize and reformulate the Applicants' tme theory
and position. This formula, both in the letter of 16 June from the
Respondent's Agent and in the staternents made by the learned counsel
for the Respondent, is a mere reflection or echo of the reformulations
erroneously preçented to the Court by the Respondent. That, therefore,
is the first point of objection and specifically, Issay, the profiering by
Respondent of evidence which purports to be directed toward a norm
and/or standards of the nature suggested by the Applicants, which are
not of that nature.
Secondly and finally, very briefly, Mr. President, witli your forbear-
ance, the influence or considerations which purport to influence Govern-
ment poIicy with respect to South Africa are not, in the Applicants'
respectful submission, relevant to the cornplaint 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 tiot 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
ivhich the rights of the Applicants are reserved.
The PRESIÜENT: Mr. Groçs, so that the Court may fulIy understand
precisely the grounds on which the objection is taken-the Court is
aware of the norm and 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 adrniçsibility.of the evidence. The first1s whether
it does, in any way, bear upon the question of the establishment of an
international custom evidenced by general practice which has been part106 SOUTH WEST AFRICA
of the Applicants' case under Article 38 of the Court Statute; and it also
kas 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 -4rticle2of the Mandate.
The Court would first have to determine as between those two conten-
tions, arnong 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. G~oss: Mr. President, may 1 take the second point first, by your
leave, Sir? The Applicants would see no reason for interposing an
objection either of relevance 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 lega1 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 acquiescencein 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
first made to the case as presented by the Applicants, there were numer-
ous statements made which purported to interpret, to define, to refor-
mulate the Applicants' theory. It does not seem necessary toburden the
Court further with this reservation in view of the honourable President's
statement that the Court indeed is abIe 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, u~ith respect to the first point, if it was
understood correctly by the Agent for the AppIicants, the testirnony
with regard to the generatLon of a Iegal norm (in the sense of Article
38) does perhaps involve questions of factual predication upon which
legal conclusions are based. There is a problem wkich is respectfully
and candidly presented to the Court. a problem which arises in the
Applicants' mind, concerning the line,if any, 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, which1exhibit 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 concerning 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 ArticIe38 (1)and various sub-sections. It
does, therefore, underscore, in the Applicants' respectful submission, the WITNESSES AND EXPERTS 107
added necessity of sharp clarity and timely notice with respect to the
scheme of testimony proffered.
Finally, Mr. President. iImaÿ tax the patience of the Court for justa
very few mûre moments, we do not as yet know what witnesses, if any,
are to follow Mr. Eiselen. We have a tentative list. 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, autornatically,
and in a precautionary sense in order to preserve our rights on the basis
of statements made by learned 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 urgentIy submitted and requested that the
Respondent be directed forthwith to set forth a list of \vitnesseS it now
proposes to cal1 with a comprehensible scheme of the points, legal or
factual, to which their testimonyisto be addressed and, with reasonable
particularity,the evidence which it is proposed that they present, so
that the AppIicants can give studied consideration to these matters at
least 24 hours before.
The PRESIDENT& : Ir.Gross,the lasobservation that you have made is
probably for consideration by the Court and will be dealt with.
Mr. GROSÇ :hank you, hlr. President.
The PRESIDENT : r. Muller, would you indicate to the Court how the
evidence which you are presenting is relevant to the issues in this case?
Mr. MULLER :es, with respect, Mr. President, As already explained
by my learned colleague, Mr. de Villiers, the Applicailts' case, as inter-
preted by the Respondent, is one that there is in existence a norm andlor
standards against which the Respondent 's ohIigations with regard to
South West Africa should be rneasured. Respondent contends that no
such norm is in existence or applies to South West Africa. In disproving
the existenct:ofsuch anorm and the application thereof to South West
Africa, we contend that evidence of the nature given, for instance, by
Dr. Eiselen, is relevant. Iso far as the evidence concems the practice in
South Africa, we Say,Mr. President, that that isrelevant in so far 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 andto 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 M:F.Gross, 1 think the better course to pursue is to
permit the evidence to be given. The objection of the Applicantisnoted.
The Court at the appropriate time will consider the relevance of the
whole, or any part, of theevidence given in its deliberations.
Mr. GROSS : hank you, Mr. President. May 1 make one further obser-
vation most briefly with respect to one rather puzzling feature of the
proffer (which ha5 been referred to in the letter as well).1 think it is108 SOUTH WEST AFRICA
siifficjently important to cal1 tthe Court's attention at this point, for
whatever consideration the honourable President and Members of the
Court see fit to give to it. It is the reference in the le16Junef which,
as yet, the Applicants do not understand (1am referring to the verbatim
of 18June 1965,at pp.83-84,supra). Respondent's caunselreferred 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 çoit seems to
the Applicants, the interests of international bodies which are not
represented at this time before this honourable Court.
The PRESDENT:That is another matter, Mr. Gross, and the objection
then is to be taken at the approptiate time when we reach that stage in
the evidence.
Mr. G~oss:AI1 right, Mr. President.
The PRESIDENT :he witness will proceed.
Mr. MULLERD : r. 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. EISELEN:There was one observation that 1 wished to make, Mr.
President, and that is that very substantial monies that were being used
for the purpose of developing the homelands al1 came from the State
Treasury, and that itwas not required of the Native population itself to
make a contribution. Obviously, the hope does exist that, if this initia1
help has been given by way of pump-priming, in due course the economy
of the Bantu areas willbe sufficiently advanced that they themselves
will be able to continue with less support than at present.
The further and final observation with regard to the development of
this policy frorn the more or less negative poticy of segregation to a
dynamic policy of development is this, that it is not something that has
been thought out by any one particular statesnian, as it were,but that
it follows a long line of historical development, of acting on the saying
which 1 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." Al1 policy
in South Africa has been built up on that original concept.
Mr. MULLERI : 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. Wow would jrou
describe South West Africa?
Mr. EISELEN: Mi. President, the tenn "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 Bantu-the various population groups of the Bantu-
the Coloured people, the Indians and the White people, but in the Ter-
ritory of South West Africa there are many more population groups and
they differ farmore wideIy than the population groups in South Africa.
You have, in addition to the closely related White people related to those
of the Republic, Bantu in South West Africa who are not of the same
type. They do not belong to the same type. l'here 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 Ovainbo people belong to a matrilineal society, which I take it,
Mr. President, isawell-known form of society and everybody knows that
it means soinethirig 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 welI with people who are
used to the other kind of social structure.
But the (lifference between the Bantu and the other groups is even
greater.1 spoke of some of the remriants 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
generallykriown now bythe name of the Nama, and belong to a people
speaking a different kind of language, speaking aHamitic language, not
a Bantu language, and being racially very different from the Bantu, a
yellowish people not a black people, not having the sarne form of life as
the Bantu people of the Republic but livingfrom animal husbandry only.
Then, last but one, you have the Bushmen, who belong to the Stone
Age in their culture in this way, that theyave even to thisday 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 frorn the other people and also in their social
structure, in their traditions, in their way of Iife. They are resembled to
some extent by a black people, not of Bantu origin, called Dama or
Bergdama. 'Thelatter are also of small stature. very much like the Bush-
men, but resernble the pygmies of Central Africa more closely, physically,
than the Bushmen. These Bergdama are the only ones lvho 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 wkich
moved up from the Cape Province during the nineteenth century, known
as the Basters of Rehoboth, being a mixture of Hottentot and European
stock, who have lived there for a long time and who cal1 themseIves the
Nasie, a separate entity speaking not a Xative 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 al1 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 Africa in 1920 undertook to be the
Mandatory ofSouth West Africa, it obviousIy proceeded along the same
lines, because it recognized a similarityand of course ai the same time
the greater difficulty confronting it in connection with building up a
progressive scheme of devclopment for the indigenous people of South
West Africa.
Mr. MULLERA : t the timewhen the Mandate was assumed,Dr. Eiselen,
how were tlie different groups occupying South West Africa? Would
you briefly describe it to the Court.
Mr. EISELEN : Mr. President, you will remernber that during the period
when the German Empire was governing South West Africa as its colony
or protectorate it djd 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 andthe Nama. Eventually, these wars came to an end,II0 SOUTH WEST AFRICA
suppressed and by uray of punishment or retaliation it took away the
homelands frorn 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 ofSouth Afrjca took overas Blandatory,
first as military Government in 1gr4 and then as Mandatory in 1920, it
found aposition where the people were partly very much unsettled and
partly had never been touched by the Gerrnan administration at all.
Those that were badly unsettled were the Herero and theHottentots, the
Nama, and together with them theDama 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 inthe 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 to be their old homelands ta the Herero people and
to the Narna people, and to define and demarcate the areas to which the
various peoples were entitled.
Mr. MULLER: HOW were the areaç demarcated for the various groups
developed ?
bIr. EISELEN T:he same scherne that was thought out for the Union
was applied in South West Africa too, but the difficulties 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 areable to deal with that typeof country to tame it, to make
it habitable. It was for that purpose, in order to ensure employment.
labour, and the possibiiity of earning rnoney, that white immigrants
from the Union were encouraged to go there and to help to develop the
area. That was to improve the economic life in general, but in addition
to that special steps were taken to "make water", as they cal1itin South
West Africa, in the Bantu areas; to enlarge those areas where necessary;
irrigation schemes; and, on the other hand, by fencing into camps al1d
the pastoral areas of the Herero and the Nama people. A branch of the
Native Trust was established in South Weçt Africnto sssist the Bantu
people in this matter.
Mr. MULLER : o what extent has the policy ofseparate development
been applied in South West Africa?
Mr. EIÇELEN:The policy of separate development was applied in
South West Africa by giving to the peopIe there local authorities which
were given the right to run their various areas, they were called Tribal
Aiithoritjes in the compact Ovambo area inthe northern part of South
West Africa, while they were usuaily given the name of Welfare Com-
mittees in the smaller Reserves for the Herero, for the Narna, the Dama,
and the Easters and the Büshmen. 1 must Say, Mr. 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 carne to know them centuries ago. They do not take kindly
to leading a settled life and to becorniagproductive people.
Now the developrnent of the areas inSouth West Africa was under-
taken by the Government without imposing any taxation; the rnoney was
not collected from theBantu people, but was given freely by the Govem-
ment for that purpose, and so, during the past 40 years, considerable WITNESSES AND EXPERTS III
progress ha.s been made in that area although this progress has not come
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 Government to develop their areas-they clung to the customs of
ttieir forefathers in that respect-so that, while there has been progress,
it has been exasperatingly slow in South West 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.
hlr. MULLER:What is the most recent development with regard to the
Bantu areas, the Native areas, in South West Africa?
Mr. EISELEN: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 ofmaking the Bantu areas in
South West Africa more viable, more productive, and of making the
people participate to a greater extent in the efforts tmake 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 volurninous report, but,
briefly, it recornmends thatthe methods which have been applied success-
fully inSouth Africa should be applied to South West Africa in 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 developiag 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 asin 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
there, 1 want to put to you certain criticisms that have been levelled
against the policy and 1 want you to answer very shortly whether such
criticisms are justified.
In the first place, it has beenaid that the policy of separate develop-
ment is based on the concept that certain groups are inherently superior
and others inherently inferior.
Mr. EISELEN:Mr. President, 1 have endeavoured to explain that dif-
ferences which exist as between the various population groups have not
been imported into South Africa by Government action, but they have
existed from time immemorial; that it is part and parce1 of the South
African Baritu 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 Ive
did so, if we did regard the people themselvesas irremediably inferior and
the culture which they have produced as to be inferior forever and ever,
then we woiild not take al1the trouble of trying tu allow them to develop
on the foundation of their own mores, their own traditions, their own
social structure, their own culture.II2 SOUTH WEST AFRICA
Mr. MULLER: Dr. Eiselen, is there any substai~ce in allegatioiis that
the object of separate development is to discriminate against the Bantu
people?
Mr. EISELEN:Mr. President, 1can see no substance in that allegation,
because what the policy tries to bring about is that the J3antu people
and the other indigenous population groups of South Wcst Africa shouid
have the sarne deal as the white people wish to havc for theinselves,
that of being able to build on their own traditions, on their own wayof
life, on their own culture and to become an independent people not sub-
servient in any way, and to become wholly respected neighbours O[ the
white people in South Africa and in South West Africa.
Mr. MULLER : 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 deal to the Bantu people and to
the other indigenous population groups, and it is not sornething that
could be discarded; therefore the effortsof 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 wasin the past and 1shall perhaps have occasion
to explain when we deal with education.
Mr. MULLER: 1want 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 ethnic group.
hlr.EISELEN: Mr. President, 1 find it rather difficult to answer this
question in a reasonable way, because 1 do not fully underçtand what is
meant by this term; to me, non-separation seems to be a vague term.
\mat strikes one as a layman, imrnediately, is that it should be in a
negative garb. Now, to me it has these possible rneanings : that you must
nat 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 Uushmen and
al1the others have never formed a natural whole, thiscannot surely refer
to taking to pieces a natural whole. Therefore it is perhaps the next
possible meaning of this concept, namely to allow to corne together
again those who have been separated by historical events, who did form
a unit at one time or otker. In this respect 1can 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 see that, ifthese people so desired, they could
once again fom a whole. Similar questions have arjsen inregard to, Say,
the Somali people, who 1 understand are living in various portionsof
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 come.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 Ir3
about minorities even in Europe. Looking at the alleged norm 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 peopIe of greater wisdom
should form a unit to rernain 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 wlio carved up Africa in the time of colonial expansion;
that the Herero, the Ovambo and others had been included inthe same
area and wt:re 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 to be entirely
against the feeIings not only of the Government, but something that
would definiteiy not be welcomed by the people.
Mr. MULLER \mat would be the effect of enforcing such an object of
measure in South West Africa?
Mr. EISELEN:It is very difficult tu visuaIize what would happen.
Jf one speaks in terms of the majority, the people who are unfortunate
enough tobe the smaller groups would in forming a new unit-an artificial
new unit-be obliged to accept the precept and esample of the niost
numerous group. For instance, if everybody were given political rights-
the vote-in the same way in South West Africa, then the Ovambo
people wouid, by being the vast majority in that area, obviously be the
people called upon tu form the Government, and 1 take it that their
language would become the officia1language unless they would choose
to make English or Afrikaans the officia1language, which does not seem
to be very likely. To the other tribes, the Werero for instance, whose
narne is perhaps better known than that of any other people of South
Africa but who are numerically only about 12 per cent. as strong as the
Ovambo, tliis would mean a terrible thing that they, being a proud
people, shoiild now be forced to live according tothe ideas of the Ovambo
people.
There is this other possibility, of course, that you wouId Say, well,
give them al1 equality by taking away the rights which the Euro-
yeans have-which the white people have-the political rights and the
right of government which they have, and make them al1equal 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 West Africa do
not form a legislative council for the whole ares of South West Africa,
they goverii only that portion which is inhabited by the Whites. and
they have jurisdiction and power over the white population only; al1
the Bantu areas are governed directIy from Pretoria by the Department
of Rantu 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 IT4 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 o~vnpart of the country, so that tlieycan there
practice and learn the art of government and administration.
hlr. 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. EISELENh :lr. President, in the case of the economic sphere, it is
very difficult to thinkthat anything could result fromthiesxcept chaos.
1have tried to put before the Court information in regard to the state of
civilization-the state of advancement-of the various population groups
in Sauth West Africa, and to explain that they have notso farresponded
very well, and that applies particularly to the field of economicswhere,
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 andindustry in their own areas, but havc rclied in ail these
rnatters 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 Governrnent has now
embarked and which, in the way which has been recommended by the
Odendaal Commission,it desiresto guide the further progressofthe people
and to give the material help which they willrequire; but to give to them
immediate power as a government chosen by the people of South West
ment the power of dealingtwith substantial achievements in the economic
sphere, in the mining sphere, in the fishing iriclustry, 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 put to the test and has been put
to the test as an evolutionary measure. We used to cal1it integration,
and itwas 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 preparcd to come over the line, who had
discarded their own traditions, their own culture, their affinities with
theirown people, and had become what is called in the Portuguese ter-
minology "assimiIados", ~ho had been allowed by the Portuguese to
come over and to be integrated intothe society of the whiie 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 measuse is desired but integration, integration not evolu-
fjonary but revolutionaiy.
blr. MULLER T:hank you Dr.Eiselen. 1want to goover to the particular
subject of education. Will you tell the Court whether therhas ever been
in South Africa or South West Africa an integrated school system, that
is, a school system in which the Europeans, the Uantu and the other
population groups attendthe same schools.
Mr. ETSELE NI:. 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 al1the various groups participated, liaving
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 1I5
In this way, the European part of the population was naturally educated
Britain, the countries from which they had come, because this was the
system to which they had been accustomed, in which they believed, in
whicli they could be educated in a reasonable way. working from the
background which they had because of their being members of the
European ctimmunity.
Now with Ourindigenous population groups the position was entirely
different. Eclucationwas, of course, ithe initialstage, sornething entirely
unknown to thern. 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 schoolwas something new
to them and it was brought to them by the mission people who had corne
to convert, toconvert the various African populatjon groups to Christian-
ity, and they had to use for that purpose an instrument, a rneans, which
the people would understand. They had to use their home language,
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
al1 the areas much earlier in the fieId as Protestants than as Catholics,
they considered it very important that their disciples should be able to
read the holy scriptures thernselves, and in their own language, because
they would iiot be able to worshipin the real truc sense of the word ifthey
had to do so through the medium of a foreign language. Because of this
desire of thi: mission churches to bring Christianity and the knowledge
of the scriptures to them in thisway they had to establish schools. And
therefore wt: find everywhere that the missions were the first people to
establish scl~ools,which of course is nothing really foreign even ta Our
way of thinlting because the Church, after all, for a very very long time
was even in European countries the source and fountainhead of al1edu-
cation; so mremerely 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 codd
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 Bibic and religious books into the languages
concerned.
Mr. MULLERD : id the State later share in the responsibilities of the
education of the Rantu people?
Mr. EISEI.EN:ASthe number of children in the schoolsincreased the
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, aiid 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 never paid the whole account. But that was gradu-
alIy changed in South Africa and also in South West Africa, so that in116 SOUTH WEST AFRICA
due course the Government footed the whole bill, paid for everything, ,
but the control of the çchools was nevertheless left with the mission
churches.
Rlr.MULLER :id the system as now described work properly, in the
sense that the control was with the mission stations and the Govem-
ment supplying the necessary funds by way of subsidy?
Mr. EISELEN :lr. President, it naturally deveIoped 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. 1have explained in my
evidence previously, the Chief depends forhis authority very much on
the idea thathe is representative of the forefathlx gods within his partic-
ular populationgrolip,and that does not go very rvellwithChristianity,
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 gradualIy 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
schooIs much better than government officials, and that is why this
system from that angle, the easy administration, was welcomed by the
provincial authorities andby the administration in South West Africa
as well.
Mr. MULLER : ere the mission schools eventually taken oveby the
State in South Africa?
Mr. EISELENI:t came about in this way, Mr. President: that when
the new, dynarnic approach of our Bantu policy, our Native policy, in
South Africa took shape it was felt that your Bantu people could not
function properly, could not take part properly, could not develop a
dynarnic approach unless they were given the opportunityto take part
in the processes of administrationof schools,of controlling education,
of controlling the teaching personnel, and therefore the Government
thought itwise to appoint the Education Cominission which has already
been mentioned to go into this matter and to Say how the defects in the
system could be remedied.
hlr.MULLER :efore you proceed, Dr. Eiselen, is the Commission to
wkch you refer now, called the Eiselen Commission?
Mr. EISELEN:That is that Commission.
Mr. MULLER: Of which you were the Chairman?
Mr. EISELEN That is correctMr. President.
Mr. MULLER: Would you proceed.
Rlr. EISELEN: 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 not a community school, that there was locally no
interestby the parent population as a whole, but that the schools were
controlledby an outside body.
It waç furthermore found that the control by various provinces of \VITNESSES AND EXPERTS
II7
Native education was notin the interests of that education forthe simple
reason that the monies required were not provided by the provincial
authoritiesIlut by the central Government.
Nowwhat happened was this, Mr.President, the provincial administra-
tions did not take any liveinterest because no money of theirs was in
danger of being misappropriated or spent in an extravagantmanner, 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 al], handed ovcr this matter together with the
necessary funds and they now expected the provinces to get on with the
job, and so Native education fellbetween two stools with nobody giving
the proper attention.
That is in the fieofcontrol. The local control by the mission manager
retarded the participation of the Bantu community as awhole and the
central control by the various regional administrations retarded the
development. the building up of the whole system by Government
agencies. because no Government department took that live interest
which was necessary.
hlr.MULLER : hat recommendations did the Commission make with
regard to control, both central control and local conofBantu educa-
tion7
Mr. EISEI.EN:The Commission made these recomrnendations. That
the central control should be handed over by the provincial administra-
tions to the Union Government at that time and to the department
because the Commissionregarded education to be just one of the aspects
of development, of the broad development in a11the spheresof life, of a
backward community.
Mr. MULLER W:ith regard to local control, what recomrnendations
were made?
Mr. EISELENA : nd in regard to the local control the recornmendation
was that Bantu bodies able to deal with these matters be seup. Now
your tribal ~ule,in the old sense of the word, did not make provision for
that kind of thing because the people themselves were not educated.
As I have ventured to explain, they stood aloof fom the whole project
ofeducation by the missions and so, in dealing with this matter, the Com-
mission proposed that special boards be set up-school committees,
school boards-which would be elected by the parents in the case of
school comnuttees, by the schoolcommittees in the case ofschool boards,
but that they would function in close CO-operationwith the bodies which
the Governinent now brought into being by its Bantu Authority Act.
1 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 rule and not a retarded, natstagnant, tribal
way of ruling; so it was not fostering tribalisrn, but gradually harnessing
them to rogressive CO-operationby making them take part in the control
of schoos,'elping them orby appointing anumber of educated members
on the schools committees and school boards. The Government took the
very essential step to make the schooI not one for the Bantu people,
of course, applies not merely to the Republic of South Africa but also
to South West Africa.118 SOUTH WEST AFRICA
Mr. MULLER: Do the parent communities uniier the system of Bantu
community schools play a meaningful part in the education of their
children?
Mr. EIÇELEN: 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 çee 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 arenot brought to that school just because
they belong ta any particular denomination, but because being of the
same language group or the same culture gronp, they understand 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 theBantu people ;md the other indigenous
groups respectively.
Mr. MULLER D:id the Commission make recommendations relative to
the use of mother-tongue in the Bantu schools?
Mr. EISELEN: The Commission was very much concerned about the
use of mother-tongue in the schools because that had been neglected.
1have explained that the missionaries themselves were anxious to in-
troduce a vernacular for the sake of their religious teaching and that,
therefore, in the initial school years the vernacular also playean im-
portant part but that was dropped very soon becauçe, beyond regarding
it asa vehicle for religious instruction, the mission bodies, by and large,
favoured the introduction of their officia1languages as early as possible,
that is to Say of their own Ianguages-t.hajç asystem whjch they found
easier to apply.
There were differences, of course, what one would cal1 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 oficial 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 tothe European language, and in particularEnglish,was favoured
and this had a rather detrimental effect on the schools in this .way that
w-efound the holding power of the schools to be very weak; !he pupils
just completed two or three years in the school and then they left the
school. They lost intereçt because very often they did not know 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 whicli they had
acquired during this very elementary tuition that they had received.
Mr. MULLER : hat are the advantages, very briefly put, of mother-
tongue education?
Mr. EISELEN:Mother-tongue education, Mr. Preçident, is, of course,
basic.
YOUwill nowadays not consider teaching people inany other but their
own home Ianguage if you really want them to linderstand and to follow
what the teacher wishes to convey to them. Otherwise, we very often
find that what they do achieve ismerely a certain parrot-way facility
of repeating the terms that they have heard in school without knowing WITNESSES AND EXPERTS xIg
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 ofthe people, with the respect in which they should
hold their tilders, and, in any case, it is the only way to get them in-
terested. Tkat is not an opinion which only a few of us hold, that isnot
an opinion which is only held in South Africa, it is an opinion which is
held very strongly by Unesco rvhich haç trained teams al1over the world
to bring education to the people who have been left out, and have re-
mained, ediicationally speaking, in the dark up to the present moment.
l'ou will know, Mr. President, that it is not only the experience of
South Africa but of al1 the countries in Africa that the school has 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 Afnca, you will find
that the enrolment figures in South Africa are very much higher than
elsewhere. 'That is not onIy because education has been going on for
perhaps a longer period but, particularly, because the home language
is being strtissed and because thepupils now have learned to stay longer
in the schools. They know what is going on, they understand and they
acquire a knowledge which enables them to make judgments of their
own, to act in a reasonable way which develops their powers of intellect
because tht:y need not learn two things at the same time, the con-
tents and a foreign language. That is where they saoften failedbecause
they onIy learned certain words which conveyed no particular rneaning
instead of following the lesson itself.
Mr. MULLER:Are there any difficulties with regard to the use of the
mother-tonpe in Bantu schools arising from difficulties in terminology,
bibliography ?
Mr. EISELEN:There are no great difficulties, Mr. President, in the
primary scfiools. 1 think I have already spoken about the Bantu lan-
guages being very versatile languages. 1 would not Say that in regard to,
Say, the Bushmen 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 if acertain 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 such expert bodies have been
appointed, various language boards which draxv up te~inology to be
used in the schools, and they have made fair progress in that respect.
1 do not think that the teachers, on the whole, have much dificulty in
teaching the whole primary course through the medjum of the home
language.
hlr. MULLER: Does the Ban.tu education system provide a separate
sylIabus for the Bantu schools?
Mr. EISELEN: The Bantu Education Commission did not really provide
a separate syllabus. 1 have referred to some of the weaknesses in the
system xvhichWerechanged on the recommendations of this Commission
and you have perhaps noticed that I did not refer to the syllabus in
particular because after al1 the people who had, under their provincial
regime, drawn up those syllabuses for the Native schools knew fairIy
well what they were doing. They were mostly experts in the field. AS a
rule their syllabi presented joint efforts of the Government officesand of
representatives of the various mission societies who acted as advisory
boards to the provincial administration, And so they had drawn up120 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 Gavernment. 1would say that the syllabuçeswere changed
in this way, that more stress was laid on the home laiiguage as a medium
of instruction. Curiously enough, religious training in christian civiha-
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 itwas 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 waç no real change; 1hold that there was nevertheless irnprove-
ment as the central government, its education department; now had
the benefitof al1the 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. 1take 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 inan 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 1vou1dmake them inferior for al1 times,
and thatwas the thinking behind the term "Bantu education", as though
here was somethng completely new, different irom education eisewhere.
Now, Mr. President, I would like to put it this way, that after al1
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 becawe 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 app!ication to
the particular circurnstances they naturally require a colour of their
own. If you were to make the practice the same everywhere, then of
course you would violate the principles. Ive could easily illustrate that
by referring to the position in South West Airica. Ifyou were 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 if we were to gîve them Engiish 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 respectein thisway, that he is allowed to leam through
his own languagc, that isthe basic principle. He is given the opportunity
ofacquiring knowledge readily because it ispresented to him in his lan-
guage.This is true of South Africa also that yoiican only present subject-
rnatter 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. MULLERD :r. Eiselen, wilI you explain to the Court whether the
pattern of development of Bantu (Native) education in South West
Africa has been very much the same as in South Africa? WITNESSES AND EXPERTS 121
Mr. EISELEN: The pattern, Mr. President, in South West Africa is
very much the same, only there isthis important difference, not in re-
gard to principles but concerning the stage of development, because we
started much later in South West Africa; after aII, it was only in 1920
that serious thought was given to these matters by the Government of
South Afric~i.We encountered exactly the same problems in South West
Africa. Lie had the same mission schools there, and the training of the
white children was being conducted by the local South West adrninistra-
tion, ~vhichhad no polver over the Bantu areas, of course.
Now, as 1 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 1svery high,
because the population groups are relatively srnall. 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 Cornmittee in South West Africa which has gone into these
matters, and which has recommended that the same basic approach be
adopted asin the Republic, and that the production of books, literature,
be accelerated so as to make it possible for the children of al1the groups
to enjoy thit which every wkite pupil takes to be his birthright, and
which many Bantu people in the Republic have also now come to regard
astheirbirthright, namely to receive their education through the medium
of their horrie language.
Mr. MULLER: Dr. Eiselen, will you express your opinion on the ap-
plication in the educational sphere in South West Africa of a de, or a
norm, or a standard which would prohibit differentiation between the
population groups?
Mr. EISELEN:hlr. 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 difficulties. We would do things that were entirely
unfair by trying to do sornething good for the population as a whole,
because we would then again have to adopt a procedure of taking one
of the languiiges as medium and as a main dish of instruction and school-
ing, and it would be difficult to decide whose language \vas to be taken,
whose background was to be taken as a çtarting point for educational
development .
Mr. M-ULLER Jf'ould itbe realistic at altoapply such a rule, norm or
standard?
Mr. EISELEN: I think it would not be realistic because, as1 pointed
out in the political sphere,fyou 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 reaçon could be expected to regard such an in-
novation with less suspicion and less aversion than the others would
nevertheless not acceptAthischange. But if you were to pass on fr0.mthat
to the Nama, speaking partIy Hottentots' language, partly Afrikaans,
and if you were to suggest to them that in future they shodd not remain
separate, thi:re should be no differentiation, that they should now adopt
the language of the rnajority-then these people would riseup in revoit,122 SOUTH WEST AFKICA
and 1 think everybody has great sympathy with that attitude, because
after al1that is what was promised to them by South Africa when South
Africa was appointed hlandatory of South West Africa; that was one of
the promises that they gave them, that they said: "We have been in-
çtructed by the League of Nations to see to it that al1 the minorities
get their rights, that none of them are suppressed," And if we were to
go back on that, and to Say: "No, we now tliirik that because you live
in a country which was put together in this way-because it happened
to be put together in thiç way, not by a people who had given the matter
serious thought but who were merely acting in their own çelfishinterests
-therefore we are now going to force you to give up your minority rights
and to bow to the majority", they would definitely think that \vehad
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 al1 the Bantu languages and to lise one of tlie European
languages-by preference, of course, the one wlvhichis 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
contribution which they have been able to make so far to the civilizatron
and to the culture of the world as entirely ncgligibIe, as something that
could be removed with nobody being harmed? That may be the view
of many people, but 1 take it itisnot the view of the people concerned.
It has 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 muçt give up these things; you must accept our way of life, Our
civilization, which is a superior civilization." Now. Mr. President, 1
wodd like to Say in this regard that reallp this norrn of non-separation,
the norm of non-discrimination, has a very small percentage that support
lt.
hlr. GROS :&Ir.President.
The PRESIDEXT M:r, Grosç?
Mr. G~oss: hiay I be permitted to be heard? Mr. President, it 1411be
apparent that in this Court rules of procedure and of evidence are not
as easy to come by as in municipal courts; the line that is sought to be
drawn between cross-examination, objection and comment will therefore
resent serious difficulties which may be prejudicial to the Applicants.
bith respect. it seems to the Applicants that it is above al1 iiecensary
in this Court that counscl in leading witnesses do not confront opposing
counsel lvith the necessity of constant interposition, if permitted 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 itis laid. In view of the difficulty
of comprehending the nature of the norm and or standards. as described,
the Applicants have respectfully rccorded a general objection to the
relevance of this evidence, but are now irnpelled to add to their objection
the fact that (without clarifying whether testimony on a particular
point içbeing givenby the mitnesç asanexpert. as a non-expert regarding
facts or asa 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- WITNESSES 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 coniplaints made by the Applicants, and with regard to the at-
titude (orprofessed or purported attitude) of unidentified individuals,
organizations or groups.
The PRESIDENT: Mr. GTOSSt,he procedure before this Court is not
greatly difierent 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 to it.If, on any particular inatter, the witnesç who is
giving an expert opinion has not quaIified as an expert, again objection
can be taken toit, and it seemçto the Court that there iino prejudice to
either side in the way in which the evidence jç taken before this Court.
lt is not possible, it seems to mefor awitness who has been sworn as an
expert and also asa witness of fact to, as he goes along, indicatenow 1
am speaking as to fact, now 1 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, partii:ularIy 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
officiai. Thiit 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 çee no reason at al1 for the Court to intervene, in the giving of Dr.
Eiselen's evidence. The general nature of your objection ilatoto to his
evidence oi'being inadmissible or irrelevant is one matter and has been
noted, but the question as to wliether the particular point at which you
interject-you take the exception, as you are very properIy entitled to
take the exception-that that portion of his evidence was in any way
different from any preceding portion of hiç evidence is a matter ~vhich
at the present moment the Court does not see, but it wili havea look at it
over the evening.
Mr. GROSSl:t is understood, 31r. Preçident, then, that the Applicants
respectfulIy reçerve rights to object on the generaI line being pursued on
the basis of improperly laid foundation for the evidence now being
adduced 7
The PRESIDENT M:ost certainly, &Ir.Gross-those matters are under-
stood, and as 1 indicated earlier, it is forthe 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. G~oss: Thank you, Sir.
The PRESIDENT:The Court \vil1now adjourn until three o'clock to-
morrow afternoon.
Mr. MULLER: I am çorry, Mr. President-may 1 indicate that 1 have
no further questions to ask the witness, and tl-iatthe next witness to be
cailed tomorrow would be Professor van den Haag.
The PRESIDENTM : r. Muller,I tkink that it is important to indicate
to the AppIicants as early as you can the point or points to which the
evidence wili be directed; 1 think that the Court will have something124 SOUTH WEST AFRICA
more to say upon the question of this subject-matter tomorrow, but
since you are calling another witness tomorrow, 1 think you should
overnight indicate to the Applicants the point or points to which his
evidence will be directed,
hlr.MULLER :S the Court pleases, that will be done, Mr.President.
[Public hearing of 22 Jzllar965,i
The PRBSIDENT:The hearing is resumed. Would Mr. Eiselen take his
place at the podium, please.
Mr. ~-ilull1runderstand that you have completed your examination
in chief?
Mr. MULLER T:hat is so, Mr. President.
The PRESIDENT 1call upon the Agent for tlie Applicants to ask him
whether he desires ta exercise his rightto cross-examination,
Mr. GROSS N:O questions,MT. President.
The PRESIDENT C ertain Members of the Court desire to ask questions,
and 1call upon Judge Jessup first.
Judge JESSUP: Mr. Eiselen, please correct me i1 make any misstate-
ment in trying to repeat extracts from your testimony.
On 18 June you spoke of your functions (this is atp.89,supra, of the
transcript) as Comrnissioner-General, and spoke of receiving such sub-
missions as the peoplein your territorial arem-ishedto pass on to you.
Could you give the Court two or three examples of such submissions-
w-hat kinds ofmatter they dealt with, and the nature of them?
Mr. EISELEN: Mr. President, they meet as a territorial authority at
the present time, and they have an agenda, of course; ofThand 1 could
remember that one submission was that they desired the Government to
hand over to the territorial authoritya nurnber of fams 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
sarne weight; that [work, if it were carried on under the auspices of
the territorialcouncil and by Bantu officers, would carry with these
people.
Another submission that 1remember, Mr. President, is in connection
with the language. As 1said 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 ofdifficulty 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 fitto use shortened terms for the
figuresuçed inarithnietic and mathernatics, and there were objections;
they required the Government to set up, or to get permission themselves
to set up a comrnittee to go into this matter, and1 may say that both
these requests were subrnitted and granted.
Judge JESSUP: May 1 ask you, Mr. Eiselen, to whom you convey
these submissions-to what official or department?
Mr. EISELEN: 1convey these submissions, Mr. President, to the Min-
ister of Batitu Affairs.
Judge JESSUP: Mr. Eiselen, wouId there be the same kind of procedure
and machinery in South West Africa for conveying submissions to
governments? WITNESSES AND EXPERTS 12j
Mr. EISELEN:Mr. President, 1 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 function is rnerely to transmit those submissions to the Minister of
Native Affairs. 1wiII Say this,Mr. President, that1 do have discussions
with the executive of the territorial authority beforehand, and 1 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 do1
add any comment, but merely transmit.
Judge JESSUP: YOUspoke, Mr. Eiselen, of serving on an educational
commission for Basutoland, 1 believe, and also as chairman of a com-
mittee which bore your name, to consider educational problems in
South West Africa.
Mr. EISEI~ENM: r. President, may1 just correct this-nota commission
for education in South West Africa, but the Republic of South Africa.
Judge JESSUP: 1 am sorry, but I would still like to ask whether pour
analysis of the educational problems and your recommendations for
the solutions of those problems were by and large identical for the two
cases.
&Ir. EISELEN: Mr. President, they were by and large the same, but
this was sonle years later, a1dhad in the meantirne 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
Hantu authorities set up by the governments responsible for thoçe areas;
and in that way 1would Say, Mr. President, that we went further in our
report, recommending greater powers for the local Bantu authorities.
Judge JESÇUP: Another question if 1 may, Mr. Eiselen.1 understood
from your comments on 18 June (1 am referring to pp. 9j and 96,
supra, of the record of 18 June), 1 understood you to express the view
that the peoples of the areas in which the native Africans were living-
1quote here : "They would not like to havethetraditions and the customs
of others imposed upon them." 1got the impression here and elsewhere
that you felt that they desired to remain in their own traditions and
customs antl did not wish to share in the traditions, customs, or practices
-what you referred to once, 1 think, as the "white civilization". May
1 ask you whether you personaIIy know, or know of, any Native Africans
who personally desired to leave their customary habits, traditiontribaI
life, if you will, and would prefer to join in the "white civilization1, if
rnay use that expression?
Mr. EISELEN: Mr. President, what 1 wished to convey-1 may not
have put it into the proper words-was this, that they certainly had no
wish to have impoçed on them anything of the culture, or the traditions,
of other Bantu population groups. I think that al1 the Bantu people do
desire to adapt themselves in very many ways to the civilization of the
white peopli:. Now, one might, when speaking of civilization, differentiate
between what we cal1culture, 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 al1 the
civilized people togetherIt is the latter which they al1desire, but they126 SOUTH WEST AFRICA
would not like to shed that which they consider to have been their own
particular contribution to thegrowth of culture so far; but 1 would, in
reply to the second part of the question, Mr. Preçident, say this, that
there are obviously quite a number ofAfrican people whom Iknowwho
would like to shed entireiy everything that is African and to becorne
completely European.
Judge JESSUP: And this would not be possible at the present time?
Mr. EISELEN: It would be possible, as far as they thernselves are
concerned they could in everything becorne just aç European, with this
difierence, 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 thiç, thatthe good services which
could be expected of them would be lost to their own people.
Judge JESSUP:Thank you, Mr. President.
The PRESIDENT:Judge Koretsky.
Judge KORETSKY 1: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 mp question is such-what is done and has been
done for the development of political institutions in South West Africa
in which the people of South West Africa irrespective of their race have
taken and take part on an equal basis in these institutionsin order to be
prepared for self-government or for self-determination? Thank you,
Mr. President.
JIr. EISELEN: hlr. President, the attitude of rny Government has
throughout been that the mast prornising way of taking a share in the
running of a country as a whole, is to prepare youself for that task by
firstofal1running your own particular population group. That is to Say,
that if you belong to the Herero, for instance, that yoshould first oal1
within the Herero comrnunity, 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 practisc today is democratic in a
certain way, but not the democracy which is practised by the Western
Powers. As to the democracy practiçed elsewhere, Mr. President, 1 am
afraid that 1 have not sufficient knowledge iiithat regard to Say how
they would bc able to adapt themselves to that ideology. Then, passing
on from that, Mr. President, it is the policof my Government that the
people, once they are ableto express themselves and to state their vjews
and wishes clearly, should have the right to say of their own free wiH
whether they desire to join in a Iarger whole, and ta govern that, no
longer as separate bodies but asa united people of South West Africa,
but the question would be that liberty would be given to thern at a stage
when they could be expected to make their choice fully knowing what
the implications of such achoice wcre, and not mereby being compelled,
being called upon on a certain day to make a cross somewhere or another
sign behind some picture, or sorne sign to indicate what their desires
were, but fully understanding what the question was that was really
put to thern.
The PRESIDENT Judge Sir Louis Mbanefo.
Judge SirLouis MBANËFO M:y question links up from the answer you
have just given, and 1would likefirst to refer you to your statemenon
zr June; at page 1x1, supra, of the record, you stated: WITNESSES AND EXPERTS IZ7
"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 ultimateindependence."
1 take it, that you are talking of political independence.
Mr. EISEI-EN:That is correct, Mr. President.
Judge Sir Louis MBANEFO And then, you continue:
"It was realized that the progress couId not be as rapid as in
South Africa, but that in certain parts, in particular the area of the
Ovarnbo, 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 about is that the Bantu people and
the other indigenous population groups of South West Africashould
have the same deal as the white peoplewish to have for themselves,
that of being able toild on their own traditions, on their own wap of
life, on their own culture and to become an independent people not
subservient in anyway, and to become wholly respected neighbours
of the white people in South Africa and in South West Africa".
(Supra, p.112.)
That is your evidence, your statement. Do pou mean by that,that they
become neighbours, when ultimateIy they obtain independence they
become independent states, living sideby sidewith white South Africans,
white settlers, in South West Africa?
Mr. EISEI-EN: MF. 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 ourswith
its many communities, we should attempt as a microcosm of the bigger
British Commonwealth to buiId 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 ofthe Commonwealth?
Mr. EISEI-EN:Yes.
Judge Sir Louis MBANEFOH : OWmany states do you allege to have in
South West Africa?
Mr. EISELEN: 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 aIso the most primitive, namely the Bushmen, so
that it would be difficult to think in tems of such groups being viable
communitieï if they once become independent.
Judge Sir Louis MBANEFO 1:am çorry to interrupt. You see, the
question of viability does not corne into it pet-yoaretalking of states,
states which have independence within their own unit so that as a political
unit they are states.Whether 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-isthat what you have in mind,
or are you thinking of a glorified local government?
Mr. EISELEN: hIr.President, the policy in regard to the further devel-
opment of South West Africa with a number of these small units has not128 SOUTH WEST AFRICA
becn so fully worked outyet by the Government tliat 1am in a position
to give a definite answer to this question. My own personal view is, of
course, asI was saying, that you would hardly be able to think of Bosh-
men or the Dama or even of such people as the Herero as being inde-
pendent states. Therefore, one does think-and now 1 am speaking of
my own persona1 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,ecide to
forrn a larger whole. 1am afraid that is al1tha1 could at this stage Say,
Mr. President.
Judge Sir Louis MBAXEFO YOUsee, yesterday you were very cate-
gorical in your statements. What 1 understand you to Say now is that
you really do not know where it is going to Iead you to.
Nr. EISELEN:hIr. President, 1 may have been categorical, 1 am, of
course, not free here to speak so long on every point. If 1 had had the
time and opportunity 1would then probably have given this same further
explanatioii of what 1rneant by what 1said in regard to the independent
development of the vanous population groups in South West Africa.
Judge Sir Louis MBANEFO:The last question 1 would like to ask,
Mr. President, isthis: now, 1 do not know if you are familiar with
Article 22 of the Covenant of the League of Nations. Paragraph I of
Article 22 rends:
"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 streniious conditions of the
modern world, there should be applied the principle that the weU-
being and development ofsuch peopIes form a sacred trust of civilizar
tion and that securities for the performance of this trust should be
embodied in this Cavenant."
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. EISELEN:1 believe, Mr. President, that they had in mind al1
the different population groups-the Rushmen, the Ovambo, the Herero,
the Dama, the Nama, the Rehoboth Basters, and the whites also.
Judge Sir Louis MBANEFOA : nd lvhen 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 al1groups willparticipate fully in the government?
hlr. EISELEN: >Ir. President, with respect, may I ask whether this
question could be repeated, because I am not quite certain whether 1
understood it correctly-to mean what 1 think the League had in mind,
or what the Government of the Republic has in mind?
The PRESIIIENT:Well, 1 hope you will not try and tell us what the
Leape had in rniiid, because no-one will know that.
Judge Sir Louis MBANEFO1 : will put it shcirtly. Does the policy of
separate development as understood and expounded by you envisage
that a territory would ever attain full sovereign status, independent of
the Union-a status in the government of which al1 the peoples of WITNESSES ASD EXPERTS 129
the territory,irrespective of race or colour, would freely participate?
ah-. EISELEN: &Ir.President, in answering this question1 must again
Say that 1 cari oiily expresa personalopinion, 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, tliat 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 tliat it would
be, to my mirid, a very excellent thing if the whole population of that
country, iricluding the whites, were to form together a definite unit
which might either become completely independent, or otherwise seek
to become a part of the Republic.
Judge Sir Louis MBANEFO Do 1 understand by that answer that it is
the ultirnate goal that they should have that status?
The PRESIDENT T:he ultimate goal of-?
Judge Sir Louis NBANEFO :he Republic of South Africa.
&Ir.EISELEN 1would not go further, $Ir.President, than to Say that
the ultimate goal of the Government is that this question should be
shelved, and it should be considered atthe time when each ofthe com-
ponent parts of this artificial unit of South West Africa is suficiently
advanced to express an opinion with reasonable clarity,and of its own
free will.
Judge Sir Louis MHANEFO Lastly, 1suppose 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. EISELEU M:r. President,1 cannot venture a guess in that respect;
1can only ïajr 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
Government of the Republic is concerned, it wishes to bring that day
closer-as closeas possible;it willargely be in the hands of the various
population groups and their response to this ta determine when that day
wiIl arrive.
The PRESIDENT : oes any other Member of the Court desire to put a
question to Dr. Eiselen? If not, 1 have one question, Dr. Eiselen: as
between the various groups thnt you have spoken about, what are the
media of intercommunication, and what steps have been taken to develop
those media?
hir. EISELEN:The media of intercommunication in South West Africa,
hIr. President, areat the moment English and Afrikaans. Afrikaans, 1
think I am correct in saying, has been given preference in the past
because the majority of the white people in that area are Afrikaans-
speaking, but it is prescribed thaboih languages should be used in the
schools. Non.,going beyond the çchools-rvhen the Government officers
visit those areas the)? 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 isa more universal language, a very much
more universal language; therc isthis to be said for Afrikaans-that
it is the home language not merely of rnost of the white peoplebut also
of two of the non-whitegroups, of the colouredpeople and ofthe Rehoboth
Basters.=30 SOUTH WEST AFRICA
The PRESIDENT: 1call upon Mr. Muller to call his next witness.
Mr. MULLER:NO further questions. May 1 ask, with respect, &Ir.
President, that Dr. Eiselen be excused from further attendance?
The PRESIDENT I:will let you know after the recess, Mr. MullerI do
not desire to askDr. Eiselen anything in reply.
Mr, MULLER: As the Court pleases, With the Court's permission,
Mr. de Villiers will introduce the next witness.
The PRESIDENT:1 call upon Mr. de Villiers.
Mr. DE VILLIERS:Mr. President, 1should like now to cal1Dr. Ernest
van den Haag. As we notified the Applicants yesterday, in response to
the directive issued by you, Sir-1 quote from Our letter :
"We wish to confirm that Dr. Ernest van den Haag will testify
tomorrorv, 22 June 1965.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 circurnstances. On the basis of
çuch researches and general principles recognized in his fields of
study, he will testify to the effect thatnorm and/or standards of
non-discrimination or non-separation ascontended for by Appplicant
are not applied in some parts of the world and coiild, if attempted
to be so applied, lead to unfavourable resultforthe well-being and
progress of the peopIes concerned."
SO far the letter, Mr. Preçident. I rnny çay 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 athough the
testirnony willextend beyond the limits of what is dealt with there, and
will not serve to repeat what is stateImay say also, &Ir.Preçident, that
as a matter of order of presentation we would have preferred to call
Dr. van den Haag after Professor Bmwer and Professor Logan had
testified more particularly as to the circumstances in South West Africa
pertainiiig to the various population groups, but unfortunately, as a
matter ofpractical arrangement, it was necessary for us to call Dr. van
den Haag nowbecause he isa teaching professor and he willnot be available
to US later.
Professor van den Haag will refer in the course ofhis 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. Preçident, 1 may mention that after con-
sideration it seemsunnecessary that Dr. van den Haag take the declara-
tion as awitness in accordance with Article 53 (z), and1 suggest that rt
will be sufficient for him to take the declaration as an expei-t under
Article 53 (3) of the Rules of Court.
The PRESIDENT:Mr. de Villiers, 1 think it is convenient, when YOU
propose to refer to material which has not previously been before 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 foiiowed in the future. WITNESSES AND EXPERTS I3I
Mr. DE VILLIERS: Certainly, Mr. President.
The ??RESIDENT: 1 recognize the Agent for the Applicants.
Mr. GROSS:Mr. President, in accordance with the instructions of the
Court 1 should like to enter an objection for grounds which I should
like to state. Whether or not to do so prior ta the making of the declara-
tion of the witness, or immediately thereafter1would request guidance
from the honourable President.
The PRESIDENT T:hat depends, Mr. Gross, what is the nature of the
objection-if it goes to the witness's evidence, you can hardly object
before he rnakes his affirmation.
Mr. GROSS: 1 should like to reserve the right to makea statement of
objection following the swearing of the witness.
The PRESIDEN T :rtainly. The witness will make the aarnation
Mr. VAN DEN HAAG :n my capacity as an expert,1 solernnly declare
upon my honour and conscience that my statement will be in accordance
with my sincere belief.
The PRESIDENT1 : cal1upon PuIr.Gross.
Rlr. GROSSh :lr. 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 Kespondent 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 Jun1965 from Respondent to
the Deputy-Registrar (which has been read into the record of the Oral
Proceedings of 21 June 1965'), specifically, the statement which 1
quote froni the letter as follows:
"The testimony of al1 the witnesses to be called will be directed
solely to the questions whether a norm andlor standards such as
conteiided for by Applicants exist and are applicable to South
West Africa."
Secondly, in the Applicants' respectful submission, such a foundation
for the profiered testimony is unintelligible, illusory and argumentative.
Thirdly, the testirnony offered, or adduced, on such a foundation 1s
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
ambiguoui and erroneous formulation by the Respondent imputed to
Applicants as their case.
Fourthly, in the Applicants' submission, such an improper foundation
isnot only inherently confiiçing to the ïvitnesses, to the Applicants, and,
with respect, to the Court itseIfby purporting thus todirect evidence
at a position falsely attributed to the Ap~licants, but Respondent thereby
evades anci conceals the baçis 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 illuçory, 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
l SeeXII, Part IV.132 SOUTH WEST AFRICA
rnisrepresentation of the Applicants' theory and position, but also from
the fact that thereiscomplete lack 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 norrn" is a çtate-
ment of legal theory and legal conclusion more properly the subject of
argument than of testimony, and, from what has been stated bv counsel
in introducing this witnesç, the witness has not been qualifiedasa legal
expert nor has he been presented as a rnember of the delegationtopresent
legal arguments in support of the existence or otherwise oa rule of inter-
national law.
Finally, the question of the appiicability, and again 1 quote "the ap-
plicability of the ruleof international law contended for by the Appii-
cants to the Mandate of South West Africa" is a conclusion of law, and
not a matter of evidence, as to which this witness has not been qualified
as a legal expert, or otherwise competent, to address hirnself.
For these reasons, the Applicants are constrained to object 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 mentioncd, prejudice
the rights of the Applicants in the circumstances. Unless the Court
directs otherwise, hlr. President, this general lineof objection will be
considered by the Applicants as relevant to al1questions propounded
to this witness, and a11ançwers made by him, reserving, however, with
the permission of the Court, the right to comment upon the testimony
given at an appropriatetime \vithout waiving the objections to relevance
thereof.
Thank you, Mr. President.
The PRESIDENT: Alr. 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 establishing, orvrefuting,
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 otl-tercountries?
Mr. GI~OSSR :lr.President, the Applicants' answer to the President's
question is that the AppIicants 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 1 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
mIe of international law, iç the question-and sole question-to which
these witnesses are said to be offered for evidence of an espert nature.
This is in addition toand cumulative of, the objection by the Applicants
based upon the fact that the questions are being led on the basis of a
falçe 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 comrnents made by counsel WITNESSES AND EXPERTS 133
during oral proceedings misstates, and misrepresents, the Applicants'
true position. It is the confusing aspects of the which are of par-
ticular concern ttheApplicants 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 theoryitis, with respect,
evading that responsibility by a line of evidence saidbeoresponçive
to a theory and position falsely attributto the Applicants, which is
misunderstood by the Applicants themselves.
The PRESIDEKT W:ell, Mr. Gross, the witnehas taken the affirma-
tion as an expert.1 think we firsshould hear the qualifications of the
expert and then, as the evidenceisproduced, itwill be open to you to
indicate to what extent you find the questions put unintelligent, un-
intelligible, argumentative, embarrassing to the Applicants, by the
nature of the question whichisput and in relation to the issues in this
case. Ithiiik thatisthe proper course to pursue. We first should hear
the qualifications andhen Mr. de Villiers can, before he goes on to ask
any questions in relation to the case, indicate again to the Court, in
reply to theobservations made by Nr. Gross,the relevance of the evi-
dence.
Mr. DE VILLIERS: Dr. van den Haag, you are an Arnerican citizen
resident inNew York, but you were born, and you grew up, on the con-
tinent of Europe. That is correct?
Mr. VAN DEN HAAG: Yes, sir.
Mr. DE VILLIERS W:ere you born ofDutch nationality?
Mr. VAN DEN HAAG: Yes, sir.
hlr.DE VILLIERS And did you spend the best part of the first six years
of your life in Germany?
Mr. VAN DEN HAAC :es, sir.
Mr. DE VILLIERS :id you thereafter move with your parents to
Italy?
Mr. VAN DEN HAAG: Yes, sir.
Mr. DE IT~~~~~~ Dsd you study in Italy?
Mr. VAN DEN HAAG: Yes, sir.
Mr. DE VILLIERS A:t scho01and at the university?
hlr.VAN DEN WAAG :es, sir.
MT. DE VILLIERS W:hich universities did you attend?
Mr. VAN DEN HAAG :he University of Naplesand the University of
Florence.
Mr. DE VILLIERS: And did you obtain a law degree?
Mr. VAN DEN HAAG :es, sir.
Mr. DE VILLIERS: Did you thereafter studyat the University of the
Sorbonne in Paris?
Mr. VAN DEN HAAG :es, for aboutayear.
Mr. DE VILLIER SAnd then you went to the United States, did you?
Mr. VAN DEN HAAC : Yes, sir.
Mr. nE VILLIERS: What further studiesdid you pursue there?
Mr. VAN DEN HAAG :1studied sociology at the University of Iowa and
at Nerv York University; received a degree of Master of Arts at the
University of Iowa and Doctorf Philosophy fromNew York University.
Mr. DE VILLIERS :fter thelaw degree you obtained in Italy, your
studies were confined to the social sciences were they?I34 SOUTH WEST AFRICA
Mr. VAN DEN HAAG :ociology, and later on also psycho-analysis.
Mr. DE VILLIERS: And your professional activities for the15ayears
have beenentirely in the field of sociology and psychology, together re-
ferred toassocial philosophy. 1s that correct?
Mr. VAN DEN HAAG: That is correct.
hfr.DE VILLIER S: Wyou arewhat is termed a "full professor" in the
United States?
Mr. VAN DEN HAAG :t New York University.
MT. DE VILLIERS : ould you explainto theCourt what ismeant by a
"full professor".
Mr. VAN DEN HAAG:There are, in American universities, instructors,
assistant,associate and fullprofessors. Full professor is the highest
academic rank to be obtained.
Mr. DE VILLIERS A:nd you are Professor of Social Philosophy New
York University?
Mr. VAN DEN HAAC:Yes, sir.
Mr. DE VILLIERSD :OYOU teach elsewhere too?
Mr. VAN DEN HAAG1 : am also Lecturer in Paychology and Sociology
at the new school for social research in New York,
Mr. DE VILLIERS: Have you taught elsewhere?
Mr. VAN DEN HAAG1 :have taught in a number of universities in the
United States; 1 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, myt
normal occupation isas a Professor at New York University.
Mr. DE VILLIERS A:lso outside the United States?
Mr. VAN DEK HAAG1 : have taught at the American Seminar in SaIz
burg, Austria, and lectured in Munich and other places.
Mr. DE VILLIERS: Have yoo delivered lectures asaguest iecturer?
Mr. VAN DEN HAAG:Yes, I have lectured at Harvard University,
Yale University, the University of Chicago, Columbia University, and
qujte a nnmber of others.
Mr. DE VILLIERS B:esides teaching, on what else are you engaged?
Mr. VAN DEX HAAC: 1 am engaged in the private practice of psycho-
analysis.
Mr. DE VILLIERS: Psycho-analysis; and do you write?
Mr. VAN DEN WASG :1think Ido, yes,1have written about 40articles
in the last ten years.
Mr.DE VILLIERS A:nd YOU are engaged upon research?
Mr.VAN DEK HAAG : es, sir.
Mr.nE VILLIERS C:ould you give the Court an indication of what you
have written?
Mr. VAN DEN HAAG:1 have written three books:Education as an
Industry; The Fabric ofSociety, which deals, as the title indicates, with
what causes a society to function well or badly; aPassion and Social
Constraint,which deals with the conflict between social order and in-
dividual passion, andtheeffects this may have on group formationand
1 have written a number of articlesin sociological and psychological
journals, both in the United Staand abroad.Ifyou wish 1can Iisafew.
Mr.DE VILLIERS:The work called The Fabric of Societis that used
as atestbook?
Mr. VAN DEN HAAG: Yes, sirIt was meant as a treatisbut isalso
used as a textbook rather widely. WITNESSES AND EXPERTS =35
Kr.DE V~LLIERS B:yuniversities?
Mr.VAN DEN HAAG :es, sirItis used at Harvard.
Mr.DE VILLIERS H:ave you written the articles called "Genuine and
Spurious Iritegration"in the anthologyPsycho-Analysis and theSocial
Sciences?
Mr. VAN DEN HAAG: Yes, sir?day1 mention that thiç refers to integra-
tion among the social sciences-notof peoplbut of concepts.
Mr. DE VILLIERS A:nddid you also write "Creativity, Health and Art"
in Psycho-Analysis and ContemporaryAmericalzCulture?
Rlr.VAN DEN HAAG: Yes, sir.
Nr. RE VILLIERS T:hat wasa publication i1964by Ruitenbeek?
&Ir.VAN DEN HAAG :es.
Mr. DE VILLIER :1believe ÿou have also published articles in a number
of journals, rna1mention some to you:TheBritishJournalofSociology,
The American Sociological Review, TlzeAmericalr Jortrnal of Psycho-
Analysis, Harfiers Magazine, Law and CondenftiornryProblems,L)ioga?zes,
Duedalus, EncouraterAnnals of the American Acadernyof Political and
SocialSciance,and Science?
Mr. VAN DEN WAAG :l1ofthese, yes.
hfr.RE VILLIER SHave you contributed to encyclopaedias?
Mr. VAN DEN HAAG:Yes, sir.1 have written the article called "Sociol-
ogy" for the Coules Encyclopaedia and 1 have contributed to other
encyclopaedias occasionally,
Mr. DE VILLIERS: On what research are you at present engaged?
Mr. VAN DEN HAAG : eil1 have several projects bumy major pro-
ject, which is sponsored New York University, deals tvith an attempt
to measure the effects of integrated and segregated schooonnNegro
pupils under conditions when al1variabarecontrolled, al1other circum-
stances are equal, except for the presence or absence of White CO-pupils.
Thiç çtudy is undertaken in New York and surraundings, that is in a
place where there is no traditional çegregation, but the only segregation
which existsis defactrather than dejure.
Blr.DE VILLIERS Y:OUhave for along time given speciai attention to
a subject called "minority problems", is that not so?
Mr. VAN DEN HAAG Y:es,1 teach courses on this subject.
Mr. DE VILLIERS W:hat doeç that çubject comprise?
Mr. VAN DEN HAAG :In eeffect,although conceptuaiofcourse applies
to al1minorities, thattoal1groupsother than the dominant oneinany
given sociery, in effect, in the United States, it deals largely with the
problem of relationships between the Negro minority and the White
rnajority.
&Ir.DE VILLIERS DOyou belong to a professional society?
Mr. VAN IIEXHAAG:1am a Fellow ofthe Royal Economic Society, and
a Fellow of the American Sociological Association, and a number of
professional societies.
Mr. DE VILLIERS H:ave you appeared asan expertin court on matters
concerned with segregation in the United States?
Mr. V.4NDEN HAAGI : have appeared in the last two years three times
in United States Federal Courts, and once or twice New York state
courts as ari expert.
Mr. DE VILLIER S:at concludes the qualificationofthe witness,
Mr. President.
The PRESIDENT M:r.de Villiers, without repeatiwhat you stated136 SOUTH WEST AFRICA
this ~riorning, would you indicate in reply, shortly, your answer to the
observations made by the Agent for the Applicants.
&Ir. DE VILLIERS: Certainly, RIT.President. 1 must confess, with re-
spect, to being completely puzzled. hly learned friend, Mr. Gross, has
fastened on to an expression used in a letter written by our Agent on the
subject of \vitnesses tbe called. That lettewas written afterI had been
addressing the Court for some days, in answer to his contentions ad-
vanced to the Court under Article 38 of the Statute. 1 made perfectly
plain our position as to 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 faras the Applicants rely upon a suggested practice of States
so as to establish arule of customary law, in terms of Article38 (1) (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 rnatters to which Dr. van den Haag's testimony would be directed,
we used this expression :
"He wiii testify to the effect that the norm andlor standards of
non-discrimination or non-separation, as contended for by Appli-
cants, are not applied in some parts of the world."
This isa pure question of fact pertaining to matters of practice of States.
And carrying on, Mr. President, on this theme which 1explained to the
Court before, and which I contended to the Court would be relevant to
the inquiry, that if attempted tobe so applied it ~vouldlead to unfavour-
able results for the well-being and progress of the peoples concerned.
That still remains the gist of the evidence which Jvepropose to tender and
1 do not know how we could make that plainer.
My learned friend raised two other matters. He raised a number of
them but 1 shall concentrate on these two, and 1 want to make it plain
that 1 really do not understand what the position is and that I should
very rnuch like to have clarity. Perhaps we could then CO-operateso 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 andior
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 whicli
thcy seek to assign to the norm? And we have looked at their own defini-
tions in their own forma1 submissions to the Court tendered on those
submissions and in the informa1 explanations given in Court.
We emphasized to the Court why we considered that according to
those definitions the norm 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 I37
cations. We were not clear 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 to the case which isbeing madeagainst
us and 1 do not understand my learned friend when he says that it is
impermissible for us to address our evideiice to what we understand the
case to be which is being made against us. Sureiy, 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 clear that they do not make such a case.
If, Mr. President, 1 suggest with respect, we could find some time to
clear up this situation it might possibly help.
The further factor which 1 do not understand is my learned friends'
continuous reference to their difficultieswhich they have with our scheme
and with prior notifications. 1 can understand questions of that kind
being raised when 1 know that 1 am dealing with opponents who want
to exercise a right of cross-examination. Then 1 can perfectly understand
that, and t:hen we should be pleased to CO-operate,Mr. President, even
by giving Inore 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 cal1and onwhat subjects. We shallbe perfectly willing to do
that, but 1 have understood my learned fnend to Say categorically on
several occasions that he does not intend to cross-examine at all. That
iswhy we are, in that respect also, somewhat nonplussed by the attitude
taken. However, that, Mr. Yresident, in brief, is why we suggest that the
evidence in general wilI be relevant and, in particular, the evidence of
Dr. van den Haag along the lines that 1 have indicated.
The PRESIDENT: Nr. 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 claim to exist. It does not assist very much to
say that certain mattersare unintelligible or that they are embarrass!ng,
one wantç to know in what sense they are unintelligible or embarrassing.
The case of the Applicants was based upon a norm which they claim
exists, and whicli they assert does not require or admit of any factual
evidence at al1beyond 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
Mandate+r 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 przictice in other parts of the world that there is no such custom-
ary norm, as is contended for by the Applicants; that itis 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 weIfare 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-groundç do you say that the evidence
which is being foreshadowed is inadmissible?
Finally, it is not possible, it setosthe Court, that an applicant should13~ SOUTH WEST AFRICA
be told in detail what a witness's evidence isgoing 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 prejndiced?
Would you deal with the question of admissibility first, that is on the
two grounds that I put, na~nely (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.
Rlr. GROSS : r. President, 1 shall atternpt to deal raith 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 1shall
refrain, to the bestof 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
atternpt is made to respond to the honourable President's question in the
follow-ingterms.
The Applicants' case is, in the Applicants' submission, not accurafely
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 AppIicants 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 ofinterpretation ïvhich 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 AppIicants submit, for reaçons which have been set farth in
detail, should be accepted by the Court as autfioritative interpretations
of the Mandate. It is apartheid we are talking about. If this witness or
any witness address himself as an expert or othenvise 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 cornpetent 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 contend 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 alegal conclusion
based upon the application of Article 38.
These are the branches of the case. When the evidence is proffered WITNESSES AND EXPERTS I39
indiscriminately with respect to the formula, "norm and/or standards
as contended for by the Applicants", reflecting and echoing a descrip-
tion thereofin 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-
rnitted that such a proffer based upon such a prernise 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 ;inywitness, asked to testify with respect to such a formula-
tion, is really addressing himself to.
Now, finally, Mr. President, again with apologieç 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 officia1laws 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 norm and standards), 1 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 Article2 of the Mandate-to 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, regiilations, or officia1practices which are contended, or analysed
as, embodying discriminatory practices, in the actud sense found by the
competent organs here.
1should like, with the permission of the Court, to question the witness
concerning his qualifications, unless indeed there are further questions
with regard to the material 1 have just ...
The PRESIDENT T:hat is an entirely different matter altogether. Have
you finished the observations?
Mr. GROSSI : have, hlr. President.
The PRESIDENT:Weil, 1 think the Court will hear the evidence. Aswe
indicated yesterday, the Court isquite competent to vdue 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 to be placed upon Article z of the Mandate. The
Court will probably not be able to determine completely al1questions of
relevance of evidence untilit cornes to its final adjudicatio1think the
evidence should proceed.
Mr. Gross, you indicated that you desire to cross-examine the wit-
ness in respect of his 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 PRESIDENT : T.de Villiers.
Mr. DE VILLIERS:Mr. van den Haag, have you ever lived in the
Southern States of the United States?
Mr. VAN DEN HAAG: NO,sir.
Mr. DE VILLIERS:Where have you lived thus far? In which parts?
Mr. VAN DEN HAAG1 : have Iivedin New York, in the Middle West, in
Iowa City when 1 studied there, for a bnef time in Chicago and for aI40 SOUTH WEST AFRICA
brief timein Philadelphia and mainly again in New York. 1 have never
been beyond the Middle and the Far West except for two or three days
at a tirne.
Mr. DE VILLIERS N:ow you have told the'loui-t that you have made a
special study of minority problerns and particularly Negro-White rela-
tionships. Could you tell the Court, in general, where you stand as a mat-
ter of sympathy, as far as the Negro cause, or as one might cal1it, the
Negro question, is concerned; where does your sympathy lie?
Nr. VAN DEN HAAG: WeU, I would guess sir,1 wouId Say,it lies with
both sides. 1am interested in an arrangement that would be satisfactory
both to Negroes and to Whites and, in this respect, 1have 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,
practiceç, have been deprived of rights that they should have, both
constitutionally and in regard to generally accepted principles of hu-
manity. 1 am not-let me add this-fully in agreement with the policies
presentlypursued to bring about a better arrangement because 1think 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, 1 certainly am in favour of
that.
Mr. DE VILLIERS H:OWdid it corne about that you speciauy interested
yourself in the Negro question?
Mr. VAN DEN HAAC: Well, itisone of the rnost prominent social prob-
lems now in the United States and1 am a sociologist and interested ithe
social problems that affect the societin which 1 iive.1 think it is even
a world-wide problem, as these particular proceedings certainly demon-
strate.
Mr. DE VILLIERS N:ow in your approach to the subjectas asociologist,
have you any assurnptions or major premises on questions of racial
superiority or the like concept?
Mr. VAN DEN HAAG: This concept of racial superiority or infenority,
has always seemed unintelligiblto me, for if we wereto admit, and 1
am willing to grant, that the different races both as defined biologically
and perhaps as defined socialIy do probably have different physicalanfi
perhaps correlated with that, different psychological qualificationthis
last point in parentheses, this last point may 1 mention, is an open
question. There are numerous geneticists who feel that there is probably
no correlation between the differential distributionof physical charac-
teristics and the differential distribution of psychological ones. Others
feel that there isand 1 do not myself feel competent to testify on thts
point, not beinga geneticist. However, whatever they may be, suppose lt
were to be found that, to illustrate, 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 foliow that one is çuperior 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, ineffect, says thathisparticular quality,blonde hait-, whitskin,
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 I4I
is a value judgment which is entirely outside the scope of science and,
by the uray,a value judgment that 1personally reject.
To answer your question more briefly. 1 reject the idea of racial in-
feriority or superiority, thoug1am willing to accept the idea of racial
differences.
Mr. DE VILLIERS: Could you indicate whether there isin that respect,
a difference in the approach of the sociologist to questions of group
relationships, a difference from that osay a geneticist?
Mr. VAN DEN HAAG: Yes, a geneticist would,of course, be concerned
with whether there are inherently different characteristics, whatever
they are, arid whether these characteristics are genetically inheritable.
A sociologist, such 1sam, would not be interested reallinthe existence
of these differences, except in a marginaway. He would be interested in
their perception and their cultural elaboration, that, he would wonder
whether one group is perceived by another group as different, andhow
and what the effects of that may be; he would not ask himself so much:
is it different? but rather, whatare the social causes that lead to the
perception as different? and ivhamay be the effects? and ifconstitutes
a problem, what can or should be done about it?
Mr. DE VILLIERS: SO, as a sociologist, for that purpose would it be
correct to sny that your assumption is a neutral one as far as various
genetic theories may be concerned?
Mr. VAN DEN HAAG: 1do not think 1 am cornpetent to decide onthem,
and 1 do not think for my purposes it is even necessary to make an
assumption.
Mr. DE VILLIERS NOWcould YOU explain, asa sociologist, what you
regard as a human group?
MT. VAN DEN HAAG: So~iologistsgive a specific meaning to social
groupwe distinguish it froma mere aggregate of persons. By a social
group we mean basically an aggregate that feels asgroup, that is bound
together by a feeling of group solidarity usually based on the perception
of similar characteristics, on aharing of values, on, possibly, common
historical experience; in the past such groups were very largely formed
on the basis of religion-thevery word "religion" cornes from "religare",
to bind together-and the group usually supposed itself to be iike a
family who have originated from a common parent. Today religion has
become somewhat less important in this feeling of group solidarity,
and through the rise of nationaliîm, common language, both in the
direct and in the metaphorical sense, common historical experience,
common enemies, comrnon friendç, common values and so on have
played a greater role. Let me illustrate:we have, for instance,in the
case of the Jews, a case where the group feels largeas 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, 1
would Say that nations are groups held together by cultural values that
are perceived ascornmon. Now let me add that this mutual identification
of group members seems to me, and1 think to most sociologists, the
foundation for law-abidingness. Forthe group rnembers, having common
custorns, tend to accept a common organization and to obey cornmon
laws-certainly it istrue that laws are fortified by sanctions against
violators, but laws work onlybecause few people are tempted to violate
them, andthe sanctions are required only against afew people, and most142 SOUTH WEST AFRICA
people tend voluntarily to obey the Iaws precisely because these Iaws
spring from shared and common values and custorns within the group
in which they prevaiI.
Mr. DE VILLIERS:SOthat 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 Iaw. 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, 1should think that itis ina 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; 1 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 tIiat
each member is willing to at least bear the risk of sacrifice, injury and
even death, ifnecessary. 1 think I was a littlevague on the reasons for
group formation, and the reason 1 am a little vague is that no-one has
really been able toshow exactlj~ 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 that1 have given. Now there are cases where there is
no common language; there are cases where there arerather few common
customs, but perhaps a common enemy, or something like that; but in
al1such 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 groiips-may they grow up
historically ?
Mr, VAN DEN HAAG: Yes.
hlr.DE VILLIERS :The common bonds, 1mean-you have said religion
could play a part-what about ethnic assimilation?
Mr. VAN DEN HAAG: Well, as Isaid, there is a perceptionofsimilarity
in the group members; they often originally regarded thernselyes 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
soljdarjty to someextcnt alsoby identification with his felIow members
and de-identification with non-members, and this sentiment of identifi-
cation and de-identification was based on cultural matters, but also 1
would say on ethnic matters-1 use the word "ethnic" to mean both
culture and biological orig-in, or at least asa perception of biological
similarities and dissimilarities, including such things as various physical
characteristics.
Mr. DE VILLIERS:Perhaps we could get it ciear if we ask you what
distinction would you draw, if any, between an ethnic group and racial
distinctions?
Mr. VAN DEN HAAG :Generally speaking, an ethnic group isa sub-group
of a race-you willspeak of, Say, the Jews as an ethnic group being part
of the Caucasian race, for instance, buthese terms, let me point out, are
used ina variety of ways by a variety of people, and 1 do not think that
1want to legislate onwhat their use should be; but, at least in American
usage, "ethnic" refers to a sub-group of a larger grouping which is called
"racial", but some anthropologists in America now, since the word WITEESSES AXD EXPERTS I43
"race" has fallen into disrepute, try to avoid it and use the word "ethnic"
as a more general term.
hlr.DE VILLIERS: For you, as a sociologist, that feeling of identity,
those comrrion bonds-thcy arc the major factor?
Mr. VAN DEN HAAG : hat is the essence of a social group, yes.
Mr. DE VILLIERS: And it could partake of these different ïorrns you
have mentioned?
hlr.VAN DEN HAAG Y:es.
hlr.DE VILLIERN SO:W, do al1 people xvithin one geographic area
necessarily or alxvays form one group or share the same culture?
Rfr.VAN IIEX HAAG :ertainly not; for a variety of reasons tistvery
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 lïrhere the sovereign felt that in hi5 dominion only one religion
should prevail, wherefore he would then sornetimes elirninate, with
rather drastic measures, al1religions other than the onehe would regaas
useful togroup solidarity, but in many cases now we have larger groups
including a number of smaller groups, and in some cases we have more or
less compatible groups living togetherin the same state (area).
Let me point out that a variety of ways of dealing with this has been
found. One, very simple, isfor instance, to throw out orkif the group
that belongs to a different ethnic or cultural division. 1 could mention a
number of such cases, for instance, the division of India and Pakistan
led tothe exchange of about eight million population, also,an eschange
that certainly was not easy on the Indians in question. In some cases,
again India and Pakistan is one case, partition was also involvedIfyou
look at tvhat happened alter 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 ethnic Germans, and that the Polish
and Czechoslovakian Governments immediately insisted on these ethnic
Germans leaving what had now become Poland and Czechoslovakia. In-
cidentally they had no choice, that is,itwaç not possible, Say, for a
German farmer in this situation to say, well, 1 am wilIing to become a
Polish citizen, or something like that. Hes manu militcircompelled to
leave the territory becausc apparently the Polish Government felt thnt
his ethnic Germanness would introduce an element of dis-solidarity into
tlie Poiish State,orCzechoslovakian State, and so on.
If you wish me to illustrate this furth1dl: there arequitea number
of such cases.
Mr. DE VILLIER Ses, 1 should like you to mention some more, but
1 should also like you togive attention to this factor, whether in these
instances of which you speak the action, by whatever authority it \vas,
was to be seen merely as having a negative effect of separation, odis-
crimination, or what have you, or whether it was also perceived of as
having positive value.
Mr, VAS DEN HAAG\:ZTell he best people to ask about that would be
the participants,but 1 think in many cases-let me take the case that
1 have just mentioned, of the migration of people of German ongin
from territoriesnow Polish and Czech-1 think in the short run this
involved considerable sufferingand sacrifices.1 rather feel rnyse1f that
in the long runit probably elirninateç problems thatinthe future,might
have led to considerably more suffering than haç now been experienced
by these minorities. And again, the partitionof India and Pakistan, as144 SOUTH WEST AFRICA
I said, was certainly hard on many of the people involved, butf am not
sure that in the long run 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-jdentified
groups, and perhaps partition %vasthe best ivay of preserving. inthe
long run, the peace arnong them.
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 promiçcd, but of course that also led to about eight hundred thou-
Sand Arabs leaving the country, not quite voluntarily, in moscases,and
still hanging literally around its borders and no doubt undergoing great
suffering.
SOthe question you are asking me is a little hard to decidin apurely
scientificense: we have suffering and reasonable interests on both sides.
I should think that, in the long run, sometimes 1 would certainly want
to recommend partition, sometimes 1 would want to recommend an
attempt at separate existence under the same government, and sometimes
1 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.
Rir. DE VILLIERS:CVouldit be correct to Say that it would involve a
balancing of various values?
Mr. VAN DEN HAAC :hat is correct, yes.
hfr.DE VILLIER In:each particular case?
Mr. VAN DEN HAAG : es.
RlrDE VILLIERS:Are you acquainted with a case of what was formerly
called "Ruanda Urundi" in .4frica?
MT. VAN DEN HAAC: 1 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, 1 would Say, from an economic
viewpoint, this division, nonetheless, was notnough.
In one of the countries, Ruanda, there livcd two ethnic and culturally
distinct groups, the Bahutu and the Watutsi; the Watutsi are very tall,
in fact the tallest group of peoiiithe world, 1understand. TheWatutsi
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 uçed this power to quite literally kill as
many of the Watutsi as they could, and compelled the others to flee to
neighbouring countries. In fact, 1 think it was the United Nations that
helped in giving refuge to a number of these displaced Watutsi. SOhere
we have a case where 1 think the separation, though economically
quite unviable, in my opinion, nonetheless was indicated for reasons of
group conflict but where1 think it was not sufficienand the events that
1 have described took place. Indeed, in the area in question there is still
turmoil and the rnatter 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 ethnic group by another? WITNESSES AND EXPERTS
145
lfr. VAN DEN HAAG: Well, I think there are quite a number: let me
mention a few. There is certainly one, well known in Russia, bvhere in
1943 the so-called "Volga Germans" were as a group, and against their
wishes, transferred to Siberia because the Rusçian Government, feeling
that it was already at war, or going to be at war, with Germany, did not
feel that these people, being ethnic 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.
1 must say that a similar case occurred in the United States where-
1 would rather refer here toa book if1 rnay-the Japanese were forcibly
relocated from the West Coast where they had been located before, and
compelled to enter various relocation centres. It is rather interesting.
Alany people, including myself, were very doubtful on the constitutional
reason for that, but the United States Supreme Court has decided three
cases (and 1 have with me photostats ~vhich 1will 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 rnerelbecausc of their Japanese origin.
Let me point oiit thnt these people were United States citizens, often
of four gener'ations; that the Japanese were certainly not the onIy group
in the United Statcs that was ethnically relatcd to an enerny 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;1 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 Cornmittee, he said the following:
"The Japanese racéis an enerny race, and while many second and
third generation Japanese born on United Statcs soi1possess United
Statescitizenship, and have become hmcricanized, the racial çtrains
are undiluted, he is 'still a Japaneseand you cannot change him
by givirig hini 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 justified by the circumstanceç of the war, but the Supreme Court
in threi: extraordinary decisions has upheld its main features as
constitutional."
And he goes on to Say that these Supreme Court decisions have given the
authorities, ineffectthe President, a weapon rcady for the hand of any
authority that caii bring fonvard 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 cmergency powers jiistifying this particular
decision, did not tliey?
Mr. VAN IEN HAAG: Well, yes, except that the emergency isalways
self-declared. Let me put it this way. No sliowing occurred before the
Suprerne Court that any of the Japanese relocatedhad shown disloyalty.
What was being said was simply that the authorities were unable to find
out ~vhether they might not be disloyal, and they suspected on the basis
of their racial or ethnic ancestry that thereas this possibility and there-
fore they relocated.They felt that as far as the Germans were concerned14~ SOUTH WEST AFRICA
they could make individual distinctions. But as far as the Japanesewere
concerned they felt that they had to confine the group as a whole.
As you say, correctly, thisecision has been opposed by many people,
but it isadecision thatis still valid, that is the constitutional interpreta-
tion has not been overthrown.
Mr. DE VILLIERS:In other words, the line of demarcation, your point
is, was the ethnic line?
Rlr.VAN DEN HAAG: NOother.
Mr. DE VILLIERS:It was that, and the circumstances there, viz., the
circurnstances of emergency, were found to justify that line of demarca-
tion in the particular circumstances?
Mr. VAN DEN HAAG: Quite so.
There areother instances, with regard to the United States. 1may point
out that we have still such lines of demarcation ina number of paraliel
practices. For instance, if we look at our present immigrationlaws, it is
generally admitted that these are based on pilrely ethnic, or racial, if
you wish, distinctions.
Let me illustrate this point very briefly, 1am referring to immigra-
tion laws as they now exist-the 1st codification of the immigration
latvs occurred in 1952 and that is the one, the sa-cailed McCarran-
M'alter Act. .,
Mr. DE VILLIERS: WiU you, please, mention the name of the book for
the record purposes?
Mr. VAN DEN HAAG: Certainly. This is Brewton Berry, Professor ai the
State University of Ohio,and his book is calied Racand Efhnic Relations.
1 am quoting from the 3rd Edition (p.337); it isa cornmonly used text-
book. What he states is that "the quota systern, based upon national
origins, has remained intact". And we see this. Ifyou wiil look at the
quotas you will find, for instance, that people born in Germany cari
emigrate to the United States in the number of 25 thousand and some
hundreds, in Great Britain 65 thousand and some hundreds, in al1 of
Africa 3,200 ,n al1 of Asia 3,290.In other words, the quota for a11of
Asia andthe quota for al1of Africa is a few thousand, whereas the quota
for Great Bntain, 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 reaiiy by racial origin. For instance, Orientals
suffet a very special type of discrimination q~a Orientals even though
thep may be naturalized citizens, for instance of Great Britain, such as
some of the Hong Kong Chinese are-they donot coine under the quotas
of their Westernnationalities but are placed under thquota of Orientals,
that is, immigration is limited to 3,290 per year. This policy was first
codified in1920 and, as I said,recodified in1952. 1rnay point out, since
1 would feel somewhat disturbed if it were to be believed that America
is alone in this, that this practice is also folioindeffect, in Australia.
Mr. DE VILLIERS:We have deait with that, Dr. van den Haag. We
need not go into the detailsYou have read the portion of our Rejoinder,
V, pages 196-197, dealing with the cases of Australia and New Zesland,
the United Kingdom and Canada. Have you read our exposition?
Mr. VAN DEN HAAG:1 certainIy have, Imust say my recollection is not
altogether clear, but1can summarize it vcry briefly by pointing outthat
in a number of nations,tliat for instance in Australia, the total number of
Coloured cjtizens isrper cent. or something like thatofthe total popula- WITNESSES AND EXPERTS I47
tion which certainly would not have come about were it not that imrni-
gration is racially restricted.
In Great Bntain, 1 majr point out (and this is, of course, in recent
memory; I must admit 1 do not recall that1 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 1st Conservative Government imposed some restrictions
which were bitterly oppoçed by the Labour Party which called them
hypocritical, ifI recall correctly, but athe Labour Government carne
to power it, contrary to its promise, did not change these restrictions.
So what we have hcre isthat Great Britain, though it has not relocated
or contined its Coloured citizento any particular placeinGreat Britain,
has found it rnuch 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
ethnic differences,itwould 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 VILLIEKS For the good of the population as a whole?
Mr. VAN DEN HAAG: Undoubtedly, although 1 am sure that the people
in Jamaica may not agree.
Mr. DE VILLIERS: You had, I think, a quotationin regard to Canada
which you wanted to add to thoçe we have given to the Court?
Mr. VAN DEN HAAG: Yes, 1 have. This is from the Canada Yearbook,
an officia1publication, tvhich 1932 (andI am interested in the differen-
ces in lanpage) stated: "Canadians usually prefer that settlers should
be of a readily assimilabletype, already identifiedby race or language
with one ofthe two great races now inhabiting the countrjr."
The officia1Yearbookfor 1963 rnakes the same point, but in a language
which is perhaps a little bit more diplomatic, by saying itas 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, thiç 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 bIuntly.
Mr. DE V~LLIER SOW, 1 will ask you later on questions of comparisons
or the passibility ofcomparing at all-drawing comparisons between a
situation inthe United States and, Say, in Africa, but, beforewe come
to that,we ought to have clarity onsome aspects of the situation in the
United States. Do you Itnourof examples, other than by federal action,
of official action or legislstive action making racial distinctions in the
United States?
Alr. VAN DEK HAAG:Let me make two points in my answer. First,
in addition to the federal acts that1 have rnentioned, there has becn a
considerable degree of voluntary regulation. The whole Kepublic of
Liberia was, after all, founded very largbyy American Negroes deciding
to leave the country and in Africa found their own separate country in
which, in effect. they tried to nlake it hard for Whites to settIe. As a
matter of fact, if1 am correctly informed, a White person cannot own
real estate in Liberiaand this at the presenttime. Now this, of course,
was of use only to a rathermnll group of American Negroes, but through-
out the history of minority relationinAmerica you find that among the14~ SOUTH WEST AFRICA
Neg~o population there have been a number of groups thaf have insisted
on separation of the Negroes from Whites. Perhaps, the most important,
or at least the most numerous, of such groups was the Universal Asso-
ciation for Negro Improvement formed by Narcus Garvey and which
flourished very much in the 1920s when it was said to have two million
members-these figures1 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 itfilled at its congress Madison Square Garden, which is quite abig
place, and was financiallyand otlïerwise quite powerful. Its major aim
was the return of Negroes to Africa. It did not achieve its purpose and1
think itcould not, butitcertainly did indicate that there was such a quite
voluntary movement afoot. 1 rnay Say, incidentally, that they also in-
fluenced officialauthorities and 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 insistedon that and persuaded the Board of
Education of New York to adopt this spelling xvhichthen spread al1over
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 isto persuade, or force, the United
States Governrnent to relocate Negroes in the United States by giving
them a terntory 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 to me, and, again, the membership of
this association is nat altogether certaibut 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, 1 think quite cor-
rectly, that the members of the movement are tiistinguished from many .
ather 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 asintegra-
tion of personality.
Now that was onepoint Iwished to make-that is, there are a number
of unofficial, voluntary movements.
Mr. DE VILLIERS : OWb , efore you leave those, is it not sometimes sug-
gested that leaders of a movement like thiç hloslem movement you have
just referred to-are rather eccentric or fanatical?
Mr. VAN DEN HAAG:I rather think they are myself but that 1 think
is usualIy the case with the founders of 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 to its own fulfilment, so 1 would
certainly not vouch ...
Mr. DE VILLIERS:The question 1 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; 1 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 fhave men-
tioned. Theseare important but, at the present timeI think the National tVITNESSES AND EXPERTS I49
Association for the Irnprovement of Coloured People and otbers that are
taking a miich more moderate line are probably more influential among
h'egroes as a whole. They are certainly regarded as more infiuential by
the United States authorities who tend to deal mith them to a greater
extent than to deal with these groups.
Afr.DE \ r ~ ~ ~ ~u~t:still advocating some form or other of voluntary
relocation?
Mr. V-4lr. DENHAAG: Certain groups 1 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 come back to my question about officia1action. Do you still
find examples of officia1action within the United States which have the
effect of differentiating bctween groups,particuIarly this instance of be-
tween Negroes and white American citizens?
Mr. VAN .DEN HAAG:Well, certainly if you mean by official action by
governmental authonties, many govemmental authorities below the
federal level (state authorities and so on) persist in undertaking such
officia1actions 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 subscquent decisions, to say the least, of dubious legal standing.
But it seenis, particularlyin the southern stateç, the local authorities
arenot wilIing 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 effectI think you
are quite right in your supposition that the Court's decision, though
certainly nciw legally established, has not led to any remarkable social
change in the southern states. 1 should think that, in fact, the numbers
say of Negro school children who go to desegregated schools in the south-
ern states is çtilI extremely small and1do not really foresee that thereis
any chance that it wiLigreatly increase in the next ten years because there
is an enormous locd 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 first ontopoint
out, these court victories have not reaiiy led to much practical change.
Indeed, 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. 1 would not say it is necessarily deliberate, but Negro
leaders are the first to point out that desegregation has made very Little
.ract-cal progress. Whether one approves or disapproves of that, this
is a fact.
3fr.DE VILLIERS:Now to revert to the action still taken by certainof
the state authorities. Would you in al1cases Say that they ar&f a repres-
sive or oppressive nature 7
Mr. VAN IIEN HABG: Well, this leads into-
Mr. DE VILLIERS:1should not like you to go into detail1 just want to
know whether you would classify them all as being for oppressive pur-
poses, whether some are-
Mr. VAN IIEN HAAG: No, 1 would not so classify them. 1 think one has
to make a distinction between segregation and discrimination, althoughI50 SOUTH WEST AFRICA
these two words in the dictionary sense mean about the çarne, and 1
would Say that I would hke to use the uwd segregation tomean 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 rnay be used to cut
a roast or can be used for murder. It isnot in the nature of the knife that
itmust be used for illegitimate purposes, it is not in the nature of segrega-
tion, 1 think, that it has to Iead to discrimination if by discrimination
we mean, as 1propose 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 tryto explain. When I teach my classes 1 wiii give grades ac-
cording to the performance of the students in the examinations. That isa
form of distinction, and you may cail 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 1 hope 1always will, applied a relevant criterion. Now if 1
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 1think one would cal1it discrimination.
Now, to return to your question. When the segregation does not in-
volve hardship for either of the segregated groups, or ifitdoes involve a
hardship the hardship is due to relevant criteria such as qualifications,
Say, if one person is hired for a job and the other person is not, if this is
due to differential qualifications1do not regard it aç illegitimate or un-
warranted discrimination. If on the other hand, it is due to irrelevancies
and prejudices on the part of the hiring agency, then1 would soregard it.
But to return to your question. Segregation Inay be used for purposes
ofoppression, deprivation, and placing at adisadvantage, but itneed not
be so used.
Let me also point out, incidentally, that non-segregation can very well
be connected with oppression.
In many universities, for instance, in the past particular groups were
not segregated from the rest of the students, but there was a numerus
clausf~s,that is, only a certain number of theni were adrnitted whereas
others were admitted entirely according ta their academic qualification? ;
there are quite a number of cases where-weli, of course, the one that1s
very clearly in our memory 1 suppose: that of the Jews in Germany,
who were ceitainly slaughtered (discrimination isnot enough) ; yet there
was no segregation of any length preceding this slaughter, which 1 thi?k
indicates, on the onehand, that segregationis not necessary tooppressive
measures and that non-segregation does not necessarily make for such
group relations as would avoid hardships. (1 am still trying to answer
your question; 1 hope you willforgive rny lengthiness.) 1would regard
the instrument of segregation as a neutral one; the effects wiil depend
on the circurnstances, 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 : y question is, how is it used, in fact, as you see it,
by the southern authorities? Would you Say that it al1 fails into one
category or the other?
Mr. VAN DEN HAAG : o, I wouId not quite go so far, but certainly in
the past segregation in the south waç used as a disguise and as a device
to deprive the segregated group, in effect the Negroesof advaritages 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
isa necessity; itisa historical event and a historical event must notbe
confused with a logical or historical necessityBut, certainly1 do not
tIiink icaii be denied that hislorically, 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
still today invariably so?
Mr. VAN nEx HAAG :oiv, at the present time? UTell,theonly way in
which 1could answer that 1would have to pass in review quite a number
ofthings that are now happening and some cases that are still so used,
or atleast that is the intention-
Mr. DE VILLIERS:1 do not want you to go into detail1 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 sas to
discriminate againçt the se regated minority, but not in ail cases. am
farniliar with some cases f ,re, inmy own opinion, the segregating au-
thority \vas willing (and, incidentally, tliis is in the records in aofumber
judicial proceedings) to spend just as much per pupil and to pay even
higher teachers' salaries for Negro chiIdren, but wished to maintain
segregation. In this case of course,you cannot speaof segregation being
used to materially deprive the segregated group-whether there is a
psychological deprivationis a rnatter that 1 want to discuss later.
Nr. DE V~LLIERS : e shall come tothat later. lu'owcould you firsin-
dicate to us whether you can passsorne general comment on possibilities
of comparing the American Negroes with the indigenous inhabitants of
Africa?
Mr. VAN DEN HAAG: WeU, of course the American Negroes originally
came from .4frica, but 1 think there are very major differences. Oneisa
purely biological one, andI merely herereport what is generally accepted
without making a judgment of rny oivn. It is generally said that African
Negroes, on the whole, are purer Negroes whereas it is generally accepted
that there isabout a 30 per cent. admixture of non-Negro genes, or blood,
in the American Negro. Now 1cannot 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 1 am more competent to speak,
and which 1 thinkis also more important, isthis: 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 tlieir tribal
bonds so that, Say, on a slaveship there wouldbe Negroes from avariety
of tribes that spoke different languages and eould not speak with each
other, nor tlid they share common customs and so on, they shared, at
most, the fact of al1being coloured; and, of course, once they came to
the United States and were sold again they were further dispersed. In
some cases even the mernbers of the families were separated from each
other. The result of that was that they lost whatevcr Native culture and
tribal unity theyhad, and acquired, to the extent to which the conditions
made that j~ossible,American culture. That is then, to put it very suc-
cinctly,the American Negro does have American culture, an American
Negro sub-culture if you wish-a sub-culture justas that of say long-
shoremen may be called a sub-culture owing to specific circumstances of
their life-but it ipart of American culture and certainly not of African
culture.They do not speak African languages, they have no direct rnem-I.52 SOUTH WEST AFRICA
ory or tradition of any tribal life, they would 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 Anlericans, but Americans
still.
Let me mention Liberia. Let me point out for instance the American
Negroes that did arrive in Liberia imported the Engliçh language and
American usages there and, in effect, formed an upperclass Americanized
elite in Liberia that has a relationship reputed to be one of oppression
to the native-born Negroes there. 1am not maintaining that this reputa-
tion iscorrect,I have not been in Liberia, but certainly one thing 1can
easily rnaintain is that the group of Negroes that came from hmerica
and formed the aricestry of the now ruling class in Liberia has an Ameri-
can culture as dislinguished from the Native tribes; and Anierican
Negroes in America certainly do.
NOW,you asked me to compare this with African Negroes. From your
own documents, and from a littleexperience I have rnyself of Africa-
1 have visited it once-1 would Say that inmany cases African Negroes
still possess a tribal feeling of belonging and they still possesa tribal
culture, tribal customs, ideals, attitudes,andso on, of their own. So that
in Africa there is stiU 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 16s.
1 visited the Congo some time ago and 1 met a number of Congolese
politicians and so on that were described to meaa detribalized, that is, as
no longer being very much connected with their tribes, but in my obser-
vation, however brief, 1 found this not to be the case. Far instance, 1
enquired at one of the Ministries what led, in effect, the various civil
servants and so on, to occupy positions in that hlinistry and 1was told
that they are a part ofthe tribe to which the Minister belonged and that
was their main qualification.In short, the tribal feeling is stillvery strong
ascertainly has also been shown Say,in Katanga, in other parts of Afnca
where the major clashes were betwecn tribes such as the Lunda, Baluba
and what not.
1want to make it clear tIiat this is not based on persona1 observation of
every part of Africa, but upon the studyof 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 ethnic culturesof Africa?
Mr. VAN DEN HAAG:1 would maintain that that is so, in principle,
wherever there iç a Native culture that has any sort of strength I would
think that 1 would make every effort 1could to maintain it, for 1 think
that the change of culture, particular1~ 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, 1certainly would want to do it
in the slowest and most supervised way. May 1 add that the only major
country which has gone about such a change i~ia reasonably successful
way, has been Japan, but under very specific circumstances which cannot
and have not been reproduced anywhere else. WITKESSES AND EXPERTS I.53
$Ir.DE VILLIERS:NOW YOU are talking about ...
Blr.VAN 'DEN HAAG: Change in culture-was that not what you ...
hlr.DE VILLIERS:Yes, in the case of an Asian people. 1 was talkng
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 ethnic culture?
&Ir.VAN 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 achange without retarding factors and suddenly; or to
its-1 would say-psychological destruction, leading to such phenomena
as Emile Diirkheim described as fio or niet,hat is, a feeling of rulelessness,
a feeling, that is, of purposeIessneThe English anthropoIogist ,W.H. R.
Rivers described it in Melanesia-1 am going out of Africa but 1 will
return in a rnoment-where he says, the rapid change in culture, actually
led to the extermination of the Nelanesians, 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
central purpose.
Now you find this parallel with American Indians. Of course, many
material measures were taken about American Indians that quite
materially rzxterrninated them. The Government, bowever, ultimately
tried to protect them by locating them in certain Indian Reservations
where it hoped tliat the Native culture of the Indians would, in a self-
sufficient way, maintain them both 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?
fiIr.DE VILLIERS:Yes, now I think you have answered it-to indicate
some of the positive and negative aspects wliich may be involved in the
destruction of a Native culture, depending on the circumstances in which
it occurs.
hlr. VAN IIEN HAAG:1 do want, if 1 rnay,to add one point. 1 do not
want to appear to Say that it is entirely impossible for one culture to
accept possibly beneficial things from anotlier culture under certain
circurnstances.If it is done in a reasonably slway it can be, indeed, ex-
tremely useful. Indeed, one may say that in the history of the world, few
cultures have been totally isolated, each culture has learned sometimes
from otlier cultures, but there is an enormoas difference between a
technologicalIy superior culture overwhelming one that istechnologically
not so accomplished, and between that last culture slowly accepting some
of the benefits of the culture that is technologically more accomplished.
Mr. DE VILLIERS:NOW,to revert to the position in the United Statesfor
the purpose 1 indicated before; you have dealt with voluntary and in-
voluntary cases of separation, of re-location and of migration. YOUhave
indicated that those have taken place until quite recently but now, is
not the judgment in the Browwcase, to whicb you referred, an indication
that such events will not be repeated in the future?
Mr. VAN UEN HAAG : ay 1 ask you to repzat your question? 1 did not
quite follom you.
Mr. DE VILLIERS: Yes, I mean you have spoken of certain eventsI54 SOUTH WEST AFRICA
indicating re-location on a racial oran ethnic basis, on a differential
basis in the United States, voluntary and involuntary separation and
so forth, officia1action in that directiInask you whether the United
States isnot now facing a new era in that regard as a result of the decision
of the Supreme Court in Brown v. Board of Edt~ation.
Mr. VAN DEN HAAG: Well, that decision certainly would depriveof
legal sanction any act of re-location that has the purpose of separating
the races. It would not,Ithink, prevent such activities, a1mentioned
before, that the "Nation of Islam" would want to bring about such a
separation on a voluntary basis or possibly impose it; what theBroww
decision does is certainlyto Say that state authorities,in particular
schoolboards, butthe matter has been enlarged in other decisions, cannot
separate pupils in public facilities on the basis of race or colour.
Mr. DE VILLIERSN : on;, as Iunderstand the Bvown decision, it over-
threw the previous case of Plessey v.Fergzasofi;the Court seemed to
rely, amongst others, on the difference in the state of psychological
knowledge at the time of thBrown decision as compared with that at the
time of PLesseyv. Fergusolz.
Mr. VAN DEN HAAG: Yes, the BYOW~ decision, and1 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 laws, whatever, the Court
says, was the state of knowledge at that tirne, "modern authority" has
demonstrated that segregation is "inherently unequal" so what the
Court said was in fact, that social scientists who were promineninthe
lower courts in these cases, have demonstrated that even when facilities
are altogether equalthe mere fact of segregation inflicts an injury on at
least one of the segregated groupç, andistherefore inherently unequal.
That has been the court's decision.
[Public hearingof 23 June 19651
The PRESIDENT T:he hearing is resumed. 1cal1 upon Mr. de Villiers
to continue with his witness.
Mr. DE VILLIERS D:r. van denHaag, at the conclusion yesterday we
were referring to the decision of the United States Supreme Court in
Brown v. Bonrd of Edscation and you pointed out that that rested on a
scientific proposition derived from evidence given by social scientiins
the lower court. As you put it here, the proposition was that even when
facilities are altogether equal the mere fact of segregation inflicts an
injury on at leastonofthe segregatedgroups and itisthereforeinherently
unequal.
Mr. VAN DEN HAAG: Yes, Sir.
&Ir.DE VILLIER DSi: that proposition of the infliction of injury, relate
in the particular case to the situation of Negro school-children attending
segregated schools?
Mr. VAN DEN HAAG: Yes, Sir.
Mr. DE v11~1.1~~~Now, 1 should not like togo too deeply into con-
troversial aspects of the situation in the United States for the purposes of
thiscase but 1think it would be useful if you could indicatothe Court
whether that proposition, aswehave now analysed it, is generally accepted WITNESSES AND EXPERTS I55
and acceptable in your branches of social sciences even in its application
in the United States.
Mr. VAN DEN HAAG: NO, Sir, 1 do notthink it iç generallyaccepted
but 1 woulcl like to make a distinction. Professor Edmund Cahn of the
Law School of New York University and 1 were the first two persons to
criticize the scientific evidence presented to the Supreme Court in a brief
amicuscuriae which wâs signed by a number of social scientists; it was
prepared bj7Professor Kenneth Clark of the City CoIlege of New York,
and Professors Isidor Chine and Stuart Cook, both of them colleagues
of mine at New York University. Professor Cahn, also of New York
University, and 1 were the first ones to criticize this. Professor Kenneth
Clark, who was the main author of this appendix to the Brief of Appel-
lants in the SupremeCourt, responded toour criticism in an article which
he published originally in the Villanov aaw Reviewand reprinted inhis
book, which 1have here, Prejudiceand YourChild, in the Second Edition
(which 1set: from your own material you did not use). In this appendix
tohis book he,bynarne, tries tocountermyown criticism. In turn, 1rejoin-
ed in another article in the VillanovLaaw Review xvhich1 have with me.
Since that time, 1957-1960, quite a number of social scientisthave
indicated tliat they agree withmy criticismof the factual presentation.
However, they do not Iike my conclusions and, therefore,1 recaU that
when 1 printed them firsIgot quite a number of letters from friendand
colieagues expressing agreement with what 1 said which, for reasons
that you will see, 1 think is fairly uncontrovertibIe but feeling thatI
should not have published it at the time because they felt that, for other
reasons, the general United States policy of integration should not be
criticized.
hlr. DE VILLIERS:Could we start at the beginning? You referred to
Professor Clark. Did his testimony play an important part in regard to
the Browndecision as far as you could ascertain?
Mr. VAN DEN HAAG:Well, yes ...
The PRESIDENT :Ir.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. nE VILLIER Pe:haps 1 shouldnof frameit thatway, &Ir .resident.
1 wanted Professor Clark's testimony asa proposition which he put before
the court to be identified with a view to cleanng up what the witness
has just said to the Court in regard to criticism offered of that proposition.
That is al1that1 am really ...
The PRESIDENT: Will YOU then please confine yoar question.
Mr. DE VILLIERS:Was Professor Clark a professional expert witness
in the Brown case?
Mr. VAN DEN HAAG: In this sense :(1)the Brown case was consolidated
with a numl~er of other cases, one of them the Brow?z case itself, and jn
all these cases in the Iower courts Professor Clark testified-and 1 will
describe ifyou wish his testimony-and this testimony was, of course,
part of the record and that record was cited by the Supreme Court in
itsBrowla decision.Itrelied, in short, on the records made in the lower
courts of ïvhich Professor Clark's testimony was a prominent part.
Furthermort: (2) in footnoteII of the Supreme Court Decision, Professor
Clark and all theother authorities that he himself haquoted in hisbrief
amiczts curiae, are quoted to support the court's contention that its
decision rests on "modern authority". In other words, Professor ClarkIS 15~ SOUTH WEST AFRICA
undoubtedly the "modern authonty" on which the court rested its
decision.
Mr. DE VILLIERS D:idYOU check on those various authorities to see
rvhat they amounted to?
Mr. VAN DEX HAAG: Yes, 1 did. Let me point out also, if1 may-I
just want to make it clear to the Court that we are dealing with the
factual basis of therown 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 aas utilizedby the Supreme Court to
provide afactual base on which to rest its conclusion." So thcre was no
doubt that it was Professor Clark's evidence in question. Now, if you
want me to indicate what that evidence was, 1 will.
Mr. DE VILLIERS Y:es, the evidence of Professor Clark?
Mr. VAN DEN HAAG: Yes.
Mr.nEVILLIERS :Yeç,please, just briefly what the effect of his evidence
was.
Mr. VAN DEN HAAG: Professor Clark made two senes 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 schooI in
Clarendon County, South Carolina, and he açked these children to
distinguish between dolls that he presented to them, some coloured
brown-dark brown, nearly black-and some coloured white, and,
having ascertained that these children wereable to distinguish colours
and were able to identify the dolls as representing either Negroes or
Whites, he asked the children questionssuch as these: Which is the nicer
doll? PVhich doll would you like to play witli?and, finally, Which doU
is like you? Now, he found that a majority of these Negro children
(9 and later in his teçtimonyIO out of16) did decide that the white do11
was the nicer doll, the do11they would prefer to play with, and, ftnally
that they themselves, although Negro children, were "like" the white
doll.From this, Professor Clark concluded that segregation causes con-
siderable harm because it causes these children to be "confused in their
identities"-thesc arehisvery tvurds-and that theseresultsthat he found
with these 16 children are consistent with previous results which he ob-
tained with over 300 children, and to which 1 shall turn in a moment.
He goes on to Say that this proof that segregation inflictsinjuries
upon the Negro had to corne from a social psychologist,as he himself
was.
Now, the interesting thing is that he undertook prior experiments
which were in facf undertaken about ten years before the court cases
occurred and which were published in a book called Readings i~Social
Psychology and edited by ProfessorsNewcombe and Hartley intwo editionç,
the last one in1952 (pp. 551-560).1 have the photostated chapter mith
me. Now, in tliis experiment, Professor Clark tc:st134 Negro children
in segregated southern schools and compared the results with tests
given to II~ Negro children of the same age group which were 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
do11 compared to the Northern [unsegregated] children". Professor
CIark's table4 which, again, 1have here, indicates as much (p. 556).
Now 1 \vilbe very brief. What this means iç that when Professor
Clark presented evidence on the segregated Negro children in Clarendon WITNESSES AND EXPERTS I57
County he attributed the results, namely that the hiegro children iden-
tified with the white rather than with the bIack 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 is more confused, that is, they prefer the white do11more often
and identify-that is, answer the question "Which do11is iike you?"-
more often by pointing to the white doll.
So if we were to accept the generaI framework of Professor Clark's
experiment we wouId have to conclude not what he concluded, namely
that segregation is harmful 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
thisis really common sense, because when they are together with white
children the possibility of confusion and the wish perhaps to be white will
become moi-e prominent in their niinds than when they are isolated and
segregated. Ho-rever, this conclusion does not seem to have been drawn
by Professor Clark.
1 called attention inthe article1 mentioned (Villanova Law Revie~a,
Auturnn 19/30 t)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
Ihad published my results on thisand my analysis-which again 1will
offer for the record-Professor Clark answered (and I am quoting his
passage in its entirety) :
"On the surface, these findings [which 1 have just discussed]
rnight suggest that northern Negro children suffer more personality
damage [they are not segregated] from racial prejudice and discrirn-
ination than southern Negro children. However, this interpretation
would seem to be not only superficial but incorrect. The apparent
ernotional stability of the southernNegro child may be indicative
only of the fact that through rigid racial segregation and isolation he
has accepted as normal the fact of his inferior social status. Such
an acceptance is not symptomatic of a healthy personality. The
emotional turmoil revealed by some of the northern children may
be interpreted as an attempt on their part to assert some positive
aspects of their selves."(Prejttdicealzd I'ozrrChild, 2nd enlarged
edition (Boston, Bcacon Press),pp. 44 ff.)
1would like to submit to the Court here that in the first place Professor
Clark startsby speaking, in the quotation1 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 turmoil. 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. ilrnat Professor Clark here asserts is,
ifthe outcome of the experiment is that under segregationchildren prefer,
in the majority, the white do11and identjf~~with it, that shows injury.
And then Professor Clark goes on to assert that if they again prefer the
white doIl under no segregation, that also shows injury, or turmoil.
Now 1 think it is a general rule of scientific procedure that an experi-
ment which, regardless of its outcorne, supports the same hypothesis, is
not relemnt at al1 and isobviously constructed in such a way as to be15~ SOUTII. 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 doil shows injury brought about by segregation, and under no
segregation the preference for the white do11al30 shows injury brought
about through no segregation at all.
It foilows then that Professor Clark's experinient contributes nothing
to the issue, and his conclusions, as subrnitted 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 fiese causes injury. 1 cer-
tainly would not wish to deny that, depending on the historical circum-
stances, it rnay cause humiliation, it may be uiipleasant, it may be un-
desired, just as in other cases it may not be so, but 1 must assert that
there is no scientific evidence whatsoever that segregation in the cases
conternpiated by the Supreme Court, and in any other cases that 1 am
aware of, per se causes injury. Please allow me to emphasize #er se be-
cause in the cases decided, in Browtt, it waç stipulated by the tivo parties
that al1 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 rny opinion did not succeed, to
prove.
Bir.DE VILLIERS: Did Professor Clark rely only on these doIl tests?
Mr. VAN DEN HAAG :n his own testimony yeç. In the brief that formed
an appendix to the appellant's brief in the Supreme Court he quoted
about at Ieast a dozen books which corne to the same conclusion, but
none of these books have any scientific evidence for this conclusion.
This is, shailwe 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 first place iis ex-
tremely hard to test whether a child has çuffered an injury to his person-
ality. 1 am, as 1 inentioned before, a psycho-analyst and as such 1 do
not know of any test, in the sense in which this word is used in science.
Secondly, ifyou were to find such an injury, 1 do not think it would be
at al1possible to be able to Say that this injury is due to segregation or
any other such large factor. There are quite a niimber of things that rnay
injure the personality of a child. It may be the behaviour of his mother,
it may possibly be ageneral prejudice existing in the community, it may
be al1kinds af individual factors, and 1would think that such an injury
has not been proved; and if 1were to try to think of a way of proving or
disproving it 1 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 to segregation or to non-segregation. My own feeling is, to make it
very short, that as long as prejudice exists in the community, segregatio?
is probabIy more favourable to the group against which the prejudice 1s
directed than is congregation, for the very simple reason that as long as
prejudice exists a segregated schooI is likely to isolate themfrom that pre]-
udice, whereas a congregated school, when the rnajority or major group
of their CO-studentçhave a çtrong prejudice against them, is, of course,
if not necessarilyharmful, 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 narne is James Hood, the case acquired a WITNESSES AND EXPEIITS I59
certain fame at the time-voIuntarily, feeling and declaring publicly
(1think that it appeared inthe New YorkTimes) that he felt that he had
a foot ''in 110thraces"; that is, he feIt in some way that his attending a
largely White university in a fairly hostile atmosphere, and at the same
time trying to rernain a member of the Negro community, put him into
a so conflict-ridden situation that he withdrem 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: 1 just want, before tve leave this subjet, to corne
back to this question of testing, Did Professor Clark publish material
about other tests, such as colouring dolls?
Mr. VAN DEN HAAG:Yes. There is one do11test, wliich 1have just in-
dicated, where dolls were shown. There is another test in which Professor
Clark gave a piece of paper tothe children, to Negro children in segregated
southern schoois and also again in non-çegregated northern schools, and
asked them to colour a variety of things, 1 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 theirown colour. Now lie found that in the
segregated southern schools 80 per cent. 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 only36 per cent. of the Negro children
in the de-segregated northern schools did so. The rernainder of these
children either coloured the figures with what Professor Clark caUed an
irrelevant colour, such as green, or something like that, or tried to colour
theçe dolls white,by using a white crayon.
Again, he concluded, of course, that the failure of these children to
colour the drawings ïvith 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?
Pir. v.4~ DEN HAAG: To be frank, very little. The reasori for cvhic1i
would think very little of these tests is very simply this, that 1 think
children's choice of colour may be determined by things that have ab-
solutely nothing to do with segregation or desegregation. Childrcn, in
my experierice, 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 aI1, wliite stands for such things as purity, innocence, gaiety,
and soon, and black stands for such things as evil, terror,night, and soon,
so 1would 1:hinkit is fairly natural that children, on the whole, usually
will have a preference for white and that 1 think is a niore reasonable
expIanation of their behaviour than that given by Professor Clark. How-
ever, 1 wish to point out that Professor Clark does not accept the view
1 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.
Rlr.DE VILLIERS: Have other objections been raised to what one might
cal1the CIark experiment?
Mr. VAN DEN WAAG:Of course, tliere are numerous things in them
which 1 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 andthat one need not be a
Negro child to have such confusion, in fact a number of social psycholo-
gists fecl that Our times are characterized by such general confusions.
There are al1 kinds of possible explanatioiis for Professor Clark's
resulis. The one that he selected, the two rather that he selected because
he did select two inconsistent ones, are selected quite arbitra1think,
to servea particular purpose.1 find no other explanation for this.
Mr. ue VII,LIERS N:ow have these criticisms ancl attacks on the reli-
ability of the proposition advanced by ProfessorClark,found their echo
in any later proceedings in the United States on segregation matters?
hlr.VAN DES HAAG :es.1 wrote my own rejoinder to Professor Clark
and my original criticism years ago; about three years ago my articles
and so on were discovered by a number of lawyers and were used In
lower federal court proceedirigs, at some of which 1also testified rnyself.
In two of three cases in which1 testified the case was woii in the sense
that the Brow~tdecision ulasregardeclas inapplicablbecauseofa fattual
vice. However, the Court of Appeals maintained that the Browlzdecrsion
was not necessarily based on the fact but was based on legal considera-
tions and therefore should stand. The matter has becn appealed to the
Supreme Court which has declined, 1 think in two cascs, to hear it again
and in one case the matter is still pending.
Jlr.DE VILLIERS D:Oyou know whether the Siipreme Court itself has
indicated in subsequent decisions whetlier it considered its decision in the
Brown case as resting on the factual proposition, or pureon a view of
thelaw?
hlr.vxx DEN HAAG :o, the decision of the Court not to hear a further
appeal was, as you probably know, without opinion so 1 do not know
what considerations wereinthe Court's mind and one caseisstillpending;
perhaps we will getan opinion in this case.
Mr. ue VII,LIERS :O SOU know of any scientific defencc of Professor
Clark after this matter had been raised in public?
&Ir.VAN DEN HAAG: The only defence that 1 know of is the one I re.
and that sccrns to me a defence possibly of his conclusion, but not of hls
experiment.
Mr. DE VLLLIER S:OW YOU have indicated to us already that, quite
apart from the authority of the Brown case, jrou do not consider that
segregation, or differentiation, must ncccsçarily lead to discrimination
inthe unfavourable sense.
AIr.VAN DES HAAC: Yes, as 1 tried to indicate yesterday,1 think,
depending on the intentionof the user of these devices and on the wishes
of those concerned and on the circumstances, segregation must be re-
garded likea knife, or any other instrument,as neutral; it can be used
for surgery, it can be used for murderitcan be used for beneficial pur-
poses,itcan be used for malevolent ones.
&Ir.DE VILLIERS :nd you do not believe iiitlie proposition of.in-
evitable psychological damage following on separation, or segregation,
or differentiation?
Alr.VAN DEN HAAC:1 certainly believe that this conclusion has in no
way been proved and, on the face of it, 1would say in many cases, though
by no rneans all, desegregatiois probably für more Iiarmful. WITNESSES AND EXPERTS 161
&Ir.DE VILLIERS : OWwe have dealt with the situation with regard to
those propositions in the United States of America. You have read Our
expositions, in our Counter-hlemorial, 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. VA?; DEN HAAG:Yes, sir.
Mr. DE J7~~~~~~D s: you find anything inherently improbable in those
descriptions?
Mr. VAN DEN HAAG:1 have no personal knowledge that wouId permit
me to either coiifirm or disconfirm them, but what these descriptions,
if my recolIection does not deseive me, Say is simply that there are a
number of specific cultures-
The PRESIDENI; Irecognize the Agent for the Applicants.
Dlr. GROSS:Mr. President, I shouId respectfully like to have clarifica-
tion of the intent and purport of the question just asked by counsel; the
specific references to the Counter-Mernorial upon which the question is
based; identificationof tlie groups, and the differences to which the wit-
ness is now being asked to testify-al1 subjzct, lir. Yresident, to the
general reservation regarding relevance.
The PRESIDEKT:1 understand. Mr. de Villiers, perhaps you might put
your question more specifically.
Mr. DE VILLTERS M r. President, inayI indicatemy purpose is not to
ask the witness to give confirmatory evidence of what we said. The witness
does not pose as an expert on the situation in South West Africa and
1 shall not tryto use his testimony in that respect. 1 am merely asking
him whether, as a psychologist and a sociologist, he finds anything in-
herentlv improbable in our description. 1 am not taking it any further
than that. FoLlowingon this 1want to ask him what, under the circum-
stances as we described them and under circu~nstances ofan 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 tpur-
pose of the question.
The PRL:SIDENTP :erhaps you had better ask the question and then
Mr. Gross you can object to the question, it iç not much good objecting
at large.
Mr. DE VILLIERS: hlr. van dcn Haag, particularly in our BookIII (II)
of the Counter-Mernorial, we gave detailed descriptions of the various pop-
ulation groups existing in South West Africa and 1asked vou whether
you had read that.
Mr. VAN DEN HAAG:Yes, sir.
Mr. DE VILLIERSA : nd whether you had read the descriptions we gave
there of differences existing in their leveof development, their modes
of life. their habits, their cultures.
hlr. VAN DEN HAAG: Yes, sir,1 have read these.
Mr. DE VILLIERS1 : 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 PRESIDEKT: 1 recognize the Agent for the Applicants.
Mr. G~oss: Mr. President, I.renew the objection previously made on
the grounds stated, and, more specifically,in the light ofthe question
just asked.1object on the grounds of lack of specificity, since the question
cannot be answered in the form addressed is-ithout reference to the group
or groups attempted to he judged or commented upon by the witness asI62 SOUTH WEST AFRICA
an expert or othem-ise, 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 probability", or inherent anything else,
without at least a foundation laid for the exact subject of enquiry.
There will be a secondary objectioii 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 "inlierently improbable".
Those words, it is rcspectfully submitted, do not convey any intelligible
significance from an expert or other point of view.
&Ir. DE VILLIERS:Mr. President, may 1 point out-
The PRESIDEKT: I do not think it may be argued, Rlr.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
iswhether the witness, as an expert, is entitled to express hiviews uupon
it.In general, he isentitled to express his views. The weight of his views
must be a matter for the Court to determine at some subsequent period.
But I think first the question may be put to the witness and then, if
there isany objection to the form of it that may be taken.
Mr. DE VILLIERS: Then 1 put that question to you, Dr. van den Haag,
whether you find anything inherently improbable in the description as
contained in Book IIIof the Counter-Mernorial?
Afr. VAN DEN HAAG:1 am aware, asany sociologist isthat 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 çtages-
which isa theory 1do not hold-but itiscertainly true that some peoples
have primitive, and others more cornplex, 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
civilization has a high technological development, the Indian civilization
has a very complex philosophical deveIopment but not so complex a
technological one, and so on), so there are major differences along those
lines and though 1 cannot vouch for the correctness of the description
of these differences in South Africa 1 should think that, in general, one
would expect that different tribes, different people, different groups, are
developing indifferent ways.
Mr.DE VILLIERS:Have you also read, in Book VI1 (III) of our Counter-
Memorial, the description given of the aims of, what one might call, the
Bantu education policy?
Mr. VAN DEN HAAG:Yes, sir.
Mr. DE VILLIERS :he aims more particularly of resting that education
on the basis ofa sound respect for one's own culture and developing from
there towards drawing new things into that culture?
Mr. VAN DEN HAAG: hTotonfy have done this but,if you wiIl permit
me, 1 aish to point out that Professor Kenneth Clark, with ahom, as 1
have just rnentioned to the Court, 1 seldom agree, has recently proposed
that in the New York schools, in effect, there l)e introduced a form of
resegregation becanse he has become aivare of the fact that for varioüs
reasons the Negro pupils are unable to perform on the same level, in the WITNESSES AND EXPERTS 163
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 separatt:ly scliooled, at least for the tinie being, so as be able to
catch up, and only then be put in schools together with their White co-
students, because otherwise the teaching wiii go, as he puts it, "over
their head", and they will lose motivation and soon. So that, 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: 1recognize the Agent for the Applicants.
Mr. GROSS :move respectfully that the testimony just given be deleted
or ignored, without a specification and citation by the witness concerning
Professor C,lark'swork to which the witness has referred and purported
to characterize.
The PRESIDENT:YOUwish the citation to be made to the work?
Mr. CROSS :Yes, hlr. President, or else the testimony and the character-
izations just given be stricken or ignored.
The PRESIDENTP : erhaps the witness wilIidentify where the statemcnt
can be fouildi
hlr.VAN DEN HA..IG1 : am 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; 1 wili be able to mail the appropriate articleto Mr. de
Villiers if necessary. Let me point out that this is uncontested, at least
in New York; I had not foreseen that 1 would refer to it,and so 1 did
not bring the documentation with me.
The PRESIDENT:Mr. de Villiers, the information shouidatsorne time,
be placed upon the record.
Mr. DE VILLIERSC : ertainly,Mr. President.
The PRESIDENT:The evidence wiIl rernain on the record; the Court is
quite able to evaiuate evidence. and if thereisno value in the evidence,
then there willbe 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 wiLlbe brought back to
enable the Applicants tocross-examine.
Mr. GKOSS: 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 PRESIDENT: &Ir.Cross, 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 secondIy that you
could not adequately prepare cross-examination. Without commentjng
upon .whether you could, in the circumstances of this morning, hax71?g
read the transcript overnight, cross-examine, the Court wili not have it
appear, because we do not think it to be the fact, that the Applicants are
placed in any position of prejudice, and it isproposed, when the witnesses
conclude this evidence, that you should be asked whether you propose to
cross-examine at dl, 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 claim to be pre-164 SOUTH WEST .4FRIC,4
judiced, then the Court will certainlyprotect the rights of the Applicants.
Mr. G~oss: Thank you, Mr. President.
Mr. DE VILLIERS:Thank you, Mr. President. Now, Dr. van den Haag,
1 should like you, as an expert, to assumethe correctness of the descrip-
tion you have read about the airns and thenature of the Bantu education
policy in the respects1 have indicated to you. There will be other evi-
dence about it-there is evidence on the record--1 am not asking you to
give evidence about the factual correctness of the assumption; but as-
suming the correctness of that proposition about the airns and tlie 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 psychologica~ harm ?
Mr. VAN DEN HAAG: No, sir, not at all-1 would in factthink 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.
&Ir.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 1 have put to
you?
Mr. VAN DEN HAAG: Well, in the United States there is certainlya
nluch better case for desegregation because,as 1 mentioned in rny testi-
mony yesterday, there is no separate cultural source for the Negroes who
are really, generally, participants in American culturIt does not follow
that, even in this case, segregation would be necessarily harmful, but it
does follow that 1 do not see a particular need for it, and certainly no
need for imposing it by law. As 1 mentioned a moment ago, in certain
cases--and I think theyapply to the majority of Xegroes uyhoseparents
are not either professionals or generalmiddle-class-it might be useful,
even there, to separate at least temporarily to permit, 1ssaid, an equal
levelto be estabfished where possible, a similar leveI between Negroes
and Whites; but 1 certainly would think, to corne back to a general
question, that the need for segregation in the IJnited States is far less
than it ~vouldbe in a place where Negroes have a Native culture of their
own.
hlr.DE X'ILLIERS : OW, YOU have been dealing with ethnic groups-
membership in ethnic groups. Theargument against us seems to amount
to this: that rights of individuals are denied when they are treated as.
group members rather than as individuals. The suggestion appears to
be tliat theenipliasisought to faIlon the individual rather than on the
group when regard is had to their weU-being and social progress. What
do you Say to that?
Mr. VAN DES HAAG: 1 certainly would Say that the individual isthe
ultimate constituent of society and of any social group; the very word
"individual", which cornes from individuum-that which cannot bc
divided-indicates as much, but 1would also Say, as Aristotle has already
pointed out, that hurnan beings are, in hiswords, zoopz ~01itiko.i~-that
is, they are social beings; that society consists as muchof 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
1 cannot imagine a single sociologist disagreeirig with me on that-a.
very grave mistake. Human beings become hurnan, as it were, only by WITNESSES AKD EXPERTS 1~5
being members of a group. It is from the primary group, the family, in
the first place that theybecorne socialized or humanized, that they learn
the language, that they learn to CO-operate tvith other human beings,
that they learn to control their evacuation and to doandnot to do certain
things that their impulseswould otherwise lead them to do, and through-
out one's life every human being except those in insane asylums, who
are indeed therefore called, sometimes, "a1ienated"-that is, not capable
of participating in group life-the term for a psychiatrist used to be
"a1ienist"-except for these, we al1remain members of numerous social
groups and, 1 would Say, this is recognized in law. The law indeed does
punish for a violation of law onfy the individual that has violated the
particular legal rule, but it imposes obligations on individuals as group
members, and it treats individuals very often not in their quality as
individuals but in their quality as group members. Let me give you some
illustrations, verysimply: liability is often asa 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 Ras an obligation that they took
upon themselves as individuals, perhaps but the child has no choice-
he has no wiiy 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 sometirnes to their physiological and anatomical particularities-
forinstance, women are in the United States and in many other places, as
women, not alIowed to work certain hours-in short, they are treated by
the law nol: as individuaIs but as members of the group tliat is called
"women". I spoke of biological groups-there are other groups, ethnical-
ly constituted, in which again the law treats people as group members.
Just as 1 left New York, a few days ago, the papers were speaking of a
case where a nurnber of Japanese students wer'ebeing expelled from the
United States for having worked in the United States, in this case as
waiters in a Japanese club; what happenecl is that they are permitted to
corne to the United States as students, but had not been perrnitted to
work. Now this of courseis a specific treatment inflicted on these students
as members of the group that we call "Japanese", and similarly, 1 would
Say, in many other cases individuals are treated as group members; as
an American 1 will be subject to the American draft-that is,to enlist-
ment or recrnitment for military service, which 1 would not be if 1 were
not a member of the group called "Americans". Again, if 1 go abroad 1
am very often not treated as an individual, but treated as a member of
a group called "strange foreigners" in the first place, and then specifically
"Amcricans" ;in some cases 1 willneed a visaon my passport as an Ameri-
can, and in other cases 1 may not. My own Government so treats me in
many other cases-gives me certain rights, privileges and duties which
1 have as an American, as a male, as aperson in acertain age group that
1 would not have were 1 not a member of al1these groups.
So 1 would answer your question in two ways: (1) it is a matter of
sociological fact that we are al1 members of quite a nurnber 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 materialI66 SOUTH ~ S T AFRICA
developments or sometimes to laws, where this group membership is
altogetlier disregarded and becomes difficult to rnaintain, there have
consequences to which 1 alluded already yesterday, which Durkheim
described as "anornie"-that is, the feeling of not belonging for the
individual, and which in modern literature is often referredto as alien-
ation, and this feelingin turnis certainly regarded by most psychoanalysts
as basic to neurotic developments in individuals.
Mr. DE VILLIERS:Can itbe suggested that the tendency to treat
peopIe as group members is diminishing in rnodt:rn times?
Mr. VAN DEN HAAG1 : would not think so. I would say-1 am speaking
of America now, where 1 think developments are parallel-I think in
fact, and somewhat to my own dislike, the tendency is rising. Take for
instance workers in a factory, they may no loiiger decide individually
whether tujoin a unionor not ; the law may treat them as group members
and Say that under certain circumstances, thep are cornpelled to loin
the union merely by working in a particular plant and regardless of
their individual wishes. And 1 have the feeling that the tendency in
modern development is rather to disregard the individual in many cases,
and to treat him al1too exclusively as a group rnember. There are some
technological reasons why that may be advantageous but it would be of
a value judgment to decide whether this justified this legal treatment
or not.
Mr. nE 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 ethnic basis, and respected and
treated by the laws on that basis?
Mr. VAN DEY HAAG: Weil, Mr. de Villiers, 1 certainly would not
pronounce rnyself on should be, but let us say are found on an ethnic
basis; this is a matteroffact. Thisis the very basis of group formation.
It is not the only basiç, and we do sornetimes have group formation
which disregards ethnic matters, or is even contrary to them, but most
of the time, and in most cases,1would think that ethnic group belonging
is the basis for most other group belongingsat least in the United States
and I suppose elsewhere too.
Mr. DE VILLIERS: Could YOU give the Court an indication of thetype
of consequences one could expect when differentethnic groups are
brought into unregulated contact with one another?
Rlr.VAN DEN HAAG: Yes, in a very general scnse, 1 would Say that
the effects of this, unless the conisccarefully regulated, tend to bthe
production of the phenomenon that 1spoke of as anornie. Now, another
word, which describes about the same, is social disorganisation, andthis
can be measured by a number of phenomena. Now, the first one who
triedto 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. 1 have, and 1 would
like to quote here another atternptedmeasurement, which strikes me as
very pertinent;itis based on the rate of deiinquency. Professor Bernard
Lander in abook called Towardsan Understanding ofJuvelzile Delifiquency
and published by the Columbia University Press in New York, measured
delinquency rates in the city of Baltimore andhe compared the rates as
they occurred in 1903-that is60 years ago-and as they occurred again
in 1940 and 1950. The results,1would like to very briefly quoteIn 1903
he found that- WITNESSES AND EXPERTS 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-referringfirst to the Negro delinquency
rates. he fi~ids-
"The Negro delinquency rate increases from 8 per cent. in areas
in which the Negro population is less than IOper cent. of the total
population, to 14 per cent. in tracts with a Negro population of
betwern 30 and 40.9 per cent. Wowever, as the Negro population
increases beyond 50 per cent. the Negro delinquency rate decreases
to7 per cent.in areas with go per cent. Negro population.A similar
patteni characterises the white group. As the Negro proportion
increases to 50 per cent., the delinquency rate increases. As the
percentage of Negroes increases beyond50 per cent.,the delinquency
rate decreases, thus when other factors [such as incorne level,
edücational level, residential accommodations, and so on, when al1
other factors] are heid constant, delinquency rates in Baltimore are
highest inareas with maximum racial heterogeneity."
To briefly paraphrase what 1think is reasonably clear from the quota-
tion, what Professor Lander has found, and it is generally confirmed, is
that where there is a great degree of unregulnted culture contact, there
rates of delinquency increase. Where the population is culturally and
ethnicaiiy reasonabIy homogerieous, wliether it be black persons or white,
al1other things being equal, the delinquency rate decreases: that is, the
delinquency rate, al1 other things being equal, is rifunction of ethnic
heterogeneity. Of course the explanation for this is very simAsegroups
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 fuIly comprehend, but lvhich in some way weaken their own. The
result isa higher delinquency rate.
Mr. DE VILLIERS:Just to get it clear on the record. 1s this quotation,
which you read to the Court, from Professor Lander's work itself, or is it
a passage taken over in another work?
Rlr.VAN DEN HAAG : 1used my own book Passioliand SocialConstraint
in which 1 quote Professor Lander.
Mr. DE VILLIERS:Will SOU give that reference please for the record?
bfr.VAN DEN HAAGI:t is on page 183of Passion and SocialConslraint,
of which I am the author.
RlrDE VILLIERS:Kow, are there authorities to which you would like
to refer on the effect of race mixture, thatis, shalllsay, where races
or ethnic groupç are brought into unregulated contact with one an-
other?
Mr. VAN DEN HAAG: Yes, quite a number. I would like to indicate
first the way grovps are formed and what the changed contact may mean
specifically. Letme quote in this respect, Professor Glaister A.Elmer
of Michigan State College, Sociology and Social Rcseavch, Volume 39,
No. 2, 1954 ,ages 103-109. Professor Elmer and 1 quote:
"The real identifications of individual rncmbers are anchored in
the gruup. A sense of loydiltand soiidarity is generatedin them
as a natural process which manifests itself in actual behaviour.
As individuals become members of a group, the social process of
integrationis taking place. Besides the individual members of the SOUTH WEST AFRICA
group, the integration bindç the social values and goals, the psychic
characteristics and the in-group symbols with which the individual
mernbers become identified.The socia dentification tvhichevolves
thus constitutes the basis of group solidarity, from which results
observable, measurable behaviour.
Social identification is the overt and covert manifestation of a
'we' feeling. There must be a persona1 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 irnyljes not an individual v~aciion toward a gro@, but his
reaction as a functiolaing elemerztof the groufiThis irnplies a con-
sciousness of kind, a oneness, a lack of social distance." (P. 105.)
That was Professor Glaister Elmer.
Now 1 would like to refer to this more specifically as it applies to
heterogeneous populations by quoting Profeçsor George A. Lundberg,
who is aprofessor of sociology and a former president of the Arnerican
Sociological Association.
The PRESIDEET: Mr. de VilIiers, interrupting you, the witness is
quoting otherexperts. 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 initiaily a certain
proposition and he is quoting other experts insupport of the proposition,
but 1 shall bring him back to that question.
Mr. VAN DEN HAAG1 : certainlyam wifling to assertthat those experts
1 am now quoting do utter opinions which 1 endorse.
Mr. DE VILLIERS :hank you.
Mr. VAN DEN HAAG1 : would like, on the same subject to quate Profes-
sor Lundberg from an essay of his called "Some Neglected Aspects ofthe
Minorities Problem" which appeared in the magazine Modern Age,
Sumrner, 1958(p. 286) :
"In every society, men react selectiveJyto their felIow 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
arethe basis for seIective association are of indefinitely laree variety,
of al1 degrees of visibility and subtlety, and vastly drfferent 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
al1 the items have this in common: [first] they are observable,
[second] they aresignificantdifferences to those whoreact selectively
to people with the charactenstics in question. [They are perceived
as significant differences whatever their objectivesignificance may
be.3Itis, therefore, wholly absurd to try to ignore, deiiy 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, frorn a different paper in
which he tried to test this theory of selective association by asking high-
school students what their preierences were, and observing their pref-
erences inassociation in work, in dating, in social intercourse and so on,
under a variety of circumstances. This article by Professor Lundberg. WITNESSES AND EXPERTS 169
appeared in TheAmrican SocioEogica Eeview, Volume XVII, in February
1952,and it is entitled "Selective Association Arnong Ethnic Groups in
a High-School Population". In this, Professor Lundberg states-I am
just quoting a few passages, the article is too long to read 34):
"Every ethnic group showed a preference for its olvn members ...
a certain arnount of ethnocentrism [that is, concentration on one's
own ethnic group and preference perhaps] is a normal and necessary
ingredient of al1group Iife, that is, it is the basic characteristic that
differe~itiates one group from anotherand this is fundamental to a
social structure."
Mr. DE VILLIERS :OUhave indicated that you agree with the views
there expressed.
Mr. VAN DEN HAAG: Yes.
Mr. nE VILLIERS:Could you indicate to us how early this conscious-
ness of kincl would start in the hurnan life?
Mr. VAN DEN HAAG: 1 have made no personal studies on this but I
would Liketo 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, May 1950 ,nd entitlcd "Racial Attitudes in Children".
The childreninquestion there are of the agbetween 7and 13, altogether
475 Negro children and 48 White children. Allow nie to just quote the
conclusion of the study (p.170) :
"The White children in al1 situations andat all ages (seven to
thirteeii), cxpressed strong preference for their own racial group.
This is particularly the case when the choices between Kegro and
if7hite children as friends, areannabstract or wish level [this was
done through a picture test] . . . The inter-racial choice, is lirnited
stnctly to the classroom and doenot carry over tothe community in
which the proportions of Negro and White populations are the same
as in school. The White children express unfavourable attitudes
towards Negroes by assigning the undesirable behaviour character-
istics tii the pliotographofNegro children; this applies again to
ail age levels."
Now there is another paper which 1 would like to quote here by
Mary Ellen Goodman of Radcliffe College and which appeared in the
American Anthropologist.It is entitled "Evidence Concerninthe Genesis
c.f Inter-RacialAttitudes" and it appears in the October-Deceinber,
1946, issue of the Americnn Anthropologist. The Goodman study con-
cludes-and I will only read the conclusio(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-
corningaware of racedifferencesand of their implications."
This conclusion is finally supported by one more stndy 1 would like
to quote :this one is by Catherine Landseth and Barbara Child Johnson,
both of the University of California and entitled "Young Children's
Responses to a Picture and Inset Test, designed to Reveal Reactions to
Persons of UifferentSkin Colour". This appeared in the magazine Child
Development, Volume XXIV, March 1953.Again, I willquote rnerely the
conclusion. It is. 78):I7O SOUTH WEST AFRICA
"Patterns of response to perçons of different skin colour are
present as earIy as three years and become accentuated during the
succeeding two years."
So if1 may now conclude from the views of these experts, and while
I repeat, in this particularfield,I do not regard myself at Ieastas an
empirical worker, it seems that consciousness of kind, particularlp as
regards skin colour, starts about the third year, about three years,
that is, the fourth year, and continues and increases.1would like to add
a note here ;no present evidence thaI know 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 lias so far, been able to
devise a method that would permit us to make this distinction.
Mr. DE VILLIERSD : r. vanden Haag, you have indicated the tendency
to recognize ethnic differences and distinctions, a tendency towards
separation, living apart, but those tendencies are universal. You have
given exarnples 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. VAN DEN WAAG:1 think the tendency is universal and 1 would
like to givesome examples from Brazil. 1 have a specialreason forthat-
Brazil is one society where there has been traditionally no legal racial
distinction, and it is also a society where, it is well known, aariety of
racial strains have not only lived together, but mixed quite freely. 1
should like now to quote from an article by Professor Emilio Willems,
called "Racial Attitude in Brazil", nrhich appeared in the Awericcan
Jourha1 ofSociology in March 1949. The pages from ivhich 1 am quoting
are 403-404 a,d 406. Professor Wiilems 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. 18 advertisers
did not accept Negro servants because of presurned 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, 1 quote froin another passage in the same article, page 404 of
Profcssor Willems. He said that his interviewees felt strongly that they
did not wish totake as equals negroes; he interviewed negroes of midde-
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 dances negroes are not desired, and
there are few whites who dare to introduce negro friends or relatives
into such places".
This occurred in Brazil.
May 1 quote one more instance (p.406):
"Another questionnaire was connected with the exclusion of
coloured perçons from certain barbers' shops, restaurants, hotels,
and theatres. In 20 cities such exclusion was admitted, while in IO WITNESSES AND EXPERTS I7I
it was denied.[In one case protests were made by a coloured Arrny
city, and] the barber himself implored [the customer and] the crowd
riot 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, tliat 1do not myself subscribe to any of
these stereotypes or adverse attitudes felt against Negroes; 1ani a sociolo-
gist, on tht: other hand, a student of the presence or absence of such
attitudes, and1 find it interesting to note in this case that these attitudes
existin Brazil, which in the United Statesis usually popularly upheld as
a mode1of an inter-racial society where such phenomena as areinfamous
in the United Stateç do not exist.
I would like to support this point further by quoting from an articIe
by Roger Bastide, which appeared in the Amerzcan SociologicalRev,iew
in December 1957 P.rofessor Bastide writes as folIows, on pag691:
"Stereotypes against negroes and mulattoes are widespread. 75%
ofthe sarnple accept 23or more stereotypes against negroes. No one
rejectsal1 stereot ypes against negroes. For mulattoes, the overall
pictureis somewhat more favourable though very çimilar. Mulattoes
are judged inferior or superior to whiton,the same traits as negroes
but with somewhat lower percentages. The most widely accepted
stereotypes are Iack of hygiene (accepted by g~% for negroes),
physical unattractiveness (87%). superstition (Sax), Iack of finan-
cial foresigh(77%), lack of morality (76%), aggressiveness(73%),
laziness(72%) lack of persistence at work(62%), sexual perversity
(51%) .nd exhibitionism (50%)."
1 wish to emphasize once more that these are stereotypes, according
to these scholars widespread in the percentages quoted in a sarnple of
white Brazilians, held against people classified by these white Erazilians
aç Negroes or mulattoes within Rcazil.
Mr. DE VILLIERS: Kshall 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
exarnples of the same thing, Say, outside of the western hemisphere.
Mr. VAN DEN HAAG:WeIl, my notions of geography are a little vague.
Let me refer to some instancesin Russia. The Russian Governnient has
purported, at le& for a very long tirne, to bebitterly oppoçed to al1
such racial and ethnic 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
thaq that prevailing in Russia, and would necessarilÿ disappear there.
Nonetheless, 1 wish to point out that American Jewiçh leaders havecon-
tended over the years, and are contending now, that there is widespread
anti-Semitisrn 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 1 would like to put it into the record. The article 1
have in mint1is writtenby MihajIo Mihajlov, a Yugoslav who has recently
indeed had some difficulties with the Yugoslav Government by publishing
his travel diary in the SoviUnion. Tliis gentleman is himsela declared172 SOUTH WEST AFRICA
socialist, a Rfarxist, and he is also not a Jew, and he deçcribes at con-
siderable length instances of anti-Sernitism, officia1and unofficial, that
he found in Russia (The New Leader, 7 June 1965,p. 7).
1 also would like to cal1 your attention, hlr.President, to the facts
that have been quite recently discussed in the w-orldpress that in Russia
there certainly was no Negro problem because there were no Negroes, to
speak of, butas a number of students from a variety ofthe 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 thisis directed. It seems to be a
little far afield, does it not?
Mr. DE VILLIERS : ellMr. President, perhaps the rneasure of deta...
As 1 have indicated, 1am asking the witness next, after describing these
phenornena as he observes them in various parts of the world, what
lessons are to be learned from them with a view to determining upon
governrnental policies in particular types of sitiiations.
The PRESIDENTI:t does not involve, does it, going into the detail
which is being gone into?
Mr. DE VILLIERS :es. Dr. van den Haag, it is perhaps not necessary
to go into ali the detaii but is there anythingthat you wish to add in
general to that point?
Mr. VAN DEN HAAG:The only point 1 can make very briefly is, that as
you introduce a new group, ethnically different, you will, everywhere in
the world, find the creation of ethnic prejudice, attempt at ethnic
separation, unless this introductioniç precedett and continuously asso-
ciated with a very careful gavernrnental regiilation that permits the
introduction to be gradua1 and to allow for acceptanceby each group of
the &en groupç.
Mr. DE VILLIERS: NOW, how do you explain the universality of this
phenornenon, this tendency of different ethnic groups towant to associate
with themselves, to be separate from others?
Mr. VAN DEN HAAG:Well, you are asking me a theoretical question.
1 think 1 will give atheoretical answer, and, if 1 may, 1 would like to
start by quoting an article by Professor Gustav Pchheiser entitled
"Socio-Psychological and Cultural Factors in Race Relations", which
appeared in the Amevican Jozlrnal ofSociology, March 1949.
The PRESIDEN :Mr. de Villiers, aga1nmust ask, in respect of evidence
such as this, does the witness indicate (he says thastheoretical matter)
that although he is expressing the vieurs of somebody else, does he con-
cur in those views, because that must be established. Othenvise, 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?
&Ir.VAN DEN HAAG:I fuUy agree with Professor Ichheiser'ç vjew.
1 am quoting from page 395 of the article tha1 mentioned:
"People who, in a significant way, look different to one another
have a tendency to consider one another asnot only looking different
but aIso as being different, and they have this tendency because our
socio-sensoryperception of the physical appearance of other people WITNESSES AND EXPERTS 173
is essentially syrnbolic in character. The externd personality is
irnmediately perceived as a manifestation of the inner personality
which it actually or supposedly reveals and represents."
hIay 1 emphasize that neither Professor Ichheiser nor 1feel that one's
physical appearance necessarily discloses one's personality. But what
Professor Ichheiser and 1both assert is that the impression one has from
the physical appearaiice of someone else tends in most cases to lead to a
judgment, however untrue it may be, aboutthe personality of the person
one has encountered.
1 would like to quote further from Professor Ichheiser, at page 396-
the same article :
"Since members of different racial groups, like White people and
Negroes, look significantly different, they have a very strong ten-
dency i:o consider each otller 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 stroiig, tendency whether they are explicitly
aware of itor not, whether they honestly admit it, or hypocriticaiiy
deny it, whether they would be able to define what this beingdifferent
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 prirnary form
of conversation. Between White people and Xegroes the initial and
basic partof this conversation is concluded before they startto talk
with one another. In spite of lllarvian theories we are unconsciously
more deeply identified with those who talk as we talk, behave as
we behüve, 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 iiot, 'we','you' and 'they' mean certain-
ly one thing to the White person and another thing to the Negro.
To put it another way, Our bodily appearance, our external persona-
lity, constitutes obviously an 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. Consetluently,
in terms of social psychological reality, people who look different
are different. 1 think we should realisticaiiy admit this fact and
discontinue to deceivc ourselves and one another. Nobody, in fact,
is seriously able to believc that White people and Negroes belong to
the same social group, because our eyes teII us that this is not true,
and the eyes are Our sense of reality. In everyday life we beiieve
what wt: see. Thus, the real segregation is not inspace, 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."
1 want to 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 NegroesI74 SOUTH WEST AFRICA
are not inferior, this is still easier than to convince them that they
are not different."
Mr. DE VILLIERS:DOyou understand the author to suggest that they
are in factnot difierent?
Mr. VAN DEN HAAG: NO, I do not think that that is what the author i.
suggesting. He is suggesting that in the sense of social psychological
reality they are perceived as different. 1 do not think that he deals with
whether such differences do objectively exist. As a sociologisthe 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,hough 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 1 also hold.
Mr. DE VILLIERS:But in referring to the social perceptions of differ-
ences he refers to the fact that those do not iiecessarily correspond to
what the true position is: is that how yon see it?
hlr.VAN DEN HAAG:1 think that is implied, yes.
Mr. DE VILLIERS : hat 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. VAN DEN HAAG: 1 really think that 1 have very little to add to
what 1 have already said before. There are circumstances when this can
be çuccessfuily accomplished, when it is carefully regulated, when there
is a lot of groundwork laid, when it is done slowly, when it proceedsby
mutual acceptance. 1 think the attempt to do soby coercion iç not likely
to be successful, and if it were so to speakegaIIy objectively successful
it would lead to very unfavourable psychological consequences for the
individual group members. As 1 rnentioned, it would lead to such things
as anonzie, 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-andso on.
Mr. DE VILLIERS:Have you again a quotation from Dr. Ichheiser that
you wanted to refer to on this subject?
hfr.VAN DEN HAAG: We11,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. 1 think that I mentioned before
thatin many cases thisis Iegaily not possible or materially not possible,
but, for instance, itispossible, legally, for a Kegro in the United States
to try to assimilate and to regard himself as a member of the white
group. Now if his skin colour iavery 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 theyare known amongst sociologistsas attempts at "passing".
Profeçsor Ichheiser, and1am 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
colIective 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 differentpathological distortions of the Negro
personality." WITSESSES AND EXPERTS '75
My olvn comment on this is, generally speaking, that if one's external
identificationdocs not correspond with one's interna1 identification
there is of course a strong conflict which may lead topathological phe-
nomena.
Mr. DE VILLIERS:DO 1 understand you to mean-you can correct
me if 1 am wrong-that even where it may be legally possible, even
wherc it niay be materially possible, then stiU psychologically and
sociologically it is extremely difficult for a member to quit his group?
&Ir.VAN X)EX HAAG :'ou are entirely nght, yes.
Rlr.DE ~'[LLIERSN : OIVYOU were dealing with traditions, with notions,
with inclinations: are they not al1created by hurnan beings and is there
not an argument which runs to the effect thawhen you can teach certain
inclinations they can again be untaught?
The PRESIUENT> : Irde Villiers,1 do not think you ought to lead the
witness. That was a leading question.
Rlr.DE V~r~rne~s :o, Mr. President, 1 am putting a proposition to
liim which 1do not agree with. 1 am asking him for hiç comment on the
proposition.
The PRESIUENT:Well you could put it another way, 1 should have
thought.
BIr.DE VILLIERS:The argument is sometirnes 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. Wlat do you Say about
that proposition in the context of Our discussion?
&Ir.VAN DEN WAAG:There are two points which perhaps 1 would
make. First let me distinguish-when you Say "taught", if you mean
forma1 teaching, such as we have in a school, 1 wouId certainly think
that what has been taught in a school can iiiasense be untaught; but if
you mean tiy "taught" something tliat is indeed 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 1 do not think is correct. Language, for instance, is
Iearnt inforriiaIly, you are not born with it, yet any attempt deliberately
to change pi:ople1slanguage habits has beeii, although individuaily quite
often successful, collectively unsucccssful. Grammarians, for instance.
for many ycars have been trying to impose a particular linguistic iise
in many Ianguages on people at large and they have succeeded with
some of their pupilç but they have not succeeded in influencing the
development of language as a whole. Indeed, 1would Say that the general
idea that what human beings have created they can also uncreate un-
fortunately is not altogethertrue.
If you look at such phenomena as ular, for instance, which as far as1
know no one likes and is certainly a type of human action, nonetheless,
we have not: found a way so far of preventing it, andas we are talking
several wars are going on in the world.So1 would Say that the fact that
it is a learned type of behaviour, and 1would agree if you speak of racial
matters that itisa learned type of behaviour,atleast we have no evidence
that it isnnate, but from thisfactit does not followaltogether that it can
be unlearncd, so 1 woutd myself believe that it could be modified.
Let me add another point. \fien the behaviour, fiovever anived ai,
is functionally necessary, so that it serves within the group a certain
socialor ps~~chologica]function, then 1 think it is pretty muchand veqr
nearly impossible to make people unIearn it. mien, on the other hand, it176 SOUTH WEST AFRICA
is behaviour that could be replaced by a different kind of behaviour that
wauld serve the same function, or would permit the group to continue
to function,then 1 think the chances of unlearning that behaviour and
replacing it with a different kind are better.
Mr. DE VILLIEKS :ould you give an evample of cases where you think
it may be functionally necessary?
Mr. VAN DEN HAAG: Well, 1 think group identification as we have
now discussed it several times is functionally necessary, and 1 do not
think that it is possible, as Yrofessor Ichheiser has also stated, to inake
people believe that there are no differences between different cthnic
groups. The particular prejudices that people have built up about
particular ethnic groups possibly can be unlearned or at least be modified
not, in my opinion, probably by forma1 leaming but by a variety of
social agencies. AIthough the feeling anthe prejudice that a particular
group isinferior or incapable and so on, can possibly be unlearnt and
it will take quitea while, the feeling of differentiation,rny opinion,
cannot, because that is functionally in the nature of human groups.
>Ir.DE VILLIERS:Could you then give an indication to the Court of
what you think the role of education could bein the shaping of human
relationships, especially across the lines of etgroup formation?
Mr. v.4~ DEN HAAG: Let me point out that very great hopes were
held for education by most authorities until about IO or 15 years ago,
when a number of çtudjes were made, of which 1 will quote one, which
indicated that education in the forma1 sense has been quite ineffective,
even in removing the more gross stereotypes and prejudices. 1 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 1susually
a rationalization,that is a formulation in cognitive form ofwhat is ln
effect a pre-existing feeling or emotion; and that we are unlikely to
achieve anything by giving cognitive information. What we have to
attack is probably the feeling or the ernotion 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 1 am afraid1 am not altogether
able to give aprescription and no one else so far has.
But let me first quote from Charles Stember, Professor of Sociology
at Rutgers University, tliat is the State UniversiofNew Jersey, from
abook ofhis called Education and Attitude Cha.nge,which was published
by the Institute of Wuman Relations in New York in 1961.I quote from
page 168:
"Most research suggested that the educated were less prejudiced,
but the present study finds that onmany issues the edticated 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 stereotypes, they favour informa1 dis-
crimination in somc areas of behaviour, reject intimate contacts
with rninority group members."
1 am now quoting from page 171:
"As we go up the educational ladder old images ofminorities are
replaced by new ones, often no less harmful. Covert discrimination U'ITKESSES AND EXPERTS x77
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,
reachiiig most strongly those aspects of prejudice which are least
entrenched in the normative system."
And the conclusion, more or less, on page 180:
"IVhen the issues are sensitive or controversial, the effect of
education is eitherminimal or inverse."
Finally, on the same page:
"The effects areusually 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, 1 would like to tell the Court to what exterit 1 endorse the
passages 1 quote. 1 certainly do endorse Professor Stember in general;
1 am not quite as pessimistic myself as he is;1 think his study reflects
correctly what he did find; sirnilar studies have been made andhave had
the same rc:sult, but1 think that ifwe were to try to proceed with dif-
ferent methods of education, and possibly different educational agencies,
Our chances of reducing prejudice might be better.
Mr. DE VILLIERS:TOwhat estent could you Say that these views that
have juçt been stated about education are generally held orothersvise?
Mr. VAN DEN HAAG: Well, they are now quite generally accepted
among sociologists, but this is a fairly rccent development. Ten or 15
years ago the opposite view was held.
Rlr. DE VILLIERS : OW,cou1d YOU explain why-as you have indicated
to the Court-prejudice is so hard to eliminate either by education, or
by de-segregation, or by both, when they Xe taken by themselves?
Mr. VAN DEP; H.L~G:1 would say we know very little reallp about the
basis of prejudice, but 1 would like to make a distinction. Some 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, 1
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. 1 donot
believe that this has much to do with segregation or de-scgregation,
in the sense that de-segregation would rernove the prejudice.
Let me iridicate why. It waç onlyfcw hundred years ago that literally
hundreds of thousands of elderly women were burncd in western Europe,
particularly in Gerrnany,as witches. These women lived in the villages,
in which their neighbours insisted that they had seen them riding on
broomsticks and doing al1 kinds of things that, according to what we
know today, they could not possibly have done; yet thereis good reason
to believe that these neighbours were ingood faith; they did not lack
contact with these women, they were not segregated from them. What
happencd js 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 foilow.
The chui-ch in many of these cases tried to avoid such witch burning
and so on, but gave in to popular pressures.
The PRESIDENT h lr. de Villiers, 1 really think we are going a bit far178 SOUTH WEST AFRICA
away frorn the issues of this case, with witch-burning and so forth.
Mr. VAN DEN HAAG : eil, that much could, of course (the case took
place in Gerrnany) indicate that prejudice may arise despite reasonably
intimate contacts. 1want to make it very short; just let me add that we
kiiow very little about how a preference, ana negative preference, may
arise; we do know that generally people prefer people that they think
are of their own kind, that theyerceive 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 rnuch has1think, been fairlygenerally established.
When people feel fairly secure in their identification as group rnembers,
when they do not feel that the identity ofthe group is threatened, then
their prejudice is lower; hence, when. there is physical or social distance.
Mr. DE VILLIERS:Are there circurnstances in the United States in
which it has been possible to observe whether aeparation may or may
not have positive consequences-consequences to the goocl?
The PIIESIUENT M:r.de Villiers, the question as you have put it would
seem to be not admissible. Whether there are circumstances existing in
the United States which lead to thiç or thatcan only be relevant if the
certain circumstances of which the witness is aware lcad him to some
conclusion in relation to this case. We are not concerned about circurn-
stances as such in the United Statesof America.
Mr. DE VILLIERS :Thank you, Mr. President. That Iintendcd to imply
in the question, but1 agree, IcouId word it more specifically.
Are you aware of circumstances intlie Unitecl States which could, in
a sense relevant to our discussion, have some bearing on the question
whether separation couid lead togood conçequences or not?
Mr. VAN DEN HAAG: There are a number of communities which are
practicaliyal1 Negro cornrnunities and in which there is a fairdegreeof
isolation.Of course, in the United States isolation is never complete. 1
have not studied these communitieç personally, but 1have looked at the
literature and 1would like to offer the concl~sions of two writionthis,
the firstby Professor Mozelle Hill cded "A Comparative Study of Race
Attitudes in the All-Negro Community in Oklahoma" ; this appeared in
the magazine Phylo~~in the third quarter of1946, and 1 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 thern, and thus more favourable in his expressions
towardç his race. It appears safe to conclude that the dl-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 stuof an all-Negro
community in Oklahoma.
Mr. DE VILLIERS:And what is your view about this?
Mr. VAN DEN HAAG:It seerns, on theoretical grounds, extremely
likeiy that Professor Hill is right, but 1have said, 1 have not made a
study directly ofsuch a community. As 1 have inentioned before, Ifeel
that isolation is imany cases favourable toidentificatioof each group,
so 1 would tend theoretically to feel the co~iclusionis likely, 1uhave WITNESSES AND EXPERTS I79
not studied the group. Let me add one more quotation by Professor
Allison Davies, from hiç article "Racial Status and Personality DeveIop-
ment", which appeared in the SGientificMonthly in October 1943; 1 am
quoting from page 358 :
"Where the social group of the racially subordinate individual
is highly organized and integrated, asithe 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 staturnay beexpected to have a marked
effect upon his personality if his race is subordinated in community
relationships [he means informa1 relationships here], if his gro1s
ashamed of its culture and seeking the culture of the dominant group,
and if it has no integrated societyfits 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 citieç revealed that their racial statushad a
somewhat minor influence upon their persona1ities"-
and this is, he indicates, because-
"during both the first and second decadeç of life these chiIdren
were more deeply concerned with, and emotionaliy infiuenced by,
their family, their play groups, their school and Church, than by
their consciousness of their subordination to whites. This fact 1
attribute to the relative lack of direct contact with the white world
at that age."
These two authors seem to maintain, as 1 understand them, that as
far as the perçonality development of Negroes is concemed, it benefits
when there is a rather high degree of isolation from Whites, at leastin
their early years.
Mr. DE VILLIERS N:OW,considering these various 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.
1 do not know to what extent we have been able to profit from them.
If Iunderstand you correctly, you asked about my own conclusions?
hlr. DE VILLIERS: Your own conclusions, yeç, and particularly in
regard to governmental policies in particular situations, or you might
differentiatt: between those.
Mr. VAN DEN HAAG: Well, 1 would put it this way. The greater the
culturaI differentiation, the more both groups have a culture of their
own, the less 4 would urge any immediate and sudden homogenization,
the more 1 would want the two groups to remain relatively isolated from
each other iind, if necessary,1 would go so far as to propose that this
isolation be undertaken by legal measures for, if it is no1,would say
that the technologically lesç advanced group would be simply overrun
by the mort.:advanced group. For instance, American Indians were not,
at first, legallyoIated from the non-Indian Whites and the major effect 180 SOUTH WEST AFRICA
of that was that they were immediatelp corrupted withalcohoi 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 asa social
group, and almost asa race. TliiI,think, should be avoided byal1means
and 1 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,1 do not think that is too relevant,
perhaps 1 should not go on to it.
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:\Vhen it does, 1 think the amount or intensity of
prejudice tends to rise. That is aIhave to Say on that.
Mr. DE VILLIERS:And would you Say the contrary istrue?
Mr. VAN DEN HAAC: Yes. The more secure-and this incidentally
applies to individuals as well. We have quite elaborate studies of that by
a number of authors such as Marie Iahoda, and others-the major book,
which 1 would not uncritically endorse, but which certainly in part is
correct,The Aztthorita~ianPersonality,with regard to individuals found
the more the individualeeIshis statusasa group member, and within the
gtoup, threatened, the higher his degree of prejiidice, a1dwould think
thatholds for the group as a whole too.
Rh. DE VILLIERS: Now 1 should 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?
Mr. VAN DEN HAAG: Well 1 can make this rather simple. Most of my
colleagues,1think, 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 1 have attempted to cal1
socioIogica1fashion, which 50 years ago insistedthat differences existed
that have since been found not to exist and which now insists thatdif-
ferences do not exist which 1 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 concernedd the facts tha1 have today
presented to this Court, know of not a single one thatI would think is
seriously contested bymy colleagues.
Mr. DE VILLIERS:Could I ask you specifically, on a question of what
constitutes a human pup-
Mr. VAN DEN HAAC; YOUdo not u7ant me to repeat what I-
Mr. DE VILLIERS: NO,no, I wanted to ask you what the general state
of-
Mr. VAN DEN HAAG:1 think the views 1 have expressed, express
pretty much a consensus of sociologists. There are always variationsof
emphasis, and so on, but 1think, on the whole, that would be generally
'accepted.
Mr. DE VILLIERS:On the phenomenon of identification?
MT. VAN DEN HAAG: think the same istrue.
Mr. DE VILLIER OSn:reactions of group members to members of other
groups visibly different? WITNESSES AND EXPERTS 181
Mr. VAN DEN HAAG:1 think my conclusions are generally accepted.
1 think there may be dissent on what should be done about it.
Mr. DE VILLIERS : n the question of the value of group rnembership
to the individual?
Mr.VAN DEN HAAG :hat is generally accepted.
2ilrDE VILLIERS:And the difficuIty of quitting his group?.
Mr.VAN DEN HAAGT :hat also is generally accepted.
Mr. nE VILLIERS:The question of the psychological factors that may
be experienced on anattempt being made to quit a group and to becorne
assimilatecl in a different group?
Mr. VAN DEN HAAG: Rather few people have worked on this, but 1
know of nci dissenting opinion.
Mr. DE VILLIERSO : n the question of the reaction of groups to situa-
tions of threat, or what they perceive to aethreat?
Mr. VAN DEN HAAG: This is now generdy accepted both by socioio-
gists and psycho-analysts.
Mr. DE VILLIERS:On the effect of education, in the way you have
described?
Mr. VAN DEK HAAG: Yes, by now this is generally accepted.Such
people as Professor Lazarsfeldt of Columbia, and so on, who used to
hold a diffttrent view, no Ionger do.
Mr. DE VILLIERSA : nd, finally, on the positive values that could be
attached iri particular circumstances to separation or segregation?
Mr. VAN DEN HAAG: Well that isa more controversial question, and
1 think rather few (in fact 1 cannot recall anyone) have written this.
1 think ont: reason that, at least American, sociologists are unwilling to
write on this presently is precisely that they do not want to come 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, as1put it, quite unfashionableIhave quoted, just a moment
ago, two (incidentally Negro) sociologists-ProfessoHill and Professor
Davis-who favoured isolation, but1should note that (1gave the dates,
1 believe) Professor Hill's article dates fr1946 and Professor Alison
Davis's from 1943.1 think that today a sociologist who makes the same
investigation and came to the same result, 1 think would be reluctant
to pubi'rshit.
Mr. DE VILLIIIRS Y:es. What 1 am asking you isabout your views,
which you have expounded, as to the positive values that may attach to
differentiationor 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. VAN DEN HAAG: They are not in conflict, certainly. LUS Say
few people in academic circIes would be quite willing to go out and sub-
scribe to thern at this point for various reasons that1 think are les
scientific tlian they are ideological or politic1lknow of no contrary
evidence and 1 know of no scientific people stating that the contrary
would be more favourable.
Mr. PRESIDENT: 1call 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, uritil our arrivat the Court this morning. Thereha beey no
opportunity during the course of the morning to read the transcript;
nor,of course, has there been an opportunity to survey the transcriof182 SOUTH WEST AFRICA
today's session. The Applicants do wish to cross-examine the witness;
the course of the cross-examination would c1ea.y take longer than the
remaining moments of this session. The Applicants would, under the
circurnstances, respectfully request the opportunity ;O receive the re-
maining verbatim record, to read the one received this morning, and to
have an opportunity to cross-examine the witness atan appropriatetime,
as determined by the honourable President.
The PRESIDENTT : hat will be permitted 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 recailed 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 willhave to be arrangedbetween the Parties
since they will know better than the Court when they are likely to con-
cluMr.tDEirVILLIERS:Thank you, Mr. President. May I just raise this
factor, that we have a difficulty as to when Professor vanden 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 PRESIDENTI: do not think there would be any objection to that,
would there, Mr. Gross?
Mr. GROSSN :O,sir.
The PRESIDENTI :n those circurnstances, the PartieswiU arrange be-
tween themselves at what particular point of time, once the hearing of
evidence has been resumed, the witness will be availabletogive evidence
again.
Before the Court adjourns, the Court would Liketo indicate to the
Parties, in relation to the questions put yesterday, thatishoped they
will reply tothem as succinctly and asbriefly as they finditpossible. 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 wili
now responil.
I cal1upon the Agent for the Applicantç.
Rfr.G~oss: Mr. President and Members of the honourable Court, the
Applicants respectfully respond as foliows to the questions propounded
by the honourable Court on 22 June 1965 (VIII, pp. Go-63), and such
responses are formulated in the light of the introductory assumption
stated in the questions as propounded.
With respect to question r, 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 questionI: although the AppIicants have urged
upon the Court a series of legal propositions by which the Court,in the
AppIicants' view, may soundly adjudge the dispute relating to Article 2,
paragaph 2,of the Mandate, the Applicants do not contend that the
Court is bound to adjudicate the said dispute solelyon the basis on which
the Parties have presented their respective cases in regard thereto.
Likewise the Applicants conceive that il is not open to the Parties to
contend, nor do they contend, that the Court is bound to adjudicate the
said dispute solely on the basis of the interpretations the Parties re-
spectively have sought to give to Article2, paragraph 2,of the Mandate.
In the light of the assumption stated in the introduction to the first
question propounded by the honourable Court, the Applicants, while
respectfully reaffirming their view of the most juçt, convenient and
sound route for the Court to foilow with regard both to the basis upon
which the Applicants' case has been preçented 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, .
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 honourabk Court by the Mandate for South West
Africa, pursuant to which the Court is 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 duty
to adjudicate the dispute between the Parties on the basis of the Court's
own conclusions concerning the proper interpretation of the Mandate,
and the Court'sown ap~reciation of the considerations of law, log^ and
justice upon which the Court's judgment is based.184 SOUTH WEST AFRICA
With respect to question 2, for the reasons adumbrated in the sum-
mary response just made to question Xo. I, the Applicants likewise
perceive no basis in the traditional jurisprudence of the Court, nor in the
jurisprudence of the Mandate itself, fora 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 rnay be in dispute from time to time, having regard
to al1relevant legal considerations, and to adjudge between the Parties
accordingly. Asthe 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 rnay, as indeed is
the case here, and not inappropriately, necessarily comprise mutualiy
inconsistent alternative contentions. That itmuçt be open to the Court
to place its own interpretation upon the article relevant in this context,
in the light of ailconsiderations 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
hand, appear before this honourable Court not forany narrow advantage
of their own, but solely to protect their interest as loyal members of the
organized international commlrnity in the vindication and protection
of the sacred trust. Respondent, on the other hand, stands before the
Court, not as a private litigant but as a mandatoty, whose rights in the
Territory are rnere tools eritrusted to the Respondent for the soie pur-
pose ofdischarging 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 fixand determine the rights of the
inhabitants,nor for the Respondent to limit or define its own obligations,
althougli both rnay suggest, as both have respectfully and earnestly done
and continue to do before this honourable Court, the considcrations 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 alternatib vet,to respond in the negative
to question 2 as well.
With respect to question 3,it is respectfully subrnitted that the con-
siderations just adduced in respect of the response to questions I and z
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 subrnission. More particularly, with reference to question 3,
although conceived by the Applicants to be relevant likewise to their
responses to questions I and z, the Applicants contend that the relevant
facts, circumstanceç and conditions are cornprised by the combination
of several elements, aii present in the written and oral pleadings: first,
laws and regulations, and officia1methods and ineasures of implcmenta-
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 especiaily the idea of a sacred trust laid upon the organized
international community for the benefit of the inhabitants of the Terri- REPLIES TO QUESTIOSS PUT BY THE COURT 185
tory; fourthly, the mandates system, including especially the CO-ordina-
tion of administrative and judicial functions 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 otving 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 decicle the dispute before it in accordance
with the Court's annlysis of ailrelevant legal considerations, whether or
not such considerations coincide 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 il'est Africa is a breach of the obligations contained in Article2,
paragraph 2, of the Mandate and of Article 22 of the Covenant of the
League of Nations.
Boththe Applicants and Respondent have advanced certain considera-
tions in stipport of their construction of the obligation embodied in
Article 2, paragraph n. Such considerations, however, do not form an
element of the dispute fier se ancl hence do not restrict the discretion of
the Court in any way in adjudging upon the dispute thus forrnulated in
the submissions in accordance with the Court's conception of the rele-
vant legal and factual considerations. Itis, 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 officia1 methods and measures, by which the policy is
implenientcd, the existence of which is conceded in this record.
Itis the Applicants' view that this corpus of fact thus defined and thus
formulated, largely derived from the Respondent's own pleadings, is a
sufficiently convincing body of fact and lam and policy to justify and
require a finding of violation of Article z; that itis, as has repeatedly
been said to the Court, a policy and practice which inherentIy 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 made of contention, however, iç extrinsic to the dispute. Thu
the Court rnight 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 Nanclate. 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.Applicantsl respectful view.
The clearest statement of the position, perhaps, is to be found in the
Fvee Zones'case, in which the Court observed as follow~:
"From a general point of view 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 determined
beforehand by the Parties, none of which may correspond to the
opinion at which it may arise. Unless otlierwise 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,
iiot only to accept one or the other of the two propositions, but also
to reject them both." (P.C.I.J., Series AIB, 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 Chorz6wFactwy case the Court applied this generai approach
to the submissions as follows:
"The Court does not consider itself as bound çimply to reply yes
or no to the propositions formulated in the submissions of the
German Application. It adopts this attitude because, for the pur-
pose of the interpretation of a judgment, it cannot be bound by
formulae chosen by the parties concerned, but must be able to take
an unhampered decision." (P.C.I.J., Series A, No. 13, pp. 15-16.)
And at its judgment in the case of the Ap$licalion of theConvention of
1902 governingtheCilardianskipofInfants, the Court declared:
"The final Submissions of the Government of the Netherlands
before asking the Court to adjudge and declare that Sweden, in
taking and maintaining the mesure complained of, is in breach of
its obligations under the 1902Convention, ask it to 'declare'certain
propositions relating to the effect of protective upbringing and to
ordre fiublic. These propositions are, in reality, the essential con-
siderations which, in the vie~ of the Government of the Nethedands,
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
Government 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 (I.C.J. Refiorts1951, 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 isunder
no obligation to examine aU the considerations advanced by the
Parties if other considerations appear to it to be sufficient for its
purpose." (I.C.J. Reports1958, p. 62.)
It appears clear, accordingly, that the Court has not hesitated to ignore
any element in the submissions which does more than define and for-
mulate the issue in dispute between the Parties. In particular the Court
wiil decide the dispute on grounds it regards as relevant and authorita-
the, whether or not such grounds are to be found in the pleadings, and
the Court, likewise, may reject either Party's tlieory 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 arnendment of the sub~nis-
sions, in 1962,in the Preliminary Objectionsphase 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 lep1 nature of the
mandate iiistrument itself. Reference to this is made merely to point
out that it is not only the traditional jurisprudence of the Court, but
the very history of these proceedings thernselves, of the cases at 13ar,
which demonstrate in this dramatic way the distinctions perceived by
the Parties herein betwcen the theory, or contention, or argument,
upon whicli their case is based in support of their submissions and the
issue in dispute, as formulated in the submissions thernselveç.
In conduding rny remarks, hlr. President: the basis upon which the
Applicants have presented their case proceedç 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 estreme
forms of officia1discrimination in mhich 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 officia1non-discrimina-
tion, esemplified in numerous basic agreements and constituent statutes
to which both Parties adhere (1cite for exarnple, ArticleI, paragraph 3.
of the United Nations Charter itself-the very statement of purposes
and principIes, of the 0rganization)-that application of a universally
accepted standard of officia1non-discrimination to the policy and prac-
tice of apartheid inthe territory of South West Africa has been reflected
in the consistent,explicit and overwhelming judgment of the competent
supervisor>. organs, as well as the officia1condemnation of governments
espressed both severally and through collective judgrnents.
The Applicants, thirdIy, have urged upon the Court that authoritative
weight should be given by the Court in the interpretation of Article2
obligations to the judgments thus espressed. The violation, in the Ap-
plicants' view, is so clear as to constitute,ipsofacto, a violation of the .
Mandate and it may justly be observed that, although from time to time
during the course of these proceedings the Respondent has had recourse
to statemeiits 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 cornplain of is a so-cailed "narrowing" of issues
and their voluminous pleadings in thiscase have clearlY been addressed
to the broadest possible construction of the Applicants theory.
The Applicants, moreover, have contended that the condemnation of
officia1discrimination is so firmly and universally enunciated as to be
regarded as a rule of international law uithin 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 anafortioria 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 respectfully re-
quested toaccord 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
tenns of the Mandate, as the organ vested with the function of serving
as the finalbulwark of protection of the rights of the inhabitantsof 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 function to interpret the Mandate on
the basis of whatever facts,circumstances and conditions the Court rnay
regard as relevant to a proper interpretation of the Mandate. In this
connection, Mr. President, the Applicants reaffirrn 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 PRESIDENT1: call upon the Agent for the Respondent.
Dr. VERLOREN VAN THEMAAT h:TrPresident, 1 respectfuIIy request
that Rlr. de Villierbe aliowed to address the Court.
The PRESIDEKT1: call upon Mr, de Villiers.
hlr.DE VII~LIERS : r.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
come about as regularly as the rain frorn 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 willingto follow the various attitudes, the
various changes, the various different forms of attack proferred against
us. LVehave only on occasion asked for sufficient time to adapt ourseives
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 object 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 iiot
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 itnow means that they start near the end of the proceedings with
something which should have come 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 lvhich we now have to
pick up at a Iate 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.=go SOUTH WEST AFRICA
Ihave, with reference to the exposition given by my learned friend,
Mr. Gross, noticed that in regard to question r he spoke of the Court's
right to arrive at itsown 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.1 have no difficultywith 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 z, paragraph 2, of the Mandate. Again, Mr. President, 1 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 iç to 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 siibmissions 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 andjor standards, and he told the Court
that if that could not succeed, then his Submissions 3 and 4 must fail.
In otherwords,Rlr. President, he left noscope whatsoever forthe possibiIity
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 determine for itself the factual nature of the
policiesin South West Africa, and if the Courtwere tu pronounce a value
judgrnent upon those policies, either as to their purpose or as to their
effect,then the Court would be departing from what is traditionally its
function.
He went so far. Yet now, Mr. President, he suggests to the Court that
ifhis 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 relevarit 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
arnended submissions, or by way of being incorporated by reference in
those submissions. That is the point which 1 want to emphasize and to
which 1 shall return after some reference to relevant authorities.
First, asI have said, 1 shouId Iike to remove what may appear to be
a misunderstanding emerging from the wording of sorne 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 andlor 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 z (2)could not be shown to have been breached by it
unless,in respect to the exercise of its authorityunder Article z of REPI.IES TO QUEÇTIOSS PUT RY THE COURT Igl
the Mandate, it was shown that it had acted in bad faith, or for a
purpose other than to give effect to Articl2 (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 secs a reference of the same kincl in question I
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, 1 want to make it perfectly clear that the Respondent
haç 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
Articlez, paragraph 2,of the Mandate-is as is broadly dcscribed in the
introductory portion of this question.
But that does not mean, Air. President, that we are now, on the basis
of that conception of the legal situation, presentinacase on fact to the
Court.
May 1 use an example from ordinary municipal Iegal 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 hasled to certain
damage for the plaintiff party, and that damages are now being claimed.
There is no allegation that the rnisrepresentation was a deliberate one,
but there is an allegation that it was a negligent one. Now, party 3's
response to that is that in law there is no case for claiming damages
against it-letus 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 clairn fordamages against him would
have been if party A had ailcged, and could have proved, deliberate
misrepresentatioii, intentional misrepresentation,on his part.
That, Mr. President, would rnerely be part of the legal demonstration
of saying what case could have been made against him, but tliat 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 sriy 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 meet
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 rnisrepresentation isa sufhcient basis for this claim for dama-
ges.
The çame applies here, >Ir. President, with the greatest respect. We
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 law, 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 cleintheir amended
subrnissions 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, blised upon any subjective motivation on Our part.
We indicrited, also, that thermay be an alternative possible basis ofIg2 SOUTH WEST AFRICA
formulating much the same kind of test as is applied to see whether there
ha5 been an abuse of power, and that this is to formulate thetest whether
the actions of the Mandatory have been so unreasonable that no reason-
able authority could have decided upon such actions. We posed that aç 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 thecontrary, 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 blandatory.
So,Mr. President, under those circumstances we have intimated to the
Court, and 1 submit correctly, with respect, that we do not propose to
lead evidence in order toshow to the Court that the Rlandatory has in
fact been bona fide in deciding upon these policies, because there is no
allegation to the contrary. As 1 understand the Applicants' case, they
accept the bona fides ofthe hIandatory; they at Ieast make no allegation
to the contrary. They make no allegation to the effect that the hlandatory
has been so unreasonable that no reasonable authority could have decided
upon a similar poiicy. That again is a case which we are not called upon to
meet; 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.
1 thought 1 ought to 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 very apt descrip-
tion of this situation law by a Dutch writer, P. J. de ICanter.Iappears
in a legal thesis published in Leiden in 1928 i:alled"Rechtsgronden en
rechfsmirldelen"("Legal Grounds and Legal Reinedies"), ai pages 57-58.
We read our own translation:
"The attitude of the plaintiff we see as an absolutc onc; by in-
stituting action he intimates that in his opinion this particular
claim is valid as agajnst al1defences ...
In contrast with this absolute charactcr of the attitude of the
plaintiff stands the completely different character of the attitude of
the defendant. AU defences amount to the defendant saying: 'this
claim you cannot enforce against me', urhether he stresses in this
regard 'this claim', 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 claim, or the same clairn instituted hy a third party, is valid
as against him; his only concern is that this particular clnim, which
has been instituted against him, bc disrnissed."
That, I subrnit, Jlr. President, statevery clearly and very correctly,
in my submission, a basic principle applicable throughout al1systems of
procedure of which I am aware, to situations of this kind. i.e., to the
respective roles of a plaintiff and a defendant, or an applicant and a
responden t.
Sow, question 1 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 COUKT
193
that it is not open to the Court to place its own interpretation upon the
Article having regard to al1 relevant Iegal 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 oflaw. 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 che dispute of fact which has been presented to the Court.
May 1again present an esample tothe Court. Supposea 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 comes to a bottIeneck part of this channel and gets
stuck there for some reason or othcr-it goes out of order and causes a
blockage in the traffic through the channel, and consequent damage to
State 3, the one in control of the channel. State B then institutes an
action. It a1legesthe simple fact that the ship went into the channel and
at a particularpoint itwent out of order-not alleging any misconduct,
negligence, or wilful misconduct on the part of the rnaster or crew of the
ship-simply stating that fact and saying, because of that fact, becauof
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 StateA
to make good the damage.
Now, Mr. President, on that basis State A is brought into court, and
State A says: 1 admit those facts, 1admit that the ship went out of order
at that particuIar place; 1 have no reason to doubt what you say about
the darnage that was caused, but my construction of that treaty, and the
one which 1 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 interpretationsof the treaty upon which
the parties come to court. It would then be perfectly open to the court
to Say, 1 do not agree with eitherinterpretation;1 do not agree with the
interpretation of absolute liability, nor do1 agree, on the other hand,
that there ~nustnecessarily be wilful misconduct ;1 find that on a proper
construction of this treaty negligence on the part of the master and the
crew rnay he suficient to visitState 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 mecin this, that inasmuch as there has bcen no ailegation of
negligence in this case, and inasniuch as there has consequently been no
canvassing of the question of the existence or othermise of negligence,
this clairn mustfail.On the basis ofstatements of factwhich are directed
purely towards setting out the position that in fact this situation occur-
red, but thcre 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 rnay join in putting those facts to the court, surely the court cannot
then Say: on the basis of the facts which 1have before me, it seems to me
that there must have been negligence on the part of the rnaster or the
crew of the ship. Surely that wouId be contrary to al1considerations of
natural justice, for the simple reason, Mr. President, that such an allega- =94 SOUTH WEST AFRICA
tion is not made; it has not been introduced intothe case as being part of
the dispute.
That is the basic consideration, in my subrnission, to be borne in
mind with regard to the answer to question 3, which is put, as 1 under-
stand it, not only with reference to questions of law, but aIso with refer-
ence to questions of fact.
I shall revert to that. 1 should firstLiketo review certain authorities
which emphasize the distinction which 1 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 cle;ir that the issues in any
'case are definedby the pleadings, the pleadings l~eing,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 1 understand,
to procedures adopted on the continent of Europe. In any case, the under-
lying principles would appear to be the same, and 1 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 thc parties, as circumscribing the evidence to be adduced by
each party, and as Iimiting the Court in the finding that couid be made
by it. In regard to American law, this is very well expressed in the
following extract fromCorpusJuris Secundum, Volume LXXI, pages 17-18 :
"Pleadings are çtatements 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 reaI matter indispute; the means
provided by the law to enable the court to ascertain the claims of
the respective parties to a justiciable controversy.
The purpose of pleadings isto present, define and narrow the
issues, and to form the foundation of, and to limit, the proof to be
submitted on the triai. 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 rnay declare the iaw and
that the adverse party rnay 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, Precedemtsof PEeading, XTth Edition, page I, as
follows:
"The principal objects 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 bnef surnmary of the case of
each party, which isreadily available for reference and from which
the nature of the claim and defence may be easily apprehended."
The important things which appear, hlr. President, are firstly to
define the issues of fact and questions of law to be decided betweenr the
parties,and, secondly, to give fair notice of the case which has to be met
so that the opposing party rnay direct his evidence to the issue disclosed
by them. RISPLIES TO QUESTIONS PUT BY THE COURT I95
It follows from this basic situation, Mr. President, that the Court
would not, save in very exceptional circurnstances to which 1shall 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 au.thoritative judgment of the House of Lords in England, in
Esso Petroleum Company Limited v.Southport Corfioration, reported in
1956, Appeal Cases, page 218. Icould give the relevant facts tothe 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 toa foreshore
where it occasioned damage. The owners of the foreshore brought against
the shipowilers an action which was based on various grounds of which
the only important one, for present purposes, was negligence. The plain-
tiffs alleged. that thMaster of the ship was negligent in respect of his
navigation and management of the ship, and that he was consequently
liable in dainages. 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 negligerice of theMaster. Itwas only in that vicarious sense that the
owners were sought to be held liable. There was no allegation of actual
negligence iigainst 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 appea.1,in the course of the argument, the question arose whether it
would be pi-oper 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, ofcourse, 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 aliegation of this kind of
negligence onthe part of the owners. The court and the House of Lords
unanirnously held that such a finding would be improper, that is, a
finding on the basis of evidence that there had been thia other form of
negligence on the part of the owners, and the opinions of the various
Lords who gave their opinions in the case are very instructive. 1 read
first an ext.ract 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 tfiere was some navigational error or that the ship \tas un-
seaworthy, the case would no doubt have been developed on u7holly
differerit lines. Had any such case been made, the arnbit of discovery
would have been enlarged and the theory that .. .the Inverpool
[that was the vessel concerned] may have broken her stern 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 is19~ SOUTH WEST AFRICA
idle to speculate what would have happenerl if such a case had been
made.
In the present case, every allegation of negligence has been
answered by the finding of the judge, and there was no allegation
of unseaworthiness. That being so, I do not think that ... the owners
of theInverpool, can be held resyonsible because they didnot 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:
"1 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 rnight have shifted in con-
sequence of other allegations and evidence. Confining myseIf to the
actual allegations of negligence and to the evidence in the case, 1
find the conclusion inevitable that, since the Master has been
acquitted of the faults alIeged against hirn, the owners must aIso
be acquitted .. . To condemn a party on a ground of ïvhich 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 Henryton, at pages
240-241. 1 quote again:
". ..may weil be thatthe 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 rnaster .. .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 his judgment in favour
of the present appellants."
And then finally, Mr. President, Lord Radcliffe said, at page 241:
". .. think that this case ought to be decided in accordance with
the pleadings. Ifit is, 1 am of opinion . .. that the respondents
failed to establish any claim to relief that was valid in law. Ifit is
not, we might do better justice to the respondents-1 cannot tell,
since the evidence is incomplete-but 1 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 yaragraph 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 define the issues and to indicate to the party urho
asks for them how much of the range of bis possible evjdence will
be relevant and hou. 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 trialsystem." REPLIES TO QUESTIOKS PUT BY THE COURT Ig7
And only this further brief portion from the same opinion of Lord
Radcliffe, at page 243 :
"1 find it impossible to read the statement of claim and the partic-
ulars without coming to the cIear conclusion that, while the re-
sponde~its were announcing it to be one of their heads of complaint
that the master had brought his ship intothe channel with defective
control of steering, they were not putting it fonvard 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 caIled evidence in chief, expert evidence, in
support of their heads of claim. In their turn the appellants called
their evidence upon these heads. The trial judge, after weighing the
evidence, came to the conclusion that the respondents had not made
good their case on any of the particulars. There, he thought, the
case ended, and 1 am of the same opinion. 1think it was quite wrong
that the respondents should, nevertheless, be entitled to Say that
the appelIants must lose because they did not cover at the trial
a range of evidence . . . which the respondents by theirown pleading
had excluded from the trial."
Mr. President, 1have 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 1 shall try to demonstrate
later. When analysing the actual situationin this case. It is not that this
is an isolated exarnple of this type of judgment given by a court in the
legal systems of which 1 am aware. Such judgments abound, but this is
a particular1.y pointed one, since it deals with facts easily grasped and
with a situation which serves as an eminent illustration of the difficulty
with 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 cIosed their case-as it eventually tumed out, on the facts
as well ason 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 to us-and they even put it in those words, they gave notice
to us through the Court-that we were not called upon to meet aIlega-
tions of that kind in evidence. We contend that they cannot when it
suits them, for reasons which must be evident to everybody, now, at this
belated stage, come and say that in spite of that, it is open to the Court
to embark upon a factual investigation of an undefined content. Xobody
knows, andthe Applicants do not Say, and they do not indicate what the
arnbit of ii~,or possibly could be, but still they Say thatthe Respondcnt
rnust-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
come with evidence covering a wider ambit than that which they so
emphatically indicated to us at that particular stage.
Mr. President, the extracts from the case show, in our submission, the
extreme importance of fmiting the Court's finding to the claim actually
presented. Il: involvesa principle which, as the Court will know, applies
also in the jurisprudence of this Courtand in the procedure of this Court.
The reason for that is essentialiy a practical one; isthat a party cannot19~ SOUTH WEST AFRICB
meet a case which is not made against it. Ifa court were to decide on iç-
sues which are not raised-not fairIy and explicitly and clearIy raised-
in the pleadings, the result would nomally be that a party urould 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 ofnatural justice which underlie al1procedural 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 faIl away. Icould give the Court an example which occurred
in South Africa. i quote from the Judgment of an eminent South African
Chief Justice, Sir James Rose innes, inWijnberg Municipality v. Dreyer,
1919 , ppellate Division, atpage 443 :
"Over this wide area the controversy ranged, the parties con-
fining 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 waç not done; but the defen-
dant cannot now claim ta confine the issue within limits which it as-
sisted to enlarge; nor can it complain that the learned Judge in
his summing up dealt with the case on the basis which both parties
had adopted."
1 can give the Court a similar quotation from a later decision by
Judge of Appeal, afterwardsichief Justice, Centlivres in Collen v.Riet-
fonteiltEngineering Works, rg48 (1) Sozkth 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 relied on by the defendant in his
pleadings, and the position should have been regularised by an ap-
propriate amendment. But in this case.. . [tjhis Court ..has before
it al1the 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 real
issue which emerged during the course of the trial."
hlr. President, at the same time, there are on record numerous decisions
in which the most stringent warnings of great i:aution 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 tu canvass the situation. UnIesç the Court can be
satisfied that the matter is as fully canvassed as itwould 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 for20 minutes.
Mr. DE VILLIERS:Mr. President, 1 wish to ask: would it be possible
for the Court to allowus a sljghtly longer adjout-nment, Sayhalf-an-hour?
1 should ïrery much iike to discuss çome of theaspects of what mjrlearned
friend has said with my colleagues before I resume the address.
The PRESIDEN :Certainly.
Mr. DE VILLIERS : r. President, on the question of the caution to be REPLIES TO QUESTIOSS PUT BY THE COURT =99
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, 1should like to refer the Court to one decision, just
as an example-that is again by Sir James Rose Innes but at the time when
he was an ordinary Judge of Appeal in South Africa in 1910. In that he
refers toa judgrnent by Lord Watson (in the Privy Council, I think-it
may also have been the House of Lords) ;the referenceisColev. Government
ofthe UnionofSouthAfrica, ~groAppellateDivision, at pages 272 andz73-
1 comrnenct: at page 272 This was a case, 1may 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 tirne on appeal, and it was in thai 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 brouglit to its notice was
not taken at an earlier stageis 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 isbound to deal with
it."
May 1 intei~upt for a moment-those two qualifications are very im-
portant: "If the point is covered by the pleadingsU-even this point of
law now raised for the first time must be within the ambit of the plead-
ings; ifitis covered by the pleadings, "and if its considcration on appeal
involves no unfairness to the party against whom it is directed". 1shall
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 procluced had the point
been raised at the outset. In the presence of these conditions a
refusa1 by a Court of Appeal to give effect toa point of law fatal to
one or other of the contentions of the parties would amount to the
confirmation by it ofa.decision clearly wrong."
1 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 if 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. Uecause it would be
manifestlp unfair to the other litigant to do so.The iule has been
thus stated by Lord Watson (ConnecticutFire Insurame Co. v.
Ir'crvanagh ,.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 com-
petent, but expedient, in the interestç of justice, to entertain the
plea. Tlieespediency of adopting that course may be doubted when
the plea 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 advaiitageous position than the Court below.200 SOUTH WEST 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 fuj investigated, \vould have sup-
ported the new plea'."
Mr. President, consequently we submit the true ratio underlying these
rules is that a tribunal iç, as a matter of fairness, not entitled to come 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 same 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 cnlled upon to meet. The matter was put in this way by
S. A. de Smith, Judicial Revim of Administrative Action, 1959 ,t page
IO2 :
"That noman is to be judged unheard was a precept known to the
Greeks, inscribed in ancient timesupon images in places wherejustice
was administered, proclairned in Seneca's Medea, enshrined in the
scriptures,mentioned by St. Augustine, embodied in Germanic 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 ofEden."
The rule is, of course, commonly known, hlr.President, as the aerdi
alleram fiartem rule, and itisapplied, as 1 have said, aiso to proceedings
before administrative tribunals with quasi-judicial functions. Itgoes 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 forma1 evidence
on the point, the requirernent has been stated repeatedly that where the
members of such a tribunal intend to take account of a rnatter of fact
which has come to their knowledge and to apply it adversely to the iii-
terests ofa party appearing before it, then that ought tobeput tothe party
so that the party may be able to put a different cornplesion upon it, or
to meet it, or to controvert it ifhe can by evidence.
In a case in Great Britnin, Board of Edzkcatiolz v. Rice, 1911 Appeal
Cases 179, nt page 182, Lord Loreburn said the following:
"Cornparatively recent statutes have extended, if they bave not
originatcd, the practice of imposing upon departments or officers
of Statc the duty of deciding or determining questions of various
kinds ... In such cases ... they must act in good faith and fairly
listen toboth sides, for that is a duty lying upon every one who de-
cides anything. But 1 do not think they are bound to treat such a
cpestion as though it were a trial .. .[Ornitting certain lines.] They
can obtain information in any way they think best, always giving
a fair opportunity to those who are parties inthe controversy for
correcting or cantradicting any relevant statement prejudiciai to
their view." REPLIES TO QUESTIONS PUT RY THE COURT 201
In our own practice in South Africa this principle ha been applied
repeatedly.A very well-known case is that ofLoxlon v. KenhardfLipum
LicensiB noard, 1942 ,ppellate 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 personal
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.
hlr. Yresident,1have given tliis review with reference to the Anglo-
American system of procedure with which 1 am more acquainted than
the Continei~tal, but as far as we have been able to study the Continental
system the same underlying principles would appear to apply. 1 am not
going to atternpt to give to the Court an exhaustive revlew of Continental
authority. Sornetimes the authority is difficult tfind, for the simple
reason that the considerations are so self-evident that they are very
seldom expressed. We have found a very good expression of these con-
siderations in relation to the Code of the Netherlandç, 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 rnay not have been advanced by the parties." And in
respect of this section, we find the following comment in van Rossem-
Cleveringa's Net Nederlandsch welboek van htrgerlijke rechtsvordering,
3rd Edition, pages 93-94. They çtate:
"In civil cases the judgeis passive; in reaching his decision his
restricted to the facts urhich have bcen alleged by the parties, as
also to the relief claimed by the parties by renson 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 fncts is sound in law ...
[1omit 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-
cient 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 his opinion is tlie onIy relief justified by
the alleged facts, ifsuch relief has not been clairned by the par-
ties."
So those are the limitations, Mr. President-1 am pausing there for a
moment-iniposed by this principle of passivity, as it is called, of the
court in civilcases. In regard to the allegcd facts, setsa 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 tvhich is dealt with in this very section
of the Dutcli Code:
"But curia jus ~zovit[the Court knows the law] it would be in
conflict with the conditions oa sound lcgalsystem if the passivity
of the judge should be stretched to such limits that he is also re-
stricted to the groundsadvanced 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 aii the grounds which the parties did not-or did not202 SOUTH WST AFRIC.4
fully-advance for the purpose of showing thatthe action instituted
or the defence thereto isgood in law."
A very clear exposition, Mr. President, in rny 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 between 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, alsa to the question of the per-
mission given, or the right given, to a court to cal1witnesses of its own,
or to cal1in expert evidence of its own in civil cases, where he emphasizes
that even in such cases it can only be done within the limits of the factual
dispute, of the facrual allegations made by the one party and contested
by the other. The Court cannot cal1such 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-1 wish to give the Court only this reference to
Delorf v. Rongier-a case decided on 18 March 1955 and reported in
Recueil Dalloz 33, 1956, at page 517. There it was stated that the judges
hearing a case "can neither modify the object nor the cause of the claim
and must decide within the limits fixed by the 'conclusions' of the
parties". And the case referred to that principle as the principle ofnon
ultra petita,not extending beyond what iç asked for, what is clairned.
Turning then to the practice in international 1awand in international
tribunals, Mr. President, 1 wish to give only a few briefreferences to
commentators and tothe 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 ScritdidiDiritto Inierfiazionaleinonoue di
Tomaso Perassi, Volume 1,at page 175 (1give our translation) :
"The conclusions [in the plural] presented by a litigant before a
court are, conforming to the current rneaning, the deductions he
draws from the legal facts and 'motifs' advanced by hirn;".
Motifs, again the French word, to which we had regard before, "... the
deductions he draws from the legal facts and rnotifs 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 1
pause there fora moment, Mr. President?
By legal facts and the motifs, as 1understand the learned author, he
means those facts which have legal significanci: for the purposes of the
dispute between the parties. The motifs, they are the justificationthe
facts providing justificatioor a Causa forthe relief claimed. So that is
the function, then, of the subrnissions, that they are to set out those Iegal
facts, those facts regarded as a justification, as a prerequisite anas a
causa for the relief which is claimed. That is to be indicatein the con-
clusions or the submiçsions.
1 wish to ernphasize also the word "deductions" which theparty draws
from those legal facts and motifs. It is quite evident that the party is
not required to set out in the submissionsalithe 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 mnst then surely be identified clearly in the submissions in order
that one might know what their ambit is. REPLIES TO QUESTIOKS PUT BY THE COURT 203
Another ailthor,J. C.Wittenberg, L'Organisation judiciaire,lafirocédure
etlasentenceinternationales, Paris,1937 ,t 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 ultrapetita
has been recognized in international law in the jurisprudence of this
Court, for instance, in the Asylum (Interpretation) case, 1950, at page
402. There tlie Court stated ". .. that it is the duty of the Court not onIy
toreply 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 wergaps in the
Court's Judgment. The Court's answer was that there were no gaps;
that those points referred to in this so-caliedrequest 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 Cor/uChannel case, and drew the same dis-
tinctionin that regard between questions of fact, as1see it, and questions
of law. 1 quote from page 51 of the record,I.C.J. Repovts1949:
"United Kingdom Counçel 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 fietitemof the
Parties beyond which the Court has no jiirisdiction, but of an inter-
pretation, ora conception of a rule of interpretation ora conception
of a mle of international law. Here the Court is nat limited by the
views of the Parties, as was recognized by the Permanent Court of
International Justice in the case ofthe Free Zones."
And then followed the passage which was read to the Court this morning
by my learned friend.
So here,Mi..President, a clear distinction is drawn between the case of
fietitum,the case of thlimittothe factual casepresented to the Court and,
on the other hand, questions of interpretation, conceptions of a rule of
interpretation or a rule of internationallaw. The Free Zones case itself,
to which my learned friend referred, provides an interesting example or
an illustratio~i of the manner in which this passage was applied, th& pas-
sage which is an ofte11quoted one commencing with the words "From a
general point of view".
In truth, the Court was not there suggesting that it was aiming ai a
possible interpretation not contcnded for by one of the parties at aU.
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-
saiües "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". 1might Say that the quotation is from a special agree-
ment which was submitted to the Court in that case bv the varties and a
question arosi: as to the interpretation of the special agreemintThe rep-
resentative of France contended that those were the exhaustive ~ossi~li-
ties on which the Court could find; the Court could only find eiiher 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, strenuouslycontcsted 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 riecessarily tothat abroga-
tion.
That was Switzerland's attitude: it had been its attitude throughout
the dispute that came to the Court, as appears from the Jndgment.
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:
"Frorn 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 constructionsdetermined 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 ivhich 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 alzd the District of Gex,
Jztdgment, 1932. P.C.I.J., SeriesAJB, No. 46, p. 138.)
So the Court merely mentioned that as a general consideration which it
relied upon in interpreting what Ras the real intent of the parties to the
special agreement. It is truethat it thererecognized 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 1am 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 confirming its interpretation of the special
agreement, and saying that Switzerland's interpretation of that was
correct, and ultimately also upheld the conteiition of Switzerland as to
the interpretation of the Treaty of Versailles.
And that, hlr. 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 aIlowed, and what is important is that when the amendment
has been made the arnended submission takes the place of the earher
submission, whether it has narrowed the case or whether it has widened
it. That has been recognized in several instances, for instance,in the case
of the GermanIlzterestsi?a Polish U$$er Silesia. The merits of that case
before the Permanent Court are reported in P.C.I.J., Series A, No. 7,
and 1 read at page IO where it was said that the Respondent-"withdrew
the submission set out in the Rejoinder and agreed to argue the matteron
the basiç 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 ChorzdwFactory 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 alreadsf been indicated, the Applicant has, in his case on
the merits, made submissions which constitute an amendment of
the submissions made in the Applic ation.
Since this amendment has been efiected in the first document of
the written proceedings, in a suit brought by application-i.e.,
at a tiine when, in accordance with Article 35 of the Rules, the
Respondent still retains a completely free hand to file Preliminary
Objections-no exception can be taken to it. Noreoever, the Re-
spontleiit,in his preliminary plea, has referred to the Applicant's
submissions as formulated in the case ancl not as formulated in
the Application [in other words, the case isthen proceeded with on
the basis of the Applicant's subrnissions as forinulated in the case
and not as formulated in the Application]. It is, therefore, the sub-
missions as formulated in the case that the Court has now before it."
Similarly, in the case of theReadaptatio?aof theMavrommafis Conces-
sionst,he jurisdiction aspect of which is reported in P.C.I.J., Series A,
No. rr, at page II and the foilowing, the submissions were also considered
to be the bajis of the judgment:
"The Greek Government having in its case amended the sub-
missions of the Application, the Court takes as the basis of its
examination the submissions of the Case,which are the submissions
made in the last document upon which the opposite partp has been
able to base his objection."
And then the next case, Mr. President, refers 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 thTerritorialJtdvisdictionof lltInter-
national Commission of the River Oder, also in the Permanent Court,
P.C.I.J., Series A, No. 23, at pages 45 and 46. l'hcre the Court fixed a
time-limit ifone of the parties wished to file an alternative submission,
because, as was stated at page 45, "the Parties must have an equal
opportunity reciprocaily to discuss their respective contentions", and
they must accordingly, "be enabled to discuss in their first oral argument
and not only in their reply any alternative subinissions made".
1proceed, Mr. Yresident, to refer tothe summarization given by Judge
Read, in the case of Certai?~ Nonetegian Loans, of the considerations
applying in this regard in the practice of the Court:
"It istrue 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 follo~ving
a practice of long standing. Thus, it waç open to France to arnend
the Submissions at that stage. But the right is subject to two
limitaticins. The first limitation is thwhen there isan appreciabIe
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 openirig statement, and Nonvay
has had txvo opportunities to reply, of which full acivantage has
been taken.
The st:cond condition is that the amendment must be an amend-
ment. It must not consist of an atternpt hy the Applicant Govern-
ment to bring a new and different dispute before the Court. Ifso,206 SOUTH WEST AFRICA
the amended Submissions are not admissible,unless the neu7elements
have been incorporated in the dispute either by the Respondent
Government or by the tïvo Governments in the course of the Writ-
ten and Oral Proceedings." (I.C.J. 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 has 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 anci wisheç to introduce an
amendment which in substance amounts to the making of a new case.
Now surely, Mr. President, one then standsin s 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 come at the very beginning or should have
come 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 utlderstands the casewhich
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 ailbefore, something which would have to be canvassed right
from the start and afresh ifit 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
forma1 conclusion. They provide the key to the propositions of fact which
are alleged and relied upon; therefore, they are also the key to what the
other side is calied 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 ofu~hat has been advised to the other side as the case on fact
which that party has to meet.
Those are the functions of the subrnissions, apart frorn indicating the
legal conclusions which are sought to be drawn from the facts alleged
and relied upon.
It wouId 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 arnbit of the factual case which is
presented. There could be combinations of tliem, 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 çtatement could then indicate REPLIES TO QUESTIONS PUT BY THE COURT 207
the Iimits 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 cIearly 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 1 referred in
passing when 1 quoted from the article by President Basdevant, and
that is thaty reason of considerations, of convenience it may very often
be quite impossible to set out fully in the submissions themselves ali
the propositions or facts relied upon. What is required to be set out is
the deduction frorn 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 pIaced.
That is, Mr. President, what was very clearly done in this case, in the
first submissions asthey appeared inthe Memorials. There the Applicant s,
without any objection on Our part and, in rny submission, completely
properly as a question of form, set out their subrnissions in such a ivay as
to incorporate, by reference in those subrnissions, certain allegations of
fact.I read from page 197,1, of the Mernorials:
"3. the Union, in the respects set forth in Chapter v of this
Alemorial and summarized in Paragraphs 189 and go thereof, has
practised apavtheid, Le., ha5 distinguished as to race, color, national
or tribal origin in establishing the rights and duties ofthe inhabi-
tants of the Territory; that such practice iin violation of its obliga-
tions ..."
So the second portion indicates the legal conclusion drawn; the first
portion sets out, by way of incorporation bp reference, what facts are
reIied upon, svhat are the limitsand the scope of those facts. We look
back to Chapter V of the MemoriaI, and then we see that in the first
instance the facts are grouped under certain headings, and with reference
to certain rneasures, 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 cornplaint 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 primafacie excluded from the case. An attempt was
made later in the Reply to introduce acomplaint of that kind, but as it
stood at that stage, that was what the subrnissions meant.
There was icomplaint of oppression of the Native population, but no
complaint of asirnilar nature,or of any nature,in regard to the Coloured
population of the territory, so oneknew that anything of that nature was
excluded.
FinaIly, Mr. President, on analysis of what content was then ascribed
to this concept of apartheid in the relevant portions ofChapter V of the
MemoriaI, and particularly also as repeated in the sumrnary in para-
graphs 189 and rgo thereof, it was unmistakably a definition of deliberate
oppression, deliberate oppression of the Native peoples. 1 have read
those definitions to the Court before ad nauseam; 1 need not read them
to the Court cigain. The description in them is so absolutely clear; that208 SOUTH WEST AFRICA
is the only interpretation one can give ta it. And when one comes to
paragraphs 189 and go 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 comes to this,
that by design and by result, apartheid was in the particular respects
alleged a discrimination against the Native population and in favour
of the European population. That was the case then set out in Sub-
mission 3.
Similarly, Mr. President, when one Iooks 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 fhisMernorial and summarized at Paragraph
go thereof, ha. failed to promote to the iitmost. . .".
There again is the factual allegation, exactly the same applies here
as in regard to Submission 3. If one wants to know what those eronomic,
political, social and educational policies complained of are, what the
factual aspect of those complained of is, one haç but to look back and
one finds the çame answer-deliberate oppression, deliberate systernatic
discrimination against the Native population in favour 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
distinguiçhing as to race, colour, national or tribal origin in establishing
rights or duties, that that fact, taken neutrally and by itself, without
having regard to the allegation of alleged oppressive effect, wain itself
to be regarded as a concept being relied upon, asa 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 arnended 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 proposal, there had been
a preparation and a building up towards this amendment of submissions,
when the Applicantç 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 ofies as constituting
thebrunt 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, as more fully
set out to thesame effect nt IV,page 493 of the Reply.
That came to be their theme and, MT. 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 tobe seen as indicating the REPLIES TO QUESTIONS PUT BY THE COURT
Zog
ambit of the further proceedings. They referred to it specificaliy as the
reason why they submitted that no evidence that we wanted to cal1
could be relevant, that the inspection irloco 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 thi:re was nothing outside the scope of this case which they were
presenting 1.hatcalled for any factual canvassing on Our side at aI1.
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 tliey presented the amended wording of their submissions, and
that coincided exactly with the explanations given, and to make doubly
sure they added a forma1 interpretation and forma1 expIanations of the
subrnissions.
Therefore, Nr. 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 arc now to be looked at primarily, together with
whatever isincorporated by reference ifithem, in order to see what is
now this case being macle.
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, formal and informal, 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 beyand the scope of the Applicants' case as
described in the Court's questions under consideration, namely the case
based upon standards andlor the norm.
They made it perfectly clear, hlr. President, that thatcase which they
were rnaking was intended to indicate not only the scope of their lega1
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.
Theymade that clear in various ways. Theymade it clenr, 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 4had to fail. They expresçly indicated
that they do not advance certain factual propositions, namely anything
concerning the purpose of the Mandatory or the effects of the policy,
which are really the only conceivable other factual propositions which
could have been reliedupon 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 concIusion
which they contended flowed inherently and per se from the undisputed
facts. That they stressed throughout, making it clear tliat 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 factual210 SOUTH WEST AFRICA
proposition which would require an estabiishing of facts. Finaiiy, 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 function to
conduct a factual enquiry beyond the scope of what they were sub-
mitting to the Court.
1could illustrate thisMr. President, abundantly from the record. I do
not wish to refer again to al1 the passages that could be said to be rele-
vant in this respect because that would be a very, very tedious process.
1 gave the Court, on IO June if 1remember correctly, a list of excerpts
of what the Applicants stated at various times in this respect and 1
should like to refer now to some of those-not al1of them-and 1 wish
to add one or two more to dernonstrate rvhat 1 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 unintelligiblby thern-
selves. They require to he 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 tlieir wording. The only thing is
now that the incorporation by reference is something different from
what it was in the initial subrnissions. The wording is differcnt, and
therefore the effect is different, of what is now being irtcorporated by
reference. We find in Submission No. 3 that the wording is"Respondent
by laws and regulations, and officia1methods 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 Mernorials 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 reliesupon as being set out in the pleadings. And, $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, formal,
interpretation is said to have esactly the same meaning and intent
as Submission No. 3; the distinction being verbal only. There we read
that the Respondent "by virtue of economic, political, social and educa-
tional policies applied within the Territoryby means of laws and regula-
tions, and officia1methods and measurcs, which are set out in the plead-
ings herein" has, in the light 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, inorder to see what itis that is now intended to be incor-
porated by reference in the submissions.
That isthe only point 1want to make at the moment. One finds that
very clearly in the records of the Oral Proceedings and that is why,
Mr. President, Iwant to commence this interpretation of the submiçsions,
as arnended, by refernng first to there explanationc, which went before REPLIES 'IO QUESTIONS PUT BY THE COURT 211
and then, on the basis ofthose esplanations,to corne back to thewording
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 1 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 norrns and standards
in the plural or does it rest ithe alternative on a norm or on
standards? Does itrest only on a legal norm which automatically
and technically renders certain described foms of conduct
iliegal, or does it reinthe 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 asto
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 officia1 methods
and measures by which they are effectuated, theexistence of which
is conceded by Respondent-constitutes a per se violationof the
relevant provisions of the relevant Article of theandate. It neces-
sarily follows that 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, 1cannot see how my learned friend
can nolv Say that this Court is free to conduct an enquiry of which he
does not say what the lirnits would be, butan 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 cither 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 sa$er seviolation". NOW,how
could there be a clearer intimation both to the Court and to the other
side that tliat is the factual scope of the proposition being advanced
and which was then eventually incorporated in the amended sub-
mission?
[AtblPc hearing of IJuEy19651
Mr. DE VILLIERS:Mr. President and honourable Nembers, at the
adjournment yesterday I had just begun a process of interpretation of
the Applicants' amended çubmissians, as presented to the Court on
19 May-interpretation, that is, with a view ta ascertaining th: ambit
of the factual propositions which are intended to be advanced in those212 SOUTH WEST AFRICA
submisçions. A5 1pointed 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 Chorzdw Factory case, to which Ireferred yester-
day, and in the MuvvommatisAdaptadion 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.
I pointed out also, Mr. President, that when it cornes to interpreting
the subrnissions it is a matter, as in al1 interpretation, of ascertaining
the intention of the author of the document, and 1 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
isconcerned, the submissions were intended to be read rvitithexplanations
given simultaneously or shortly before. Particularly that was so in
regard to the laws, regulations, officia1 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 uçeful, 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 methodç 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 thiç respect the wording of the submissions
in itself is cleabut we submit that when regard is had to the explana-
lions given in various ways and in various formulations, the matter
becornes 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,whlch 1read out to the Court. That related to the question
in which WC 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 effectthat no factual allegations were
intended tobe advanced, either as to the purpose or asto the effect of the
measures, methods and policies concemed.
1 shouId like to refer now to another passage in that same record of
3 May, to be read in conjunction with the one to which 1referred yester-
day-that isat IX, page 91of 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, 'Corne and inspect the Territory.
The Court, or a Cornmittee thereof, will then see the whole problem
from onr point of view when jthas viewed al1the 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 officia1
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 rule of Article z of the Mandate, read
in the light of the applicable legal norni and the international REPLIES TO QUESTIONS PUT BY THE COURT 213
standards for which the Applicants contend, the Subrnissions3 and 4
must fali'."
The word i11the record is "fall"; it may havebeen intended to be "fail",
but in any event the effect seems tobe the same. This very clearly tells
us, &Ir.President, that it is that per se aspect, i.e., of looking at the laws,
regulations, official methods and measures, the existence of tvhich is
conceded-constitutes the factual aspect relied upon, and that, then,
if the Applicants' legal contention flowing from that failç, then Sub-
missions 3 and 4 must fall, or fail.
1should Liketo refer next to the recordof 30 April. My learned friend
was there clealing-at IX, pages 61 and 62-with a question which had
bcen put tiy the honourable President in regard to the existence or
othcrwise of any distinction between hiçSubmissions 3 and 4, as they
were worded in the Memorials and as they still stood on record at that
stage. Jly learned friend then explained that there was no difference
at al]. and that no difference was intended; and in order to make that
perfectly clear he gave a reformulation of his Subrnission N4,at page61,
which included the words "in the light of the applicable international
Iegal nom 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 follaws that na issue is presented there-
under which would cal1 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 of the Territory are compatible with, or repugnant to, Respon-
dent's legal obIigations as Mandatory under the sacred trust.
The Applicants' case stands or fallon its theory and submission
that the laws and regulations and officia1methods and measures,
the existence of which is undisputed in the record, are inherently
and pt:r se,as a matter of law, in violation of the obligations of
Article22 of the Covenant and Article 2 of the Mandate, read in the
light of, and interpreted in accordance with, the applicable inter-
national legalnorm 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' respectfui view, there appears to be even
less justification for presentation of oral testimony than for inspec-
tion.''
Mr. President, rnay we pause again and look at the significant features of
this wording? In the secondlineof what I read wesee"no issue is presented
thereunder rthereunder' apparently meaning under Submission 4, or
3 and 4, which have now been identified as meaning the same thing];
which would cal1 for, or rnake relevant, an inspection". And then, on
the next page, presentation of oral testimony is put on thesame footing
as,or even on an a fortio brasis thanan inspection-in order to appraise
or evaluate, orto make judgments concerning 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 foHows 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 fds 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 legal norm 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, asthey 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 19May.
1should next like to refer to a passage at 1X,page 64, of that same
friend says as follows:re, just below the middle of the page, rny learned
"In the Rejoinder, V,and 1refer to page 1x9, Respondent concedes,
or çontends: [and then follows a quotation from the Rejoinder,
which 1 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 A~iplicants"] exists as part
ofthe Mandate, it wouldhave the consequencethat Respondent's
adrnitted policiesofdifferentation would constitute acontraven-
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
issue between the parties on this aspectnseofethe case isla 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
fnend proceeds to state:
"With this comment, of course, the Applicants agree fuily. The
word 'contain' [that is in the last phrase 'whether ornot the Mandate
contains such a nom'], 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 fuUy",
and Our comment is explicitly so worded that "Respondent's admitted
policies of differentiation [my learned friend now cornplains about our
use of that word] would constitute a contravention .. .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". And Our comment
was rounded offwith: "Consequently the soleissue ...on this aspect .. .
is a legal one."
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.
Mylearned 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."
1 shall ni>wread to the Court only the relevant passage from the
Rejoinder, which was cited by rny learned friend, comrnencing at about
the fourth Iine 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 eçtabliçh a violation of the
Article by proving such an allotment, irrespective of whether it
was intended to operate, or does in fact operate, for the benefit of the
inhabitants of the Territory.The Iegalposition would then be similar
to that pertaining, for instance, to the prohibition in Article 3 of
the Nandate on the supply of intoxicating spirits and beverages
to the Natives. And since Respondent's policy is avowedly based to
a considerable estent on an ailotment 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 Applicantç, that
"the d<:cisivelyrelevant facts concerning Applicants' Submissions
3 and 4 are undisputed"."' (IX,pp. 64-65.)
1need 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 aç involving that Article 2 allegedly
contains an absolute prohibition on that kind of allotmentand that, inthat
event there would esist no dispute of fact between the Parties.
In the same record, Mr. President, carrying on in this sarne contest,
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 \vas a deliberately
oppressive policy, Applicants now concentrate on the aspect of adifferen-
tial allotrnent-of distinguishing between various inhabitants of the
Territory in the allotment of rights and obligations on the basis of their
membership in a race or class or group. After saying thst these two
extractç 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 fierseresult
(without any conAict of fact) Aowing 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
practici: and policy of apartheid".
Clearly in the context he indicates in what sense aparthcid is now
used for the purposes of this new Iimited contention. 1 shall corne back
to this point, but this is one of the passages ~vhichthrows light on that
situation. There are more, and the others are even more explicit.
1 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 rniddle of the page:216 SOUTH WEST AFRICA
"There cari 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
thern-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 al1 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 al1 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 thestatement that "that is the heart and soul of the Applicants' case,
and. .. ifwrong, they will be told so"; we have it in the statement that
the "Applicants have confidence in thellegapropositions 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 suficient to sustain those legal propositions as relied
upon by the AppLicants. That is what they keep telling us over 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 facts of this record",
namely the existence of those rneasures, methods and policies explained
so often in other passages, the Applicants "respectfully submit, and
accordingly through the Court advise the Respondent, that . ..[they]
rest their case upon the propositionç asserted" and that makes evidence
unnecessary-evidence outside those propositions.
Next, 1 should like to refer to a passage in the verbatim record of
13 May. In the last passage 1quoted, 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 1 am about
to read, the Applicants emphasize the limit to what fhey are asking the
Court to do. 1 shaU read from IX, page 246:
"The Applicants do not resttheir case upon the degree to which
the norm-creating process at work in international society has been
correct or fair inits appraisal of the incompatibility between 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 norrn-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 tlie task of second-guessing the
competent internationalorgans responsible for the development ofthe
norm. 'Thereis 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 Iaw, and in accordance with the international
ruIe regulating the mandate institution itself."
And that is why the Court is not asked to induige or engage itself in
any process of evaluation of the policy on a basis of fact, and thereby
to second-guess the cornpetent 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 18 May
and also in the one of 17 May. 1 shall read the passage in the verbatim
record of 18May:
". . . there is a structural and functional interreIationship 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 wliich are uniquely within the cornpetence of administra-
tive organs and which reflect politicai and moral and social cori-
siderations of which they are specially competent to judge and
evaluate". (IX, p.326.)
1 read, with that, a passage in the record of 17 May:
"For if the Respondent is upheld in its claim 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 ArticIe2, paragraph z,would be to make a choice between
the Respondent's conception of well-being, moral and material
well-being and social progress, and that ofthe Court's.
Such a decision, whatever the outcorne, could not rest upon
authoritative or objectivecriteria.It would not possess the juridical
attributes properIy to be associated with the tradition of this
honour;ible Court." (IOid.,pp. 299-300.)
My learned friend, Mr. Grosskopf, in quoting this passage to the
Court beforc:, indicated that those introductory words would appear to
be inappropriate. This result would not follow frorn the Respondent's
contention of testing on the büsis of whether there has been an abuse of
power but It mould certainly foIlow upon the basis of a contention,
that the Court is to judge in accordance with the effectç, the consequences218 SOUTH WEST AFRICA
or the results of the policies. But be that asit may, the Applicants put the
proposition of making a clioice between Respondent's conception of
nioral and materiai well-being and social progress and that of the Court's
and saying that such adecision 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 rneet,
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 there would be no cornpetence
have set the limit of their submission. Then, at IX,page 299,of that sarne
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 same explana-
tion asin other parts-the explanation of the legal consequence which
must, ipso fado, follow. 1 read at page 299:
"The Applicants contend that international standards and an
international legalnorni of an a priori character exist which provide
authoritative criteriof 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, hlr. President, "[ijt kas wver been part of the
Afifilicants'case". This is not merely their theary of the case; it is the
Applicants' case.
Now 1should like to refer to the record of 19May, 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. 1 wish to read a passage from the record of 19May:
"... 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 tothe present time, renders irrele-
vant the caliing of witnesses or the adducing of other forms of
evidence designed to show the so-called 'actual effects' of Reçpon-
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~ubmission that apartheid, inherently and perse,conçtitutes
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 +er seconstitutes 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.
LVemay now revert to the record of rg May in whichthe submissions REPLIES TO QUESTIONS PUT BY THE COURT
219
were put. Idet us corne to the wording of the submissions and we begin
again with these first words of Submission 3 :
"Respondent, by laws and regulations, and officia1methods and
rneasures, which are set out in the pleadings herein, ha5 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 .. ." (lx, p.374.)
The first question is, which are these laws and regulations? Where
are they identified? As I said to the Court, the identification one finds
in the record of 17 May, and I should like to refer to certain of those
passages which make it clear beyond doubt what those regulations
and laws, policies, and rnethods and measures are, and what particular
factual aspect of them the Applicants seek to rely upon. 1 begin with a
passage at IX, .page 285,of the record of 17 May-a general passage
which Ishould like toread with a passage at the same page. The paragraph
at page 285 reads :
"It is the Applicants' purpose now to present to the Court the
cor$us, the pattern of laws and regulations, of officia1measures
and methods, the existence of which is conceded by the Respondent
and which inlarge part arederivedfrom and cited to the Respondent's
own pieadings. This corpus of fact, this body of laws and regulations
and measures and methods, upon the basis of which the Appiicants
contend the norm andior the standards (which wilI be explained
shortly as ta content, source and coverage), the conduct complained
of,which will now be summarized without argument or elaboration,
isto be judicially deterrnined, to befierse 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 corfizts,that pattern of laws and regulations,
the existence of which is conceded and which, in the Applicants' conten-
tion, lcads to that $er se inherent violation. It is referred to as this
cor+us 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 espressed in a general sense, the AppLicants Say (at
p. 285): "Tliis is the body of fact upon which the Applicants rest their
case: ...7,
Now, Mr. President, the Applicants proceed, having stated in general
that that isthe body of fact, that that identifies the body of fact and
indicates the aspect relied upon, viz., this per se aspect. One finds that
the Applicants break it up into compartments, categorization as they
cal1it. And in respect of each cornpartment, we findthe 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-on!y
the aspects of the existence of those measures which is undisputed. Then
the legaI consequence is suggested to foiiow peuse from that existence,
namely thal of violation of the norm and standards and therefore a
violation of Article 2.
1 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, andthe 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 t:he Mernorials in which there were set out the general duties220 SOUTH WEST AFRICA
of the Mandatory, with regard to the particular aspect of Me. Thus we
find in the record of17 May this stated, on the economic aspect:
"The hiemorials, 1,at pageIII,set outthe Mandatory's duties with
respect to the economic aspect of the life of the inhabitants of the
Territory, all, as1 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 ,. 285.)
Even now, when stating the duties. that formulation foltows, al1
within that context, al1to be carried out in that context. Those words,
Mr. President, are repeated every time-when it comes to the political
aspect, when it comes to the civil rights aspect, and when it comes to
the educational aspect; those very words are repeated every time as to
the sense in which those duties are to be read: all tobe 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 declilration on these duties,
there iç this statement at the same page:
"At pages IIZ through 131oftheMernorials (1) the Applicants have
set out a series of laws. reeulations. measures and methods oi an
officia1 characterby whichYthese la~vsand regulations are imple-
mented jn the economic iives of the inhabitants of the Territory.
And the Applicants have submitted in the Memorials, and now
reaffirm their submission, that these constitute fier se violations
of the international legal norm of non-discrimination or non-sepa-
ration and of the standards which goverri the interpretation and
application of the Mandate itself."
So here we find Our identification, Mr. Yresident. The pages of the
Jlemorials are given, and then in what follows tbereis 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 limiteper se
contention of the Applicants-within the context of that, both in regard
to the duties and in regard to the laws, regulations, measures and
methods. We find those çtatements limiting the context, the factual
aspects, onivhich the Applicants seek to place reiiance.
That we find again in regard to the political aspect, aIX, page 287:
"Continuing with this factual cataloguing, the Memorials, 1, at
page 131, set out the Mandatory's duties with respect tothe political
life of the inhabitants of the Territory, [and then those same words]
ail 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 Mernorials, giving the pages of the ~emorials where
the Appiicants have set out the laws and regiilations, officia1measures
and methods regarding political lives, there is again the same formu-
lation, viz., that they constitutepe~se violation of the norm and the
standards.
Pages 289 and 290 (IX) give us the same position inregard to civil
iiberties-atpage zgo, first the duties, with that sole formulation attached
toit;and thenat thesarnepage, the references tothe pages oftheMemorials,
where the laws, regulations. methods and measures are dealt with- REPLIES TO QUESTIOES PUT BY THE COURT 221
again with the same formulation attached to it. Finally, at page 294,
we find the sarne 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 exnctly the same words as before.
So, &Ir.E'resident, we find,with respect, that when we interprct those
firçt wordscithe arnended Submission 3,herc is the identification both of
the laws, rcigulations, measures and policies, and of the factual aspects
averred ancl relied upon.
In the result, the term "apartheid" now takeç or1 this new scnse
which I have indicated, and that is explicitly explained in this snme
record of 17 May. This is what the Applicants stated at the conclusion
of their presentation of the catalogue:
"Mr. President, thiç concludes on behalf of the Applicants the
presentation of the illustrative enumeration of the laws and regu-
lations, and officia1 rnethods and measures by which they are
efiectuated, thc existence of al1of which isconceded by Kespondeiit.
These, and similarly conceded existent legislation andadministrative
measures, and effectuating implemeating policies and practices,
form the corpzls of factual material or describe the pattern of
Respondent's condiict, which is known and characterized widely
as 'apa.rtheicll or, more generally now, in Respondent's own usage,
but referring to the same pattern, 'separate deveIopment'. 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 factoviolations of Article 2, the interpretation
and the application of which article are governed 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 expIanation or extenuation thereof iç legally relevant
to the issues joined in these proceedings." (IX, pp. 298-299.)
So, Mr. President, 1 cannot see Iiow one can have it clearer, that this
is now the limited çensc in whicll reference is made to apartlieid. This
is the content assigncd to apartheid-this aspect of it ~vliichallots nghts
and obligations in conflict with the suggested norm aridlor standards,
thereby rendering it inherently and pevse, and without regard to factual
aspects such as effects, purposes, or the Ijke, violative of Article 2 of
the JIandate in the light of the norrns and the standards.
I have emphasized this, &Ir. 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 poIicy of apartheid and then present a case or corne to
a conclusion along different lines frorn those of the Applicants. The
Applicants arc not allowed to do that ;1 wish to emphasize to the Court
how they themselves, for the purposes of these arnended 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 inthe222 SOUTH WEST AFRICA
Memorials. I said yesterday that I have read certain of these passages
ad nnfcseam, but I think jt jçof crucial importance now to stress certain
aspects of them. One finds the formulation, the definition then, given
at 1,pages 108-10 of,the Memorials, and repeated in substantially the
same wording at page 161 in paragraph 189,which waç one ofthe para-
graphs incorporated by a reference expressly in the original submissions I
and now omitted from the submissions.
1read at page 108:
"Under afartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis ofrace, 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
Slemorial is concerned with the record of fact, it deals wiapartheid
as afact and not as a word. It deals with afiartheid in practice, as it
actually iç and as it actually has been in the life of the people of
the Temtory, 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 frorn 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 1have 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 whicli ignores the
needs and capacities of the individuals concerned; al1 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 161 it is
specifically put in these words: "Under apartheid, the rights and interestç
of the great majority of the people of the Territory are subordinated to
the desires and coiiveniences of a minority. "
Mr. President, can that allegation (asparticularized again towards the
end of this statement) about exclusion from participation-significant
participation-in the life of the territory, and the aIlegation about using
the Natives only as common labourers or for menial service-all that-
be regarded as still being included in the amended submissionsof 19 May,
or must Ive 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 lawsandthe i+sofacto,per se, effect which they ascribe
to it in the context of the norrn and/or the standardsreiied 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 encornpass any such case. If, on REPLIES TO QUESTIONS PUT RY THE COURT z23
the amendinent of the Applicants' submissions with these explanations,
1 had not said to the Court 1 sfiall confine the presentation of further
facts byw:~y of evidence to the Court to what is relevant in this limited
context-if 1 had not done that-the Court could have said to me: if
you intend leading any evidence outside the ambit of what the Applicants
now rely iipon in their amended submissions, then that evidence is
irrelevant and should not be led.
Now the Applicants want to corne bacli 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 Court is free to do 1osubmit, Mr. Presi-
dent, that as regards placing a factual meaning upon the concept of
apartheid, the Court isvery clearIy not competent to do so, just as 1am
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 officia1 expIanation 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 ithe splitting up into economic,
political, and so forth], the method of categorization is really
extraneous to the point here lvhich is the examination of the appli-
cation or failure of application of the norm andjor of the stan-
dards; such categorization merely, is the framework within which
that issue is being evamined and appraised." (IX, p. 290)-
making it clear, therefore, that as with regard to the specific use of the
word "apartheid" in Subrnission No. 3 so also with regard to the use
of the vaguer lvords "economic, political, social and educational policies
applied within the Territory" in Submission No. 4, the Applicants rely
only on what 1might call, in short, thisper se 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 ta be made as part of the Applicants' case.
That is why Submission No. 3 says sirnply that by the Iaws and
regulations concerned Respondent has practised apartheid and then
gives this definitionof apartheid, that is,has distinpished as to race,
colour, national or tribal origin in establishing therights 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 terrn "apartheid" is used and is brought into the case as an
ailegation against the Respondent-an allegation with a certain purport
and effect, but also with a certain limit and the limif is an unrnistakable
one.
That is also why the Applicants Say, in Submission No. 4, that
"Respondent, by virtue of econornic, 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)-
Al1 this falls into place. It is exactly as the Applicants intended it-
exactly as they explained to us repeatedly and in al1these various ways.
SO, Mr. President, applying the matter to the context of the third
question put by the Court on 22 June, my Iearned fnend said in yester-
day's verbatim record :
"ln the context relevant here the Applicants have always con-
ceived, and conceive now, that the dispute between the Parties
relevant liereto is constituted by their third and fourth submissions,
namely that the practice of apartheid in South West Africa is a
breach of the obligations containcd in Article 2,paragraph 2,of the
Mandate and of Article 22 of the Covenant of the League of Nations."
($tif,, p. 185.)
Then the Applicants proceed to explain that they have a theory which
leads to thisipso factoresult on the basis of their norm andjor 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, ifthe Applicants abide by the definition 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 1 have no difficulty with this.
Then it could weil 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 lvhereof is
undisputed. They have the effcct of differential allotment, of distin-
guishing between inhabitants on the basis of mernbership in a race,
class or group. That is the aspect upon wliich 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 fier se violation of the
Mandate. The Applicants' rationale for that conclusion, its legalargu-
ment in support of the conclusion, is based on the existence of this norm
and/or the standards.
It would be competent for the Court, as a rnatter of theorp, to Say:
we do not agree with that legal contention as to norm or standards; that
contention is entirely unsound. Rut we find that for some other legal
reason the mere existence of those Iaws in this particular context com-
plained of by the Applicants does lead to a violation of Article 2, becau*
of the construction or interpretation which the Court places upon Arti-
cle 2 as a matter of law.
That would be possible in a theoretical sense, Mr. President. 1 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, ifmy learned friend suggests by the cited statement that
the Court coüld 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 limited conception of REPLIES TO QUESTIOXS PUT Bi'THE COURT 225
what apartheid is as a rnatter of fact, then 1 submit that the Applicants
are contending for something which is entirely irnpossibIe-entirely in
conflict with ail 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 thc case, One
is the Respondent's thcory of an abuse of power as being the only pos-
siblebasis for finding a violation of Articlz.They Say ttiey donot 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
$er se aspect-upon the norm and the standards, and whatever effect
that rnay 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 to its own conclusions, on its own
ralio~iale.Xow, 1 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
bvould 1 kriow, how would the Respondent know, to what length the
Court could go, or what esactly this case iswhich the Respondent lias to
meet? My learned friend suggested. if 1understood him correctly, not
merely that the Court is licre-possibly that rnay have been the effect of
his suggestion-to decide a dispute between parties, but that a special
significanceis to be 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 speciaI significance 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 caU the Mandatory to
task, and ask the Mandatory to account to itindependently 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, Nr. President, 1 submit that quitc obviously that is again without
foundation.
The case arises under Article 7 of the Mandate, paragraph 1,which
speaks of a dispute between the Mandatory and another Meniber of the
League of Nations. It cornes before the Court under the general concept
of Article $3, paragraph I, of the Statute, which speaks of the Court's
function as being one of deciding, in accordance with international law,
such disputes as rnay be submitted to it by the parties. That is the sole
role of the Court, with respect, in amatter of this kind.
How could a litigant possibly know what the Court has in mind in a
civil case, iinleçs the Court were to put itself in the position as if it were
the Applicants bnnging the case-as if the Court were the domillus
litis-and then assume to itself thc function of formulating a submission
which the Applicants have not formulated, and of saying that there is
intended to be read into that subrnission something which the Applicants
do not intend to be read therein-which they have said rcpeatedly they
do not intend to be read therein. How does the Court formulate that,
and if the Court does not formulate that, how does a Respondent liti-
gant-how does that Respondent knou-what case the Court might
possibly have in mind which it may have to meet? If thnt wcre the true
position, $Ir. President, tlien my learned 'friend can never raisc any226 SOUTH WEST AFRICA
objection whatsoever on the basis of relevance because on what basis is
he going to raise it? 1she 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
ivhal the limitç can be of that theory of the Court?
1 submit it is only in this limited sense of applying an alternative legal
construction on the basis of the limited facts, relied uponby the Appli-
cants, that the Court has the freedorn suggested by my learned friend.
ilnd 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 reqüire that if the Court or
any Member of the Court may have a prima facielegal view different
from that contended for by either of the parties, that çhould be put to
the parties inorder to be dealt witli by them in Iegai argument. I could
refer the Court to the Nottebohm case, 1.C.J. Reports 1955, at pages 30
and 31. Learned Judge Klaestad dealt in a dissenting opinion with a
certain solution discussed by the Court-a certain solutionofthe 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 attitudand to prove its eventual contentions
with regard to this solution, whereby its claim is now dismissed.
In such circumstances, it is difficult to discuss the meritof such a
solution excepton a theoretical basis; but 1shall mention some facts
which show how necessary it would have been, in the interest of a
proper administration of justice, to afford to the Parties an oppor-
tunity to argue this point before it is decided."
Iam of course, Mr. President, not concerned with the correctness or
otherwise of the application ofthese considerations to the facts of that
particular case or the situation which arose there; 1 am concerned with
the considerations themselves which are so clearly statedby the learned
Judge.
Then Judge Read in the same case, also in a dissenting opinion,
referred to the sarne principles, at pages 38 and 39. He stated :
"Accordingly, the matter is governed by the principle whicli was
applied by this Court in the Ambatielos case (Jurisdiction), Judg-
ment of July 1st 1952I .C.J. Reports rgg~, at page 45:"
[1 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 çtated:
"lndirectly, some aspects were discussed as elements of abuse of
right, but not as a rule of international law lirniting the poweof a
sovereign State to exercise the right of diplornatic protection in
respect of one ofits naturalized citizens.
As a Judge of this Court, 1 am bound to apply the principle of
international law, thus declared by this Court. 1 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 inbar, and for the prevention of its discussion, consideration
and disposition on the merits."
1 need not labour that further, Mr, President.
1 wish to conclude by saying that in the Lightof this situation itour
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 50 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 iiotice to us of this limited scope of his case. On the basis of
that notice we have made arrangements totaily 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 caU 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 riewattitude to the Court. There must come atime 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 tbe determined on the
basis of the Applicants' amended submissions, as 1 have construed them
to the Court, and as 1 subrnit is their very plain rneaning and intent at
the moment. That means that what would be relevant by way of evidence
would be aIiy factual aspects of the contention of the existence of a nom
and/or standards, and 1 have indicated before what Iactual aspects could
be relevant in that respect. Ineed not repeat ïvhat 1 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 haye
defined that aspect, that it is an undisputed aspect, and therefore, in
that respect itself no further evidence would appear to be called for.
It is true, Mr. President, that by presenting our evidence and the
factç thatare already on record, it is possibtodemonstrate beyond any
possibility of doubt that it would not have been possible for the Appli-
cants to succeed on any of the aIternative cases which they codd pas-
sibly have made on the basis of purposes or on the basis of effects. And
we shall, for good measure, in due course when we come to deal withthe
matter in argument, demonstrate that to the Court by way of illustration.228 SOUTH WEST AFRICA
It so happens also that some aspects of the evidence, which we shall
present to the Court on the factual aspects pertainingto the Applicants'
contention as to a.norm and as to standards, will also serve as an illus-
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 ço, but that isnot the purpose for which the
evidenceis being called. II had to meet-if 1were given due notification
that 1 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 +Y se one apparently relied upon by the Appli-
cants, then, of course1 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 tlie inspection proposal,
when they wcre espIaining their amended submission to the Court, took
up the rnanful attitude: here is rny case,in law and in fact, and if 1
cannot succeed on that case, then my Submissions Xos. 3and 4must fail.
Noïv in circumstances where the legal basis of that case has been shot to
pieces, they come forward and they would appear to suggest to the
Court, like a child, that the Court must now protect thcm alid that the
Court must try to make a case for them wherc tlieir own case has failed;
that the Court must do so, on the basis of what they have specifically
said, is not part and parce1 of their case.My submission is that, for
obvious reasons, that is not permissible. 1 thank you. Mr. President.
Mr. GROSS : r. Yresident,may 1then request respectfully opportunity
to prepare comment? It would appear ta me that the arguments just
completed either raise very fundamental 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, Air. President,
that rather than atternpt 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 problernç which they
understand tu be presented by the arguments just concluded, and to
request an opportunitp tomorrow to complete tlieir comments. on the
assumption that this is fundamental, without esceeding perhaps half
an hour at the outside.
The PRESIDENT : ell, h,lr. Gross, the Couisanxious atal1 tirnesto
meet the convenience of the Parties. It is sornewhat difficult to under-
stand ïvhy it is necessary to require an adjournment for the purpose of
responding to the address made by the Rcspondcnt's counsel. 1 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 five to ten
minutes, and have then an adjournment until tomorrow.
Mr. G~oss: Mr. President, 1 had thought, with respect, that if the
Court pleased the Respondent might continue with testimony, but on
the other hand, if that is inconvenient, 1 should do rny best under the
circumstances to present the comrnents on behalf ofthe Applicants now
in as brief a compass aspossible.
The PRESIDEST :ermission is granted.
Mr. GROSS: TO do so now, Sir?
The PRESIDENT: Yeç.
Mr. GKOSS : r. President and honourable Mernbers of the Court, as REPLIES TO QUESTIONS 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 al1
litigation and which, as 1 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 the!? were used.
Many of thi: references made by the Respondent's counscl to expressions
and formulations of language used, for example, in the contest of the
inspection proposal, at a time prior to the formulation and submisçion
of legal arguments, may very well create an impression unwittingly
ïvhich does not correspond to the more studied and carefully elaborated
subsequent presentation with respect to the legal aspects made in the
argument properly so called.
The contentions of the Parties are, of course, obvious froni the record.
The question with which we are deding here, in response to the questions
propoundecl 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 attcmpted to
explain) according to our view, is fixed, of course, by the Statute of the
Court, and bythe Mandate, and isalwaps ofcourse subject to the require-
ments of fairness and justice in judicial administration.
It had been anticipated, in the very succinct response to ïvhich the
Applicants Iiad confined thernseh-es as an exercise of self-discipline, that
cries of "prejudice" or implications of unfairness woiild be forthcoming-
this has been the pattern from the Rejoinder on. This presents a serious
problem in terms of the desire of the AppIicants to CO-operateboth with
the Court and with the Respondent in assuring in every possible way
that requirements of fairness and justice shd be strictly honoured; this
is a factor upon which we would insist. Ithas been Our intention and
hope that evidencein the form oftestimonp might be limited. Thiscasehas
proceeded for a very long time, and the evidence is very repIete in an
unusually volurninous written record. In the history of this Court evidence
has genera1.l~been submitted in such forni, and when we hear about
implications of prejudice, or natural justice, or unfairncss, 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, cin 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 ïvhich, in many, many pages of
evidence, the Kespondent has canvassed facts, canvassed arguments, and
addressed itself to contentions beyond the ambit of those tvhich the
Applicants insisted they have been making? IVe have listened with great
interest and concentration to the lengthyre-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-iirgument what Respondent's ansvers tothe Court's questions
are.The Court has the power under the Statute to conduct such inquiries,
make such investigations of fact, as it deems appropriate and relevant.
The Applicants iiever for one moment have presu~ned to Say that the
Court lacks the power to take evidence, or consider or weigh evidence,
which the Court may consider necessary or appropriate to a proper legal230 SOUTH WEST AFRICA
construction ofthe Mandate or to the adequacy of the relief sought, or
to its propriety. We have naturaily 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 tothe authority of the Rules
and the Statute of the Court. It is our hope (andhas 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. Ifexpert opinion additional to that argued
and set forth in the written pleadings is necesçary, that wiil be put before
the Court subject to the Court's view on the matter.
One of the fundamental questions which has caused most diffrculty
to the AppIicants, 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 Xespondent's delegation,
but when one hears phrases like "what is relevant or not relevant as a
matter of faci",then it is dificult to understand whatthe requirements of
justice are. 1 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 to the muon. A rule of reasonmust be applied.
Now the Applicants have relied upon a contention which they have
adhered to consistently and reaffim, 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
seerned to regard inferences of law or Iegal 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
corpeasof fact, These are the facts upon which we rely. The Respondent
may feel it nscessary to rely upon additional facts, not merely cumula-
tively stated or repeated (as we have been exposed to in this Court
recently, when go per cent. of the witnesses' testimony was repetitive of
what was in the written pleadings).
I-Iowever, with the Court's permission, and with al1 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 suggestion, how the matter coiild 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 1 quote accurately-"the factual existence of
standards"; this was a phrase used by my learned friend-if 1 under-
stood it correctly, 1 noted it at the time-"the factual existence of
standards". It is a phrase which I cannot comment upon because 1 do
not understand it. "Standards"; does negligence factually exist aç a REPLIES IO QUESTIOSS PUT BY THE COURT 23I
standard? It would seem to the Applicants, therefore, that there is,
consciously or unconsciousIy, a diçtortion of the Applicants' case which
involves among other things a confusion between factual allegations,
properly so called, and legal conclusions to be drawn frorn them. That
whether or not a standard of non-discrimination esiçts is beyond dispute
-one looks at Article I,paragraph 3, of the Charter, and there it says,
inso many words, that the hlembers shd not distinguish on the basis
ofrace; that is a standard. How does one provc or disprove the existence
of çuch a standard? The question, of course, is its application; its
definitionI-iysome 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 seern that the evidence which the Responclent proffers
is directed to the establishment of a factual question as to whetlier a
standard exists-this would seem to be the basis of the testimony which
the Applicants find an utterly confusing and incomprehensible foundation
for testimony. It would of course be open to the Respondent, without
question, to introduce evidence, expert or otherwise, with respectto the
existence of State practice, let us say in connection with the demoa-
stration that thelegal norm is not to be found by the Court to exist as
a matter of law in terrns of Articl38 (1) (b) of the Statute. That would
seem to be essentially a legal argument-if there are factual predicates
in terms of practice of States,it would seem that they rnight be presented
by competcnt experts or witnesses; but \ve are talking here in a context
of the inteipretationof a mandate on the baçis of agreed facts, or facts
which the Applicants rely upon and find undisputed in the record and
draw frorn the Respondent's own pleading. The interprctation of a
mandate to those facts in the lightof objective criteria,we perceive in
the forrn of standards which have been interpreted and applied to this
particular set of facts by a competent supervisory orgq, and this is
the case.And of course, if the submissions-and 1 would conclude with
these impromptuand 1fear 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
subrnissions (the extent to which the Court is free, on tlie 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 fundamental question-that is perfectly
obvious.
We have contended that the jurisprudence of the Court demonstrates
that submissions arethe formulation of the dispute,and that arguments,
contentions, and reierences to factmade in submissions have frequently
been ignored by the Court as not within the bounds, ambit, setting,
function and characteristicof a submiçsion.
When the Applicants rested their case because they had concluded
their legal arguments, and presented a sumrnary of those facts upon
which they rely, with respect to the establishment of their legal theory,
they reserved the right to amend their submissions: 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 staternent of procedure.
The final subrnissionsof the Applicants may or may not, have yet
been made. As 1 stand here today 1 do not know whether they will be232 SOUTH WEST AFRICA
amended. The fundamental question is ~iot the amendment of the
submissions; this was made clear in drarnatic form in 1962-1 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 therc has been a fair opportunity to 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 coiicrete factual averment, and this we
have tried to do as one of the indispensable ingredients of a fair hearing,
natural justice in due process.
Ifthe 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. 1i7ewould regard it as irrelevant, on
the basis of Our theory; that does not goverii the Court nor does it
govern the Respondent.
Finally, 3Ir. President1would stress again that it is difficult to conceive
of a situation-and 1 am talking now about the requirements of fairness
and natural justice-in which there has been more notice of charges
brought or cornplaints made, where the breadth of the original cornplaint
has been responded to by the Respondent. It nour claims that it must be
&en the opportunity, as it says, to canvass facts in the forrn of testi-
rnony, which is cumulative at best, or which is expert, and to which the
Applicants object onlp 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 reniain, of the view that the policies and practices of
which they complain, violate thc Mandate. Such policies and practices
do so inhercntlp because by their quality and character they are incom-
patible with the welfare of the inhabitants. When we have talked about
value judgrnents, it has been in the context of the fact that the value
judgrneiits have been 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 judgincnts within the circumstances and scheme of this Man-
date.
iVhen the Respondent insists that the Applicants have not, or do not
now, contend that apartheid has bad effects upon the Territory, that,
with al1 deference, may unwittingly be a play on words. When the
Applicants contend, as they have and do, that apartheid as apolicy and
practice isso inherently incompatible with human welfare and moral
progress, that the Court need not take further evidence, then it would
sceni to me thnt it issimply unintelligible to take words and phrases out
of the pleadings, and Say that the Applicants no longer consider or
contend that this Court sliould find and dedare and adjudge that
apartheid docs not benefit the inhabitants of the Territory. lhen the
contention js that this Court should find that the policy and practices REPLIES TO QUESTIOXS PUT BY THE COURT 233
are so inherently inconsistent with moral welfare and social progress.
that weighing and balancing material benefits 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 irnpaired 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 isa 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, isinherently injurious, and that it is impermissible
under this Mandate, and if there is any evidence, expert or otherwise,
which the Resporident 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 racial 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 reçerved
to comment on al1testimony given.
With apologies for the length of this impromptu observation, 1 think
that 1 might concIude 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 rnatter of interpretation of the Mandate; if the
Court should deern it an element of the submission that some legal
theory is within the ambit of the submission in the sençe of the juris-
prudence of this Court, the Applicants would request leave to amend
this submission, to remove any such arnbiguity, if such indeed exists.
Ive 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 ancl that it is in no way prejudiced by with-
holding, if it desires to or deems it necessary to withhold, any evidence
it feels necessary or relevant tothe question of whether or not this policy
and this practice have a deleterious and a thwarting effectupon moral
progress, moral well-being and social progress. Thank you.
Mr. DE VILLIERS: Mr. President, 1should like to deal very briefly with
sorne of the points made by my learned friend. He suggested that we are
ignoring the fact thnt 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 aright, undcr 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 reaçons which 1dealt with in
fullbefore, when 1indicated that there are special circumçtances why we
consider that merely dealing with these rnatters in the written record
could not sufficiently do justice to our case-1 esplained those before-
that is, of course, if a case is presented to us on fact, on the factual
aspectsofthe 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 absolute234 SOUTH WEST AFRICA
necesçary canvassing, is not yet before the Court and that canonly come
through evidence.
Now, rny learned friend has said, in the same respect, thathe doesnot
yet know our answer to the Court's questions. 1 thought that 1 had
answered them an. 1 answered I and z exphcitly and 3 I answered by
general reference to the distinction that has been drawn by us, and 1
came back to that at the end of my address. 1 did not address myself
again specifically to the wording of question 3 and perhaps that was an
omission, which 1shoold 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 al1relevant facts,
circurnstances 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 anse-to what must something
be relevant? One of the first lessons ohas to 1ea.rnin 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 firstbefore the Court can
detemine 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 anses, when the question speâks of "al1relevant
facts", relevant to what? My çubmission jsthat that could only relate
to facts relevant to the issue as presented to the Court in the submissions
and particularly the ambit of the factual 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 al1the
relevant facts as they appear before it on the final record ofthe case.
Mr. President, we are still building that finalrecord and we must know
for what purpose, or towards what eventual result, we are building the
record. If ive 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 ure shail 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 Ourevidence
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 al1 relevant facts, 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 come back to the example which 1used before. A party making
a case on, Say,a deliberate 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-
re resentation-alters his case and says: "now 1 no longer make that
a egation; 1 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 isadvised 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 1çtill find that a fraudu-
lent misrepresentation has been established."
That is the distinction, Mr. President, and the application here, 1
submit, will be an obvious one.
On the question of the purpose for bvhichwe are leading evidence, my
learned friend made some play of the words "the factual existence of
standards".
Now, Mr. President, of course, we understood hiscontention to rely
both on a Iiorm 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 shortha.nd expression is intended to convey.
There is, in regard to standardsand 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 staridards would injure weI1-beingand 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 tlie 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. 1 perfectly agree, Mr. Presiderit, that
those are çometimes ignored, but only in so far a.sthey are superfiuous
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. Thosare 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
thNy learned friend ha said that his. finalsubrnission has not yet been
made and he does not yet know at this stage what that final subrnission
may be. That may well be so, Mr. President. I-Iereferred to the fact of
Our 1962amendment of our submissions ata very late stage. He leaveç
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 Iaw after we had made the amendment. There
could be no prejudice; there was no question of rnarshalling 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
vitaI 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.
Finaiiy, my learned friend has said that he has invited us to ask for
clarification of certain aspects of his case, and he says can still doSO.
He can clarify aspectof his casein so far ai.vmay not understand that
case. But, Mr. President, whatare we faced with in the present situation?
Ie are not facedwith a question of clarification within the ambit which
he has indicated for his case in his amended submissions; we are faced
withthe position of an obvious desire now, on the part of the Appficants,236 SOUTH \TEST AFRICA
to estend the ambit again of their submissions or to give an extended
interpretation to their submissions, at a stage when it may be pre-
judicial to us. Arwe now to ask for a clarification of statementsinwhich
this estended, so-calied interpretation is given which really amounts to
an extension of the ambit of the definitions?I submit. no. If my learned
friend wants to rely on something wider, as a factual proposition, than
he made so clear to the Court before, then it is upto 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 necesçary forma1 application
to the Court. \Ve shail 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 rnust, with subrnission,
obtain clarity. My learned friend says that whcn we sa to the Court
Y
that the Applicants do not contend that the policy O apartheid, or
separate development, or differentiationor cd1 itwhat you WU, haç bad
effects,then we are creating a wrong impression.
hlr. President, 1 thought that I indicated the distinctions so clearly
and the Applicants have made it so clear to us in repeated passages,
some of which Ihave 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 ta the
Court, and they are giving us notice that we need not rneet 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 prc-determination
has been made, the value judgrnent has been made, and the Court js
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 (1 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
hand, and the so-cailed quantitative aspects of material well-being, on
the other.
They did at onestage 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 Court is 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
measures 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 allegednom and allegedbinding standards. So that isquite
clearly the case which they have made thus far, and in these circum-
stances 1do not understand this invitation to us, now extended by my
learned friend, to bring whatever evidence we like on this question ofthe
effectin 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 directthat evidence to when the Applicants
made it clear to the Court that they rest their case on a~submission that
the result isa perse one-that it isan inherent and an i!legal one. Until
they have altered that proposition, then any informal invitations they REPLIES TO QUESTIONS PUT BY THE COURT 237
may extenrlto us in that respect have no bearing and-\no significance
whatsoever, eçpecialiy not when they corne at this late stage of the
proceedings when they have not attempted to regularize the position
in that respect.
1thank you, Mr. President. 24.HEARING OF THE WITNESSES AND EXPERTS (continued)
AT THE PUBLIC HEARINGS OF 1 JULY-21 OCTOBER 1965
The PRESIDENT:Mr. de Villiers, could you indicate to the Court-
you had intended to cal1witnesses this mornin1sthere any purpose in
commencing the calling of the witnesses at this stage-twentminutes
to one?
Mr. DE VILLIERS:it is for you to decide, Mr. President. My learned
friend,hlr. BIder, 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 : ay it please the Court, Mr. President, my Iearned
colieague, Mr. de Villiers, has indicated that the next witness wili be
Professor Bruwer. His evidence willrelate to the issues raised under
Applicants' Submissions Nos. 3 and 4. The particular points to which
his evidence willbe directed willbe the following: the differencesbetween
the various population groups of South West Africa, the consciousness
of a separate identity arnongst the different groups, their wishes to
maintain their separate identity, and what, in the opinion of the witness,
willbe the effectalflneasures of differentiatonnthe basis of member-
Africa. a population group were to be done awaÿ with in South West
May 1explain, before the witness is introduced, that Professor Bruwer
is Afrikaans-speaking? He does speak English, but he is not so pro-
ficient in that language as in Afrikaans. He would have preferred to give
his testimony in Afrikaans, but we have certain practical difficulties
with regard to interpretation. He has consequently decided and agreed
to give hisevidence in English.
May 1 introduce the witness, Mr. President.
The PRESIDENTD : OSO.
Mr. MULLER:May 1 askthat the witness be calied upon to rnake both
the declarations provided for in the Rules of Court, as witness and
expert.
The P~SIDENT: The witness will make declarations both as a witness
and as an expert.
Mr.BRUWER I: my capacity as a witnesç 1solemnly declare, upon rny
honour and conscience, that I wiUspeak the truth, the whole truth and
nothing but the truth.
In my capacity as an expert I solemnly deciare, upon my honour and
conscience, that my statement wilibe in accordance with my sincere
belief.
hlr. MULLER:Professor Bruwer, yourfull names are Johannes Petrus
van Schalkwyk Bruwer, is that correct?
MT. BRUWERT : hatiscorrect, Mr. President.
Mr. MULLER :ou were bom in the year1914 ,s that so?
Mr. BRUWERT : hat is correct, Mr. President. WITNESSES AND EXPERTS 239
Mr. MULLERD : idYOU qualify as a teacher and a missionary?
Mr. BRUIVER:Mr. President, that 1s substantialiy correct. 1 was
qualified aa teacher withaview to serving in one or other mission field.
Mr. BRUFVERR :M:r. President, 1 served as an educationalist in theiod?
mission field in Northern Rhodesia for years.
Mr. MULLER : Did YOU subsequently obtain the following academic
qualifications:sl~alireadthem and you can state whether I am correct:
Bachelor of Arts of the University of South Africa?
Mr. BRUWER:That is correct, Mr. President.
Mr. MULLER M:aster of Arts of the University of Pretoria?
Mr. BRUWEP T:hat is also correct, Mr. Preçident.
Nr. ~IULLERA : nd a Doctor of Philosophy of the University of Pre-
toria?
Mr. BRUWER:That is also correct, Mr. President.
Mr. MULLERW : ill you kindlÿ explain to the Court what your special
field of studv is?
Mr. BRUWER:Mr. President, while I was working as a missionary
1 found it very necessary to be able to know more about the people
amongst whom I was working at the ,tirne,and for that reason I chose
as my specid interest of study social anthropology and linguistics,
meaning mainly African languages.
Mr. MULLERW : as that dso youfieldof study for the -cgree ofDoctor
of Philosophy?
Mr. BRUVER:Yes, Mr. President, actualIy for the B.A. degree 1ma-
jored in social anthropology and linguistics; 1also have an M.A.degree
in both social anthropology and Bantu languages, and, as far as the doc-
tor's degree iç concerned, I concentrated mainon socialanthropology.
Mr. MULLER: What is your present occupation, Professor Bruwer?
Mr. BRUWR: My present occupation, Mr.President, isthat 1 am hold-
ing the Chair of Social Anthropology at the UniversityPort Elizabeth.
Mr.MULLERD :id you hold positions at other universities in South Afn-
ca in the past?
Mr. BRUWERM : r. President, 1 was appointed senior lecturer in social
anthropology at the University of SteLienboschinJanuary 1951, and 1
served in that capacity until Decembe1955 w,hen 1was promoted to the
Chair of SocialAnthropology at theame university, that içthe University
of Stel1enbost:h.
Mr. MULLER:Have you held positions in universities outside South
Africa?
Mr. BRUWER:Mr. President, 1had a brief experience, or atleast 1 had
the opportunity for a short span of time, that is for six monthç, to be
viçiting professor at the School of Ad.anced International Studies, at the
Johns HopkinsUniversity inAmerica,
Mr. MULLER :What period was that?
February 1960.:That was from September 1959,Mr. President, up to
Mr. MULLERH : ave you been connected withanyof the non-Enropean
universities in South Africa?
Mr. BRUWER:Mr. President, 1was a rnernber of the governing coun-
cil of the University Collegeof Fort Hare, during 1gj8-1959,and then in
1959 I \vas appointed chairman of the governing council of the newly
foundedUniversity CollegeofZululand.240 SOUTH WEST AFRICA
Mr. MULLER:Am I correct in saying that you havea practical know-
ledge ofmost of the Bantu groups inSouth Africa?
Mr. BRUWER M:r. President,1have had practical experience amongst
the Sulu people, amongst theXhosa people,amongst the Northern Sotho
people, and amongst the Bavenda people-al1 members of the Bantu-
speaking peoples of South Africa.My experience was mainly in the form
of field research, b1have also served on the General hlissionary Council
of the Church in South Africa for many years, and also, in that capacity,
1 had practical experience in regard to the AfricanpeoineSouth Africa.
Mr, MULLERD : Oyou speak any of their languages?
Mr. BRUWER:Mr. President, 1have agood working knowledge of the
Zululand language, which isactually also understandableby the Xhosa
people.
Mr. MULLER A:re you connected with the Board of Control of Radio
Bantu in South Africa?
Mr. BRUWER :hat is correctMr. President, 1 am a member of that
Board.
Mr. &~ULI.ER: Wili you explain to the Court what the functions of
that Board are?
hlr.BRUIVER :r. President, the Board of Control in regard tRadio
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 H:ave you knowledge of the Bantu people in other parts
of southernAfrica outside South Africa?
hlr. BRUWER:Mr. President, indeed, yes Ihave. 1 have already told
the honourable Court that 1 was working as a missionary in Northern
Rhodesia for 16 years, and naturaliy I had experience of the Bantu
people in that territory, bu1 also had the opportunity tovisit quite a
number of other territories in southern Africa, mainly with a view to
get acquainted with the various peoplinthe territories.
Mr. MULLER: Will you mention some of the territories whicyou have
visitedfor that purpose insouthem Africa?
hlr. BRUWER: MT. President,1have actually visited most of the terri-
tories£rom Uganda dom southwards, that is, I have visited Uganda,
Kenya, Tanganyika which is at present, of course, called Tanzania;1
have visited the Congo, Ruanda Burundi-at that time stilone terri-
tory-1 have visited Angola, hlozambique, 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 Africaand the three High Commission Terri-
tories of Swaziland, Bechuanaland and Basutoland.
Mr. MULLER:You have told the Court that you were a missionary
for16 years in Northern Rhodesia. Did you there conduct any anthro-
pological field research amongst the Natpeople?
3fr. BRUWER : r. President,my main academic research, that is
research that had to deal with material that 1 had to prepare for aca-
demic purposes and acadernic degrees, mainly dealt with the people of
CentralAfnca. 1 may tell the honourable Court, Mr. President, that 1
have always been very much interested in the rnatrilineal type of society
in Africaand 1 chose as my examples of study certain groupsin Central
Africa; for instance1 worked amongst the Chewa people who are, or
were, also cded the Njranja people-the people today referred to as
the people of Malawi; 1 aiso worked amongst the Kunda people of the WITNESSES AND EXPERTS 241
present Zambia,,and 1 worked amongst the Nsenga and also the Ngoni
-al1 of them residing in the present Zambia.
Nr. MULLER D:O YOU speak any of the languages of the people that
you havejust mentioned?
hfr. BRUWER:Mr. President, 1 speak Chewa or Nyanja as it is more
uçually called, and that language actually for16 years for practical
purposes, but1 also speak Nsenga which is. to a certain extent, related
to Nyanja. 1 also speak Kunda. Mr. President, the first two languages
are languages which have been reduced to writing, but the Kunda lan-
guage has riot 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 1have. 1 tried to give service
in regard to the development especially of the Nyanja language, and in
that respectI aided in regard tothe efforts of the then Joint Publications
Bureau of Northem Rhodesia and Nyasaland. 1 have also at one tirne
made a revision of the Nyanja dictionary that was originaüy cornposed
by Dr. Hetherwick and Dr. Scott.
Mr. MULLER:\Yere jToua member of any board-educational board
-in Rhodesia while you were there over the period 1935 to 195o?
hlr. BRUWER M:r. President. inrny 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
whcther you have done research work in South West Africa?
Mr. HKUWER:Mr. President, -es, indeed Ihave done research work
in South West Africa. As 1have already told the honourable Court, 1
am very interested in the matrilineal group of peoplein Airica, and
while 1 was working for my doctor'ç degree, working on the matrilineal
group of Central Africa,I naturally hadan inclination to also visit the
people in South West-that was in 1954-and actually my research
arnongst those people started in 1954, although 1 did major research
work only a little bit later.
Mr. MULLER Amongst which of the population groups in South West
Africa have yyodone research rvork?
hlr. BRU~VER M:r. President, 1 have mainly concentrated on the
matrilineal Bantu-speaking people, naturally, and1 have concentrated
mainly on the people of Ovamboland and of the Okavango region, but
1 have done lesser research work for comparative reasons also amongst
practicaliy:dlthe other groups; I have also concentrated inregard to
research work on the one group of Bushmen generally indicated as the
!Kgu orthe Mbarakwengo.
Mr. MULLER:Have you held any official positions in South West
Africa?
Mr. BRUWER:Mr. President, yes, indeed 1 have. In 1964, atthe be-
ginning of1g64, Ias ap ointed Comrnissioner-Gcneral for the indigenous
groups of South West A frica.
Mr. MULLER F:or how long did you hold that position?
Mr. BRU~ER: 1held that position until Decembe1964M ,r. President.242 SOUTH WEST AFRICA
when 1went to rny present position, that is as Professor at the University
of Port Elizabeth.
Mr. MULLER ;id POU serve on the Commission known asthe Odendaal
Commission?
Mr.BRUWER :hat is correct, Mr. Preside1served on that Commis-
sion as amernber from September 1962up to December 1963,when the
Commission submitted its report to the Government of South Africa.
Mr. MULLER :ave you assisted in publications regardithe Bantu
people of South Africa or South West Africa?
Mr.BRUWER : r. President, in regard to the Bantu-speaking peopleç
of South Africa1 am the author of one comprehensive monograph calied
The Balatuoj SozltAfrica,in AfrikaansDie BaritoevanSuid-Afrika,and
that monograph deals also with thentu-speaking groups in South West
but not in suchgreat detail; then1have also published approximately
nine other books, dealing main157with the history and certain eminent
figures amongst theantu, and also Bantu folklore.
Mr. MULLER :re you at present busy with any as yet unpublished
studies oBantu or Native people?
Mr. BRUWER: Mr. President,1am at present busy working on a com-
prehensive monograph on the peoples of South West Africa-theBantu-
speaking peoples-that is, the Ovarnbo and the Okavango's.Ihave al-
ready finished one brief preliminary study on one group in Ovamboland,
namely the Kwanyama.
Mr. MULLER Professor Bruwer, you told the Court yesterday that you
have an intimate knowledee of the Native ~eo~lesof South West Africa.
Have you at any time livgd amongst any 6fthe ~atibe groups in South
West Africa?
Mr. BRUWER: Mr. President, naturallyif1 am doing research work
amongst people, I stay amongst them, and 1told the honourable Court
yesterday that1 have been doing research work in South West Africa. In
1959 1 stayed amongst the people for eight months, and again 1962 1
had intendedto stay for the whoIe year amongst the people of SouthWest
Africa, invamboland, but having been appointed on the Commission of
Enquiry into the Affairs of South West Afri1could only stay amongst
them for nine months of the year; bu1 have also often stayed amongst
them during vacations while1was proceeding with my research work.
Mr. MULLERD : OYOU speak any of their languages?
Mr. BRUWER: Mr. President,1speak the language of the Kuanyama
peoplethat is one of the peoples of Ovambola;1 also have a working
knowledge of the Ndonga language and of the Kuangari language spoken
in the Okavango Territory.r. Presidentif Imay be permitted-when 1
say a working knowledge 1 mean that 1 can decipher fairlÿ well written
material;1 can foliow the gist of a conversation; Ican make myself
understood; but that does not mean th1tam conversant in a languagin
which 1only have aworking knowledge.
Mr. MULLER: 1 want you to express your opinion with regard to the
population of South West Africa-would you say thatthe population is a
homogeneous one ?
Mr. BRUWER : r. President, indeed, nc-1would not Say that the
population of South West Africa is a homogeneous one, taking into WITNESSES AND EXPERTS 243
account the sense and meaning of the ivord hornogeneoiiç. To the con-
trary, looking at the population from an anthropological point of view,
1 would in fact Say that it is extremely heterogeneous, comprising asit
does a number of separate and also distinguishable groups or com-
munities of people.
hfr. MULI,ER W:hat critena would ~ou use in espressing the opinion
that you have just given?
Mr. BRUWER M:r. President, 1 would naturally use criteria within the
scope and limits of my discipline-that is, social anthropology-and
I would very definitely apply, if one could call them criteria, the fol-
lowing factcirs: the question of identification by means of a specificname
for a specific people; then 1 would al50 apply the factor of ethnic back-
ground to find out whether the people are of diverse ethnic background,
or whether they have the same ethnic background; and, Rir. President,
one of my majorcriteria as a social anthropolegist wouldcertainly be the
civilization or the cultural configuration of the various groups. I will
compare thcir differing civilizations, if they indeed do differ, and on that
basis 1 would îhen Say that 1 can distinguish one or more groups in the
population. Naturally, I would also make use of the factor of temtorial
abodes-that is, the place where they stay, since a people are very often
brought into relation with their area of abode.
Mr. ~IULLERS:tarting with your first cnterion or factor, what are the
differentnaines of the groups in South West Africa, as you identify them?
collective terms for the various groups on the basis of identification by
means of a specific narne used in regard toa specific people, 1 would be
able to distinguish the foliowing groups within the heterogeneous popu-
lation of South West Africa: the Bushrnen, 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 Imites or Caucasoids; those would be the groups that
1 would be able to distinguish on the basis, hlr. President, of nomen-
clature, specificames; but if1may be permitted, Mr. President, 1would
like tosay that there are naturally also other terms which are more of
an indigenous nature. For instance, 1 have used the teim "Bushmen" to
indicate a specificgroup of people. Now that naturaüy is a term that has
been coined by the dite people, meaning "people of the bush". But
similarly, the Herero people mill, for instance, refer to the Bushmen as
the "Ovatwa". The Bushmen themselves, again, have their o\vn names
to identify themselves, and with the Court's permission 1 wili give only
one of those narnes, narnely "!KhungN. Sirnilarly, the Ovarnbo 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 narne by which
they will for instance indicate, say, the White people or the Caucasoids.
Now the Rerero wilI refer to the White people as the "Ovilumbu",
meaning perhaps "pale-faces" or "white ones". The Ovarnbo again, in
lyana", meaning "the red ones". So, Mr.President, 1think 1have madeti-
it clear that there definitely is a distinguishability of groups on the basis
of the identification by rneans of names.
Mr. MULLER: With regard to certain of the groups, you have referred244 SOUTH WEST AFRICA
to a "cluster", suchas the "Ovambo cluster"-whal do you mean by
that?
Mr. BRU~VER M:r.President, in using the term "cluste1had in mind
a group of people having certain factional subdivisions, but on the basis
of a patternofcuIture, on the basiofa collective name and oiithe basis
also of their temtory of abode they are in fact a group.
No\v, to explain the term "factionaI sub-division", hlr. President,
1may, for instance, take the Bushrnen as an example-thereare factions;
1have already mentioned the name of one faction, the !Khung; there is
alço another faction, the Heillorn; there is yet a third factor, the !Kga;
and even a fourth one, hIr. President, the Nusan//Aikwe; they are aii
Bushmen and they form one group.
SimilarIu, in Ovamboland, we have factions identifying themselves by
indigenouç names. 1 shall repeat, for instance, the eight indigenous
names of the factions comprising the group or people of Ovarnboland:
we have there theKuanyama; we have the Ndonga; we have the Kuambi;
we havethe Ngandjera; we have the Mbalantu; we have the Kualuthi;
we have the Nkolonkati; and we have the Eunda. That is indicative,
Mr. President, ofmy use ofthe term "cluster".
hlr. MULLER :an the different indigenous groups in South West
Africa be classified into two main groups?
Mr.BRUWER M:r. President, it could be dorie. anin factit içalço
very often done in anthropological descriptionç; the two main categories
then being, on the one hand, the category called Khoisan, and on the
other hand the category called Bantu. Now, Mr. President, since both of
these terrnç are actually coined terms, derived from the indigenous
languages thernselves, 1 would beg to offer a very brief explanation.
The term Khoisan is composed oftwo 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 meaning,
in the Hottentot language, "peopIe", and San being the tcrrn used by
the Hottentots to indicate the Bushrnen. In other words. we have the
Hottentots' name for themselves, asa people, and the name they use for
the Bushmen, forrning one term to indicate one cntegory 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 al1the languages also referred to as Bantu languages; sornetimes
we have phonetic variations, for instance in SoutWest Africa the term
would be Ovantu and Ovanhu; the term Bantu beingprimarily the Zulu
term, and it was applied in the previous century by the linguist, Dr.
Bleek, in denoting this farnily; and so when 1 use the two names for the .
two categorieswe have, on the one hand, the category comprising the
Bushmen and the Nama in South IVest Africa-being the Khoisan
group-and the various Bantu peuples belonging to the Rantu group.
On thatbasis one can, indeed, distinguish two main categoriof people.
Mr.MULLER :Vhat are the main differences between these two groups
that pou have just described?
hlrBRUWER Pardon. Mr. Preçident, 1did not get that question very
lvell?
Mr. MULLER : hat arethe differences between these two main groups
that you have just described-the Khoisan on the one hand, and the
Bantu on the other hand?
Mr.BRUU'ER X:lr.President,trit thdrespect, the question thai has ~VITSESSi?S ASD EXPERTS 245
just been put to me is a very complicated one. We have to deal with
languages distinguished as two language families on the basiç of their
great structural and morphological differences. The Khoisan language
family is what one may perhaps call one of the interesting language
farnilies of Africa, andit is ctiaracterized 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 aie characterizecl by the fact that tone playsavery important
role in the language, in the sense that onmay have a word which, if you
write it in its spccific orthography, wiil look exactly the same, but when
the man pronounces the word and makes use of certain tone levels, 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 itçelf
differ altogether from, for instance, the Bantu languages. As far as the
characteriçtics 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, 1 would Say that oneofits main
characteristics of differentiation as a language family is, in fact, the
classification ofouns in various classes; every class has got a distinguish-
ing prefix in the singuIar forrn of a noun and in the plural; and that
prefix influences the entire senteilce, 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 1 would just Say that it is not possible to translate in a Bantu
language unless one first knows the subject of the sentence, because
your whoie sentence depends upon the claçsin which the subject of the
sentence will fall. Then, the Bantu languages also have another very
interesting phenomenon which the linguistics usuaily call the ideophone;
it isa 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 descnbe something by using just one ideophone where, for instance,
we would have used a whole description. In short, Mr. President, those
are the differences bet ween the two language families-the Khoisan
language farnily and the Bantu language family.
Mr. MULLER: 1s there any other main differencc 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 Iwould 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 Bantu; so one can immediately
see that you have to deal with aperson belonging to either the Khoisan
or the Bantu family.
Mr. MULLER: YOUhave indicated that under the Khoisan group you
class the Bushmen and the Nama. Which of the population groups fail
under the other main division-that is the Bantu group?
Mr. BRU~TR:Mr, President, the Bantu family or the Rantu languaee
family-the users of the Bantu languages-in South Weçt Africa 1s246 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:YOUhave 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. BRU~VER T:at istrue,Mr. President, I did not mention the Dama.
One sometimes finds, Mr. President, to your disiliusionment, 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
cded 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-in fact, the name Dama means
dark people, and that is the name applied by the Nama to indicate the
Dama.
clasçifiedwith thenKhoisan,lionuiatbasis of physical featuresthey t~vould
have to be classified with the Bantu as being what is sometimes called a
negroid type of people.
Mr. MULLER:Can the difierent groups understand the languages of
other groups in South West Africai
Mr. BRUWER:Mi. President, naturally not. The Khoisan languages
are very definitely not understood by people using the Bantu language.
Since 1know, 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 Ovarnbo and similarly, the language of the Ovambo is
not easily understandable by the people in the Okavango. And, Mr.
President, when one comes to the Easterii 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 itis altogether different from any of the other Bantu languages in
South West Africa.
Rir. MULLER:Would you next deal with your second cnterion, that
is, the matter of ethnic background.
Mr. BRUWER:Mr. President, the ethnic background of a people has
to do with allevents 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 ethnic
background. But, Mr. President, with due respect, 1 do hope that it is
not expected of me to burden the honourable Court with the minutiae
of this whole matter. 1shall only touch on the more salient features that,
in my opinion, have a bearing on the definite distinguishability of the
various groups.
It wiU be recalled, Mr. President, that even information in regard to WITSESSES AND EXPERTS -47
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. 1 can recall,Mr. Prcsident, from the available sources which 1
wiIl not quote, but which are there, that the first tirne that people or a
group of people made contact with another group of people, in the sense
thatthe one group gave inforniation about the other, was not before 1760,
when a South African hunter and traveller by the name of Jacobus
Coetzee crossed the Orange River, which, at that time was not called
the Orange River, but which was called the Gariep, a Nania term, and
1 mention that, Mr. President, because Coetzee was the firman to make
contact with the Nama people north of the Orange River, that is inthe
southern part of the region or part of Africa today called South West
Africa, and1think it is probably as a result of the information byvthis
traveiier thatIhave mentioned that an expedition was sent out the very
next year, that wasin 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 1iving.there.
Noxvthe leader of that cxpedition,aman by the name of Hendrik Hop,
wlio also wns from Stellenbosch, Mr, President, had witli him a car-
tographer, a man who had to do the mapping ofthat area, and it isvery
interesting to note that on thnt old map one finds an indication of the '
existence at the time of two identifiable groups of people,namely the
Nama-he actualiy indicated Namaland on that mapand also assigned a
portion of the Nama desert to the people that he, at that time, also
indicated as the Bushmen. So we knew at that time-from the records
me could Say that we knokv-that these two groups existed in South
West Africa at that time,
About the Dama, nothing \vas actually knom befare 1791
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 allMr. President,
that we knew about the ethnic situation in these regions of South West
Africa, by the end of the eighteenth century.
As far as the groups farther north are concerned, one does not find
any substantial material before the nineteenth century and it was not
before 1837, in fact, that what1 would cail a reliable account in regard
tp the existence of the Herero came to the fore, as a result of the expedi-
tion ofSir James Alexander, and, asfar as the people still farther north
are concerned, Air. President-the people 1 have already referred toas
the people in the Kaokoveld, the Ovambo, the Okavango-nothing was
actually known about them before the second half of the nineteenth
century. It waç only in 185r that Sir Francis Galton and Charles John
Andersson attached themselves to a çmail group of Ovambo, who had
come down to fetch copper, and, then, in that way, reached Ovamboland.
Andersson later on continued his explorations and it was not before 1860,
actualiy a mere century ago, Mr. President, that we came to know about
the people in theOkavango. t
1 mention these things, hlr. President, so as to indicate that1have
to explain the ethnic background of these people, soasto indicatewhat
one can distinguish in regard to ethnic background among the vanous
groups, one can Say that this group is a distinguishable group.248 SOUTH WEST AFRICA
One has, of necessity, to rely also on oral traditionbecause, inregard
to the origin of these people, one cannot Say that the people originated
by the end of the eighteenth century. They wese already there in South
Weçt 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, 1 must admit that, in giving the honourable Court a very brief
explanation of that, 1 am relying on my own research work since not
much has really been done so far in regard to the ethnic history of these
groups before the eighteenth century.
1have tried my very best to collect, to interpret, and to put on record,
as far as 1 possibly could, the oral traditionsin regard to ethnic back-
ground and the very first thingM,r. President, thatstrikesme in regard
to this is that, whereas theantu-speaking peoples have preserved much,
even in very great detail, about their ethnic 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 al1times. And that
applieç especially to the Bushrnen. So 1 wiU sirnply just conclude,
Mr. President, by saying that, in regard to the Khoisan people, 1 think,
on the basis of al1 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 1 include the Dama aiso 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,1 am afraid.
Mr. MULLER: 1 do not want you to do that,Professor Bruwer. Will
you kindly proceed to indicate to the Court the ethnic derivation of the
Bantu groups in South West Africa.
Mr. BRUWERM : r.President, 1 have no doubt in my mind from oral
tradition that the very first people arnongst 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 Valley. 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 coincides
with the big migrations of the Rantu-speaking peoples in the mid-cen-
turies.
The first geographical link with SouthWest Africa is the Okavango Ri-
verand from the tradition onegathers, Blr.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 otherpup going farther
west until they reached the interesting country today called Ovamboland
-acountry with plains, very good grazing-and then they settled there.
Now, Mr. President, anthropologists usually make use of the geneaiogi-
callineages of chiefs to try to date a certain eventin the histoapeople.
Naturaliy one can only do that approximately, but it is interesting that
the people of Ovamboland, the Ovambo people, stili remember the lineage
of21 chiefs, that iç hereditary chiefs. On that basi1 have tried to date WITSESSEÇ AND EXPERTS 249
this migration and 1 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 cailed 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 1 have indicated as the Herero and from aU available infor-
mation, Mr. President, one must Say that the Herero people entered the
areas of South West Africa frnm the north, aeross 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 vers fact that people related to the Herero are also
to be found on the northern side of the Kunene River in the JIossamedes
Province of Angola and that people ethnically related to the Herero are
still occupying the Kaokoveld today,
Now, Alr. President, from the traditions. and alsofrom the avaiIable
sources during the eighteenth century, it would appear-and 1think one
could rely on that-that the Herero, by the end of the eightecnth century,
were stillconfined 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 Iiand, the Nama people of the southcrn part and, on
the otherhand, the Herero.
The Ovambo also have a tradition, which they still remember very well,
that approximately during that time. and they name it by means of the
chief who was reigning at that time, the Herero, in the proceçs of migra-
ting southwards also tried to invade Ovamboland, but that they were
driven back by an organized force of Ovambo fighters
That, 3lr.President, iç an indication of the diverse backgrounds. There
is just one group, nnrnely the group in the Eastern Caprivi, on which 1
would like to give someinformation in regard to their ethnic background.
Xow, the people of the Eastern Caprivi, hlr. President, belong to the
people of South West Africa to some extent, 1 would Say, as the result of
an historic accident, but their entire ethnic backgroundis different from
any of the other groups in South West Africa. One of the main things 1
would mention here (because that has a bearing on their language) is the
fact that during the previous century, as the result of the wnrs stimulated
by the Zulu paramount Chaka in the çouth, there was a trernendous tur-
moi1in what is today called South Africa, but that turmoil had its results
also in other parts of Africa, and one finds that certain groups moved
northwards, and one of these groups, called the lCololo,moved from the
present Orange Free State, through Bechuanaland, through the present
Eastern Caprivi, right up to the present Barotseland, part ofZambia; 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 mhich at that time was residing in tlie Eastern Caprivi.
Hence the use of the Sikololo or Lozi language in the Eastern Caprivi
and, of course, in Rarotseland; a language which stiU has very strong
affinities with the original Sotho language used by the Sotho people, or
the originalI<ololo,that is the Kololo of thelast century.
That, Mr. President, gives a short indication, and,I think it is possible
to Say,on the basis ofthe cthnic background as it isktiown to us,one can
definitely distinguish certaingroups of people. It is also interesting that250 SOUTH WEST AFRICA
these groups have,in somecaseseven over a very long span oftime, main-
tained and also retained their identity as a group. Theyhave retained it
by means of their name, they have retained itby means of the area where
they settledand where they are still today, and they lookupon themselves
by means aofetheir ethnic background, fromIother sirnila groups.inguish,
Mr. MULLER In your description with regard to ethnic background of
the groups, you have not dealt with two groups that you had 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 M:r. President, the Rehoboth people, or Basters as they
aresometimes callecentered South West Africa during theprevious 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 smaUgroup of people and ulti-
mately, in 1870 ,f 1remember well, they settled at a place which they
called Rehoboth (that is not only one centre, iaterritory)and theyactu-
aily got this land from oneof the Nama groups which had moved a little
bit farther north, namely the Swartboois, and as a result oatreaty with
thisNama group they were allowed tooccupy thatpicce ofterritory.These
people naturally had been affectedby certain systems u~hichwerein vogue
in the Cape Colony at the time and,as a result of that. they, for instance,
drew up a sort of constitution as a people-they call it theVaderlike
Wette which one could perhaps translate as the patriarchal laws-and in
that way they tried, and definitely also succeeded, to maintain their own
identity as a group of peopla,community ofpeople, inSouth West Africa.
Mr. MULLER C:an you tell the Court something about the early settle-
ment of the Europeans in South West Africa?
Mr. BRUWEX hlr. President, after the settlement period1 have just
described, one, of course, cornes to what one could perhaps look uponas
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 su far as SouthWest Africa is concerned, characterizeby two impor-
tant things, or happenings. The first is the influx of yet other groups.
1have just mentioned the coming of the Rehoboth people. There was
also the coming of the people, sometimes caiied the Orlams, who ultima-
tely superimposed themselves and becarne part and parce1 of the Nama.
There was also the coming of the Whites, the Caucasoids or White people,
but the first half of the nineteenth centurMr. President, in SouthWest
Africa also saw the contact between two groups of people, namely the
Narna and the Herero.
And, Mr. President, it is perhaps best to describe the essence of that
contact by aphrase which is still found in the traditions of these people.
The Nama being nomads, pastoralists, used to Say that wherever you see
the spoor ofa Nama man, know then thatthat 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 perhapssay that there
was no real delimitation of areas between Nama and the incorning Herero
from the North. And that position, as the result of the contact, brought
about a tremendous struggle-1 am not going to go into details, Nr. Pre-
sident-a struggle that lasted from 1820 to approximately 1892, that is WITSESSES AXD EXPERTS z5 I
even after the period when the Cermans had already begun to occupy the
territory. And the result of these struggles, on the one hand against the
Nama and theHerero, and on the other hand again also sometimes amongst
the Nama and Orlams, one could perhaps sumrnarize 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 1do not think that
one can Say that any one of these two groups, during that hundred years
of struggIe, actually came out as the conqueror, if one could use that word,
because the settlement of theGermans came in between.
But 1 ïvould 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 tookplace, at the same place, but this
time it !vas the Herero massacring the Nama. And these unfortunate
times, >Ir.President, in the history of these people, came to an end only
after the occupation by the German authonties. I would like to add, Mr.
President, that it is very interesting to note that, in regard to this period
of struggle inSouth West Africa cfuringthe nineteenth century, the people
up in the northern parts were not rnaterially affected by these struggles.
That is one of the interesting factors in sumrning up the whole position,
that pou had here people, four groups staying up in the north, not being af-
fected at dl by the struggles and wars that went onin the southern part.
Naïv I think one must of course keep in mind that these people were
far apart. fiIr. President, in dealing with the various groups one must re-
member that from the Orange River to the Northern Boundary of South
West Africa is nearly1,000 miles, and 1think 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 strugglesin the South.
hlr.MULLER: I want you to deal nest with Sour third criterion, and
that is cultural configuration.
Mr. BRUIVER M:r. President, in dealing with cultural configuration as
a criterion of distinguishing between groups of people, I would liketo
submit that what I mean by ciilturd configuration is the pattern of
culture IV-hichcame into being as sresult of the achievement through the
own creative genius of a people and, Mr. President, 1 would like to
stress 114th your permission the phrase "achievement through own
creative genius", because in dealing with the differing civilisations of
mankind, in studying thcm as 1have 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 oxrn kind, but which is not of
necessity iiiferior or superior to the qualitÿ of another culture. And
especidy when we corne, Jlr. President, to the cultures of Africa. 1think
in using the cultural configuration, as a basis to distinguish between
groups, 1 cannot but say that here again one comcs under the impression
of the quality of the culture of a people, whether it is a srnall people or
whether it is a big people.
The cultiiral configuration naturally,hfr.President, includes a variety
of things having to do with the way of life ofa people being, as1 already
have said, the sum total of the achievement through that creative genius
of a people. It includesintm alia, the Ianguage of that people, it includes252 SOUTH WEST AFKICA
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. MULLER: 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 : r. President, with permission, yes 1would 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 quaiity of the cultures of Africa is
indeed their achievement through their languages. These languages must
not, Mr. President, be Iooked 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 thingç; they are languages which have in the~na quality of expression
which 1 must admit, Mr. President, is very definitely not present imy
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 parce1 of the
creative African genius which is samething by itself, distinguishable from
the creative geniuçofother 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 1 think have not always been discovered.
Mr. MULLER Y:OUhave refcrred to social structuresand institutions.
Would you explain to the Court briefly the differences between such
social structures and institutionamong the various population groups?
Mr. BRUWER : r. President, as to the social structure and institution
of the people: I have to deal with that part of society which replates,
which gives a certain form to society, which in fact is the structural
basis of the functioning part of society; and when we have to do, Rfr.
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,1 shall only point out the more
salient features of these social structures anthe social institutions.
1would like to state first of all, 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 phenornenon that the social structure is based
primarily on a system of kinship, that is,the system by which people
subscribe to kinship relations, the way in which they believe kinship to
function.
Now, in regard to the basis of kinship in so far the social structure
and institutions are concerned,there are two major characteristics which
1 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
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 esplain that term, Mr. President, 1 shall use a very easy
esample. It is a term that is usually used in anthropological literature
in regard to kinship systems. We speak about a classificatory systern as
against a descriptive system. Now, by classificatory systems of kinship
is meant the pheiiomenon that, embodied in the kinship system one has
a principle that a certain kinship term wliich 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 same relationship as that original
person. If 1,for instance, as a speaker, address a certain mari as my
father, then 1 will address al1the people called brother by the man that
1 address, as father-1 will address al1those people as my father. Simi-
larly, if1 have a mother, and 1 call her mother, 1 will address all the
people that she calls sister-as mother.
Now it follows from that, Mr. President, that within the same genera-
tion one has an extension of the idea of brotherhood and sisterhood. You
wilI cail al1 the children of the man or men that you call father your
brothers and sisters, or the children of your mother and al1the women
that you cal1mother your brothers and sisters dependirig, Mr. President,
upon the second factor, or principle, embodied in the kinship term,
namely the dogrna of descent, ifI may put it in thaway.
Now, by the dogma of descent 1 mean the concept to which one
subscribes as to whether kinship relationship or-let me call it-blood
relationship, is carried through the lineage or Iine of the mother, or
whether it is carried through the lineage or line of the father. hrow, 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 tothe 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, ifone
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:1 thought, Mr. President, that that would be appro-
priate.
Mr. MULLER : rofessor Bruwer, just before the adjournment OU were
dealing with what you termed the "dogma of descent". Will you indicate
to the Court briefly how that affects the differeiit population groups in
South West Africa?
Mr.BRUWER:Mr. President, 1 have tried to indicate the two principles
embodied in the kinship system, of which the dogma of descent 1sone,
and Ihave inentioned that the dogma of descent may be conceptualized
as running tlither through the lineage of the mother or through that of
the father. This dual concept in regard to the dogma of descent gives US254 SOUTH WEST AFRICA
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 ofthe father.
Mr. MULLER: Which of the groups apply the patrilineal system?
Mr. BRUWER :Ir. President, the patrilineal systemiç applied by the
Bushrnen, but not in the sense ofalineage system on account of the fact
that they are usually srnall communities; it is also applied bÿ the Nama,
it iapplied by theDama and itis appliedby the peoples in theEastern
Caprivi.
hlr. NVLLER: Which of the groups apply the other-that is, the
matrilineal-system?
Mr. BRUWEK : r. President, the matrilineal system is applied by the
Bantu groups that 1 have indicated by the name Ovambo and by the
name Okavango peoples.
Mr. MULLER: What system is applied by the Herero group?
Mr. BRUWER: Mr. President, the Herero group have a system of
thernselves in the selisethat, 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 motlier, 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 bilaterai 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, Rlr. President,itmust be ciear that you
now have certain institutions which come into being asa rcsult of this
type of kinship, which has a certain bearing on the society. One has for
instance, now, a lineage. Where you have thepatrilineal system applying
-the composition of that Iineage 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 iç more
often than not indicated by the terrn "clan", may also be composed on
a patrilineal basis or on a matrilineal basis;in other words, on the one
hand al1 members of the clan wili be related, either geneologicauy 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.
&Ir.President, 1 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 1 am an Ovarnbo 1 would Say that 1 belonged to 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 lsneof the
mother. Similarly, where we have to do with a patrilineal people, tliey
also have their names for these clans, and within the society there are
many clans; 1 have, Mr. President, been able to distinguish, for instance,
21 such entities, that we then caIl clans, amongst the Ovambo.
Now, in regard to the Herero, they also indicate these two entities-
that is,the one entity where you are part and parce1 of that entity
through the relationship with your mother-they have a name for that:
they cal1 that the "Eanda", actually, Sirnilarly, with the group related WITKESSES AND EXPERTS 255
through yonr 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 tlie indigenous people?
Nr. BRUWER: fifr. Presidei~t, in the systems 1shave studied them
the kinship system has a very definite bearing on customary laïv in the
respect of certain specific social institutions. Nowif 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, whetheritis matrilineal or ïvhether it is patrilineal,
must of necessity influence your approach as to, for instance, amar-
riageablespouse, 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 q7ourblood relations. Xow the difierence-and 1 am
trying toiildicate how these systems differ amoiig the various groups,
Mr. President-lies in this aspect: that among a patrilineal people1will
be able to choose my spouse amongst certain people; among the matri-
lineaI people. again, those very people wiii be looked upon as being
blood relations, and I will certainly be accused of incest if 1 should
marry somebody from that group. This concept functions within lineages;
it functions to a very great estent, Mr. President, within clanNow one
has this very interesting plienomenon, especially amongst the rnatri-
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 caIl preferential marriage mates or spouses-in the case
of the people of South West Africa,Mr. President, andthat iç very much
stressed, especially in the Okavango, it is preferred thata man should
marry the (laughter ofhis uncle. Now, Mr. President, it is immediatcly
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 all.
The PRESIDENT:hlay 1 interrupt just foramoment, sir? hTr. Muller,
is al1this 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 ciifferences
are, and upon that he will eventually, with respect, base his opinion.
1 can ask the witness if he will try to reduce the subject-matter and
leave the detail out, if the Court so wishes. Professor Bruwer, 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 societ.y, according to customary la~vit is possible to marry with
certain people, whereas in a patrilineal societyhose 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
customq law in regard to marriage.
Mr. MULLER : ill you bnefly describe to the Court any differences in
customary taw in regard to inheritance and succession, for example,
brought about by the application of different systerns?
Mr. BRUWER:Mr. President, in regard to succession, for instance,
where one lias to do with certain positionsof status and leadership in256 SOUTH WEST AFRICA
society, these people have what one couId cal1 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 affectby the system in vogue amongst
that specificroup. 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'sster 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 threewomen chiefs or chieftainesses
in the Okavango-the principle being, hlr. 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 thissame kinship identity.
So we have the two systems whereby succession on the one hand passes
ultimately from, if Irnay 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 ultimatesense,
Mr. MULLERC : an you just tell the Court whether the different systems
that you describe have a marked effect on the difierences between the
population groups?
Mr. BRUWER:Mr. President, naturaliy the social orientation of a
people conforrning to certain systems has a very definite bearing on
many things in that society; and on that basis, the factors 1 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 societieç.
Mr. MULLER: Under your heading of cultural configuration you have
mentioned differences in the economic system~, political systems and
judicial systems of the groups. Will you deal with these very briefly,
starting first of al1 ïvitiththe differences In the economic systems?
Mr. BRUWER:Mr. President, taking into account the changes that
have, of course, beenbrought about, one could 1 think distinguish very
easily three broad types of economic system+-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 thcn we have the thirdtype of economic system which is
of a sedentary nature, where people are basically agriculturalists but
they also practise animal husbandry.
Mr. MULLERD : O you classify the different groups under the three
headings that you have given the Court?
Mr.BRUWER M:r. President, traditionallof course,onlythe Bushmen
and, to some extent, the Dama in olden days, comply with the system
that 1 have indicated as huntersand food gatherers. Pastoralistsare the
Nama, the Dama, and the Herero, also the people in the Kaokoveld who
are, to a certain extent, related tu the Herero-those are the groups
practising pastoralisrn asa basic economic system.
Mr. MULLER :nd 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 tothe northern territories;it ispractiseby the Ovambo;
it is practised by the Okavango; and it is practised bythe people of the
Eastern Caprivi-that iswhere one has agriculture together ~4th animal
husbandry.
Mr. NUI,LER: Can yau 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, pleaçe?
Mr. BRUWER hlr. President, the economic systems certainiy have a
defînite bearing on certain concepts in regard to the whole question of
land utilization and land rights. If1 take, for instance, the more simple
systern of the Bushrnen, one does not find any indication of the utilization
of land, for instance, on an individual basis, but one does find that a
group of Rushmen look upon an area as their own place of hunting, but
on a communal basis, Similarly, when onehas to do with the pastoralists
in South R'est Africa, one finds that their whole concept of Iand is based
on the communal use of the land for grazing and other 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 puiposes and utilized on a communal basis, there is also a system
of what 1 can perhaps best describe as the individual utilization of a
specificpiece of land by a specific individual-in other words, al1other
individuals in society are excluded from that piece of land which you
utilize and work for your individunl purpose.
That, llr. President, is the basic influence of the systems on the concept
of land. Of course, in çome respects it is much more complicated than I
have put it here, but that is the basic principle embodied in the three
systems.
As far asrnaterial culture is concerned, air. President, one finds that,
in the case of the 13ushmen, material culture is, naturally, of a verjr
simple nature; to somc estent that also applies to the pastoralists;
whereas as soon as you corne to the sedentarytype of people one has to do
with a more cornples material culture. For instance, if we take the ques-
tion of housing, the Bushmen being nomads and hunters wrouldput up
a little hut in the bush today and stay there for a day or two and then
they woulti move on and put up another hut elsewhere. When, for
instance, you corne to the Ovarnbo, you find very elaborate structur~s
of abode, indeed, very elaborate, showing that the material culture 1s
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 specificpartofa country-for instance, the people living in
proxirnity to a river, as do the Okavango people and the people in the
Eastern Caprivi, tliey have their whole material culture and their CO-
nomje 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 influenced by the prosimity to rivers. Naturally,
Mr. President, the material cultures in regard to, for instance, the system
of inheritance is also influenced by the systems that 1 have already
described. One can only inherit material things in a matrilineal society
through your uncle or in the lineage of your motlier; lvhereas in regard
to the patrilineal people inheritance flows again through the lineage of
the father. il'here )?ouhave the dual systern, Mr. President, as amongst258 SOUTH WEST AFRICA
the Herero, certain things are inherited through your mother, certain
things are inherited through your father.
&Ir,MULLER: Professor Bruwer, wiii you indicate whether there are
differences in the political systems of these people? Do not go into detail,
1 want you to deal with it very briefly.
hlr.BRVWERh:lr. President, the political systems-and \Tehave here
in mind the indjgerious institutionson a political basis-area rvide range
of types actuaily, coincidirig 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 red organized form
of what one could cal1 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 tothe more complex societies, as we have amongst
the Bantu people, one can have a very complex form of political structure;
if1 take the evample 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 would like to explain in detail because 1 think it is very often
rnisinterpreted, but this is the first consequence-ahereditary leadership
influenced by the kinship systems that 1 have already described.
But then onehas a gradua1 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,or beingthe leader of a rvard, thcse posi-
tions are not hereditaryat allThe headman is headman as a result of the
choice of the people in that area.They may chang+it is a question of
the popular consent of the people. These headman actually form the ruling
council, if onemay put it like that, together with the chief.1 have not
come across, in Ovamboland, a systern which-at least to a great degree
-1 would not describe as being essentially something on the lines 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 decentralizationof power in thistype of political
system Mr. President, that we have, among some of these societies, and
on which basis one could also distinguish that society, a far more ela-
borate type of political institution than, for instance, arnong a goup like
the Bushmen.
hlr. MULLER W:hat conclusions do you draw from your study of the
cultural configurations of the different groups? Would you state itvery
briefly please?
Mr. BRUWER : r. President,Iam very çorry, 1 did not hear that ques-
tion.
$Ir. MULLER1 : shall repeat that. What conclusions do you draw from
your study of the cultural configurations of the different population
groups ?
Mr. Bnvcven:Mr. President, if1 take into account the pattern that 1
have tried to indicate to the honourable Court, if 1 take into account the
qualities inherent in the different systems, and, IEtake into account the
functional value, the varying systems of value inherent in these various WITKESSES AND EXPERTS 259
systems, then 1can only Say, Mr. President, that there is no doubt in my
mind tliat 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, Ive have to
do with a variety in regard to political systems and we have to do witha
variety even in regard tothe application of customary larv.
hlr. NULLER:Professor Bmwer, 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 rgzo as to the habitat of the
different groups?
bir. BRUWER M:r. Preçident, 1shall atternpt to do it.1 was only six
vears of age at the time of the assumption of the Mandate, and 1 have to
do it on the basis ofmy study, naturally being interested in regard toail
the deeds and dealings which affected the peoplesof South West Africa and
by narne, the indigenous people, in whom 1am very much interested.
New, Mr. President, from what 1can deduct, having in mind al1theavail-
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 inwhich there were a variety of communities cornplying to cer-
tain systenis, havi~igcertain systerns of value inherent iii themselves and
also havingcertain functional institutions which wereverydefinitely func-
tioning at the ti~ne1 think of the people up in the north, for instance. 1
told the honourable Court that they were not affected by the position in
the south.
Rut then, &Ir. President,ifone takes into account the Territory known
as South West Africa at that time, and aIso today, a name that came
into being :ia result of Charles John Andersson, who first mentioned thc
name, South West Africa, in regard to this Territory1find that for prac-
tical reasoris i1920,at the assumption of the Mandate, one can Say tkiat
the country was divided into two worlds actuaily. Asa matter of fnct, one
even sometimes noticed that physically on the map by means of an indi-
cation of that division.Now yau had the southern part of the Territory, .
you had the northern part of the Territory. In the southern part of the
Territory, &Ir.President, were residing at that time, a number of different
groups; we had the Sama there, the Dama, we had the Basters, we had
the Coloured people, we had the Caucasoid people and we had Herero
people residing in the southern sector.
Now,on the basisof those various groups, one notices from the available
sources and information that the country, during1920 w,assub-divided in
regard to the southem sector that 1 have just mentioned. It was sub-
divided, firstly, intein the central part-farms and certain townships
that came into being and that were occupjed also on a basis of individual
land rights mhich came into being during the process ofsettlement of the
Caucasoid people, in this case, mainly the Germans. Rut in the southcrn
sector, one ais0 finds that you had, at that time, certain, what 1would
call lirnited areas, set aside for certain groups. These areas arevery often
referred to as being Reserves, having bcen reserved for the people.
Kow, >Ir. President. ifIremember weii, at that time which wasin 1920,
we had certain Reserves put aside for the Narna, namely the Reserve call
ed Berseba. the Rererve caiied Bondels, the Reserve caiied Soromas, the
Reserve called Fransfontein and the Reserve calledZessfontein. Then, also,
we had the Temtory of Rehoboth, generdiy also known as the Rehoboth260 SOUTH WEST AFRICA
Gebiet,in which the people were living who are generally knotvn asthe
Basters or the peopleofRehoboth.
But then, Mr. President, one also finds from the available sources that
the Herero people at that time, that mas during 1920, were absolutely
landiess,having been deprived of their land as the result of the rebellions
and wars at the beginning of the twentieth century, that waç between
1903 and 1907, if remember well, Rlr. 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 alsoduring the period of the short span otime of
the military occupation by the South African forces from 1915 to 1920,
the northern sector of the country was not rnaterially 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 livingin
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 toget refuge in the more inac-
cessible parts; and at that time one also finds that the Bushmen were
actually between what one could cd1 the southern sector, and the south-
ernpart of the northern sector occupied by the Hantu people. They were
mainly residing inthat area.
Now, Rlr.President, if1 have answered the question, that, imy opinion
was the position at the assumption of the Mandate basing my opinion on
the available sources, Mr. President.
Mr. MULLER W:ould 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 : r. Presidentitwould appear to me, from the availabre
sources that 1 have studied, that, at the assumption of theMandate in
1920 ,eing confronted with a Territory of thiç nature, one hadto decide
in regard toadministration, one had to decidein 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 governments, commissions are gener-
ally appointed to go into the problems of a countryaia certain time; and
we also find that in this case, a commission waç 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 Tersitory with the character-
istics thaI have aiready tned tu indicate.A very basicquestion on which
the commission of 1921 advised was, in fact, hlr. President, the allotment
of landto various groups in SouthWest Africa,including also the landless
Herero at the time.
And one finds, Mr. President, if you go intothe published sources, that
legislation was passed, since1923 actually, ackriowledging 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 whatIcan gather from the information,
this process went on for a long time. until ultiinately one had 23 such
Reserves acknowledged for, defined, delimitatedand assignedto the~~arious
groups in South West Africa.
1also think that one can perhaps say a? an opinion that you had the EI'ITXESSES .4SD EXPERTS 261
foundation laid there for a specific approach, tliat is, an approach based
on the individualistic nature of the various groups in that territory.
This, Mr. President. was indeed the position that one finds by the end
of1963, when yet another commission was appointed, the commission of
enquiry into the affairs of South West Africa, of which, as 1 have told
the honourable Court, Mr. Presicjent,Ihave been a member.
hlr.MULLER Y:rofessor Bruwer, rnay 1just intcrrupt. 1 do not want
you to explain to thc Court the detailç of the recommendations of this
commission-that information is before the Court. Can you very briefly
telthe Court the main principal recommendationç made by tlic comrnis-
sion ?
Mr. BRUWERR :it-President, the Odendaal Commission, as it is popu-
larly caIled on account of the fact that Mr. Odendaal \vas the chairrnan of
that commission, made extensive tours in the territory; they called for
evidence and, on the bais of al1 the information that this commission
couldfindat that time, and thatwassubmitted tothem, thecornmission had
to recommt:nd-according to the request of the Government-a further
phase ofdevelopn~ent,especially in regard tthevarious indigenous groups.
The commission had to do, and also found that you have to do,with a de
facto position, nameIy a position where for a generation the individual
nature and the individual areas of habitat, also called Reservcs, ofcertain
groups, ancl also of course the individual nature of farms and townships
and of the functioning institutionç,hadctuallyexisted 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,
recagnizing the human factor inregard to deveiopment-from what the
commission could gather from the evidence submitted to that commis-
sion, the commission was very definitely impressed by the fact that the
majonty of the people of the various.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 cornmunity.
Naturally, the commission, in accepting this basis of approach, at once
found it unfeasible with the idea of community development ifyou have
a great nurnber of areas and people arestaying in a small area herc and a
small area there. As 1have already said, there were 23 such areas, Mr.
President, if1 remember well; and that \vas the basis on whicli the com-
mission defined their concept of what they calletl "homelands". That is,
they recommendcd a greater consolidation ot areas ofhabitat, and on that
basis now a community developmciit recognizing the human factor inher-
ent in that community; in other words, the achievemcnt through that
creative genius1 have already spoken about, as the basis to go on with the
entire process of development in the modern sensc of the word.
Itmust he remembcred, Mr. President, that the commission had to do
with a cornprehensive five-year plan, but if1am permitted to Say so, the
commission also very definitely knew that on the basis of its recomrnen-
dations they would be building on a concept, mainly a concept of recog-
nizing different comrnunities, and basing the development on that com-
munity and keepingin mind the wishes of themajority of the people.
hlr. MULLER: Professor 13ruwer, will you çtate your opinion as to
whether there is an inclination aniongst the people of South West Africa
towards forming an integrnted whole-one unit.
Mr. BRUIVER : r. President, 1 cannot Say that because 1have never262 SOUTH WEST AFRICA
come 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 ethnic background that,
notwithstanding the fact that these groupç 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 government, Mr. President. But neither the commission, nor I
myself in the capacity as research worker, have ever been impressed by
facts or bypossibilities in regard to such an inclination, becau1sirnply
have not come across them. 1admit that there are individuals and that
there also arecertain 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 majority in any one of these groups,
neitlier the wishes of the majority within the population as such.
RT~.MuLLER :an you in this particular regard teU the Court about
your experience as Commissioner-General of the Bantu people, or the
Native people, of South West Africa?
Mr. RRUWER M:r. President, 1 have had experience as Commissioner
only for one year, and 1 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, hlr. President, the honourable Court wiU recalt 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 1 was very much interested, Mr. Preçident, 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 to me as Cornmissioner-GeneraI,
to the extent that they wanted the Government to carry on also with the
recornmendation of that political development in Ovarnboland, and with
the consolidation of OvamboIand as adefinite homeland and territory of
abode for the Ovambo people. This request was submitted to me and in
my capacity as a Commissioner-General I also transrnitted it to the
Government of South Africa. That is the only example of this nature
that 1 have as practical experience;as a Commissioner-General I natur-
ally concentrated rnainly on Ovamboland, for the simplereason 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.
hlr.BRUWER: Mr. President, the question embodies the use of a term
"separate development", and I take it that1 must take that policy to
mean a policy applying an individualistic approach to a community of
people, and recognizing thehuman factor in that community, and deve-
loping on that recognition that community as a community.
Now, Mr. President, if my interpretatiothen is correctf can honestly
say that1 can mention certain advantages of such an approach. 1 do not
\vant to go jnto anyphilosophical discussion,Mr. Presjdent, in tryingfQ
give my reasons, but it must have been clear to the honourable Court
that 1 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 WITNEÇSES APjD EXPERTS 263
people, based on those differences that Itried to mention, you undoubt-
edly respect the systems of value of that people, and that in my opinion
is a very great consideration as a social anthropologist, asscientist, but
also as an ordinary human being also belonging to a specific group of
people.
But, Mr.President, where one has to do with a factual position, as one
has inSouth \I7est Africa, you have to recognize certain rights and certain
values that have been based on an individualistic approach over cen-
turies. Onehas, for instance, the question of land rights, or asçumed land
rightsthen, 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 likethat in South West
Africa, especially in 1920, 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 whicli
you now had to protect, you had to offer the essential protection.
But, Mr. President, if wc look at South West Africa, if we have in
mind the position during the nineteenth century, if we keep in
rnind even the position that existed by the beginning of this century,
where you hadan 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 ifyou did not recognize certain rights. if
you did not protect certain rights, if you did iiot alsohand 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, 1 told the honourable Court yesterday that 1 have
traveiied through quite a number of territories in southern Africa, and
1 can, \vithout 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 othenvise, as this very Territory of South IVest Africa.
And 1 must Say, notwithstanding the fact that 1 am also South ilfrican,
hfr.President-1 do it as a scientist, on the basismyf declaration-that
the successes that have been 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 1 mayput it in tliat
way, &O then the dignity of specific groups of the people of South West
Africa.
But, Mr. President, Ican mention another advantage in mp opinion of
this approach, and that is that thiç approach-and 1 am talking about
the approach called in the question separate development-does not only
at any given time, as it does at present, comply with the wishes of the
rnajorjty of people within a group, but it also, to my opinion, Mr. Presi-
dent, has that Aexibility of adaptation in an evolutionary way t~ the
changing situations and changing conditions that of necessity corne ln the
history of any territory and of any people. And that flexibility, hlr.
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, Air. President, this is tme 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 varietp264 SOUTH WEST AFRICA
of people.I cannot see that for the interests of these people one can say
that 1must now destroy everything, and 1 must now çtart with sornething
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,
1 give rny opinion.
Mr. MULLER: Professor Bruwer, you have indicated to the Court the
various areaç occupied by the different population groups. As a matter
of fact, of course, there are in the southern 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 naturaiiy true that there ara sub-
stantial nurnber of people of various groups staying especially in the
area of-supposed to be then-the Caucasoids or Laites. Now, hlr.
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 toal1rules of logic1 think one must
also apply it to this group, on that basis of now ensuring the rights of that
specificgroup 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 peopleintheir 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 Whites, in their areas, that is the areas of other people. For instance,
it may be, hlr. President, that 1would personally like to, Say, go and
reside in Ovamboland, perhaps one day when 1 am finished with my
work, because I like the people, f am interested in them, but then1 wiU
be encroaching on the rights of the Ovarnbo 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 appiies also in cases where one has
mernbers 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 functions on a very broad basis. 1 have found for instance
the interesting phenomenon that inthe areas of the people where I have
done research work you rnay also find, and one does also find,that there
are Rushmen working for the Bantu people, but they are not absorbed
in the society. In Rehoboth, for instance, 1 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 lawç; they are not citizens
of Rehoboth.
Itis the strange phenornenon, Mr. President, that a group of people
certainly wants to maintain its unity, and if tliat was not the case, then
surely after 400 years u7ewouId 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 ivould be if the present measures of
differentiation on the basis of membership in a group were to be done
away with? WITNESSES AND EXPERTS 265
Mr. BRUWER: Mr. President, 1 did not get the question very well,
1am afraid.
Mr. MULLER: Then IshaU repeat itto you. WiUyou state your opinion
as to what the effect would be if the present rneasures of differentiation
in South West Africa, based on the membership in a group, were to be
done away with?
Mr. BRUWER:Mr. President, prediction is naturally bascd on opinion.
1 have quoted certain, what in my opinion are, advantages of a certain
approach, having in mind the situation as I know it and as 1interpret it.
Now, Mr. President, naturaIly if you do away with this system at a
specific moment, or let us Say rnornentarily, 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 al1
the advantages that 1 have explained as being my opinion, will disappear.
In practice al1the essential rneasures of protection will fail away. There
would be no protection of land rights, there could be no protection of
language rights, 1 am afraid; now what can be then the predictable
consequences of something like that?
Mr. President,if we had totake 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 even 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 whic1have
pleaded for as being the achievement by people themselves, and 1 donot
think that 1 would ever be able to agree to an approach where one
destroyç a people even through other than physical means, Mr. President;
but as far as South West Africa is concerned, 1 also think that the one
group, either on the basis of numberç or on the basis of economic strength,
will undoubtedly dominate the other group if you have not got pratective
measures; and 1 also think, Mr. President, that one can Say that if you
have now tostart a novel or a new systern, an alien system, you will very
definitely retard the process of evolutionary development that has been
going on foi. the laç40 years approximately afterthe assumption of the
Mandate.
Mr. MULLER: 1 have no further questions at the moment, Sir.
[Public heuringof 5 Jztly19651
The PRESIDENT:The hearing is resumed. Mr. Muller, would you recall
the witness to the stand?
Mr. MULLER hZr.President, 1 have no further questions to put to the
witness.
The PRESIDENT: 1 recognize the Agent for the AppLicants.
Mr. G~oss: The Applicants would wish to cross-examine this witness,
Mr. President.
The PRESIDEKT : Certainly.
Mr. G~oss: Dr. Bruwer, 1 shall endeavour to speak slowly and dis-
tinctly, and if you would be good enough, Sir, to let me know if 1 am
speaking too quickly, or if you wish me to rephrase rny questions, will
you please not hesitate to do so?
I should like to startDr. Bruwer, by asking you, with respectto the
matter of qualification, whether there is a distinction between a sociolo- 266 SOUTH WEST AFRICA
gist and a social anthropologistas amatter of scientific discipline, and
ifso, what the distinction would be?
hlr. BRUWER:BIr. President, I think there isa very clear distinction:
the social anthropologist mainly confines his study to what one may
perhaps cd the organic societies, ïvhereas the sociologis1,understand
it. confines his studies rnainly to the ordinary typofsociety, or what
one could cal1the western type of society; but, kIr. President. 1could
perhaps give my own opinion, it is very difficult reaily to Say exactiy
where the one ends and the other one starts-it is very difficult.
&Ir.GROSS:There is a degree ofoverlap, is there not, wouldyou agree,
between the two disciplines?
Mr. BRUWER:Whether Iwould agree between the two disciplines?
Mr. GROSS: Weil, letme just ask you: what was the basis upon which
the 0dendaa.I Commission report was studied and considered from the
point of view of sociology-ïvas there a çociologist connectedwith the
Commission?
Mr. BRUWER:Yes, Mr. President, the Secretary of the Commission
was a trained sociologist.
Rlr. GROSÇ: YOU were a member of the Commission, 1 believe you
testified, did ÿou not?
Mr. BRUWERT : hat is correct.
Mr. G~oss: And you signed the report of the Commission7
hlr. BRUWER:That is correct, Mr. President.
Mr. G~oss: 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 socio1ogicalstudies of your own?
Mr. BRUWER:Yes, Mr. President, 1definitely advised the Commission
as to the institutions of thearious peoples as they exist, according to
my studies.
Mr. G~ross:Now, 1 should fke to ask you one or two questions about
the Odendaal Commission as to which you generaiiy testified. How many
members of the Commission were there?
Mr. BRUWEHM : r. President, the Commission consisted of Mr. Odendaal
'as the Chairman, Dr. van Eck, Professor Snymaii, Dr. Quin and myself,
and then the Secretary, Dr. Claassen, and also an Assistant Secretary,
Mr. Weideman, and then hlr. Ailen was also aiding the Commission'in
regard to its work, ïvhere it was necessary.
Mr. G~oss: Were any of these distinguished gentlemenwho composed
the Commission residents of South West Africa?
Mr. RRUWER:NO, Air. President. none of the Commission members
except the Assistant Secretary, ivho was residirigat the time in South
iVest Africa, resided in South West Africa.
31r. CROSS:IiTere there any mernbers of the Commission who are
generally classifieas "non-White" under the census categories of South
Africa?
>Ir. BRUIVER:Xo. llr. Preçident, not that I know of.
>Ir. G~oss: Are ?ou doubtful about whether there were or not, as
mernbers of the Commission?
Mr. BRUWER:Mr. President, according to my own reckoning all the
members of the Commission are classified as "\Zliites".
&Ir.G~oss: How largea staff did the Commission have, Dr. Bruwer?
lIr.BRUIVER hlr. President, the staff of the Commissioif 1take that
to mean the people who helped with the ordinarp office work-we had WiTNESSES AKD EXPERTS
267
six ladies, but the number of the staff differed from time to time accord-
ing to the pressureofwork at that specific time of the Commission.
Mr. GROSS:YOUdo not need to bother with detail, unless you wish to
Dr. Bruwer. Were any members of the staff perçons who were classified
as "non-LVliite"?
Mr. BRUWER: MF. President, no, not that I know of.
Mr. BRUWER:Y:o1said "no", Mr. President.t, Dr. Bruwer?
Mr. G~oss: Thank you. I turn now to the terms of reference of the
Commission, Dr. Bruwer, and call attention particularly to the first
paragraph, which readsas followsin defining the task of the Commission:
.;ioral welfare and the social progress of the inhabitants of South
West Africa, and more particularly its non-White inhabitan..."-
that is a correct reading of the teriofsseforence in that respect, is it
not. Sir?
Mr.BRUIVERT : hat is correct, Mr. President.
which. 1have just read, make enquiries into considerations affecting the
moral welfare of the inhabitants of the Territory?
Mr. BRUWER M:r. President, yes, if 1 understand by "the moral
welfare of the inhabitants of the Territory" the general spintual welfare,
the Commission did.
Mr. GROS:Did the Commission, so faras 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 first,
approach the task as a member of the Commission in the respect 1have
just mentioned on the basis, or with regard to, the following excerpt
which 1 shall read from the report itself; do jrouunderstand my question,
Sir?
Mr. BRUWER:Yes, Mr. Preçident, Ithink 1 do.
Mr. G~oss: 1 read from page 427, paragraph 1431, of the report as
foliows:
"The moral and economic principles ofa 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 diflerent. Consequently there has to be a differ-
entiated policy . . ."
Keeping in mind that approach, or that conception, if 1 may call it
either of those terms, did that conclusion reflect a consideration or con-
siderations by the Commission relevant to the moral welfare of the
inhabitants, letus Say, ofthe 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 ~natter in the light of moral
welfare and social progress in relation to the conclusion 1have just read;
what standards or criteria did you use?
Mr. BRUWER:hlr. President, the position that confronted the Com-
mission in regard to the population groups in the southern 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 1 would cal1 the moral
well-being of people-and keeping in mind the fact that people more
often than not can adapt themselves to a certain situatioil iir 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 communitieç.
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 : he people that were at the time not staying in what
one could cal1an "integrated" community.
hlr. G~oss: For example, a non-White who was living asa 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 rnay, of necessity, be in a position where
he is not part and parce1 of a community. 1-Ie may perhaps just have
been working thereefor a certain time, he rnay just be emploped there.
Mr. G~oss: How much time would you Say must elapse from the point
of vieu-of sociology or social anthropology before he ceases to aeperson
to be regarded as a member of a group, of a social unit, rather than as
an individual?
Mr. BRUWER:Mr. President, according to rny own opinion, 1 doubt
very much whether one can within one's own lifetime really dissect
oneself from a background in which one was born.
Mr. G~oss: Let ns say that you, as a member ofthe Comrnjssion, are
making an inquiry into the extent to which this individual has dissected
himself from the background into which fie was born. What standards or
criteria would you apply as a social anthropologist, in making such a
determination?
Mr. BRUWER:Mr. President, 1 would find out whether that man is
still linked to either lineage or a clan thisor, if 1take the two things,
are represented in this community, and if he still looks upon hirnself as
being a member of such a lineage or member of such a clan or a member
of'such a kinship group, then Iwould still take him to be an individual
being still attached to hisgroup.
Mr. GROSS:1s 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 al1 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 stillmakes him
an individual of that community.
Mr. GROSS: Now, therefore, the Commission of which you were a
mernber, and you in particular 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 lvhether a particular individual or
series of individuals viewed as such had become the focal point of the
modern economy of the southern sector? 1 use the phrase used in the WITSESÇES ASD EXPERTS 269
Odendaal Commission report which I have just rccently quoted at the
record.
Jir.BRUWER R:lr. President, 1did not get the questi1ngot the frarne-
work of the question but 1 did not get the question.
Mr. GROS: Let me trv to clarify it and please do not hesitate to ask
me to restate, particularlif 1become too involved.
In the escerpt 1 read from the Odendaal Commission report, a dis-
tinction is clrawn between 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.I 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 indivicl~ialor 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.
hTr.BRUWER: hfr. President, the Commission certainly did discuss
this matter, but the Commission came to the decision that the indi-
viduds still form part and parce1 of a community-a comrnunity of
people.
Mr. G~oss:This is true of al1of the inhabitants of the southern sector?
Mr. RRUWER M:r.I'resident, that is true. There is only one case that
1 can think of where the Commission came to a decision that one has to
carry on in a specific way and that was in regard to only one group of
people.
Mr. GROS^ 1:did not hear the last part of the answer. Dr. Bruwer.
hlr.BRULYEK :hat was in regard to one group of people.
Mr. G~oss: 1 am not talking about groups of people at the moment,
Dr. Bruwer. May 1 invite your attention to the question, with respect
to the individual person as the focal point as distinguished from the
group as the focal point. 1 am using the phrase used in the Commission
report. \mat did you as a mcrnber of the Commission takc as a basis for
your judgrnent concerning whether a particular individual in the southern
sector had brcorne a focalpoint in the sense used in the Commission report?
Mt. BRUWER: Mr. President, 1 have already tried to answer that
question by saying that the mere fact that an individual was still part
of a commu~iity by belonging on the basis of kinship ancl on the basis of
his useof the language to a certain group, but naturallyit was not pos-
sible to go to every individual and ascertainwhether that specific one,
single, individual still complies to it-thatIdo not think was possible
for the Commission, Mr. President.
Mr. G~oss: Do you consider,as a social anthropologist and as amem-
ber of the Odendaal Commission, that there are any individuals cate-
gorized as non-\mite in the southern sector who have attained the
status of the focal pointasan individual?
Mr. BRUWER >:Ir. President, the focal point, that is where one can now
say that itisthe criterion of the modem economy that complies, I think
that one could well say that there may be individuals of that nature.
MT. GROSÇ:Now, what would the criteria be, if any, on the basis of ,
which a determination couId be made with respect to whether aparticular
individualhas attainedthat status, if you would concede it to be a status?
Mr. BRUWER: Mr. President, the considerations of the Commission
there, ifI remember well, were, firstly, that if one approaches on the
basis of giving certain rights and privileges 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, as1 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 witfiin which
the Commission recommended.
Mr. GROSS : erhaps 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 rneasures of differentiation in
South West Afnca", 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, isit not, sir?
Mr. BRUWER: It appears so, Mr. President.
Mr. GROSS: That is on page 265, szkpra,of the verbatim record of
Friday, z July. Having in mind the expression you used, "a certain
approach", 1 should like to ask you to comment asto whether the fol-
lowing statements, appearing in the Rejoinder, V, are relevant to, or
reflect the certain approach which you had iri mind. 1 read ftom the
Rejoinder, V, pages 251-252 :
"The only possible way out. . . is.. . that both, i.e., thWhite
man andthe Bantu, accept a development separate from each other.
The present Government believes inthe domination (baasskap) of
the Whiteman in his own area, butit equally believes in the domina-
tion (6aassRap) of the Bantu in his area."
1should like to continue reading. Ishall identify the source before 1
conclude my question. Ishould like to continue reading the same state-
ment from the same page.
"South Africa is at the crossroads. It must be decided tvhether it
will go in the direction of a multiracial society with a common
political life or whetheritwill bring about total separation in the
political sphere.
1 also see to it that1 choose a course by which on the one hand
1 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 capabiiities. And ifit sohappens
that in future they progress to a very high level, the people living
at that time wiil have to consider how further to reorganize those
relations."
1 shouId like, specifically, to cail your attention to the expression
"the present government believes in the domination (baasska$) 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. Iç the çtatement 1 have just quoted
relevant to, or partof what you describe aç a "certain approach" in your
testimony ?
Mr. BRUWER:Mr. President, 1 would not be able to say whether that WITKESSES AND EXPERTS 271
is relevant. When 1 used the word etal.,an approach, 1had in mind the
,approach of developing communities on the basis of recognizing the
human factor, the systems of vaiue as 1tried to explain, in the process
of development.
Mr. GROSS: Dr. Bruwer, 1thinli perhaps . .
The PRESIDENTH : adthe witness finished his reply?
Mr. G~oss: I beg your pardon, sir.If 1 have interrupted you,1 apolo-
gize. Had you finished, sir?
Mr. BRUWER:Not yet, Mr. President.
blr.G~oss: 1 beg your pardon.
Mr. BRUWER: IlIrPresident, 1 also want to say that in respect of the
quotation tliere, two major groups are put in juxtaposition against one
another, if 1 may use that word. For instance, now, 1 think we said the
White man and, on the other hand, the Bantu. Kow, I have tried to
indicate to the Court thatwe have in South West Africa, not only White
peopIe and Bantu but also other people. The approach that I spoke of
waç the approach based on my conviction as asocial anthropologist, that
one should noi, at a specific moment of time-1 think 1 used the word
"momeiitari1y"-discard those values but that you should make use of
the values, and that on those values you should base your development
of that community.
Mr. G~oss: Do you intend that to be a full reply in respect of the
question concerning kvhether the policy of domination by the White man
in his own area reflectsapart of, or al1ofthe approach which the Oden-
daal Commission used in reacbing its recommendations?
Mr. BRUWER : r. President,I would put it in thiway, in answer to
the question, that itwas to the Odendaal Commission and also to me, in
the type of analysis that 1 made, a question of exercising one's rights
and one's privileges within an area assigned to you.
Mr. G~oss: Exercising one's rights and privileges...
Mr. BRUWER :n the area that is looked upon as belonging to you,
Mr. President.
Mr, G~oss: The errercise of an individual's rights and privileges, or a
group's rights and privileges, or do you distinguish between the two?
Mr. BRUWERM : F.President, 1 do not distinguish between the two,
since a community or a group is necessarily composed of individuals, so
if it iaquestion of exercising rights and privileges of a group in an area,
it also means the exercisinby everyindividual of that group, the exercis-
ing of the rights in that .area.
Mr. G~oss: You Say that groups are always composed of individuals.
Are rights of individuals aIways determined by mernbership in a group?
Mr. BRUWER:Mr. President, may 1 start off by saying that ifI said
that a group is composed of individuals, then the definition of such a
goup to me, as a social anthropologist, is, of course, where the individual
1sintegrated into that group,asan organic group, by nieans of the various
factors that 1 have tried to explain. Now, on that basis 1would very
definitely Say that the group is cornposed of individuals, and that every
one of those individuals has a part in the rightsand privileges of that
group.
Mr.GROSS 1sa White person, a person classified as White, who lives in
South West Africa, ina different position by reason of the fact that is
a member of the White group, just by reason of that fact alone, in any
respect?272 SOUTH WEST AFRICA
llr. BRUFVER& : Ir.President, as far 1know, in regard to the infor-
mation that one finds in publications,twould appear to me that there
are certainrightsassigned to tVhite people stayininSouth West Africa,
in their area or in the area that is assumed to be their area.
hir. GROSS:What area is that, sir?
Mr. BRUWERT :he central part of Sauth West Africa, comprising
certain individual farms and townships where one also has individual
ownership of plots of land and houses.
Mr. G~oss: 1s that area commonly referred to as the southern sector
or Police Zone?
Mr. BRUWER:NO,Rlr. President. the southern sector or the Police Zone
also comprisesa number of other arcas, apart frorn that which is usually
looked upon as being the White area.
Mr. GROSS: What is the identifying characteristicor what are the
identifying characteristics of the "White areas" of the southern
sector?
hlr. BRUWJZRN : r. President, 1 wouldSay the individual land tenure
isa very deciding factor. and also the urban communities that one finds
in that area.
hlr. GROSS:They are regarded as White because there are Whites there
or because Imites own land there? Did 1 understand your answer
correctly ?
MI. BRUWERM : rPresident, I woiild fhjnk that it is generally called
the White area on account of the fact that Whites have individual land
tenure in that area.
Mr. GROSÇ: Therefore, would a White person who did not own land
be in a different category froa White person who does?
Mr. BKUWER hlr. President, no, 1 would not say that.
Mr. GROSS: This is the only distinctionis it, that makes it a White
area or justifies the use of that term?
Mr. BRUWER T:hat is how 1 understand it, Mr. President.
Mr. GROSS : hat is the total populatioof the southern sector?
Mr. BRUWER h:lr. President1 cannot remember everything offhand
but the total population of South West Africa. if 1 remember well, is
about 526,000. Now, of that population, the northern part would be
about 240,000, Mr. President, plus...
Mr. G~oss: The information furnished to us by the OdendaaI Com-
mission report, makes it approximately 24o,ooc+you would accept that
as an approximation, would you?
Mr. BRUWER: 1 would accept that, Mr. President.
Mr. GROSS:Thank you. Could you advise the Court approximately
how many of these 240,000 are classifasWhite persons, in the southern
sector?
Mr. BRUWER : r. President, i1remember well, the figure is some-
where around 73,000 for the census of1960.
Mr. G~oss: So that approximately r7o,ooo or 16o,ooo,in round num-
bers, are classified as non-White? 1sthat correct?
Mr. BRUWER:Mr. President, yes, ifone has them classified in a cate-
gory but not in groups.
Mr. G~oss: Would yoii please explain that? On what basis are they
classifieds White or non-kmite?
Mr. BRUWERM : r.President, I think the basis 1have given in the
answer. As a social anthropologist, of cours1 do not classify people on WITNESSES .4ND EXPERTS 273
that basis.1 classify them as belonging to a group and then1 givethe
name of the group.
Mr. GROÇS: As a member of the Odendaal Commission, as well as a
distinguished social anthropologistdid you consider the classification
adopted by the Government with respect to the rights. duties and
privileges of individuals, in South West Africa?
Blr. BRUWEHW : e did, Mr. President.
hlr.GKOSS :re you familiar with those classifications?
hlr. BRUWER: &Ir. President, if the classifications tvere put t1 me
would know whether Iam farniliar with them ornat.
Mr. G~oss: May 1read from the Mernorials of the Ap~ilicants,1,p. 109,
the following census classifications, ask if thewere before you wlien
the Odendaal Commission considered the matter of the mord welfare
and socialprogress 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 excIuding persons who, although
in appcarance are obviously white, are generally accepted as
Coloured persons."
Was that categorization of Whites known to you in your consideration
of the problems?
Rlr. BRU~VEH : r.President, it appearsto me as if the description
here is on the basis of esclusion.
The PHESIDEST: Of what?
Mr. BRUWER O:n the basis of exclusion.
Mr. GHOSS T:he description excludes persons who, dthough in appear-
ance are obviously White, are generally accepted as Coloured persons.
Did you take into account thisclassification of White perxlns in your
consideration, asamember of the Odendaal Commission, with regard to
the rights, duties and privileges of inhabitants?
Mr. UKUWER Y:es, Bir. President, we did. We have hereto do with
two groups of people or rather, according that clnssification then, the
Whitcs on the onehand, and then on the other hand. thc Coloureds. Now,
in regard tohe Coloureti population of South West Africa, Mr. President,
it would have been noticed that the Commission did notrecommend an
area forthe Coloured people.
Mr. Grzoss: Dr. Rruwer, 1 am ~iottalking about groups or areas1am
trying tocilgage you (and 1 hope I am not conlusing you by my ques-
tions), with respect to the individualrson. 1am referring ta census
classification which refers to an individual and states that if, although he
is obviously Wliite, he is generaiiy accepted as Coloured, he is Coloured.
Did you take that into accountin considering your recommendations to
the Government?
hIr.RRUWER Y:es,Mr. President, we did, when we were dealing with
a group of people in the population of South West Africa thaisknown
as Coloureds.
hlr.GROSSI:f an individual person is obviously [rihite,but generaUy
accepted asColoured, this classification puts him in the Coloured cate-
gory-that is correct is it not?
MT. BRUIVER Perfectly correct, Mr. President.
Mr. G~oss D:o his wishes or preference have anything whatever to do
with the dccision that is made with regard tohim, as an individuaI?274 SOUTH UrEST AFRICA
Mr. BRUWER M:i.President, that 1would not be able to Say or to tell
because the classification of the various people of South Africa is regu-
lated, i1 remember well, by one or other law, in South Africa, and the
Coloured people fromwhat 1 would gather from the avaiiable information
that 1have, and from the descriptions, are generally described by means
of exclusion, Mr. President.
Mr.G~oss: On the other hand, Dr. Bruwer, Natives are defined by in-
clusion, are theynot, in theollowing respect ; 1read the census categories
from 1,page rog:"Natives: persons who in fact are, or who are generaiiy
accepted as members ofany aboriginal race or tribe 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 placebirth appears to establish
the category-"Natives of Asia", or descendants of persons born in Asia.
1s that a correct understanding of this category?
Mr. BRUWER TOme, that would appear to be a correct understanding,
Mr. President.
hlr.G~oss: 1will ask your opinion about that classificatioasa social
anthropologist, shortly, but for the sake of completen1should now like
to read the classification of "Coloureds" from the same pagpage 109,of
the hlemorials: "Co1oureds.-Al1 persons not included in any of the three
groups mentioned above."
That then, would you Say, is fairly tobe cded a residual category?
hfr.BRUWER :es, Mr. President, and as far as the Colouredsiscon-
cerned then on the basisof exclusion, if1 understand that part of the
referenceweil.
Mr. GROSS :id you Say, "on the basis of exclusion", sir?
Mr. BRUR'EK C:oloureds are apparently identified on the basis of exclu-
sion from others.
Mr. CROSS: And so if a person isobviously Whitebut generally accep-
ted as Coloured,he is Coloured, and1believe you testified asto your opin-
ion that that was because he was Coloured. Did 1understanyou correctly ?
What is the basis of that classification, scientifically or antliropologically?
Mr. RRUWER hlr. President, in answering the question of what the basis
jsI woiild verydefinitelysay the basis herissociologicaily, iI rnayput
it thatway, but not physical anthropologicaliy,of necessity,1 have al-
ready referredto the factMr. President, that 1am not a physical anthro-
pologist and 1urould not like to explore al1the avenues used by physical
anthropologists to classify people aspecific groupor farnily of mankind,
but as far as the Coloureds are cancerned, to me it would appear as if that
is a sociologicai classification.
Mr. GROSS :Sto which, ifIrecall your testimony correctly, the vior
wish, or will, of the individual himself has no relevance. 1sthat a correct
rendering of your testimony?
Mr. BRUWER M:r. President,Iwould not put it that way. 1 would not
say, yes,because as faas1 understand that law, in regard to the question
of classification of people, people have the right to make representations
in regard to the question of classification. Now, 1remember well, Mr.
President-that is not rnymain line, of course, not my discipline-from
what information 1 have in regard to this question of claçsification in
South Africa, there areapparently two guiding lines in regard to the ques-
tion of classification.
The first is the ethnic backgroundif one may put it Likethat, and the WITNESSES AND EXPERTS 275
second is the question of general acceptance or whether you are attached
to this group or thatoup.
That is how 1understand it, Mr. President.
Mr. G~oss: Therefore, might 1ask you this-1 addressthis question to
you as a mi:mber of the Odendaal Commission. What would be the situa-
tion with respectto aperson who, inthe 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. RRUWER: hlr. President, Ido not know of cases like 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 sofa as he is concerned in manner
of ~Iassification and its effects; is that correct?
Mr. BRUWER: 1did not ...
Mr.G~oss: 1s that irrevocableso far as his concerned with respect to
such rights or duties or limitations which may be placed upon him by
reason of the fact that he is notWhite?
Mr.BRU~VER That is by deduction, Mr.President,
Mr. G~oss :This is an assumption, then, upon which the Odendaal Com-
mission report presumably has considered the moral welfare and social
progress of individuals in that category, if any?
Mr. BRUWER:That isso, Mr. President, but again on the basis of the
approach to the group.
Mr. GROSS: Dr. Bruwer, would you attempt-if you ~vould be good
enough te-when we are speaking about individual persons or persons in
aparticulai sociaicontext, to distinguish to the extent possible between the
individuai assuch and the individual as a group.1 state that asaprelim-
inary tomy next series ofquestions, al1of which relate to the Police Zone.
There are, as1 understand-correct me, please, if 1am wrong-approx-
imately IZ~,OOO persons who are classified as non-White living outside
Reserves or so-called "home areas" in the Police Zone. 1sthat correct, Sir?
Mr. BRUWER: Mr. President, from my recollection of the figures the
Cammission had before them that seems tome to be correct.
Mr. GROSS : Now these approximately 125,000 persons who live in the
PoliceZone or southern sector outside Reserves or home areas, do they
reside in what you describe as the "White area"?
Mr. BRUWER: Mt- President, they certainly are employed in that area.
3lr. G~oss: Do they therefore spend a gaod portion of theirlivesin the
"White area"?
Mr. BRUWER:It would be possible, Mr. President, that some of them
have been staying there for quite a part of their life.
kir. G~oss: Did you make enquiries into that rnatter when you sur-
veyed the situation of the Police Zone with respect to the Odendaal Com-
mission programme?
Mr. BRWWER M:i.President, we did enquire into the position in so far
that wetried to estahlish whether there isa movement from the Reserves to
the urban areas and back again, and the Commissionvery definitely got the
impression that there is such a movement of people from the so-called
Reserves to the urban areas.
Mr. GROS :YOUmean that morepeople areleaving the Reserves to corne276 SOUTH WEST AFRICA
to the areasoutside the Reserves, or more people are going tothe Reserves
from the areas outside? 1sthere a tide oneway ortheother?
Mr.BRUWER:NO,Mr.President, 1 wouId Say tliat if one compares the
figures forvarious 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 movemenisapproximately
the same over the years.
Mr. G~oss: Now, with respect therefore to these approximatelyra5,ooo
persons wholive outside the Reserves in the Police Zone,do they, or many
of thern,occupy the same physical areas, geographically speaking?
Mr. RKUWER:In the White area, Mr. President?
Mr. GROSS:Yes, inwhat you have described as the "White area".
Mr. BRUWER Y:es,1 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 constitute a majority of the persons inthose
areas?
Mr. BRUWER T:hey constitute a majority in the senseMr. President,
that they are,ifone puts them in the one category that has been called
non-White, in the majority.
Mr. CROSS:The census categories to u-hich I refe-rred, Dr. Bruwer, dis-
tinguishbetween "Whites", "Natives", "Asiatics" and "Coloureds". 1 am
referring to the category described as "Xatives" in the census category.
Do the Natives, as there described and defined, ccrnstitute 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 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 specificmoment, 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. BRU~ZR:hlr. President, the answer is, yes. From what 1 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 applicabIe to certain portions of the Bantu population in South
West Africa which donot extend to all who are ck~ssifiedasNatives?
Mr,BRUWER: Mr. President, yes,if 1recoflect there are certain regula-
tions in regard, forinstance, to the migrant labour of the Ovambo.
Mr. GROSS: As distinguished from the migrant of what other group?
Mr.BRUWER A:s distinguished, hlr. President, from the migrant labour
of the Okavango, because the people of the Okavango, as far as1 know,
carialso migrate to other territori ers,nstance, South Africaw,hereas
that is not the case with the Ovarnbo people.
Mr. GROSS:Ihat would be the reason for that distinction?
Mr. RRUWER: Mr. President, 1 would not be able to give the reason
since 1have not gone into ali the different considerations that probably
accounted for the difference in this respect.
Mr. GROSS:You do not know the anssver io that question, 1 take it.
There are, according to the Odendaal Commission report-1 cite para-
graph 113 atpage 31 and following-numerous references of which1shaU
quate one or two examples, and ask yoiir cornnient with respect to the
significance of the phraseology used. On page 31 at paragraph 113 WITNESSES AND EXPERTS 277
of the Odendaal Commission report, it is stated as follows, and 1quote:
". ..Large numbers [this refers to Darnara] were absorbedin the econ-
omy of the southern part of the country and displayed exceptional
aptitude as cmployees."
Iiould you describe what is meant, or intended to beconveyed, by the
phrase "absorbed in the economy", urhich 1 have just quoted from the
report?
Mr. BRUWER : r. PresidentI takc thatto mean that the large number
of the Damara then is ernployed 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 isused: "The White economy." Would you de-
scribe the basis upon which that characterization or description is laid?
Mr. BRUWER:Mr. President, 1 think the term "White economy" would
probably mean the money economy, the economy based on money and
with specificreference to this area then calledthe White areI wouldtake
it thatithas to do with the economy of farming and also with the econ-
omv of industries and the general type of economic development that one
finds inwhat one can perhaps cal1this modern type of society.
hfr. GROSS:And do the perçons classified as "non-White" serve in any
capacity in that "White economy"?
Mr. BRUWER:Mr. President, they serve in the capacity of employees,
asfar as 1know.
Mr. GROSS : Othey, as employees, have any relevance to whether the
economy works orsurvives?
Mr. Bruwer: Mr. President, 1 did not get the question.
Mr. GROSS:Does the fact that the persons claçsified as "non-White"
serve as employees in the so-cded "White economy" have any relevance
to the question whether the "White economy" survivesor thrives?
Mr. BRUIVERM : r. President1am not an economist but if 1have to give
an opinion based on my ordinary evaluation of the situationI would very
definitelysay that the fact that the,if we put it in inverted commas,"non-
Whites" ari: working in the White area is a very important contribution
towards the economy of that area.
Mr. GROS : Then your description in the Odendaal Commission report
of the "White economy" refers to those who employ non-Fihites and the
economy is characterizedby that description for that reason, is that cor-
rect?
Mr. BRUWER : r. President,Iwould not put it in that way, it would
appear to be like that but one can also putiinanother way, and Saythat
you have here a situation where certain people are busy learning, they are
busy getting into sornething new which is alien to what they have been
used to, anci one can therefore also look upon this form of economy,
although it is then calied theWhite 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-Whiteç, 1 refer to page 33 of the
Odendaal Commission report, paragraph 127, from which Iquote: "Ap-
proximately half of the Herero areabsorbed in the diversified economy of
the Southesn Sector of the country, ..." From your observations, as a278 SOUTH WEST AFRICA
member of the Odendaal Commission, in your enquiries in the southern
sector, are you able toayapproximately how many of these Herero per-
sons you would regard as not alien to the economy, in the sense in tvhich
you use the term?
Mr.BRUWER :Not alien to the econorny,Mr. President?
Mr. GROSS:YOUdescribe the relationship, as 1understood, of so-called
non-Whites in the economy as a relationship of being alien to whatever
the opposite would be, or the correlative wouId be. Did I understand you
correctly? If not 1would be glad to rephrase my question.
Mr. BRUWERY : es,1 think so, Mr. President, but 1did not get the ques-
tion very well.
Mr.GROSSW : ell, that is because I did not ask it very well,1am afraid.
1would like to refer to what I understood you to Saywhen you answered
my question with regard to the designation of this as a "White economy",
despite thefact that its survival, or at least its success depends upon non-
White labour. 1 understood you to Saythat you regarded it, and thatthe
Odendaal Commission report refers to it, asthe "White economy", be-
cause those who are not White are aIien to it1sthat a correct description
ofyour testimony?
Mr.BRUWERM : r.President, what 1meant is that the White economy,
the money economy, isalien to the basiceconomic systems of these people.
Mr. GROSSN :OW,you are falking about Hereros ~vorkingand, as.the
Odendaal Commission report said, who are "absorbed inthe diversified
tionwith the repIy you just gave me?ourselves to those people in connec-
Rh. BRUWER 1: am addressing rnyself to the basic Herero culture, Mr.
President, the culture ofpastoralists, which 1would not caii a money type
ofeconomy.
Mr. GROSS:You are referring to the Herero culture, but we will refer
to an individual Herero, let us caUhim Thomas, and he isabsorbed in the
diversified "White economy". Doesheserve a purpose there, doeshe make
a contribution there to the successoftfie economy?
Mr. BRUWER:Mr. President, I think 1 already said that he would be
making a contribution to that specifictype ofeconomy then.
Mr. G~oss: Now does hiç individual presence inthat relationship lead
you to question, or does it affect your nomenclaturewith regard to desig-
nating this as a "White economy"? 1speak to you both as a social anthro-
pologlst andasa member of the Odendaal Commission.
Mr. BRUWER:MF.President, what 1 understand by a White economy
is the money economy, as against the other thrr:e economies that 1 tried
to explain to the honourable Court the other day-that is where one has
to do with the whole factorof money corning into the picture-but 1 am
a social anthropologist, of course, not an economist, so perhaps my
definition is pot very clear; but the White economy, as far as 1can under-
stand the use of the word in this sense, means the money economy.
Mr.GROSSD : oes the desigiiation, Dr. Bruwer,have anything whatever
to do with the-1 quote again from Dr. Verwoerd's comment-"domi-
nation by the Whiteinhis ownareas"; doesthe description ofthe economy
as a "White economy" have any relevance to that characterization by
the Prime Minister?
Mr. BRUWER: Mr. President, with this provisu that 1stress again the
question of certain privileges and certain rights that people look upon
to have in certain areas. WITXESSES AND EXPERTS 279
Mr. G~oss: By reason of being White and non-White?
hlr.BRUIVER B:yreason of belonging to different groups, Mt. President.
hlr.GROSS 1:am referring to-couldyou answer rny question, yes or
no-by reason of being White and non-White?
Mr. BRUWER :es,MT. President, fromwhat 1 gather.
Mr. GROSS D:O 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 M:r. President, we relied on al1 information that we
couldlay our hands on.
Mr. G~oss: Did the information upon which you relied bear upon the
foliowing 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 rigon the different
population groups in their respectivereas"?
My question is whether the designation of the southern sector, or the
Police Zone, as the "White area",rneans that "priority rights"inthe
language of this pleading, are conferred upon the Whites in that sector?
Mr. BRUWER: Mr. President, no, 1would not Say that it is correct if
one uses the term the "southern sector" or the "Police Zone", becauçe
in the Police Zone one also has certainareasassigned to otherpeople;
for instance, one has the Rehoboth Gebiet, and one has also the so-caIIed
"Reserves" for the Herero; so that 1 would noSay that it is correcif
the term "Police Zone" or "southern sector" is applied, because whaI
understand the Police Zone to be, Rlr. President, is the area south of the
so-called "Red" line, that is, the area in the north where there is no more
land utiIized on an individual land tenure basis-this, where one does
not findany more farms.
hlr. GROS Dr. Uruwer, 1 invite your attention to the areaç outside the
Reserves where, as you have testified, some 125,ooo persons classified as
non-White reside-1 arn addressingmy questions to that area. Leaving
aside the Reserves, do you regard the "priority rights"to which this
passage quoted from the IZejoinder refers, as being based upon White
rnembership or White classification?
Rlr.BRUWER :hat is how 1 underçtand it, hlr. President.
MT. G~oss: Therefore I corne back to the statement by PrimMinister
Verwoerd concerning "White domination" in "his area", in the "White
area",and ask how it is determined whicharea is White from the stand-
point of domination, or if you prefer, "priority rightDo you under-
stand my question, sir?
Mr. BRUXVE R :nderstand the question, Mr. President, and 1 would
sa' that it is based on the area-calit,then, in the southern sector-
excluding those areas wkere other groups have got rights,and excluding,
to my opinion, aiso areas that are looked upoas being Crown land or
State land.
Mr. GROSS T:herefore what your answer to me is. if 1understand you
correctly, that the 125,000perçons living in the so-called "White economy"
and serving it arc in a position where their rights are of lower priority
than those liersons claçsified as White in that same area; iacorrect
versionof your testimony ?280 SOUTH WEST AFRICA
Mr. BRUWER:Mr. President, yes, 1would Say their position is different,
altogether different.
Mr. G~oss: The position is different-sir, is that what you said?
Mr. BRUWER:Yes.
Mr. GROSSI:n what respect is the position different, and whoçe position
is differenfrom what?
hlr. BRUWER:Mr. President, the position of the non-Whites, using
that terrn,is different from that of the Flrhitein that areaas we have
now defined it in the sense that the "Whites" ixithat area have certain
rights and privileges which the "non-Whites" have not in that area.
Mr. G~oss: Would you repeat the Iast part of your answer, if you do
not mind, sir?--1 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-
ces, but the ultimate determination would naturally be in the hands of
the Government who administer that area.
hlr. GROSS:And is that Government in the Ri:public of South Africa?
Mr. BRUWER:That Government is in the Republic of South Africa,
Mr. President.
Illr. G~oss: 1sthere participation in those decisibys the non-Whites
affected by the decisions? .
MT.BRUWER: Mr. President, that will of course take us in to a long
esplanation.
hlr. GROSS:Weli, may 1rephraçe the question to avoid a long expla-
nation? For the deference to the Court, with your permission, blr. Pres-
ident, 1 withdraw that question.
Dr. Bru~ver, ihave one or tcvomore questions, with the President's
permission, with regard to the delimitation of the southern sector, the
"White 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 1can gather from the histor-
icalprocess the boundary of the southern sector has been determined
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 Iooked upon as the northern points of control of that area-that
is how 1 understand that delimitation, Mr. President.
Mr. GROSS:Could you Say, Dr, Bruwer, ïvhether my understanding
is correct that the perimeter, the boundaries, of the southern sector have
been changed from time to time within recent years?
Mr. BRUWER:Mr. President, yeç, that boundary has changed; accord-
ing to the information that I have, it very definitely has changed.
Mr. GROSS : ould you advise the Court, Dr. Bruurer,on the basisof WITNEÇSES AND EXPERTS 281
what criteria or standards those changes were made by the South African
Governmerit ?
Mr. BRUWER:Mr. President, 1would not be able to give reaçons that
1 do not know of, but as far a1 can see, judging the situation from what
knowledge 1 have, one had the situation by 1920, and also during the
process of delimiting the various areas for the indigenous people as 1
tried to explain previously, that a certain stretch of country was unoccu-
pied, and according to what 1 can see is that the farm area was extended
northwards, if 1 rnay put in in that way, then-shifting the original line
north, ifthat is an answer to the question, Mr. President-that is how
1 interpret the position.
Mr. GROSS :hat was the purpose, if Iunderstand you correctly-in
order to extend the farming area of the southern sector-did1 understand
your response correctly, sir?
Mr. BRUWER:That is correct, Mr. President, according to how 1inter-
prct the position.
Mr. G~oss: When you testified on a 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 extensionofthe southern sector
-did it or did it not have any effect upon the land rights of individual
persons of any race?
Mr. BRUWER : r. President, as far a1know the position, the people
in the north had occupied areas up to a certain-one could not cal1it,a
boundary, because there were no defined boundaries, but up to a certam
place southwards. The area in between the so-cded "Red" line of that
time and the southern area or the southern limit of the occupied areas
in the north were looked upon as being State land or Crown land, not
actually occ:upiedby people except the Bushmen,as 1 told the honourable
Court the other day.
Mr. GROSS : s it correcor not,Dr. Bruwer, that perçons classified as
non-White may not own land in the southern sector?
Mr. BRUWER: Mr. President, 1 think it is substantiall~r correct, again
if we qualify the southern sector.
Mr. G~oss: Pardon me, sir-1 am talking about the southern sector;
could you answer the question "yes" or "no" whether non-Whites are
perrnitted to own land in the southern sector?
Mr. BRUWER:hlr. President, as far as 1 know they are perrnitted to
own land in the southern sector.
Mr. GROSÇ: NOW, 1 am talking still about the areas of the southern
sector outside of the Reserves: are the non-Whites permitted to own land
in the southern sector outside of Reserves?
Mr. BRUWER:Mr, President, the Commission was told by the officiais
of the Administration that it is possible for people under this category
"non-Whiti:~" to buy land in the southern sector outside the Reserves,
and that would also include the Rehoboth area in the terrn "Reserves".
Mr. G~oss: So that your understanding is that outsideofthe 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 rny understanding, Mr. President.
Mr. GROS: DOyou know, sir, what those circumstances are?
Mr. BRUWER:Mr. President, no, 1 would not be able to recall thecir-
cumstances.
hlr. GROSS:Are non-Whites, or perçons classified as non-\mite, en-282 SOUTH WEST AFRICA
titled to obtain permanent residential rightsor ownership in the urban
areas in the Police Zone or southern sector, outside of Reserves?
Mr. BRUWER:Mr. President, not that 1 know of, except the possible
qualificationthat the bujing of land that le were told about may per-
haps also apply in the urban areas.
Mr. G~oss: Perhaps the Odendaal Commission did not enquire into
that question, Dr.Bruwer?1 would like to point out to yousir,that the
Counter-Memonal, III, 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-Mernorial, what would your explanation be for that re-
striction?
The PRESIDENT : hat do you mean by what would his explanation
be-terms of policy ...?
Mr. GROSS :hank you, Mr. President-on the basisof what policy
considerations is such a restriction basedif you know?
Mr. BRUWER: Mr. President, if1can give my opinion as to the basis,
or the policy, on which such considerations are based, then1 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 priviIeges and the rights of a group of people in acertain
area.
Mr. G~oss :Just to understand the last comment, "keeping in rnind . . .
the privilegesW-are the privileges to which you referred those reserved
to the Whites in the southern sector outside the Reserves?
Mr. BRUWER:That is what 1 had in rnind.
Mr. GROSS N:ow 1should like to turnto 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", 1 should like to read
the foilowing brief statement by Prime Minister Verwoerd which is set
furth in the Rejoinder filed by the Respondent, and which appears at VI,
page 41 of the Rejoinder; the quotation reads as follows:
"The Rantu must be guided to serve his own community in ali
respects. There is no place for him in the European community
above the levei of certain forms of labour."
1ask you, if you will, sir, to state whether tisrelevant to the approach
to which you referred in your testimony as the basis, or onof the bases,
for your response to Mr. Muller's question.
Mr. BRUWER:Mr. President, Ithink itis relevant to that approach in
so far as the approach that1 have been speaking about is certainly based
on the existence of various groups of people.
Mr. GROSS The existence of various groups of peopleH-in what
respect, sir, would you clarify that comment?
Mr. BRUWER M:r. President, the existence of vanous groups of people
on the basis that1have already tried to indicate their distinguishabiIity
to the honourable Court.
Mr. G~oss:DO 1take it, then-1 do not wish to argue with you, sir,
1 want to make sure Iunderstand you-that the statement which 1have
just quoted from the Prime Minister to the effect that there ino place WITNESSES AND EXPERTS 283
for the Bantu in the European community above the level of certain
forms of labour-do Iunderstand your response to be that that restric-
tion orsealing anses out of the fact that he is not White, or if that is not
the answer, would you p1eaçe indicate what the answer is?
Mr. BRUWER:Mr. President, 1 can make no other deduction from the
quotation than that it is based on the fact that the one is, aç it is called
there, European, which probably then means White and the other one is
Bantu.
Mr. GROÇS:1s any distinction made with respect to the fact of being a
Rantu, or being classified for this purpose as a Rantu, between the various
cultures or cultural configurations of those constituent groups that make
up the Bantu?
Mr.BRVWER Y:es, Mr. President,there arvery definitely distinctions.
Mr. G~oss: 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. RRUWER NO, Mr. President, any Bantu, according to rny know-
ledge of them, can riçe to any position in the same way as any perçon in
any othernation or group can rise, a1 know them.
Mr. GROSS:This statement by the Prime Minister, may 1remind you,
states that there is no place for the Bantu in the European comrnunity
above the level of certain forms of labour. Is it your testirnony that this
is incorrect and that a Bantu ia European comrnunity can rise to aposi-
tion higherthan certain forms of labour?
Mr. BRUWER:hlr. President, 1 do not know exactly what is meant by
certain forrns of labour and naturally,y previous answer was a general
statement. 1thought it was a general question,Mr. President. Now, as far
as the so-called European areas are concerned-orthe European area then
-1 have to deduct from the facts as 1know 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 ina SO-
called European area then, I know of no ceiLingin regard to their rise to
a certain position itkeirschools.
Mr. GROSS:Are there any non-White teachers in any but non-White
schools?
Mr. BRUWER A:re there any non-Whiteteachers in any White schools?
Mr. GROSS:In any schools other than non-White schools?
Mr. BRUWEB1 : do not know of such cases, hlr. President.
Mr. GROSS:1s the limitation or restriction of a non-White teacher to a
non-White school based upon considerations lvhich take into account his
ability, oris race?
Mr. BRUWER:Mr. President, 1would Say that it takes into account his
connection with a certaingroup of people.Ifthe word "race" is used, then
1 would Sayno.
Mr.GROSS: 1sthe characterization or term "Bantu" a racial designa-
tion?
Mr. BRUWER M:r. President, it iç not aracial classification.aIclas-
sification based on language considerations and on anthropological or.so-
cial anthropological considerations. NOUTn,aturally, if oneisa physical
anthropologiçt, you will alço Say that the Bantu belongs ta certain race
of the human family.284 SOUTH WEST AFRICA
Mr. GROSS:May 1 ask you, sir, whether the fact that no non-White
teacher teaches in a so-caiied White school is based upon factors of social
anthropology ?
Mr. BRUWER:It is based on those factors, Mr. President.
Rlr. G~oss :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 1used as one of the criteria of the distinction of people.
Mr. G~oss: If a non-White person who is referred to asa Bantu speaks
Afrikaans or English or bofh, does the fact thathe also speaks a Bantu
language relate to the policy which precludes him-if this isthe 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, inmy opinion, would be that he is teaching in the schools where
Bantu languages are used.
Mr. GROSS : But if he dso speaks English or Afrikaans or both, what
relevance does his language capacity have to do with the policy which
precludes hirn from teaching at a White school?
Mr. BRUWER:Mr. President, his language woulclnothave any relevance
to that position. The only relevance would be, then, his attachment to a
certain group.
Mr. G~oss : Suppose he disclaims attachment to such a group, as an
individual, does that then enter intothé decision or policy of the Govern-
ment ?
Mr. BRUWER:Mr. President, 1am afraid 1 didnot get the questionvery
well.
Mr. G~oss: If the individual disclaimshisconnection with a group and
says I would juçt like to be a teacher and forget fora moment that 1am a
Herero, can he disclaim his link with the group in order to achieve the
right to teach at a White school?
Mr. BRUWER1 :do not know of cases like thatMr. President.
Mr. GROSS D:o you know whether or not that is inconsistent with the
policy, fiat, regulation, or law, which precludes him because he is non-
White?
Mr. RRUWER: AS I understand the policy, it iç inconsistent with that
policy.
Mr. GROSS:1s the fact that so-called "Natives"are limited to certain
positions in rnining enterprises, based upon cultural configuration be-
tween the various non-White groups? Can you answer that, yes or no?
Mr. BRUWER:WO, Mr. President, it is not relevant tthe cultural con-
figuration, apart from the questionofabode.
Mr. GROÇÇ:If, therefore, a non-White or so-calied "NativeVmaynot
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, 1 cannot see what ithas got to do
with any other factor.It isa categorizationofgroups.
Mr. G~oss: And hiç rights to rise above a certain form of labour in the
mine, therefore, depend upon the-shall we cal1itethnic group-to which
he belongs? 1s thatcorrect?
Mr. RRUWER:That iç correct, but only then in the area of the other
group, because. . .
Mr. GROSS: 1am talking, sir, about the southern sector,1 am talking WITNESSES AND EXPERTS 285
about one particular area. Let us confine ourselves, if you wiU, to that;
then,perhaps, wecandiscuss otherareasif youwish. Nowlet us takethe case
of a mine iil what pou have described as the "White economy"or "White
area" and .refer to the Rejoinder,VI,at page 231, in which it is stated
that there ;ire certain "posts which Natives map not be appointed to" in
mining enterprises, including Manager, Mine overseer, Shift boss, Sur
veyor and several other categorie1should like to ask yo...
The PRESIDEET M:r. Mulier.
Mr. MULLE Rw:antto indicatehere, that my learned friend, &Ir.Gross,
has not quoted the reference to page 231, correctly. The reference there
is to "posts which Natives may not be appointed to insuch enterpriçes".
Now thoçe are mines belonging toEuropeans. 1would like that to be quite
clearly put to the witness.
Mr. CROSS : hat they are mines belonging to Europeans. Let that be
theassumption of the question andmay 1address myself tothe enterprises
owned by Europeans, in the sector we are discussin And 1 refer again
to this cluotation or staternent, [rom the Rejoind%O. far as you knoiv,
as a member of the Odendaal Commisçion, is this restriction based upon
anything biit membership in an ethnic group?
Mr.BRUIVER M:r. President, no it is not based on anything other than
the fact that certain people belong to a certain group, hsving certain
rightsand privileges, in certain areas. whereas again, other people belong
to another group, but in this specific respect aç quoted there, do not
know of any other consideration apart from the fact that you have to do
with two groups here.
Mr.GROS SThe onlyconsideration is that there are two different groups
in the same area.
hlrRRUWER That is correct.
Mr.GROSS :O YOU know, Dr. Bruwer, whether "Natives", as the word
is used in the Iiejoinder and in the laws, may own minein the southern
sector outsiile of Reserves?
Mr. BRUWER1 : donot know . . .
The PRESIDENT T:he.question which you put to the witness-surely
that must depend upon lawç and regulations, wtiether they can or cannot
own mines?
Mr. GKOSS : r. President, may 1rephrase mlf question to ask whether
the Odendaal Commisçion 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?
hlr.BRUWER h:lr. President, the Odendaal Commission, the members
of the Odendaal Commission who were experts inthe economic fieldun-
doubtedly made analysis of al1 the various legislation in regard to the
question ofownership and certainlv also of mines, and nothing was sub-
mitted tothe Commission, of which 1am aware, that there isa possibility
for the so-called non-imitethen, to possessamine in the area defined as
the southern sector, excluding the reserveti areas.
hlr.GROSS :he reference 1 am about to make isagain, to Sour teçti-
niony, in the verbath of z July, at page264, suprn,in which you des-
cribed certain areas of South West Africa, if 1 undérstood the phrase
correctly, as "Caucasoid" areas. This thecorrect spelling?
Air.BRUWER M:r. President, the correct spelling is Caucasoid, which,
inrny opinion, is jiist another mord for \?'hites.286 SOUTH WEST AFRICA
Mr.G~oss: That is,asynonyrn for "White". In the Odendaal Commis-
sion report, at pag315-1 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 significanceis attributable ta the phrase "the
members of this developed sector are White"? What constitutes member-
shipin the developed sector?
Mr. BRUWER:Mr. President, membership in the developed sector, as 1
understand it, constitutes the question of whether one has certain rights
or privileges in 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
3 would not subscribe to the phrase. 1 would rather put it in the
way that members who do not have those rightsand privileges are ex-
cJuded.
Mr. GROSS:Now, are there anybut 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 1 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. CROSS:When the report of the Odendaal Commission therefore
refers to the absorption of non-Whites in the economy, is the word "ab-
sorption" there taken to have a different meaning frorn "membership",
both words being used in the Odendaal Commission report?
hlr. 'BRUWER A:bsorption in regard to mernbership?
Mr. G~oss: May Iclarifyrny question, sir? Do you wish me to?1 shall
be glad to.
Inthe Odendaal Commission report, to which Ihave referred, on pages
31and 33, reference is made tothe absorption, and that word is used in
the English text, of certain non-Whites into the economy. The section
from which 1juçt quoted states that the "members of this developed sec-
tor are White". 1 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 intothe economy and membership in the sector?
Mr. BRUWER:Mr. President, as 1understand it to mean, one can absorb
people in regard to an economy by attaching value to their contribution
to that econorny whjch isalso of profit for themselvesBut 1 also under-
stand it in this context and in the context of the framework of the ap-
proach to mean that that would not ofnecessity mean absorption in any
other way; that is on, forinstance, a sociological level.
Mr. GROS : And as to membership, the term "member of the commu-
nity", you have testified aIunderstand it that you prefer another word.
Am 1 correct in that understanding?
Mr.BRUWER 1:think that is correct, Mr. President.
Mr. GROSS :And what word did you Sayyou preferred?
Mr. BRUWER: 1 prefer participation as against the word absorption.
Mr. G~oss: 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 waç in regard to the qualification of WITNESSES AND EXPERTS 287
being of lo~verstatus or something. It was not for a question of member-
ship that1 wanted another phrase. 1accept that.
Mr.GROSS :ou accept that? Well, then, may 1 ask you-perhaps my
memory is faulty, 1 thought and understood you to be referring to that
phrase-my question had intended to ask you, sir, what the significance
isof the concept or expression "the members of this developed sector are
White"? In what sense is a non-White excluded from membership?
Mr. BRUWER :he non-Whites, Mr. President, appear to me to be
excluded on the concept of not being members of that community.
Mr.G~oss: Well, perhaps we could approach it froa different angle.
1s a person classified as White automaticaily a member of the develoyed
sector?
- &Ir.BRUWERA : member for aU purposes 1 should think, yes, Mr.
President.
Mr.GROSS :s he, therefore, as a member, entitled to rights and prior-
ities?
Mr. BRUWER Y:es, Mr. President.
Mr. GROSS :sa person classifias non-White automatically excluded
from membership and therefore rights and privileges?
Mr. BRUWER A:S 1understand it, Mr. President.
Mr. GROSS D:id the Odendaal Commission inquire into this matter
with respect to rzcj,ooo persons in the Police Zone?
Mr. BRUWER: Mr. President, the Commission took into account aU
the information that it could gather. The Commission was aware of mea-
sures of differentiation based on this category that has heen mentioned
here and, keeping in mind the sociological position and the assumption
of rightsofgroups, the Commission now based its approach on the con-
cept, if we mayagainuse that word, hlr. President, of ensuring that every
individual hasrights and privileges although may be in another area.
Mr. G~oss: You appear to refer here, ifI understand you correctly
and please do correct meif am wrong, that the higher priority autorna-
ticaiiy assigned ta White in the southern sector, the modern sector, is
balanced by the fact that in the traditional sector, in the less-developed
sector, the Native hasa higher priority over Whites. 1sthat what you
rnean by referring to other areas? We are tdking now about the southern
sector outside of the Reserves in order to avoid confusion on that point.
Rlr. BRUWER: That I understand, Mr. President. Mr. President, 1
wouId sav that according to my opinionand basing my opinion on the
framework of the process of development, ora process of development,
I would çay that thereisthat balancing factor.
Mr. G~ass : Now, are there any other factors other than this balancing
factor or equivalents which account for the automatic exclusion frorn
membership in the White sector of anon-White?
hlr. BRUWER:NO, Mr. President, there is to rnyknowledge no other
basis on which this'is done.
Air.GROSS :ow, Dr. Bruwer, how many \nites are there in Ovam-
boland?
Mr. BRUIVER M:r. PresidentIdo not know the exact number just at
present, but during the periodofthe Commission they must have been
somewhere around 300.
Mr. G~ass:And how many non-Whites are there in thatarea?
Mr. BRUIVER: In the area of Ovamboland?
Mr. GROSS : es, in Ovamboland.288 SOUTH WEST AFRICA
Mr. BRUWEP:&Ir.President, according to the best of rny knowledge,
giving a round figure, 1 would Say z40,ooo.
$Ir. G~oss: New, the two or three hundred 1W- ies,1 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?
&Ir. BRUIVER:Nr. 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.
Mr. G~oss: WI-iatsort of work, for esample, did your inquiries disclose
that they were engaged upon?
Rlr. BRUWER:Mr. President, there are rnissionaries who are doing
mission work in South West Africa and sorne of them originate in other
parts of the ivorld, for instance in Finland. Then there are government
officials, and then there arc also people biisy with the shops in Ovambo-
land, doing trade in Ovamboland.
Mr. G~oss: And, sir, of what rights are those Whites deprived?
Mr. RRUWER:Rir. President, they are deprived 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 D:id you not Say, sir, that some of the Whites there were
government representatives or officiais?
&Ir. BRUWER:They were govcrnment oficinls,Mr. President, giving
guidance in regard to the administration.
Mr. G~oss: Apart from the disability irnposed upon them as Whites
to buy land, what other rights, ifany, are they deprived of?
Mr. URU~ER: They are deprived, Mr. President, of the right to parti-
cipate in the political institutions of tlie people in Ovamboland.
Mr. GROSS:Now, is this the deprivation of rights, if we may cal1 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 southern sector?
Mr. BRUWER : eç, &Ir.President.
Mr. G~oss: Are there Whites in other areas outside of the Police Zone
or southern sector, other than Ovamboland?
Mr. BRUWER: l'es,Alr. President, there are also Whites in the Oka-
vango, there are \Vhites in the Kaokoveld, there are also Whites in the
Eastern Caprivi.
Mr. G~oss: Now, how many such persons are there in total, in the
aggregate, approsimateiy?
lfr. RRUWER :lr. President, 1 do not know the exact number at
present, but 1 do not think that there can be more than between three
and four hundred altogether.
Mr.G~oss: I would like to turn to other linesof considerations ~vhich
ernerged from your testimony. 1t has reference to the field of social
anthropology 1 believe, sir. Atpage 246, supra, of your testimony of z
July you indicated, stated, that there was what you calied difficulty
in classifying perçons who are mernberç of the Dama group. You stated
that "they speak the language of the Nama, but if you take again the
criterion ofperceivabie physical differences, then you would say that you
have to deal with a man comparatively the same in physicai features
as the Uantu group". 1s tliis statement from an anthropological point
of view true of al1Namas or Damas or only certain individual persons?
Mr. BRUWER: MF, President, 1would say it is true of al1Damas that a WITNESSES AND EXPERTS ~~9
difference does exist, that they speak the Nama language, but on the basis
of perceivablephysical features again, they are a dark people.
Mr. GROSS:Your testimony then was applicable to the entire group,
without exception?
Mr. BRUWER : hat is correct, Mr. President, as fa1know.
Mr. GROSS:Have there, to your knowledge, been offspring of members
of this group, theDama group, and other groups, let us Say the Werero?
Mr. BRUWER: Mr. President, 1 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 : OW if aDama man, let us say and, for example, a Kerero
woman marry and have a child, on what basis is the determination made
of the classification toch that child belongs?
Mr. BRUWER:Mr. President, I would think that one would classify such
a person more probably than not on the basis of residence and possibly on
the basis of the group of his mother.
The RESI SI DE N e:there many such instances that you know of?
hlr. BRUWER:Not so very many, Mr. President, 1know of.
Mr. GROSÇ: I would be prepared to submit for the record a number of
which 1have persona1 knowledge. If thereisany question in the witness's
mind concm-ning the existence of this,may 1 ask you, sir, ~vouldthis be
regarded as an unusual phenomenon in the southern sector?
hlr. BKUWERM : r. President, is it a question of admixture that ismeant?
Mr. GROSS:Yes,sir.
Mr. BRUWER:Mr. President, T 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 is only-if Iremernber well, hlr. President-just about over 12,000,
then the phenomenon is not a total phenomenon.
Alr. GKOSS:Dr. Bruwer, in your reference to the characteristics by
which you would distinguish a Dama as a member of the Bantu groupfor
one purpoçe, and of the Khoisan by reason of language for another, is
there any account taken in respect of the mental endowment or capacity
inmaking the determination as to which group he belongs?
Mr. RRUWER:1think onehas to consider, Mr. President,...
hlr. GROSS:Are there any distinctions from a social anthropologist's
point of vii:w? Are there distinctions in mental capacior any other as-
pect of capacity which depend upon his membership in one group or the
other?
Mr. BRUWER:Mr. President, no, 1 do not subscribe to the opinion of,
ifI have the word "mental" correct,inequality of a man where there may
be differences on account of the fact thetbelongs to oneor other group.
1 think the inherent possibilities of man are cornparatively the same, Mr.
President.
Mr. GROÇS:Now therefore would you, remembenng the census classi-
fication to which 1 referred and read into the record, and othe basis of
which rights and duties are allocated and allotted, would you say that
membership of ailindividual, in onegroup or the other, has any relevance
to the assignrnent of rightç to him?zg" SOUTH WEST AFRICA
Mr. BRUWER:Mr. President, it has, as 1have tried to explain. The as-
signing of rights, aIunderstand it, in South West Africa, is based on the
attachment of an individual to agoup or a community.
Mr. G~oss: 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, 1 think what is meant there is that in re-
gard tothe department having to do with them they have corne under the
department of Bantu affairs.
Mr. G~oss: This has nothing ta do then with their classification in the
census?
Mr. BRUWER :NO, very definitely nothing.
Mr. GROSS :n the testimony which you gave on z July, 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 differencesbetween the population grouys, and you stated in response
thereto (to save the Court's timeIwill 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 omany things inthat society, and
the principles embodied in the systems differed tcisuch an extent arnongst
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. Now, among the approx-
imately 1z5,ooo persons living outside the ReserQesin 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.GKOSS : es, the people who live in the southern sector, work there,
and Liveand die there, outside the Reserves.
Ms.BRVWER M:r.President, many factorsstil1apply according to rny
knowIedge of the people.
hlr.G~oss: How would you apply these criteria? There isagreat dif-
ference between these various groups of peoples in societies; how ivould
you apply this to individual Natives, for example, who were born and
lived their Liveson a so-called White farm?
Mr. BRUWER:First of all, Mr.President, Iwili find out whether that
man looks upon himself as belonging to a certain group by means of the
name he applies to hirnself.1 wiil 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 1will then mention
al1the groups if necessary, Mr. President. If he says yes, the1will take
it that he stili looks upon himself as part of a certain specific group of
people.
Mr. G~oss: Now, in the sense in which you have just used the word
"part" of thegroup, what relevanceor connectiondoeç his being a "part"
of that grouphave to do with his life on the farrn?
Mr. BRUWER: Mr. President,1 would Say many things; because for in-
stance, of kinship.The question af how this man applies a certain system WITNBSSES AND EXPERTS 291
of kinship, dso on the farms, whether he subscribes to the one systernor
whether he subscribes to the other system, and1 have never corne across
any instance, Mr. President, on farms, and usually when 1 do research
work 1speakwith people wherever 1corne in contact with them, whether
it is on a farm or a Reserve or antown, and 1have not corne across any
individual that did not tell me that his system of kinship islike this.
Mr. GROSS :he basis ofth: 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 hirelationship to
his employer or his life on the farm?
Mr. URUWER : T.President, 1would not know how it affects his rela-
tionship with his employer on the farm, because 1 have not studied that
type of relationship.
Mr. G~oss: 1sthere any relevance to this matter of distinction between
groups, in respect of a person 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?
hlr. BRUWER:Mr. President, yes, 1 think these things are relevant in
regard to his subscription toaspecific system. May 1 quote perhaps only
one example, Mr. President. Ifwe take the question ofmarriages. for in-
stance, now polygenous marriages, in the White group where Roman
Dutch Law applies, therisnot thisphenornenon of having more than one
urife, whereas thatis a phenornenon that one cornes across amongst the
other groups on farms, and even in towns 1 have corne across that, Mr.
~residënt .
Mr. CROSS : he rights and privileges allotted to such an individuby
law and regulation, do they have any connection with his cultural con-
figuration?
Mr. BRUWER:Mr. President, no, they onIy have connection with the
fact that thiman does not belong to thegroup, to that specificgroupin that
section in the southern part of South West Africa,excluding the Reserves.
Mr. GROSS Y:ou referred in your testimony on page 243, supra, of the
verbatirn of2 July.to the cornparison of differing civilizations-tis the
phrase you used-and the important factor,as you described it, ofterrz-
torialabodes.Does either of those factors, or criteria, have any relevance
to the individual and his farnily who spend their lives on a White farm in
the southernsector?
Mr. BRUWER M:r. 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 agroupandin that sense it wiUhave relevance, but not on him
asan individual or as an individual family on the basis of abode.
&Ir.G~oss: Does your answer to my question, Dr. Bruwer, involve the
point or the consideration that al1individuals in South West Africa are
Iooked upon as members of acertain group?
Mr. BRUWER:Yes, Mr. President, 1 think that is correct.
Mr. G~oss:And that the census categories therefore, to which 1 have
referred, establisa membership in agroup for every individual. That is
correct?
Mr. BRUWER T:hat is correcMr. President, asI understand it.
Rlr. G~oss: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 purpose1 am talking about the southern
sector outside the Reserves.292 SOUTH WEST AFRICA
hlr.BRUWER : r. President, 1can only Say that as far 1scan seeand
evaluate the situation iis forthe purpose of deterrnininhis rightseither
in one area or in the other area.
Mr.GROSS: One area within the sectorIam discussing, sir? 1am 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. G~oss: A question of the classification of every individual in
that sector outçidethe Reserves in order to determine the allotment of
rights, priviIeges, or other incidents of his social or political lithats
correct?
Mr.BRUWER Th:at is how1 understand it, Mr. President.
Mr. G~oss: And is that, sir, the way the Odendaal Commission under-
stands it?
hfrBRU~VERT :hat isthe way the Odendaal Commission understood it,
illr. President, and that is also the reason wliy they triputtinto 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 wbich he
belongs.
Mr.G~oss:In the sector that we are referring to, outside the Reserves,
is thereany law or regulation of which you are aware which deterinines a
person's rights, privileges, or duties on the basis ofhis individualcapacitp,
apart from hismembership in a group?
Mr.BRUWERB :lrPresident,not that 1 know of. There rnay be, but1do
not know.
&Ir.G~oss: The Odendaal Commission made enquiries into this ques-
tion. Would you, sir, as a rnember of the Odendaal Commission, regard
this factor as having any bearing upon the moral well-heing and social
progress of the individuals in this area?
hlr. BRUWER:MF.President, that question, or that problem, ïvhich 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 notbe dissected frorn the
moral well-being of his people..
Mr. GROSS:"His people", refers, Dr. Bruwer, to the fact that he is, let
US sas, obviously White but generally accepted as Coloured? That assign-
ment to the Coloureds is one of the factors thatyou have in mind when
you refer to "his peopIe"?
Mr. BRUWER:That is one ofthe factors.
Mr. GROSS:Does the individual have any voice in the rnatter whatever?
Mr. BRUWER : r. 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 onegroup only-not of the Whites only, or the
Coloureds only, or the Nama onljr-but met every group of people, and
the Commission also invited information from ail possible sources. Andin
evaluating the position andinbeing confronted with a verygreat problem,
Mr. President, a very great problem, the Odendaal Commission, on the
basis of their study of the information and on the basis aofotheir accep-
tance of the evidence that \vas given to them by the various groups of
people, now an the basis of the consensus of opinion, the Odendaal Com-
mission recornmended 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. GROÇS: May 1 rernind you, Dr. Bruwer, that my question was
whether the wishes of the individual had any relevance to the assignment
of his rights and dutiesDoes that have any relevance to the açsignment
of his rights and duties? You understand my question, sir?
Mr.BRUU'ER 1:do not follow the question...
Mr. G~oss: If an individual says, hypotheticdy, "1 would like to rise
above a certain level of labour", or he says, "1 would like to be a member
of the Whitt: Community", do his wishes aç an individual in that respect
have any relevance tothe decision taken with respect tohim by Govern-
ment?
Mr.BRUW-ER h:lr. President1would Saythat it certainly has relevance,
but it wiIl be subject to the position of the group in which he finds him-
self. In othi:r words, say, for instance, an individual is acceptedby a
group, then there would be no problem of assigning to him the same rights
and privileges of that group, as 1understand it.
Mr. GROSS: The individual in the southern sector, living on a White
farm, having been born there, wishes to have certain rights correçponding
to those of the Whites inthat area. By what standard or criterion isit
determined that, irrespective of his persona1 wish, he isa member of a
certain group, which rnembership then determines his rights? What are
the criteria iipon which such a decision is made?
Mr. BRUWER : r. President, as fas 1can see, the only criterion the
fact thatthe area, or the farm on which this man finds himself now, is in
the area of Whites.
Mr. GROSS D:oes 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. BRUUER: NIr. President, no, it would not be respectinhis wishes
in that sense, but his wishes wiLlthen be made subject to the general
pattern that you have in that society.
&Ir.GROSS: 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
interpretaticin.
Mr. GROÇS:1 would like to refer to the Odendaal Commission report
again. This arises out of your testimony on 2 July, with regard to the
value of separate development which, 1 bclieve. is another term for
apartheid. Ir1that connection 1 refer to page 429 of the Odendaal Com-
mission report, in particular paragraph 1437-1 should Iike to refer to a
rather lengthy section urhich 1 shall not read in full, at some risk of
reading out of context-1 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 capabilitiesU. Then reference is
made to the necessity of affording them "protection against the more
effective cornpetition 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 AFRICA
is in any case undesirable under the circnmstances on moral and
ethnic grounds."
Having signed this report, 1 should like toask you,Dr. Bmwer, 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] ethnic grounds"?
Mr. BRUWERM : r.President, the meaning that 1 would attach to the
term "discrimination" would be lvhere one differentiates between people.
In some cases it may be that the individual may feelcertain detrimental
effects of such differentiation or discrimination, but that is the only
meaning 1 can attach to the term "discrimination", that it makes a dif-
ference between people in regard to certain things, in regard toin this
case for instance, rights and privileges.
Mr.GROÇS :Therefore,if Iunderstood you correctly, Sir, when reference
is made, in the passage cited, to the "undesirableaspects of discrimina-
tion "on moral and ethnic grounds", do 1 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 M:r. President, my answer to that question would, of
coiirse, depend on the degree. 1 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 1can 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 1 only givemy awn persona1
opinion here), that any individual has, naturally, a human dignity.
hlr. G~oss:If it is within the field of social anthropology, what would
you, asan expert in that discipline, suggest to the honourable Court in
respect of certain criteria or standards that could be applied to determine
whether, in a given context, discrimination was "against people" or
"between people"?
Mr. BRUWER M:r. President, i1 had to esplain what I mean by dis-
crimination between people and discrimination against them, 1 would
-foc instance,take as an example-we have been talking, 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 rnay not buy land or get hold of land in the southern orWhite
sector, if that had excluded him altogether from righis and privileges
ofland 1 would have said now you are discriminating againsfpeople and
to that 1 would not be able to subscribe. My conception of discrimina-
tingbetween people is where you have to do with sentiments, you have
to do with problerns-you have to do with a very complicated problem
sometimes-you have to keep al1these things 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 situatiIf.one now
finds that according to things that are factual-youhave a factual situa-
tion-now you.want to start with a process, but you have a position
here where certain people in societv are excluded from certain rights in
that society and in that area (and, Mr. Preçicknt, 1 do not deny that
that situation isthere-thais thesituationthe Odendaal Commissionvery
definitelv had to do with), but now Iwant to establish a basis whereby
1can assign to thesepeople rights and privileges which will be protected
and ensured in the same way as the rights and privileges that 1 now WITNESSES AXD EXPERTS 295
protect and ensure against these people who are in society, on that basis
of differentiation, Mt. President, then I would Say it is differentiation
betweenpeople.
1 have already said, Mr. President, that I can quite see that any indi-
vidual ora certain individual may very definitely find or feel that against
him one has now discriminated, in other words, you have now discrim-
and privileges then he must immediately-andes,you exclude these otherhts
people there now-agree, wellat least the discriminatioagakt is now
discrimination between. That is how 1 understand the concept, Mr.
President.
[P~rbEzcearingof 6July 19651
The PRESIDEN Th:e hearing is resumed and 1 cal1 upon hlr. Gross
to continue his cross-examination.
Mr. GROSSM : r. President. Dr. Bruwer, 1 suggest that1 speak too
quickly ancf if you raise your hand, I will slow down; please do not
hesitate to do so.
At the adjournment yesterday, Dr. Bruwer, 1 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 asthe "more
effective cornpetition" of their White neighbours; your comment5were
being addressed to the finding in the Odendaal Commission report at
page 429, paragraph 1437a ,nd 1 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 ethnic
grounds."
Have yoir, Dr. Bruwer, completed yourcomments, or did you wish to
continue, sir?
finished my comments. The only addition that I wanted to makecwasatoy
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 1have already tried to explain to the honourable Court.
Mr. G~oss: Do I understand from your ansxver just given that this
reference, or finding, which 1 have quoted does not apply to non-White
individuals in the White economy or southern sector outside of the
Reserves?
Mr. BRUWERM : r. President, it appltosthe interests of everybody
according to the considerations of the Commission.
Mr. GROSSC : ould you answer my question "yes" or "no" to avoid
a possible misunderstanding, Doctor? Does this finding relate to non-
\nites in the southern sector outside of the Reserves?
Mr. BRU~VER Y:es, Mr. President, that is correct.
Mr. GROSST :hank 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. BKUWER:Yes, Mr. President.
Mr. G~oss: It applies then to both areas: outsofethe southerasec-296 SOUTH WEST AFRICA
tor, and the so-called "White-area" or "White economy"? That is car-
rect, iit? Now Iwill be directing your attention, if the Court pleasto
the situation within the southern sector, so that there may be an avoid-
ance of misunderstanding. 1 would repeat that 1am referring to the non-
Whiteç wlio live and work in the southern sector outside of the Reserves,
totalling some 125,000 persans in the non-Mte category.
Now, 1should like to draw your attention to paragraph 1437 ,o which
1 have juçt referred, which is on pag429.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 rnust thereforebe given separate geograph-
ical areas in which the aim of special advancernent can be carried
intopractice".
Having in mind that we are talking nouTabout non-Whites in the south-
ern sector outside of the lieservcs, what is the nieaning attribubydthe
Commission to the phrase "framework of integration"? In this context
what does the mord "intcgration" signify, if you please, sir?
hIr.BRUWER M:r. President, the word "integration"as 1 understand
it, and 1 also take it that that is how the Commission underçtood 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.',
&Ir.GROSS C:ould you enlighten the Courtby defining the word inte-
gration" without using it?
hlr.BRUWER hIr. President,I would say that integration w~~ld be
whcre you create a society hy giving rights and privileges to members
of other groups, who have nlrendy got their rights and privileges inan-
other area, in that specific society of another group. 1 would cal1that an
intcgratcd society.
Mr. Gaoss: Does integration consist in giviiig rights or privileges to
certain groups in a society? 1s that correct?
Nr. BRUIVER :hat iç Iiow 1 would interpretit,nIr.Presidcnt.
3lr. GROSS:1s it not true, YI. Bruwer, that every individual in a
society has certain rights and privileges as a human being?
hlr.BRUWER: That is correct, hlr. President; every individualcer-
tainIy has rights and privileges.
hlr.GROSS : ell, what sort of rightç and privileges must be denied
before you can say that a society isnot jntegrated?
hlr. RRUWER M:r. President,ifa society is not integratcd in the gen-
eral sense of the meaning1 would Say it ia society where certain people
do not, for instance, have political rights, where they dohave owner-
ship rights, that 1 would call a type of society where you have not got
total integrationOf course, thereare also other possiblemeans of de-
scribing it. because one can, in my opinion Mr. President, distinpish
between what 1 would perhaps call, Say, legal integration as against
integration at the heart. There are also thestwo smaller differences in
my opinion in regardto integration. In other wordç one couId say that
asociety is integrated politicdy,it iç integrated economically, buthen
it may stiU 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 :his is basicaIly, if 1 understand pour comment, a matter WITNESSES AND EXPERTS *97
of feeling or attitude on the part of one group with respect to another.
Does that constitute an element of integration?
Mr. BRUXVEH M r. President,1 would very definitely Say from my
experience that that certainIy constitutes a factor of integration.
Mr. GROSSD : r.Bruwer, suppose, as in the southern sector outside the
Reserves, the attitude of one group (letus çay the White group) with
respect to the non-White 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, 1would not describe that as an economically integrated society,
because what 1 understand by econornic integration would be that one
would have aU the rights and privileges connected with the economy of
that country. That would also include, for instance, land rights. Now,
in South West Africa 1 do not know of any examples, Mr. President,
where in a, cal1it then, non-White area, that is an area thathaç been
assigned to one of the various population groupsin South West Africa,
for instance, one couldSay that a White person is totally economically
integrated, tiecaus1don't know of any cases where they have ownership
right of land, andI take that,Mi. President, as being part and parce1of
an economic system.
Mr. G~oss: Dr. Bruwer, certainly you must feel free to answer the
question in thebest way you can, but 1 would inviteyou to confine your
remarks, if possible, to the questionsrelating to the White economy, so-
called, in the southern sector. The frequent references to other areas rnay
confuse the Court. I'm afraid they sometimes confuse me, and 1 would
like to avoid that.
With reference to the situation in the sector we are talking 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". 1 should like to ask you why it cannot be
achieved. 1s thcre any inherent reason why it "cannot be achieved" in
the sense in lvhich you use the term "integration" in this sector?
Mr. BRUWER: Mr. President, there is certainly no inherent reason,
ifone now evaluates the various people in that society-that is, in the
southern sector-but the considerations of the Commissioiiers were that
one has to protect the rights ofa certain group in a certain area, and
therefore, Mr. Prcsident. rny answer to the question actually is "no,
there are no inherent reasons-that is, that one wouldSay the one group
cannot achieve the same economic advancement, for instance, as the so-
called White economy".
Mr. G~oss: 1 tliinkyou used the phrase "a certain groupu-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,1 mean the White group on the basis of
the information that 1have.
MT. GROSS :es. So that what your answer cornes down to, if1 under-
stand you, a.nd please correct me so that the Court may not be misled
by my question: integrationin your sense of the word cannot be achieved
in thesouthern sector, the modern economy of the Territory, because of
the requirements you perceive to protect the White group-is that a
correct summary, sir?
Mr. BRUWER: That is correct.298 SOUTH WEST AFRICA
Mr. GROSS :herefore the question 1corne to now is whether, when you
refer in the Odendaal Commission report to absorption of certain non-
Whiteç-for example, half of the Hereros-the word "absorption" is
used in a different sense than, ustSay,would be conveyed by the phrase
"economic integration"?
Mr. BRUWER:It certainly is, Mr. President, as 1 understand it; if 1
may explain, Mr. Preçident-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
peopIe by reason of their colouorrace as a form of discrimination against
such perçons?
Mr. BRUWEK: Mr. President, as 1explained yesterday, 1 would look
upon it as being a measure of differentiation between people; if one uses
the phrase "against", then 1 must start giving an explanation of my
answer, whether it is yes or no.1 have told the honourable Court tliat I
distinguish between differentiation betweenand differentiation agaivast;
the one, to rny opinion-differentiation againçt-being negative, detri-
mental. The meaning that I attach to differentiation between would be
that one gives rights and privileges to people, but then on a different
basis.
Mr. GROSS: Dr. Bruwer, 1 hesitated to interrupt you but 1would 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 ra.ce as a form of discrimi-
nation?
Mr. RRTJWERM : r. President,I would regard such a form of differen-
tiation as discrimination.
Mr. G~oss: Do you identify and make synanymous the words "differ-
entiation" and "discri~nination", for ail purposes?
Mr. BRUWER:hlr. President, it ail depends; I would not really make
a basic difference between the two words differentiation and discrimina-
tion.
Mr.GI~OS :You would not make a difference between them?
Mr. BHUWERN : o.
Mr. G~oss:1 began this line of enquiry yesterday, as you will recall, by
reference to the sentence using the term "discriniination" in the Odendaal
Commission report-would you substitute the ~vord"differentiation" for
'8discrimination" in that sentence-would it make any sense?
Mr. BRUWER:Mr. President, 1 cannot recollect the entire sentence
now.
Mr. G~oss: Iwill try to find it for you. It is at429,paragraph 1437,
and it reads as follows:
"These advantages of special advancement and special protection
cannot be brought aboutin an integrated community without openly
subscribing to discrimination, which is not feasible, and is in any case
undesirable under the circumstances on moral and ethnic grounds."
Now 1 ask you, ifyou make a synonym ofthe two words "differentiation"
and "discrimination"-does the sentence1have juçt readmake any sense?
Would yousay, normaliy,"without openlysubscribing to differentiation"? Mr. BRUIVER M:r. President, in that sentence 1 do not think one can
useMr.eGROSS "d:eii, this is the context omy question; that is why 1
would iike 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.
Comirig back to that, therefore,1 take it that your answer makes clear
that there are at least some situations in which the two words arenot
synonyrnous. Now 1ask you therefore, again, whether the imposition on
the freedoms of people by reason of their colour or ethnic origin is a form
of "discrimination" within the meaning of the word as used in the report,
and just cited?
Mr. BRUU'ER M:r.President, within that meaning rny answer would be
"yes".
Mr. G~osa: Thank you. Now, what is the significance of the phrase
"wiping out diferences" which appears at page427 of the Odendaal Com-
mission report in the following context-1 will not quote the entire,
lengthy paragaph, but will siimmarize it briefly: the Commission con-
cludes that it would not be desirable to "wipe out the differences between
the groups", to which is contrasted what iscalled "cornplete socio-econom-
ic integration".Are these the true and only alternatives: wiping out the
differences on the one hand, and complete socio-econornic integration on
the other? 1s there any in-between ground, which the Commission does
not refer to, buwhich neverthelesç exists in your opinion?
Mr. BRUU'ER M: rPresident. 1would Say no, because if you wipe out
something then it no longer exists-thais my understanding of the term
"to wipe out".
Mr. GROÇS : ay 1repeat my question, sir?The Odendaal Commission
report, in the passageI 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 caIled "complete socio-
economic integration" possible.1 have asked pou whether there is any
middle ground between those two extreme statements of position; the
Commission referred to none-can you suggest any to the Court?
hlr. BRU~IER Air. Presidentas 1 have just now said, itdepends on
what one understands basically by the words "to wipe out". Now, if my
interpretation of the words is correc1would Say if something is wiped
out-for instance, 1fhave written something on a blackboard and1wipe
it out-then it no Ionger exists, so one cannot say that there is anything
inbetween, because now you have erased sornething that existed.
Mr. G~oss: Do you attach any significsnce at alito the phrase "wipe
out the differences betweenhe groups" as used in the Commission report
-is itjust a jurnble of nonsense, or does itahmeaning in this context?
Mr. BRUWER M:rPresident,1 think what the Commission had in mind
there in using the phrase "to wipe outfferencesH-is to \vaive, Ihave
the correct word thereaIlmeasures of differentiation. Naturally one can-
not wipe out certain things, because how could you possibly wipe out, for
instance, thephysical differences between people?-that isnot possible;
but I think what the Commission had in mind with that phrase certainly
was the taking away of al1measures of differentiation.
Mr. G~oss: The elimination of alimeasures of differentiation between
groups would include, for example, the elimination of the rnatrilineal sys-
tem, asdistinguished from the patrilineal system-ithat what you have
inmind when you referto ehinating differences, ordifferentiation?3'30 SOUTH WEST AFRICA
Mr. BRUWER:No, Mr. President, what 1 had in mind was eliminating
the differences, therneasures of difîerentiation-we are talking now, Mr.
President, of the southern sector outside the Keserves-between people
within a society on the basis of allotment of rights or non-allotment of
rights.
Mr. G~oss: Do I understand you to mean, Dr. Bruwer, that in referring
to "wiping out the differences between the groupç" you mean eliminating
differential treatment on the basis of freedoms aiid liberties?
blr.BRUWERT : hat is correct, Mr. President.
Mr. GROSS :Thank you. Now with respect to socio-economic integration
the word "cornpiete" isused inthe 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-economicintegration-that
a correct rendering?
hlr. BRUWER:It seems as if the word "complete" would imply that
possibility, Mr. President.
Mr. G~oss: You were familiar with the drafting of the Odendaal Com-
mission report, were you not, sir?
hlr.BRUWER Y:es.
Mr. GROSS:Would it be appropriate to ask whether you drafted this
section of the report?
Mr. BRUWERM : r.President, 1drafted the:chapters on the population;
1drafted the chapter on the physical aspects of thecountry;and 1drafted
the chapter on the educational part; those were the parts that 1was re-
sponsible for.
Mr. G~oss: Now 1bclieve that,as has been statedby the Prime Minis-
ter-1 quote from the House ofAssembly Debafes,Third Session, Second
Parliament, 8 May 1964, column 5633-in discuasing the report:
"Al1 the members signed the Report as a whole, and the aliegaticin
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 everychapter of the whole Report jointly. Theynot 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, iind they all subscribed to
the Report as a whoIe."
IS that a correct staternent, sir?
hlr. BRUWER:That is aperfectly correct statement, Mr. President.
Mr. GHOSS:Now then, when you qualify your answer with respect to
the rneaning attached to words and phrases by reference to "1 gather" or
"1 assume", are you nour reconsidering the meaning attached to theword
at the time you read it and çubscribed to it?
Mr. RRUWER M :FPresident, 1 am certainly not reconsideringmy expla-
nation of the term and what it implies; that naturally waç done only to
give an indication of what one understands by a word in a certain con-
text.
Mr. GROSS:NOWwhen you signed the report, which contained the
phase "complete socio-econornic integration", did you,in approving those
words, have in mind a distinction between complete "socio-economic in-
tegration", on the one hand, and some 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, 1cannot think that we had anything
other than complete in mind.
hlr.GROSÇ: 1s anything lessthan "complete socio-economic integra-
tion" possible as a sociological or anthropological phenornenon?
Nr. BRUWEII:PrIr.President, my answer to that question isyes, since
there is such a thing, of coursas cultural change and iis not impossible
that there can be integration on the baçof that cultural change.
hlr. G~oss: Now how do you recognize, for esample, when a non-White
in the southern sector, outside the Reserves, who has been absorbed in
the White economy, is eligible for this degree of integration, for the status
of integration? Wliat criteria or standards do you applp?
Jlr.BHUWEK hl:rPresident, if had to apply a cri te rioI^would Say
that when he subscribes to everything inherent in that society in which
lie is resicling. and when that çociety accepts him as being one of its own
members, legally as wellas at hcart.
Mr. GROSE : Hy subscribing, do you mean taking some kind of anoath,
or makikingsume sort of adeclaration? Would you describe your meaning
more precisely?
Mr. BRUWER: Xot necessarily, hlr. President. One would certainly eval-
uate 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 take into account whether this man has totaily dissected himself
from anothei- group and from another culture, has accepted the culture-
and il 1 mean culture, nlr. President, 1 have in mind the sum total of
everything-and tliathe has iiow also been accepted by that society,
legaiiy or by law, as well as at heart, because 1 do make that dlstinc-
tion, hlr. President.
blr. GROSS:And you are talking now about individuals, are you not,
Sir?
Mr. BRUWER1 :am talking about individuals as well aç groups, Mr.
President.
hir. GROSS :ou are talking about individuals as well as groups. At
what age doea the individual become juclgeableby this standard?
Rlr.URUWI:R A:t what age, hlr. President? 1sthat the question?
Rlr.GROSÇ:Yes. 1sthere an age factor?
>Ir.RRU~VER hlr. President,1do not think one could say there is an
age factor.
Mr. GROSS:1sa child integrated in the sençe in whichyou use the term
at the age,Iciussay, of sis or seven? A White child?
hir. BRUWER:It would be possible. A child is certainIy integrated in
the society.
Mr. G~oss: So that the individual subscription does not determine so
much as the colour, or race, or fact of birth? 1sthat correct?
Mr. BRUWER N:O,Mr. President,1wouId not Say that isperfectlpc~rrect.
hlr. GROSS: The White child, at the age of six, cbe integrated, in the
sense in which you use the term then, on what basis or criteria other than
tlie facthatlie i\hite, or classifieas White, and not generallyaccepted
as Coloured?
Mr.BRUWER R lr. President, on the basis that that child has been born
to elders being part ofa society and being ~iowlegally 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 SOUTH WEST AFRICA
Mr. G~oss: So that if the law were amended, or changed, in that re-
.spect, the non-White Child would also becorne a member of the group,or
society, by remn of the new legislation That wodd be possible?
Mr. BRUWER:That would be possible, Mr. President.
Mr. GROSSA : nd 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 isnot
a member of the society-non-integrated-is that what you would say
the meaning of this phrase is the Odendaal Commission report 7
Mr. BRUWER: That is,&Ir.President. 1 cannot find the essence of the
question actually. Ifa child of non-White parents plays with a child of
Whiteparents on a farm .. .
Mr.GROSSL :etme formulate it for you, to avoid confusion,so that you
do not have to labour reconstructing my question. 1think I made it too
long and 1apologize to the Court.
1 am talking about a family classified non-Wliitbom 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. 1
asked you whether the mere fact of one child being White and the other
child being non-White determines that one is a member of the society and
the other is not. 1sthaa correct statement?
Mr. BRUWER : r. President, it is correct, but there are also other dif-
ferences. Mr. President,I myself, during almy childhood, always played
with non-White children as children, and yet when it cornes to certain
things we automatically find that 1 belong to that group and the other
onebelongs to his group. But it is, if one takes only into account the ques-
tion of whether one now belongs to a certain society and the other one
belongs to another society, then a question, a.[have also already agreed
to yesterday, of being classified on the one hand asWhite and on the
other hand, with the necessary qualification, as non-White.
Mr. GROSS:Dr. Bruwer, 1 will turn to another line of questions now,
and perhaps corne back to this inanother context.
At page 117 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 southern sector [and Iquote now], wiii
result in a great migration to those areas".
1cal1your attention to the words "a great migration", from the present
areas outside the Reserves to the new projected homelands in the southern
sector, and 1 açk you, as a rnember of the Odendaal Commission, in the
light of this prediction of "a great migration", what effect would sucha
migration have on the workings of the White economy,if any?
Mr. BRUWERM : r.President, 1 have already told the honourable Court
that I am not an economist, but on the basis of the discussions of the
Commission-1 can welI recollect that this position was discussed, t1st
the possibility of when one now develops in the areas of the other groups
to such an extent that you have then this possibility a great migration,
that is people returning to theown 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 theso-called Whites then.
But, Mr. President, the Commission, in alI the interests of the people that
they could think of, accepted the possibility that it is not only one group304 SOUTH WST AFRICA
hfr. GROSS: Iwas perhaps expecting an answer and thought I heard it,
Mr. President. Thank you, sir. Would ou then clarify any possible con-
fusion? Do you foresee the possibility t,the White economy can thrive
or survive without the use of Black labour?
Mr. BRUWEF.:Mr. President, again 1.speak as a layman, but my per-
sonal opinion is that it is possible that the White economy could survive,
without the labour of people coming from other groups.
Mr. G~oss: Do you mean by that ariswer of "could survive" that you
are indulgingin a theoretical exercjse, 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?
hlr. BRUWER:Mr. President, 1gave my answer on the basis of my own
persona1opinion.
Mr. G~oss: Now wiU you state yout 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, 1would
again Say that the Odendaal Commission certainly foresaw the possi-
bility that the White sector wouId have to do, one or other time, during
a long process perhaps, without non-White labour,if1could use the word
non-White then.
Mr. G~oss: The Odendaal Commission based its recommendations, if
1 understand you correctly, on the assumption that at some time in the
future, the White economy would operate without non-White labour.
1s thisa correct version of your testimony?
Mr. BRUWER:That is acorrect interpretation,Mr. President.
Mr. GROSS: And what time span did this conclusion cover?
Mr. BRUIVER: hlr. President, the Commission certainly did not con-
sider a span of time.
Mr.GROSS :s this an important factor in the life of an individual living
today?
Xlr.BKUWER: Itmay well be, Mr. President.
Mr.GROSS :ould such a span extend, let us Say,for 300 years possibly?
blr. BRUIVER:That is also possible, Mr. President.
Mr. GROSS :Therefore, intaking account of the possibility othe oper-
ation of the White economy without non-White labour, you did nottake
account of the time factor, or is that an incorrect appreciation of your
testimony?
Mr. BRUWER:NO, hlr. President, the Commission saw this entire ap-
proach in a framework that would be ~vorkingaccording to a process, but
there was no time span mentioned or time linlit in regard to ïvhen this
must happen, or when that must happen.
Mr. GROÇS:In your testimony on z July you referred to the importance
which you attached to the human factor in determining the rights and
duties of inhabitants.1s that correct?
Mr. BRUWER: That is correct, Mr. President.
hlr. GROSS: DO you regard the question of the time in which apro-
gramme or an objective can be accomplished, asa relevant human factor?
Mr. BRUWEK: It may well be, Mr. President.
Mr. GROSS:Do you have any doubt about it, sir?
Mr. BRUWER: 1 have no doubt about it.
Mr. GROSS :herefore, if I underslood grou correctly, the Odendaal
Commission report recommending and foreseeing this substantial, this WITBESSES AND EXPERTS 305
<great migi-ation", did not have in mind any time span in whichitspro-
gramme would take effect. Ts that correct?
$Ir.BKUWER hlr. President, it is correct to a certain extent, on the
question of time, but as 1said, it is envisaged aaprocess.
Mr. GROÇS: Could I ask you then, Dr. Bruwer, whether, as a member
of the Odendaal Commission, as the fornier Commiçsioner-General in
charge of the indigenous inhabitants' affairs,as a social anthropologist
and as a distinguished expert, would yoii express an opinion whcther
any premisc:of the Odendaal Commission report and its recommendations
would become invalid if any non-Whites were to remain in the "White
economy" or in the White sector, let us Say for roo years, to state a
time? You understand rny question?
hlr.BRUWER M;r.President, therc was one word that 1did not get,
1 am very sorry.
Mr. GROS:I would be glad to repeat it, Sir,in view of its importance.
Do you, in the light of the various qualifications that1 have set forth
(and which are in the record), consider that it is a premise or assumption
underlying the Odendaal Commission report, that there will, at some
time, be-chall we cal1 it-a total evacuation of non-Whites from the
White sectcir? Wili you answer that cluestion yes or no?
blr.BRUEVER h:r. 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-lrhites in a so-called White area, for pur-
poses of employment. IfTewere thinking, Mr. President, of rights and of
privilegesand of possibilitieand of the development of a community,
but we certainly didnot have a special time limit when we could possibly
Say, Mr. President, that for instance fo20years hence or 50 years hence
or ~ooyears hence, that you had not got a single one of a certain group
in the area and Society of the other group, because that-myopinion was
asked-in nzy opinion, would have been pure speculation.
Mr. GROS :As a member ofthe Odendaal Commission, and in signing its
report, 1take it, sir, that you and the other distinguished members of the
Commission did not rely upon speculation? That is correct, it notsir?
hlr. BRUWER :hat is correct, ZIIr.President.
Mr. GROSS: And we are obtaining your views, for the benefit of the
Court, in order to elucidate and linderstand better the ideaç, the words
and phrases and their significance, as used in this very important report.
1sthat not correct, sir; is that understood to be the objective?
Mr. RRU~VER 1:understand that, Mr. President.
hlr. GROS: NOW,in the contest of tliat objective of my question, 1
would Iike to come back again to the question 1asked before, and wliich
1 undertook to reformulate. If it is not foreseeable that the White econ-
orny wiil be operating without 13lacklaboi~r, or non-White labour, then
is an important premise or basis of the Odendaal Commission report
not invalidated? May I state it nffirmatively, if you have difficulty? IS
it one of the premises of the Odendaal Commission report, thatthe White
economy, so-called, wili operatc without the services of non-\hites in
the foreseeable future?
Mr. BRUWER :O, 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-White labour within the foreseeable future,
the Commission having recommendcd naturauy for the next five years
basicaily.30~ 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. 1s
that correct?
Mr. BRUWER: That is correct, Mr. President.
Mr. GROSS :sthat ultimate pattern, to which we are addressing Our-
selvesnow, one in which there will be no non-Whites in the White areas?
hlr. BRUWER:Mr. President, 1 muçt çay no to that question because
as ihave already tried to explain, the Commission did not consider any
possibility where in the foreseeable future, there would be law for-
bidding any non-\hite to corne for instance, and workin the White
area, and on that bais 1 woold say no: my answer to that question
would be no.
Mr. GROS: Thank you. Now, with respect then to the esplanations
or justificatiomade for the limitations onfreedoms of thenon-IVhites
presently in the White area-with respect to justifications or explana-
tions made for those limitations, which refer to the situation of total
separation-would you saythat this situation has any basis in the fore-
seeable future?
Mr. BRU~VER M:r. President, yes it has that basis of differentiation.
Mr.GROSS :he doctrine of apartheid or separate development as1
understand it (correcme if 1 am wrong) pre-supposes an ultimate situa-
tion in kvhich therewiU be total separation of IVhite and non-White.
1s that correct?
Mr. BRUWER M:r. President, the doctrine of apartheid, 1do not know
what is meant by that phrase.
Mr. GROSS:YOUdo not know what is meant by apartheid? What
phrase do you prefer, sir?
Mr. BRUWER Ifwhat iç meant, Mr. President, is the system or policy,
or approach of separate development, and ifby that policyit iç under-
stood, as1have tried to indicate to the honourable Court previously rny
acceptance of that approach, that people are recognized on the basis
of their unity, on theaçis of their territoon the basis of their insti-
tutions and that their development according to a process takes these
things into account, and if rights are ensurfor certain people within
the framework of that approach, then 1would Say,if 1may then quote
the term, that would then be the doctrine of apartheidBut, Mr. Presi-
dent, as a social anthropologistI would not ilse the word "doctrine"
because what 1 believe to be a doctrine, if my understanding of the term
is correct, is something which absolute, something which is an abçolute
unchangeable concept.
Mr. GROSS : ould you prefer the word "policy"?
Mr. BRUWER: I would prefer the word "policy",Mr, President.
hfr.GROSS N:OW,would the "policy" of apartheid or separate develop-
ment be comprised or reflected in the following statement thePrime
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, an1 quote as follows, tathe concept
that:
"... the limitations imposed on the freedoms of people (as we find
practicaily over the whole world where anybody lives in the terri-
tory of çomebody else) fali away as soon as everybody can enjoy
his own freedom in his own temtory". WITNESSES AND EXPERTS 3O7
And then the Prime Minister went on to say-this was all dfirotos of
the Odendaal commission report, as you know: "Human rights will
have more opportunity to develop tothe full in terms of Ourpolicy when
separation takes place. .." Now, 1 invite your attention first to the
phrase "Iirnitations imposed on the freedoms of people".1 believe that
you testified earlier that you would considcr thaasa form of discrimi-
nation. 1s that correct?
Mr. BRUWER That is correct, hlr. President.
Mr. G~oss :Now, with regarcl to the phrase "assoon aseverybody can
enjoy his own freedom in his own territory", does that envisage or con-
template total physical separation?
Mr. BRUWER M:r. President, not neceççarily, becauIethink one can
have your rights and your freedoms and your privileges in yourown
country, although you may be working or you may be employed in
another country.
Mr. GROSS1 : am not certain thatI understood that, sir, perhapswe
could approach it slightly differently, Prime Minister Venvoerd's state-
ment, which 1 have just quoted, refers to,and I quote again:
"Limitations imposed on the freedoms of people [will] fa11awayas
soon as everybody can enjoy his own freedom in his own territory."
In caUing your attention to thore words,1asked whether this contem-
plated total physical separation asa part or clement of the policy of
apartheid or separate development?
Blr. BRU~VER> :Ir. President1cannot of course Say what the honour-
able Prime Minister had in rnind, butmy own deduction would be that
if one says that "limitations on freedom faIl away", then that would
have applied that separation.
;\Ir.GROSSB : y "separation" 1 am referring, and 1 want to know
whether you are, too, to the physical phenomenon by which people take
up space. 1 am talking about physical separation; in thatuse of the
term, does the policyof apartheid contemplate as an ultimate god the
physical separation, in different territories, of Whites and non-White?
31r.BRUWER: Mr. President, the policyas Iunderstand it, certainly
contemplates that.
Mr. G~oss: Total separation?
Mr. BRUWER:Total separation, hlr. President. But 1 again qualify
what 1 want to clearly point out, hlr. President, that total separation,
physically, the term tiiat was used here, would themean that nobody
of the one groiip 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, becaus1do not think that that
is what is implied.
Mr. GROSS :O YOU,by "enter", mean temporariIy visit?
Mr. BRU~~ER T:emporarily visit, Mr. President, aneven çtaying for
a time for t.liepurpose of earniagliving. 1would like, Mr. President, to
exclude that type of thing in regard to this phrase "total physical sepa-
ration", because 1 do not think that one can apply the term "total phys-
ical separation" in regartothis poIicy.Itwould for instance, Mr. Presi-
dent, then also mean, if 1may explain to make clearmy answer. that
a White man 1would also not be able then to gointothe area ofSay, one
or other of the other people. 1 cannsee how this total physical separa-
tion in this sense, can be implied in the term.308 SOUTH WEST AFRICA
Mr. G~oss: Let us then take the case, Dr. Bruwer, oa non-White who,
as you Say, works for a living in the White territory or area-to use
Prime BIinister Vertvoerd'sexpression, inthe "territory of theM'hite"-
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:It appears to me to be correct, Mr. President.
Mr. GROSS: 1s it the opinion of the Odendaal Commission that, so
long as a non-White is inthe White territory, he must be subject to lim-
itations upon his freedoms?
Mr. BRUWER That, Mr. President, was certain157the 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 urould seem to follow thatifthe non-White,
who miglit spend his entire working life, or longer-bcyond his retire-
ment-in the White area, would be subject to irnposed limitations on
his freedoms so long as he was physically present in the White area. Iç
that correct?
Mr.BRWWER T:hatiç correct, Mr. President.
Mr. GROSS A:nd is it, or is it not, proposed by the Odendaal Commis-
sion that the cure for that situation, shall we sa?,physical rernoval to
his own territory ïvhere, in the words of the Prime Minister, "human
rights will have more opportunity to develop"? 1s this the only therapy
that can be applied to this situation?
Mr. BRUWER: MT.President, that was according to the considerations
of the Odendaal Commission, taking into account ail the aspects of the
very cornplicated problem and having in rnind the intereçts of the people,
according to what the Odendaal Commission could find out; that was,
in their opinion, with al1that information, at that time, at this stage in
the history of the peoples of South West Africa, the best possible approach.
Mr.GROSS : his "best possible approach",as1understand it, involves
the perpetual imposition of "limitations ...on tlie freedoms of people",
in the Prime hlinister's phrase-limitations on the freedom of non-
Whites in the White sector,so long as they live. 1sthat statementcorrect?
Mr. BRUWER : r. President,1again Say that 1 do not know what the
Prime fifinister had in mind, but measures of differentiation in regard to
this broad approach and broad concept mould 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 two phrases?
Mr. BRUWER: hlr. President, when 1 used the term "hleasures of dif-
ferentiation",Ihad in mind measures of differentiation as conceived by
a society at a certain tirne, asI have tried to esplain,to protect itself
againçt other societieAnd may 1 add, Mr. President, for clarity's sake,
1can quite foresee that when a society, as a people, decides that these
rneasures of differentiation must now fa11away, tliat that could of course
tossibly be done and therefore 1 cannot subscribe to the qualificative
perpetual" because that would, in my opinion, Mr. President, depend
on the society itself.
hlr.GROSS:Now, Dr. Bruwer, do you regard the imposition of limita-
tionsupon the freedom of individuais as consistent with the promotion
of their moral well-being and social progress? WITNESSES AND EXPERTS 39
Mr. BRUIVER M:r. 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, i€one has to start, Mr. President, expIaining what one means
by moral and social well-being,1am afraid, Mr. President, it would take
me a very, very long time to explain exactly to the honourable Court
what 1 menn, but 1 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 1 have already indicated to the honourable Court, that also
happens in other societies where this question of "U7hite" or "non-
White" does not come 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 perçon? There are,in my opinion,
a vast nurnber of factors which contribute to the moral well-being of
somebody and those factors, also irnyopinion Mr. President, sometimes
differ in difîerent societies. Now, iisthe same in regard to the social
weU-being. Social well-being one may perhaps define it as being the well-
being of the man within a social group. That is his social weil-being. But,
Mr. President, to conclude, if any measure imposes limitations on the
one group ...
Mr. GROSÇ : Freedom? Limitations on freedom?
Mr. BRUWER:Limitations on freedom, hlr. President. If any lirnita-
tions of freedom are imposed on an individual, or even on a group of
individuals, Nr. President, 1 can quite see that that may perhaps make
those people unhappy. 1 can quite see that. On the other hand, again,
you map have to do this when you have to evaluate a situation, not on
the basis of one single individual, but on whatis best in the interests of
all the people. Now, if you differentiateas Isay,Nr. President,1 admit
and 1agree that it is possible that certain people will bethappy. But
on the other hand again, if you do not have those limitations then others
would again Say that they are not happy. Ancl.now, in regard to these
limitations, Mr. President, and the moral weIl-being of people, it was
the honest conviction of the members of the Odendaal Commission and,
Mr. President, if 1 may, with your permission, Say that, as far as my
colleagues are concerned 1 did not know them before that tirne, but 1
carne ta know them on this Commission ashonourable men who really
tried to finda solution.
Mr. GROSÇ: Mr. President, 1 have no objection to the witness
continuing if the Court wish. 1 would like to ask other questions,
and 1 raise the question whether this is now being responsive to my
question.
The PRESIDENT:Well, 1 think it generally is, Mr. Gross. Your question
was very miich at large,
Mr. GROSS: 1 have raised the question, yes, sir.
Rlr. BRUWER: &Ir.President, 1 am sorry. 1beg your pardon. 1 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 ivas of the conviction that it would be in the moral and
social well-being ofall the groups of South IVest Africa.
Mr. G~oss: Dr. Bruwer, with respect to the matter under discussionJI0 SOUTH WEST AFRICA
before the recess, with respect tothe limitations imposed upon the free-
doms of certain groups by other groups inSouth 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. BRUITERh :Ir. President, under the present system, the deduction
isthat the limitations are irnposed by the administering body.
hlr. GROSS :And does the administeringbody include representatives of
any ofthe groups whose freedoms are Cmited?
Mr. BRUJYER N:ot inSouth West Africa, >Ir.President.
Mr. G~oss: We are talking about South West Africa. The decisions are
made by administration, which then is controlied by ane group. That is
correct?
Mr.BRUWERT :hat iscorrect, Mr. President.
air. GROSÇ: And it is controlled by the group ivhose happiness is, in
your terms, determined to a large extent by the limitations imposed on
the freedoms ofthe other group.1s that correct?
Rlr.BRUWER :That iscorrect, Rlr.President.
Rir. GROSS:What safeguards, if any, does the Odendaal Commission
report suggest, to avoid the possibility thatthe group imposing the limi-
tations on freedom may be unduly influenced by its own advantage or its
own concept ofhappiness?
Mr. BRUWER M:r. President, the entire basis of the recomrnendations
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 recollectisthat each group should be able to decide forthem-
selves, within their own areas, according to their rights and their privi-
leges.
Mr. G~oss: Dr. Bruwer, could you address yourself to the question:
what safeguards, ifany, are suggested by the Odendaal Commission to as-
sure against the decisions of the dominant grouy limiting freedoms on the
basis of itown happiness, rather than on the basis of the welfare of the
othergroup?
The PRESIDEKTM : r. Gross, 1 think that the word dominant, for the
purpose of giving afactual reply, ought not to be included at the present
moment.
Mr. GROSS:Yes, hlr. 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 his own area", as set forth in the Rejoinder, V,
the "White man" exercising "domination" in the phrase of the Primeng to
Minister. Now, may 1put my question to you in those terms? What safe-
guards, if any, are suggested by the Odendaal Commission report to as-
sure against the \%te man in South West Africa attempting to achieve
domination by measures which do not unfairly restrict the happiness and
welfare of the othergroup?
hlr. BRVWER :Er.President, by safeguarding the interests ofthe groups
in the areas that then would be theirs, and where they would thenbe the
dominatinggroup,if 1may also use that term. In other words,where they
will then dominate in the same way as the CVhitesare now domina-
ting in their area.
Bir. G~oss: Do 1 understand your answer then to be that unless the
non-White physically moves to his own territory, where he can dominate, WITNESSES ABD EXPERTS
3x1
thereisno safeguard to protect him againstlimitationsupon his freedoms,
so longashe isin the imite area? 1sthat correct?
Bir.BRUWER M:r. President, it is correct in regard to the limitations
that arethere at present.
Mr. GROSS:Are there limitations contemplated for the future,so faras
you know 7
Mr. BRUWER:1do not know of any, hIr. President.
Mr. G~oss :Did the Odendaal Commission consider whetha the present
limitations were just right, or sliould be expanded or contracted?
hlr. BRUWER : Mr. President, in regard to these limitations, from what
the Odendaal Commission could recoiiect, some of these limitations even
had a bearing in areas outside that area that was then delimitated as the
White area, and the Odendaal Commission, as the honourable Court wiil
also recollect, also offeredcriticinmregard to certain things and recom-
mended improvement, and even change, of certain such measures.
hlr. GROSS:Certain what,sir?
Mr. BRUWER:Certain such measures of differentiation.
Mr. GROSS D:Oyou mean to eliminate or modify limitations upon free-
doms ofthe non-Whites? 1sthat what you are referring to?
Mr. BRUWER :That is what 1am referring to.
&Ir.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 modified?
Mr. BRUWER:hlr. President, not in the \hite area. As 1 have said,
there were limitations having a bearing wider than the White area.
Mr. GROSS 1:do not understand your answer, sir. JITithrespect tothe
non-1iThitein the White sector, were any recommendations made by the
Odendaal Commission with regard to the reIease of limitations upon his
liberties or freedoms?
Mr. BRUIVER: Bir.President, not that1can remember atthe moment.
Mr. G~oss: Then going back to rnyearlier question. Did the Odendaal
Commission consider that thc presently impoçed 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. BRUWR: 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, furthemore, that
these limitationswere conceived so as to ensure rightç of a certain group
ina certain area.
Mr. G~oss: Would you mincl substituting a specific term for the word
,certain", for the clarification of the Court?
Mr. BRUWER:For instance,land rights, Mr. President.
Mr. G~oss: 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: MT. President, we are referring to the southem 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 theon-IVhites in their areas.
Mr. G~oss: 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 js happening or what isnot3IZ SOUTH WEST AFRICA
happening in another sector-is this your approach, the approach of the
Odendaal ~ommissjon?
hlr. BRUWER:hlr. President, taking al the factors into account, that
was the approach.
hlr. GROSS:That is the approach?
Mr. BRU~TH: That is the approach.
hlr. GROSS:Could the approach be summarized to be described asone
of equivaient rightsBlack here, imite here-without reference to the
quality or character ofthe action that takes place in each such temtory?
Do you understand my question?
Mr. BRU~VE Re:s, hlr. President, and my ansver is no, because it was
not aquestion of Black and White-it was a question of various groups,
air. President.
Mr. G~oss: What is "a question of various groups" in the context of
Prime hiinister Venvoerd'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, is that not correct?
Mx. BRU~ER: No, &Ir.President, we are speaking ofmany more groups
in South West Africa.
Mr. GROSS: I am speaking of ttvo groups, then-would you be good
enough to addressyour comments to the groups ofwhich we are speaking?
Itis trueisit not, Dr. Bruwer, that rights are allocated and freedoms are
lirnited in the White secton the basis of whether an individual is a "Na-
tive'' orhether he is a "White"-is that correct?
hlr. BRU~VER T:hat is correct, Mr. President.
Mr. G~oss: As far as the Native category is concerned, is it relevant to
this questionwhether he is aWerero or a Nama, lorexample?
Mr. BRUWEB : r. President,1 would Say no, sincea coIlective term is
uçedin that quotation.
Mr. G~oss: Ifyou wiil, please, sir, stay with this usaiithis context
which seems relevant. Now, to corne back to my question-is it your con-
ception, orthe approach of the Odendaal Commission, that the rights and
duties of the non-Whites in the White zone are to be offsety the rights
or duties of the Whitesin the BIack zone or Black territory-that this is
the criterion whichisto govern in each case-the relative balance of the
rights?1 do not understand your reference to the situation outside the
White sectorwhen 1 askyou to discuss the situation within the White sec-
tor.hlay 1 restate this in the form of a cIearer questio1?asked you, or
intended to ask you, who is to determine the rightand the imposition of
limitations upon the freedom of the non-Whites in the White sector?
I'our reply was "the administration" ;you said that that was controlled
by the White group, and that the other group was not represented in it;
this is correct so far?
Mr.BRUIVER That is correct, hlr. President.
Mr. GROSS1: then asked you or intended to ask you, on the basisof the
Odendaal Commission's recommendations: what safeguards, if any, were
recommended to assure that the \'hite group in terms of the domination
objective referredto bythe Prime hlinisterwould not abuse its power by
imposing undue Limitationson the freedoms of the non-White group;
what waç your answer to that question, or if you feel you have not an-
swered it, what is your answer to it now?
blr.BRUWER M:r. President, my answer to that would be, first ofall,
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 terrn, so that there is a body that can see to it tllat
the inter estof the people represented bythat body are looked after;but
naturally, Mr. President, the entire concept of the Odendaal Com~nission
in safeguarding the interests of the people of South West Africa was on
this basis of ensuringthat in the iuture,with this system, there cannot be
a domination by the White group of any other group.
Mr. G~oss: In your testimony on Friday, 2July-that is, on page 265,
szcpra-you testifiedas follows, and this is in the contextof a long para-
graph, and 1wiU endeavour not to quote it out of context, but to bebrief;
you said :
". . as far as South West Africa is concerned, 1 also think that the
one group, either on the basis of numbers or on the basis of economic
strength, will undoubtedly dominate the other group if you have not
got prcitective measures ...".
Now, substituting the phrase "protective measures" for the word "safe-
guards", what recommendations, if any, were made by the Odendaal
Commissioii with respect to "protective measures" to assure that the non-
Whites woiild not be dominated-the word you used-by the Whites on
the basis of their economic strength?
Mr. BRUWER:hlr. President, the basic safeguard that the Odendaal
Commissioii made to protect tlie rights of the non-White peoples 50 that
they may not be dominated by the Whites was, oris, 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.
&Ir.CROSS:Could Iput it to you that the answer you have given teils
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. BRUIVER:hlr. President, the Odendaal Commission did not, as far
as 1 can rect>licct,recommend measuressafeguarding the interests of those
people other than on tlie 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. G~oss: If Ican pierce through the rneaning correctly-correct me
if 1do not-wliat you have justtestified 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 weIfare or well-bejng in the White sector? 1 am talking
now about limitationsupon his freedoms.
Xr. BRUIVER:Mr. Presidcnt, in regarcl to the limitations of freedom,
naturally the question of education and of hospitalization, and that sort
of thing, provisions aremade for that, but what I had in mind when 1said
that the Odendaal Commission did not recornmend the safeguarding of
the interests of those people is that they did not recommend, for instance,
that non-Wlite people must now be given the right to be able to parti-
cipatein the political institutions of that White group, or of having now
the right to bny up land in the urban areas. In other words, these mea-3I4 SOUTH 'WEST AFRICA
sures,Mr. President, which the Odendaal Cominission recommended as
having to be exercisedin the areas of these people, and in connection with
their community of peaple, there were no recomrnendations as far 1can
recd, Mr. President, in regard to the removing of such limitations.
Mr. G~oss: When you referred in your testimony (on p. 265, sufiru,
of the verbatim record of 2 July) to "protective measures" (in your
phrase) which were necessary inorder 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 recomrnendations
made by the Odendaal Commission to protect against "domination" (in
your phrase)?
Mr.BRUWER : r. President, the recornmendations made bythe Oden-
daal Commission 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 onlyay inregard
to certain matterssuch asland 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 iriterests of the one group
would be safeguarded and protected against dominationby any one of the
other groiips.
Mr. GROSS :Othat the only protective measure recommended by the
Odendaal Commission to assure against domination of the non-Fikites by
the Whites was that the non-Whites could, and it was hoped would, leave
the White area? 1sthat correct?
Mr. BRUWER Basically that is correct, Mr. President.
Mr.GROSS T:hat is the basis upon which the Odendaal Commission re-
cornmendations rest?
Mr. BRUIVE RYeç,Mr. President.
Mr.G~oss: Now, with respect to those non-Lhites 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 silch people so longasthey remain in the White sector? Is that
correct ?
Mr. BRUWER That is basicaliy correct, Mr. President.
Rlr.G~oss: 1sit incorrect in any aspect?
Mr.BRUWER M:r. PresidentIwould not say it is incorrect, but I think
it is incomplete in one aspect,the sense that these people now have the
freedom to rnake use of rightsand privileges in certain areas.
Mr. GROSS: 1s this anotlieway of sayingthey have the privilege of
getting rights and freedoms if they leave the White sector and go else-
where?
Rlr.BRUWER That is correct, Rlr. President.
Mr. G~oss: Thank you. Now, 1 shouldlike to address the following ques-
tions to you, aa mernber of the Odendaal Commission, as an espert,and
asa former Commissioner-Generalfor Native affairs, or for indigenous
peoples,with respect to South West Africa.
1 invite your attention to the following quotation from the Odendaal
Commission report, page 427,paragraph 1433:
"Itis a universal characteristic of mtoidentify himself rvith the
population group which has the same ethnic and socio-cultural back-
ground as he has ... Consequently, a group gives preference to its WITNESSES AND EXPERTS 3I5
own group members ... so that members of another group are hand-
icapped or excluded from the activities of the group, other members
being admitted only inso faras they are supplementary to the group
andnot 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 PoliceZone, or southern sector?
Mr. BRUWER : T.President, no. The group referred to in that quota-
tion appears tome to be, for example, Ovambo.
Mr. G~oss: When the Odendaal Commission report, in the excerpt 1
have just quoted, says-now 1 am talking about the southern sector, the
"White area" of the southern sector outside the Reserves-that, on the
bais of "a universal characteristiof man", a group gives preference to
its own g~oupmernbers so that members of another group are handicap-
ped, or are excludedfrom the activities ofthegroup-other membersbeing
admitted only in so far as they are supplementary to the group and not
competitive-1 ask you whether this applies to the relationship between
the White gi-oupandthe non-White group in the southernsector?
Mr. BRUYI'ER M:F.President, as far aIcan see, it also applies there.
Mr. G~oss: When you signed the report did you corne across this lan-
guage?
Mr. BRUWERY : es, Mr.President.
Mr. GROSÇ: Was that your understanding of it at that time?
Rlr. BRUWER:That was my understanding at that time too.
Mr. G~oss: Therefore, the members of the-1 am paraphrasing it, tell
me if1 do so incorrectly-non-White group are handicapped, or are ex-
cluded from the activities of the White group, othermembers being ad-
rnitted (that is non-White group rnembers) only insofaras they are sup-
pIementary to the White group and not competitive? Is that a fair para-
phrasing, or interpretation, of this quotation?
BIr.BRUWER:Yes, hlr. President, 1 think it is a fair interpretation.
Mr. G~oss :Now, in respect ofadmitting-and this is the phrase used-
"admitting" rnembers of the non-White group in so far as they are "sup
plementary" to the IVhite group "and not cornpetitive", would you ex-
plain tothe Court what ismeant by "admitting" in that context?
Mr. BRUIVERM : r. President, in that contex1would Say the word "ad-
mitting" means aliowing them in that area.
Rlr.GROÇS :llowing him physically in thearea?
Mr. BRUWEP:In the area.
Mr. G~oss: 1cal1your attention again to the exact quotation.
"ConsequentIy, a group gives preference to its own group members
...so that members of another group are handicapped or excluded
from the activities ofhe group, other members being admitted only
in so far as they are supplementary to the group and not competi-
tive."
Now you have explained, 1believe, have you not, that this includes-
let me ask you to put it in your own terms and state again, if you will,
what isrnea~itby the word "admittcd" in this context?
Mr. BRUWER:Mr. President, allowing them in that society 1should Say.
Mr. G~oss: Allowing hirn in what sense? That 1 take to be a synonym
with "admitted".
Mr. BRUWER :IIIa technical sense.316 SOUTH WEST AFRICA
Mr. G~oss :For what purpose?
Mr. BRVWER:In the society for the purposes, as stated there, in a sup-
plcmentary way. That would then be,in this case,Mr. President, asaman
who participates in the employment in thatarea.
Mr. G~oss: 1sthis just another way of describing the admission of non-
Whites physically into the White area for the purpose of labour?
&Ir.BRUWER :hat would appear to be correct, Mr. President.
Mt. GROSS: Iwould like to askyou now, in referring to the phrase "uni-
versa1 characteristic of man" (that phraseisused in the OdendaaI Com-
mission report) :istliis a sociologic orli,sita social-anthropological
phrase, or what is the technical, or scientific meaninifany, which you
would attach to it?
Mr. BRUWBR M r. President, it appearto me to be a sociological con-
cept. Naturally, as a social anthropologist1 would also Say that itis 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, 1 would like to make rnyself clea1.am talking
now about the phrase "universal characteristic ofman" and let me put
this question to you, i1 may. 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, 1 think that is the meaning of the
word.
Mr. G~oss: Now, the phrase "universal characteristic of man" tlien pre-
supposes, does it not, that there are certain qualities which reside in the
individuai, which qualitiesre shared generally by other individualseven
of other groups by reasonof their common hurnanity? Is that correct2
Mr. BRUWER : es,it appears to be correcRlr.President.
Mr. GROSSK : OW w,ith respect to the "universal characteristicman",
the phrase quoted from this paragraph of the Odendaal Commission re-
port, 1 should like to address the following questions to you as a social
anthropologist, as a member of the Odendaal Commission and as former
Commissioner-Generai of the indigenousgroups of South West Africa.
Taking the individual as "the focal pointJi1quote 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 of man shared by al1men, all inhabitants of the territory regardless
of colour :
"1. 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, ifunderstand the description well.
Mr. GROSS:You have used, or the Odendaal Commission report has
used, the description. 1 cannot interpret it, 1 am really asking you to. In
any event, let me ask you whether, in your viewand in the respects lvhich
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 abilitp andcapacity?
Mr. BRVWER: 1 think that is so, Mr. President.
Mr.GROS :When the OdendaaI Commission considered the question of
rightç and duties of individuals in tWhite sector, of non-Whites in the WITNESSES AND EXPERTS 317
White sector, was weight given to these universal characteristics of man
which Ihave mentioncd?
hlr.BRUWEIY I:es,hlr. President, weighwas given.1 havedready tried
to indicate that theCommission considered every possible angle of the
problem and tlie Commission naturdy also considered the problem of in-
dividuals staying in the areas of other individuals, not only in the White
area but also in other areas. But the Commission's conviction was, &Ir.
President, and this is dso my conviction, 1have bcen asked to give my
opinion as a member of the Commission, Mr. President, as a social anthro-
pologist and also as Con~rnissioner-General,it is thereforemylsopinion,
hlr. President, tliat within the franlework of the problem that the Com-
mission had to face, although the Commission understood that a specific
individual, whether he be Whitc or whether hebe non-\$hite, wiii perhaps
suffer and will perhaps feel unhappy, the Commission feltand was &O
convinced, Nr. President, that the major interests of the people, consid-
ering also the interestsof the individual menlbers of the people, could best
be served, under the present circumstances, by the approach (if 1 may
again use that word) of giving people the opportunity to have rights and
freedoms without the fenr that thcy rnay be dorninatcd. That was the
broad principlc-also keeping in mind, hIr. President, the interests of in-
dividuals.
hlr.GROSÇ Y:ou rnean, 1take itwhat you testified before: the privilege
to attain freedoms or avoicl limitations of freedoms by leaving the IVhite
sector.1s that mhat you mean?
JIr.BKUWER 1think that is correct, Mr. PresidenRy taking the free-
dom to Ieave the one area ...
hlr.GROSS":By taking tlie freedom to 1eave"-would you characterize
that, or be willing to characterize thaasa solution by permitting escape
from the local situation?
hlr.BRUWEK Th:at appears tome, >Ir.President, asbeing the situation,
if it iç a question of the iridividual now saying wcll, 1 am prepared to stay
here on the basis of these limitations.or theselimitations notwithstanding.
But on the other hand again the individual may Say, but 1 would rather
Iike to rnovc tomy group and to my people where 1 have al1 the basic
riglits.
Air.Gnoss: So that an individual and his family, who were born, per-
haps, in thi: 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 familg aiid removing outside the area. 1sthat the alternatposed
by the Odendaal Commissioii?
3lr.BRUWER >Ir.Prcsident, that is thc alternative within this frame-
urork.
JIr.GROSS :ow, in determining the estent and nature of the limita-
tions upon the frccdom of the individual, are there any objective-speak-
ing as riscientist-are there any objective criteria or standards on the
basis of which the dominant group (in Prime JIinister Verwoerd's termi-
no1ogy)-the Whites inthis case-may jiidge the extent to which, and the
nature in which, thcselimitations shoulclbe irnposed?
hIr.HRUFVER: Mr. Preside~it,Ithink yfs.If one keeps in mind the inter-
ests of pcoples, there are many factors, in my opinion as a social anthro-
pologist, that have a bcaring on the basic interests of people. Xon*,if 1
remember well, I tolcl the honourable Court that there is the possibility
that when you \vaive, for instance, measures of influx control, that so WITNESSES AND EXPERTS 3I9
sector; yorir approach, iI 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 1 ask whether
you upho1d that view despite the malfunctioning or cessation of function-
ing of the modern economy of the Territory?
Mr. BRUWER:Yes, Mr. President, 1 will still be of that view if it is in
the interests of the African people.
Mr. G~oss: And then 1 ask you, and 1 will repeat my question: can
you, as a member of the Odendaal Commission, conceive of the termina-
tion, cessation of functioning. of the modern econornic sector as of bene-
fit to the population of South West Africa, regardless of colour or race?
Mr. BRUWEKM : r.President, naturalIy on the basiç of the answer,1
can only srty no.
Mr. G~oss: On any reasonable basis, can you give any other answer?
Mr. BRUWER : r. President1 would say again that 1 am not an econ-
omist, and 1 cannot conceive how the economy ofSouth West Africa in
the White sector can function at tliis moment without the considerable
contribution that is made by the African people, but 1cannot 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. 1 can also fore-
see, Mr. President, that one can qualify your answer by saying that:
although 1Say yes Ican conceive it in a purely theoretical or acadernic
way, in practice there would always be, Mr. President,in my opinion,
a possibility for the one mato go and work in the area, or econorny then,
of the other, sinceI personally,Mr. President, cannot foresee,and that
Ras also not the consideration or the conception of the Odendaal Com-
mission, that there would be no inter-relations in regard to the economy
of the entire Terntory. In other words, if may put it in that way, Mr.
President, as 1understood it, purely as a layman in regard to economic
things but having çubscribed to the report, as 1 understood it, there
would always have to be an inter-relation in regard to the economy of
the Territory, the economy of thevarious groups or the homelands then,
as was recnmmended by the Odendaal Commission. Giving mÿ opinion,
Jlr. Presidi:nt, aa scientist or a social anthropologist, 1 accept that it
is impossible to say that one can conceive the one economy functioning
as a totaliy independent economy in the White sector as against the
economies in the other çectors. 1 cannot foresee such a situation.
Mr. G~oss: When you use the phrase, as 1think you did, that in yonr
opinion there wiUalways be an "inter-relation",didyou mean to include
in that phrase the thought that there will always be a need for non-
White labour in the White sector?
JIr. BRUWER : es,blr.President, 1 included that in my phrase, but
1 also meant that there may also be the necessity for White labour in
the African areas.
hlr. GROSS: How manÿ White çettlers are there in the African areas
-did OU testify to this yesterday?
>Ir. BRUWER: Mr. President,1 think 1 said somewhere between three
and four hundred; that was according to the 1960 figures,I do not know
the exact figures.
Mr. GROÇS: NOW,one final question with respect to this very basic
question of the functioning of the White economy: 1 refer to the Oden-
daal Commission report at page 315, paragraph 1285, in which it is320 SOUTH WEST AFRICA
stated that the White sector or the White ecoriomy, as it is variously
called (1 describe it that way, and now quote) :
". ..links up with the traditional sector by attracting unskilled non-
White ernployees, virtually to the maximum of their availability,
as wage earriers on farms and mines, and in domestic service and
industries".
In your opinion, as a member of the Odendaal Commission, wiii there
always be human foreseeability, will there always be a need for non-
White persons to serve as "wage earnerç on farms and mines, and in
domestic service and industries", in the White sector of South West
Africa?
Mr. RRUWER:Mr. President, it may well be; that is if you have not
got enough employees in that sector, it may well be.
%Ir.GKOSS: If you have not got enough White employees?
Mr. RRUWER:Yes, hlr. President.
31r.GI~OSS : id the Odendaal Commission consider how many were
necessary to operate the economy in that sector?
Mr. BRUWER: Mi. President, rio, the Odendaal Commission did not
consider the number.
Mr. G~oss: There are, however, 1~5,000 personç classified as non-
Whites in the southern sector outside ofthe Reserves, is that not correct?
Mr. RRUWER:That is correct, Mr. President.
Mr. G~oss: Now there are in addition some 22,000 Ovambo who are
recruited for serviceilithe White sector. 1sthat correct?
hlr. BRUWER:Mr. President, 1think the figure is higlier than za,ooo;
if1 rernember well, I think itisa little bit higher.
Dlr. GROSS:So that that is a total of something like rgr,ooo persons
classified as non-White, of whom 26,000 are brought in, recruited es-
peciallv for labour, that is correct iit nat?
Mr. BRUWER:That is correct, Mr. Prcsident.
Mr. GROSS:And did the Odendaal Commission consider the labour
requirements of the White sector in any respect in its studies?
Mr. BRUWER: Yes, Rlr. President, the Odendaal Cammission very
definitely considered theentire labour position as well as the employment
position.
hlr.G~toss: How many employees, roüghly, are necessary-let me
take itin categories-how man>. non-White ernployees are necessary
under present conditions, ta maintain the economy of the White sector,
the so-called "White economy"?
hlr.BKUWEK : lell,Mr. Presiderit, apart froni the numbers of the so-
called non-Whites then staying in the southern sector, there are aIso
necessary a further number recruited then from Ovamboland, a smaiier
number recruited from the Okavango, in addition therefore, to the people
staying in the southern sector. Although I do not know the exact nurnber
of people necessary for that economy, 1 can Say that above the nurnber
in the southern sector, and they need not of course, of nccessity, be al1
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-
calied White area.
hlr.G~oss: This urould seem to follow,would itnot, from the apparent
necessity of bringing in 26,000 Ovambos for labour purposes? Therefore,
1 take it that the Odendaal Commission considered that the present non- WITNESSES AND EXPERTS 321
White population was an indispensabIe feature of the functioning of the
White economy. That iscorrect, is it not?
Mr. BI~WER: Mr. President, that is correct, for the present and the
foreseeable future.
Mr. GROSÇ: And that will be correct for the foreseeable future,and as a
member of the Odendaal Commission,wouId you give to the Court your
opinioii as to how long in the future the membersof theCommission can
foresee in this respect?
Mr. BKUWER : Ir. President,I cannot give an opinion because the
Odendaal C.ommission did not consider a span of tirne.
Mr. GROSÇ:That was simply not taken into account?
Mr. BRUWER:That was not taken into account, Mr. President.
&Ir.GROS SNoiv 1will conclude with a line of questions whi1haddress
to you as amernber of the Odendaal Commissio~i, and as former Com-
missioner-Ceneral for the Indigenaus Groups of South West Africa. You
are familiar with the terms of the hlandate for South West Africa, are
you not?
&Ir.BRVWER:&Ir.President, 1 certainlyam not an authority on that.
&Ir. Grioss: Did the Odendaal Commission take the hlandate into
account in its studies and deIiberationsand conclusions?
Mr. BRUWER:Mr. President, the Odendaal Commission did refer to
the Mandale, but naturally it based its recommendations on the frarning
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 thi: Government of tlie Republic of South Africa as Ilandatory to
"promote to the utmost the material and moral well-being and the social
progress of the inhabitants of the territory"?
Mr. BRUWEK:1 am aware of that, Mr. President.
Mr. GROSS: 1will therefore now ask you, \vas it an objective of the
Odendaal C:ommission to give effect to that provision of the Mandate?
Mr. BRUWER:Mr. President, it was very definitely the objective of
the Odciidaal Commission to give effect to that.
Mr. GROSÇ: NOW,in itç atternpts to acl-iievethat objective, which is
described in the terrns of reference of the Commission as an enquiry
concerning the promotion of well-being and social progress (1 am iiot
quoting it exactly) in the pursuit of that objectivin 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. RRUWER:They did, Mr. President.
Pilr. G~oss: Such objective standards and criteria in your view were
sought, and discussed, and applied, by the Commission?
hlr. BRUWER: Mr. President, the Comrniçsion discussed the various
avenues of approach in regard to a problem, having to do with peoples,
and on that basis the Commission considered what would be in the best
interests ofal1 the people of South West Africa.
Rlr. G~oss: Could you explain to the Court,by way of illustration, any
standard orprinciple, whether of human behaviour or otherwise, yhich
you regard as an objective criterion, ostandard, to measure your ludg-
ment against, in regard to a specific policy or measure?
hlr. RRUWER:Well, Mr. President, 1 would Say that the question of
one's rights, one's privileges, one's values and one's attachments to cer-32z SOUTH WEST AFRICA
tain sentiments, theseare al1things that have to be considered in trying
to get to the bais of the intereçts of people, their moral and their social
well-being.
Mr. GROSS:Do you, in your answer, seek to draw a distinction betu~een
subjective persona1 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 persond 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 persona1 judgment?
hlr. BRUWER: Blr. President, if 1 understand the question well, 1
would Say baçically no, depending on the application of the concept. 1
have my own ways and means of evaluating the interests of somebody
else.I may be, for instance, as a personbasing thaton certain Christian
considerations, that is, religious considerations.The other man rnay
perhaps again, base it on political considerations, a third man again may
base it on economic considerations. Now when such abody as the Com-
mission considers the question of the interests of people, it tries to be
as objective as it possibIy can, in regard to a fnctual situation, with al1
the implications of it, and on the basiç 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, inthe quotation 1have referred to more than once-the domi-
nation of the White man in his own area-was an objective which the
Commission pursued according to the best of its Christian and other
jud ments?
Mr. Bnow~n: Yes, Pr. President, the Commission very definitely
came to the concluçion that the one people cannot be dominated by
another people in an area, and it was on that baçis that the Commission
said, well, under these circurnstances, having now a White group-and
let us then, for the moment, Mr. President, say that they dominate the
non-IVhites 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 Commissiori had to sabscribe to existing
rights in that White area and on that basis, RIr. President, it was the
conviction of the Commission that if you agree, or if you accept the
riglits and privileges of people, and there are other people in that Society
not having those rights and privileges, then it is your duty,you cannot
change-and the Commission coiild not change a factual position-then
you have at least got to provide for the other man, so that he also can
rnake use of the same liberties, the same rights and the same privileges,
Mr. President.
Mr. G~oss: So that he cm-if the phrase we used before is used, and
with which you agreed-"escape" from the condition in which he finds
himself ?
hlr. BRU~VERT :hat is correct, Mr. President.
hlr. G~oss: And if he cannot escape from a condition, by reason of
economic or other circumstance, he iç then irrevocably subject to the
limitation upon his freedoms in the White area-is that correct?
Mr. BRUWER T:hat is correct, Mr. President, so long as those limita-
tionsesist, he aill be. ..
Rlr.G~oss: As long as he is there, present physically, and alive: is
thnt correct?
Mr. BRUWER T:hat is correctMI. President. WITNESSES AND EXPERTS 323
&Ir. G~oss: Now I would like to ask you the significance of the ex-
pression yoii used, if1 understood you correctly, that the Commission
"could not subscribe" to the principle or doctrine of White domination?
Did 1 understand you correctly?
Mr. BRUWER:Mr. President, 1 think 1 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 1 have referred, the policy of the domination or baasskap, as he
called it, of the White man in his own area?
hlr. BRUWERM : F.President, 1 am sorry, 1 cannot foilow ...
MT. G~osa: Are you saying to theCourt 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 bansskap, as he called it, "of
the White man in his own area"?
;\Ir. BRU~VERM : r. President,1would not Say there isa difference, but
1 will have to make it clearIfwe take it thatmy approach, the approach
that 1 explained to the honourable Court, is based on the same rights
for people, but in different territories, aifthe honourable Prime Min-
ister's reference to domination of the White group in his area refers to
the domination of individuals of other groups stayingin the White area,
then 1 would Say that substantiauy and materialiy, the two concepts
are the same. 1 have already indicated to the honourable Court that
according to logic and according to my logic alço, if you have tosub-
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 to meMr. 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 Iwould
like to stress that, the term "domination" may be interpretedin so many
terms. 1 do not always know the nuances of these various terms, but to
me it is a question of safeguarding the rights of the one individual and
therefore also of the one group,on thisside, and on the other side, doing
esactly the same for the other group. So it willbe domination.here, but
it wili not be domination on the other side, bccause there again, it may
well be domination bythe non-White of the White âgain, Mr. President,
if 1 have made nlyself clear now.
hlr.G~oss: Would it be perhaps a little help to you, to get the nuances
of the word "domination", if1 should refer to a quotation from a state-
ment by the Prime Minister in the House of Assembly Debutes in the
Third Session of theSecond Parliament, in May of1964,on the subject
of the Oderidaal Commission report, at column 5461, in which he re-
ferred to "White rule in its part of South West Africs"? Does the phrase
"White rule", in your judgment, mean the same as the word "domina-
t--n"?
Mr. BRUWER :r. 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 T: e witness had not finished his answer. Will you
continue?
bIr. BRUWER:Mr. President, 1 said that1 think White rule could FOS-
sibly be the same as White domination, keeping in mind the degrees of
differences of the two words, which I cannot of course distinguish
rnyself, in regard to the specific term "domination". But 1 think White324 SOUTH WEST AFRICA
rule means that the White group will have political rights, the rights of
land and ali the rights generally ascribed to a group that ruacountry.
Mr. GROSS: Were you through, &Ir.Bruwer?
Mr. BRUWER: Thank you, hlr. President.
Rlr. GROSS$ :Ir.President, 1 will be able to conclude in five niinutes.
The PRESIDEXT n those circumstances, Jlr. Gross, continue please.
Mr. GROSS: Thank you. I would like to ask you, Dr. Bruwer, whetlier,
in its deliberations, the Commission took note of, or discusscd. any inter-
national standards of any character, regarding discrimination or differ-
entiation?
hIrBRUWERY : es,Air. President, the Commission naturally discussed,
certainly not indetail, but the Commission did,in the course of sessions,
discuss situations. We discussed many situations,Mr. Yresideiit, in
various countries of Africa and also in various otheplacesof the \vorld,
in regard to the question of discrimination.
air. G~oss:In the Prime Xinister's statement inthesanie debate upon
the Odendaal Commission report to which 1 have referred (this is at
column 5642), the Prime llinister said "in respect of hunian rights, we
comply with international demands as well", and then (skipping an
unnecessary sentence), "there is the possibility of convincing everybody
who wants to think reasonably, except the communists or thosc \vho
want to make the whole of AfricaBlack dominated, tliatwe are folloiv-
ing a course which provides justice for everybody in the international
senNow 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 simil:*r concept or standard?
Mr. BRUWERM : r.Yresident, they did not corisidcitin thc serise that
they made a long and deep study of that concept, biit naturally, in
evaluating asituation, the Odendaal Commissinn also kept in mind the
standards that are appliedin the international sphere.in regard to the
whole questio of-which isusuaUy described ashurnan righ ts.
Mi- G.~oss: Did consultations of any kind take place betweeri the
Odendaal Commission, or any of its representatives, and any interna-
tional bodiesor agencies?
Mr. BKUEYER N:O,Mr. President, such consultations on a physical
basis, did not take place.
hlr. G~oss: Did they take place on any bais whatever?
&Ir.BRUFVER ?:irelMr. President, 1think they took place in the sense
that the Odendaal Commission certainly read tlsourcesof international
bodies.
Mr.GROSS: And did the Commission take into account the judgments
of any international bodies, with respect to the policies pursued?
hlr.RRUWEK: $Ir. President, the Commission certainly considered
aiipossible angles in regard to the problem of South West Africa.
Mr. G~oss: But there ivas no consultation of a physical or direct
nature?
Mr, BRUIVER XO, >Ir.President, not at the sessions 1 nras present at.
$Ir.GROSS D:O J'OUknow of anp sessions or otherwise, in which such
consultations might have taken place?
Air.BRUITER: Xo, hlr. President,1 do not know of such sessions.
3lr.G~oss: Now, finailÿ, one lastquestion for clarification. In your
testirnony, you concluded-this was on Friday, 2 July, and 1refer to WITNESSES AND EXPERTS 353
page 264,s~$ra,-you said,1 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, hlr. President, th1twouId personaliy
like to, say, go and reside in Ovamboland, perhapsone day when 1
am finished with my work, because 1 like the people,1 am inter-
ested in them, but then 1 will be encroaching on the rightsofthe
Ovamlio people."
Would you explain to the Court on what basis and on what consider-
ationç your presence in Ovamboland would be regarded as an "encroach-
ment" "on the rights of the Ovanibo people"?
Afr.BRUIVER MC, President with due respect to the honourable Court,
that was avery personal note, but my encroachment is, 1fnow then have
to takethis as an exa~npl:1Iiave nowa certain desire as a perbased on
rny intimate experience with these people,whom 1 like, ta goand stay
in Ovarnboland, but if1 go and stay in Ovamboland 1wiil have to make
a living, unless am a capitalist and have so much money that 1 need
not tvork. But the very firçt thing that will be necessary, at least
forme, will be to build mysela house, and to be able to build that house
1would have to Iiave a piece of land and1would have to buy that land,
and that means now, as a Wliite man, as belonging to anothcr group,
where 1 have my rights to buy land, 1,in my opinion, Mr. President,
would then beencroaching on the rights of the Ovambo people,bccause
if it is true of rnyself as a person, it may aIso be true of other people, and
that is what 1 had in mind in regard tothe encroachmcnt of the rights
and privilegeç of another group.
hlr.GROSS H:OWmany months have you spent in Ovamboland?
hlr.BRUWER iîfr. President, 1 would have to coiinow but ...
Mr. G~oss: Mrell, very roughly, was it more than a year?
Mr. BRULVER Y:es,Mr. President, 1 think altogether 1 would Say
nearly three yezrs in Ovamboland.
$Ir. GROSS : nd did you biiya house?
Mr. BRUWERN : O,Mr. President,1 did notbuy a house.
RZr. G~oss: Were you encroaching upon the nghts of the Ovambos
by being thcre?
Mr. BRUWER : hope, Rlr. President,that 1was not encroaching at
the time.
hlr.G~oss: 1 am sure you were not, sir. No more questions.
[Public hearingof 7JttZy19651
The PRESIDEXT D:r.Bruwer, wiil you gotothe podium? 1understand,
hlr. Gross, that you have completcd your cross-examination.
hlr.G~oss: Ires,RIr.President.
The PRESIDEKT :ertain blembers of the Court desire to put some
questions to the witness.1 cal1upon Judge Jessup.
Judge JI~SSUP: Thank you, hIr. President. Professor Bruwer, I am
going to askyou if you will please expand on one aspect of the testimony
which you gave in the record on 2 July.
f was very much interested in your analysis of the individuality of
the various groups in South West Africaand their differences one frorn
the other. 1 understood you lo indicate the desire of these groups to326 SOUTH \'ESTAFRICA
maintain their individual societieç and cultures. A1correct in that, sir?
hlr.BRU~W: That is correct.
Judge JESSUP: Thank you. Now, the point which I would ask you to
develop isthis. What contact has there been, or is there now, between the
various groups and their members? 1 think you indicatcd that histori-
cally thcre had been some rather warlike contactsin the form of massa-
cres, I think, and 1 am asking you whether, iii the last three or four
decades, there have been peaceful contacts. You did point out in your
testimony the barrier of distance, that certain cvcnts in the southern
part would not have affected the northern part, and at page 249, s~$ra,
of the record which 1 have cited you mentioned that one group "super-
imposed themselves" on another groupand you said this made an impact
on the language of the group, as 1 understood it. In the same record,
on page 250, su$ra, you çpoke of what 1understand Ras another instance
in wkich one people "ultirnately 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 littIe more detailed picturofthis whole
situation? Do these variouç peoples or people rniusocidy or culturally
with each other or with the Basters? How do al1these people commu-
nicate with each other in the light of the language differences which you
have stressed? Now, 1 am mindful of some testimony you gave yesterday
about the offspring of mised matings and 1 am not asking particularly
about that. But in short 1would ask if you would tell the Court to what
extent, if any, there Ilas becn or is now physical, social or culturalcontact
between the various groups themselves, or among members of the groups.
For instance, has any li~tgua/rama developed which is used between
members of the various groups and, if convenient, Professor 13ruwer,
1 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 cornrnunities, and sccondly in respect of situations when persons of
differentcoups find themselves close together, for instance in the south-
ern part ofthe Territory outside the Reserves. 1s my point clearta you,
sir?
Mr. BRUWER Thank you, Mr. President.
Judge JESSUP: Thank you very much.
Mr. BRUWER : r. President, 1 shaU start with the contact and the
medium of communication in regard to the groups still living in their
own areas or,ifwe then cal1those areas, in the Reserves.
To clarify the two points,Mr. President, that were made in the hon-
oured question in regard to the supcrimposition, 1 had in mind the
superimposition of the Kololo on a population which, naturally, Mr.
Presiderit,1 did not study at that time because that \vas during the
previoüs century, in the Eastern Caprivi. The other esample that 1had
in mind, Mr. President, wasthe example of the Orlam people who spoke
Afrikaans, or a form of Afrikaans, and entered South West Africa since
the beginning of the nineteenth century. If 1 remember the dates cor-
rectly, Nr. President. the first groups crossed the Orange Riveby 1810.
They superirnposed themselves on the Nama, Kow, in regard to commu-
nication in connection with those two groups, first oail,hlr. President,
the Eastern Caprivi, as the honourable Court will know, is averp great WITNESSES AND EXPERTS 327
distance from the rest of South West Africa and in that narrow strip
of country, which is usually referred tas the Western Caprivi, coming
up to the Okavango River then, that piece of country is not populated
toa very great extent. One does find, and 1have found in those areas,
a smali group of !Kgu or hlbarakwengo Bushmen.
Now, in the Eastern Caprivi, Mr. President, the language of commu-
nication there, among the people livininthe Eastern Caprivi,isSikololo.
They do, of course, learnEngljsli and Afrikaans in the çchools. As far
asthe language of the other group is conceriied, where we had the Orlam
superimposing themselves on the Naina, in their Reserves the medium
of communication that one findç thcre isNama. In other words, in the
one case the language of the superimposing group, according toy know-
ledge and deduction, had remained in the Eastern Caprivi where one has
the Sikololo or, 1 think forall practical purposes, one could cd it the
Lozi-language. The Ianguage of the conquerors is today arnong the people
the medium of comrnunicatioii.
NOW, in regard to the situation of the OrIarns and theNarna one does
find that Nama speak Afrikaans, but some of the Orlams, or ratlier the
Orlams that have been absorbed in the Narna, also make use of the
language of the Nama.
In so far as the Reserves in the southern sector are concerned, Mr.
President-and 1 am now using the word Reserve to indicate the areas
assigned to certain groups. in thesouthern part, for example in Warm-
bad and in the Reserve of Bondels or Bondelswarts-1 have corne across
two media of communication bctwcen the people. Some people use
Afrikaans and others again use the Nama language. In the Reserves
of the Herero, that is Reserves like 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 srnaii
group of people, Mr. President. staying in the Aminius or, as it is some-
times alsospelt, Aminuis Reserve, a srnall 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
calibasically Afrikaans. Also the Narna 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 KaokoveId one has what I may perhaps also
indicate as three factionsa Herero faction that went intothe Kaokoveld
Reservc after the wars between the Herero and the Gerrnans, and then
one has the original groups tliat apparently stayed behind whcn the
Herero passed through the Kaokoveld and they are today knowri as
the Ovahimba and the Ovatjimba. Now, Mr. President, one can Say in
regard to t.he medium of commu~iication in the KaokoveId, if my ana-
lyçis of the position is correct, that it is basically Oshiherero, the language
of the Herero, but there are&O dialectical differences. For instance, the
dialect of the Tjimba is apparently not easily understandablc by the
Herero people. 1 base that, AIr.President, on practical experience that
I had when 1 had a Herero interpreter with me, since1 donot 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 faras Ovamboland is concerned, Mr. President, the two languages328 SOUTH WEST AFRICA
of communication in Ovamboland are basically Osikuanyama aiid Osin-
donga,two languages very much related to one another and, as a matter
of fact, mutually understandable. In the Okavango, hIr. President, there
are two what 1 would call distinctive languages in the sense that the one
isnot eaçily understandable by the group using the other-that iç,an the
one hand the Kuangali language spoken by tlie Icuangari themselves, the
one faction; spoken by the Bunja, anotherfaction; spoken bythe Sambiu,
another faction; and spoken by the Djiriku, anothcr faction of the Oka-
vango people; but the fifth faction, hIr. President. the Mbukushu, speak
what one niust the11cail the Mbukushu language, which isnot easily un-
derstandable by the other group. But then, Alr.Preside~it, in the Okavan-
go, Kuangalihaç become what one could then call a Lingua francn, because
Kuangali is uriderstandable bÿ everybody, also by the hlbukushu.
Kow, hlr. President, that is the language position, basically, apart, of
course, froni tlie fact that in tlie sclioand, in practical use, the people
also make use of either English or Afrikaans. As to the development of a
lingua fvanca, 1cannot Say that a Ii~guafrarzca,spart frorn Afrikaans and
Engliçh, has dcveloped in South West Africa, a language which one could
say is, as sucli, something that was developed in South West Africa and
that is understandable by al the people. I havi: tried, &lr.President, to
indicate to the honourable Court the grent differcnces between the two
language familieç that bvehave.
As.to the use of English and Afrikaans as niedia of communication,
Mr. Yresideiit,1 have always been astonished that it is possible in South
ilest Africa, practicaily everywhere, to make oneself understood in either
English or Afrikaans. As a matter of fact, in Ovamboland-1 have more
knowledge of the Ovambo people, 1think, than any other-it has alwayç
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 estent also English, unless he is
very, very, proficient in the language,he tends to make use ofcertainthings
inherent in his language, and that influences hiç rendering of this alien
medium; but that iç one of the things that has interested me very much,
Mr. President-the fact of theuse of a language in such a form that one
could Say that it has developed into a lingucafrajzca, and that applies ac-
tually to hoth the two officia1languages, Afrikaans and English, depend-
ing toa great cxtcnt on the language that was used by the missionaries
working in certain areas. In certain areas one finds that, for instance, the
Anglican Church has been doing mission wark, and tliey make use of En-
glishmore than another language; in other areas, again, one finds that the
Finnish mission has been working, and they tend to make use of Afrikaans
-they do not use Finnish; and in the previous century, and even today,
in certainareas one again finds the Rhenisli missionaries, and they some-
times make use of German-hence one also finds some people being pro-
ficient in Cerman. But, Air. President, a definitc li~tgecfra?zcafor the
w-hole ofSouth West Africa has not as yet developed, according to my
analysis of the situation.
Then, hlr. President, ifIremember the second part of the question weli,
the contact of people in so far as it theriif my interpretation is correct,
has an influence on the change of a cultural configuration. Now, if my
analysis of the situation is correct, a1dam basing that on rny experience
in South West Africa, one finds that in the southern sector-using that
phrase in its broad sense that iç, the sector that is ais0 sometimes calied WITNESSES AND EXPERTS 329
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 liasbeen much mare of a contact between the various groups
in the southern sectorthan in the northern sector. In the northern sector,
if one compares for instance contact between the Kaokoveld people and
Ovambo, oiie does not really find that there is a great deal of conta1tdo
not want tci go into detail, but to mit appears as if in the general con-
figuration, i1 may 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 Ovambo
people. Nolv the Ovahimba and Ovatjimba, being a cattle people, are a
very conservative group of people, and 1 think that that is probably the
reason why you do not find interrelation there.
As far as the contact between the Ovambo people and the Okavango
people is concerned, thereis contact,but not contact that 1would cali on
a great scaie-again, 1 think, rnost probably 011account of the physical
nature of the territory. If 1 may perhaps just explain, Mr. President,
Ovamboland is a very interesting part of South West Africa in the çense
that one has in the central part of Ovamboland practically the basic set-
tlement ofthe Ovambo people, on account of the fact that that is ~vhere
one has what is caLled in the indigenous language the Oshana-a term
which is very difficult to translate, but which means very shallow wrater
courses, but there is not water in the courses very often, but sometimes
during the rains one frnds that this is the drainage systern. The people
have settlecl there, and one findsthat the eastern part-that is, the part
between OvamboIand proper and the Okavango area-has remained un-
populated for avery long tirne, and naturally there is not a great amount
of coiitact.
As far as the Eastern Caprivi is concerned,1 do not think that one can
speak here of contact with the rest of South West Africa in any sense of
the word. They very, very seldom come into contact with people on the
other side of the Kuando River and the Okavango River, Nr. President,
1 know from experience that the distance between the ICuando 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,Mr. President, to summarize 1 would say, in answer to the honoured
question, that there is no real lingzcafranca in South West Afrjca as at
this time. Thecontact between the people one could perhaps summarize
by saying tliere certainly is more contact hetween groups in the southern
sector than between either groups amongst themselves in the northern
sector or the people of the northern sector in regard to the southern
sector.
Judge JJESSUP: &Ir.President, if1may ask for just one point of expla-
nation: when you have, for instance, members of two or three groupsin
the ~outhernsectorwho find themselvesin Rehoboth, or perhaps someother
urban area. or some place where a number of different persons are to-
gether, what is the nature of thcir interrelationship-do they stay by
themselves ordo they mix in various social ways, and so on?
Mr. BRUWER : r. President,from my kno\vkdge and niy experience in
Rehoboth-svhen 1 pass through Rehobotli 1 sometimes also stay over
there, and 1have spoken with people there-it is interesting what one
findsin the Rehoboth area,or the Rehoboth Gebiet. One has the township330 SOUTH WEST AFRICA
Rehoboth,and then one has the farms belonging to the Rehoboth people.
llany of the Rehoboth people, or Basters, as they are called, stay in the
Rehoboth township, but when onetravels through Rehoboth, or when one
stops there and looks around, it is irnmediately apparent, &Ir.President,
that groups are staying away from one another, the Basters staying in the
Rehoboth towiiship and the Damaras and Namas, who are actually em-
ployed by the 13astepeople in Rehoboth, staying intvhat I ~vouldcal2a
little shanty town just north of the main road up to Windhoek. That is the
general situation,hlr.President.
Judge JESSUP: Thank you, Professor Bruwer. That is all,Mr. President.
The PRESIDENT :ir 1,ouishlbanefo.
Judge Sir Louis MHANEFO Professor Bruwer, first, on the question of
language. It is said that there are two family groups of languages and
you later on said that there were 300 languages. \men you speak of 300
languages, do you mean dialects or do you mean separate and distinct
languages 7
Mr. BRUWEK M:r. President, no,1 meant languages, and in this case
what I described as Bantu languages. Tt is generaily accepted,Mr. Pres-
ident, by lingiiists-and1 have had linguistic training, Mr. President, and
I aIso have that opinion-that there aredistinctions between what one
would call alanguage and what one would call a dialect.
Mr. President, to use an example which 1think would be understand-
able to al1of us, if we take the Aryan farnily of languages one has, for
instance, a language like English, onehas, Say, German, one has Dutch,
and aiso a nurnber of others. i\io\vin those languages, %Ir.President, cer-
tain words are practicaily the same. If Itake, for instance, the term
"water", now in English it is "water", in Afrikaans or Dutch it is "water",
and inGernlan 1think it is "wasser". Now it is practically the same word,
Mr. President, but yet we look upon those three languagesas being three
different languages.
We findexactly the same position in regard to the 300 Bantu lariguages
and-pardon me, Mr. President, not in South West Africa but in the
southern partof Africa.that isallhe Bantu-speaking peoplesfromUganda
southwards to South Africa-the linguists distinguish 300 languageand
probably a few thousand dialects. But a language and a dialect are very
definitely distinct from one another.
Judge Sir Louis MBANEFO Y:OUsaid that among the Ovambo, for in-
stance-they are the largest unit in South West Afnca-how many lan-
guages do they speak?
Mr. RKUWER :T. I'resident, there are onlv tw.0languages amongst the
Ovambo people and the honourable Court will remeinber that the Ovambo
people originally was one group. But apart frorn the two languages one
also finds dialectical differences.
Now, to give an indication, hlr. President, of the type of difference that
one sometimes finds 1 will take the word-with your permission, Mr. Pres-
ident-"olupale". That word means, in theKuanyarna language, the sit-
ting place or the meeting place within the family abode (sometimes they
have a very big meeting place within the farnily abode, that iscalled
"olupde") ; but the word "olupale" in the Ndonga language today, or
Oshindonga, would mean a threshing floor where they thresh out the
grain.
So one does find, sometimes, that you have dialectical differences also
in Ovamboland, but 1 would calithe twa languages of Ovamboland, hIr. WITNESSES AND EXPERTS 331
President, mutualiy understandable. Although they are used as two lan-
guages today, one could Saythey are very,very, near to oneanother.
Judge Sir Louis MBANEFO If: I am wrong you wili correct me. The
Dama, do theyhave a separate language of their own?
hlr. BRUWERM : r. President,sofar it hasnot been posçible for linguists
to establish whether the Dama, long,long,ago, perhaps had a languageof
their own, sincefrom time immemorial they have been using the Nama
language.
1 may ptzrhaps add, Mr. President, that one of the renowned research
workers in South West Africa, Dr. Vedder, in regard tthe Dama people
has, in one ofhisworks on the Dama, given an indication that there are
remnants of wordswhich appear to be something of an originallanguage,
but 1 think, foral1practical purposcs, thatmy ansuverto that question
would be "no", the Damaapparently, not during their stay inSouth West
Africa, from what wecan find out, do nothavea language oftheir own.
Judge SirLouis MBANEF :The Herero have their oim language?
Mr.BRUEYE :Rhey havetheir ownlanguage.
Judge SirLouis MBANEFO Th:e Okavango?
Mr. BRUWER I:the Okavango, Mr. President, 1 have explained that
we have two basic languages-the Kuangali language and also the Mbu-
kushu language, although ICuangaliis used asa lilagefranca in the Oka-
vango.
Judge Sir Louis MBAHEFO A nd the Caprivi?
Mr.BRUWE Rn:the Caprivi the SikoIololanguage.
Judge Sir Louis MBANEFO S:Othat you have, altogether, about cight
different languages inSouth West Africa?
Mr. ERUTVET Rh:at içcorrect. Mr.President.
Judge Sir Louis MBANEFO N:ow you rnentioned certain distinguishing
ethnic characteristicor bases fordistinguishinethnie groups. Youmen-
tioned name, ethnic background, language, kinship (withwhat you called
in the economic systems you mentioned planters and food gatherers of the
Bushmen, the pastorahsm and agriculturist and animal husbandry as
three different types ofeconomicsystem).l'ou also mentioned land tenure,
with communal ownership and, in some places. individual righofusers.
Andyou alsomentioned the culture ofthe people and the pobtical system.
Now, 1donot 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:hlr. President, 1 accept that it is not peculiar to South
West Africa only.
With your permission, Mr. President, may 1perhaps just Saythat there
was a mistake in the characterizationitis not planters and food gather-
ers, but hunters-l.also noticed the mistalie in the transcript, hlr. Pres-
ident.
Judge SirLouis MBANEF :In your çyçtemofseparate development, you
base it onthe fact ofthese differences?
Mr.BRU~~R: That iscorrect, Mr. President.
Judge Su Louis ~~BAXEFO: Would it surprise you that-take a country
like Nigeria-every single thing you mention here exists in Nigeria, OS-
sibly in greater degreebecause the populationis about 40 times that of
South West Africa?
Mr. BRUWER :Mr.President, must 1-is ita question?332 SOUTH WEST AFRICA
The PRESIDENTD : o you know anythingabout Nigeria? Ifyou do not
you cannot answer.
&Ir.BRVWER : 1have no practical experience of Nigeria apart from what
1 have read about the country, Mr. President, andI 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 tha1 can say that Ihave equal infor-
mation about botli the countries.
But, if mal7point out one tiiing, Mr. President, which 1 think is per-
haps differentin regard to the two territories, from the knowledge 1have
gathered in books about Nigeria, and especialiy the history of Nigeria. 1
have gathered, Rlr. President, from the publicationsI have read in regard
to West Africa (for instance, publications by Di..Edwin Smith, the mis-
sionary who was working there, also Rattray and even publications by
Lord Lugard) that the background of Nigeria and, infact, of other West
African peoples, countiies and territories, is different from South West
Africa to this extent, that-if the information I liave is correct-forin-
stance, in the mid-centuries one had in West Africa what one could per-
haps cal1empires, in other worrls, you had, inmy opinion, Mr. President,
at a certain stage a people further advanced in regard to ari organization
of society than we had inSouth West Africa.
There is, of course, &Ir.President, also the question of the physical
nature of the country. 1know that Nigeria is a country with a very big
popuIation. 1 think it is, together ivjth Ruanda Burundi and the Nile
Delta, the niost densely populated area of Africa.
On the basis, hlr. President, of the organization of society-becauthat
was actually the question-1 think that where one has a sedentary type of
culture, as,for instance, in Nigeria (at least not the northern part perhaps,
where there are other people like the Yoruba but who, according to the
information, are also pastoralists but basically,1 think, sedentary) one
finds that the organization of society is-1 would like to cal1it more com-
plicated, not more advanced, becarise Ido 11otcvant 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 1am talking now of Nigeria before the so-caliliedcolo-
nial period, I am talking about the old Nigeria and those peoples there
with the empires they had.
They had, in themseIves, and 1 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 cornplicated problems of modern society.
Then Ijust want to add another point, Mr. President, and that is, that
1do not think, although Ihave not got al1the information, that one can
compare, in this sense of differentiation, Nigeria and South West Africa,
because the range of differences, inmy opinion, in South West Africa, is
probably far greater than it ever was in Nigeria, thât is, according to the
sources that 1 have read.
Judge Sir Louis MBANEFO :OWwhat is the medium of exchange in
these Native Reserves?
Mr. BRUWERM : r.President, two media of exchange are used. Money WITNEÇSES ASD EXPERTS 333
has corne into the picture, but also bartering. Now the bartering system
one finds mainly between the man who has an ox and aman who has, for
instance,a basket of grain. You stifindthat bartering system. Thereare
other forms of bartering also. For instance, in Ovamboland one çtill finds
-1 would not Say that it is a very marked thing but you stiIl fi~idit-a
certain type of bead, wl-iich derives from the previous century and is
looked upon as something veryvaluable today amongst the people andthis
is also sometirnes used for bartering. But naturally todAfr.President,
the money form of trade is certainly by far the more stressed forrn.
Judge Sir Louis MRANEFO H:ave you, a social anthropologist, evin-
vestigated the effect of money economy on Native societies and culture?
hlr,RRUWER M:r. President, I have, in South Africa, tried to analyse
societies whi:re a moncy economy has now superimposecl the old basic
subsistence economy.
Judge Sir Louis MRANEFO A:nd do you agree that the effecton what
you are trying to preserve, in yoür separate development, of the use of
money as a medium of exchange, the introduction of taxation, contact,
and irnprovement in roadç, which makes it possible for people to move
from one placc to another, development of townships and so on, have a
more devastiiting cffect,1rnay use the expression, on this culture, than
any law you could pass? Do you accept that?
Mr. BRUWERh :Ir.President, 1 accept that.I subscribe to the basic
princiyIe of dl cultures, there is continuation and there is change.
Judge Sir Louis ~IBANEPO ,:nd do you accept that progress comes
quicker by contact between different cultures?
kfr. BKUWER n:ir. President,1 accept that. One culture certainly
always has elemcnts in itwhich may serve, and usually do serve, asan
element of fertilization of another culture.
Judge Sir Louis MB~~NEF Ootv docs that corne into your policy of
separate devi:lopmcnt ?
Mr. BRUWER: Mr. President, it comes in in thisway, that it is not a
question of preservation of a culture in its form at specificperiod of
history. But it is iising a cultural configuratofna people at a certain
stage of their history and of their development, as,nay use the phrase,
as the place where you start now either to walk or to run, and in modern
developrnent, it is rnore often running than walkiiig.
Judge Sir :LouisBIHANEFO Yo:u mean as a bais for local government,
or as a basis for governmenat ahigher level?
&Ir.BRU~VER M:r. President1 also had in mind, of course, the question
of political institutions, 1uactually meant the entire process of devel-
opment of the people.
Judge Sir Louis ~TBANEF NOow you have thcçe different groups that
were rnentioried in the evidence andinthe written pleadings, the Bush-
men, the Dama, the Nania, the Hereros, the Ovambos, the Okavangos,
the Caprivi and the Bnsters. Under your separate devclopment,iseach of
these meant to develoy on its own, as distinct from the others on its own
levelof governnient ?
hlr. BRUWEI Ir. Presidcnt, if 1 havenow to givemy omn opinion,
I would ...
Judge Sir1-ouisMBANEFO X o,1 just want toknow what is being done.
Rlr.BRUWER In regard to the Odendaal Commission, h1r.President?
The idea is that one is busy with a process, trying to bring people together.
In trjing to tiring people together, haseto keep in niind certain factors334 SOUTH WEST AFRICA
which stiU have a continuing influence on the lives of those people. Mr.
President, permit me to explain by means of an example. Sow the two
theyare ethnically relate..r., the Ovambo and the Okavango people,
Judge Sir Louis MBANEFO 1:am sorry to interrupt you. Al11am asking
is, does the policy thajsbeing practised mean that these groups 1 have
mentioned should each separately develop at its ownlevel ofgovernment?
Mr. BRUWERM : r. President, 1 would Say yes, up to a certain stage,
when these people have become acquainted with the modern form of gov-
erning themselveç 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 the still want tocarry on as separate groups. I think
that is the point whigis usualiy cailed self-determination or auto-deter-
mination, in other words, it is a stage in a process where the people wiii
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 RIBANEFO Mr. Bruwer, what I find confusing in your
answer is if people develop separately their institutions and culture, can
they then dcvclop separately asan economic unit? Are you justified in
saying that theycan mix with others and have a comrnon economic unit,
bot separately they can develop their own institutions locally. That ties
up with the question ofgovernment at a higher levcl.
you areputtingNto the witness?e question,SirLouis? What is the question
Judge Sir Louis MBANEFO T:he point 1want him to explain is whenhe
speaks of people developing separately their culture as a unit, does he
consider that &O to include developing separately as an economic unit,
within their society?
hlr. BRUWER:Mr. President, my answer is no, as I have already testi-
fiedon a previous occasion to this honourable Court.
Judge Sir Louis MBANEFOS : Othat for their common economic life,
they have to cornetogether?
Mr. BRUWER 1:think that is correct, Mr. President. There wouId have
to be econornicinter-relations.
Judge Sir Louis MBANEFO E:conomic inter-relations. How far does the
policynowbeing practisedtend to ioste trat?
hlr. BKUWERM : r. President, the policy at present practi1ethink is,
in my opinion, already fostering it in the sense that in the onesector you
employ people of the other sector. That is one form of inter-relation of
economic systerns. But the next phase, and that ia phase that has been
foreseen by the Odendaal Commission and it is aIso very clear from the
recommendations, is that there would now be a development of certain
areas on the bais of their physical possibilities. For instancexpand,
the only possibility of an economic development would be on the basis of
cattle, whereas again, in the Okavango there are very good possibilities
on the agricultural basis, being adjacent to a very big river. Now natu-
rally, when onceyou have this wholeprocess 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 1: it contemplated that the same would
apply to the White areas and the Native areas? WITNESSES AND EXPERTS 335
AIr.BRUWER:Mr. Presidcnt, 1 would say the principle would be appli-
cable to every single part of South West and therefore to the whole of
South \Vest.
Judge Sir Louis R~BANEFA On:d as common citizens you accept the
right of free movement of individuah and intercourse between the Terri-
tories?
Alr. BRU~VERT :hat is correctAlr.President. That is a process that one
can foresee.
Judge Sir Louis MBANEFO:Would you accept that any attempt to
restrict movernent, unless ican be justified, would not be right-thatis,
within the State, within theTerritory?
Mr. BRUWER : r. President,may I get the question clear that any
atternpt to...
Judge Sir Louis MBANEFO R:estrict movement of individuals, it does
not matter from what part of the Territory, from one part of the Territory
to another, within the same Territory.
Mr. BRUWEK : r. President,1 can quite foresee that, with the devel-
oprnent as I foresee it, and where you have that state where people now
decide for tliernselves what they want to do, that is a possibility,and
I think it asvery great possibility.
The PRESIDENT A:re there any further questions, Sir Louis?
Judge Sir Louis MBANEFO: 1think 1willleave that.
The PRESIDENT:hlr. Muller? Do you desire to ask anything in reply?
Mr. hfu~ti:~: No. No further questions, hir. President.May 1 ask that
the witneçs beexcused if there are no further questions be put?
The PRE~IDENTT : hat will be indicatetoyou later in thday.
Mr. AIULLISR A:Sthe Court pleases.
The PRESIDEST:YOUmay cal1your next witness.
&Ir.XULLBR:&Ir.President. The next witness wiilbe Professor Logan.
Hiç testimony wiil relate also to the issues arising under the Applicants'
Submissions nurnbers 3 and 4. The points to which hisevidence wiU be
directed wiU be the following: the different geographic regions of South
West Africa; the population groups occupying such regions andtheir role
in the life of theTerritory; tdifferencesbetween the various population
groups with regard to language, cultures, traditions, ways of life and
stages of development, and, finally, the effect whicinthe opinion of the
witness, the application of a norm andlor standards of non-separation,
such as contended for by the Applicants, would have on the people of
SoutIi West Africa, especially the Native people.May I present theyit-
ness, Mr. President, and ask that he rnake both the declarations prov~ded
for in the Rules?
The PRESIDENT : Please do1 rccognize the Agent for the Applicant.
Mr. GROS: Prior to the qualification of the witness as an expert, the
Applicants would seek to cstablish hiqualification to testiasan expert
with respect to the question as forrnulated,specificallquestion (c) in
the letter ofI July addressed by the Agent for the Respondent to the
Applicants.
The PRESIDEKT:The proper course, hlr. Gross, is for the Respondent
to caii the witness to eçtablish first his cornpetence to speak upon the
three subject-matters xvhich have been indicated. If then.a question 1s
put in respect of the third matteand itisyour view that his cornpetence
has not then been established, at that time you could make your objec-
tion.336 SOUTH WEST AFRICA
Mr. G~oss: Mr. President,in deference to that ruling, 1 would state,
on behalf of the Applicants, that the Applicants wilI find it exceedingly
difficult to understand the questions addressed or the statements made
with regard to qualification of this expert, on basis of the foundation
laidwith respect thereto, and the general line ofobjections toevidence
proffered on the basis of this formulation, as setorth in the record of
22 June, is reaffirmed-the basis being that the formulationof the point
to which the testimony is being profferedis incornprehensible to thAp-
plicants.With that reaffirrnation of the general objection, the Applicants
will reserve the right to raise the questiof qualification as experand
tothe proffer of evidence as a witness in accordaiice with the Court's direc-
tion. ..
The YRESIDENTM : r. Gross, when previously the çame subject-niatter
was raised by way ofobjection 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 put to the witness, or befSOU know
what his qualificationsare but tutake the objection tothe specific ques-
tion and it is then that the Court can best see the basis of the objection.
Mr. GROSS W:ith respect,Sir,and without prolonging the colloquy, 1
should like to make itcIear (which1 feel itmy duty to do on behalf of
the Applicants) thatf am,in addition to the statements previously made,
referring specificaliy to the Rules of Procedure, Arti49,requiring that
an indication begiven of the point or points to which the evidence wiil be
directed; inthe Applicants' respectfulview, that Rule requires the clear
formulation of the point to which the evidence is to be directed.
The PRESIDENT:Rule 49 has 1think been sufficiently complied with.
Mr. MULLER :Professor Logan,your fuli names are RichardFink Logan,
is that correct?
Prof. LOGAN :Yes, sir, that is correct.
Mr. MULLER: 1 am sorry, Mr. President, the declarationhas not been
made.
Prof. LOGAN :In my capacity asa witness 1solemnly declare upon my
honour and conscience that 1 wiU speak the truth,the whoie truth and
nothing but the truth. Inmy capacity as an expert 1 solemnly declare
upon my honour and conscience that my statement will be in accordance
with my çincere belief.
Mr. MULLERP :rof. Logan, your full names are Richard Fink Logan,
is that correct?
Prof. LOGAN :That is correct.
Mr. MULLER: YOU are a citizenof the United States of America, is
that so?
Prof.LOGAN:That is correct.
Mr. MULLER : OUwere born in the United States of America?
Prof.LOGAN :That iscorrect.
&Ir.MULLER D:idYOU grow up there?
Prof. LOGAN:Yes, 1 did.
Mr. MULLER:In what part of the United States of America?
Prof.LOGANI: grew up in the north-eastern part of the UniteStates,
in Massachusetts and Connecticut.
Mr. MULLERW : ere you educate'd in the United States of America?
Prof.LOGAN Y:es,1 was educated entirely in the United States, again
in the north-eastern parts.
Mr. MULLER: 1 will state to you your academic qualificationsand 1 WITNESSBS AND EXPERTS 337
want you to indicate whether my statement is correct. l'ou hold a Bach-
elor of Arts degree of Clark University of the United States of America?
Prof.LOGA NThat is correct.
Nr.MULLER A:nd a Ilaster of Arts degree of the same University?
Prof.LOGAN That is also correct.
nitr.MULLER A:nother Master of Arts degree of Harvard University.
1sthat so?
Prof.LOGAN :That is right.
Mr. MULLERA : nda Doctor of Philosophy dcgree alsoofHarvard Uni-
versity?
Prof.LOGAN :That is correct.
hlrMULLER D:id you teach at several Universities in America?
Prof.LOGAP I:es, 1 have taught at Clark University, at Connecticut
College forWornen, at Yak University,at Harvard Universityand, since
1948,aithe University of Califorriia, the Los Angeles campus.
hlr. MULLERI:Vhat position do you hold at present, Professor Logan?
Prof.LOGAN1 : am Professor of Geography at the University of Cali-
fornia, Los Angeles.
hlrMULLER L Vhatis your major field of study?
Prof.LOGAN :Geography.
Mr.~~ULLER: IVillYOU explain to the Court what you mean by geog-
raphy ?
Prof.LOGAN Y:es. Perhaps 1 hnd better explain first the contrast be-
tween geography and geology with which itis quite frequently confused.
Geology is the study of the crust of the earth and its land forms. In gco-
graphy \r7eçtart ~4th this basand WC go on into a study of the relation-
ship between man and the land.Now in ordcr to understand the Iand we
neecl to understand al1elements of the physicnl environment and sowe
are interested in the landforms, the clirnate 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. So it isnecessary for us to know aman, that is, the different
groups of men, both raciallyand ethnically,that occupy a given area.
We also need toknow about the stage of technology, the stage of material
development of these people. because different societies use Iand in dif-
ferent ways and so we are interested in this aspect. We are also interested
in the economicphases because the whoIe bais of economy is an integral
part of the study of the gcography of an area. Consequently we are in-
terested in man and in the land on which he lives, not simply in the land.
M~.MULLERH : OWdoes the study of geogrnphy, as you have just ex-
plained tothe Court, comparewith the study usuafly made by an anthro-
pologist ?
Prof. LOGAN:An anthropologist deals basically with man and focuses
upon man as the central theme of his study. 'Thegeographer focuses upon
the land or the region or the area as the focus of his study and so we are
basically interested inheland, the anthropologist in man. In each case
we are an integrative discipline, in that we draw upon a11of the surround-
ing fields for a great part of our knowledge and basic information, but we
interpretthis differentlin the one case the inter-action between groups
of men, in the other case the inter-action betweenhose men and their
land, the first being anthropology, the second geography.
Mr. MULLER In what areas of the world haveyou conducted research
with regard to the study which you have just indicatodthe Court?338 SOUTH WEST AFRICA
Prof. LOGAN :Mywork ha beenessentially centred aroundarid regions,
desert lands. Consequently I have worked in a number of desert areas in
order to sec not only the physical aspects but the different situations un-
der different types of culture in different parts of the wIstarted my
worli inthe deserts of Californiand in the adjacent states of Arizona,
New Mexico and Utah. I worked also considerably in the north-western
part of Mexico, in Baja (California) andthe state of Senora. 1have done
considerable work in the drier portions of the hlediterranean, in Crete
and southern Greece,which, while not a desert area,has quita smack of
aridity connected with it1have spent time in the Kepublic of the Sudan,
having been at the University of Khartoum; and 1 have studied South
West Alnca,
Mr.MULLER H:ave you published any works on the subject of geog-
raphy,the fieidofstudy which you have expiained to the Court?
Prof. LOGAN :Yes, 1have somewhere around 70publications including
the more important ones perhaps is the one entitled the "Central Namib.
Desert", Monograph 758 in the Monograph Seriesof the National Acade-
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, 1958.1 have an article on the "Climate of the Namib"
published by the Quartermaster Corps ofthe UnitedStates Army in 1958.
1have a chapter on "The Utilization of the Arid Lands ofthe World" in
Natural Resourcesby Huberty and Flock,published by NcGraw HiIl in
New York. The entire issue of Focw, the organ of the American Geo-
graphical Societyof New York, in 1962 was devoted to an article by my-
self on "South \\lest Africa" toto.1have 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 Th Htsb7y O/ Land UfilàzalLioniaArtd Regioas, and I did the
chapter on "Regional Setting" in the book bÿ the Amcrican Association
for the Advancement of Science entitled Aridity andMala. 1bring these
out specifically to indicate my interest in arid regions and the fact that
it isnot limited solely to South West Africa.
Mr. MULLER : ave you participated in international conferences re-
garding the fieldof study which you are interestcd in?
Prof.LOGAN: YCS, 1was 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 atthe Unesco and International Geographical Union
meeting of the Arid Zone Commission at Stockholm in 1g60, and to a
similar meeting of the Arid Zone Commission at London in 1964, again
representing the National Science Foundation. 1 was the Amencan dele-
gate to the Unesco International Geographical Union Colioquium on the
Development of the Arid Lands held at Heraklion,Crete, in 1962.
Mr. MULLER :OUhave told the Court that you have done research
work in South West Africa. Will 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 Africa in 1956,after having
done a couple of years of library research in my research time as a uni-
versity profeçsor. 1was there for a year1956-195 1w;cnt out to study WITNESSËS AND EXPERTS 339
the physical aspects of a utilization of the Namib Desert area. 1wasfi-
nanced by the National Research Council of the United States. 1 was
there for a period of just aboua year; my wife andfamily 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 1 returned to South West Africa to carry on not that work, but other
work which 1 harl begun during that first period. During the latter part
of the first peri1dbegan 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. 1 began to be intereçted 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, andby thevariousgroupç of Nativepeoples. 1went back in 1961to
study the contrasting utilization ofimilar areasby different economies,
and by different population groups.1knew that 1could not do this in the
period at my disposal then, which aaçabout eight months. 1worked on
the southern half of the territory at that time, the area inhabited primar-
ily by the Urhites of the Policc Zone and by the Uamara and Nama
peoples of the south; 1only didabit of work in the north. This study was
sponsored by the Social Science Research Council. 1retumed in hlarch
of this year to carry on work in the northern part of the Territoy,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 theRed Line, outside of the Police Zone.
Rlr. MULLER: Have you travelled estensively throughout the whole
area of South West Africa?
Prof. LOGAN:Yes, 1 have bcen in every poition of South West Africa
and seen it quite in detail, with the exception of the Eastern Capriv1.
have been to Katirna Mulilo by air,butI do not know theEastern Capri-
vi. The WesternCaprivi, the Okavango, Ovamboland, the Kaokoveld and
al1of the areas of the Police Zone and virtually al1of the Reser1ehave
been on and know quite well. There are several small Reserves that 1have
not visited, but have been on al1the larger ones.
Mr. MULLER: In visiting these areas, have you made a thoroughstudy
of the different regions of South West Africa, as well as the people occu-
pying such regions?
Prof. LOGAX : es, 1 have endeavoured to. 1have studied the physical
aspects as far asIam capable, 1have studied the human aspects, asfar
as 1am capable, I feel, of course, as anyone does who attempts to study
so extremely comples 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 extraofdi-
nary complexities and diversities of the cultures of Soiith West Afnca,
1 have, as anyone ~foulddo, only scratched the surface. But 1 have been
in al1of thp sreas1have studied as far as possibleasa geographer, both
the physicai and human resources and characteristics of the area. 1have
talked with most al1of the Native peoples (the exception being the Native
peopIe of the Eastern Caprivi with whom 1 have never had any direct
contact); artd1 have worked considerably on each of the reserve areas,
as weiias having stayed on and lived upon European farms in each of the
basic areas of the country.
hlr.MULLER: Have you divided South West, for the purpose of your
study, into tlifferent regions?340 SOUTH WEST AFRIC.4
Prof.LOGAN :Yes.
Alr.MULLER W:ould you name the regions to the Court?
Prof.LOGAN :Yes.
3lr.NULLER P:rofessor, before the adjournment you wcre going to in-
dicate to the Court that you had made a study of the different regions of
South West Africa aiidyou were going to name those regions. Would you
kindly do so?
Prof. LOGAN : Yes, the narnes of the regions wliich are indicated on the
map, which 1believe has been passed tothe group..
Mr.MULLER 1shall come to that question in a moment. Kindly just
give the regions, \vil1you?
Prof. LOGAN : Yes, the regions aI see them, of South West Africaare
the Namib, the south, the central plateau, the northern plateau, the
Kalahari, the Kaokoveld and thefar north.
&Ir.MULLER :ave you indicated those regions bydrawing boundary
lines on the rnap?
Prof. LOGAN : Yes,I have drawn approximate boundaries on a map; as
is the case in all such things, boundaries are arbitrary, and these represent
the approximate positions.Sometinles the boundary is clearly indicated
in the land forms, other timethe boundary is one of economic develop-
ment orof the population groupspresent and consequently it is a bit vari-
able or arbitrarySo to the best ofmy ability these are the boundaries as
I seethem for the geographical regions of the Territory.
Mr. MULLER h:irPresident, may I explain that the witness has super-
imposed on the rnap,which is contained inBook 1of the Counter-Memo-
rialII,the boundary linesof the areas with which he will deaMay1 ask
leave to hand in to the Court copies of the map with the bounclary lines
so superimposed?
The PRESIDEXT W:ell, you should first hattcopy of the rnap to the
Agent for the Applicants.
Mr. MULLER : ith respectMr. President, we had during the adjourn-
ment handed copies to the Agent for the Applicants.
Alr.GROSS T:hat iscorrect, sir.
The PRESIDENTT :hat may be done. There is noobjection,Mr.Gross,
I assume.
Mr.G~oss: No objection, sir1 shouId Iikeat an appropriate moment
to raise questions concerning qualificatas expert.
The PRESIDENT D:oyou desire, hlr. Gross, to examine the witness on
the voire dirfor the purpose of establishing that he has not the qualifi-
cation as an expert.
Mr. G~oss: Ires, Mr. President, with respectto expertize inspecific
matters, inregard to whicIi1 should Iike to addresmy questions tothe
witness.
The PRESIDEST :s it more convenient for yolr to do that nowtordo
it when the question is put?
Mr. GROSS: It would be more convenient and, in my respcctful sub-
mission, more appropriate to do so now-appropriate in the sense of
clarification, of understanding, on the ofrthe Applicants.
The PRESIDE-JT M:r. Mullerthe Agent for the Applicants will bper-
mitted to examine on the voire dire for the purpose of tcsting tquaB-
fications of the witness.
Rlr.MULLERA :s the Court pleases.
The PRESIDEST1: cd upon the Agent for the -4pplicants. WITNESÇES AND EXPERTS 34I
Nr. G~oss: Thank you, hIr. President. Professor Logan,1 shodd like
before 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 ofmy
questions, with respect to your distinctions and attainment as a geogra-
pher of renown.1 should iike, however, to addrcss questions more spe-
cifically to you with respect to your qualifications as an expertin the two
following respects.
I.In the proffer of your evidence, which has been macleby the learned
counsel for the Respondent, the Court and the A plicants have been
advised th:tt your testimony will be directed to tRe following points,
among others, and 1quote:
"The eflect which, in the opinion of the witness [this,of course
in your opinion]the application of a norm andlor standards of non-
separation, suchas contended for by the Appiicants, would have on
the people of South West Africa, especially the Native people."
nid you untlerstand, sir?
Prof.LOGA KYes.
&Ir.GROSS 1:5th respect to such testimony or espert opinion-partic-
ulariyin the contest of this point whichIhave 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 Appb
cants"?
Prof.LOGAK Y:OUwish me to definemy impression of the term "stan-
dards of non-separation as proposed by the Applicants" ?
Mr.GROSS :he exact phraseology, so that 1can fix it in your mind, to
which your testimony içsaid to be directed, is the foiiowing, in response to
your question, and 1 break it down between norm aiid standards for the
sake of clarity because they are two different things: "standards of non-
separation, such ascontended for by the Applicantç." New, 1ask you to
state your understanding of that phrase, to which your testimony is to be
directed.
Mr. ~IULLEK:Mr. President, 1must object to this type of questioning
by my learned friendThe indication given in the letter which my learned
friend has been quoting from and what 1 indicated to the Court was for
the purpose of the Court as weli as for the Applicants. I shallask the
witness certain questionswhich will indicate what his opinion is relative
to the matt.er now being dealt with. RIy objection is that my learned
friend should not put to the iviiness questioas to what the Applicants'
case in thismatter is, The witness will çureInot know it, Save perhaps
by having discussed it, but it is not forny learned friend to put those
questions with regard to testing the witness's ability as an expert.
The PRESIDENT M:r. Gross, you are putting to thewitness questions
which are strictly on the voi~edire and that is fothe purpose of deter-
rnining whether he is competent to speak upon the matter referred toin
"C" of the lettcr ofIJuly which was directed by the Respondent to the
Agent for the Applicants. Itisnot possible to ask what Iiisundcrstanding
of the application of the norni or standard of non-separation is at this
stage until the question has been putinthe ordinary course of examina-
tion by the Agent for the Reçpondent. Thcn you may take the objection
and then, if you desire to, you may test the question on the voire dase
to whether the witnessis competent to answer.342 SOUTH WEST AFRICA
Mr. GROSSM : r.President, if the Applicants understand correctlythat
would be then on the basis that no testimony, expert or othenvise, would
be intended to be dirccted towards this point "C"unless so stated and
identified by Respondent's counsel in asking the question.
The PRESIDENTK : o, 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 willbe given every opportunity of doing
so; upon that stage being reached permission wiU be granted to you to
examine on the uoiredirief you desiresoto do.
hlr.GROSS:Mr. President, just one more word by way of caution with
the light of the formulation of this question whihasfbeen stated by then
Applicants to be ambiguous and incomprehensible to the Applica~its,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 reserr7ethe objection generally, since itcreates a general con-
fusion.
The PRESIDENTM : r. Gross, it would be better to address the Court, not
the Agent for the Respondent. It is 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
determinewhether in hisopinion it doesor doesnot touch upon the ques-
tion of paragraph "C" and ifhe desires to challenge the cornpetence of the
witness tosay so.Tliat is the correct procedure.
Mr. G~oss:hlr. President, 1 have observed the admonition to address
the Court, and assure the honourable President that that has been rny
intention throughout, and ofcourse willcontinue to be.
i would liketo raise the followingquestions lvith respect to the exper-
tise of Professor Logan.
The PRESIDENTT :he ruling of the Court has aIready been given. Until
such time as a question is putby the Respondent's counsel on the matter
referred to by you there is not the opportunitÿ nor is there the ground
upon which the qualification of the witness to answer it can be tested.
Rlr.GROSSI: n any aspect. Mr.President?
The PRESIDENT ': lihtther aspect are you speakingabout?
Mr.GROSS:hlr. President, the point 1wasabout 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 PRESIDENTW : ellyou may proceed todo that.
inMmy opening rernarks. Professor Logan, you referred, 1 believe, if 1ed
understood you correctly, to the definition of geography as a discipline or
science involving the interaction between men and land. 1s that correct,
sir ?
Prof. LOGAN :Ires, thaiscorrect.
Mr.GROSS:In your studies and research in South West Africa, 1 take
it that thiwas the basis upon which you pursued your studies?
Prof. LOGA NYes, that iscorrect.
Mr. GROSS:In respect of the anaIysis you made on the basis of the WITNESSES AND EXPERTS 343
interaction between men and land, did you have extensive discussions
withmen?
Prof. LOGA NYes.
Mr. GROSSM : ay 1ask you, Professor Logan, for general answer, what
types of individual men did you have discussions with-let us Say, spe-
cifically fothemoment-in the southern sector of the Territory outside of
the Resenes?
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 Reçerves, the Natives on farms;
government officiais aswell as private citizens-al1 sorts of perçons. As I
indicated, 1think, earlier I Iived on more than one farm-it depends on
what may be considered living upon, but 1have stayed, let us say, not
less than tliree ta five days upon upwards of 20 farms within the Police
Zone; and 1have been on allof the Reserves-not rnerelydriving through
them, but remaining upon them for periods ranging from a day on the
smdIer ones to at least a couple of weeks on the larger ones, still in the
southern portion of the Territory.
&Ir.GROÇS:Did you have discussions, extensive or otherwise, with re-
spect to the political or economic relationships of individuals to society,
man and land?discussions primarily centred on the relationship between
Prof. LOGAN:1 have not heId any political discussions to any extent
with anyone; 1 am not interested particularly in politics per se, and con-
sequently 1am not an authority on the politics of the Territ,and have
not realiy been seriously interested therein. As far as the economic as-
pect is concerned, yes. As far as the cuItural aspect-by this 1 do not
mean to exclude politics from culture, but at any rate thestudy of the
culture of the peoples, whether they be the Europeans or the Natives, is
very much a part of myfield of study. Consequently 1 have talked with
and observed the various culture groups within the area quite intimately.
This means having talked with atclose range, over considerable periods
oftirne, Natives as wellasEuropeans.
Mr. G~oss: 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 poIitical orindividual basis?
Prof. LOGANW : ell, as I just sai1 am not interested in the political
aspects,and 1have not Goneinto that. As far as the laws or regulations
are concemed, 1 am afraid 1 am not able to recite-1 do not even know
thoroughly-al1 of the regulations and laws involved in the relationbe-
tweenNatives and Iihites, orothertypes oflawswithin the area. 1cannot
be held asan expert in any way on the legal aspects-no. 1 am qujte
alvare, however, of the rights and privileges and the limitations thereon,
as anyone livingin and observing critically and carefully a society ordi-
nanly is, and consequently l think I can talk with a fair degree of cer-
tainty inregard to how much freedom or lack thereof there ison thepart
ofthe Native group in South West Africa.
Mr. GROSSA : nd would your observations and opinions on that subject
reflect scientific or technical observations or analysis?
Prof. LOGA NNO,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 carefüIIy and keenly aspart of obtaining the totai background
of the area, but in order to report scientificaily or technically upon it.
1 am afraid1 would have to have a legal background or a political science
background, and 1 do not have this; 1wvouldnot set myself up as an
expertin those fields.
Ab. GROSS: Those fields being the political, economic and sociological
fields?Ijust ask you for clarification, sir.
Prof. LOGAN :O, I saidpolitical fields and legal fields; when it comes
to economic and sociologicalfields, this begins to get more rnyrealm,
and there on at least a number of facets 1 thin1 can testify nith a fair
degree of certainty and with fair degree of technical knowledge.
hlr.GROSS: 145th respect to the sociological aspect of your testimony,
have you specialized in anysense, in studies or writing or scholarship, in
the field of sociology?
Prof. LOGAN:Not in the field of sociology, buI have had courses in
sociologywhen 1 was back at the university, long ago; my Ph.D degree is
in human geography from Harvard, and aHarvard degree in human geo-
graphy in the year in which 1took it meant that we had a great exposure
to sociology, ranging al1the way from urban socioIogy through compar-
ative societies, and thingsof this sort1 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 Yh.Ddissertation is sociologi1ahad a sociologist work-
ing closely on the cornmittee with me-sverme, not with me-and 1 have
quite a bit of background in that sort of thing.
Mr. GROSS : Yes.
Prof.LOGAN That is why 1 stated to the Court at the beginning that
geology and geography should not be confused, and that asgeographers
we have to know about men, and knowing about men we have to know
about sociology and societies, and consequently, yes, would corne into
that.
Mr. GROSS A:nd in your discussions with individuals iletUS Say for
the sake of this question, the Police Zonereas outside of the Beserves,
for exarnple, 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
perçons?
Prof.LOGAN :es,1 did.
Mr. GROSÇ :nd in ascertaining, ordeveloping 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 classiasnon-\mites, their attitudes,
reactions,or perceptions of the situation?
Prof. LOGAN:Many times, yes. with many different groups.
Mr.GROSSA : nd with many difîerent individuals in that area?
Prof.LOGAK Yes, and different tribal groupings.
hlr.GROSS: Well, sir-just to avoid confusion on my part,1 was not
referring to groupings. but to individuals.
Prof.LOGAN :But 1 mean individuals from diHerent tribal groupings.
Mr. GROSS : ithin this particular area?
Prof.LOGAN:Yes, witliin the Police Zone.
Mr. G~oss: In connection with the politicaasdistinct frorn the socio- WITNESSES AND EXPERTS 345
logical, did you discuss with them their reactioils or opinions or attitudes
with respect to the political limitationsosed upon them?
Prof. LOGAN:Yes, to slight extents. 1feel rather foolish, Mr. President,
about giving my testimony before 1 have started to givemy testirnony,
but if 1 shciuld continue hereZ wouLdsay 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
discussion witha Nama shepherd is a rather fruitless undertaking, because
most of the Nama shepherds do not have any political concepts; and
therefore Ihave difficulty answering the question "yes" or "no" because
one does not discuss something with a person who does not know any-
thing about it.
Mr. GROSS : r. President,1 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 inthe Police Zone outside the
Reserves, sofar asyou are aware?
Prof. LOGAN:Yes, thousands of them.
AIr. G~oss: Yes, there are. Now, are there persons in this area, urho
are not Sarria shepherds, who have political views, sir?
Prof. LOGAN :Yes, there are a few.
hlrGROSS :There are a few, and 1 would like to know about those few.
The PRESIDENT M:r. Gross, on examination of voirdivethe questions
must be of ILgeneral character, they cannot be oaspecific character; the
questions must be directed to ascertaining whether the witness is quali-
fied asan expert, and it does not seem to meto be of assistance in deter-
mining that to go into detaiasto whether there areNarna shepherds here
or Nama shepherdsthere.
Mr. G~oss: 1did not introduce this question.
The PRESIDENT:Maybe, but you are pursuing it.
hIr.G~oss: 1 referred to Nama shepherds to dispel the notion that 1
was referring to Nama shepherds; 1was trying to establish, and am trying
to establish, the limits or extent of the witness's expertise.
Prof. LOGANM : r.President, could 1 makea short statement, perhaps?
The PRESIDENT:NO,answer the questions, witness-it is much better
to answer the questions.
Prof. LOGAN :Excuse me, sir.
Nr. G~oss: Professor Logan, 1 would very much like to give you-we
are addressing each other onlyin the presence of the Court, and through
the Court-tull opportunity to respond tomy questions in any way you
deem appropriate, subject to the views and rulings of the honourable
Court. I do wish to pursue thiçmatter çothat yyoumay understand the
purpose of rhe question, and why 1 am excluding Nama shepherds or
others who fiave no political sophistication or knowledg1am discussing
with you, or asliinyou specifically to advise the Court for the purpose of
indicating the extent of your expertise and the particulai areas or points
or subjects lo which it is directed, whether or not you have engaged in
discussions with non-Whites, so classified, who have what you regardas
political sophistication or knowledge?
Prof. LOGAN : Mr. President, 1have not1 have not engaged in political
discussions with the leaders of the Herero or Ovambo political groups
have been represented at the United Nations, for example; 1have not
held discussions with them. My discussions have been almost totally of
a non-political nature, and conçequently 1 could not qualify to discuss346 SOUTH WEST AFRICA
political situations in really any wayas an expert, or even as a strong
witness.
Mr. G~oss: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: 1 think that is all, Mr. President-thank you very much
for your patience.
The PKESKDEND To: you cliauenge the competency ofthe witness, as
an expert ?
Mr. GROS :SNot as an expert with respect to his discipline as ageog-
rapher-no, sir.
The PRESIDENTC : ontinue, MT.Muller.
Mr.MULLER:Professor Logan, will you describe to the Court the area
or region on themap 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 sornething about that region and its economic poten-
tialitie?
Prof. LOGANT :he Namib is a complete desert, one of the most utter
deserts in the world. It extends dong 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 ofthe plateau ofAfrica.
It is an area that is almost totally devoid of rainfall oany form of
precipitation. It receives an annual average of sornething between one
half inch and two inches of rain per annum, but tkis does not really
indicate the true situation, for it may be rainless for as long as three
or fouryears and then receive, inaperiod ofseveral weeks,a large amount
of precipitation in the form of cloudbursts ivhichgives a certain annual
average, but which really is of no utilization to anyone attempting to
utillze the area for farming or anything of that sort.
settlements within the area dl have great problems in obtaining their
water supply. Swakopmund and Walvis Bay receive their water from
the undedow of the Kuiseb River, some 30 miles inland and pipe this
30 and 50 miles respectively, to those two cornmunities. Lüderitz, far-
ther down the coast, obtains its fresh water entirelyby the distillation
ofsea water, with coal brought from great distarices providing the energy.
Oranjemund, ai 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 flowing 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 oa flat bench cut 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 flats, the gravof which iscenlented with gypsum, and
gypsum is poisonous to almost dl vegetation and consequently com-
pletely unusable. The soilsof the area are virtually non-existent except
in the case of the sand of the sand dunes which, itself,s scarcelya soil,
and in the case of the gypsum cemented sands as 1 just mentioned. The
area is virtuallwithout anything, then, that serves as an economicbase WITNESSES AND EXPERTS 347
or a base for utilization. Now the exception here lies in the mineral
development. There are a couple of smalI copper operations and there
are the world famous diarnond-bearing gravels dong the coast in the
southern portion of the area, the area that iç 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
bmited region.
Off-shore the cold waters of the Humboldt current whick wash this
coast provide a lot of plankton which develops a big fish population and,
consequently, the taking of crayfish, which are exported al1 over the
world as frozen, and tinned lobster tails or crayfrsh tails, is an important
industryand 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
econornic bases of the area: the presence of the diarnonds and the pres-
ence of the fisheries.
The third economic base is that of the fact that a port is needed for
exporting the productç of the interior and for receiving the imports
for the interior, and on this basis, both Lüderitzaminor port and Wal-
vis Bay, the major port, have developed. Both of them are tied quite
strongly to the sea and ta overseas and to world trade and they have
g-rownup here as completely exotic ports, exotic cities. Along with them,
Swakopmund and Oranjemund are dso exoiic, that is, things completely
out of place in the area. The area was originally almost uninhabited.
Along the coast there were afewof a group termed Strandloper Bushmen,
Strandloper means "beach runners" and they moved along the coat
living off the sea wrack, the refuse of the sea, pnmarily.
Inland, there were a few scattered Bushmen groupç, very likely. These
had been apparently exterminated or virtually exterminated by the
time of the arriva1 of the first Imites in the area, exterrninateby the
Hereros in the north and by the Namas or Hottentots in the south, and
the result \vasthat there was very little population in the area. Along
the major rivers that flow once in several years, but which have an under-
flou?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 goatç. These are still living in the
same way in the interior behind Walvis Eay. In other words, this was
originally an almost uninhabited area and there are today in it a fe-w
peoples stiI1 representing the old group of Topnaar Hottentots and, in
contrast, the Iarge modern type cities, supported as far as their food 1s
concerned, supported as far as their water is concerned and as far
their economic base isconcerned, almost entirely by outside contacts.
Mr. MULLER W: hat influence have the European and Native peoples,
respectively, had on development in this particular area?
Prof.LOGAN :he area is dmost 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. Tlie population today is perhaps roughly a third European,
two-thirds Xative. The Natives are entirely brought infrom outside or
have corne in of their own volition from outside. One group is thOvam-
bo, urho colne from the northern part of the Territory and work here as348 SOUTH WEST 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 Werero or Nama or Dama, who have come from the more
rnoiçtinterior and have moved domn to the coast because of the oppor-
tunities for employrnent there. They have, of their oivn 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. LOGAK : ell, since the European goup is the one that today
keeps the water supply going, keeps the food supply corning in, keeps
the railway operating, that it is the managerial ability, that it 1s the
initiative and drive of this group that has kept the place in operation.
the removal of this group without its direction and initiative,ivould,
1 think, result in almost immediate 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 eacll morning at the given hour
that is necessary to turn on the plant or oil the machinerp, and since
there isno such initiative, from the local Native group,Iam afraid that
things would fdl apart very quickly.
Mr. GROSS:Mr. President.
The PRESIDENT: Yes, Mr, Gross?
Mr. GROSÇ: 1 would object to this testimony asnot 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.Nuller, in the first place, to what particular issue
is this evidence sought to be directed and secondly, under what heading
in your letter ofI July 1965 ,ocs it fall?
. R-r.MULLER: I beg your pardon, Mr. President, with reference to
the letter . . .
The PRESIDENT T:heletterof I July 196j ,ddressed by the Agent for
the Respondent to the Agent for the Applicants, The two questions 1
asked were to what particular issue in the case is the evidence which
bas just been given sought to be directed,and secondly, to what partie-
ular head, A, B, C, in your letter ofr Juiy 1965, is it said tfall?
Rlr.MULLER: Mr. President, my reply is that it is concerned ilrith
the issue raised under the Applicants' Submissions Nos. 3 and 4,relative
to the existence of a norm andior standards and applicability of noms
andlor standards to South \f1est Africa. It is directed to the matters
raised under B and C,that would be the differencesbetween the popula-
tion groups and upon that, the uitness wiil eventually basked to express
his opinion relative to what is raised in.
The PRESIDENT:hlr. Gross.
Alr.GROSS:To the objections already stated, 1wouId renew and reaf-
firm the general linc of objections, based upon the meaninglesj and
incomprehensible formulation just cited as a reason for the question and
answer, in response to the honourable President's question addressed to
counsel. 1 do not know what relevance the answer or the question .bas
to any contentions matle by the Applicants in respect of Subrnissro~is
3 and 4; the favourite formula, now repeated time and time again (whlch
does not add to its clarity)-"norm andjor standards such as contended
for by the ApplicantsU-has taken on a ritualistic rather thaa compre-
hensible aspect. 1 therefore add this general objection to those raised WITNESSES 4ND EXPERTS 349
specifically, with regardto the reIevance or intelligibility the question
and the answer in respect of any issue raised'in these proceedings.
The PRESIDENT S:ornetimes the relevance becornes more apparent as
questions are put and sometimes they becorne more comprehensible.
1 think, Mr. Gross, it is better that we note the objection which haç been
taken by the Applicants. You may rest assured that the Court itself
is capable of evaluating the evidence in its relevance but 1 think the
better course is to proceed with the evidence.
Mr. GROSS: I accept it, sir, on that very basis, with assurance.
The PRESIDENT:Continue, Mr. Muller.
Mr. MULLER: Professor Logan, will you next deal with the second
region on your niap 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 Iack of precipitation, of a general lack of resources. AI see it,
1 bound it southwards by the territorial boundary and eastwards by the
territorial l~oundary and then northwards by a line running diagonally
northwest, southeast, passing about through the town O£ Mariental,
on the railway line IOO miles or so south of Windhoek. This area is a
high plateau, lying three to four thousand feet above sea level, having
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.
It isan area of flat sky-linereaching monotonously, endlessly, to the
distant horizon, barren, almost no vegetatjon in the south, getting up
to having open bush country of low busheç 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, froln which the water cannot be raised up, without great expense,
to the plateail-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.
Mr. MULI.ER: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 cari be no dry cultivation because there is not sufficient rain
for dry farniing.
Therefore it al1 boils down to the fact that basically it iç an area of
pastoral act.ivity whercver there is enough bush for anirnals to graze3.50 SOUTH WEST AFRICA
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 thereare also a few sheep and goats raised usually as
a bit offood forthe house and alsoby the Natives living upon the European
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. LOGA NYes, one ofthe principal things thatI 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
find that, at a distance offour 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 init.
LVhenone crossed 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 firstI attributed this to the fact that the
Native Reserve was over-çtocked, that there were too many animals
upon it; when 1 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 figures1 obtained myself from the European farmer on the
other side of the fenceI 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 anirnals out and
bringing them back each day, go with no control, for the boys merely
follow the anirnals. 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 whoIe area. There were no more water-
holes on the farms than there were on the Reserve, there were no differ-
ences, to any extent, in the number of sheep or goats on the opposite
sides-the nurnber 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.
Now the Reserve Natives had been permitted to fence, had been en-
couraged to fence,and as amatter of facto, ne 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 sorne cases, in 1961, it had been
there for five years.
\men 1 came to look into the population ciifferences of humans on WITNESSES AND EXPERTS 351
either side of the fence another interesting 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 al1Natives, in this particuIar case Dama and
Nama; on the European farm there was the Dama and Nama popula-
tion, plus the three, or four, or five members of the European family.
The stantlards 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,orsomething 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
side of the fence, on the European farm, the Native was receiving (the
Native who was doing the actuaI work) regular pay-a low wage, a very
low wage, in cash; in addition, hewas receiving rations of food, hewas
receiving gifts of clothing (this is almost the same as pay because the
gifts are a (lefinite 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 actuaIly houses, cement block houses,
constructed for hirnby the farmer.And he furthermore had a rnatter of
stability, thatis that living on the farm he was guaranteed regularly,
over the mcinths, over the years, irrespective of drought, irrespective of
dry scasons, a rather continuous income-which was not the case on the
Reserves, where this might be a quite fluctuating thing depending on
the conditions of the climate in that partieularyear. 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 1 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
1 did was before the study by the Odendaal Commission.
Mr. MULLER:DOyou think the differenccs just descnbed to the Court
between what happens in the Reserve itself and on the adjoiningfarm
is due to 1at:of opportunity in the case of the people of the Reserve?
Prof. LOGAN :O, 1 do not think so. The Administration has made
continuous efforts, over a long period of time, to improve the Reserves.
There has been a great deal done to iniprove the Reserves. This is the
thing ...
The PRESIÜENT:Mr. &lulIer, ~vould you ask the witness to indicate
to the Court what is his knowledge of the continuous efforts by the
Administration of which he speaks.
Prof. LOGANI: beg your pardon.
The PRESIDENTW : ould the witness indicate to the Court 'the con-
tinuous efforts made by the Administration that he is aware of.
Prof.LOGAN :l'ou wishme to name them, you mean?
The PRESIDENTY : es.
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 iiicludes the wire itself, plus the metal posts for supporting it
(this being a treeless areathis 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 tothe 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 varioos 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 greatdeal done also in health education by agricultural depart-
ment people in home economics, in regard to nutrition, and in regard to
various diseases.
hlr.MULLER :o the Hative inhabitants of the Reserves accept these
irnprovements readily?
Prof.LOGAN: Some, very readily, yes. The matters of stock improve-
ment that relate to disease control, and things of this sort, are accepted
very readily. Since ive 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 rvith other Nativesb ,utit isin the sonthern
part of the Territorp.
Nr. &IULLEKW : ould YOU noUrdeal with your third region, described on
the map as"the central plateau"?
Prof.LOG-4~ :he central plateau area, which lies considerably higher
than the areas 1have been describing so far, at elevations o4,000 to 6,000
feet above sea-leve1,is the real centre ofthecountry economically, although
not the centre from the land utilizational point of view-1 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, ordinarilp, of drought through the whole
of the winter and there are also recurrent droughts, ofsome 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 isone of thorn bush savannah. By this Imean it has thorn
bushes-almost ali of them acacias, al1of them covered with spines and
thorns, having green leaves onthem during the summer rainy season and
being quite dryand barren-looking the rest of the year. Savannah means
that it is an area of fairly tall grasses which cornup for a short period
after the rains.
It is an area of rocky, stony, soi1and of generally quite hilly country.
It is a plateau, butthe plateau has been cut into valIeys in a great many
areas and so much of the land is in slope, with the bare rock just below
the surface.
31s. MULLER:TOwhat extent, if any, is this area being developed by
man?
Prof. LOGANI :t isused quite extensively for grazing. There is no agri-
culturein it at alof anytype worth mentioning, but there is a great deal
ofpastoral activity. The southcrn part of the area js 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 cattleare WITNESSES AND EXPERTS 353
shipped out of the area by rail to theRepublic, for the most part, on the
hoof as beef, or sold locally as beef. The area also produces a great arnount
of cream w-hichis used for butter andcheese being produced incentralized
factories, not on the individualfarms.
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 residentialareas much the sarne as
one would iind in a modern European community. It has a large indus-
trial area basically producing fabricated goods, that is it brings the par-
tiallÿ constructed material, whatever it is, in from Europe, or America,
or some otlier part of the worId-increasing amouiits from the Orient,
particularly Japan, today-and these are then fabricatedtospecifications
localiy.
\i7indhoek also haça large Native population. The population of Natives
is about equal to that of Europeans. The Natives arehoused today in a
cornpletely new housing area, referred to as Katutura. The older housing
area waç deplorable-it consisted ofshacks built by the Natives withvery
poor sanitary facilities, very poor availability of water and on.
During the period between 1957 and 1961 the township of Katutura
was constriicted at the cxperisc of the Europenn tax paycrs. It is imme-
diately adjacent to Windhoek, to the European housing area, and con-
sists of housing for some xg,oooNatives. The housing isfour-room cernent
block construction houses with windows and doors (incidentally the win-
dows and doors have to be made of steel, because if they are made of
wood there is generally quite a loss by their being taken out and burned
for firewood). They are equiyped with Aush toilets, with showcrs, tvith
running water, and electricity isavailable ifthe 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-
1~r7ent. In other words, nearly al1 of the rent is paid for by the White
employer, if the man ~~orks. The housing is, to my mind, very adcquate
-as a rnatter of fact it is adcquate as has been supplied ovcr the past
ten years, i~puntil this Iast ycnr, bymy own university for its graduate
students, the only difference being that the university supplies hot water
and no hot water is siipplied at ICatutura; of course in that climateit is
scarcely needed anyway.
hlr. MULLER :Odifferent population groups livein thc township Ka-
tutura?
Prof. LOG-+ :YXes. thcre are several different groups. There is a number
of Damaras, a nurnber of Namns, 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 wjthin Katutura; this is simply because of
the fact that basically the various groups do not likc to live together and
they actuaIIy have some friction between them if they do live in imme-
diate juxtaposition; so they arc in separate units with buffer zones of
empty ground betiveen each ofthe different units.
hlr. XULLER:YOUhave now dealt with Windhoek and Katutura at
Windhoek, will you tell the Coiirt something briefly with regard to the354 SOUTH WEST AFRlCA
popuIation groups generally living in this region that is outçide the town
of Windhoek?
Prof.LOGAN : es. 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. TheDama have alwayç been a sort of an enigma: the Kama 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,andthey 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. It is not qüite true, probably, that they ivere slaves to the Nama;
they were servants or rnenials of the Narna. They were not at cqual 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 Eama,in scat-
tered units, referred to as Werfs, or Werve, over the whole of the central
plateau region; and as a rnatterof fact al1over the south as well. Xow in
the middle of the nineteenth century,into this area there penetrated the
Herero. The Herero are a tall h'egroidgroup 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 Nania inirari-
ably lost in the long run.So theDama and Nama were gradually piished
southward by the Herero, until the position was frozen by thc advent of
the Germans in 1890, who stopped the internecine wars. The line today
is very clearlyindicated on any large scale map by the place names. The
farms and even the towns, in the southern part of the Territory often
have Narna nameç with "clicks" inthem. The names in the northern part
have the rolling vowel-full sounds of the Herero language : suchasOmu-
ruru, Okahandja. Windhoek ison the lineof sepriration between tlie t\vo
differentgroups.
The groups on the farms throughout this portionof the territory, in-
clude some, but not very many Herero, for basically thNama 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 arc also
Natives living in townç, where they are engagrd in a wide variety of
occupations. The Herero are quite frequently in town; the womeii work
as laundresses and housemaids for the most part; the men work at a
number of differentjobs, ranging up to ashigh astruck driver and chauf-
feur; they work as deliverymen, and positions of that sort. The Narnaç
and Damaras are very dominant in the towns-there are large numbers
ofthem in the town areas.
And then there is one more group,and that is a group that is riot in the
usual classof Natives-it is a mixed blood group, the groiip teferfed to
cornrnonly asColoured, and in this particular case by the rather distinc-
tive name the Rehoboth Baçtards-the terrn "Bastard" isa name that
they apply to themselves; you ask a man "1s jy 'n Dama?", and he will
Say "hee, ek is'nopregte Baster"-that iç, "1 am a proper Rastard",and
this is the term always appliedby them. The name goesback to a much
earlier time, when this group developed in the northern part of the Cape
Province of the Cape Colony, inthe area of Naniaqueland. A number of
White herders came into a country rvhich wriç very bleak, and yornen
from the White community were not interested in coming into it. The WITNEÇSES AND EXPERTS 355
men settling there eventually married the headmen's daughters of the
local Nama comrnunity-now by this 1mean they married them-jt was
not a case of mating with them, asin many other cases, in which case the
chiId 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 niere brought up within the home of the White European paç-
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 art:a, it having been civilized and tamed somewhat, they began
to look 1%-itsome disparagement upon these others, andthey referred to
them by the derogatory term, and this derogatory term these people
picked up and used wlth 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
given the Kehoboth area, and settledin the Rehoboth area as a group of
people completely distinct fromthe surrounding Namas. They wereChris-
tian, they always had a minister withthem, they had a writtenlaw, they
had an organized conimunity. When the Germans arrived they recognized
this andmade them an independent, autonomous state and set up the
territory, theGebiet, for them; and so today this is, in Afrikaans, the
Rehoboth Gebiet,the Rehoboth Territory, settled by these people. These
people, incidentally, areherders and farmers. They employ large numbers
ofDamaras astheir servants. They have aIocation, aseparate housing area,
in Rehoboth for the Damaraç, since they donot allow the Damaras to live
with them. They have in recent years-the last40 years or so-been
renting out their farrns to Europeans,and they objected very vociferously
a few years ago when the Administration announced that these farms
would have tobe turned back to tlie Rehobothgroup, because the Rehoboth
group did not like the loss 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.
Thereare also inthe area generally, in the Windhoek area and through
the whole of the Central Upland, a number of Europeans of the three
basic langiiage groups and a çcattering of Coloureds, largely from the
Cape, in relativelymaI1numbers.
[Public hearin gf8 JuEy19651
Mr. MULLER:Mr. President, before proceeding with the examination
ofProfessor Logan, Mr. de Villiers would like to makeanapplicatian tthe
Court relative to a witness who wishes to sitin Court.
The PRESIDENT& : Ir.de Villiers.
Mr. DE VILLIERS:Mr. President, it concerns Professor Yosçony, who
will be called as an expert solely. He will not testify about factsin South
West Africa as being within his knowledge in any way and 1have spoken
to Mr. 21uller and our friend, Alr. Gross, about iand the latterhas no
objection to his attending this sitting.
The PRESIDENT :He may be present.
Mr. MULLER:Professor Logan, you were about to state your conclu-
sions of your study of the thirdregion, that is, the centra3 plateau, when
the Court a.djourned yesterday. Willyou proceed to do so now?
Prof.LOGAN :es. Mr. President, the central plateau region, the area356 SOUTH WEST AFRICA
which was under discussion at the termination of yesterday's session, is
an area of relatively poor physical resourcesinwhich a rather rernarkable
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 :Wll 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 pIateau 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 theEuropean
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 physicaIly bounded region.
Itis an wea of broad, rolling plains at a high altitude, 4,000 to 5,000
feet for the most part, covered largely with relatively deep layers of sand,
not heavy sand, not a lightsand, but usually with a good admixture of
other materials whjch makes itfairly arater-retentive. It holiarterfairIy
weil and consequently it is not an arid regionas it rnight be were it sand
like the sand dunes of the coastal area. It receives a moderate amount of
precipitation, between 15 and 20 inches of rainfall in an ordinary year.
This, however, falls entirelyin thesummer whichleaves a long, dry period
in the winter. As in al1of these areas, this poses a rather major problem
because thcre is invariably a shortage of water ducing that winter period
and, at the same tirne, a shortage of feed for the anirnals. In a pastoral
economy this rneans a great concentration of the animals about the {vater
holes during this particular period.
Tt also suffers, as dthe other more southerly areas, from protracted
droughts of more than a winter's Iength. During the past decade there
have been approxirnately seven years of extraordinary drought. Some
areas have received no rain whatever for as niuch as two years. This
causes, of course, a grave depletionin the grazing possibilities of the area,
and is a very serious matter as far as domestic water supplies as well as
the water supplies foranimals are concerned.
The area is one that has several points of mineral development. 111the
northern part of the area there are reserves of copper, lead, vanadium
and germanium. These minerals are mined at several different places,
particularly at the town of Tsurneb. The area has consequently a modest
physical resource base.
Mr. MULLER: Can you tell us something about the agricultural and
pastoral activities in thearea?
Prof.LOGAN ; es, this is an area which again, like the other areas we
have discussed so far, has no possibilities of irrigation agriculture.The
soi1would be suitable, but theris no water anywhere available.However,
the northern portion of this area gets just enough sumrner rain so that it
1sposslble to carry on agriculture in the open field, that is, without irri-
gation but still agriculture. Themajor crops are maize, which in southern
Africa is called mealies,or in America called corn, and these are grown
with moderate success. Bp that I mean tllat probably the crop failures WITNESSES AND EXPERTS 357
over a number of years would average about one year out of two, or
perhaps as much as 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 largelya 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. So itis 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 W :hat are the population groups occupying this particular
region ?
Prof. LOGANU : ndoubtedly originally there were Namas and Damaras
and Bushmen here. This is a known rnatter of record from the tribal
traditions of the various groups. However, at the time of first White
contact in the area iturasoccupied 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 -*as
occupied by the Herero. Now, the Herero are, or 1 should Say were, a
nomadic cattle people. They did not raise crops. Thcy depended entirely
upon their herds. Furthermore, it is interesting that they were not meat
eaters to any extent, they used their animals,theirherds,instead entirely
for their milk and lived almost entirely offthe 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 rnoved about over the area without having any fixed
ownership patterns. As a matter of fact, it is often said thaif you can
find the track,the spoor, ofa Herero animal in the area, then that areais
part of the Herero land, because they considered that iftheir herds had
ever passed over it then it belonged to them. The Herero lived usually
for a year, or even severayears, in one spot, building rather crude houses
at that place,but then, after a year, or several years, would usuaily
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
Whites appeared in the area. They had with them considerable numbers
of Darnaras, whom they had taken over as servants from the Nama ai
the time the Nama had left the area; the Damara attached themselves
as thoroughly and as loyally to the 1-Ierero as they had earlier to the
Nama. These were the population groups that were in the area origi-
naIly.
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 isa mixed Hercro-
Damara Reserve, and the Reserve Okambahe, whicli is the only Damara
Reserve, reserved completely for these formerly subservient peoples.
Mr. MULLER: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 misnarned a
desert. Yoii 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 bjr vegetation, but in some
places there are lines of sand dunes across it. This added stilI more to the
idea of it being a desert.
When one comes 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 overzo inches
of precipitation; and thisrneans that it isa sub-humid or at least semi-
arid region instead of one tvhich is subjected to real scarcity of water.
When rain falls upon the area it soaks into the soi1 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 buçhes 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, Iiving by direct hunting
and gathering, with no preservation or storage of food, and in this area
they found conçiderable herds of game which they could hunt-game of
al1 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, rneaning 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 lack of water rather precluded the invasion of the Herero success-
fully into the area, and so itwas 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 Eushman country. But in sorne cases
the Herero were able to penetrate wellwithin it, particularly in the central
portion where there is less sand and more open, hard ground, and in this
areathere is today one Reçerve of the Herero group, the Aminuis Reserve.
AIso 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 wesiward in the northern part
are two more Herero Reserves, Otjituuo and Waterberg. These Reserves
are al1peripheral to the full desert area which lies farther eastward, the
full Kalahari, which islargely in occupance by Bushmen.
Europeans have came into portions of this area, and have developed
their farms, thesame as they have inother areas. This has been predicated
upon the drilling of deep bore-holes to provide a suitable water
S~PP~Y.
ObviousIy the shortage of water would also hinder the Herero in their
various reserved areas, and the Administration Ilas drilled a large number
of bore-holes, invariably some succesçful 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 1s
by far the chie£problem in regard to these peripheral areas in the edges
of the desert. The grazing is rnoderately good-it is the water supply
that is the principaI handicap. WITNESSES AND EXPERTS 359
Mr. MULLER:Would you tellthe Court something about the pastord
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 1 indicated, from place
to place; today they are usually stabiiized with a fixed community,
based usually upon a good water supply. That does not mean they camp
right arounll the water-usually the village is somewhat removed from.
it, but there is water readily svailable withina relatively short distance;
and there they build their villageof quite substantial houses today, and
there they ]ive permanently, on a long-term basis; there is none of the
old migratory movement.
They herd the cattle on foot,uçing small boys ordinarily as the herders.
You see, thereisa divisionof labour in the Hererocomrnunity,ordinarily.
Today they do a considerable amount of farming-raising of maize or
other grain.+such as millet and kaffircorn. The farming is done by the
women, ancl the women also milk the cattle and look after the curding
of the milk and the souring of the milk-to do it properly istheir 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 içsimply no war to be carried on. They ob.r~iously
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, usua.lly, under the trees, talking, in the shade of the treeç, minor
politics,1 presume, although I have not talked with them about their
discussion of politics. They sit under the trees al1 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 willand this is
usually not very far from the water. The result isthat once again, as we
saw in the Nama Reserves, one finds that in the area about the water-
holes the original vegetation is reduced to that of a desert; it is bare
ground, very often beginning to blow with the wind, with veq serious
soi1erosion, due to the over-grazing there. At a distance of several miles
from the tvater, lhen one finds that the vegetation isquite normal, and
a bit beyond that is very often quite lush, because it is never grazed,
except perhaps by wild garne.
The contrast once again between these areas and the European farms
immediately adjacent is very striking. 1 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 1 described yeçterday in the southern Reserves, which 1 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 cont:rol there than on the Reserves where the control is very
weak.
Mr. MULLER : re there still Bushmen mithin that area?360 SOUTH IYEST AFRICA
Prof. LOGAN: Yes, there is, 1 urould 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 Keserves; basically the Bushmen are in the rather unassigned area,
including the Eastern Kative 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
frorn what they were a century or ten centuries ago. They live in very
srnad groups with onlp farnily 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, aii replete with these
"click" sounds that have been discussed before-1 mentioned them
yesterday-and they depend entirely upon the food that is readily
available to them by hunting or by gathering; when 1 Say "readily", I
mean that iç available tothem, because in many times this is very difficult
to come by, especially in drought periods.
There is a very definite attempt and a very interesting attempt,
which fias 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
Ornaheke, or Sand Belt, country. There the Administration has sent in a
Bushmen Cornmissioner and he is attempting to stabilize the Buçhmen
and to change completely their way of life. It iç a very interesting ex-
periment and having very profound results. Where Bushmen groups
seldom today number more than zo or 30 there are, at Tsumkwe some-
where in the vicinity of 800 Bushmen. They have come in there because
there isan adequate water supply provided by several boreholes, drilled
by the Administration, and 50there isan adequate \vater siipplyfor the
area. In addition, the Commissioner 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 firçt time ever, crops; the
crops are millet, groundnuts (or peanuts, as we cal1 them in America)
and a number of different types of melons and things of that sort. Since
the esperiment has only been going on for four years, only in thelasttwo
of which has it been possible to farm on any large scale, the results oit
are, of course, sornething that one can only guess, but at the moment
there is this interesting development taking place.
Mr. >~uLI.~:R:Would you next deal with the çixth region, that is the
Kaokoveld?
Prof.LOGAN:The I<aokoveld is one of the most remote, and by far
the most primitive, regions in the whole of South West Africa. It is a
rcgion in the extreme ~iortliwestern part of the Territory.It is rugged;
mountainous country; it has most of its land in slope; it has very little
flat, arable land. Its rainfall, howeverisnot as 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.
Thearea is covered with scattered brush; the brush ranges from rather
open brush in the west, to quite heavy bmsh 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 feu.waterholes within the area.
It has, as faas is known, practically no rnineral development, and it WITNESSES AND EXPERTS 36x
has relatively poor soils over most of the hill areas and this reduces its
potentialas far as arability is concerned.
The peoples within the area are the most primitive, very iikely, that
one will find in South West ilfrica, short of the Bushrnen cominunities
themselves. They consist of two basic types; some Namas in the southern
part-Namas who are a splinter-group from the main Nama tribe-and,
secondly, a group of Hereros. Now the Hereros are a set of splinter-groups
ofHererosleft behind when the main Herero migrations took place over
the Iast couple of centurieAs the Hereros came southwards out of Ango-
la they found the Ovarnbo 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
various 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 al1 of South West Africa, dress in the mid-Victorian style
of clothing firstseen on the German missionary wives who came into
the area in the 1880s and 1890s. These people still retain their old tribal
customs cornpletely, they have not altered in any way.
Now there is more than one group here of Herero. There are the ones
who consider themselves proper 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 stili 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 rnost of them have
rights toa number of waterholes and migrate, nomadically, between them.
There is stila great deal of Nomadism in this particular area.
Mr. MULLER: What is donc for the development of the area today?
Prof. LOGAP ;:S I said earlier, this is the most primitive alid most
remote area. in South West Africa-remote because of thc difficulties
of transport.Despite this, there hasbeen a considerable development of
the area asfar as possible, considering the groups being worked with and
considering the nature of the country-the terrain particularly-dong
a number of lines.
For example, the area has suffered, over along period of time, from a
number of cattle diseases, which are today being combated by innocula-
tions. Rfany of these diseases are highly communicable (Jung sickness,
for example, one ofthe common ones with cattle in the area) and there-
fore it is necessary to inoculate al1 the cattle wjthin the area more or
less simultaneously, and this becornes a difficult thing when you realize
that these are nomadic peoples-you do not know where the cattle
are at any tirne(it is not Iike a Dutch farm where you kiiow that the
cattle willLitbrought 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 strong362 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-theyhave a verystrong feeling
for their cattle-and to introduce outside animals (bulls of some other
strain) into the cattle of their particulaownership 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 faras the people are concerned, venereal diseasehas 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 large number of boreholes have been put down, 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 H:OWdoes the potential of this area compare with those
areas in the south that you have already described?
Prof. LOGAN:Well, 1 think you can make a cornparison 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 themap here as Khomas
Highlands-is very similar, almost identical, as far as the terrain is
concerned, as far the physicalresources al1the way through are concerned.
The Khomas area had, originally, 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 ha had a succession of
ownership of farms, in many cases, but al1 in the European grouping,
hashad a large expenditure of effort on it to improve it. This is individual
effort on thepart of the individual farmers. The result is that todayit1s
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 1 am quite sure
that the Kaokoveld would today be as productive and as prosperous as
the Khomas Hochland. Hourever, being remoie, itwas not so developed
in the early days and the expenditureç 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 begün to be successful in the area. And there.is,
of course, the endless problem of, for example, combating the objection
to cattle irnprovement through cattle breeding which holds theareaback
considerably, the splittinof the Native groups, the cultural inertia that
develops in the area where primitive groups are concerned, these very
seriously handicap such development.
Mr. MULLER: Would you next deal with the seventh area, the area
termed by you "the far north"?
Prof. LOGAN : he far northern, and with tliis the north-eastem part WITNESSES AND EXPERTS 363
of the Territory is a rather sizeable block. Appended to it is the very
curious Caprivi Zipfel, or Caprivi Stnp, 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, flat, plain-monotonously flat-in the northern por-
tion excellent soils, in the southern portion cursed by toomuch salinity
in theareaabout Etosha Pan so thatit 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 rainfali increases
eastwards, so that by the time one gets to the break in the northern
boundary line of the country (between the straight line running on the
parallel and the curved Iine running along the Okavango &ver) the
pRuntu eastward. This is summer rainfall with, again, a winter drought,om
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 not as excessiveor as prolonged as the others.
The area has an open bush vegetation in the west, a tborn 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 atabout the seventeenth meridian, al1the wayeastwards across the
whole of the Caprivi. Some of these areas within this forested region
have fine tall trees with good timber available in thern.
Now with this good soi1that 1spoke of earlier, especiaily in Ovambo-
land, and good also extending along the whole Iength of the Okavango
River where it makes the border with Angola, one finds that with this
good soi1and with this fairIy reliable and fairly plentiful precipitation, it
is possible here to carry on a high grade typc 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. There are no imites in the area
at al1 other than a few administrators, health officers, mission people,
traders and so on. The area is a strictly Native area carrying on stnctly
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 arereaIly supplementary to the agricultural development , because
this isan area of the raising of quite intensive and quite highly productive
crops, of millet (inahonga) and of kaffircorn. Both of these are small
grains and are nutritious and very much used from this portion of Africa
al1 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 yearç in which it is not, there is no reliance whatever upon irrigation
anywhere in the area. Even in the Okavango area in which the Okavango
River Aowseven in drought years, a large river on the surface flowing
very frequentlp right alongside of the fields which are dying of drought,364 SOUTH WEST AFKICA
there is no carrying of water at al1 from the cine 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 deveiop within the area,
but this is only beginning, and traditionaily this is a purely subsistence
type of agriculture or economy.
Mr. MULLE RCan you tell us very briefly about the population groups
occupying the area?
Prof. LOGAN:Yes, the groups are basically Bantu; that is, the ta11
Negroid groups similar to the Herero. In thiscase the group basically,
in the western part, is Ovambo. h'ow this israther 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 throngh their ciiIture al1 the way. The eaçtern part,
along the Okavango, consiçts of five different Okavango groups, but
there again, there iç a close affinity among them. They are very similar
to one another andthey 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 buts within them; each one represents usually not much more
than an extended family. Large towns arenon-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 down on a patchwork quilt of
fields, punctuated al1the way through with the round circles of the kraals
in which the people live. The cattleare brought rightintothe kraal and
live ina 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 Bushrnen and the Bantu, in dl ways, in-
cluding the type of area in uphich they live. The easily cultivable, fertile
areas are strictly Ovambo. The Bushmen live in the areas which aremore
like that of the Kalahari, which we were discussing a few moments ago,
which border this area, in the big forest areas, and soon, where sand 1s
more dominant than the good soi1of Ovarnboland or dong the Okavango.
That is, theyare in the areas that are not sa capable of high productivity.
The Bantu look down upon the Bushmen, there is no close relation-
ship between them. Very frequently a Bushrnan will visit an Ovambo
or an Okavango kraal temporarily, for trading purposes, or sornething
of thissort, but there is something of an armed truce between them very
frequently, the Bushmen beii-iglooked upon as very inferior beings. If
Bushmen becorne attached to a kraal, as they do sometimes in the
Okavango, they live separately from the Okavango, from the Bantu
people. They arenotbroughtin to live directly ~vithinthe kraal as though
they were a portion ofthe family. They are consicleredandkept separately.
The population density is quite great in the centre of Ovamboland and
along the Okavango. It is by far, excluding tlie city of Windhoek, the
most densely populated area in the whole of SouthWest.The population
density is a very curious one.It runs very dense right upto the lirnit of
the area, and then suddenly breaks abruptly arid the area chan es to one
of almost uninhabited countryside. This takes place becauseO Bdifferent WITSESSES AND EXPERTS 3"5
things, southward because of the çalinity of the soil, westward because
they come into a drier area, castward because they corne againçt the forest
region in kvhich there is not much surface water, the forest country being
developed on sand.There isapresent pioneering movement into this eastern
forest country, which is very clearly visible eithon the ground or flying
over the area, as you travel across it.
Northward, the population dcnsity drops very abruptly, ai the purely
artificial Angola border. This is a curious situation; when you fly over
the area, the area south ofthe border is very cleariydenscly 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. Thiç
appears to be due to a drift southward ofAngolan Ovambos (the Ovambo
tribe is spIit by this purely artificial boundary) for, 1 think, two basic
reaçons: firçtly 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, becauçe there are very great advantages accruing to tliem from
the health services, frorn the water supply augmentation and so on,
provided by South West Africa, in contrast to the lesser development
of that kind in this extremcly peripheral area of Angola. And so there
seems to be a drift southwards into South West Africa, leaving this less
densely popi~lated arcn immediately north of the border.
The population density, as I indicated, is fairly high.It isbeginning
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 lancl within the foreçt, and eventually the family
moves to this cattle camp and lives there permanently. But al1 of this
is predicated upon the establishment ofa water resource and the Ovambo
themselves are not capable of doing thiç because the water is at some
depth. Consequently the Administration is boring water-holes tlirough-
out this eastern area, to aid iiithis movement eastward in the new
pioneering 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 done in sornc areas, as1 will mention a bit later on.
Finally, tlie other Ineanç of escape is to shift from a subsistence
agriculture 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.
Consequently, urider the South N'est Africa Native Labour Association,
large numbers of them move frorn Ovamboland to other parts of the
Territory, under temporary work contracts. Now 1 say thcse are tem-
porary, becausc they arc lirnited to a year, 18 months or two years,
depending on the situation. They go out and work during that period and366 SOUTH WEST AFRICA
return home again. When 1 Say "they" 1 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
subçistence economy. The men go outçide and workascash workerç,
return with cash which canthen 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 cut them off would cut off al1cash coming into the area and
would set them back very sharply.
The same istrue with the Okavango people but on a more lirnited
basis because the Okavango area is notas densely populated as Ovambo-
land.
So the area today is one of relatively priniitive peoples in a great
many ways but at a much higher level than the areas of the Kaokoveld
or the areas of theBushmen, that we were speaking about earlier; these
peoples are beginning to merge into a cash econorny of today out of the
completely subsistence economy of the past.
Mr. MULLER: Are any attempts made in the areas of Ovarnboland 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 casheconomy but to stabilize their existing economy.
The principal problem here, as everywhere else in South West Africa
practically, is the shortage of water and in ordcr, first of all, to get 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 started1do not know exactly when, long before
1 came into the area,1wouid estirnate about 1950.This was the construc-
tion in the area of very large and numerous reservoirs. These reservoirs
are of a very unique nature, unlike anythin that exists,I think, any-
where else in the world. You see, mortal1of 8vnmboland is underlaid at
a shallow depth, ranging from perhaps as littleas8 feet to as much as
25 feet, by a layer of salt water. This salt water is the residue of water
that has come into the area annually, especially in the annual floods
from the north, from Angola, when a sheet of water comes down across
nearly al1 of Ovamboland, so that nearly al1of the country is virtually
inundated. It traveIs in very broad, very shallow, channels, but then,
during the ensuing winter, it evaporates and the salts, which have been
picked up over al1the ground it has traveiled over, are concentrated in
this water and this water sinks and then lies at a shallow depth below
the surface.
Next year more water comes in the same way and this keeps a shaliow
zone of fresh water available at the surface but if you dig vedeep you
come into salt water, ConsequentIy an ordinary well cannot be put
down, by digging in the ordinary way, to aiiy depth in Ovamboland
without encountering salt water.
Now, in order to overcome this, the Administration began constructing
these curious reservoirs which consist oa series of channels leading into
a sort of sump, and then,in the centre of the sump, a reservoir raised up WITNESSES AND EXPERTS 367
above the surrouiiding 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, va terwhich has accumulated in the sump, is pumped in
over the top and so it is filled up and the reservoir sitç 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 IOO yards up to, some of them, one-quarter
of a mile and even greater, in diameter, have been constructed. This gives
a domestic .w-ater supply and a livestock water supply throughout the
winter periotl.
More rect:ntly 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. Theintake for
it will actually be in Angola and a series of canals, measuring several
hundred miles in length in alih ,ave been constructed (some are still in
process of construction, some are in operation already) from Angola,
frornthe Kunene, down intothis area to give a much larger water supply.
This water supply will not only augment the existing reservoirs but
wiIl actually allow some water to be used for irrigation purposes, to very
greatly stabilize the agriculture.
So the pastoral and the a@cultural, both, are being augrnented by
this water situation.
There are afso sorne bore holes which have been put in. These penetrate
of course right through the Salt 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 al1 of South West Africa during the period
1959-196 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,
1 found totxlly in~possible to reach by automobile, is now reached over
quite good roads due to this famine relief measureMore of this is goinon
in connection with the construction of the canalç 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.LOGANY : es,we can divide the Territory of South West Africa
quite clearlqr, 1 think, on thbasis of what 1 have been saying here, into
two contrasting regions. Now the line between them is not a sharp one,
itis rather a broad transitional zone.
\Ve 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 art: quite limited. The sole big resource is that of the diamonds
aIong the octreme southern coaçt. The area, othenvise, is Iacking in most
mineral resources. Itis lacking in good, reliable precipitation. Itha a
relatively poor vegetation. That anything has been done with it, 1
think, is mcist 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, tothe people who have developed them in the last 70 years
or SO.368 SOUTH WEST AFRICA
The area is partly under White control, partly in Native Reçerves.
The larger portion of it is under Whitecontrol but thisisthe 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 allolv field crops to be grown successfully in
almost every year, perhaps g years out of ro. Here is the greatest area,
then, for agriculture. It is also the area of the greatest populatiocon-
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 ingeographical 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 farrns 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, 1 want to sçk you a fetv questions
relative to the inhabitants of South West Africa; would you Say that the
population ofthe territory is a homogeneous one?
Prof.LOGAN : 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 : hat arethe material differencesbetween these popula-
tion groups that you have mentioned, leaving aside for the moment the
European group?
Prof. LOGAN Just discusçing the non-European or perhaps limiting
it purely to the Native group, and leaving out the Coloured group in .
between, there are great ethnic differences. Their basic cultures, their
religions, their traditionstheir mores are very markedly differcnt from
one another. Linguistically they are completely different from one
another. There are two basically completely different lanpages within
the area: the Khoisan language of the southern portion (the 1 ama,
Damara and Bushmen language) is basically different in a11of 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 1 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 cannotunderstand 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 oneanother within thi:ir ownlanguage patterns. WITNESSES AND EXPERTS 369
As far as the customs and mores are concerned, we have tremendous
differences in the area. Just to take two totaiiy different quite exceptional
examples, consider the contrast between the Herero and the Bushmen.
The Herero are a cattle people and ail of their tribal latv 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 al1the way through everything in their lifThe 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, foLlowingthe same pattern, the men, as 1 indicated before,
are, so to speak, "unemployed warriors". The urhole pattcrn of the cus-
toms and traditions and mores of the tribe is based on the cattle situa-
tion.
By contrast, the Bushmen have no domesticated anirnals. As a matter
of fact most Bushmen bands have not even adog, some Bushmen groups
are today acquiring dogs, but this is only when they come to have a
sufficiently stable situationso they can feed a dog during times when
conditions are very bad, and so they have no donnesticatecl animals
and consequentlÿ they set up a completely different set of patterns, of
customs and so on.
As far as their social conditions and their political organizati(1am
not talking about politics, but 1rnean the framework of their structure
of theirtriljeor whatever it happens to be) are concerned, the Bushmen
stop at the clan, they do not go up into higher levels of tribat 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 Ovarnbo-taking another example-have an
extremely strong tribal relationship, with al1 sorts of hierarchies of
individuals and political positions within the group, with tens of thou-
sands of members within any one of the inclividunl tribal units. And
so therc aregreat differences here, as far as the ethnicç of the groups are
concerned, as far as the culture basically of the groups is concerned.
Mr. MULI.ER A:re these groups similar in their stages of technological
development ?
Prof. LOGAN : O, 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 ivhich have been obtained in trade wjth some surroundjng
group, or today perhaps have been cut 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 niaterials. nothing in the way of metals or anything of that
nature. In other words, they are still in a sense in the Stone-Age-ifyou
can use that terminology, because rnost of them live in an area where
there is very little stone-but they are stillinthis 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 dong, 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 alowith usuaily
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; rnany
of them are today selling crearn from their cattle herdç, and in return
are getting regular cash incomes. They have always been at a consider-
ably different technoiogical levefrom the Bushmen, they have had fixed
houses, fixed villages and have been quite definitely a stabilized group;
their fixed village rnaybe being only permanent for a year or two, but
still with houses and so on; a quite different technological developsnent
from the other group.
Mr. MULLER :rofessor Logan, are the economicbases of the different
groups whom you have mentioned in South West Africa simiiar?
Prof.Lo~~x: No. Once again therearegreatcontrastsbetweenthevarious
groups. 1 have already nientioned considerable discussionhere about the
Bushmen living at a subsistence level, an elemental level, with no cash,
practically no trade, practically not 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 movernents 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 numbeofboth Ovarnbos and Hereros
who have begun torun businesses forthernselves.By this 1mean busi-
nesses in the European sense of the term. Tliey have becorne engaged
in trade and are working as traders, both in the Reserves, in the locations
or townships for Natives within the Police Zone, and inthe Native terri-
tories of the north. Many of them, on the Reserves where they have
large herdç of cattle,sel1 crearnand the live anirnals for meat and the
hides of animals and so they get a cash incorne in that way. Sometimes
this gets quite considerable. For exarnple1was 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 (1 would Say
approximately 40 to 50) of European bidders, bidding for the anirnals,
and in the two days of the sale, 60,000Rand, that would be £30,000, of
sales were made. This represents a considerable amount of cash coming
on to a Reserve from outside.
There is a considerâble range of development in variousways possible
among these different groups and yet the differences between the dif-
ferent ones make different types of development: possibleand likely. But
today there certainly is a very markedly contrasting economic base
between the different groups.
Mr. NULLER: 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 economicdevelopment and administra-
tion? WITNESSES AND EXPERTS 37I
Prof.LOGAN A:S 1 just indicated herea moment ago, there are such
profound differences between the groups today that it iç 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 ail,I think, that there is a profound dif-
ference between the European and the non-European. Then, in esactiy
the same way, within the non-European group thcre 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 particuiar group, rather than to try to
spread one type of blanket development over al1of the groups.
1 think one has to differentiate between a situation in South West
Africa and that in some of the other areas of the world and the way
in which we often look at things.I am an Arnerican and 1 am somewhat
familiar with the situation in some parts of Amenca, and the difference
between the Negro and the M7hitein the United States is not nearly the
same situal:ion as that which exists in South West Africa. 1 grew up in
a quite toIerant, non-segregated, part of the United States ; 1 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 isthat of a completely mixed society. But
this mixed society has the sarne basic cultural pattern.There are minor
differences in the cultural pattern, but not profound ones. There are
great similxities in the economic base, there is no linguistic problern.
The Negro and the Amcrican speak the same English in America-siight
differences in dialect, but basically the same thing-we are certainly
able to cornmunicate with one another. The differences in the United
States have corne to be based, pretty largely, on the matter of colour,
not on al1 sorts of customs %cl 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 different economic
system does not exist for the Negro that exists for the White in America,
the two are very comparable.
But in South M'est Africn it goes very much deeper. There is a total
culture difference. Al1 aspects of the culture are different. So it is not
just a matter that one group is one skin colour and one group is another
skin colour, there isinstead a very great difference in the economy;
there is a difierence in the basic philosophies of the different groups;
there is a linguistic difference ço great that they are unable to com-
municate with one another; each has its own mores, cach has if-own
religions; eachhas its own basic traditions, and so the differenc1s very
great.
Mr. MULLER :o the various groups in South IVest Africa identify
themselves as separate groups?
Prof. LOGAN: Yes, they diçtinctly identify themselves as separate
groups. They not only identify themselves asseparate groups but they *
want to be treated separately in most cases. They do not mis together to
any great extent.
This is evident in al1sorts of ways and at al1sorts of levels. YOUlook
on the street: you will not sec a mixed group of Hereroç, Damaras and WITNESSES AND EXPERTS 373
peaceful CO-existence.Previous to that, through al1of history, there has
been nothing but antagonism between the various groups.
This permits each group to have an cqual opportunity, but a different
kind of opportunity-an opportunity tailored to his own particular needs
and his own particular desires.
To permit totally equaI opportunity for al1 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 ~night be cornpetition 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
opportunit)* would mean that the White man would be allowed to corne
into the area; if he came into the area inan uncontrolled way (there are
traders in the northern area today, but they are verjr 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). h'owif thiç was thrown open to equal
opportunity, al1sorts of avaricious entrepreneurs wouId move into the
area, and in a short time the existing çystern would be a shambles, and
the Native traders, who are today able to compete quite well with the
permitted Whitetradersin the area, would be totally outofbusiness.
This would also work out in various other lvays: for exaniple, ifin al1
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 ofKatives in the area would dominate the others; this would be
either the rather outspoken. aggressive, fonvard Hereros orthe much more
numerous Ovambos. If things mere done on avoting basis, obviously the
Ovambo would outvote the Herero many times. If, on the other hand, it
was done in a business way, or something of this sort, the much more
opportunistic Hereros would probably dotninate the Ovambo.
But the i:ven worse thing to consider is what would happen to the
Bushmen, to the Damara and ta 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 ail ways by the other tribal group~.
Consequently it comes to be a rnatter of applying controb over the whole
situation and allowing opportunity as far as possible, but not developing
things in tht:arne way for al1of the tribalgroups.
&Ir. MULLER D:o you considcr that rneasures 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 iirst of these, 1think, are protectlve
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 qiiite nice picture
before the tea recess of the northern part of the Territory.
Thereare a greatmany White farmerç on rather drought-stricken fams
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 arcs 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 eiicouraged today by the Administration,
but not for Whites, being encouraged instead for the Natives to cw on
irrigation agriculture. There is scheme, at the present tirne, at Vungu-374 SOUTH WEST AFRICA
Vungu, near Runtu, where a srnail 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.Were controls to be pulled
off, we wouid find that, instead, we mould have some European irriga-
tionists in the area very quickly.
The same is trueof Ovamboland. Much of Ovarnboland is very fine
agricultural land. If it were not under control, certainly many iVhites
would move intothe area and take it over.
A second thing, 1think, that has to be controlled and protected, isa
thing 1have mentioned already, the rnatter 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 stagesithas onIy
been a thing of the laçt 15 years or ço,in moçtcases. Given another 15
years, we ought to have a rather considerable merchant class, 1 think,
started, within the Ovambo particularly, and to a very considerable ex-
tent, among the Herero. To remove controIs of this sort would leave this
wide open for others to move in and destroy this thing that is beginning.
It is necessary,1 think, to control population movements within the
area. You see, to many of these people, the city becomes the sarne goal
that it has throughout the Western world. We have had everjwhere
throughout the Western world the abandonment of agricultural areas and
the influx into cities,ecause of the many attractions of cities. We have
seen this in England and in iestem Europe, 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.
Allof this causes a very serious problem-a verp serious problem from
two sides-a serious problem from the side of the city itself,~vhichis
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 all, it mustbe realized that he isprobably
an untrained person, coming from a rural area into a quite complex and
intricate urban situation. He is not skilled and, therefore, he cm only do
unskilled labour until he is trained, and if there are a great number of
such people, then they corne to create a terrible problem of unemploy-
ment 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 time, there is the attempt to make the Reserves more
attractive to them, the Native territories more attractive to them, by
introdricing therein a better way of life, and that is the basic attempt
being carried out atthe present time.
FinaIly,1 think that the really, perhaps most important, of all ofthese,
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
lifeis absolutely ideal (we seem to ha\-e a few flaws in it from time to
tirne) and perhaps some of the Native institutions are as gaod as ours. WITNESSES APiD EXPERTS 375
1 do not think there is any crying need to abolish these totally, and to
superimpose upon a group of people atotally different way of hfe. There
is a lotof dignity, tliere is a loof common sense, there is a lotof self-
respect, there 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 vcry well bring about a rather chaotic
situation, a deculturized society. We have seen this in many ares. We
have seen it whcre groups have flocked into cities,for example. Weseeit
where we attempt to force, for exampie, an American or European way
of life upon the American Indian. It oftcn has resulted in a personality
disintegration, in socialdisintegration, alcoholism, things of this sort.
Nowperhaps the better thing to do is 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
give them better food, to give them health services, to educatethem, butto
to educate tllem still rvithin the franiework oftheir old traditional soc;ety
and the modern ideas can corne in gradually, but not be suddenly forced
upon them. 1 emphasize, perhaps most importantly, "forced upon them",
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 rnatter of aiiowing
to develop the inrlividual group within itself, rather than to force a dif-
ferent type ofculture upon al1ofthe individual groups.
Afr.MULLER: Onefinal question, Professor Logan. mat, in your opin-
ion, would happen if these measures of protection and control that you
have referred to, wereto be done away \\rith,in South IVestAfrica?
Prof. LOGAN :Well, 1 think probably what 1have said during the past
few minutes ha somewhat leclup to this: that to remove the controls
would result in the doniination of many by a few, would perhaps result
in the subjiigation or almost the obliteration, of some of the existing
tribal groups, it would result, 1 think in many cases, in a reversion to an
old way of life and that was a way of violent antagonism and frequently
ofwarfare.
The economy, as it has been developed, both on the European basis,
and on the Native basis, would, to a large extent, fa11ripart. In other
words, what 1would visualize myself, if al1controls were to bc abolished
in the area and aHdifferentiation betwcen groups ignored, 1am afraid a
rather chaoticsituation would develop.
>Ir. MULLER M:r. President. 1have no Iurther questions to put tothe
witness.
The PRESIDENTM : r.Gross,would you wish to cross-examine?
Mr.G~oss: Yes, 1 would, Mr. President. 1 shall endeavour to do so
with respcct. for the time requirernents. There may be some dificulties
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 no\ir,with your permission, Mr.President.
Profcssor Logan, in your testimony yesterday, you defined geography,
1 believe, asthe relationship between man and the land. 1s that not
correct?
Prof. LOGAN : Yes, that it iscorrect,
batim ofyesterday, whichaid1shall1...fer to page 337, srrpra,of the ver-376 SOUTH WEST AFRICA
Prof. LOGAN1 : donot have the verbatim.
MY. G~oss: 1 will quote to you, and 1 \vilcite thepage in each case.
Mr. President,ifthe witness Jvishesto have a copy of the verbati...
The PRESIDET 1Ut'in:k the witness may leave himself in the hands of
both the Court and ofcounselwhohave examined him.
hlr. G~ass: Thank you, sir. Inthe verbatim ofyesterday (which I shdi
refer to from time to tirne)-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 parenthetical1y)-1 stop quoting now-
in respect, 1think, ofyour analysis ofwhatwas involvedin thestudy and
considerations germane to the field ofgeography in general and in partic-
ular,your own analysis ofthe localsituation. Is that correct?
Prof. LOGAN :Yes,that iscorrect.
Mr. GROSS:YOUsaid that you were "also interestcd in the economic
phases becausethe whole basis ofeconomy is an integral part of the study
of the geography of an area". 1remind you that youhave said that; that
iscorrect to your recollection, isit, sir?
Prof. LOGAN :Yes, that iscorrect.
&Ir.GROSS:And you said also, on the same page: "The geographer
focuses upon the land ... the anthropologist in man. In each case we
are anintegrated discipline, in that we draw upon al1of the surrounding
fieldsfoa great part oour knowledge ..."
Prof. LOGAN :1 thinkthat should read "integrative".
Mr.GROSS :Integrative discipline.
Prof. LOGAN :Yes, weare drawing upon other fields.
Mr.GROSS:SOthat 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 econornic phasofthe
situation in the various parts ofSouth West Africa that you studied?
Prof. LOGAN :Yes, to the best ofmy abiiities.
Mr. GROSS A:nd that this included the southern sector-what you refer
to asthe Police Zone-as well asthe other areas?
Mr. GROSSAN :ndsparticularlyjn respect of thesouthern sector or Police
Zone, that included also the areas outside of the Reserves in that sector,
did it not?
Prof. LOGA NDefinitely.
Mr. GROSSA :nd you said dso, 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 iscorrect, isit not?
Prof.LOGAN : Yes,that is correct.
Mr.GROSSA :nd 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 :es, wellthere would not befarms anywhere else.
Mi. GROSS :here would not be White farmsanywhere else?
Prof. LOGAX :That iscorrect, yes.
hlr.G~oss: There are farmsin the Reserves, are there?
Prof. LOGANW : eU,it depends what one cal1sa farm. In South West
African terminology, a farrn is an area of land that is allotted to a partic-
ular European individual, açfaras 1know, always aEuropean individual,
and that thishas certain prescribed boundariessurrounding it, and is hls
own persona1 development. In contrast to this, on a Keserve, the land 1s WITNESSES AND EXPERTS 377
allocated to the tribe ora portion of the tribal unit, and then is admin-
istered bythe tribal group, a Reserve Council ordinarily handles it. Then
within this, there arnot any prescribed boundaries allocated to an indi-
vidual tribesman, instead they grazeby agreement with one another, and
so this would not be a farm, in our ordinary western sense of the term,
1think.
Mr.G~oss: Thank you. If I understood you correctly, in the southern
sector of the PoliceZone 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 approximately how many 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. GROS: That would be my understanding as well, approximately.
Prof. LOGAN: 1do not have a good mind for figures and 1would not
be able to quote right here the population, but it would be something
of that sort.
Mr. GROÇS: Yes, 1think the record demonstrates that; 1 just wanted
to establish it in this conte1tdo not want to hold you to exact numbers.
Prof. LOGAN: Not al1of these would be farmers, because there will be
the towns-people, but the point 1 was in a sense making, is that there
are virtuallyno IYhites living on the Reserves or in the northern terri-
tories, aside from a smûll administrative personnel.
hir. G~oss: There are approximately 70,000 or so persons classified
as Whites, and how many persons in the same area (fhat is, in the south-
ern sector outside of the Reserves) are classified as non-Whites-can
you tell the Court?
Prof. LOGAN: Again 1 cannot quote the figure-I 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 fortlhcoming questions 1 wanted to have these approximations
in the record ai this point. Going back to your testimony to eçtablish
the ambit of your study and analysis, and therefore perhaps your con-
clusions, you said that you "do not mean to excIude politics from cul-
ture". 1think you said that on page343, sufiyaof the transcript of yester-
day. ShalI 1.read the entire sentence to you or do you recall what you
said in that respect?
Prof. LOGAN: I think 1 recall what 1 said: the implication 1 meant
was that wt: study in geography most aspects of the culture of a group,
and then yon asked me specifically about politics, about the political
situation, and 1 said that this was notin my field, and that while1 do
not exclude politics from culture, 1 do not here study politics particu-
larly.
hlr.Gnoss: 1 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. 1 then asked you,
sir, the following questionatpage 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:
"1 have not held any political discussions to any extent with
anyone; Iam not interested particularly in politicsfierse, and con-
sequently I am not an authority on the politics of the Territory,
and have not really been seriously interested thereinAs faras the
economic aspect iç concerned, yes. As far as the cultural aspect-
by this 1 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 1 have talked with and observed the various culture
groupç within the area quite intimately. This means having talked
with at close range, over considerable periods of time, Natives as
weli as Europeans."
That isthe fuii context, Mr. President.
Prof.LOGAN :would stand by that, if there is any question.
Mr. GROSS:It is just that 1wanted to fix that in your mind, so that
you should have the full context. AIso, in respect of the question 1asked
you, at page 343 and 1 \vil1read it to you:
"And did you, Professor Logan, regard that it was a part of your
siudy and analysis, from any technical or scientific point of view,
toconsider the questions involved in limitation of rights or freedoms
of individualç, or any aspect of the relationçhip between man and
societyon a political or individual baçiç?"
And your answer according to the transcript on page 343, "as: "Weil,
as 1 just said, I am not interested in the political aspects,and I have
not gone into that." And then 1think it is a fair paraphrase of the reçt
of the paragraph that yoü 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,1 mil1
read this:
".. .quite aware, however, of the rightsand privilegeç andthe limi-
tations thereon, as anyone living in and observing critically and
carefully asa society ordinarily is, and consequently 1 thrnk 1 can
talk with a fair degree of certainty in regard thow much freedom
or lack thereof there ison the part of the Native group in South
West Africa".
That isat page 343, sup~a, of the transcript.Do you recall, sir, that
that is substantially correct?
Prof. LOGAN : Yes that is correct.
Mr. GROSS1 : 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 to rny question. According to the transcript on
page 344, you said that economic and sociological-meaning 1think, in-
terests-"begin[s] to get more into my realm". 'Thisiç, for your comment,
quoted-would you explain that please, sir? tVITNESSES AED EXPERTS 379
Prof. LOGAN: 1 think you had bctter #ive me the sentence before.
Mr. G~oss: 1 would be very glad to, sir.1 asked you for clarification,
and I think that I had better start here, following the quote1 just read
into the record with regard to your answer to my question about "an-
alysis or coi-isiderations of questions involved and limitation of rights or
freedoms". You then gave the answer which 1 read a moment ago. Then
1 said:
"And would your observations and opinions on that subject re-
flectscientific otechnical ohsen~ations or analysis?"
And you replied at page 343, supra :
"No, they wouId not reflect scientific or technical analysjç. They
would be that of a person who has lived in the area, who has observed
it carefuily and keenly as a part of obtaining the total background
of the area, but inorder to report scientifically or technicaily upon
it,1 am afraid 1 would have to have a legal background or a poli-
tical science background, and 1 do not have this; 1 would not set
rnyselfup as an expert in those fields."
And then 1 asked you, sir:
"Those fields being the political, economic and sociologicalfields?
I just ask you for clarification, sir."
That was my question-your answer was:
"BO,-1çaid politicil fields and legal fields ; when it cornes to eco-
nomic and sociological fields, this begins to get more intrnyrealm,
and there on at least a number of facets 1 think I cantestify with a
fair degree of certainty and with a fair degree of technical know-
ledge."
It \vas in the context of that response th1tasked you whether you could
perhaps clarify or elucidate for the considcration of tlie benefit of the
Court, the ~neaning of the phrase: "When it cornes to economic and
sociological fields, this begins to get more iiito my realm." Would you
explain that, sir?
Prof. LOGAN : ellI mean, as I had said earlier, 1was not concerned
with and not particularly interested in the political aspects, and then the
question was raised in regard to economic and sociological, and 1 said
that at this pointI begin to be interested; the point being that the rela-
tionship between man and the land, lvhichisthe focus of my particular
field of interest, is not borne upon tao greatly by the legal aspect or
the pof tical aspect, but much more so by the economic and the sociolo-
gical aspect. Furthermore, 1am not traincd.in the first two, in the legal
and the political,1 am trained primarily in the geographical, and in the
geographical we reach out into the fieldsof economics and sociology, not
absorbing al1of those fields by any means, but drawing frorn those fields
such aspects of their brancncof knowledge as are appropriate to the rela-
tionship between man and the land and tlie development of man in the
physical environment.
MR.GROSS: Now 1 would like then, in the context of the dis-
tinctions yoi: have been drawing or seeking to present to the Court,
with respect to such generic tems as "politics", "economics", and
"sociologf"' to ask what relevance those distinctions may convey, or
wIiat you intend to convey bg those distinctions, with respect to the380 SOUTH WEST AFRICA
foliowing statement which you made in response to a question, at page
343, $@rra, of the record, in which you said:
"... 1 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 exciuding-if I may break this down toa series of short ques-
tions, hoping for short answers ifthat 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: 1would say it was freedom to move about, freedom to
carry on one's way of life as already established,freedoms of this sort.
1 would probably exclude basically political freedoms,because again 1
repeat, 1am not an expert on the political aspects an1 would not want
to testify before this Court on the matter of the political freedoms in
South West Africa, because 1have never studied it. 1 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 releasingf controls, or the wiping-
out of controls-phrases of that sort-that by "controls" you do not
refer to legal controIs, or controls of a political nature? 1s that what
you mean?
Prof. LOGAN:NO. 1 think the controls obviouçly have to have a basis
in law and so they would be legal controls and 1 would continue to
include them but don't ask me, please, to cite chapter and verse or to
cite the Statutes, because 1am not aware of the Statutes. 1 have never
studied the matter from the IegaIpoint of view. 1 do not know about
the Mining Law of 1920 something or other. This sort of thing1 am not
aware of. 1am aware of its consequences, 1am aware of it in its general-
ities, but1cannot quote the specifics ofitat al]. That1would leave to a
legaI mind, which mine is not.
Mr. G~oss: And the same thing would apply to the political aspects
as well-a political mind?
Prof.LOGAN : O thepoliticalaspects, as far it is matter of politics.
Now, 1 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 becomea sort
of sociological institution ia sense when we are talking this way. But,
as for the political movements within the country today, the different
political parties withinthe country today, ofthese 1 am not cognizant
toany estent.I wonld not want to testify on them.
Mr. G~oss: 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 wo~ld
feel or concede, is a political being, lives in a political society and has
a politicd relationship to that society?
Prof.LOGAN :es.
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 :ot in allparts of the world at al1times, no. WITNESSES AND EXPERTS 381
Mr. GROSS C:an you think of a society in which no degree of political
freedom or political libertys reposed in the individual?
Prof.LOGAN : think we have had many such societiesin the past,
yes.
Mr. G~oss:We have had slavery in the past, have we not, sir?
Prof. LOGAN : Yes.
Mr. G~oss: 1 am talking about contemporary society. Do you wish to
qualify the answer or did I misunderstand you perhaps?
Prof.LOGAN: Well, no, 1 think in our modern worId today there are
somesocieties in wkich the individual has practicaily no political freedom.
Mr. GROSS C:an you name one?
Prof.Lo~;AN:I don't want to, sir. No,1would prefer not to.
Mr. G~oss: Well, will you withdraw your answer if you do not care
to specify what you had in mind?
The PRESIDENT1 : don't think so, no, hlr. GrosIfthe witness declines
to answer, if he 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-1 just gave the
witness the opportunity, if he wished to exercise it, to withdraw the
answer.
Returning to the statement that you could talk with a fair degree of
certainty in regard to how much freedoni, or lack thereof, there is on
the part of the Native group in South iliest Africa-please ask me to
cIarify the questionifyou 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
witli regard to hou7much freedom, or lack thereof, there is on the part
of the Native group in the southern sector outside of the Reserves?
Prof. LOGAN: 1 don't think 1 have been asked the question by Mr.
Muller as to how much freedom there is,or perhaps 1 misunderstand
your question.
Mr. GROSS : ell,1 can repeat it if you wish me to, sir.
Prof. LOGAN: 1 think you had better, perhaps, yes.
Mr. G~oss: With the Court's permission-can you Say whether or
not, in any of the responses you gave to questions addressed to you
by hlr. 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 Keserves?
Prof. LOGAN:No, 1 do not think 1 was asked that question and 1do
not think Ianswered it. If you wish to ask it I shall be glad to reply
to it.
Mr. GROEST :hank you sir,1 will ask it 1fwish. The answer that you
gave was tliat this question was not within the range or scope of any
of the ansu.ers you gave to Mr. Muller-this question of the rights and
freedoms of Natives in South West -4frica in the southern sector outside
the Reserves-is that correct?
Prof. LOGAPY ;:es, think that iscorrect, but I repeatthat 1 will be
glad to answer the question if it is desired.
The PRESTDENT :OUmust 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 whichI 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 ofgeography382 SOUTH \$'ESTAFRICA
of an areaV-that 1 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 roIe of the Native {the person classified 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 ~vish,in the economy.
Prof. LOGAN: Yes, 1 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 iç distinctlan em-
ployee of the European, or White, farm owner, business man,industrialist,
or householder. The land, as far as the Territory outside the Native
Reserves within the PoIice Zone is concerned, is al1 under European
ownership. The businesses are under European ownership. The Native
is therefore, wherever he is Iiving or working, an empIoyee 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,
normaIl>~,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 isnot 50 employees, it is50 in-
dividuals living on the farm. Of this number, sornewhere 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.
hlr. GROSS:Thank you. Are you finished, sir?
Prof.LOGAX :1sthis sufficient 7
MT. G~oss: Well, 1 willask you ifI 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 tufollow the one1have just asked you
is whether or not, in your study of the economic base (first taking South
West Africa as a whole, and then taking separately the southern sector
outside the Reserves) with respect to South West Africa as a whole, you
mould regard the economic base of the Territory as a whole to be inter-
dependent for its successful functioning?
Prof. LOGANT : he entire Territory to be interdependent? No, 1 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 itsourn. It is not dependent
upon the northern territories as a basic part of its existencThe 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-ifthey were surgicallyremoved, so to speak.
Mr. G~oss: Ifthat area were excised from the Territory, it could sur-
vive and even thrive, according to your judgment?
Prof. LOGAN:Yes, 1think so.
hlr. GROSS:Would 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. LOGANT : hey would be able to thrive in the same sense, yes. They
are basically still subsistence economies. They would suffer greatly from WITNESSES AND EXPERTS 383
the loss of health services, educational serviand thecash income svhich
has enableclthemto raise themselves considerably above the former subsis-
tence level that wasa pure subsistence level. But they could stillexist, yes.
Mr. G~oss: On a subsistence level?
Prof.LOGAN : They would lower their level, but they would still exist.
hlr. G~oss: But wouId there be any prospect or hope of them rising
above a subsistence level under those circumstances?
Prof. LOGAN ;1am afraid it would be very difficult for them.
Mr. GROÇS :LVouldit be possible?
Prof. LOGAN This is without any outside assistance of other sorts? Are
we operating in a vacuum, in other ~vords?
Mr. G~oss: In the same sease that you referred to the possibility of the
southern sector surviving and thnving as a unit-in that same sense, 1
ask whether the areas outside the southern sector could survive and/or
thrive, exct:pt on asubsistence basis?
Prof. LOGAN T:hey would survive and continue to thrive on a subsis-
tence basis. They would progress only with very great slowness and 1~1th
great difficulty and1 doubt very much if there would be virtually any
progress.
Mr. G~oss: Now, specifically, for exarnple, it has been establishId,
think, in the record that approximately some 26,000 Ovambos are re-
cruited for labour in the southern sector.oes your understanding corre-
spond tothat figure, sir, approximateIy?
Prof. Logan: Yes.
Mr.G~oss: Now, is the labour of those persons essential tothe effective
functioning of the "White economy", as it is referred to in the Odendaal
Commission report?
Prof. LOGAN :1don't necessarilyagree with everything in the Odendaal
Commissioii report, and this is perhaps a case in point.
Mr. GROSS M:ay Icorrect 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 tothe description of the "White economy",
not toany of the substanceor policy implications of what it said.
Prof. LOGAN1 : thinkthat the southern White economy would adjust
itself ratheruickly to the loss of the Ovambo labour u7erethisto be cut
off, and this would mean that the southern economy would have to mech-
anize very rapidly and 1 think that the cconomic base is such that it
could afford to niechanize rather rapidly.1 think that this would result
in the economy operating almost immediately if this were a sudden tut-
off;within a year or so it would be adjusting itself well to the lack of the
labour. On the other hand this would cause a very serious problem in
Ovamboland because tliere would not be the flow of cash into Ovarnbo-
land and therefore the Native economy of Ovamboland would suffer far
more than the European economy of the south.
Mr. GROSS: SOthat-if 1 understand you correctly-there is a very
definite inter-relationship, economically, between the two areas?
Prof. Loc,..z~There iç a definite economic relationship betweeii t~WO
areas, but the southern area could get aIong without the northern, but
the northern would have difficulty because ofitslack of cash income if it
were cut off.
Mr. G~oss: Now, Professor Logan, 1 çhould like to ask you whether
the southern sector could "get along", as you express it, without the use
of so-calleà non-White labour?384 SOUTH WEST AFRICA
Prof.LOGAN : Well, we were first discussing only the Ovambo labour.
1 think it could get alon...
Mr. G~oss: No, 1 am now talking about non-White labour, using that
phrase in the sense in which it is generally applied in the Territory.
Prof. LOGAN :The non-White Iabour employed on the farms, the Iabour
which is basically from the residents on the farms, this is still a rather
integral part of the economic pattern, and 1think that this would suffer
considerably. Not the imported labour from Ovamboland, but the local
labour is an integral part of it and 1 think that this would probably
cause some difficulties at the outset.
However, 1think 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.
1say this on the bais ofthe 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 Iabour available (with quotes aroundthe
word Native in this case) and where, consequently, the American ranch
owner has had to learn to do hiçown work from the beginning and does
not depend upon the Native labour at allIn tht: case of the South West
African farmer there is a very definite intent, very often, to find work for
the Natives living upon the Europeanfarm.
Mr. G~oss: Professor Logan, can you think ofany reason, or reasonable
basis, upon which, in your phrase, the farms should be "deprived" of
Native labour? 1s 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?
Mr. G~oss: Yes. You said that if they were tobe "deprived" of it-by
"deprived" did you mean simply ifthere was a law which prohibited it?
Prof.LOGAN:If the labour were removed, 1 thought that was your
question?
Mr. GROSS:Yes, well 1 just wanted to understand what you meant by
"deprived".
Prof.LOGAK :o, if the labour were removed from the farms by any
rneans, by any requirement.
blr. G~oss:Such as by legislation?
Prof.LOGAN :By legal action, yes.
Mr.G~oss: By legal action, or by total separation'of the groups?
Prof.LOGAN :Alright, yes.
Mr. G~oss: In this context, do you understand the policy which you
observed, and which you perhaps learned about in discussions with per-
sons in South West Africa-do you understand the policy being applied,
or suggested, to have in view the total separatioofthe Imites from the
non-Whites inthis area?
Prof.LOGBNI: do nat think that the totalseparatjon has ever realiy
been envisaged. I am not the author of ailyof these reportsand conse-
quently 1 do not know what was in their minds, and 1 am not certain
consequently of the intent, butI believe that al1of the plans that have
ever been envisaged have envisaged a continuing use of Native labour on
the European farms and in other waps within the White area of the
Police Zone. The rnatter isthen up to the voliintary movement of the
peoples from the Reserves,which are inherently their Iand, on to the Eu- WITNESSES AND EXPERTS 385 .
ropean farnls, which are inherently today in White control, and 1 think
that al1 of the plans, as envisaged, envisaged the continuation of this
Native labour supply.
Mr. G~oss: For the indefinite future, sofaras you areaware?
Prof. LOGAN :1 think so.
Mr. G~oss: And you have never understood from any ofyour obser-
vations-political, sociological, or cultural investigations-iSouth West
Africa that there was any policy proposed for total separation of the
races at any time in the future?
Prof. LO~AN: 1 donot believe so,no.
The PRESIDENTM : r. Gross,1wonder if you could complete the picture
by asking the witness-1 think it might beof assistance tothe Court-the
number ofcontract employees (1think it isabout 25,000)and ofthexzo,ooo,
how many of those would be employed on the farms, or live on the farms.
It might cornplete the picture.
Mr. GROSS: Thank you, sir. With your permission, sir, rnay 1 borrow
your phraseology and put it in the form ofaquestion to ...
The PRESIDENTP : lease use your own, for more impact.
Mr. G~ass: Would you answer the question as if it had corne from me,
if the President will permit me to handle it that way?
Prof. LOGAN : Yes. Of the rzo,ooo 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 1~0,000. 1 do not know the fig-
ures, Iam sorry.
Mr. G~oss: Perhaps we could endeavour to obtain those and supply
those for the record.
Prof. LOGAN: I would be gIad to, yeç.
MT.GROSS:We would be prepared to CO-operateto that end?
Prof.LOGAN :Yes, 1 think we could.
Mr. G~oss: Thartk you. 1 wouldlike to continuewith the analysis, such
as you may have had opportunity tomake in your studies in South West
Africa, witli respect to the economic base and the relationship of the
Native, according to the census claçsification, to the so-called "White
economy". You have mentioned farms. Now, did you have occasion to
examine, or observe, or discuss the matter mith 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:1have views, ÿes, but 1 did not conduct investigations,
no.
&Ir.G~oss: 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 ismuch less of the land than
is the case when we are dealing with farrns, 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 roleof Xative labour on the farms.
MT. GROSS:Would you wish the Court to understand, in evaluating
your testimony and your views, that you donot primarily concern your-
self with, or have not addressed yourself to, the problem of relationship386 SOUTH \'EST AFRICA
of the Native to the industrial or minera1 sector of the economy? 1s that
a correct statement?
Prof. LOGAN: Well, remember that the numbers of people involved
in industry are very few cornpared to the total numbers involved in
agriculture and pastoral activities, and that the nurnbers invoIved in
mining again are relatively few, with exception of the diamond mining
of the extrernesouth.
Mr. G~oss: May1 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.
&Ir. GROS SAre you referring tothe total populationof the Territory ?
Prof. LOGAN:NO, 1 am referring to the total population involved in
industry, in contrastto the total population involved in agricultural and
pastoral pursuits, or the number of employees in industry in contrastto
the number employed in agriculture and so on.
MT. 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,1 believe, that there is a total
permanent non-White population of approximately 125,000. How many
of that number, roughly, are engaged infarming enterprises or work for
farmers ?
Prof.LOGAN: The number 1cannot state.
Mr. G~oss : Percentage-wise?
Prof. LOGAN : Percentage-wise, yes. Probably 80per cent.
Mr. GROSS : robabiy 80per cent. So that zo per cent. are presumably
engaged insome sort of gainful employment elsewhere, or otherwise, are
they not? Would they be then, normally speaking, employed in mines,
or industries, ordomestic service, that sort of thing?
Prof. LOGAN:That is right.
Mr. GROSS:About 20 per cent.?
Prof. LOGAN:That would bemy estimate.
hlr. GROSS:NOW,with respect to that zo per cent., which at my cal-
culation is roughly 25,000 people...
Prof. LOGAN: Xot employed, however-zg,ooo people dependent
upon, because remember Ive are including women and children ...
Mr. GROSS1 :am talking about al1those towhom employment means
aliving, not those to whom employment merely means working. 1 u7as
refemng to the group that is dependent on a certain sector of the eco-
nomic life. MJith respect to those 25,000, whose life is dependent,upon
non-agricultural functions in the southern sector, outside the Re-rves,
have you then considered and analysed their role with respect to that
sector of the economy, in any respect?
Prof. LOGAN : Yes.
Mr. G~oss: In that context, havevou considered what the effect ïvould
be upon the economy if those perçons 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 to the question 1 answered a
few minutes ago here, and I stand by it, that there would be relatively
little effect upon the industrial aspect-whiincludes thefishcanneries,
etc.-and there wauld be an immediate effect, which would in time be
eliminated, upon the rural, pastoral, agricultureconomy. WITNESSES AND EXPERTS 387
hlr. GROSS:This is on the basis, essentidly, of the automation of the
mines and of the industries, is it, sir?
Prof. LOGAN :Andeventually the fencing and taking over of the grazing
aspect by controlled grazing, not by hurnan herding.
Mr. GROSS:Would you regard this, in connection with your analysis
of the economic basis, assomething in the nature of a major revolution
in the econcirnicfunctioningof that area?
Prof. LOCAX:No, 1 think it would be merely a change, of not great
degree, lvhich could be easiIy done by merely patterning it upon the
same sort of thing ~Yhich isalready in existence in many other parts of
the worId. To operate a farm without the Natives upon it would be
exactly the same thing as iç being done todayin Australia, iArgentins,
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 çarne thing which is being done today in Holland, or in the United
States,or iri many other parts of the world.
MT. G~oss: This \vould not be characterized by you as a revoTutionary
change?
Prof. LOGAN :No, I would not think so.
Mr. GROSS:Would it have any perceptible consequences upon the
hurnan factor?
Prof. LOGAN: We11, it would have no great consequence as far as the
IVhite group was concerned. It would have, of course, a trernendous
effect upon the disernpIoyed Native, the disemployed contract labourer
from Ovamboland, the local man who suddenly was left-if this is en-
visaged in Sour mind-with no employment and with no home.
Mr. GROSS S:o 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 corre1twasjust talking about an industrial
revolution effect,that sort ofthing.
>Ir. G~oss: 1 did not want to mislead you.
Prof. Lor.ax: No. It would have a revolutionary effect upon the in-
dividuals concerned, yes.
'The PKESIDEKTT : hehearing 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 wishetoapply for permission
that certain witnesçesbe entitled to sit in Court.
The PRESIDEET:Mr. de Villiers.
Mr. DE VILLIERS : hank you, $Ir. President. The application concerns
Professor Groenewald and the Reverend Mr. Gericke. They will both
testify later on ethical aspects of policies of differentiation and so forth-
the attitudes of religious leaders and the churches in that regard-and
their evidence will not concern factual aspecton wliich Professor Logan
is now testifying,or in respect of which Mr. Cillie, if he começ on later
today, wi11ieçtify, andI apply whether they could be allowed to attend
today's proceedings, Mr. President.
The PRESIDENT:Have you any objection, Mr. Gross?
lilrGROSS X:o, hIr. President.388 SOUTH WEST AFRICA
The PRESTDEN GT:anted.
Mr. DE VILLIERST :hank you, Hr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS: Thank you, sir. Professor Logan, during the course of the
proceedings yesterday, foIIowing a question which 1 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, 1
believe, to the number of non-Whites and perçons classified as Natives,
in the southern sector outside the Reserves-the number in the rural
areas who presumably substantially al1live on farms-do you have that
information this morning?
Prof.LOGANI: am afraid I do not have the information in detail, no;
1 believe iisin the Counter-Rlemorial, but 1could not quote the popula-
tion figures, no.
The PRESIDENT:1think 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 Iive on the farms and those who do not live on the farms.
Mr. GROSS:That clarifies a certain doubt 1had, Mr. President. Thank
you sir. That information you will undertake toprovide?
Prof. LOGAN: Ifit issodesired-1 could not do itat 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. DE VILLIERS: AS the Court pleases.
Mr. GROSS:May 1 continue, Mr. President?
The PRESIDENT :Certainly.
Mr. G~oss: Thank you, sir. Professor Logan, to set the framework
for a number of questions which 1 shall be addressing to you,I should
Iike to refer to general testimonyon your part with respect to the scope
of your study in the Territory within the field of your competence and
expertise1 will be very brief about this;Irefer specifically to the ver-
batim record of 7July, and at page337, supra, as1think 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 :es, that is correct.
Mr. GROSS:And then, at page 344 of the same verbatim record-1
paraphrase-you stated that you had considcred and analysed the
social implications and effects of the policies and practices aflecting the
freedoms of individual perçons-is that substantiaily your recollection,
sir?
Prof.LOGAK :think so, yes.
Mr. GROSS: NOIVk , eeping those in mind (because they will be of general
applicability and not necessarily related to eachof 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 econornyU-you
testified on thatsame day, at page352 of theverbatim 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 :es, itis.
Mr. G~oss: Entirely soi
Prof.LOGAN: Yeç, itis.
MT. GROSS:For your purposes-for the purposes ofthis comment? WITNESSES AND EXPERTS
Prof. LOGAN: Y es.
Mr. G~oss: 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. GROÇS:And the subsiçtence economy iswhat you testified to, as
1recall-correct me if 1 am wrong-as the subsistence economy which
is now struggling to become modernized or stabilized at a higher level
than subsistence-is that correct?
Prof. LOGAN: That is correct.
Mr. G~oss: So that it would be a fair interpretation of your answer,
would it, to say that the onlybasis upon which it could be said that the
Territory as a wfiole 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 Territory is interdependent
as a whole-would be on the assumption that the areas outside the south-
ern sector ~vouldremain at a subsistence level-is that correct?
Prof. LOGAN:1 am not sure what you are saying, exactly.
Mr. G~oss: I just want to make certain that we understand each other
as to the apparent qualification, and 1 understood you to say that it
would be true that the Territoryasa wholeis economicaily interdependent,
subject to the qualification that that would not necessarily be true if
the Territory outçide of the southern sector remained at a subsistence
levei-is that correct?
Prof.LOGAN: Yes, that is correct.
hlr. GROSS:1will 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 tlie 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, orif thenon-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 ouiside of it would be forced to remain atasubsistence economy
or sornething very,very slightly above that, because tracle out of it would
be virtuallg non-existent, and because the efforts that are being made
today to raise the economy of the area by the Administration's efforts
wouId be cut off, and the ability of the Native of the area beyond the
Red Line to corne within thePolice Zone as a contract labourer, this also
wouId be lost, and so the supply of cash income coming in to that area
would stop. Therefore such excisionwould seriously injure the areabeyond
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: Ifyou will continue, sir.
Prof. LOGAN : Yes, Now, answering the second portion of the question: 3go SOUTH WEST AFRICA
it is my firm belief, and this belief of mine 1find 1 do not share with al1
. meinbers of the South West African community, of the European group
of the community, but 1believe that if this excision took place the indus-
trial developments and other ernployers of labour other than the farrners
would very quickly and quite eûsily 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 areaç or to go toreas outside the Police Zone, this too would be taken
care of by adjustments ~vithinthe 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 adjustedtheir interna1
workings, after which they too would be able to get along ~vithoutNative
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, Bechuanaiand and Angola, from which already considerable
numbers; not so mucIi from Bechuanaland but from Angola, of Native
labourers come in today because of the superior wages and working con-
ditions within South West Africa, and s~ 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-
labour within South West Africa, 1henamhisure. 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
eschange.
air.Giiosç: In this case, however-1 will not pursue this hypothetical
and perhaps somewhat absurtl hypothesis to its ultimate absurdify-1
thought the Court might erhaps obtain some clarification with respect
to interdependence from t Re standpoint of the basisof the economy, and
the labour supply would obviously enter into that pattern. In the hypo-
thetical case that you have rnentioned-1 think you described mernbers
of the Ovambo tribes from Angola-they would, so far as you are aware
of the policies and practices in South \Vest Africa, be classified as non-
lvhite, would they not?
Prof. LOGAN :Oh. yes.
Mr. G~oss: So that the question with respect to the dependcnce of the
economy if there were no non-Iihites there, which is really the question
1 have addresscd to pou ... I think that, unless you have sornething
further to say,1 wiH turn to another question.
In your testimony-and this is relate1,believe-at page 384, st@ra,
of the verbatim record of 8July, you responded to a question 1addressed
1 asked you whether you understood the poIicy whichissiulasobserved and.
which you perhaps learnt about in discussions with perçons in South
West Africa, and 1quote now-". . do you understand the policy being
applied, or suggested, to have in view the total separation of the hVhites
from the non-Whites in this area?" And your answer, which 1 will read
from the verbatim record, is, in part: "1 do not think that the total
separation has ever really bien envisaged .. .1 think that al1 of the
plans, as envisaged, envisaged the continuation of thiç Xative labour
supply."
Thisjs recollectedby you as your testimony, sir? WITNESSES AND EXPERTS 39'
Prof. LOGAN : That iscorrect.
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 renioved
from the area, voluntarily or otherwise, or were you thinking of it in
terms of substantial movement, what rnight be called a great migration
or something of that sort? JVhat did you understand the term "total
separation" to be, in your own concept?
Prof. LOGANI: believe, at thatpoint, we were talking on the matter
of excision as wc were just a moment ago here, and 1 believe, in that
case-you just stated now the "total removal" ofthe people, and that is
what 1 think we were discussing there.
Mr. GROSS:The total removal?
Prof. LOGAN:Yes.
Mr. GROSS:Substantially all?
Prof. LOGAN: Yes.
Mr. GROÇS: Yes. There might be one or two il1 or aged persons left
behind, thnt sort of thing. We are talking about a substantial removal
when we talk about "total separation", is that agreed?
Prof.LOGAN :hat is correct, yes.
Alr.GROSS: Now, 1 would like to read to you-becausc 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 al1 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 js Respondent's pleading, as you perhaps
understand), and ask whether, when 1 have read it, this policy ever
came to your attention in your discussions with persons in South West
Africa, or othenvise.
The Prinie Minister, in a House of rlssembly debate, in 1963 (and the
citation may be found at V, page 251, of the Kejoinder, 1 will not put it
in the record at this point unless you wish me to, unless the Court wishes
me to) is as follo~vs:
"The only possible way out ... is . . . that both, Le., 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-
"1 also çee to it thaI 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 1 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 aIong which they can make
progress in accordance with their capabilities. Andifit 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, 1 cal your attention to the phrase "total separation" as used in
the excerpt from the Prime MiniSter's statement in the House of As-392 SOUTH WEST AFRICA
sembly. 1ask whether this concept and this particular phraseology did
arise in your discussions and consideration ofthe economic basis ofthe
society, or in your study of thegeography of the area?
Prof. LOGAN: Well, yes, but the "total separation" talked about 1
think by Dr. Verwoerd there isnot the "total separation" that you and
1 were discussing before the Court here, because in the one case we are
talking on an economicmatterand we are talking, in apurely hypothetical
situation, of removing al1the population out of the area (1mean al1the
Native population out of the White area, or vice-versa).But in the case
of Dr. Verwoerd's statements 1am not sure of al1of the precedings the
statement you have just read, but 1believe that this fits in with the whole
programme by whjch there woiild be the opportunity forNatives from
the Reserves,or homelands, or Native areas, to corne into the Imite area
to work and also that there would be some White representatives within
the Native sreas 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.
)Ir. G~oss:Now, by "momcntary situation" you mean-let us take
an individual who isborn, lives, works, and ultimately dies in the south-
ern sector, let us confine our attention tothat individual-iwhat sense,
if any,ishe separated from anything else in that area?
Prof. LOGAN : e would not be separated from anything else in that
area if he remained in that area. He would be separated, of course, as
faraç voting is concerned, as far as a numberof things are concerned in
that way-if that is what you are referring to.
Rlr. G~oss: 1 really do not presume to ask you to interpret the in-
tention, or what was in the mind, of the distinguished Prime BIinister
when he used tliis phrase. On the basis of your analysis and consideration
of the econornic brisis of the society aweIias of the social implications
and effectsofthe poIicies and practices affecting the freedoms of individ-
ual persons (to which1 referred from your earlier testimony at the outset
of this mornirig's session),in the light of the basithefeconomic study
you made, alid 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
otherivise, of an individual such asI have dcscribed? How would you
determine what he is separated from, and how would you define the
term "separation" in that context?
The PRESIDEN T:think it might be better if we have one question
at a time,Mr. Gross.
Mr. GROSS1 : am afraid 1 was allowing my enthusiasm to take me ...
The PREÇIDENTN : otat all, butIthink it will be easieif we get one
question at a time.
Mr. GROSSY : es,sir.Ifyou have understood the questions would you
take them al1one at a tinie.
Prof. LOGAN:Thank you, hlr. President. Yes, 1 will endeavour to.
This is difficult to answer either yes or no,and 1 presum1 should make
a speech at this point. WITNESSES AND EXPERTS 393
Mr. GROSS :es, if you will address yourself to the question, please,
sir.
Prof.LOGA :The first thingI think that has to be considered is that
under the statemcnts, as developed by Dr. Verwoerd, and under the
whole idea as developed, as 1understand 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 affiliatioas a Nama, or a Dama,
or Herero, or whatever groupa homeland to ïvhich he properly belonged
and on that homeland he would have a right to a vote and aright to a
participation in whatever form of government was existent upon that
homeland. Xow 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 tirne. That is, there would be a different
type of government in a Bushmen surrounding than there would be in a
Herero or Ovambo milieu.
Now he rvould have, in the Police Zone, no voting rights; he would
not be entitled to vote for the officials of the area in which he was then,
of his own volition, domiciled. But the man for whom he wasworking
\vould, 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 wouId develop in a separate way, separately within his
own homeland area.
1do not know whether 1 have answered this question .. .
Mr. GROSS : ell, sir, 1 wish you to ansmferto your own satisfaction.
1 will pursue the line and perhaps you can elaborate it in response to
specific questions.1will, for the sake of clatity, withdraw at this point,
Mr. President, if I may, any other questions which I may have com-
pounded to rny first, addressed to Professor Logan.
Now, in the context of the ansïver, which you have just given, you
used the expression, if I am not mistaken, "by his own volition" and
you used the expression, the homeland to which he "properly belonged".
These are tlie phrasesI noted at the time. Kow, in your use ofthe term
"volition", do you consider the cconomic constrictions which frequently
interfere with free choice in the Iives of ofus, including Natives?
Prof. LOGAN : es.
Mr. GROSS Therefore, at best, "volition" is a highly qualified concept,
is it notsir?
Prof. LOGAN Y:es.
Mr. G~oss: U7ell,to what extent is it an absolute? Could you tell me,
for example, under what circumstances, by ïvhat objective criteria,a
determination could be made whether an individual was residing or
remaining at work in the çouthem sector by his own "volition"?
Prof. LOGAP ;:es, today, with the economic development of the home-
land areas still in an ernbryonic stage, it is quite likely that many people
are quite forced, economically, to stay in anarea in which they are able
to obtain a higher standard of living than they would if they returned to
the Reserves. With the development that is going fonvard as rapidly as
it has been in the nine years that 1 have knolvn South West Africa, this
isa temporary thing and eventually, a considerable portion at any rate-
donot ask Ine for percentages please-of the people of tlie Nativgroups
who are residing today in the Police Zone and working there, will be
able to find economic opportunity at Ieaçt equal to what they arc getting394 SOUTH WEST AFRICA
today in the Police Zone, and so they willbe able to return to the home-
land areas.
There are such things, for example, as the proposed development of
rneat canning factories, in connection with Ovarnboland, There is the
already established furniture factory in Ovamboland. These are going
to startto ernploy people, these are going to bring cash intothe areand
the cash being brought into the area wilI support traders and other
entrepreneurs, within the area. These traders and entrepreneurs will be
Natives. The furniturefactory will be operatedby Natives. Consequentiy,
there will be the opportunity to return, and this is increasing very rapidly
within the area today, you can see it visually increasing.
hlr. G~oss: 1 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. We are talking about an individual who, in
this case,is born (and perhaps, if you want, you can add his family as
well), in the southern sector. In what sense, if any, can he be said to
"returii" toa homeland?
Prof.LOGAN: Well, in a great many cases, it is a case of returnito
the homeland. The Herero . . .
Mr. G~oss: The "homeland" of that individual, sir?
Prof.LOGANY : es,if1 may . ..
Mr. CROSS P:lease,1 just wanted to be sure, .,
Prof.LOGANA : Herero, born in the Windhoek location, considers from
the time fiebegins 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, returns to his home Reserve
and there undergoes the puberty ceremonies, which are very long and
extensive. He or she stays there forsome months.
&Ir.GROSS In every case, Professor Logan?
Prof. LOGAN:Well, 1 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. Furthemore, the child, inmany of
these societies, is not brought up by the parent, but the child is brought
up by the grandparent because there is the jumping over of one generation
in the development of the child, and. ..
Mr. G~oss: l'ou mean a grandparent in the southern sector?
Prof.LOGAN: Well, this is the point 1am about to get at. In many
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 astrong affiliation, even in the quite sophisticated
Society of the town Native of 'El'indhoek,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 :ot at all, give your answer.
$Ir. G~oss: Pardon me, Mr. President?
The PHESIDENT: The witness was apologizing for being long and 1
simply remarked "not at all" and to give his ariswer to his satisfaction.
Mr. GROSS:Yes, sir, thank you, sir.
Prof.LOGAN : Thank you, sir.
&Ir.GROSS:1 will try not to match your responçes with the length of
my questions. With respect to the concept of "returnU-let me put it WITNESSEÇ AND EXPERTS 395
to you-you have, I believe, testified that you have spent some time on
20 or more so-called "White farms" on which perçons classified as Natives
resided?
Prof.LOGAN : hat is correct.
Mr. G~oss:These were, were they not, in the southern sector outside
of the Reserves?
Prof. LOGAN:That is correct, yes.
Bir.G~oss: 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 :n 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 farrn Natives.
Mr. GROSS: 1was asking whether you had observed situations ...
Prof. LOGAN: Yes, 1 have, that is, 1 have known individual cases
where 1can name the person, and the child sent and so on.
Mr. GROSS :Yes, so that, for example, how long would he spend in his
so-called "homeland" which he had never seen up to that point?
Prof. LOGAN T:his would be a tribal matteraswell as a persona1 mat-
ter, but inany cases the Herero child returns at a veryearlyage, 5years
old, 6 years old, something of that sort, and remains there unt13 years
old or something of that nature-I mean, a matter of a number of years
in quite a formative stage of the child's hie.
Mr. GROSS:And normally goes to school in Ovamboland or wherever
it might be, duriiig this formative period?
Prof. LOGAN \Yell, i1 may correct this, it would not be Ovamboland
because only the male Ovarnbos come to work in the Police Zone and
there are ri:latively 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 Ovanibos permanently reside inthe southern sector outside of the
Reserves? Can you tell the Court?
Prof. LOGAN:I coula not tell the Court.
Rlr. GROSS:There are some hundreds or some thousands, as faras you
are aware?
Prof. LOGAN :Probably several thousand.
Mr. GROSS:So that when you were talking about return to the home-
land in thesense in which you used the phrase, you were not referringto
those several thousand Ovarnbos?
Prof. LOGAN:NO, 1 am referring to the large number of Hereros and
Damas and Damaras and others, and so on.
Mr. G~oss: Well now, if we confine ourselves for the moment to ...
1 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 arepevmalzently resident, has it been the result of your obser-
vation and experience that many of the offspring of these Ovarnbos
permanently resident in the southern sector , outside the Reserves,
return to Ovarnboland, during the tender age of 5 to 13?
Prof. LOGAN :1 know nothing about detribaiized Ovambos. 1have had
no connection mith them whatever. 1have been discussing the Herero and396 SOUTH WEST AFRICA
the other groups that make up the great proportion, not this small
fragment of Ovambos. As far as 1 was concerned, 1 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. G~oss: We are talking in the mass, here, in the round?
Prof.LOGAN : Yes.
Mr. G~oss: You said "fragment", 1 am talking about 3,000 individual
human beings, and you refer to a "fragment".
Prof. LOGAN: Well, yes, but 1 am talking about some hundreds of
thousands of others.
hlr. G~oss: Quite so. But would yoü be willing-1 do not mean to
argue with you-to clanfy the matter, to talk aboutwhat I am talking
about?
Prof.LOGAN: li7ell1 cannot, because 1 do not know about it.
Mr. GROSS : ell, that is what1am trying to explain. Now, the 3,000
Ovarnbos is what 1 am talking about. Wow you described them, if 1
understood you correctly, as a "fragment".
The PRESIDENTA : fragment of the total number.
Mr. GROSS:Of the total number. Now, 1 am talking about even a
smaller "fragment" of the total number. 1am talking about one person:
the individual 1 put to you at the outset of this line of questions. Your
reply to me, if1 understood you correctly, and please correcme if 1 am
wrong, involved a total picture of a group and practices which you
described as pertaining to a group or certain members thereof. 1sthat
correct ?
Prof. LOGAN : Of several groups and the individual members thereof,
yes.
Mr. G~oss: Now, then, 1 have asked you and would like to repeat rny
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 rnay not be, therefore, "returning"to their
homeland in the sensein which you used the term. Iwould revert to that
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 couId he be said to be "returning" to that home-
land or that Reserve, inany sense of the word?
Prof. LOGAN:Yes, 1 think so. 1think that there is the strong thought
intheir minds that they are of a particular group and of a particular
areaand that they belongto that. There is, of course,always the renegade,
always the person who isthe non-conforrnist. Even in Native groups,
1am sure there are these individuals but they are the rare ones, and to
try to steeran entire programme to fit the one individual or the small
number of individuals who do not want to conform tothe over-al1pattern
is,1 think, quite impractical. Basically, al1of 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 "al1 otheNatives". Would you please define the term "Na-
tives"? WITNESSES AND EXPERTS 397
Prof.LOGAN :es, 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
particulargroup.
Mr. GROSS : nd how would you determine the classification or mem-
bership of tlie parent?By the same device, by the same procedure?
Prof.LOGAN: Yes, it isalineage matter.
&Ir.G~oss: Now, Irefer to the Memorials,which are one of the Appli-
cants' pleadings, at 1, pag109, and which contain the census according
to the classifications of which rights and status are allotted, and the
laws and regulations apply. 1would Liketo read to you the definition of
"Native" which countswith regard to the individualrights and individual
liberties, the "fragments" of the total group. "Natives-Persons who
in fact are, or whoare generallyaccepted as members ofany aboriginal
race or tribe of Africa." Are you farniliar with that cençus category?
Prof. LOGAN N:ot in those words, 1 could not reciteit,no. But it is
essentially,1 think, what 1 just said. You use the word "aboriginal",
1 use the word "indigenous".
Mr. GROÇS: Weil, this iç not my word, sir.I did read the census cat-
egory-"aboriginal race or tribe".1 did not understand you, iii~esponse
to my question, to refer to a concept of general acceptance. Di1 mis-
understand you?
Prof. LOGAN: Well, 1 would gladly put it inifit would help.
Mr. G~ioss: It would help us understand the meanings which you are
attaching to words that affect the Iives, welfare and freedoms of individual
beings. 1am anxious that the Court understand the terms fairly you are
using and that 1 am trying to elici...
Prof. LOGAN :I think it is generally accepted by the individual, him-
self, that he identifies himself as baimember of one of the indigenous
aboriginal tribes or races of the Territory.
Mr. GROSSD : oyou understand the policy which you are testifying -
with respect to,andI speak now specifically with reference to the analysis
which you sliyyou 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 : ut Ido not think that thegr are generally separatein
the minds of the people concerned, that the person who is born . .
hlr.GROSS W:hich "people", for the sake of clarification?
Prof. LOGAN : We are speaking about the Natives,1think, are we net?
Mr. GROSS: We are talkjng about how you tella Native and there-
fore Ithought that we ...
Prof. LOGAN: Well, the way that you wouId tell a Native is a two-
fold one. if there is any question in your iiiind, the easiest way 1s t~
ask him and 1 think he will alrnost unquestionably Say "1 am a . . .
and then he will tell you.He will tell you his tribal grouand he will
tell you thesub-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.3gs 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-thisseparates imrnediately the Nama, let us Say,
from the Herero, it separates the Khoisan group from the Bantu group:
secondly, hisgarb, because he willwcar clothing in almost al1cases that
matches the others of his particular group. So he associates himself,
he affiliatesimself, with the group and so he is generally accepted as
a member of that group by that group and by al1the other groups be-
cause he advertises estenorly,in his very dress, which group he belongs
to. You can teil 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, 1 think, by her of the fact that she
is Herero, Dama or Narna. Also she is acceptcd by the group as being
of their group, othenvise she would have great difficiilty walking about
the streets of Windhoek wearing the wrong tribal dress. 1 think for a
Narna woman to appear in a Werero dress would cause a great deal of
consternation arnong 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. G~oss: Have ÿou ever encountered a so-called Native of South
West Africa outside the Territory of South West Africa-say, in the
streets ofNew York or San Francisco?
Prof. LOGAN : o, 1have 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 : es, the business men that 1 spoke about earlier and
some of the others in Windhoek, dressed in clothing exactly like you
and 1 are wcaring here at the moment. Yes.
Mr. GROSS:Well in that case, under your concept of classification or
differentiation would it not be easier to tel1 what race or tribe they
belonged to if they were not wearing clothes?
Prof. LOGAN: Then you would have to go strictly ta the physical
characteristicswhich arc quite clear cut among the different 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 isifyou ask the individual, ta return to what1saictearlier,
what group he is he will tell pu instantly and usually quite proudly he-
cause they are proud to belong to their particular gro.. . they arenot
ashamed of it. They are proud to belong to their group, there is a strong
feeling of ra$port and of pride in their particular group.
hlr.GROSS1 :am sure of that, sir. Would you say it is comparable,
perhaps, to the feeling of vafiport and prideone of Our fellow country-
men thinking of Ireland, from which his ancestors came, for esarnple?
Prof. LOGAS : think it is much deeper than that, much deeper.
Mr. GROSS:1 see,sir. Well, now 1 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, dutics and stalus are allocated on the ba~l~
ofgarb, dress or appearance?
Prof. LOGAX N:o, 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 1s WITNESSES Ah'D EXPERTS 399
allocating the rights or privileges on the basis of theway in which a
turban is worn. No.
hlr.GROSS :tis a rather serious thing, would ynot agree, to consider
the basis upon which individuals are classified, which classification
determines their rights, duties, privileges, and the limitations imposed
upon their Ereedoms, that the classification method is, shd we Say,
first, relevant tothe question of a study of their relationship between
the individual and the society?
Thef.PRESIDENT: hD:OwYOUaunderstandlvtheoquestion?
Prof. LOGAN: 1 am afraidI do not.
The PRESIDENI -erhaps MT. Gross lvould put the question in a
different form.
&Ir, G~oss: 1 asked you, sir, in your study of the economic bais of
the society,anciI am talking now specifically about the southern sector
outside the Reserves .. ,
Prof. LOGAN:Yes, 1understood.
Mr. GROSS :n your study of the economic basis of the society-in
your study of thc social implications and effects of the policies and
practices afft:cting the freedoms of individual perçons in that area-did
you take into account, or do you give any weight to, the method by
which individuab are classsified, and on the basisofwhich ~Iassification
rights, duties, privileges and burdens are conditioned?
Prof. LOGAN: 1did not make any statistical, any analytical study of
this. This falls, 1 think, within the politicd category anway in nlhich
I saidI \vas not expert. However, I am quite capable, 1 thinkof making
some non-quantitative but qualitative judgments upon it. Yes.
Jlr. G~oss: Would it help to clarify the matter in your mind if 1
said that1 was addressing rnyselfsolelyand exclusively to the qualitative
aspect of the matter, from a sociologica1 and human point of view?
Prof. LOGAN : Yes.
Mr. GROSS:Thank you. WiIl you continue, then, with your answer
on that basis? What conclusions, if any do you reach, asan 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 libérties?
Prof. LOGANT :he classification is made chiefly on the bais of the
culture group to which the particular individual belongs. Nosv this
culture group, in the census classifications that were just read, lumps
a large number of groups together as Natives andas such gves 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 rny mind is the reasonable and prac-
tical way of handling the situation because of the basic affiliations of
the individuals within the tribes with ont: 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 hardsllips on large numbers of people.
Now it ,is quite obvious that there are always exceptions, that there
are some individuals in any tribalgroup who do not fit into the general
pattern that is establiçhed by the Administration in handling it. 1
think thjs is true in any kind of society that we want to consider my-40° SOUTH WEST AFRICA
where. There is allvays the individual that does not fit the general pat-
tern. This may be the outstandingly good individual, 1 mean, outstand-
ingly well-developed individual, it may also be the extremely backward
individual, speaking personally now, the one vVhosepersonality has not
developed and so on, or the one whose personality has developed very
rapidly and gone much further. I think there is the same individual
variation arnong any of the Native tribes that we have been talking
about here, that we ~vill find among any European community or
any Oriental community or any other community that we want to
Iook at, There iç thiç same individual variation but the pattern, the
norrn 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 exarnple, there. ..
Mr. GROSS: Are we talking about the southern sector, outside the
Reserves?
Prof. LOGANI :am sorry. But you see each of the individuals that is
within the southern sector is still affiliated wiahReserve or homeland
that is not within the White area of the southern sector and the thing
cannot be dissected, it cannot be excised aWC did earlier as a hypothet-
icalexercise. lnpractice it cannot be separated, it must be looked at as
a whole picture, as a totality.If we chop it apart, especially as faras
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 isstill great culturaldifference be-
tween the different groupswithin this and each of them is accorded rights
and privileges in accordance with his culturai position, his cultural level.
Mr. GROÇS: 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 uSay,within the southern sector outsidethe
Reserves, are based upon the classification which1 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 T:hat is the census category.
hlr.GROSS:And that is the basis, as far as your studies showed, on
which rights, privileges and statusare based in the southern sector?
Prof.LOGAN : ell, no, because the rights and privileges in the south-
ern sector are not based on the census.
Mr. GROSS :lassifications, sir?
Prof.LOGAN : 1don't think they are based on the census classifications,
they are based on the tribal affiliations.
Mr. G~oss: May 1, then, read toyou, frorn the Rejainder (which is the
pleading of the Respondent I referred to before) the foilowing staternent
by Prime Minister Verwoerd, which is quoted at VI,page 4r:
"The Rantu [I mark the word] rnust be pided to serve hisown
cornmunity in al1respects. There is no place for him in the European
community above the level of certainforms of labour." WITNESSES AND EXPERTS 401
Does the word "Bantu" convey to you a linguistic, a racial or a tribal
implication ?
Prof. LOGAN:Al1three.
Mr. GROSS:Al1 three-and therefore it is synonymouç is it, or isit
not, with the word "Native" in your use of the terrn?
Prof. LOGAN :NO,it is only partly synonymouswith the word "Native"
because the Khoisan group, the Namaç, must be included.
Mr. G~oss: I see. So that when you take the term "Native" as you
use it (and asitiscommonly used in the Territory, I assume), it issynony-
mous with "Bantu" and "Khoisan" and they are regarded as aborigines.
And, secondly, is it or iç it not correct that the rights and duties and
privileges ofindividual persons in the southern sector outside the Reserves
(weare talking about that for simplification) are determined and allotted
oii the basis of classification as a Bantu? 1sthat your understanding?
Prof. LOGAN :NO, 1 repeat thai it is still on the basis of tribal affiliation
and Bantu is a larger category and so itis on the basiç of Herero or
whatever the Bantu 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 by the Prime Minister-
1 am not asking you to interpret his statement, but whether it reflects
your understanding and analysis of the poLicy pursued in the Territory
you studied-that there is no place for him, Le.,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 combined
or mixed marriage? Does it make any difference in respect of this state-
ment, or this type of statement, which reIates to Bantus generally?
Prof. LOGAN: I'd like that question again.
Mr. GROSS:1s there any relevance to the problem we are discussing-
isthere any relevance or any consideration kvhichbears upon whether a
Bantu is a Herero, 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 fact that a Bantu cannot rise above the level of
certain fornis of labour in the European community?
The PRESIDENT:Doeç the witness understand the question?
Prof.LOGAN : 1am afraid 1 do not, no.
Mr. GROSS:1 will try it once more, with the Court's permission, and
1 will try tu simplify it.
The staternent which 1have quoted is in your mind, is it? "There is
no place foi. the Bantu in the European community above the level of
certain fornis of labour."
Prof.LOGAN: Yes.
Mr. GROES :id 1 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 inthe White com-
munity? Does his tribal affiliation have anything to do with it?
Prof. LOGAN:WelI, 1 am just afraid that 1 am lost as to what is being
requested here. 1 understand the words but 1 don't understand what is
being asked.
The PRESIDENT :erhaps Mr. Gross will put it again to you.
Mr. G~oss: I hesitate to trespason the Court's tirne.With al1respect,
Mr. President, 1 have tried three times ...402 SOUTH WEST AFRICA
The PRESIDENT 1am1:think if the question is put in a shorter context
Mr. Gross.
hlr. G~oss:1 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 ut it in a sentence.
The PRESIDENT It: is becauO< that that it is difficult to understand.
Bir. G~oss:1 will try it once more becausi: 1 think it is important
and wil not perhaps, I hope, trespass on the honourable Court's tirne.
The statement is made by the Prime Minister that "there is no place
for the Bantu in the European community above the level of certain
forrns of labour".
Prof. LOGAS:Yes.
Mr. GROSSD :oes 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 7
Prof. LOGANY :es, 1 understand that. The...
Mr. G~oss: Can you answerjresor no, perhaps? 1 tried to formulate
it so that it couldbc answered yes or no. Does it have anything to do
with it-yes or no? You can qualify the answer if you like.
Prof. LOGANN :o, 1 think it has nothing trlowith it.
Mr. GROSSI:t has nothing to do with it? Thank you. The phrase
"European community"-have you heard that expression used?
Prof. LOGANl: 'es.
Mr. GROSSW : hatdo you take its signification to be?First, ma1ask
you what the word "European" in that contest refers to?
Prof. LOGAN ":European" means aperson wlioseorigin, either directly
or ancestrally,was from Europe. His parents, or he himself, have im-
migratedfromEurope at some time in thelast300 years or so.
Jfr. GROSSÇ:o, for example,ifyou or I should go to South West Africa,
we would be "Europeans", 'would we?
Prof. LOGANY : es, because Our ancestry also came from Europe by
way of America and so we would be Europeans. That is correct.
Mr. GROSSN : OW,suppose, for example, that you had a child afmixed
marriage between a "European" in this sense and, let us Say, an Asian,
a person born in Asia, wouId that child be a European?
Prof. LOGAN1 :wouldn't know how that would be looked at.
lfr. GROSSY : OUdon't know what the word "European" would mean
in that situation-the word "European" as used in South West Africa?
Prof. LOGANW : ell, if it waschild of amised marriage between one
of the indigenous tribes and a European 1 could answer it, but ho~va
Euritsian child would be viewed 1 don't know.
hlr. G~oss: Doeç appearance have antnythingto 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, 1 believe, a certain qualification in parheiis generally accepted
munity and by the members of the non-European community.uropcan com-
Mr. G~oss: May 1 phrase rny question this way, does the fact of
colour or appearance determine whether he is accepted as a European
or not? iVITKESSES AND EXPERTS 4O3
Prof. LOGAX TO a large extent. Not totaily, because it could ako be
the manner in which he lived in parts, in a smail part.
ùIr.G~oss: UThat do you.mean by that?
Prof. LOGA NWell, if a man wasof very slightly mixed blood, that is,
largely European with just a bit of Native blood-1 an? not talking of
Asiatic now, I am talking of Native blood-anci he was living with a
CoIoured 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 pass as Whites.
Mr. GROSÇ: The phrase "pass as Whites" is of interest, Professor
Logan.
Prof. LOGAN :t is actually an American expression1think.
Mr. GROSS : think it is1 was wondering, for example, how your
comrnents would relate to a person who is, shalI Say, obviously White.
1sthat afom of words which you would accept?
Prof. LOGAN :'es.
Mr. GROSS:And if a person is obviously White, does that mean that
he would be acceyted as a European?
Prof. LOGAN: yes.
31s.G~oss: This would be then on the basis of appearance solely?
Prof. LOGAN: As 1 said before, primarilp.If he lived, however,as a
Coloured, with a group of Coloureds, and was generally acceptedby the
Coloured community then, even though he looked imite, he might very
well be considercda coloured.
Mr. CROSS:Suppose this gentleman were a lawyer,a professional per-
son, practising in Johannesburg?
Prof. Loc;~lv:Well, 1 reallydon't know because, first, Johannesburg
isoutside South West Africa and this is the first time in my li1ehave
ever been iiia court and 1 am not acquainted with court procedure in
South West Africa or in Johannesburg. 1don't know what would happen.
Mr. GKOSS : will take any city you wish. 1 am talking aboua Snuth
West Airican, who is obviously White, who practises law oa profession
in Johannesburg or Birmingham, England, you can cal1 it any place
you Say.
I want to ask you,with regard to the limitation upon his rights the
basis of colaur or appearance which1understand to be tlie case in South
West Africa, whether that does relate solely to the fact that he lives in
South West Africa and that the standard upon which his rights are based
depend on Iiicolour-do pou understand my question?
Prof. LOGAN:Yes.
Blr. G~oss: Do fou regard this classification and thcçe limitationof
rights, on tliat basis, as having any implications and effects in the socio-
logical sense that you took into account in your analysis of the situation,
with respect to the policies and practices affecting the freedoms of the
individual persons?
Prof.LOC:AN Y:es.
Mr. GROSÇ: Do you think that it is by some objective standard or
criterion which you may have in rnind-a valid bais, sociologicslly
speaking-1 ask you asan expert?
Prof. LOGAN D:o 1think itis a valid basis?
hlr.GROSS : es.
Prof. LOGAN :30 Ithink it isa valid basis to use colour as the basis
for allotting rights and burdensl-no,1 do not.404 SOUTH WEST AFRICA
Afr.GROSÇ: YOU do not take itas a validbasis?
Prof. LOGAN:No.
Mr. G~oss: Are there any objective criteria or standards on the basis
of which you express that judgment?
Prof. LOGAH :es, became 1 think 1 expressed earlier here that 1
think there are great variations ~vithin any particular group, and 1
think there isas much variation within a Coloured society or within a
Native (to use the South West African term) , or awe would Say, within
a Negro society-1 think there is as much variation,individualvariation,
there as there is in other areas, and theref1rthink that a culture basjs
for division is far more important than a purcly 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. GROSSA : nd partially appearance?
Prof. LOGAN:Well, this would be a combination of racial and cultural.
Mr. GROSS: So that with respect to the classification of "Bantu"and
the ailocation of rightsnd duties, thihas nothing to do with the sub-
group or the tribe within which the Bantu individually fali?
Prof. LOGANW : ell, taking the Bantu alone, that is a collective calegory
for a number of tribes.
hlr.G~oss: And that isspnonymous with "Native" ifyou 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 bais of classification as a Bantu-that is the
question?
Prof. LOGAN : Al1right,yes.
Mr. GROSS:DOyou consider, on the basis of the criteria to which you
answered my question with respect to the a~alidior otherwise ofallot-
ment of rights on the basis ofcolour, that it is valiin the same sense
to allot rights and burdens and duties on the basis of whether an individ-
ual is a Bantu?
The PRESIDENTA : re you speaking about the sciuthern area exclusively?
Mr. GROSS: 1am talking about the southern sector outside the Reserves.
Prof.LOGAN : Yes,I think it is reasonable to allocate rights and privi-
leges and burdens (1 believe you said) on the basis of a man being a
Bantu in contrast with him being of some other tribal affiliation or sorne
other parentage line.
Mr. G~oss: Yes-"some other parentage line" being in this case-?
Prof.LOGAN :European, or Coloured.
Mr. G~oss :European or Coloured?
Prof.LOGAN :Yes.
Mr.GROSS : ow, what criteria orstandards would you apply in coming
to your judgrnent that it is valid or otherwise? We are talking here
about individual freedoms and the social implications thereof. Upon
the basis of what criteria or standards would one reachajudgment with
respect tothe validity or otherwise of the allotmenntof rights and burdens
as between, Iet usSay, a Bantu and a White solelyon the basisofthat
group classification?
Prof.LOGAN : Since that group classification takes, my mind, into
account various things other than race, namely culture and culture level,
meaning technological level, rneaning degree of sophistication, politically
and sociologically and so on, the rights and privileges are awarded to IVITNESSES AND EXPERTS 4O5
the individual group, and 1 repeat group-not the Bantu as a whole,
but the individual subgroup beneath the Bantu.
Mr GROSS : hat is not my question, sir.
Prof. LOGAN:Well, 1 am afraid 1 cannot answer your question, be-
cause the Bantu are not conçidered, other than in census figures, as a
total group, 1:heyare considered individualiy on the basis of the affiliation
that exists within the largerBantu category.
Mr. GROSS : Considered by whom, sir?
Prof.LOGAK Considered by the individual membership-the Herero,
the Damara, whichever it liaypeiis to be-and at the same time con-
sidered by the Administration, by the Government.
Mr. GROSÇ:Again may 1 come 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 forthe 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, iç technoIogically, education-wise,
culturally in any way, as a group capable of carryingon activities above
the level just mentioned, above the level of labour. 1 do not think the
Prime Minist.er said-although I am not responsible for his statements,
and 1do not know al1the things that he has in the back of his mind, and
1 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
alwayç subject to change, that with the improvement in the level of the
Native peoples, their level of privileges and of dutieswilI change; that
when they rise to higher leveIs within their own community, within
their own group, then they will acquire a higher status.
Mr. Gnoss: Did you in your analysis and study of the situation in
South West Africa, in the respects relevant to pur testjrnony, proceed
from the focal point of the individuaas an individual, or asmember of
a group in every case?
Prof.LOGAN : Basically as members of a group.
hlr. GROSS:The focal point which you used in your studies, then,
regarded each and every individual so-called "Native" in the Territory,
within the aea we aredefining, asa member of a group?
Prof. LOGAN:Primarily, yes.
Mr. G~oss: 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 mernber of a group?
Prof. LOGANY : es,of course, because there is always the exceptional
individual, and where there is the exceptional individual then naturauy
one has to take him into account.Inthe case of the exceptionalindividual,
sometimes the regulations bear heavily upon him-1 think there 1s no
question of thiç. There are in every one of the communities, every one
of the Native groups, 1 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 t.hat is whatisbcing simed at in this particular case, au the
way througI-1-the prevailing level of the greater part of the group.40~ SOUTH WEST AFRICA
A few, yes, 1 think unquestionably are harmed by this; we have exactly
the same thing in our own societies.
Mr. G~oss:Professor Logan, 1shall endeavour to make my questions
shorter and more specific if I possibly can and, with the President's
permission, may 1invite you to match me ifI succeed?
Prof. LOGAN;1'11 try, sir.
Mr. GROSS:1 would like to refer, Mr. President, to the verbatim
record of8 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 thiswas with respect to the northern Reserves,
1believe, was it not, sir? ShalI I read it first and then ask you to qualify
it?
Prof. LOGAN:Please, since 1 don't know page 365.
Mr. GROSS:Right.
"The population density [and 1 quote] as 1 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
popuIation pressure isseeking escape in several directions."
This is on page 365, supra. You recall that?
Prof. LOGAN:Yes.
Mr. G~oss: 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:
'I
... the other means of escape is to shift from a subçistence agri-
culture base alone, to some sort of base in which cash is involved
and, in this, the Ovambo have corne to be increasingly interested in
going outside Ovamboland to work".
1thinkithasbeen eçtablished, has it not, sir, that there are approximately
25,000 to 26,000 Ovarnbos who are normally recruited for labour?
Prof. LOGAN Y:es.
Rlr. G~oss: Incidentally, with respect to the Ovambos recruited for
labour,.you have testified that they go on contracts rangiirg from one
to two years. 1s that not correct substantially?
Prof. LOGAN:Yes, that is substantially correct.
Mr. G~oss: 1 wanted to ask you in that connection, before coming
back to my main question, what is the average rate of return of anin-
djvidual Ovambo labourer-rate of return to the southern sector after
his sojourn home, on the expiration of his contract?
Prof. LOGAN :YOUmean cash return?
hlr.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?
1 mean how many successive contracts of shorter duration would be,
on the average negotiated with him?
Prof. LOGAN:1 cannot answer specifically, but a great proportion of
those who go the first time, return at least a second time and there are
nany contract Ovambos ~ho have been a numher oftimes into the Police
Zone.
Mr. G~oss: So that, from your observation and study, would it be WITNESSES AND EXPERTS 4O7
correct to say that at lest a substantid number of the Ovarnbo male
labourers, who are recruited to go to the southern sector, do return
often and spend a good partof their working lises there, ~oddyou say?
Prof. LOGAN:1 would not go as high as that, but they make several
one or two-year visits to the Police Zone-one or two-ycar contracts.
Mr. G~oss: 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. LOGAX:No, 1don't have the information.
Mr. G~ors: Now, going back to the quotation-going back to the
individuals-withrtdregard to the major question of the population pres-
sure and thi: means of escape by shifting from a subsistencc agriculture
to cash, the Ova~nbohave corne to be increaçingly interested in going
outside Ovamboland to work. 1sthis population density, the population
pressure that is involved, a phenornenon which has a tendency to in-
crease or dccrease?
Prof. LOGAN :The population pressure?
Rlr. G~oss: l'es.
Prof. LOGANT : he population pressure is increasing. Under the old
tribal conditions of earlier times the mortality rate balanced the birth
rate and there waçvery 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, has been greatly
dropped and this has resulted in quite a soaring of population.
Alr. CROSST : herefore this bears, does it not, at the present time, at
least, on the question ofthe extent ofthe volition ofan individual working
and living in the southern sector and notinOvamboland 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 it nohave an effect on the exercise ohisvolition, in the
sense in which you use the word?
Prof. L0t;nrr: Any man in Ovamboland can still livc and exist at
a normal Ovarnbo standard without going out ...
Mr. GROSS :1 am talking about the other way round, sir.
Prof. LO~AN:But, if he wishes to achieve anything above this Ievel
then his eaziest way and hiç best way of doing it is to go out.
Mr. GROSS: 1 an1 talking about it from the other side, sir. Would
you take it now from the standpoint of the individual residing, living
and working inthe southern sector who içconçidering whether to exercise
his volition in favour of çtaying where he is, subject to the limitations on
his freedornç which are admitted to esist, or to go, whether he has been
there befort: or not, to hiç territory. In exercising that volition, if he
were alvare of the problems, mould the population pressure and its
consequenci:s affect his freedom to make a decision?
Prof. LOGAN:But the population pressure just described is only
in Ovamboland; and al1 of the other Natives, which 1 take yau to be
talking about, would not be going back to an over-populated Reserve.
They woultl.be going back to their omn Berero or Dama or Nama
areenot over-populated.t be over-populated. The southern Reserves
MT. GROSS: So that the ansver to my question is thatthe person
exercising the volition thatwe are talking about would have to decide 40~ SOUTH WEST AFRICA
whether or not to move himself and his family to a Reserve within
the Police Zone.Is that it? Thatwas what yaur answer implied?
Prof. LOGANY :es, and therefore there is no relation to this population
pressure in Ovamboland. The two are totally distinct from one another.
Mr. G~oss: Yes. Now, with respect to the Ovambo who is recruited
by the conditions in Ovamboland which yoii have described, and heffected
goes to the southern sector, as you have tcstificd 1 think, to obtain
cash in order to live above the subsistence level that prevails in Ovambo-
land. 1sthat correct?
Prof. LOGAN T:hat is correct.
hfr. G~oss: So that in his case, in the case of that individual or the
group of 26,000-they come to work in the southern sector for economic
gain which, to them, meanç living above a subsistence level or not.
1s that correct?
Prof.LOGAN T:hat is correct, yes.
Rfr.GROSSS :Othat, in their case, if they were subjected to limitations
imposed upon the freedorns by reason of being present in the so-called
White territory,in your judgment would they have a free choice-
exerciseofvolition-in the sensein which you usethe word, as to whether
or not to stay home or to go to work for cash elsewhere?
Prof.LOGAN1:believe they are subjected to most of the limitations,
as you put it, that are already existent and affecting the other people.
Mr. GROSST :hey are, sir, we can take that asgivehly question is-
that being the case, and the having no place but a bare subsistence
economy to live in in Ovam g oland, 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 labourers, hasa free choice in the
exerciseofvolition, whether or not to stay homeor to cometo the southern
sector for cash.
Prof.LOGANT :hey have a free choice.
Mr. G~oss: They have a free choice tostay in asubsistence economy
or to try to improve their lot by corning to the southern sector?
Prof. LOGAN :Correct.
used?r.GROSS:And this is the sense of the word "volition" that you
Prof. LOGAN:Yes.
The PRESIDENT W:hat is the meaning of "free volition" or "free
choice" whatever was the term you used, Mr. Gross?
Mr. G~oss: Yes, sir, would you explain to the Court, sir, what, in
your response to rny 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." 1 asked you and you said "Yes". Would
you elaborate, if you please, sir?
Prof.LOGANT :O my mind "volition" means "of one's own will",
of "one's own desire", and I think the word "free" is unneceçsary in
the case here. I3y this 1 mean that the people who wish to come to the
Police Zone tu 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 voIunteer for labour and then at a certain date are WITNESSES AND EXPERTS 4O9
told to report ata certain recruiting headquarters from which they are
transported into the Zone.
hlr. GROSS : r. President, may I clean up my grammar, with the
permission of the Court and the ~vitneçsby 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-1 have
referred toVI, page zo3-contain the following sentence, which paren-
theticaily refers to the Applica~its and States: "Applicants' basic premise
iç,of course, false :therinifact no 'population pressure upon the lan"'.
Would you comment on that statement in the light of what you have
said?
Prof. LOGAN : es,1 think that if you refer back tomy testimony of
yesterday, you will see that 1 said "this is approaching population
. pressure", 1do not think 1 said "was over-populated". The area is not
over-populat ed, it is approaching thiç ; furthermore, there is within it-
it being a purely agricultural area-noopportunity 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 eve~itual population pressure which is seeking outlets in various
ways as we indicated. But 1 do not feel that itisan 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 1 may clear one point
-of subsistence economy, but subsistence economy does not necessarily
denote impoverishment or malnutrition or anything of that sort. Al1
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 level; but this is not a
caseof impoverishment ormalnutrition or anything detrimental.
hlr.Gxoss: 1 wouId like to remind you, Professor Logan, that in
your testimony which 1 have referred to on page 365, su$ra, of the
verbatim of 8 July, 1 quote the following sentence: "The population
pressure isseeking escape in several directions."
The PRESIDENT : here on the page it isMT. Gross?
Mr. GROSS: Page 365 in the second paragraph-the middle of the
paragraph.
Prof. LOGAN: "PopuIation pressure" and "over-population" are
two different things, and there is population pressure here but there
is not yet over-population: 1 would make a distinction between the two
of them. 1 do not think the area isoverpopulated: there isa pressure
upon the land already.
Nr. GROSS: Professor Logan, if 1may suggest, sir, 1 do not mean to
curtail your response, but wemight save time if we understand the ques-
tion. 1want togo back to the sentence 1 quoted from the Rejoinder, VI,
at page 203: the sentence is: "Applicants' basic premiçe is, of course,
false: there is in fact no 'population pressure upon the land'." 1oread
the sentence from page 365, supra, of the verbatim of 8 July, in which
you Say; "The population pressure is seekingescape in several directions."
The PRESIDENT : r. Gross, if you read the preceding paragraph, you
will see it has been said, partlat least in the context, that the popula-
tion pressure is from Angola.
31r.GROSS :iell, Mr. President, 1fthen may, sir,ask ProfessorLogan410 SOUTH WEST AFRICA
forthe 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 persona1 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 thereisa pressureupon the resources of the land.
Mr. GROSS O:ne 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 : 1think we are using two terms.
Mr. GROSS W: e, being who, sir?
Prof. LOGAN:The person who wrote that report.
Mr. GROSS : Yes, sir.
Prof.LOGAN :.. .and myself are using the two terms sornewhat loosely,
as perhaps 1 have done earlier here.1think that there is no over-popula-
tion, there is some population pressure.
Mr. G~oss: Would you be prepared to express a view asto whether
the Applicants' premise that there is population pressure is false?
Prof.LOGAN : Yes,1 would Say that the Applicants' contention is false.
Mr. G~oss:That there is no population pressure?
Prof.LOGAN N:O.
Mr. G~oss: That there is population pressure?
Prof. LOGAN :There is no over-population, but theris population pres-
sure.
Mr. GROSS:The Applicants' statement said nothing about over-popu-
lation, wodd you bear with me. The statement quoted is: "Applicants'
basic premise is,of course, false: there is in façt no 'population pressure
upon the land'." Would you characterize that statement, that premise
of the AppIicants, as false?
The PRESIDENT1: do not think you can put a question such as that,
Mr. Gross. You can ask the witness whether or not he agrees.
Mr. GROSSW : ould you agree, ifyou were asked the question, "1s the
statement that there is population pressure upon the land a falçe or true
statement", how would you answer the question?
Prof.LOGAN1 :would answer it, that itwas ... 1 am sorry 1 have lost
the statement now. The statement is, that there is over-population.
nlr.GROSS:There is"population pressure upon the land"-that is the
statement. If you were asked your expert opinion as ageographer, hav-
ing. . .
Prof. LOGAN1 : would have to Say that there is population pressure
upon the land. 1would also want to say that tliere is no over-population.
Mr. GROSS:Thank you. Now, 1 would like to refer to a comment in
your testimony with respect to the communication among various tribes.
1refer to the verbatim record of8 July:
"The language differences betuaen each of the individual groüps WITNESSES AND EXPERTS 4IX
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 isno 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 theiown
language patterns." (Supra, p. 368.)
Now, in order to refresh your recollection about the groupsreferredto
1\vil1read:
"There are two basically completely different languages within the
area; tlie Khoisan language of the southern portion (.theNama, Da-
mara and Bushmen language) is basically different in al1of its fun-
damental characteristics from the languages of the Bantu peoples."
(Ibid.)
1 beg yoiir pardon, 1 think that the groups you are referring to are
further back in the record.I think they are-correct me if 1am wrong-
"the Ovambo, the Okavango, the inhabitants of the Caprivi Strip, the
Kaokovelders, the Herero, the Damara, the Nama and the Bushmen".
The PRESKDEN T:ould you give me the page, Mr. Gross.
Mr. GROSS: At page 368, the first paragraph of Professor Logan's
answer to the question ofSir. Muller.
Let us clarify the record here, because the context is somewhat con-
fusing, Ithink. When you refer to the language differencesbetween each
of the individual groups within thearea (the ones1 named amoment ago)
were you referring to the Khoisan versus the Bantu, or were you referring
to the separate groups enumerated earlier on that page?
Prof. LOGAN: 1 think there is a parenthetical expression in it that says
"for the most part" or "inmost cases". If 1allow thst to stand then1 am
referring toal1the sub-divisions within the groups.
hlr. G~oss: No, that isnot what you did Say. May 1 refresh your recol-
lection as to ~vliyou 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 1 named a moment ago-are, in nearly
every case, so profoundly different that one group cannot speak to
the other, thereisno way of communicsting 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 \vould you . , .
Prof. LOGAN: The last sentence is incorrect.
Mr. GROSS: It may be modified ...
The PRES~DENT 1:think not, Mr. Gross, it says "aside from certain
curious exceptions . ..none of the groups".
Mr.GROSS :Aside from ccrtain curious exceptions, such as the Damara
who speak Nama, none of the groups are able to converse with one an-
other . . ." Are there any other curious exceptions?
Prof. LOGANY :es,there are a couple of others.The Kaokovelders are
either Nama who can speak to other Namas, or splintex-groups of Herero
who can converse well, or poorIy, with other groups of Hereros. 1 think
that is the limit of the exceptions.
Mr. GROSÇ:Right, now for the sake of clarity in your response, will
you address yourself, ifyou 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 : o, there is nothing in South West Africa comparable
to Swahili, for example, on the East coast, or to Papiamentoin theCa-
ribbean, or pidgin English in the South Pacific. There isEingzlafranca
that is generally used.
Now among the Natives of the Police Zone fsrms and Reserveç a fairly
high proportion speak Afrikaans and so Afrikaans becomes something of
a lzngua francathere, 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 theWhite population of the Territory. Sothis is used by some.
When you get into the Reserves of the north, where the IVhte influ-
ence has not been feltasstronglyin the local communities, then there is
not even Afrikaans as a linguafranca.
Mr. GROSÇ: The testirnony given on 7 July 1965 was being given by
Dr. Bruwerwho, with respect tothe question of the development oflingua
franca,said as follows when he was asked about the language position in
response to a question by an honourable Mernber of the Court:
"Now, Mt- 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 uçe of either English or Afrikaans. As to the devel-
opment of a Zinguajranca, 1 cannot Say that a Zinguajranca,apart
from Afrikaans and English, has developed in South West Africa, a
language which one could Say isas such, something that mas devel-
oped in South \Vest Africa and that is rinderstandableby al1 the
people.1 have tried, &Ir.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 1
will cal1 your attention:
"As to the use of English and Afrikaans as media of communi-
cation, Mr. President,1 have always been astonished that it is pos-
sible in South West Africa, practically everywhere, to make onesclf
understood in either English or Afrikaans. As a matter of fact, in
Ovamboland-1 have more knowIedge of the Ovambo people, 1
think, than any 0th-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, which1 think is irrelevant to this
purpose] ... 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 çay that it has deveioped intoa Eingziafranca, and that
applies actually to both the two officia1languages, Afrikaans and
English ..." (Szlprap. 328.)
Would you comment on that in terms of your testimony with regard
to the difficulty of communication in the absence ofZingua franca?
Prof. LOGAN :would agree quite thoroughly with it1 would not have
assumed that Afrikaans was quite that widespread inOvamboland, and
1 am sure it is not in the Okavango, as perhaps that seems to imply, but
1 would subscribe to it completely, yes. WITNESSES AND EXPERTS 4I3
Mr. GROSS Therefore, the development of aZinguafranca, in this sense,
is something which you have observed, is it?
Prof. LOGAN:NO, 1 Say that there is not a Zinguafranca other than
Afrikaans.
BZrGROS Sive111am talking about linguafranca in terms of a language
used by more than one language group. They communicate with eüch
other through the medium of Afrikaans, is that correct?
Prof.LOGAN : Yes.
hlr. GROSS:Professor Bruwer stated that "the fact that the use of a
language {which interested him very muchj in such a form that one could
Say that it lias developedinto a lingua franca,and thatapplies actually
to both the two official languages, Afrikaans and English".
1 thoughf, if 1 understood you correctly, that you said you agreed
with Professor Uruwer's çtatement which 1read to you. Did I misunder-
stand you, sir?
Prof.LOGAN: Well, 1 must be misunderstanding myself. Yes, 1would
agree with what is said there, with what you have just read.
Mr. G~oss: Tliat the Ianguage has developed in such a form that it
has developed into a lingu fraltca and that applies actually to both Afri-
kaans and Englisli. You agree with that, sir, do you?
Prof. LOGAN :Yes.
Mr. G~oss: So that anything that might be in the record that might
be understood as saying that you do not think there is alingtra francais
not correct,is that correct?
Prof. LOGAS: Well you see I use the term Eingrrafranca apparently
differently from you and $Ir. Bruwer. Lingz~afranca, to my rnind, iç a
language which has developed out of several other languages and is used
by a wide number of people. That is the case bvith Swahili, urhich is iiot
the languago of any people, itis alanguagedrawn from several different
languages. Pidgin English is the sarne way, Papiamento is the same
way, they are made up of several different languages. But in this case
Afrikaans has been adopted as a language which is used by a number
of people. Thcrcforc if we use the term li~zgztafranca loosely to inciudc
a language which has been adopted by others, then yes, this would be
correct.
Mr. G~oss: Well, 1think that takes us far enough in tliis direction, the
point being, apart from the usage of your interpretation of the phrase
"lingua franca", as distinguished from Professor Uruwer's, that there is,
in your observations on the basis of study, a large degree of communi-
cation possil~leamong the various groups.
Prof. LOGA NBut only by going to a European language, not within . .
Mr. GROSS 1:am trying to avoid confusion by assuming that thisisthe
situation, which 1 am sure jou and Professor Bruwer are right in de-
scribing. Regardless of the medium of communication, whcthcr 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 diffe1s that correct?
Prof. LOGAN :hat is correct, except in the Native Reserves of the
north, as 1 said at the beginning ofmy statements here, particularly in
the Okavango, where Afrikaans is still not even used.
Jlr. G~oss: What about Ovamboland, sir?
Prof. LOGAN: Professor Urnwer knows far more about Ovarnboland4I4 SOUTH WEST AFRICA
than 1,and, consequently, 1 would bow toany testimony that he stated,
on Ovamboland.
Mr. GROSS :O 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, many Ovambos do. Is that
correct?
Prof. LOGAN: If that iswhat Professor Bruwer said, yes.
Mr. GROSS : Have you been in Ovamboland?
Prof. LOGAN:Yes.
Mr. GROSS: Did you discuss matterç affecting the welfare or interests
or conditions of the people there?
Prof. LOGAN :Yes.
Mr. G~oss: In what language did you speak, sir?
Prof. LOGAN : Principally in English.
Mr. GROSS : id you speak with any Natives-classified as Natives?
Prof. LOGAN : Yes.
Mr. GROSS: They spoke to you in English?
Prof. LOGAN: In most kraals you can find a personwho speaks English
because this is a man who has been in the Police Zone, as a contract
labourer.
Mr. G~oss: 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, persons clas-
sifiedas non-White?
Prof. LOGAN:Yes.
Mr. GROSS: In what language did you speak there?
Prof. LOGANI:n the Police Zone, nearly al1Natives speak either Afri-
kaans or English, basically Afrikaans.
Mr. GROSS: And these persons, with mhom you talked, were not all
Ovambos, were they?
Prof. LOGANO : h,no.
&Ir. GROSÇ:SO that an Ovambo who speaks English or Afrikaans is
capable of communicating with a Herero who speaks English or Afri-
kaans?
Prof. LOGAN:Absolutely.
Mr. GROSS:SOthere is between them that possibility of communi-
cation?
Prof. LOGAN:That isquite correct.
The PRESIDENT: 1 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. G~oss: Yes, sir.I had, with respect, Nr. President-1 am afraid
1 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 vernacular, or tribal, or whatever you may cal1 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 WITNESSES AND EXPERTS 4I5
regard it as important, from the standpoint of the development of the
individual, the ability to communicate with others, that he do receive
Ianguage instruction?
Prof. LOGAN :Absolutely.
Mr. G~oss: In Afrikaans, or English?
Prof.LOGAN Y:es.
hlr. GROSS:Had you corne to a conclusion as to what level it would
be desirable or necessary tocarry hirn in his learning,in hislearning, his
accornplishment in one of the liagua francalanguages, in terms of Dr.
Bruwer's cla~siiication?
Prof.LOGAN : es.
Mr. G~oss: 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 çuficient to allohim to communicateclearly
with anyone.
Mr.GROS :On any particular range of questions, or al1questions per-
taining to his life in the modan 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 1 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 "1
don't necessarily agree with everythingin the Odendaal Commission re-
port". Do you recall having said that, sir?
Prof. LOGAN :Yes.
Mr. G~oss: You have studied the Odendaal Commission report?
Prof. LOGAN : es.
hlr. G~oss: Did you have anything to do with the preparation of the
report?
Prof. LOGAN : Nothing whatever.
Mr. G~oss: In the Odendaal Commission report itself, 1 quote from
page 427,paragraph 1431 ,he 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 focalpoint. Thmodern economic sys-
ternand the traditional system are therefore not comparableor read-
ily reconcilable. Their problems are different, their human values
and motivations are different. Consequently, there has to be adif-
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. G~oss: In his testimony of 5 July, which isin the verbatim, at
page 269, su#ra,Dr. Bruwer was asked the following question by the
Applicants : .
"DO you consider, as a social anthropologist and asa member of
the Odendaal Commission, that there are any individuals catego-
rized as non-White in the southern sector who have attained the
status of the focal point as an individual?"qr6 SOUTH WEST AFRICA
The answer was :
"The focal point, that is where one can now Say that it jthe cri-
terion of the modern economy that complies, I think that one could
wellSay that there may be individuals of that nature."
That was in the context of the southern sector; we were addressing
ourseIves to the southern sector outside of the Reserves with 125,000
Native perçons, as they are categorized, who live there. Do you agree
with the response of Dr. Bruwer that one could well Say that there rnay
be individuals in this area to whom the focal point, the consideration of
moral and economic principles, isapplicable?
Prof.LOGAN : Yes.
Mr. G~oss: As individuals?
Prof.LOGAN: Yes.
Mr. GROSS: Have you held discussions with such individuals in your
studies in South iVest Africa?
Prof.LOGAN : Yes.
Mr. G~oss: By what criterion or standards would you be prepared to
express a judgment or reach a conclusion as to whether the individual
has 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. LOG~N:Yes, when he has acquired a persona1 stature in business,
in education, in his thinking so that he begins to separate himself from
the group and stands above the group.
Mr. 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 judgrnent would be
based, other than what I have just said? How would you know whether
to apply these standards which you have mentioned to a particuiar indi-
vidual? Would you leave it to the individual to make the determination
and advise you whether he has matriculated to that extent?
Prof.LOGAX : No,1 think that iisquite clear in many cases,when you
encounter such a person, a person who has had an education above the
first tu70 or three years of schooling, xvhenthe person owna business or
conducts some kind of professionaldevelopment or operation ;this person
obviousiy 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 çhould be judged as an individ-
ual and not as a member of a group in terms of his rights and duties
and freedoms?
Prof. LOGAN: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 imposeti upon his freedoms will
always be regulated or measured by reference to the fact that he is clas-
sified in a certain group?s that correct?
Prof. LOGAN:Yes, 1 think so, esactlv the same way as you are clas-
sified as an American lawyer rather than a Dutch lawyer or a Japanese
lawyer, ïvïthin your group.
Mr. GROSS :laçsified by law?
Prof. LOGAN:Just thinking generally, in as far as your passport is WITNESSES AND EXPERTS 4I7
concerned, as far as your salary is concerned, this al1 fits within your
particular group to which you belong.
Mr. GROSS : re we talking about the classification among professions
or are we ralking 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 tha1 was talking about.
Prof. LOGAN: Well, 1 would have to know, first, what you mean by
limitations of rights and freedoms.
Mr. GROSS: YOUhave testified, 1 believe, in the following words, at
page 343, supra, of the verbatim of 7 July:
"I am quite aware, however, of the rights and priviieges and the
limitationsthereon, as anyone living in and observing criti~ally and
carefully a society ordinarily is, and consequently 1 think 1 can
tnlkxith afair degree of certainty in regard to how much freedom
or lack thereof there is on the part of the Native group in South
West dfrica."
1 am talki~ig now, about the question of "freedom or lack thereof", with
respect to ;rparticular individunl and when I use the phrase "limitations
imposed upon freedom" 1 am using it in the same sense in which,1 take
it, you were using it, or do you have a specialsense 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 tby
"limitations upon freedom" for the man mho islet us say, a tradesmana
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 atrades-
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 sel1merchandise within the
Ilihite 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. G~oss: You Say that there isa limitation?
Prof. LOGAN:Yes.
Mr. G~oss: Imposed, or is it voluntary on the part of the individual-
is it imposed by the Government, or is it voluntary?
Prof.EOGAK: Itis imposed bp law.
Mr. GROSS: So that now we understand each other on what we mean
by the imposition of limitations; whatis left now is to develoan under-
standing for the benefit of the Court as to whaturemean by freedoms-
is that correct?
Prof.LCIGA :AILright.
ilIrGROSS: Now, are you aware of any deprivation of freedoms with
respect, let uSay, tothe ability to attainacertain level of employment,
merely on the basis of race or colour?
Prof.LOGAN : Yes.
Mr. GROSS: Would pou regard that as a limitation upon freedom?
Prof.LOGAN : Surely.
&Ir.GRCISS :es.
Prof.1-C~GA BNut itmust be viewed in the whoIe context of the coun-
try,because it works in both directions.418 SOUTH WEST AFRICA
Mr. G~oss: 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, and1 am referring to the im-
position of limitations upon the freedom of an individual. May I ask
yon, sir, do youregard limitations of freedorn asbeing characteriçtically
individuaI in their application.
Prof. LOGAN :ome are individual, some are group; there are both
types of limitations imposed in the area, yes.
Mr. GROSS :an a limitation be imposed upon a groupa limitation
of freedom-which is not imposed upon the individuals composing that
UOUP?
Prof.LOGAN : Probably not.
Mr. G~oss: Probably not, sirBut a "group" in that context isa pure
abstraction, isjt not, if we are talking about limitations on freedoms,
and merely describing a nurnber of individual perçons wliose 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,
letus say, some forms oflabour, if he has theinnate capacity to perform
services at a higher Ievel. Would you agree that isa deprivation of the
individual's freedom?
Prof. LOGAN T:hat is correct, within the particular area concerned.
Mr. GROSS : he area of an individual1 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. G~oss: That is what we are talking about.
Prof. LOGAN : ithin his own Reserve, however, he can go toany level;
within the Native township within the European area of the Police Zone
he can go ta 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: 1 think the Court is aware of that, thahas 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 al1his 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. LOGANB : uthe isonly deprived of theçe because he likes to live
in Windhoek, or ta work in that mine, or work in that farm or factory,
andif he does not wish to live in Windhoek, then he can go to his Reserve
area and live there and enjoy those freedoms.
Mr. GROSS S:o thatthe price of his living in Windhoek, the price ïvhich
he must pay for the privilege of living in Windhoek, is a limitation im-
posed upon his freedoms-is tliat correct? WITNESSES AND EXPERTS 4I9
Prof.LOGAN:A limitation imposed upon certain freedoms, yes. The
freedom tri gabove a certain level economically, but only that.
Blr. GRCIÇS 1s this, Professor Logan, what you had in mind when you
testifiediri theverbatim record at page 354,sufiva-that would be on
7 JuIy-as follows-1 will read from the text of your testimony, so that
you have it clearly;you said, amongother things, afollowson that page:
".. .Ihey [that is, in this contextIbelieve you were referring to
the Herero] are engaged in a wideariety 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, rangingup toas high astruck driver and chauffeur; they work
asdeliveryrnen, and positions othat sort."
1 cal1 your attention to the phrase you used "as high as". UTouldyou
explain wliat you meant by that phrase?
Prof.LOGAN: Well, again they are limited in being employed at a
higher levelby theJob Restriction Act within Windhoek-we are talking
about witliin the towns.
Mr. G~oss: 1am talking about any pIace you wish to talk about within
the southern sector, outside the Keserves.
Prof. LOGAN : es, that is correct.
Nr. Gnnss: Just to localize it,so that we know what we are talking
about.
Prof. LCIGAN But it is not true within Katatura.
Mr. GROSS:1 am not asking you, sir, where it is not true-we can
corne to that, perhaps, later, if it is relevant.
The PRI<SIDEN1 Tthink perhaps the witness had better answer the
question, ifyou can, directly; if you needto add an explanation, then
add the esplanation.
Prof. LOGAXB :ut Mr. President, the point is that within the Police
Zone outside the Reserves there still is the Native area lvithin Windhoek.
&Ir.GROSS: 1object to that,Mr. President-it isnot being responsive.
The PRICSIDENT W:ell, 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
-1 think we al1know it-what is being said at the moment.
Rr. GRCISS 1:willnot formally object.
The PRISSIDEN T :ll, continue the cross-examination.
hlr.GRCISS D:O YOU wish the witness to continue?
The PRESIDEWT N:O,continue the cross-examination.
Mr. Gxoss: We are talking about the group of individuals who Iive
in Windhoek, or an individual who lives in Windhoek, now. You have
explained to the honourablc Court what you meant by the phrase "as
high as" in the testimony which Ihave quoted, and I believe you tes-
tified, 1funderstood you correctly, that you had in mind the restrictions
that were put upon his achieving higher employment status-is that
correct?
Prof. LOGA NThat is correct.
Mr. G~oss: Now do those restrictions,on the basis of yourstudy and
analysjs, have any relationship to the individual's innate capacity or
persona1 potential and ability?
Prof. LOGAN: They have no relation to this, no.
Xr. GR<ISS :fiey are based entirely, are they, on his classification
under the census?. 420 SOUTH WEST AFRICA
Prof.LOGA N That is correct.
Mr. GROSS: And would you, sir, in your use of the word "freedorn"
in the context in which you said that you felt capable to 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. G~oss: Would you explain to the Court how the individual whose
freedom is limited in this respect is madeany happier or easier by know-
ledge that somebody else somewhere else is also being deprived of his
freedom; would you please expressa judgrnent concerning what relevance
that has to this individual's attitude?
Prof. LOGAN: It has no relevance, but the man has the opportunity
hirnself togo 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.
hlr. G~oss: 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 farm in a good area, and is pre-
vented from this.
Mr. G~oss: Sir, may 1 ask you, without indulging in anything, or
attempting to suggest anything persona1 about this, do you, in your
approach toward this matter, always evaluate the question of whether a
person's freedom is being limitedby reference to what somebody is doing
to somebody else?
Prof. LOGAN :No.
Mr. G~oss: Do you have any objective standards or criteria-~vould
you know when you were being, in the good old American expression,
pushed around?
Prof. LOGAN:Yes.
Mr. G~oss: What, then, reIevance-again T ask the question-does
it have in terms of the individual whose freedom is being curtailed to
know that somebody else is aiso suffering somewhere else-if he chooses
to go there, he will see somebody else suffer in the same way he does-
isthat what you are telling the Court?
Prof. LOGAN: Not exactly, no.
Mr. G~oss: Well then, 1 would like you to explain to the Court-and
1will attempt not to argue with you on this point but genuinely to under-
stand you-for the benefit of theCourt: 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 limited,
where he lives, where he works and where he wants to stay-what is the
relevance of the other factor?
Prof. LOGAN: 1 think everyone's freedom ha always been curtailed
by something, somewhere, and the attempt is bejngmade here to devclop
an area on a basis of groups.
Mr. G~oss: An area in the southern sector?
The PRESIDENT:He is answering your question, Mr. Gross.
Mr. G~oss: Mr. President, 1 find it very difficult to understand whether
he is being responsive. WITSESSES AND EXPERTS 421
The PRESIDENT: Sometimeç the Court may find the question very
difficult to understand.
hlr.GROSS: If the witness,Mr. President, finds my question difficult
I urge that he request clarification, b1tapologize for interrupting.
Prof.LOGAN:1 am talking about the Territory, the entire Territory,
and the atternpt that is being made to develop the entire Territory for
the best interests of the groups, an1repeat groups, thnt are inhabiting
it;and soinetimes, in the development of groups of people, thc interests
of individuals have to be sacrificed, and 1 think that in this case the
interests of some individualshad to be sacrificed to develop the groups
of the area.
Mr. GROSS:Are you finished, sir?
Prof.LOGAX: Yes.
Mr. GROSS: On what bais do you determine, and who makes the
determination, who sacrifices what?
Prof.LOGAN : 1could not answer that-it is a hypothetical question
that could be answered in many ways.
Mr. GROSS Y:OUwill limit your answer to the general statement that
you made that some people have to be sacrificed?
Prof. LOGAN : es.
Mr. GROSS:Would you care to indicate an approxirnate percentage
of the population who must pay that price,inthe context of the southern
sector of the Territory?
Prof. LOGAN :I find this diEculto do, to put a percentage basis on it.
hlr. GROSS:Are you making a moral judgment, sir?
Prof. LOGAN:No, 1 am not making a moral judgment-1 mean, 1find
it difficult to say thItper cent. or 3 per cent. o5 per cent. are being
sacnficed. It would be a very small percentage in the situation as it
stands today.
hlr. GROSS:Would you regard 5 per cent. as a srnall percentage?
Prof. LOGAN: Yes, 1 think so.
Mr. G~oss: You would be prepared to sacrifice 5 per cent. of1z5,ooo
people to accomplish the objectiveto which you refer?
Prof. LOGAN:We have done this in war, as many tirnes.
hlr. GROSS:Do you regard this situation in South West Africa as a
matter of war?
Prof. LOGAN : O,1 do not know any more peaceful area in the world
than South West Africa.
Mr. GROSS :et us talk about the peaceful context, then. The sacrifice
is tobe made in agiven area by a given set of individuals. May1 corne
back to my question?
Prof. LOGA NSurely.
&Ir.GROSSO : n the basisofwhat criteriaisit to be determined who is
to be sacrificed and howmany?
Prof. LOGAK:The ones who are least inconformance with the pattern
of thegroup, the normal situation of the group.
hlr. GROSS:Suppose, for the sake ofour hypothesiç 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.1 think that the people who were
of a higher development would find their own way of haiidling the situa-
tion, thatthey would not insist on remaining in the area whicli was an-
tagonistic to them, but would find tlieir means ofdevclopment urithin 422 SOUTH WEST AFRICA
the area in which they fitted, in which they wished to develop their own
grouP.
Mr. GROSS:In other words, couId we Say, to escape from that situa-
tion? Would you accept that phrase?
Prof. LOGAN :Yes.
Mr. G~oss: You would.And would that, in yoiir judgment as a student
ofman and his relation to land and the sociological studies you have
made, would that course be likely to drive out or induce thoçe tescape
who might make the most contributio~i to the situatioby remaining?
Prof. LOGAN:NO, 1 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
of the Police Zone-and this lawyer or docto,having been trained, would
not then attempt to find clients among the White population, but
rather would go with the Native population and thereby woüld raise the
whole status of the Native population, of the group to which he be-
Ionged.
, population but wanted to live where he was, where he was born-inivethe
southern sector.Does that have anything to do with the decision?
Prof. LOGAN :He could stilldo this.
Mr. G~oss: Subject to the deprivation of hisfreedoms?
Prof. LOGAN:NO,he could still do this within the Native township
in Windhoek. He couId be with a group of15,000 other Natives and find,
within that group, a number of his own particular cultural group-
Herero or whatever he is.
Bk. GROSSA : nd that township would be, letus Say, near Windhoek?
Near the city?
Prof. LOGANY : es, amile from Windhoek.
Xr. GROSS :And would he then, in pursuit of hiç happiness in this fom,
would he go to Windhoek occasionally? Would that fit into the scheme?
Prof. LOGAN:Surely.
Bfr.GROSS: And for what purpose would he go to Windhoek?
Prof. LOGAN :O buy goods thât were not available within the Native
township; to take a trip on the train; to do things of this sort.
Mr. CROSS:To attend lectures, perhaps?
Prof.LOGAN :He could attend lectures, yes.
Mr. G~oss: He could participate in the lifof the community subject
to the limitations on his freedoms?
Prof. LOGAN:Not in the social aspects of the life of the White com-
rnunity, no.
Mr. G~oss: How many non-Whites preçently reside in Windhoek?
Prof. LOGAN: In Katatura you mean? In the Native area ofWindhoek?
There are somewhere around zo,ooo between Katutura and the old
location of Windhoek.
Mr. G~oss: Do any non-Whites work and reside in the homes ofWhite
employers as domestics? You referred to that in your testimony.
Prof. LOGAN:Yes.
Mr. GROSS : rethey people?
Prof. LOGAN:Surely.
Mr. GROSSD : Oyou have any idea roughly how many there are of that
categoqi?
Prof. LOGAN:NO,I don't. It will be sevcral thousand. WITNESSES AND EXPERTS 423
Mr. GROSSA : ndare they arnong those whom you think would find
their freedom and pursue their happiness in the townships by leaving
Windhoek ifthey felt thathey were being denied freedoms?
Prof. LOGAN:Well, they live in the home in Windhoek. On their day
off or theis hours offthey frequently go to Katutura, which is only a
short distance aivay and there ia regular bus service. They go there to
visittheir relatives and their friends.
Mr. GROSS :Owhen you talk about the person escaping from the local
situation areyou talking about occasional visitto the townships?
Prof. LOGANN : O,we were not speaking in that category, we were
speaking about escaping in order to geta higher job claçsification.
Mr. G~oss: That is what 1thought we were talking about, sir.
Prof. LOGAN: Well, now we seern to have drifted towards social
aspects.
Mr.G~oss: 1 apologize for leading us into the dri1tdo 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, jsthere any way in which they can escape, from the
limitation upon their freedoms except by going to the townshipç, to the
Reserves, or to some homelaiid?
Prof. LOGAN:I fail to know what these restrictions are upon their
freedom that you are speaking about.
Mr. G~oss: 1 thought we had agreed, sirthat 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. 1thought you
had agreed that that was a limitation.
Prof. LOGAN: That is correct. Rut you have already employed these
people insorneone's home and that takes care of the situation then.
Rlr.GROSST : heperson employed as a domestic wishes to, let us say,
become a nurse. Shall we indulge that hypothesis?
Prof. LOGAN Yes.
Mr. GROSS : OYOU considera nurse asbeing higher than a domestic?
Prof. LOGA NSurely.
Mr. GROSS :ctually al1formç of labourI suppose, have a comparable
dignity, but thisis, ithese terms, hawever.
Prof. LOGAN : Yes.
Mr. GROSS: Now, is the li~nitation imposed upon this person, or this
group, which you testified is irrespectiveof their innate capacitp or
ability,isthat limitation one which you would regard as a limitation
upon thefreedom of that individual?
Prof. LOGAN: But there iç nothing to prevent this domestic servant
from becoming a nurse. There are large numbers of native nurses in
Windhoek.
htr.G~oss :In LVindhoek?
Prof. LOGAN : Yes.
&Ir.GROSSA :l1right.Then there are not limitations placed in every
respect?
Prof. LOGAX :O.
Mr. GROSSN :ow, arethere any male non-White5 who livein IVindhoek
in domestic servicc or otherwise?
Prof. LCIGAN Yes.
hir.G~oss: Now, suppose such a person felt hehad the capacity to
risehigher than, letuçSay, a truck driveror arnessenger and rcmain in424 SOUTH WEST AFRICA
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 asemployment isconcerned within the area of the outside of Katu-
tura. He would be unable to go to higher job classifications. Within
Katuturri he could go as high as Iiewishes.
Shere iç 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. GROSS1 :have not sought to suggest that Katutura was a barren
wasteland, but 1 am referring to the individual who wishes to work in
Windhoek and live in Windhoek and he is in domcstic service now.
Can he rise higher than domestic service and remain in Windhoek,
living there,iswhat I am asking you now?
Prof. LOGAN:Not in \tTindhoek, but in Katutura one mile away.
Mr. G~oss: Or in New York, or in Spain. But 1 am talking about
whether he can live in Windhoek except in the capacity of domestic
service.
Prof. LOGAK :NO.
Mr. GROSS : ow, with respect again tu the use of the focal point of the
individual as distinguished from the focalpoint of group-1 quote from
the words of the report of the Odendad Commission to tvhich 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 judpent
respecting the degree, and kind, of limitations which should be imposed
upon freedoms?
Prof.LOGA NYes.
Mr. G~oss: Would you Say also that the divergence of the perspective
might lead to differing uses of concepts in ternis of reference?
Prof. LOGANY : es.
Mr. GROSS :or example, let us take the tem "the Natives" which
you have used numerous times in your testimony-"the Natives". 1s
this a scientific or technical term as you use it?
Prof.LOGA NNo. 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. 1 am a native of
Massachussets. 'Irou are a native of New York, or someïvhere in the
United States.
Mr. GROSS :OW,when you talk about the group in terms of, 1et.u~
Say, from your testimony, the Herero. Let us take that phrase which
appears, among other places, in the verbatim record o8Julÿ on page 369,
supra. Uou Say, and 1 would like,with the Court's permission, Mr.
President, to read a very brief excerpt so that this is in context, as
folIows:
"The Herero are a cattle people and al1 of their tribal law and
tradition, their customs, includingarriage, and a variety of things
of this sort, are based upon the fact that they are a cattle people,
that is, onebuys a bride in cattle, there is a bride price in catt!e
paid. The fact that [I am skipping a sentence] they were nomadic
people and that the men were warriors, arid that the women did
other things and the children did other tliings, means that today, WITNESSES AND EXPERTS 425
followingthe same pattern, the men, as 1indicated before, are,so
to speak, 'unemployed warriors'."
Do you recall that testimony?
Now, wlien you referred to the Herero as "cattle people" what would
be the relevance of that description to thelf of the Hereros who are,
in the wortls of the Odendaal Commission report, "absorbed in the diverse
economy of the Police Zone of the economic sector". Are they cattle
people,those Hereroç?
Prof.LOGAN T:hey are no longer cattle people economically, but the
fact that they still bringtheir children in the tribal traditions reflects
a good deal of this(if I mayuçe such a terminology) cattIe philosophy
-a philosophy involving cattle, invoIving lierds 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, 1910, in roo per cent. 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.
hlr.GROSS A:re you throiigh, sir?
Prof.LOGAP Y;es.
Mr. GROSS D:oesthe fact thataHerero does not own cattle change his
category, sir?
Prof.LOGANI: don't think so as faras his tradition,as faras his
thinking, asfar ashis philosophy is concerncd.
W. GROSS B:ut he will always be one of the "cattle people"?
Prof.LOGANH : estill is, but 1 won't sap he always will be, no.
Mr. GROSS :OW, you Say also thatthe Herero"buyç a bride incattle,
there is a bride pnce in cattle paid". From your observation of the Herero
who are absorbed in the diversified economy of the southern çector, how
rnany cases have you observed orheard of in which a Herero in that
situationhas bought a bride in cattle?
Prof.LOGAN: 1 know of two cases in Windhoek and in the only two
cases 1do know of, the rnarriagetook 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.G~oss: These were two cases that you encountered?Now are there
other cases of which you have heard in which cattle were not paid?
Prof.LOGAN These are the only two Iknow of in regard to this.
Mr. GROSS :nd are there many cases?
Prof. LOGAN: 1 don't know of any.
Mr. GROSS :ou have never heard of any case in which a Herero living
in the economic sector has married $vithout paying cattle or vice versa?
You don't know of them?
Prof. LOGAN :1da not know of them.
Mr. GROSS :o that when you refer to the Herero as people who are
cattle people and that is one whbuys a bride in cattle, you are referring
to certain characteristics or customs which relate tn group of people
in a particiilar contextnd at a particular time, are you? You are not
refemng to the characteristics of the people?
Prof. LOGAN: NO.
Nr. GROSS: Therefore, in terms of the question of the imposition or
othenvise of limitations upon freedoms, the fact that the Herero 1s a
member of a "cattle people" is irrelevant, isn't it-~vould you say?426 SOUTH WEST AFRICA
Prof. LOGAN :I wouldn't say it was irrelevant .
Mr. GROSS:You would not Say it?
Prof, LOGAN : 1 would not Say it was irrelevarit.
Mr. CROSS: 1 see.
The PRESIDENT : ould it be convenient, Mr. Gross, if we discontinued
atMr. GROÇS:Mr. President, may 1 make a staternent to the Court?
The PRESIDENT:If it is in relation to the examination of this witness.
Mr. CROSS:It is in relation to the examination of tkis witness.
The PREÇIDENT:Very well then.
Mr. G~oss: It isreally a rnatter of the balance of convenience of the
Court. 1 am aware of the fact that the testimony of other witnesses is
irnpending and 1think that under the circumstances, entirely on my own
responsibility, si1,would say that perhaps 1will reserve the right, if you
permit me to,tocontinue cross-examination if it were proper to ask whe-
ther Members of the Court also wish to address, becaus1 wouId not wish
to keep the witness here mere1y forrny convenience over the weekend.
The PRESIDENT:Weli, it is now one o'clock, Mr. Gross, and 1 think
the witness will have to come back on Monday in any case. And then
there is Professor van den Haag who is coming on Monday for cross-
examination by yourself. Itkink perhaps the most convenient course is
to interpose Professor van den Haag, but the Court is in the hands of the
Parties.Theintention was to endeavour toenable Professor van den Haag
to return on Monday, 1 gather, to New York or elsewhere in the Unlied
States and, for that reason, 1 think perhaps it iç beiter to interpose
Professor van den Haag. Would that inconvenience you?
Mr. GROSS:Xot at all, Mr. President. My hesitation in bringing the
matter up at al1derives from the fact that1only have IO or 15minutes
more and I just wanted to raise the balance of convenience.
The PRESIDENT: 1think IO or 15 minutes more is too much.
Mr. G~oss: Thank you sir.
The PRESIDENT:The Court will adjourn until hlonday. It is under-
stood that Professor van den Haag will be in attendance on Monday
morning at IO o'clock. 1s that correct Rlr. de Villiers?
Mr. DE VILLIERS: Yes, Mr. President. That iscorrect.We would ;lot
like to keep Professor Logan unduly if weknew 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
first andthen carry on with Professor van den Haag. But 1would 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 about it.
The PRESIDEKT:I think that is a more convenient course. Certain
Members of the Court desire to ask questions but 1 do not expect that
they \vil1run into great length of tirne, if iis more convenient to the
Parties to continue and dispose of the evidence of Professor Logan first
thing on hlonday 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 PRESIIIENT: Ifthat can be done. If it can't be done thenwe 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? WITNESSES AND EXPERTS 4=7
[Pubiic hearingO/ 12Jtdy 19651
The PRESIDENT T:e hearing is resumed. 1 regret to statethat Judge
Badawi has not recovered from his indisposition and will be unable to
resume sitting before the recess former. Judge Koretsky is suffering
from a slight indisposition following an accident. He hopes to be here
later in the morning.
1 understand that the Parties have agreed that Professor van den
Haag should first be caiied. If so, Professor van den Haag should come
tothe podium.
hlr.DE VILLIER Rit.President, before cross-examination begins may
timate that there arettwoComatters on which he wodd iike to make ain-
bnef staternent to the Court before cross-examinationstarts. 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 coriveying the impression, which he did not intend to convey.
He would just like to rectify that. The other rnatter concerns a statement
which he niade in regard to a report which appeared in theNew York
Timesh ;e did not have the source available at the tirne and he was asked
to bring it. He would Iike to make a staternent on those two matters
before cross-examination.
The PRESIDENT A:re there any objections?
Mr.G~oss: No, Mr. President.
The PRESIDENTV :ery well, Professor van den Haag.
hlr.VAN DEN RAAG:Nr. President, on page 160, supra,and also on
pages 155-15s6 u,pra,of the verbatim record for 23 June, 1 made certain
statements which may make it appear ...
The PRESIDENT O:n page 160,is i?
Mr.VAN DEN HAAGA : nd page155-15 oftheverbatim record of23June,
1 make statements which may make it appcar as though 1, myself,
testified in the Brown case, which was decided by the Supreme Court.
1 just wish tostatethat I did not testifin thatcase. Indeed, in that
case no experts were used on the side of the defendants, or respon-
dents, who rested their case on the stare decisiofPlessy v. Fergzlson
and therefore did not cal1any experts. My own testimony, to which 1
refer in the two pages, occurred after the Browncase, and in application
of it. 1wanted to have this clear for the record.
The second point: when 1 last had the honour of being here, 1referred
to a statement which 1attributed to Professor Clark. This is on page 163,
supra, ofthe record of23 June.
The PREÇIDENT: Where does it appear on page 163?
Rlr.VAN DEN WAAGI:t i~in the middle paragraph. Inthis 1stated that
1 read Professor Clark's advocacy of resegregation in an interview that
he had given to theNew York Times. My mcmory was somewhat decep-
tive,what 1actunlly read occurred in the Judgmenl of the United States
District Court inStellv. Board of Edztcation. Ina footnote (1think 1
handed this document in already but 1will do so again) on page 13there
isthis reference which, with your permission, 1will read.
"Dr. Clark, in the interview, suggested special remedial classes
for Negroesin Northern schools, in effect a suggestion of resegrega-
tion as an educational necessity." 4z8 SOUTH WEST AFRICA
The PRESIDENT:Mr. Gross?
hlr.GROSS: Forgive the interruption, but 1 am not certain to wliom
the quotation isattributed, that the witness has just read.
The PRESIDENI .O Professor Clark 1 think.
Jlr. CROSS:But I mean whose characterization was it ...
Mr. VAN DEN HAAG:Yes, that was the characterization of Judge
Scarleit in the federal court in the case ofStellv. Board O/Educatim,
which 1 only dimly remembered. Since that time 1 looked up the inter-
view, which is paraphrased in the case, and this interview which ap-
peared in the UniteS dtateshTewsand World Reportfor IO June 1963 has
a passage which must be the passage to which the federal court referred,
which iç very brief so 1 maÿ read it to you.
ProfessorClark tells theinterviewer that,and this ison page 40ofthe
UniteS dtatesNews and World Report forro 'June 2963:
"1 think that in the schools of America today there must be a
special typeof 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 pupilç to be givenspecial treatment because
they are Kegroes?"
to which Professor Clark replies:
"Well, Negroes are being treated as Negroes now, to damaging
effect, soif they must be treated as Negroes for beneficial effect
this must be done."
Obviously the Judge in the case I just mentioned interpreted tliis as
an advocacy ofresegregation by Professor Clark and 1 paraphrased the
. Judge's opinion. Having iooked at the original document,1 wish tomake
itclear that this was apparently a judicial interpretation of the document
and 1 am not as sure as Judge Scarlett was that this is really what
Professor Clark meant. Therefore 1 should like to modify the statement
1 originally made. 1 stick to my own view that segregation would be
useful foreducational purposes, but I donot wish to attribute thisview
to Professor Clark.1 am not altogether sure what view he would hold
on the matter at this time. Thank you.
The PRESIDEKT:hlr. Gross, will you cross-examine?
Mr. G~oss:Thank you, Mr. President. Dr. van den Haag, incidentally
1notice that learned counsel for the Respondent refers to you as van den
Hague; which is the correct pronunciation?
AIr.VAX oe,y HAAG: Ifdepe~ids in which country 1am in.
Mr. G~oss: In Holland?
Mr. VAN DEN HAAG:van den Haag.
hlr.GROSS : shall referMr. President, with your permission, to the
page citations in the first instance to the verbatim recor22oJune and,
for the Court's convenience, shall simply refer to "at page so and SO"
\vithout refemng to the verbatim each time, unless the President wishes
it otherwise.
The PRESIDEST :s it from the same verbatim?
&Ir. GROSS: Yes, Jlr. President. \iThen1 switch over to another ver-
batim, as I shall subsequently, 1will endeavour to advise the Court.
1sthat satisfactory,sir?
The PRESIDENT : Certainly. WITNESSES AND EXPERTS 429
MT. GROSS D:r. van den Haag, 1should like to address a few questions
to you, if1 may, to cornplete 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 Holland, sir?
Mr. VAN DEN HAAG:Yes, sir.
Mr. G~oss: And then you went tothe United States. You are an Ameri-
can citizensir?
&Ir.VAN DEN HAAG:Yes, sir.
Mr. GROSS:I should like to ask you a few questions in connection with
your apperisances 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 asan expert three times in the United
States federal courts and once or twice in New York State courts, and
1understoocl you to Say that these cases concerned segregation?
Mr. VAN DEN HAAG:The ones in the federal courts. The New York
State cases were cases in which 1qualified as an expert in sociologbut
had nothing to do with racial matters.
Mr. G~oss: 1 see sir, thank you. Now, with respect to the three ap-
pearances ai 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 ofthose cases?
Mr. VAN DEN HAAG: Yes. In each of these cases a group of local citizens
appeared as interveners in court cases brought by the parents of Negro
pupils ivho ~vishedthat the Brown decision be applied locally, a desire
resisted by the Schooi Board, and in which the party for which 1 ap-
peared as an expert took part. My testimony in al1these cases referred
to the factual basis of the Browezase which, asyou will recall, refers to
"modern authority" and to pçychological experts, ifmy memory does
not deceive rne, which would have shown that segregation is inconsistent
with the Foiirteenth Arnendment of the United States Constitutionin-
asmuch as it refuses the equal protection of the laws to Negro pupils.
This was based on a demonstration of injury, attributedto "modern
authority" and 1 discussed the proof for suca den~onstration of injury
and indicated that it very clearly had not been proved, that indeed the
major evidence given by Professor CIark was clearly indicating that de-
segregation isinjurious to Negro pupils rather than segregation.
Mr. GROSSA : nd what was the dispositionof those cases, if you please,
sir?
Mr. VAN DEN HAAG: Ifmy 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 asI rernember, 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. GROSÇ: Do 1correctly 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 açsumed the Supreme Court's
decision in theBrown case rested?
Mr.VAN DEN HAAG:That is quite correct.
lfr. GROSS:May I ask, sir, were you a paid professional witnessin
each case?430 SOUTH WEST AFRICA
hlr. v~i;DEN HAAG: 1did submit a bilin two of the three cases.
blr. GROSSA : nd you appeared in the New York State case, you Say,
in a case which had nothing to do with race relations?
Rlr.VAN DEN HAAGN : othing at ail.
Mr. G~oss: Thank you. 1 should like to refer to your testimoriy at
pages 140-141, sq5ya,and weare referring to the record ozz June, 31r.
President, in which you said "1 reject the idea of racial inferiority or
superiority, though Iam willing to accept the ideof racial differences".
Before 1 ask several questionsk $i.o$osof that testimony 1 should like
to read intothe record at this point, with the permission of the honourable
President, the following sentence from the Counter-Mernorial-that is,
of course, Respondent's pleadings, as you know-II, page 471 ,aragraph
23, as foiiows:
"The policy of separate development is not based on a concept
differen."ity or inferiority, but rnerely on the fact of people being
1 will not ask you, sir, to comment on the Counter-Biemorial unless you
wish to, but my questions relate to your own statement, and 1 should
iike toaskyou first whether the idea of "racial inferiority or superiority",
in your phrase, refers to innate or biological distinctions?
Mr. VAN DEX KAAG: 1 think it does, yes.
Mr. GROSSA : nd does the phrase "racial differences" as you used it
refer to physical distinctions only?
hlr. VAN DEN HAAG: No, sir, 1think it refers to physical distinctions
which are correlated with psychological differences.
JIr. G~oss: Then you drâw a distinction on a race basis, do you, be-
tween differences of a psychological nature between races as such?
hlr.VAN DEN HAAG:1 think, and 1 think this is very generally recog-
nized, there is a correlation between physical genetic differences and
differences in endowment of a psychological sort. May 1 add, Mr. Gross,
that I am not an expert on this particular point? 1 merely reflect here
what I regard as the consensus of the experts on this point.
Alr. G~oss: 'llrhat I shuuld like to make certain, if may, for the
clarification of your testimony and the Court's edification, iç what you
had in mind when you used the term "racial differences". Do 1 under-
stand you to say, sir, that you have in mind physical distinctions plus
(1think you used the word) endowments or psychological characteristics?
hIrVAN DEN HAAG: To be entirely clear, plus observable psychological
characteristics which the experts think rnay be in part inherent.
Air.GROSS:With respect to your use of the term "endowment" or
"psychological distinction", do you regard that as an innate distinction?
Mr. VAN DEN HAAC: Some of these the experts regard as innate, and
1 tend to reflect their opinion on this point.
Mr. G~oss: Would it be as accurate to Say that the experts reflect
your opinion, sir?1 would like the Court to have your opinion.
Mr. VAN DEN HAAGN : O, itwould not be, 1 think, because you see 1
have not made any investigations, nor would I be competent to make
any investigations on whether some traits, be they physical or be they
psychological, are genetically inherent-1 am not cornpetent to make
these, but 1 am competent to indicate, if you wish, the reason why 1
convinced myself that the experts' view on this matter is likely to be
correct. WITKESSES AND EXPERTS
431
311G.ROSSA : ndas you understand the experts' view which you are,
in your phrase, "willing to accept", theracialdifferences to which you
refer are endowment, and appearance, and psychological characteristics,
and you arc willing to accept them as applicable to races as such?
Mr. v-~lDEN HAAG:Yes, sir.
Mr. GROSSD : o you consider that there are exceptio~ispossible within
a given race?
Mr.VAX DEN HAAG: Well, 1 do not think it is even a matter of excep-
tions, Mr. Cross; there is a strong degreofoverlap. To indicste what 1
mean, suppose you take a simple physical characteristic, such as colour
of the hair, or its textureitis likely to apply to an average oa given
black-haired, just as an illustration-theregwill be some blond-hairedis
people that are as blond as, if not blonder than, the members ofadifferent
group; so that ure speak, then, here of averages-there are obviously
individual cases in which there is a fairly strong overlap.
ilIr. GROS: \.Vouldyou be willing, Drvan den Haag, then to qualify
your phrase "the idca of racial differences" to read "the idea of average
racial differences"? -
>Ir.VAW BEN HAAG:Yes, sir, 1had that in mind.
&Ir.GROS: You have that in mind. Now, sirin that context, then,
would "average" refer to a mathematical or a numerical average?
Mr. VAN IIEN HAAG:Yes, sir.
Mr. GROSÇ:By a majority?
A'Ir.v~rs]>EN HAAG:Weli, a numerical average-now, you are asking
me a little more than 1knoiv-certainly would involve differencesamong
the pluralities of true races; whether it involves the majority 1 am not
willing to say, because 1 do not know.
&Ir.GROSSW : ith respect to those members of the race, the less than
plurality or less than majority, wouId you then regard that there are no
racial differences between them and anot her race?
Mr. VAN I)ENHAAGT : his 1could not Say; 1 would say that on certain
traitsthey may overlap with another group, but whether they \vil1over-
lap asa whole 1 could not Say.
Mr. G~oss: Sothat would you agree that your use of the phrase "racial
differences"isnot a scientific or technical phrase?
Mr. VAN DEN HAAC: NO,1think that scientific use involves a reference
to the average. As far as 1 know, no scieniist 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
mereIy by reason of their classification as members of a particular race?
Mr. VAN DEN HAAG:1think they would certainly be relevant to rnake
a rational clnssification, which xvouldthen involve the allocation, possibly,
of distinctive activities and, possibly, limitations. 1 wbeIcareful to
use thephrase "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 1 would not justify that.
Mr. G~oss: You tvould not justify that, sir?
Mr. vas DEN HAAGN : ot 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 being limitsoas to establish a differentiqion.
Mr. GROSS Thank you. When you referred to "rational classification",432 SOUTH WEST AFRICA
would you regard the follo~vingas a rational classification in your mean-
ing of the phrase : a classificaofoWhites as "persons who are obviously
White, but excluding persons who though obviously White are generalIy
accepted as Co1oured"-would that be a ratiorial classification, your
use of the phrase?
Mr. VAN DEN HAAG : es, i1 understand your question. You mean to
Say, iI may rephrase it, whether a classificationshould be a socialone ...
Mr. GROSS: No, sir,1 asked you whether, iiiyour use of the phrase
"rational classification", you would regard the classification wh1chave
just cited to you as a "rational classification", in your use of the
phrase.
Mr. VAN DEN HAAG: The classification you have cited is how people
regard each other-is it not based on that, or did1misunderstand you?
iîlr.G~oss: 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 1 put sornething, please, to the Court? My
learned fnend has on previous occasions put this classification to witnes-
ses. 1 have no objection at all, obviously, prooidedhe 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 WhiteH-that is stated as the first criterand,then corrected
by this exception of "but excluding persons who although in appearance
are obviously White are generaily accepted as Coloured persons". That
is al11wanted to bring to the Court's attention.
The PRE~IDENTM : F.Gross, when you are putting the question 1 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. G~oss: Yes, Mr. President-1 regret that 1 did not have the text
before me-1 thought that I had repeated ita sufficient number of times
in this honourable Court torernember it-1 obviously did not, and 1shall
endeavour to correct my ways.
Would you, sir, having listened to the correction made by Mr. de
Villiers,then revert to my question: do you regard the classification,
properly read, as a "rational classification" inthe sense in which you
used the term?
Mr. VAN DEN HAAG :ossibly so-1 would have to know more about
the basis of the classification, b1tthink it could be a rational one.
Mr. GROSS :n your usage of the term? Tkank you. Now, does the
existence of "racial differences", in your use of the phrase, warranthe
enforced social, political or economic subordination of one race to an-
other ?
Mr. VAN DEN HAAG: If by subordination );ou mean oppression, the
answer is no, in my view.
Mr+ G~oss: Does it jiistify the imposition of the limitation of freedoms
in the sense of settingaceilingon economic achievement?
Mr. VAN DEN HAAG: If the purpose there merely is distribution ofin-
corne that is disadvantageous to one of the groups,Icertainly would net
think Itis justifieIf the purpose is to enforce or keep adifferentiation
to avoid clashes and strife, then1think it might be justified.
would it, sir?The justification in that case would be for public order,
Mr. VAN DEN HAAG:Yes, sir. WITNESSES AKD EXPERTS 433
Alr.GROSS :n page 142, supra, in discussing groups and group for-
mation, yoii made the Iollowing çtaternent:
". . . no-one has reallbeen able to show exactly what is required
[this is with respect to group formation]-a group becornes a social
group if it feels and acts like o... [then you added] . . . there are
cases where there are rather few common custorns, but yerhaps a
common enerny, or something like that ...".
1 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 itfeels and
acts likeone"-is not the question at issue precisely what ziconsists of?
hfr. VAN DEN HAAG: Well, if it begs the question,Mr. Cross, then we
have al1begged the question for quitea while-that is al1sociologists.
hlr.GROSS : hat I have no doubt is true, sir, yes. Would you answer
my questioii?
Rlr.VAN ])EN HAAG:Yes; do not think it does1 think when we refer
to a group in the sociological sense we refer to a consciousness of kind, or
of group rnemberahip, that expresses itself in observable external mani-
festations.
Noiv when 1 referredto the group 1 referred to these external manifes-
tations and 1 was trying to establish why they occur in a manner char-
acteristic for the group, the special feelings of solidarity that, çay, Ameri-
cans have in comrnon as distinguished from Frenchmen who have them
in common with other Frenchmen rather than with Americans. Let me
Say once more 1 have found no reason for that but the feeling itself,
which 1sirnply have to take as an ultimate datum, and then 1speculated
on what mny lead to the feeling and I found that there are a vanety
of things that seem to be helpful but none that seem to be totally indis-
pensable.
hlr. G~oss: When you then refer tothe word "group" in this sense,
do you also inchde national groupç? Are the people of the United States
a "group" in this sense?
hli.VAN I~EN HXAG:Yes, sir.They are wllat is called a secondary group
in sociology.
hfr. GROS: And iftlierc are people withirthe group who do not feel
likethe othi:r members of the group, are they still members of the group?
Mr. VAN DEN HAAG:Yes, but they form a sub-group-a sub-culture
being a mernber of the major culture.
Mr. G~oss: 1s 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?
Rlr. VAN DEX HAAG: Not fully.
llr. GROS:A group is composed of individuals, is it?
Rir. VAN DEN HAAC:Yes, sir.
Mr. GROÇÇ: And feelings-are thejr emotjons of individuals ogoups?
&Ir. VAN DEN HAAG: Yes, sir. They are certainly emotions of individ-
uals; we speak of a group when the emotions of individuals seern to lead
to similar ~nanifestations which seem to be identicalor similar among
individuals in respect of particular objects.
Mr. G~oss: So that when 1 referred to the feelings ofan individual
and asked if an individual feels he is natmember of a group, whether
thatmeanc that he is not a member of that groupis that a correct
statement?434 - SOUTH WEST AFRICA
Mr.VAN DEN HAAC : O,sir, 1do nat think so. What it probably means
isthat he isalienated from the group of which he is a member and as 1
tried to indicate in direct examination, this is usually partly an effect of
neurotic disorder. Let me, if1 may, illustrate this. Takea group based
bialogically, but elaborated culturallysuch as nian and woman. 1 have
not the slightest doubt that there areçome 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, 1think, if we are asked
to classifygroups, 1would classify the men with men regardless of their
individual feeling though 1 would admit that they constitute perhaps a
sub-group of men; and similarly among womeri; that is, I would Say
that biological identity and their original psycIiological characteristics
classify themwith a groupwith which they areclassified frorn the outside,
even though they might individually protest. This individual protest,
thisalienation from their own group1would regard as a sign of pathology.
Mr. GROSS Y:ou testifieI believe that in a sense of the term "group"
which you use, that the citizens of the United States forrn a group.
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSSI:f an individual citizenof the United States decides to
move shall we Say to England and reside there permanently, is that a
sign or syrnptom of alienation or neuroticism?
Mr. VAN DEN HAAG :ot at all. The residence isnot 1 think in this
case terribly relevantHowever, if he moved to EngIand and disavowed
hiç American citizenship and origin, and denied it, so to speak tried to
pass as an Englishman, then 1 would be somewhat more suspicious.
But rnay Ialso add in this particularcase you have chosen an example
of two graups 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 born an American and
became an English citizen largely because,Ithink, not only did he reside
in England but he felt that his roots were there. 1think in this case there
was nothing pathological about it.
Mr. GROSS:You yourself came to the United States at what age,sir?
Mr. VAN DEN HAAG:1 think 1was 22.
Mr. G~oss: You became an American citizen?
Mr. VAN DEN RAAG : es, sir.
Mr.GROSS D:id you abandon or forçake your original group?
Mr. VAN DEN HAAG:Well 1 certainly never denied it.I did nof feel
that there was a conflict between the two groups. But, since Idecided
to make rny life in America1 decided to become an American citizen.
Mr. G~ass: But you do not feel you are passing as an American in
your sense?
Mr. VAN DEN HAAG:Well, to tellthe truth, sir, the longeI stay in
America the more European I have been feeling in some ways.
Mr. GROSS:By European do you mean Dutch or . . .?
Mr. VAN DEN HAAG:Specifically yes. Dutch/'Italian-1 \vas brought
up in Italy.
Mr, GROSS:FYouldyou regard that . . . 1 wiIl not pursue this matter
further ... itisdifficult to retreat from the pleasur...
The PRESIDENT :ou had better stop where you are.
Mr. GROSS:Yes, sir. At page 142, supra,you testified as follows that WITNESSES .4SL>EXPERTS 435
the word "ethnic" means both culture and biological origin, or at least
a perception of biological similatities and dis-similarities including such
things such as various physical characteristics, and you were asked the
question by the Iearned counsel "Perhaps we could get it clear .. . what
distinction would you draw ... between an ethnic group and racial
distinctions", and so forth, your snswer was "eth~iicgroup assub-group
of a race", for example-"the Jews as an ethnic group being part ofthe
Caucasian race". Then you said-"these terms are uscd in a variety of
ways by a variety ofpeople". Focusing down to one person and that is
yourself who is usingthe terrns, how do you define the term "Caucasian"
in that context?
Alr.VAN DEN HAAG: Well, I think 1 meant generally speaking the
major group called "white" uçually.
311.G~oss: You would use the word "Caucasian" as a synonym for
"white"?
hlr.VAS DEN HAAG: Yes. 1 did in this context.
Mr. GROSS :n this context of course. Now are there, as far as you
know, Jews in North Africa or Yemen or elsetvhere who are not white?
Mr. VAN DEN HAAG: 1 do know that for instance in Abyssinia there is
a tribe,the Falashah, who are Jeltish,atleaçt hold a form of biblical
Judaiçm; and tkere are Negroes who are Jewish in Harlem (apart of
New York). It is a small sect of Negro Jews; some of them have recently
become Jews. 1 would make a distinction here between religious and
ethnic groups, that is, an ethnic group may have a variety ofreligions.
On the whole, in the case ofthe Jews, the religion has bcen quite corre-
Iated to the ethnic group, but there are exceptions.
Mr. GROSS: YOU would qualify the statement?
hlr.v~x DEK HAAG:Of course.
hIr.GROSS: 1tvillnow turn to certain questions,Imay. 31rPresident,
with regard to certain national situations and1 refer first to pag143,
srtfirain which you referred to the partition of India, the Indian sub-
continent, and also the removal of ethnic Germans from Poland and
Czechoslovakia at the end of the war. The question was asked to jrou
whether the instances you cited seemed to be merelyashaving a negative
efiectof separation, ofdiscrimination, or what-have-you, or whether it
was alsoto be perceived ofas having a positive value and your answer
was-"perliaps partition was the best way of preservinin the long run
the peace nmong thern"-by which 1 take it you meaii between India
and Pakistan and the populations thereof?
Mr. VAN DEN HAAC:Yes, sir.
Mr. G~oss: Was this, sir, this answerofyours, what you would regard
as a value judgment?
Mr. VAN DEN HAAG: NO,sir.This is an empirical prediction.Itmay be
wrong but it is not influencedby my personal preferences for partition
or against it. If you take, and the question 1think referred to it, asder
a value-and this is simply the value judgment of the questioner, then
the question arises how is it best preserveMy answer wasthat in some
cases 1think separation may preserve order better than non-separation.
Mr. GROSS \Ire are talking now about this particular case to which
you testified in the sense of actually saying th"perhaps partition was
the best way of preserving inthe 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. GROÇS:But "the best way" is not a value judgment?
Mr. VAN DEN HAAG:NO, "the best way" is not by war-using the
word "beçt" in an instrumental sense-that isjt jssimply a more efi-
cient or effective means to achieve an end which is of value.
hlr.GROSSA : ndyou Saythat that is based on experiential prediction?
Mr. VAN DEN HAAG: This is rny prediction and judgment ofthe situa-
tion-obviously also that of the Indians and Pakistanis; but it would
be very hard to prove this either rjght or wrong ultimately since this
the way history went, we cannot say what mould have been the result
if it had been otherwise.
hlr. GROSS:You say that this is the attitude of the Indians and the
Pakistanis?
MT. VAX DEN HAAG: Thcy separated and I guess they wanted to.
hlr. 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 aan expert and forgive me if1seem to be
pressing thispoint to argument but I wouId like to know whcther your
reference to the Indians and the Yakistanis afeelingthe same way you
do reflects your experience or is it based upon evidence which is in your
possession7
fiIVAS DEN HAAG: NO,sir, have no special evidence. It is my inter-
pretation of thefact that partition took place.
MT. 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?
hlr.VAN DEN HAAG :O,sir, 1did not imply that this is the best way
possible-alternative ways might have been better. This isthe way that
has been taken and 1 ivasasked "might it have advantages" and my
response was that it might have the advantage of preserving the peace,
possibly better than other ways but now that you ask me 1 would be
unable to Say that it is the best of al1possible ways.
Mr. GROSS: In other words, you would qualify the answcr you gave
to this inthis way, Itake 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, there 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 assurned that thisrvould be acostly ivay but also the bestof
the availableways toreduce strile and conflicMy suspicion is thathey
might have been correct but 1would not Say that 1can prove that any
more than anyone else.
Mr. GROSS : ow on page 144,sufiru, you referred to Ruanda-Urundi,
which you described asformerly a Uelgian coloriyAre you aware, sir, of
the status of Ruanda-Urundi?
Mr. VAY DEY HAAC: It istrue that they artwo independent countris.
Mr. G~oss: No: prior to their independence.
hir.VAN DEI; HAAG:1 thought that they mcre a Belgian colony, 1
might have. ..
hir. GROSS:For the record, you ~~~oulndot dispute the fact that they
were actually under United Nations trusteeship?
&Ir.VAN DEN Huc: 1 did not make this distinctionRlr.Cross.
Mr. G~oss: Nom there you said, at page 144, referring to separation
that: "though economicallyquitcunviable. inrny opinion, rit)nonetheles WITNEÇSES AND EXPERTS 437
was indicated for reasons of group conflict." Now was that a value judg-
ment, sir?
Mr. VAN DEN HAAG:Perhaps 1 should make clear that this was an
opinion-a value judgment is an opinion but not al1opinions are value
judgments. This is an opinion that I have of the facts in this matter.
It may be a £aise opinion, but it isan opinion on facts and not on
values.
hlr. GROS S1s your opinion in this respect based upon what you would
regard as objective standards?
Mr. VAN DEN HAAG: Yes, sir.
RIr. G~oss:What for example? WouId you give the Court an illustra-
tion?
Jlr. VAN DEN WAAC :ly impression was that the separation avoided
bloodshed which would have been greater had there been no separation.
hlr.G~ocs: So the Court may take your testimony in this respect as
your impression ?
hlr.VAN DEN HAAG:Yes, sir. 1 have not been in Ruanda-Urundi.
Mr. G~oss: Now with regard to your testimony with respect to the
United States, at pages 145-146, stiptpr,articularly,you refer to the
" Japanese relocation" which you described in the following terms-
"the line of demarcation ivas an ethnjc 1ine"-I think the words you
used were on page 146. Unfortunately, Mr. President, 1do not ...
The PRESIDENT It:is at thetopof page 146.
Mr. G~oss:Thank you, Blr. President.
The PIESIDENT:The Japanese were certainly not the only group in
the United States that was ethnically related to an eneIny nlien group.
Mr. GEOSS: 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 isat page 145.And that the
"decision was opposed by many people", in your phrase (p. 146) W. ill
you indicate to the Court whether pou oppose that decision in the sense
in which the term is used inthe testirnony?
Alr. VAN DEN HAAG: 1think the decision at the time was rather un-
warranted and hastily taken and 1 would not have approved of it, had
1 sat in Court.
hfr.G~oss: Yes, sir. Now with regard tothe United States imrnigra-
tion policy and quotas, to wliich you referred,you cited the comment
at page 146 ,y Professor Bruton Berry, President ofthe State University
of Ohio,in hisbook calledTheRace alzdEtknzERelations, and you referred
to his statement "the quota system based upon national origin has
remained intact". First, may Iask you, Dr. van den Haag, do you regard
the examples of the Japanese removal action, which you oppose, and
inmy view, if1may 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 poftthe United States Federal
Governrnent, in thearea ofrace relations?
Mr. VAN DEN HAAG :hat is a question which1find very hard to answer
because what is the general policy of the United States, in this respect,
ishighIy controversial. Now you see, the very words "the United States"
leave me in doubt. Right nom7,for instance, the President has proposed
reform of the immigration law, and if1 may, 1would like to quote from
an articleiii thNew York Times, which appeared on 19 June 1965:438 SOUTH WEST AFRICA
"The United States Immigration Law based upon racially angled
national origins quotas, makes a strange counterpoint to its progres-
sive laws against racial discriminatiat Iiome."
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
aiso have, on the other hand, policies which affirm this, sometimes on
the stateand, in thecase of the Immigration Law, on the federal level.
Now the Immigration Law may be changed in Congress, but, as the
editorialIjust quoted points out, though the President wants it changed,
it is very uncertainthat 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 inthis respect.
Mr. G~oss: I would Iike to come back to my question, if 1may, sir,
and ask you in a slightly different way tha1 did before, would you be
prepared to express an opinion whether the two situations to which you
referrcd, 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 Educatio~zon the federal level, yes.
Mr. G~oss: 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 to the general policy and practice, of the United
States Government?
Mr.VAN DEN RAAG: 1 am sorry, but this involves a judpent1 cannot
make, but 1would be witling to Say that both policies exist and that the
policy indicated in the Immigration Laws and the Japanese relocation
is rarer than the other.
Mr. GKOSS:Do you know of any other illustrations?
Mr. VAN DEN HAAG:Yes, on the State and local level...
Mr.G~oss :No,sirt,hat ipart oftheconfusio inhichIam engendering
as a failure onmy part to keep ...
Mr. VAN DEN HAAG: YOUmean, on the federal level? 1 do n0t know
of any other cases...
Mr. GROSS:The distinction between the federal level...so when you
Say itis rarer, you are not referrito any other cases?
Mr. VAN DEN HAAG:Not that 1 know of, no.
Mr. G~oss: So far as you know, it is unique?
MT.VAN DEN HAAG:Since thereare two cases, neither can be unique. .
Mr. GROSS: 1 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 Indians-itwould 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 iocated ...
Mr. GROSS: At what time are you speaking of now, sir?
Mr. VAN DEN HAAG: At various times; there is a long histofy, as you
are certainlyware, Mr. Gross, of locating and reIocating Indians force-
fully to various Reservations.
Mr. Gxosç: 1s thatthe policy in practictoday, sir?
Mr. VAN DEN HAAG: At the present tirne, they still are being located WITNESSES AND EXPERTS 439
and relocated, for instance the Senecas in New York. Just recently, they
were forcefully deprived of their home ground, and relocated because
some, the mnjority, apparently, of the people of New York, or at least,
of the state government, represented in this caseby Mr. Moses, wanted
to use part of their reservation for electrical dam building, sodon.
Mr. GROSS: Are you aware, sir, that their land was bought at fair
prices determined by the courts?
Mr. VAN DEN HAAG:Yes, by the Iaw of eminent dornain, and quite
against ...
Mr. G~oss: And you refer to this as"forcible removal", do you?
hlr.VAN DEN HAAG:'l'es, sir, iwaç enforced bythe courts.
Mr. GROSS:Was this on the basis of the fact that they were Indians?
Was this on a racial basis?
Mr. VAN DEN HAAG:Yes, sir, they owned that land on a racial basis;
it had been given to them because they were mernbers of an Indian tribe.
hIr.G~oss :Have you ever heard ofthe law of eminent domain being
applied in New York to property owned by Whites?
Mr. VAN DEN HAAG: Yes, 1 have. Lots of people areso relocated and
not on a racial basis, but in thiç case it was on a racial baçis.
Rlr. GROSS:In this case, it was on a racial basis, in the senseemi-t
nent dornain was exercised because they were Indians? 1sthat what you
rnean by "on a racial basis"?
Mr.VAN DEN HAAG:That 1could not Say, sir. 1 do know that it affected
thern 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 overrult:d, asitwere, by the law of eminent domain. But 1 do not
think it was applied because they were Indians, it was applied because
people wanted the land.
Mr. GROSS:That's right, 1 think. Thank you, sir.
The PRESIDENT:Was all the land in the Reservation required for the
public purpoçe which you indicated?
Mr. VAN DlSN HAAG:sir, 1 did not quite understand.
The PRESIDENT:Was al1the land in the Reservation required for the
public purpose that you indicated?
Mr. VAN DEN HAAG: NO,only part of it.
hlr. GROSS:On page 147 ,ufifa,of the verbatim of22 June 1g65-you
are now referring to the United Kingdom-you said "the last Conserva-
tive Government imposed some restrictions" and then later, "as the
Labour Government came to power it, contrary to its promise, did not
change these restrictions"and then you said "the reason given, very
Iargely, was that owing to cultural and ethnic differences, it would be
very hard for the population to absorb a great number of these aliens"
(p.147) .OW,without the least intention of engaging in and intervening
in British political affairs,at was the nature of the promise made by
the Labour Crovernment?
Mr. VAN DEN HAAG:7'0 abolish these restrictions that had been im-
posed by the Conservative Government, at least, in electoral speeches,
that was the drift of thematter.
Mr. GROSS:That was the drift,sir? And that was for total abolition,
was it, orformodification?
Mr. VAK DEN HAAG: As I understood it, it was total abolition.
Mr. G~oss: And did the promise include accomplishment at any par-
ticular time, by any particularperiod,so far as youare aware?44O SOUTH WEST AFRICX
Mr. VAN DEN HAAC:1 have not followed British politics sufficiently
to Say that, but, Mr. Gross,1 have before me an article in theSuaday
Times of 13May 1965 he headline of which is "Labour to put New Curb
on Immigrants", the body of the articleclearlyindicates that whatare
meant are Coloured immigrants, so1 think 1 got the drift correctlyI
have not read al1the eiectoral speeches.
MI. G~oss: You were referring to a"drift" then, sir?
Mr. VAN DEN WAAG:Yes.
Mr. G~oss: 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. VAN DEN HAAG: It assumed certain values, Mr. Grosç. It assumed
that order is a value. Then it made a statement on whether this policy
would be prornoting order or not, an1 felt it would. But of course, there
was a value judgment, or at least an acceptance of a value judgment,
inasmuch as Iirnplied that the preservation of peace and order are desir-
able. They may require the use of some means which, in tum, may be
regarded as costs.
Mr. GROSS: And in this caseapplying that to the situation to which
you are referring herepecificaliy, it was your opinion that this was fitted
into that category?
Mr. VAN DEN HAAG:Yes, sir.
Mr. G~oss: And that reflected the value judgments or the values upon
which your judgrnent was based-is that correct, sir?
Mr. VAN DEN HAAG :Yes, sir.
Mr. G~oss: Now in respectof both the United States and the United
Kingdom, is it within your knowledge to state whether or not, when
persons within restricted categoriare admitted,limitatio aresimposed
by law upon their freedoms in the countries to which they are admitted,
respectivey?
Mr. VAN DEN HAAG:TO my knowledge, not. The purpose, 1think, of
the immigration restrictionsboth in the United States and in England
now, as 1 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.ln other words, to make it possible within these coun-
tries, to pursua poIicy of free and unhinderetl 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-
tünities by reason of their origins?
Mr. VAN DEN WAAG:Not de jure, no, not by law.
Mr. G~oss: Not by law. 1 am taiking about by law. Are any lirnita-
lions placed upon their freedoms on the basis of their nationalorigin?
Mr. VAN DEN WAAG:Not that 1 know of, sir.
Mr. G~oss: Now, I should like to turn to pag147, sqbra, of the ver-
bath of 22 June 1965,in which you compared language employed in
the Canada Yearbook of 1932 to that employed in the Yearbookof 1963.
lnthe former you testified that the phrase "assimilable type" had been
used, and in the latter the phrase-1take to be the key phrase-"adapt-
ability to the Canadian way of life." You stated th"My feeling is that
itmeans quitewhat was meant in 1932, although it put it a little less WITNESSES AND EXPERTS 44I
bluntly.." M%at knowIedge, if any, sir, do you have with regard to
Canadian irrimigration practices i1963?
Mr. VAN BEN HAAG:NOmore than 1 have quoted, sir.
Mr. G~oss: This is aLlyou know about the situation?
Mr. VAN DEN HAAG:Yes, sir,
Mr. G~oss: Do you have any more information or knowledge concern-
ing the immigration policies of Canada i1g3z?
Mr. VAN DEN HAAG: NO, sir.
Mr. G~oss: Excuse me, did you finish?
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSS:1s there any evidence which supports your so-called "feel-
ing"-a word you used-that the different language used in these two
Yearbooks means the same thing?
hfr.VAN DEN HAAG: 1think that 1 gave some statistics at the time,
which 1 could find again, which seemed to me to bear out the statement
but at any rate my interpretationwas simply based on a comparison of
the two texts.
Mr. GROSS: And of your persona1 judgment concerning it?
hlr.VAN DEN HAAG:Yes, sir.
Mr. GROSS:In respect of your testimony with regard to Canada, the
United States and the UnitedKingdom, may 1 ask you, sir,whetheyou
would characterize your testimonyin respect of each or al1of these areas
as "expert testimony" in your understandingof the term?
Mr. VAN DEN HAAG:My testirnony was based on a study of the docu-
ments which Iquoted and an interpretationthereof and 1 would regard
this aspropt:rly falling within the province of my expert . . .
Mr. GROSS : Would you Say, sir, that any opinions based upon a study
of adocument become "expert opinions" by reason of that fact?
hlr.VAN DEN HAAG: Nat any opinions, but reasonabIe opinions some-
times do,yeç.
Rfr.GROSS:On the part of anybody?
Mr. VAN DEN HAAG: NO,sir. Ithink the study of a medical document
by a medical expert-even ifhe onIy has that document before him-I
would classify as leading to anexpert opinAostudy ofthe same medical
document by a non-expert, a non-physician, may not be leading to an
expert opinion.
Mr. G~oss: So that what quaIifies him fo express an opinion is his
range of expertise?
Mr. VAN oEn HAAG:He brings to the study of the document experience
with sirnilar documents and of the facts tarebeing described in them.
Yes, sir.
Mr. GROSS : nd you consider that the testimony which you have given
is al1directed to, is opinion based upon, your expert knowledge?
Mr. VAK DEN HAAG:Yes, sir.
NT. GROSS : ithout exception, sir?
Mr. VAN DEN HAAG:Well if you mention a particular point1might
be classifying as an exception but on the whole, ofcourse, 1 tried to
present to this Court my opinion as an expert.
Mr. GROSS A:nd that would rcflect, for example, your characterization
of the meaning of the language in thewo reports of the CanadianYear-
book?
Mr. VAN DEN HAAG:WelI there aretwo kinds of experts who generally
undertake this sortof characterization,either legal experts whose spe-44 SOUTH WEST AFRICA
ciality would have been a study of the language, or social experts who
are accustorned tocomparing language sorneti~neswith history and with
historical uses of it and historical customs and derive their conclusions
therefrom. 1would not qualify rnyself as a legal expert b1twould qual-
ifymyself as a social expert.
Mr. GROSS : XOW,addressing you asa social expert, 1 turn to pages
147-14 8upra, of the verbatirn record. You were asked by Counsel for
Respondent-this was à pvopos of aspects of the situation in the United
States-you were asked for exarnples of official action, othethan by
federal action, making racial distinctions in the United States. Then, on
page 148, you referred to certain unofficial and voluntary move-
menfs in the United States,including certain characterizations ofgroup
called "The Nation ofIslam" to which you referred. Do you recall that
testimony generaily in that respect, sir?
hlr. VAN DEN HAAG : es, sir.
Mr. G~oss: 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, ". . 1 think quite correctly, that
the members of the movement are distjnguished from many other Negro
citizens of the United Stateby their better deportment,theirabstinence
from alcoholic beverages, andvarious drugs, their exemplary farnily life,
and generaUy what you would speak of asan iiitegration of personality".
Do you regard this, sir, and is this whatyou want the Court to under-
stand, as your characterization of the "members of the movement" in
question?
Alr.VAN DEN HAACY :es, sir.
Mr. G~oss: You testifred on page 148 in response toa question which
1 will read to avoid the risk of paraphrasing erroneously, at the bottom
of this page :
"Mr. DE VILLIERS: NOW,beiore you leave those, is it not some-
times suggested that leaders of a movement like this-Moslemmove-
ment you have justreferred to-are rather eccentric or fanatic?"
Then you said :
"1 rather think they are myself but that 1 think is usually the
case with the founders of either new religions or new rnovements
of thiskind."
WouId you care to cIarify the apparent inconsistency between the ref-
erence to the designation of the membersofthjs group as people of "inte-
gration of personality" and "fanatics and eccentrics"?
Mr. VAN DEN HAAG Y:es, sir. The leaders of new, political and religious
movements are quite often, in my opinion, people who are pathological,
usually paranoiac with megalolnanic 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
lis itseernç entirely clear that çhe had the characteristisyrnptoms of
delusions of reference which are characteristic of paranoia. Whshe had
sorne 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 asindications of paranoiac system of delusions of ref-
erence. This didnot in any way prevent Mary Baker Eddy from founding
a major Christian denomination and my experience with the folowers WITNESSES AND EXPERTS 443
of that denomination is that they are often exemplary people who in
al1psychological respects 1 would regard asnot only well adjusted but
partly better adjusted than the average. 1would make a sirnilar state-
ment about the Jehovah's Witnesses, another .. .
Mr. G~oss: . .. 1 would appreciate, if the Yresident permits, if you
would confine yoorself to one question at a time. Mr. President, 1 did
not want to trespass on the Witness's answer but 1 would like to keep
on this subjectifI may, sir?
The PRESIDENT :y dl means.
Mr. GROSF: 1s 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 Negroleadership in theUnited States towards the "Black
Moslems", as they are called?
Mr. VAN DEN HAAG: Most of the non-Moslem leaders are opposed to
the hloslem movements and consequently act asopponents of itbut I am
neither opposed nor in favour of it not being directly involved in Negro
politics so1 am givingan ontside judgment on the psychological inte-
gration of the members of the movement.
Mr. GROSS:YOUwould 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?
hlr.VAN DEN HAAG: The movement in itself has often been accused
of that, it denies that its aim is violence aithough 1 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 equivocd and
1 can do no Inore than indicate that.
hlr.G~oss: 1 will not pursue this line too far, Mr. Yresident, unless
the Court wishes, otherwise 1would, however,like to ask one other ques-
tion inregard to it.The question 1have is with respect to the distinction
you draw between the leaders and, asyou cal1them, "members" of the
group. The leaders of the group you do not regard as persons with what
you have described as "integration of personality"?
&Ir. VAN DEN HAAG: Well, this would get us into something rather
technical there, their paranoia may be egosyntonic, but it still remains
paranoia; that is, it may be highly integrated,it rnay even lead them to
engage in more effective action, nonetheles1,would regard itas apatho-
logical phenornenon.
&Ir.GROSS: I would like to refer to your testimony on page 148,with
respect to what you dcscribed as "major Negro movements in the United
States are certainly not theones 1have mentioned". You referred to an
organization which you described twice as the "National Association for
the Improvement of Coloured People". 1s that the same organization as
the National Association for the Advancement of Coloured People?
Mr. VAN DEN HAAG: Yes, sir,1 am sorry 1 have misquoted.
Mr. G~oss: You said that the "National Association for the Improve-
ment of Coloiired People", and others, are taking a much more moderate
line, are probably more influential among Kegroes as a whole, and you
said tliat when 1asked on page 149, with reference tothe 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 Coloiired People, with regard to re-location?444 SOUTH WEST AFRICA
Mr. VAN DEN HAAG: 1 am convinced that they do not advocate re-
location.
Mr. GROSS: SO,YOU would amend your response to clarify the record.
Mr. VAN DEN HAAG:I think it meant the sarne, but . ..
The PREÇIDENT:He does not agree with ithe does not thinkso.
Mr. G~oss: 1 understood the context to mean that you do not think
their programme is one for re-location.
Mr. VAN DEN HAAG: 1think you are correct.
Mr. G~oss: And are pou certain that it is not?
Mr. VAN DEN HAAG: Reasonably certain, yes, sir.
Mr. G~oss: Now on page 149of the transcript, you made the following
statement, arnong others, of which1will cite just one sentence, although
you may wish to consult the context-I think it is fairly cite.. Negro
leaders are the first to point out that desegregation made very little
practical progress". That is in the rniddle of page. Is that still your
view today, sir?
Mr. VAN DEN HAAG:Yes, sir.
Mr. G~oss: That that is the view of Negro leaders, sir?
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSS: 1 should like, Mr. President, with youpermission, sir, to
emulate the witness and refer to thNew York Times of Sunday, 27 June
1965, from which 1 should like to quote a few brief excerpts, and will
produce for the documentation, with the President 'spermission.
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 thepurpose of producing it.
Mr. GROSS: Thank you, sir. 1 wanted to make clear that the entire
story waç 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 Ac1964 is believed
to have eliminated more racial discriminationthan al1 the Federal
Laws, Court Rulings and Executive Orders in the decade preceding
it. Government officisls 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 brieAy further in the same story:
"The law has aIso brought compliance by entire communities tliat
had held out against Court order desegregation. Leroy Collins, direc-
tor of the Cornmunity Relations Service, an agency createdby the
la~vto help bring compliance, said: 'For every incident of defiance
and violence you can name, 1 can name you hundreds where, with-
out fanfare, Southerners White and Black,are puttingaside the old
ways and facing up to the necessity of resolving their common prob-
lems'."
Could 1 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 al1the federal
laws, court rulings and executive orders in the decade precedinit? Do
you agree with that, sir?
Mr. VAN DEN HAAG:1 certainly do not. WITNESSES AND EXPERTS 445
Mr. GROSÇ : es, sir.And do you agree that it has become a trernendous
psychological force in softening resistance to desegregation?
Alr.VAN DEN HAAG: 1 do not agree with that either, sir.
Mr. Gxoss: So that you would disagree with the concededly un-named
government officials and Civil Kights leaders tare referred to?
Mr. VAN DEN HAAG: Not only that, but I would also point out that
Leroy Collins has a rather interested view point. He incharge of bring-
ing about and making effective the law, and1 think he says iiseffective
because hc is in charge of it.He would otherwise have to say that he
did a very bad job.
Mr. G~oss: So you think he is a biased witness in that respect?
Mr. VAN DEN HAAG:Very much so, sir.
Mr. G~oss: Now we turn now to a new line of questionsMr. Presiclent,
if 1 may, that relate to pages149-15 0n,which you gave the following
evidence:
". . . one has to make a distinction between segregation and dis-
crimination ... 1 would like to use the word segregation to mean
separation, which,of course, need not require or be connected with
oppressive nieasures, but can be so used in the same way a knife
may bi: used to cut 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:
"... ifby discrimination we rnean, a1 propose we ought to, placing
someone, or placinga group, at a disadvantage that is not warranted
by any relevant element in thesituationiwhich the group is found".
Do you adhere to that definition?
Mr. VAN DEN HAAG:Yes,sir.
Mr. G~oss: Now would the word "disadvantage" as used in that defi-
nition, inclride limitations imposed upon freedomofmembers of a racial
group as such: such as, for example, settinga ceiling on their economic
advancement ?
Mr. VAN DEN HAAG :s 1tried to indicate before, sir, that would depend
on the situations. There are two factors tha1 would regard as relevant
here, first l.he qualifications of the members of the group: if they are
prevented from taking a job because they are not qualified to take it,
this 1 woulil not regard as ..
Mr. GROSS:May 1 repeat my question-you seem to be confused?
Mr. VAN DEN HAAG:1am trying to give the background for rny answer.
The second relevant consideration would be: supposing that some mem-
bers of the group are qualified for a position that they areprevented
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 notto allnw them to do so under certain circumstances,
narnely when, although thjs, the assumption of this job, would serve
their persona1 anclindividualinterests, it may bring about disorder within
the community and may lead tothe dissolution of tribal or cultural bonds,
which is regarded as undesirable. So that, may 1 put it this way, any
social measure, whether it be a traffic law or lam of the kind that ?jeu
have indicated, though meant to be for the benefit of the great majority,
and to yieltla net benefit to society, may lead to some disadvantage for
individuals who find themselves in special situations, This is undoubtedly
so, both in my n~itings and teaching, 1have always told my students44 SOUTH WEST AFRICA
that I cannot think of a single social measure which would not affect
some individuals in away which, with regard ta the individual situation,
is unequitable, but which nevertheless can be justified in terms of the
general socialadvantage or disadvantage.
hlr. G~oss: Sir, would it bepossible to ansu7erthe question which I
intended to put to you: does the terrn "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 than
their rnembership-on no other basis-and 1 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 terrn "advancement",
as used in your definition?
Mr. VAN DEN HAAG: This issornetimes, 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, buttrnay also be a disadvan-
tage for some individual members.
Ilr. G~oss: Dr. van den Haag, in your testimony at page r35, se~pra,
of the verbatim on going back to that page, if1 may-as part of Sour
qualification of espertise, you testified that you had given special atten-
tion to minorities problcms and then you used the following expression
or characterization:"as to al1groups 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. VAN DEN HAAG: It is the group that sets the tone, influences, in-
forms and shapes the culture that prevails in the territory.
Mr. G~oss: Does it have any economic implications?
Mr. VAN DEN HAAG: Not necessarily, no.
Mr. G~oss: Does it have any economic implications in any situation?
You said "not necessarily".
Mr. VAN DEN HAAG:An implication 1take to be a necessary attribute
and that is not the caseOf course, it could.
IIr. GROSSI :n other words, is it your testimonp that ia group exer-.
cises economic control it isadominant economic group?
Alr.VAN DEX HAAG :\Veil, certain1ywould cal1ita dominant economic
group, yes.
Mr. G~oss: And that would fit in within your concept of "dominant"
group as you used it?
Mr. v.4~ DEN HAAG: It could be a part of it, yes.
Mr. GROSS: Thank you, sir. Now, 1 should like to read a quotation
from a work by Professor Bretvton Berry, whom you cited, on techniques
of dominance, and the citation is from Chapter 14 in Race atid Ethic
Relations (published in Boston in1965), at page 327. You citcd this au-
thority, as you may rccall,arpage 146 of the verbatim, in another con-
text. The passage which 1should liketo quote to you and then, subse-
quently, follow witha question or two, is as follows:
"Whenever racial and ethnic groups come into contact [and then
1 skip çorne irrelevant phraseology] the group which enjoys the
greater prestige and wieldç the power is invariably jealous of its
status, will not çurrender itsprerogatiiresnrithoiita struggle and
isdetermined to defend its own values and its culture against corn-
peting and conflicting systems."
That is from page 327. WITNESSES AND EXPERTS 447
MT. van den Haag, 1 should like to ask you-in terms of your simile
of separation orsegregation as a knife whichcould da 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. VAN DEN HAAG: That depends entirely on the intention of the
dominant group. If you are asking me to tell you what 1 think this in-
tention usually is, 1 can only tell yoit depends on the particular cir-
cumstances. 1 would not agree with Professor Berry's idea that thisis
invariably so and 1 wish to cal1to your attention that1 have used Pro-
feçsorBeri:yJsbook ...
Mr. GROSSI:n a different context?
Mr. VAN DEN HAAG: Not only that, but oniy to quote passages which
he himself quoted from other authorities.
Mr. GROSS : OUdisagree withthe opinion or judgment which I have
quoted from Professor Berry?
Mr. VAX DEN HAAG: Yes, sir.
Mr. GROSS:NOW,if, bowever, itmay be that in certain situations
(and 1 take that from your answer) this would be valid in certaisitua-
tions-is that not correct, sir?'
Mr. VAN DEN HAAC; Yes, sir.
Mr. G~oss: In "certain situations"-lvhich I believe is the phrase
you used, or words to that effect-if one group exercises economic con-
trol or "economic domination" inthe sense we have established between
us, what safeguards, if any, would be necessary and feasible to assure
that such dominant grou exercises its control andisinterested rnanner
for the general public w7fare?
Mr. V4N DEN HAAG: Well,1 think it is in the interest of the dominant
group itself to do so.
RIr. G~oss :"To do so",meaning what, sir?
hlr.VAN DEN HAAG:TO exercise its power in the interests of al!,for
if it didconceive of its own interests quite narrowly and impose great
disadvantages on those who are not dominant, 1 think in the long run
it would he to its own disadvantage. 1 do not know of any external
controls thatcould be so used and 1 would like to point out,Mr. Gross,
that it is contended, atleast in the United States, that in the South,
where they have been segregated, Negroes have been exploited and I do
not deny that that has been the case,1 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, imy 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 itç control in a disinterested manner? nid 1
understand you to Say that enlightened self-interest is the safeguard?
Mr. VAN DËN HAAC. : cannot think of any legal safeguards that would
be very helpfui.In this connection, may Ipoint out that the Constitu-
tion of th<: United States hns not been cfianged since the Fourteenth
Amendmerit Ras paçsed, but that it is now interpreted in a way that
would eliniinate segregation, whereas previously it was not so inter-
preted. This may illustrate my contention that any la~vthat you would448 SOUTH WEST AFRICA
pass would not automatically be a safeguard-it al1depends on how it is
being used. The same Fourleenth Amendment, in other wards, was used
50 years ago in one way and is now used another way.
Rir. 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 : ot in the respect that you refeto.
Mr. GROSS: Thank you, sir. Now, your definition of discrimination
refers to disadvantage not warranted by any relevant element in the
situation-1 quote the words "disadvantage", "warranted" and "ele-
ment" in that definition1 am referring to the verbatim record of 23 June,
page 150, sup~a, Mr. President. Do the words "warranted" and "rele-
vant" in this context involve value judgments?
Mr. VAN DEN HAAG1 :think the word "warranted" is avalue judgment
which assumes the value of "relevant"; but the reievance itself is a
factual matter.
Mr.GROSS:1 am not sure I understood you, sir. You said that the
word "warranted" assumes a value judgment?
&Ir. VAN DEN HAAG: Yes, sir .tassumes that relerlance is of iralue;
and so "warranted" is a value judgment about the necessity of the dis-
tinction being "relevant" to the situation.
Jlr.G~oss: So what is "warranted" in a particular context or situation
depends upon the eyes of the beholder? 1s it on the judgment of the
person who is making the decision as to what is warranted and what is
not?
hlr. VAN DEN HAAG:IVe11,1 do not think that vaIue judgments are
quite so arbitrary.
hlr. GROSS: They can't be good or bad, sir, would you agree?
Air.VAN DEX HAAG : ertainly they are hard to prove.
Mr. GROSS:1 am not trying to qualify a particular value judgment-
1 am asking you as a social expert, as1 think you have described your-
self, sir-whether in this context oyour 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 1 put my question in that way, sir?
hlr. VAS DEN HAAG: Yes, sir,1 think Igrasped your question, but
perhaps 1was not as clear in my answer as 1 should have been.
You see, as Isaid when 1 proposed this originally1think in each situa-
tion specific criteria are relevanIn a scholastic situation, for instance,
scholastic performance is relevant and not, Say, religion or sex. In a
religious situation religious belief is relevant asap,fyou are selecting
girls for a chorus Iine, aesthetic and erotic appeai may be relevant. So,
when I speak of "warranted" 1 mean simply the value judgment that
reievance is of importance to the situation and that judgment could be,
if you wish, regarded as a value judgment.
Alr. G~oss: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 sociology?
Mr. VAN DEN HAAG: NO,sir.
Mr. GROSS: May Iask 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. VAN DEN HAAG:Yes, sir. WITNESSES AND EXPERTS 449
Mr. G~oss: Does the word "discrimination" have a connotation of
hostiIe or adversary relationshibetween groups in a society?
Mr. VAN IIEN HAAG:As it is now used in a political context ureusually
speak of "cliscrirnination against" which is synonymous with "placing
at a disadvantage for irrelevant purposes".
Mr. G~oss: 1s there an eIement of hostility or adverse relationship
implicit in sucha situation of discrimination?
hir.VAN DEN WAAG:Not necessarily, no.
Mr. G~oss: One can discriminate against another, in this sense of the
word, with benevolent motives?
Mr. VAN DEN 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 : preference by thoçe who dothe discriminating, you mean?
hlr.VAN DEN HAAG:Yes.
hlr. G~oss: RTouldthat be reasonably regarded by the victims ofthe
discrimination as a hostile or adverse preference?
hIr.VAN I)EX HAAG:Perhaps we disagree on the use of the word hostile.
They may not feeIthat they are being discriminated against because
they are hated, they may simply feel that the discriminator prefers an-
other person or group. In other words, if grade my students unfairly,
making an unwarranted discrimination, preferring, Say, al1 the prettier
girls and giving them "A's" and giving bad grades to al1the less attractive
girls,1 donot think that the less attractive girls will necessarily feel that
1 am hostilr: to them, they will merely feel 1ham friendly tothe more
attractiveones.
Mr. G~oss: Wouid that, sir, as a psychologist, make them feel very
much better?
Mr. VAP; DEN HAAG: IImakes them feeI that 1 am weak, and my weak-
ness leads me to be unfair, but not that they are being persecuted.
Mr. G~oss: So that perhaps you would prefer the word "unfair" to
"hostile" ?
&Ir.VAN DEN HAAG :es, sir.
Mr. GROS: Would it be compatible mith the objective oi promoting
well-being and social progress in any society if a governmenby official
action fosters such an unfair or, if 1may Sap, adversary, relationbe-p
tween groups?
Mr. VAN DEN HAAG: 1 should certainly think that any government
that deliberately places a group at a disadvantage does something, and
this isa value judgment, that 1would regard as unjust.
Mr. GROSS: If alaw is passed, would that be a deliberate action of the
government, nor~nally speaking?
Mr. VAN DEN HAAG:Yes, sir.
Mr. G~oss: Or if regulations are issued, arethey normally deliberately
issued?
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSS: NOW 1would like to quote from the testimonyof Professor
Bruwer, a professor and social anthropoIogist of renown who was a
member of the Odendaal Commission, and who testified on 6 July (in the
verbatim record at p.310, supra)-and 1 quote from my cross-examina-
tion ofhim--1 asked: "The decisions (parenthetically, Dr. van den Haag,
this refers to the imposition ofmits on freedom upon persons by reason
of their race-this was understood between the witness and myself, 145O SOU- WEST AFRICA
believe itisfair to state)are made by administration, which then iç con-
trolled by one group. That is correct?" Ansn~er: "That is correct,MI.
President." And 1 asked: "And it is controlled by the group whose happi-
ness is, in your terms, determined to a large extent by the limitations
irnposed on the freedoms of the other group. 1s that correct?" Answer:
"That is correct." Did you understand this exchange?
Mr. VAN DEK HAAG: Yes, sir.
Mr. GROSS :n pour opinion, as a sociologist, would pou describe such
a situation as the one which 1 have read to you in this colloquy as one
in which discrimination may be said to exist?
The PRESIDENT M:r. Gross, is the quotation you are making from
Professor Bruwer in relation to the southem sector only,orin respect to
South West Africa in general?
Mr. GROSS :or the purpose ofmy question, Mr. President, 1 would
say it applies generally to South West Africa.
The PRESIDEK T:hat is the page of the reference?
Mr. GROSSP : age 3x0,sufira,of the verbatim record. 1would Say also,
Mr. President, that it applies as well to the southern sector. May 1
continue, siror would you want further eIucidations7 Thank you.
Would you, sir, respond to rny question, or would you like me to
repeat it ?
Mr. VAN DEN HAAG1 : should Say,as 1 tried to Say before, if thera is
limitation imposed, be it economic, be it on freedom, and so on, and
that limitation is irnposed unilaterally on one group without being im-
posed in a rnanner that is more or less symmetrical on theother group,
1would regard this as discrimination. However, ifthe limitation iim-
posed on one group, supposing for instance that you were to Say members
ofa certain tribeor group cannot become lawyers in a certaincity,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 1 would
not regard it as discrimination; that is, discrimination involves a uni-
lateral impositionof a disadvantage not compensated for by any ad-
vantage to be achieved elsewhere.
Mr. GROSS:Would you elucidate for the possible interest of the Court
what you mean by "here" and "there" in that context-I am talking
about one place, and I was addressing my question to that.
Mr. VAN DEN HAAG:1 am not, as you know, familiar with Africa, but
if1 may give an illustration ithe United States-if you were to Say to
a lawyer born in Cleveland, Ohio, that he cannot becorne a lawyer in
New York but only in Cleveland and some other places, perhaps. and
at thesarne time to Say to lawyers born in New York that they cannot
become laïvyersin Cleveland, and so on, then 1 would not regard it as
discrimination; but if, on the other hand, you were to say to the Cleve-
land Iawyer "You cannot become a lawyer in New York", and say to
the New York lawyer "l'ou can be a lawyer both in New York and
Cleveland", then I tvould regardit asdiscrimination, assuming that the
qualifications arequal in both cases.
Mr. GROSS :o that the key to your answer, if 1understand you cor-
rectly, sir, is a proper definition of the area within which the asserted
discrimination takes place?
Mr. VAN DEN HAAG: NO,sir-1 perhaps was not as clear as 1wished;
the key to my answer is that bilaterality, that is that the limitations,
be imposed equally on both groups. WITNESSES AND EXPERTS 4s
Mr. GROSS : OWmay 1 corne back, sir, tIny question, in termsof
my questiori to Mr. Bruwer and his answer-this is stiil at pag310,
su$ra :
"And it is controlled by the group whose happiness is, in your
terms, cletermined toa large extentby the limitations imposed on
the freedoms of the other group. Is that correct?"
His answer: "That is correct." Now 1ask you, sir, in your opinion aa
sociologist, ~vouldyou describe such a situation as one in which discrimi-
nation rnay be said to exist?
Mr. VAN IIEN HAAG: Sir, let me try again; you are now referring to
happiness, a term that1 prefer not to use because it is rather har...o
MT. GROSS: Do you know it, sir, in the Constitution of the United
States, the Declarationof Independence?
Rlr. VAN 13EN HAAG: Yes, sir,I am rather familiar with them, but 1
still thinit is a very hard term tu define and to measure; but at any
rate,1 would Say if you were to Say that the happiness of one group is
determined or depends on the limitations of another, if thisis wholly
unilateral-that is, if you could notay that the happiness of the other
group depends on the limitations of the first-thenyou may speak of
discrimination; if it is bilateral you may not.
Mr. G~oss: Yes, sir. And areyou familiar with any diversified or in-
tegrated economic society within which this principle operates-an
exchange ofdeprivation of freedoms within the same economy by officia1
action?
Mr. VAN DEN HAAG:1 understand that that is the case in South
Africa, butyou ask me whether 1 am famiIiar with it-certainly not.
Mr. GROSS :re you familiar with it anywhere, sir?
Mr. VAN DEN HAAG:Not out of first-hand experience.
lfr.GROS: You never heard of such a situation?
Mr. VAN DEN HAAG1 : have heard of it-1 am trying to convey that-
but 1 am not familiar with it.
Mr. G~oss: Have you heard of such a situation existing anywhere
else than what you heard about South Africa and South West Africa?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSS : ould you narne one or two illustrations?
Mr. VAY I~EN HAIIG: History has quite a number.
hlr.GROSS :he current, contemporary world, sir?
$Ir.VAN I~EN HAAG: NO, 1cannot off-hand tell you.
Mr. GROSS: Now may 1 read from your work The Fabric of Society,
the well-known text, properly esteemed, published i1957 and,I believe,
CO-authored, if 1 am not mistaken, with RaIph Ross. At page 161 of
the work to which you referred inyour testimony-that is, pou referred
tu the work-1 do not think you referred to this quotation,but 1read,
if1 rnay, sir:
"Prejudices are theideologicaI 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
sufficienperse to deny them theparity of advantages or opportuni-
ties tht:y seek, though it be without relevance, or the common
characteristic is taken to indicate incapacities, for instance stupidity,49 SOUTH WEST AFRICA
which, were they present, would be truIy disqualifying. This last
implies that the irrelevant common characteristic of the group
ought not to serve as a bais for discrimination against it, unless
indicative of relevantncapacitating traits, which stands to reason."
Do you still consider at the present time these to be correct vie~vs,as
they were in 1g57?
Mr. VAN DEN HAAG:These are, 1 think, correct vieus, and they are
consistent with what 1 have tried to testify to here.
Mr.GROSS:That, of course, the Court wiUhave to decide.
Mr.VAN DEN HAAGY : es,sir.
Mr. GROSS :ow these references specifically to "material disadvan-
tages" would relate, would they, sir, to economic disadvantages?
Mr.VAN DEN HAAG: Yes, sir.
Mr. G~oss: Would they relate to the imposition of ceilings upon
economic advancement based solely on race, without regard to individual
qualities?
Mr. DEN HAAG: Provided that these ceilings are imposed onlyon
one group in a specific situation,andnot on the other.
hfr.GROSS : es, sir, that is whatam referring to, The specific situa-
tion,however, to which 1 invite your attention is one, leus Say hypo-
thetically,inwhich you have a large number of different races, classified
as such, working and, to a large extent, living in the same economiand
geographical area-would this correspond to the context or situation
that you have in mind in answering my question?
&Ir.VAN DEK HAAG:I have not understood this fully, sir.
Rlr.G~oss:1 see, sir1 think 1can state it in a sentence: asituation
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 asyou used the term?
Mr. VAN DEN HAAGY : es,sir.
hlr. GROSS T:hank you. 1 would like to refer to page 150,supra, in
which you testified as follows:
". ..inOur memory very clearly 1suppose isthat [this is one case
you cited]of the Jew in Germany, who were certainly slaughtered
(discriminationiç not enough) [I take it that yoü probably meant
'wriçnot enough', but it appears in the verbatim record as 'is not
enough'];yet there \vasno segregation of an?; length preceding this
slaughter...".
This was à pro os of your views expressed in the testimony regarding
segregation ant itsimplications.Can you tcll the Court, sir, à profios of
the question oflength of time "preceding theslaughter", as you referred
to it, when was the requirement introduced in Germany that al1persons
classified as Jews must weara Star of David badge in public?
hlr.VAN DEY HAAG: 1 do not know the esact time sequence, but my
opinion was, and is, that to the extent to which segregation was intro-
duced in Germany, it wns introduccd as an effect of the planned slaughier
or discrimination and not as a cause; and the point 1 wished to make,
and pcrhaps did not succeed in mnking as clearly as 1 wanted, iç that
segregation is not necessary as an instrument for discrimination, though
it can be so used, and that discrimination and even slaughter can be
planned without prior segregation; but of course then in the act of WITNESÇES AND EXPERTS 453
slaughter, or in the time most proximate to it, youwill necessarily have
to impose some segregation to undertake it.
Mr. GROSÇ : 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. VAN DEN HAAG: Yes, sir, because if you wantcd to select Jews
for slaughter, you had to select them; the act of segregation was simply
part of thc act of selection. They had to be distinguishcd from non-
Jewish Germans so as tobe selected and sent into concentration camps,
which were filIed with them; so here the separation was simply incident
to the slaughter, as it was incidentally also in countries such as Poland
and Holland and many others, where the Germans 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. G~oss: M7care not referring to that, sir. Are you familiar with
any limitations that were imposed upon the freedom of Jews prior to
their slaughter?
Mr.VAN DEN HAAG:Again as an instrument to keep them, so to speak,
ready for the slaughter thatwu done, yes-al1 kinds of limitations.
Mr. GROSÇ: And whcn the sign appeared on a park bench saying no
Jews were allowed-this wns an incident to preparing tlieni for slaugh-
ter?
hfr.VAN DEN HAAG: No, sir, this was just an expression of general
spite and hatefulness, 1would think.
Mr. GROSS:SO that this isan element of segregation, or separation,
if you use theterms synonymously?
hlr.VAN DEN HAAG:1do not think that even at that time in Germany
there was a~iything that 1 would seriously cali segregation. Iwas done
to some extent in certain other countriesin which it was geographicaliy
more easy-for instance, in Warsaw, where the Jews were confïned to a
ghett-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 there nrere a number of special rules
that applied to them, to Jews, before, such as making them wear distinc-
tive garb or signs-things like that-but al1 these seemetl to me to be
part of a deliberateplan on the part of the Government to mnke them
objects of hate.
Mr.GROSÇ : nd that, therefore, was an elementofthe plan which was
perhaps relevant to slaughter, perhapsnot, depending on the intention
of an adrninistrator-is that what you would Say, sir?
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSS T:he 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 offrecdom imposed by Sazi
Germany upon other than Jews, for esample, those who exprcssed politi-
cal opinions addressed to theregime?
Mr. VA'; DEN WAAG: Well yes, under somewhat different laws. In the
case of the Jews these were iniposed merely because these people were
Jews; in the case of political and so on it was introduced by more normal
individual legal procccdings-1 think in many cases rit least-for the
administration of justice in Nazi Germany certainly iacloubtful proposi-
tionto begin with but there were also other races, as 1 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. G~oss: IVould you Say, sir, that the Jews under Hitler were
discriminated against?
Rlr.VAN DEN HAAG:Certainly.
hlr. G~oss: Now with reference to page 151, sufira,where you were
asked for ageneral comment on possibilities of comparing, and 1 quote
from the question-"the American Negroes" with"indigenous inhabitants
of Africa" and you answered-"the American Xegroes originally came
from Africa but 1 think there are very major differences. One is a purely
biological one" and then I skip . .."It isgenerally çaid that African
Negroes, on the whole, are purer Negroes whereas it isgenerally accepted
that there is about a 30 per cent. admixture of non-Nepo genes, or
blood, in the American Wegro". Do you recall that testirnony?
Mr. VAN DEN HAAG: Yes, sir.
Mr. GROSSD : Oyou wish to qualify it in any may before 1 ask you
questions about it?
Mr. VAN DEN HAAG: No, sir.
hlr. GROSSI:have not seen the revised verbatim. Znthis response to
the question of comparing the "American Negroes" with the "indigenous
inhabitants of Africa", did you intend to refer alAmerican Negroes?
Would you answer that "yes" or "no"?
hlrVAN nEi;HAAGW : ell it aslittle difficult for the reaçon that
hlr. GROSS : ut you üsed the phrase ... 1just was trying to get for
the Court the benefit of the use of the phrase. Did that phrase refer to
al Mr.rVAK DENgroHAAG:Let me explain, sir, that these are statistical
rnatters. LVhen1speak of a 30 per cent.admixture, for instanc1,do not
mean that r can state or that I do believe, that every American Negro
fias a30 per cent. admixture of genes-what I do mean is that 1am in-
formed by genetecists, of which I am not one, that on the average one
may spcak of such an admixture. 1do not think that there are any scien-
tific statements that are made in modern science that are other than
statistical in this sense.
hlr.G~oss: 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.VAN DEN WAAG :he concept of a race is a concept of an average,
sir. The members of a race are not al1identicalany particular respect;
on the average certain types ina race are more frequent than they are
in anotlier race and that giussa distinction. It is a frequency statement,
never a statement referring to al1members.
Mr. GROSS1 : see. So that phrase "such as the American Negroes"
means the average American Negroes?
hlr.VAN DEN HAAGR : ight.
Mr. GROS SWould you undertake to define to the Court a description
of an average American Negro?
Mr. VAN DEN HAAG1 :would not, sir. 1 am not competent to dSO.
Mr. GROSSB : ut it is a concept which you have in mind in using the
phrase?
hlr.VAN DEN HAAGY : es, sir.
hIr. G~oss: But you could not explain tothe Court what it is. WITh'ESSES AND EXPERTS 455
hIr. VAN DEN HAAGI: accept thisaswe alivays do in sciencefrom a
related science, narnely in this case. the biologists. Now you togive
a biologicallycorrectdescription ofAmerican Negroes, 1 would have to
have greater cornpetence in biology than I have or than 1 need to bea
sociologist. AsasociologistI am only interested in the social perception
of the Negoes not in their biological substance.
Mr. GROSS Y:our reference to the purely biological difference, then,
in your response to hlr. de Villiers' question, was irrelevant to ...r
Mr. VAN DEN HAAG: It is fairIy irrelevant and if you w1willwith-
draw it.
Mr. G~oss: Not at all;that is entirely up to you. Now do you regard,
on the basis of your discussions with geneticists or scientistinfields
other than your own, that there is a distinction between genes and blood
-you use both?
Air. VAN DEN HAAG:1 used them synonpously. 1 think biood is a
coIloquial expressionforgenetic differences.
Rlr.GROSS :Othat you did not mean blood literally?
Mr. VAN DEN HAAG:NO, sir. There are, incidentally, 1 happen to
know, differencesin the blood composition, but 1 could not tell you ex-
actly what they are-1 understand there is a difference in the time
of coagulation.
Mr. GROSS:Yon mean between the average Negro and the average
White?
Mr. VAN DEN HAAG: Yes, surgeons tell me that they have to pay
attention to that.
Mr. GROSS: And are there differenceswithin each race as well? Have
you consulted surgeons on that qiiestion?
Mr. VAN DEN HAAG :ertainly, tliere are differences regard...
The PRBSIDENT 1:do not know what relevancethe last ttrlo questions
have, Mr. Gross.
hlr. G~oss: Sir, the relevance, with al1 respect, is to the witness's
expert testimony, if it is expert testimony, about a 30 per cent. admixture
of non-Negro genes or blood inthe American Neg~o,and 1 am trying to,
with al1respect, get from the ~vitnessclarification as to words and phrases
he uses here which are so wide as his expertise, as 1 understand it.
The PRHSIDENT V:ery well.
Mr. G~oss: Now would you Say, sir, as a socioiogist that the term
"American Negro" in this context is a stcreotype?
Mr. VAN DEN HAAG: 1 would not Say so, sir. It can so used but pou
can certainly speak of the American Negro, you can speak of the German
type or tlie Italian type andso 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 \vould bc a stereotyp but if it refers to a frequency
distributionof types, be they physical or psychological, it is a perfcctly
legitimate and scientific description.
Rlr.G~oss:Wowis there ascientific description that covers the category
ofan off-spring of a mixed Negro-White marriage?
Mr. VAN DEN HAAG: In certain countrics there usual...
hfr.GROSS :s a scientific matter, sir.
Mr. VAK DEX HAAG:AS among geneticists, is that what you mean?
Mr. GROSSI:n any capacity which you represent as an expert ...
Mr. VAN DEN HAAG: Mrell,1 am not a geneticist so 1 would n0t be
able to respond to your question if it waç meant to be genetical, but if456 SOUTH WEST AFRICA
it js meant tobe social,we do not make such a djstinction except to say
that some Negroes are more white, more light or something likc that
and others are less so.
hlr. GROÇS: Purely visual, sir?
'Mr. VAN DEN HAAG Y:es, sir.
Mr. GROSS : o thatas far as you know there are no scientific or genetic
criteria which are applicablc to the mixed off-spring of a mixed rnarriage?
Mr. VAN DEN HAAG:1 cannot commit myself on that, as 1said, 1 do
not know enough about it.
Mr. GROSS : see. At page 151, supra, of your testimony, you said-
".. .the Arnerican Negro does have American culture, an American
Negro sub-culture if you wish-a sub-culturejust as that of Saylong-
shoremen may becalled asub-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 tcrm, the "average American Negro"?
Iilr.VAN DEN HAAG:Yes, sir. Now 1 am fully alvare, i1 rnay expand
a little on this, that of course there are lower-claçs, middle-class andupper-
class Negroes and that they partake in part of Kegro culture and part
of rniddle class, or upper class as the case rnay be, culture tliif they
are longshoremen they partake in part of the sub-culture of longshoremen
and part of that ofXegroes. But this is very common and would apply
to everybody-that iswe are al1usually members of more than one sub-
culture.
Mr. G~oss: 'l'ou use the terms "American Negro sub-culture": were
you referring toa statisticabase in that ...?
hlr.VAN DEN HAAG: Yes, sir.
Rlr.G~oss: That pou were referring to "sub-culture" as a cornmon
feeling among the average American Negro-1 am not trying to put words
into your mouth, I am trying to eIucidate your meaning.
ilIrVAN DEN HAAG:1 think this would be correct and 1would for
instance make thisclear if you referto linguistic habitswhich arecer-
tainly part of a sub-culture, you would find that certain expressions,
modulations of phrase. terms and so on are more often used by Negro~s
Say than by non-Negroes. Of course, there is individual variatioin this,
nonetheless you can characterize a group in these terms.
lir.G~oss: So that by education and environment you change the
sub-culture pattern in Sour terms?
Mr. VAN DEN HAAG: TOsome extent, yes.
hlr. GROSS:Ta some estent-to what extent ia it? 1sit perpetual and
frozen?
3ir.VAX DEN HAAG:1 think it is fairly ultimately ineradicable, that
is education haç the effect of making people acquainted with other sub-
cultures and acquainted with the culture at large but it does not usually
extinguish the feeling of belonging or deriving from a sub-culture.
hlr.G~oss: 1 would like to invite your attention now to another area
of inquiry. At page 132, supra, you say that-"in principle, wherever
there is a Native culture thahas any sortof strength ... I~vould rnake
every effort1 could to maintain it" and if it u7asnecessary "to bring
about a change, 1 certainly would want todo it in the slowest and the
most supervised way". And then on page 153 you say-"there are cases
when the change occurs suddenly and without regulation by superior WITNESSES ASD EXPERTS 457
authority".1 should like toask you, sir, whether this change to which
you refer relates to rapid or other social change?
Mr. VAZVDEN HAAG: Yes, sir.
Mr. GROSS N:ow is a social change, rapid or othenvisa,concomitant
of economic development?
hlr.VAN DEN HAAG :t canbe. Social change can occur independently
of economic development; it caii also be an effect of itit can also be
a cause of it.
Mr. GROSS: Ifyou as a sociologist or observer would be confronted
with the situation of a diversified economy in which you had perçons
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 HUC: I do not think that can be said generaliy oneway
or the other. It depends on numerous factors. Ive have circumstances
in which the social change has taken place withoutany visible economic
cause and ha had economic effect sornetimes and sometimes not. We
have other circumstances where it can be clearlyshoun that the social
change is an efîect of an economic change.
Blr.G~oss: So that you would not be prepared to Say that economic
development is normaliy a cause of social change?
hlr.VAN DEN HAAG: Itcan also be an effect.
Mr. GROSS :t can be either one or the other?
MT. VAN DEN HAAG: In fact, iI may point out, the last 20 years or
so there has been a considerable change of view on this matter. Many
people in the United States felt that the best 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, andthis has occurred perhaps in the last five years, many social
scientists iri.theUnited States are of the opinion that social change ought
to and must preccde the economic change as that econornic changewould
become as effect. So there is a relationship, but it can be viewed in dif-
ferent ways.
Mr. G~oss:Economic developrnent does have some effect upon social
change?
Mr. VAN UEX HAAG:Oh yes. Sorne effect certainly.
RZr.GROSS : nd if itisSay, an economic environment in which you
have different races, in which both races are absorbed the economy-
this could have normaIly, and would have, a social effect on that com-
munlty?
&Ir.VAN DEK HAAG :I would liketo be able ta give youa clcar answer
but ~lnfortil~latelythe 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 act~vity
without hindrance and so on, and the total ultimate effect so far, has
been one that we are ailso fuliy aware of. Otller cases have haamore
happy outcorne. Ido not believe that one can Say, generally speaking,
that economic integration leads to the social change that is desirable,
that is, some sort of peaceful rclationship between thetwo groups, it
rnay lead to the opposite.
hIr.GROSS : ne questionwith respect to clarification of the case you
just cited. DoIunderstand you correctly, sir, to say that what happened,
as you put itin Germany, was due to the fact that the Jews were in-458 SOUTH IlrEST AFRICA
volved in an economic situation with non-Jews? I am not sure 1under-
stood your answer.
13r.VAN DEN HAAG:1 am sorry if 1was not clear. No, 1 did not Say
that it was caused by the economic situation. 1 merely wished to Say
that the economic situation or integration, did iiut prevent it. Thatis,
that economic integration, CO-operation, equalityand so on, do not serve
to prevent racial or ethnic hostility and so on.
Mr, GROSS : ow, 1 am going to invite your attention, with the hon-
ourable President's permission, to your testimony, at page 154, supra,
ofthe verbatim record of 22 June 1965,in which you referred, in response
to a Iine of questions by distinguished counsel for the Respondent, to
the Brown v. Board ofEduztcalion case; I shall try to keep my questions
brief,li-ita view to terminating our interview this rnorning. The testi-
mony is that :
". ..'modern authority' has demonstrated that segregation'is 'inher-
ently unequal'so what the Court said was in fact, that sociaI 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 injuryon at least one of the
segregated groups, and is therefore inherently unequal".
Thisis your characterization of the Brown decision?
Mr. VAN DEN HAAG: Yes, sir.
Mr. G~oss: Now 1 wilIreturn, hlr. President, imay, to the verbatim
of 23 June. 1refer to page 154 ,upra; you were asked by Mr.de Villiers
"That~proposition of theinfiiction 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, 1
would like toask 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 ln the
United States?
&Ir.VAN DEN HAAG:1 do not regard it asa valid statement at aH.
I do feel that there is no evidence whatsoever for it and1 do not think
that sociologists today would be ready to seriously report that such eyi-
dence is available although, as 1 tried to point out, they would be quite
reluctant, for reasons of policy or fashion, to siate this.
Mr. Gnoss: Xow, I belîeveyou testified tthat,sir-that their desire
not to express their views would be unconnected with their scientificor
objective judgment?
Mr. VAN DEN HAAG: That is correct, sir.
RZr.G~oss: For reasons which you indicated, 1 believe you said "not
fashionable"?
Mr. VAN DEN HAAG; That is correct, sir.
Mr. G~oss: Yes, I çeeNew, you referred, at page 155 of the verbatim
of 23 June, to the fact that "a brief amiccwiae was signed by a number
of social scientists"-thiswas in the Browfi case.
Mr. VAN DEN HAAGY : eçsir.
Mr. GROS SA brief appended to the Applicants' briefAre you farniliar
with the numbcr and identity of the scientistç who signed that briefi
Mr. VAN DEN HAAG: Yeç, sir.
hlr.GROSS T:hen you would take it as correct, that there wer35 such
scientists, fromrj States? WITNESSES AND EXPERTS 459
Mr. VAN DEN HAAG: Yes, sir.
hIr.G~oss: Of the United States. Are you familiar, sir, with the tems
of their concurrence in the brief?
Mr. VAN DEN HAAG: Yes, 1 have read the brief amicus curiae, in fact
1have it here.
Mr. GROSSS :O that you do know, as a fact,that they al1did concur
in the conclusions and opinions expressedin the brief, with thc reserva-
tion that there were some differences of opinion concerning the conclu-
siveness of certain items of evidence?
Mr. VAN DEN HAAC: Y~s, sir. May point out, sir, that since that
time, 1 have written . ..
Mr, GROSS1 : have not quite finished my question, sir. 1 wanted to
make sure that the Court understood the tems 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 justifiedby the evidence and the dif-
ferences aniong us, if any, are of a relatively minor order and would not
materially influence the preceding conclusions".1 quote fram page 177.
Now, do you have any basis for an opinion, sir,as to what weight was
given by tlie Suprcme Court or any justices thereof, to the concurrence
of these authoritiesin this brief?
Mr. VAN DEN HAAG: Yes, sir,I do. 1 think that considerable weight
was given to them. 1 believe 1 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 1 may addto it, let me here quote a
paper by Dr. Alfred Kelly ...
Mr. G~oss: Does this represeiit your opinion, sir? My question w3ç
whether you had any evidence to support your opinion.
Mr. VAN DEN HAAG:1 fully agree with Professor Kurland and with
Professor Kelly on the opinion which 1 am about to read, that the Su-
preme Court's decision in Brown v. Board of Edtrcatiostwas strongly
influenced by the evidence presented by the social scientists in the ap-
pendix to the decision and quoted in footnote 11.U7hat leads me to this
opinion is that the court speaks of "modern authority" and of "contem-
porary psychological knotvledge", references which 1believe cannot be
but tothe evidence presented in this connection. Now1 would like to...
Mr. G~oss: 1 would prefer not, Mr. President-in the interests of time,
1have asked the witness for his owrt opinion and he proposes to read the
opinion of others.
The PRESIDENTI: think that the witness should ançwer the question.
Mr. G~oss: Then. sir, may I continue? Thank you, sir. As a matter
of fact, then1 believe you have testified,have you not, thatyou do not
know of any basis for an opinion as tothe weight, if any, givenby the
justices of the Supreme Court to the scientific authorities who signed
this reporti
Afr.VAN DEN HAAG:No one, not even the justices ...
Mr. G~oss: Nobody .. . so you do not purport to have judgment, ex-
pert or otherwise on that?
Mr. VAN DEN HAAC : NO, but there are references in the judgment to
modern authority, which are .. .
Mr. GROSS Y:es, we understood that. Now, in the alnicuscuriae brief,460 SOUTH WEST AFKICA
to which ure are referring and about which you testified on 23 June, the
brief discusses a report of the so-called rnid-century White House Con-
ference on Children and Youth, does it not?
Mr. VAY DEN HAAG: Yes, sir.
Mr. GROSS:Are you familiar with that White House report?
Mr. VAN DEN HAAG: It was preparedby Professor Kenneth Clark and
1 have reviewed its contents in the article wh1submitted to the Court.
Mr. GROSS: It was prepared by Kenneth Clark; it was discussed and
signed by numerous scientists, was it, sir?
Mr. VAN DEN HAAG: Yes, sir.
Mr. G~oss: NOW, are you familiar with the conclusion of the report?
-as follows, on page168 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
discriminatians. . ."
The PRESIDENT M:r. Gross, 1 think if you are cross-examining a wit-
ness, you cannot ask a witness in reIation toa factual situation, as to
how a report, with which he had nothing ta do, came into being. You
can ask him whether he agrces with a conclusion or opinion expressed.
You cannot quote, for the purposeof putting on the record as evidence,
the factual details in respeof the matter.
Mr. G~oss: Mr. President, with respect, sir, 1 will attemto make
clear the purpose of this quotationI had planrled toask thewitness for
his concurrence or non-concurrence mith the conclusion of this report.. .
The PREÇIDENTA : conclusion you may put to the witness, but not
how the report came into existence.
MT. G~oss: All right, sir; thankyou, sir'1will, with the ~resident'i
permission, ask the Court to ignore the question and the witness to ignore
the question, and ask you whether you agree witl-ithe following charac-
terization of the report, whi1fread from page 168:
"The Report indicates that as minority group chiIdren Iearn 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 inferiorit~ and a sofpersona1 humil-
iation. Many of them become confused about their own persona1
worth."
Do you agree with that, as a fair characterizationof what the report
indicates? You tcstified that you were familiar with treport. DO yüu
regMr. VAN DEN aHAAGr c:aOUmean, doio1 ...what the report indicates?
Mr. GROSS:1 have just read to you ...
Mr. VAN DEN HAAG: Yes,1 understand. Do I regard thisasthe opinion
that the report expresses?
Mr. G~oss: Yes, sir.
&Ir.VAN DEN HAAG : ertainly, that is the opinion that the report ex-
presses.
Mr. GROS: Now, I would like to turn to the question which was ad-
dressed toyou, by Mr. de Villiers...
Mr. DE VILLIERS:&Ir. President, 1 am sorrÿ to interpose... WITNESSES AND EXPERTS 461
The PRESIDEXT Ies, Air. de Villiers.
Mr. DE VILLIERS: My learned friend has had his election not to caU
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 fro~na report, and just asking the witncss
whether he agrees that that is what the report says-that, 1 submit,is
not permissible.
The PRESIDENT I:does not make what is said in the report evidence
at all; if experts are being cross-examined, a1 have already indicated,
cross-esamining counsel may put to the witness urhether 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 noevidence,
Air. Gross, of any fact.
Mr.GROSS :ir, urith respec1,had intended and hoped that it would
make it perhaps relevant to the testimony of the witness that thisreport,
if1 understood you correctly, the White House report, which is whatwe
are referringto, was the work of Professor Clark,is that . . .
Mr. VAN I>EN HAAG : Largely so.
hlr.GROSS L:argely so. This conclusion1have quoted is a description
by the signers of this brief as to the nature ancharacter of the report.
Now 1 u7asleading to nnother clucstion, sir, with whicI would like to
connect up.
The PRES~DENTV : ery well.
Mr. GROSS : he question 1 have just asked-with al1respect, 1 think
that the interposition of distinguishedounse1was somewhat prernature,
because this is part of the line of questions in whic1 would like, with
the Court's permission, to corne to the second related part, and theask
the witness for 1% opinion.
The PRESIDEXT j:rhether he agrees with ascientific opinion?
Mr. GROSS :hat is right, sir. Nolv then, the amicocsbrief then goes
on to Say, ai page 171:
"Conclusions similar to those reached by the mid-century White
Hoztse CyonferencReport have been stated by other social scientists
who have concerned themselves with this probleni. The following
are some exampIes 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 DES HAAG: Xo, sir.
>Ir. 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 pou
agree with that, sir?
Mr, VAS nEx HAAG: NO,sir.
hlr. GROSS A:nd thirdly, "segregation not onlp perpetuatcs rigid ste-
reotppes 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 Iikely to occur"Do you agree
with that, sir?
Mr. VAN DEN HAAC. : O,sir. Let me add that I am aware that not462 SOUTH WEST AFRICA
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, has been largely faked.
Mr. G~oss:Has been largely what, sir?
Mr. VAN DEN HAAG:Faked.
Mr. G~oss: Faked? F.A.K.E.D.?
MT. VAN DEN HAAG:Y~s, sir.
Mr. GROSS: By ud-tom,sir?
Mr. VAN DEN HAAG:By Professor Kenneth Clark.
Mr. G~oss: Are you finished, sir?
Mr. VAN DEN HAAG:Yes, sir.
Mr. GROSS: On page 162, supra, of the verbatim of 23 June, Mr. de
Villiers asked you the following question : "Dicl you find anything inher-
ently improbable in the description as contained in BookIII (II) of the
Counter-Memorial?" This referred to the different population groups in
South West Africa. 1 should like to ask you, sir, have yreadthe Reply
of the Applicants in these proceedings?
Blr. VAN DEN HAAG: I went through al1 the documents, but rather
superficially, so would not wish to vouch that I will remember any
details.
Mr. G~oss: You testified, 1 think, sir, with respect to the question
asked you witk regard to Book IIIyou did not find anything inherently
improbable?
Mr. VAN DEN HAAC:Yes, Istudied this at the instance of Mr. de Villiers
somewhat more carefully, and came to the conclusion that youust quoted
me as making.
Mr. GROSS:But you did not study the Applicants' pleadings with the
same degree ofcare?
Mr. VAN DETU' HAAG: 1 did not read al1the volumes with equal care,
that is true.
Mr. G~oss: Can you Say, in the same sense In which the question was
addressed to you, whether you find anything inherently improbable in
the Applicants' pleadings?
Mr. VAN DEN HAAG: If YOU would be good enough to refresh my mem-
ory, 1 could answer that.
Mr. G~oss: Well, 1just wanted to know whether you could answer it
in the sarne terms that you did the Book III question.
Mr. VAN DEN HAAG:Three weeks ago my memory was fresher than
it is now.
Mr. G~oss: 1 çee, sir, ço that when you answered the question that
there was nothing inherently improbable in that book of the Respondent's
pleadings, you did not have inmind what was in or might be in theAp-
plicants' pleadings-is that correct?
Mr. DE VILLIERS:1 am so sorry, thais not put in correctly. 1 put to
the witness a particular description contained in BooIII, I didnot put
a whole book to the witness. 1 am sorrythat 1 have to interfere.
Mr. G~oss: Mr. President, I think the record will show ...
The PRESIDENT: Mr. Groçs, before you pursue this question, you had
better refer to the record.
Mr. GROSS:Yes, 1 was just going to, sir1 thought 1 had read it, sir,
but apologize for nothaving dune so.Quote, page 162, sz@rn:
"...[do] you find anything inherently improbable in the description
as contained in Book III of the Counter-hlemorial?" WITNESSES AND EXPERTS 463
The PRESIDEN Tthat was the answer to that?
Mr. GROSST :he answer \\,as"1 am aware, as any sociologist is..."
-it is a rather long oneMr. 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 PKESIDEN T d he Say in that that there was nothing in Book
III which wa.sinherently improbable?
Mr. GKOSS I:took that to be the whole purport of his answer, sir, in
that respect.
The YI~ESIUENT But where in his answer?
Mr. GKOSS It is the middle of page162, supra.
Mr. DE VILLIERS: MI. President, perhaps 1 can help; it started at
page 160,there was an interposition and discussion and it al1 related
back to the question in the middle of page161, supra.
"31r.van den Haag, particularly inout Book IIIof the Counter-
Mernorial, we gave detailed descriptions of the various population
groups existing in South lIrest Africa anIasked you whether you
had read that."
That was the description referred to.
The PRESIDEST F:urther in the page there, the question is also put
by Rlr.de Villiers tthe witness as:
"1 merely asked you to indicate whether, in the light of your
general knomledge of human relationships over the world, you find
anything inherently improbable in those descriptions."
Mr. GRO S ^s:sir, andrny whole point solely, now,isto pursue the
lineiio furthcr, but1wish to say for clarification thamy question was
directednt precisely the same area whichiscovered by the Respondent's
question. 1 asked the witness whether he had.read the Reply covering
the same points, and 1 was asking whether he had found anything in-
herently improbable in those sections.
The PRESIDENTI : think not, Mr. Cross, you have put a question to
the witness at largc in respecofBook III of the Counter-Mernorial and
the Applicants' Pleadings.
$Ir.GROSS : l1righf, si1,apologise, and1 would Liketo continue.
The PKESIDENT Please do.
hlr. G~oss:At page 164,you were asked (assuming this was Ù $repos
of Book VI1 of the Counter-Memorial and referred to the educational
policy), and1 will read the question:
"... assiirning the correctness of that proposition abouthe airns
and the nature of the Bantu education system, \vould you, in the
context of such an educational system. espect that the mere fact
of separation of children into different schools must inevitably
inflict psychological harm?"
And in the course of your reply, you said, inter dia,at the end of your
response :
"... an atternpted homogenization would certainly be harmful to
both, as well as unsuccessful".
Would you explain to the Court what the significance of the word "homo-
genization" is in this context?
Mr. VAN DEN HAAC ;es, sir,1tbink it will refer tan educational
poIicy which treats different groups, having different cultures or sub-464 SOUTH WEST AFRICA
cultures, and, perhaps as a result of genetic differences, different attitudes
and endowments, hornogenization would treat these groups, education-
ally as though they were the same, and, for i~istance! instruct themin
the same language although they have different native Ianguages, in-
struct them in the sarne activities althouthey 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 establish, and badly, a sort of cornmon hornogenized
culture instead, which1 think does a damage educationally and psycho-
logically.
hlrG~oss: Would you describe the term "homogenization" or "homo-
genized" as scientific terms-terms as applied to anything other than
milk?
Rlr.VAN DEN HAAG: Well we speak of heterogeneous groups and
homogenous groups, and of course ifthere is lieterogenous and homog-
enous, then you can homogenize, you can transform one into the other,
or try to.
Mr. G~oss: And a "homogenous group" woilld be, what, sir?
>Ir.VAN DEN HAAG:A group of the sarne kind. It depends in what
respect you want to speak of homogenous, you can speak of homogenous
with respect to tallness, hair-colour or weighor anything else.
Mr. GROSS : nd in the sense you use the terin "homogenized" in your
response to Mr. de Villiers' question,hat were you referring to: height
or what other characteristic?
Mr. VAN DEN HAAG1 : was referring to sub-cultures.
Mi. GROSS :TO"sub-cultures"?
Mr. VAN DEN HAAG: Or cultures.
Mr. G~oss: Not races?
Mr. VAN DEN HAAG : These too if you wish, but races cannbe homog-
enized physicalIyin a school at lcast.
hfr.GROSS S:o that what you were talking about was hornogenization
of cultures, is that right?
Mr. VAX DEN HAAG : hat is right, sir.
hlr.G~oss: 1 would conclude, &Ir. Presidcnt, i1 rnay, sir, with one
or two questions. On page 174,sup~a, of the verbatim, you were asked:
"What happens when there are attempts at assimilation of one group
with another, . . ." and your answer on page174,was as follows:
"There are circumstances when this cm be successfully accomp-
lished, when it is carefully regulated...the attempt to do so by
coercion isnot likely to be successfuL.."
May I ask you, sir, xvhether you nrould regard attempts to separate
groups by coercion as likely to be successinlthe sense which you have
used the terrn?
Mr. VAN DEI^ HAAG : here are in some cases,Ithink indicated, when
you have a case where there is one very highly developed culture, using
this word va~ely, but 1 think we understand what it meanç, and an-
other that is more primitive. What is likely to happen is that the highly
deye!oped culture exercises a great attraction on the group that has a
primitive culture.They rnaybe attracted to this cultureand to participa-
tionin it, even though such participation or attemptedparticipation in
it may be their own undoing, particularly when the participation happens WITNESÇES AND EXPERTS 465
as rapidly as their attraction to the developed culture may lead toIn
this case,1think it is not only useful bu1,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 1give an
instance-American Indians, as you certainly willknow, were very at-
tracted to the culture of the colonists and particularly,among other
things, attracted toalcoholic beverages,wliichended up being in large
part, as they themselves complained, their own undoing. In some places,
thoiigh quite belatedly, Xndians were therefore escluded from places
where alco~io~icbeverages were purchasable and it was prohibited by
law to sel1them to them: as1said, it was too late. Brit here you have an
instance wliere a somewhat more advanced culture both attractedthe
less advanced culture and rcsuled in the uridoing of those who were so
attracted and not prevented from indulging in this somewhat suicida1
attractionby superior authorit .Thus in somc cases 1 shouldthink that
compulsion is not only justifLebut necessary to keep cultures apart.
Rfr.G~oss: Now would that go so far as total separation of races?
hlr.VAX DEN HAAG: 1think that if \vehad engageclin thawithrespect
to Indians, the Indians would still be alive today, and would probably
be happier than their remnants are.
nlr.G~oss: Have the Indians been absorbed into the economy of the
United Stat.es?
ilfrVAN DEN HAAG :WeU,if you consider killing an absorption, they
have.
%Ir.G~oss: Do jrou consider killing an absorption into the economy?
hlr.VAN DEN HAAG:No I do not.
Mr. G~oss: My question \vas,have the Inclians becn absorbed into
the economy of the United States?
Mr. VAN DEN HAAG: They have Iargely died.
Mr. G~oss: Had they ever been absorbed into the economy?
hir. VAN DEN HAAG:Yes, sir. Those that have remained have been
absorbed.
hlr. G~oss: Those that have survived.
Mr. VAN DEN WAAGY : es, sirThe process of attempted absorption led
to a very reduced survival.
Blr.GROSS :hat is right, sir, an1think it uras deplorable-may we
talk about the contemporary conditions? In a diversified modem econ-
omy, let us Say hypothetically dependent for its esistence or success
uyon labour of oiie group, can you asa sociologist envisage a successful
governmental coercion which prevents assimilation,inthe sense in which
you used the term?
Bfr.VAN DEX HAAG: 1can, sir.
hlr. G~oss:Would you define then againwhat you mean by "assimila-
tion" inthat contest? You refer to Indians drinking-that is not assimi-
lation, 1take it in the context here is it, sir? Piecasestate it in your own
way if you will.
hIr.VAN I)EN WAAC : It wain the contcxt of the Indian life at the time.
With referencc to your question, may 1 assume that 1 have it clear:
you want mieto state what 1 mean by assimilation, or ..
hfr. GKOSS : hether your terni "assimilation", taking that as the
predicate ofmy question-whether you can visualize that governmental
coercion ag:iinst assimilation is likely to be successful?
hlr.VAN DEN HAAG:1 wou1d say that it could be successfulIf the466 SOUTH WEST AFRICA
work of the people involved in industry would be temporary rather than
permanent, if their residenceç 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.1 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. G~oss: One final question if1 may, Mr. President. Dr. van den
Haag, in the conclusion of th35 scientists who subscribed to the amicus
czl~iaebrief in theBrown case, the following sentence appears: "The
problem ivith which we have here attempted to deal isadmittedly on
the frontiers of scientific knowledge." Would you agree, sir, with this
characterization of the problem of race relations in modern çociety?
Rlr.VAN DEN HAAG:1 would think that their statements were at the
frontieo rfsscientific knowledge,meaning by this that they were not,
contrary to the impression they give, establisheti by any sort of evidence.
Mr. G~oss: 1 am sure that you did not mean to evade rny question,
but do you agree with the statement that the probIem of race relations
is "admittedly on the frontiers of scientific knowled e"?
Mr.VAN DEN HAAG1 : donot find your staternentfr. Gross, sufficient-
ly intelligible to either agreordisagree. There are specific aspects of
that problem that have been well settled for a longrne, there are others
that have not beensosettled; thatistrue foralrnost allproble1knowof.
Mr. G~oss: So that you find this conclusion of .these 35 scientists as
unintelligible, sir?
Mr. VAN DEN HAAG: NO, 1 find it a literary concluçion, to whic1
would not give much weight.
Mr. GROSS: Thank you, sir. That is all, Mr. President. Thank you, sir.
The YRESIDENT:Professor van den Haag will return at three o'clock
this afternoon, to which time the Court will now adjourn.
*.
The PREÇIDENT:1 understand, &Ir. Gross, that you have completed
your cross-examination?
Mr. GROSS: That is right, Mr. President.
The PRESIDENT: Certain Mernbers of the Court desire to ask some
questions of Professor van den Haag but before they do so, there are
certain questions 1wouid like to put to him in relation to hiç evidence
thiç morning. You referred to a certain report, Professor van den Haag,
as having been faked. So that 1 may understand precisely, to identify
the document, is that the document which is shown as an annelr inthe
Supreme Court case ofBrown v. TheBoard of Educatiolz?
Mr. VAN DEN HAAG: Sir, the annexamicztsczrriaeis based on .. .
The PRESIDENT N:O,firstlyisthat the document?
Mr. VAN DEN HAAG: NO,sir.
The PRESIDENT:Which document were you speaking about?
Mr. VAN DEN HAAG: The document on which it is based.
The PRESIDEET:What document is that?
Mr. VAN DEN HAAG: This is the report to the White Houçe Conference
on childrenand youths, which isreferred to in the annex which you have
just mentioned, Mr. President. At the rccent-1 am reading frorn Pre-
jecdiceand Your Child, a book that 1 have put in the record... The PRESIDENT:Just identify the document, that is ail 1want.
Mr. VAN DEN HAAG 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. In foot-
note z it is made clear that this is the report called "Effects of prejudice,
and discriniination on personaIity development-Fact-finding Report
Mid-century IVhite House Conference" by Kenneth B. Clark. When 1
spoke of "fnked" 1 meant that document.
The PRESIDENT 1:want to ask you a few questions about that. %%en
OU use the word "faked" do I understand you to rnean thatit was a
doctored report so as ta convey afalse or misleading impression?
Mr. VAN DEN HAAG: Yes, sir.
The PRESIDENT :f course that js a fairly serious charge to make
against a confrère in the field of study in which you are engaged.
Mr. VAN DEN HAAG: Yes, sir.
The PRESIDENTO : nwhat grounds do you express the view, stating
them precisely, tliat it was a fake document?
Mr. VAN DEN HAAG: Professor Clark stated in the report mentioned,
and in various otlier places whi1hmentioned in my examination before,
that he had made observations by presenting dollç to Negro children in
segregated schools and had found that these Negro children, although
Negro children, think of themselves as identical with the White doils.
The PRESIDENT:YOUhave already dealt with this in your evidence
before so thereis no need togo on ...
Mr. VAN DEN HAAG:And now, Professor Clark indicated that this
shows the damages brought about by segregation, discrimination and
prejudice, pârticularly by segregation. However, he withheId from the
courts and did not, in the document which I have just quoted, cal1 at-
tention to the fact that in previous observations onNegro children in
non-segregated schools he had found that more Negro children in these
non-segregated schools identify with the White do11and thus indicate
confusion of personality, damage and so on. Now it iç very clear tmy
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 had inmind
when 1 said"faked".
The PRESIDENT The fact that he did not produce or reveal this pre-
vious observation, is sufficient to justify, you are saying, that his report
was doctored for thepurposes of giving a false impression. 1sthat correct?
Rlr.VAX DEN HAAG: 1 thought and I previously used the expression
"misleading" which is perhaps somewhât more correct, he did not only
not produce it on this occasion or refer tobut,also in prior court testi-
mony in the lower courts he did not refer to it and at one point, in one
of the courts, he did refer to experiments undertaken wit300 children
but gave, 1 must assume deliberately, the impression that these experi-
ments with these 300 children, which can only be the onesI have just
referred to, led to the same conclusion as the experiment with the 16
children, wliereas in fact they led to quite the opposite conclusion. 1 in-
dicated as much in my article in the Villanova Law Reuiew which is
also in the record of this Court.
The PRESIDENT:Y3u did not then use the word "fake" did you?4'33 SOUTH WEST AFRICX
Mr. V.4N DEN HAAG: 1used the word "misleading".
The PRESIDEXT The word "fake" does not convey merely misleading,
it is preparing a document to convey a misleacling impression and pre-
paring a document to convey that impression deliberatel...
Mr. VAN DEN HAAC:1 would. ..
The PRESIDENT N:O,first answer the question piease. 1s that what the
word "fake" means?
Mr. VAX DEN HAAG1 : think soI have certainly...
The PRESIDENT 1:understand then that it is the fact that he did not
produce to the court or inform the court in tBrow~zcase of this other
experiment that you Say justifies you in using the wo"fake".
Mr. VAN DEN HAAG Y:es, sir. That is the w1used it in this occasion
but 1 would like to refer my conclusion in theVillanouaLaw Review
article which is as follows . . .
The PKESIDEX T fore YOU do that1 just want to finish my question,
sir. The fact that he did notoduce the results of his previous experi-
ment you Say is not capable of any other interpretatioexcept that he
had done it deliberately to rnislead the court?
Mr. VAN DEN HAAG:If 1 gave that impresaicin1wish to withdraw it
and refer rather to the çonclusion thIwould like to offer.
The PRESIDENT W:ell that is the impression that you intended to
convey to the Court, is it not?
Mr. VAN DEN HAAG: No, sir1 had not as carefully thought about the
meaning of the word"faked" inthe sense ofdeliberate intent deceive
as you have now clarified it1 am not sure about the deliberatenesof
Professor Clark-1 have no means of ascertaining whether he gave this
misleading impression out of,shall we Say, innocent incornpetence or
out of sophisticated malice.
The PRESIDENT Th:en it wasan unfortunate word to use.
Mr. VAN DEN HAAG:1 am sorry and 1will withdraw it. May1 ...
The PRESIDENT : id you want to add something to your explanaiion?
hlr.VAN DEN HAAG:Yes, 1 wish to point out that 1was not intention-
ally trying to convey this impressionInmy articIe T wrote as follows,
in conclusion:
"From Professor Clark's experiments, his testimonyand finally
his essay, to which1 am referring, the best concIusion 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 isail1
wanted to ask you.
hlr.GROSSM : ay1 be perrnitted to address a question à pro$os of the
exchange?
The PRESIDENT:Well 1 think not, Mr. Gross, unless you think it is
important to Sour case.We have concluded yoiir cross-examination but
the Court will give you permission to do so.
Mr. GROSS:This will be very brief. 1 should like to refer to thetesti-
mony of the witness, page 157, wpa, of the verbatim record of
23June, in which the witness, andI quote . .
The PRESIDENT : hat transcript is it anwhat ... WITNESSES AND EXPERTS 469
Rfr.GROSS :3 June, fiIr. President, pagr57.
The PKESIDEN :'l'es.
Mr. GKOS SThe witness said: "As a matter of fact, in prior experiments
which he"-referring to Professor Clark-"forgot to mention to the
courts." May 1 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 pour statement, Dr. van den Haag,
tbat Professor Clark's memory failed him in this respect?
Mr. VAN DEN HAAG: The word "forgot" was meant ironically. 1was
not sure whether Professor Clark actually forgot his own experiment or
whether he deliberately failed to infom the court of it, as I have just
indicated to the honourable President. 1 can only repeat 1 prefer to as-
sume the best hypothesis, namely that he forgot.
Mr. GROSS :hank you, Mr. President.
The PRESIDEX T :rtain Mernbersofthe Court desire to ask the witness
certain questions. 1cal1upon Judge Koretsky.
Judge KORETSKY Professor van den Haag, my questions are due to
thefactthal: this is, as fa1 know, the first occasion on which questions
of social philosophy and sociology have been raised in this Court. Un-
fortunately 1 did not have the advantage of being acquainted with al1
your theoretical books. 1 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 Consfvaint. At the same
time 1 see that you haveled, or tried to Iead, the Court through the jungle
of literary opinions. But did you cary 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 even to the help of cornputers? 1 had an
opportunity during my çmall illness,to look through your, may I Say
frankly, ratlier paradoxical book...
The PRESIDENT: Will you put the question, Judge Koretsky?
Judge KCIRETSKY: With respect, Mr. President, will you permit me
this short introduction?Many of the conclusions made by Ourexpert do
not refer to the many facts and1 do not understand how he comes to his
conclusions even in his books. 1 find on page 187 references to suicide
and so on, pages aro, 222 and so on, but1 ssk hirn, do you consideritis
sufficient to refer merely to individual obsenlations 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?
Rlr.VAN DEN HAAG :l'our honour, sociology, ainal1the social sciences,
involves both theory and empirical research1 am not myself an ernp~ncal
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 find out whether they support one hypothesis or the other, one theory
or the other. This is my task.
As for the verification of individual researches,have no opportunity
of doing these.Al1 researches in this field are undertakby individuals.
Cornputers, unfortunately, merely reflect the data that are put into them
and the reliabilit~ of these data, of course, depends on the reliability of
the individuals involved. Now, let me point out that generally in the
sciences reliiincisput on the observations of others,ifthis were not so470 SOUTH WEST AFRICA
we wouid each have to start fram the beginning. In the physical sciences
it is sometimes possibleofcourse, to repeat an experiment and when we
have experiments in the social sciences we, too, can repeat them or can
ask ourselves whether appropriate conditions for controllingand so on
are present. But may 1 point out that even though 1 felt, and stated,
that Professor Clark's conclusions and the evidence presented before
the Court were highly misleading, 1 at no time doubted his actual data,
that is, the statistics that he gavehave accepted and 1 would accept
the statistics that any scientist of good standing gives, unles1 have
special reasons to believe that he was wrong or incompetent.
When 1 spoke wrongly of fake and, more correctly of misleading, 1
referred to I'rofessor Clark's unwillingness to present his dorhis un-
willingness to interpret them in the light of reasonable scientific criteria.
1 at no time doubted his data or, for that matter, anyone else's data.
Judge KORETSKY : ou considered many facts at the same time. YOU
have made reference to some facts in Brazil, and so on. You made this
statement inCourt. Did you yourself try to inquire whether these facts
were there or not?
Mr. VAN DEN HAAG: Ars Eonga,vita buevisI. 1 were to go Brazil to
attempt to verify the researches made there, and then to goto Hawaii
and so on,1 would not be able to do many of the things I want to do.
When an article appears in aprofessional journal, such as the two articles
on Brazil that 1quoted, which appeared in the two leading American
professional journals, and1 know of no research throwing doubts on the
result of these article1,wiI1,as everyone else, accept thern.
Judge KORETÇKY Yes,1 understand that you cannot go to the barber's
shop to see if it is correct ththe owner refused to serve one Negro as
referred to in your statement. But you had other facts to check. Diyou
present here the statements ofmany writers and scientistand scholars?
Did you give an exhaustive picture of the trend, of the Iiterature even
in the United States on social subjects?
Mr. VAN DEN HAAG: NO,sir, 1 did not.In the first place1 have only
one subject to deal with and, in the second place, 1 cited only those
views that 1 felt 1can endorse, aware in fact, not of contrary data, but
of different conclusions and viewsbut sinceI do not endorse them 1 saw
no reason to cite them. I am certainly aware that not everyone would
agree with al1ofmy concIusions.
In direct examination 1 think 1 was asked which of my concIusions
1thought would meet a consensusof my colleagues and which would not
and 1 tried, to thbeçt of my knorvledge, to ançwer these queçfionç.
Judge KORETSKY:Yes, but at the same time you continued the po-
lemic with your colleagueProfessor Clark. This may be a one-sided state-
ment. In your book Passion andSocialCo?astrabn tage 102, you wrote:
"Scientists too form groups and then sometimes wilfully delight
in distinctive terminologies. Therescornpetition and even 'imperi-
alism' among the learned specialists."
1understand that there isa difference of mind, and forme as a Judge
it is veryinteresting to know the position of others. But what is interesting
forme now is did you corne across, in the scientific literatatenden-
tious selectionoffacts or even danderous statements tvhich you ha-
repeated here in your statement? How do yori sort out the pure grain
of facts from the noxious weeds? WITNESSES AND EXPERTS 471
Mr. VAN DEN HAAG: 1 wish, your honour, that there were a general
formula, but there is notItis entirely trueasyou have just suggested,
that scientists are faliible and certa1nam fallible1can only dowhat
1 have tried to do-to give you my view, 1 hope instructed by what
scientific cornpetenc1 can claim, to the best of my knowledge. 1cer-
tainlyam capable of making mistakes, so are al1 of my colleagues. If
you look at the history of science you will find that betw50nand IOO
years ago almost every social scientisinAmerica was willing to prove
to you that Negroes can be shown to be biologically inferior. This is a
view that, as 1 indicated,I do not hold and for which 1 think there
was never any evidence. NonetheIess, it was,50 years ago, the consensus
of Americari scientistsIt is now the consensus of American scientists
that it can be shown that Negroes are exactIy the same as Whites in all
psycho1ogic:tl respectsMy own view is, and has been, that neither of
these two contentions has been shown so farand that science is subject
to fashions, which can be quite misleading.
1 am afraid 1 have no general formuIa to tell you when to recognize
truth and when not. Yau have to go into the particular case, judge the
competence of the observations and interpretationaccording to general
criteriof scientific methodology, which is wha1 have tried to do.
Judge KCIRETSKY T:tis very difficult to have a polemic in this stage
of Our Court. 1s it not known tbat in their laws, constitutions, decrees
and practict: of courts, different governments combaprejudices,partic-
ularly racialprejudices,with different degrees of insistence? Didknow
that some governments regard them with indifference or even 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. VAN DEN HAAG: That is a very difficult question.
Judge KORETSKY Iunderstand that you have read the constitutions,
laws and decrees directed against racial prejudices of the countries you
mentioned here inCourt.
Mr. VAN DEN HAAG:1 am not altogether sure what laws and decrees
you have in mind.
Judge KORETSKI f:you mention Brazil, perhaps. You know the Con-
stitution?
RlrVAN DEN KAAG : o, sir1have not read the Constitution of Brazil.
Judge KORETSKYY :OUdo not know the Constitution of Brazil?
&Ir. VAN DEN HAAGN : O,sir. May 1point out that when 1referred to
Brazil 1did not refer to any laws at 1lreferred to the factualbehaviour
of people in Brazil, not to the behaviour that is prescribby law, but
the behaviour that actually takes placeinBrazil,
Judge KCIRETSKY B:ut did you differentiate between the practiceof
Statesand acts ofcertain individuals?1rnentioned the barber shop orner
in Brazil, or certain groups within a given State or StatesI am more
interested in the attitudof the government itself.
Mr. VAN DEN RAAG:Well, it depends on what you are interested in.
At the moment when I discussed Rrazil,f triedto point out that Brazil
1s often regarded as one of the few countries where there is no racial
prejudice, not because of lawsbut perhaps because of history and other
factors.1 pointed out that this impression is not confirmeby the data
coliectedby the two scientiçts that1 quoted. 1 did not indicate that
this practice was approved by the Brazilian Government, or corresponded472 SOUTH WEST AFRICA
to its laws or was contrary to its law1.did not undertake any research
in that direction.
Jiidge KORETSKY : ut 1return to my first question: how do the dif-
ferent policies of the governments influence the spread or the attenuation
or slackening of prejudices?
Mr. VAN DES HAAG: Well, that really depends on the situation. In the
case of Germany, there you had a Government quite malevolentlyleading
the German people and trying to exacerbate the perhaps pre-existing
slight prejudice;that Government, under special conditions, succeeded
fairlywel 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 iust what the German Government was
doing.
Now, in other cases, in the United States, for instance,inthe north
we have had numerous laws, of which the Civil Rights Act that hlr. Gross
cited is only the last. In the state of New York, in which 1 live, for
instance, for more than zo years there have been al1 kinds of laws on
the books to prevent discrimination in employment, to prevent discrim-
ination inhousing, to compel landlords to sel1or rent their houses regard-
less of race, religion and other factors. It is more or less the consensus
of al1 concerned that this has not so far improved the situation of the
minorities tllatwere meant to be protected by these laws toany signif-
icant degree.
Such a conclusion, of course, is somewhat speculative. Perhaps with-
out theçe laws the minority would be even worse off. What we can Say is
that it is notmuch better off than it was before these laws. This isthe
view of the leaders of the Negro community, So that 1 would say the
effect of laws meant to protect minorities inintegrated 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 : jd YOU study yourself this question more pro-
foundly?
Mr. VAN DEN HAAG:Did 1 study this question more profoundly?
Judge KORETÇKY Y:es.
Mr.VAN DEN HAAG:Well, 1would hate to saythat Iam more profound
than others-1 have ccrtainly paid a great deal of attentionto 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 prejudiceis not based altogether on ignorance but on deeper-rooted
ernotional dispositions of the prejudicedperçons, then 1 feel that Iaws
or cognitive means of any kind are fairly useless.
Judge KORETSKY U:seless?
Mr. VAN DEN HAAG: Useless.
Judge KOKETSKY U:seless! You mentioned just now about a minority
-may Iput to 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, su#ra. He asked you: "What does that
çubject comprise?"-the minority problems-and you answered: "In
effect, although conceptually,it of course applies to al1minorities, that
is to al1groups other than the dominant one in any given society"; 1 WITNESSES AND EXPERTS 473
understand that you know that there are some societies ~vherethe minor-
ities arc not under the domination of the majority?
&Ir.VAS EN HAAG: Yes.
Judge KC~RETSK IYu:derstand pour statement to apply to a situation
where the minorit is under the dominancc of another group, which is
a majority cine.1sT oIld be interested to know whether you have canied
out research into a situation ~vherethe dominant ethnic group is quan-
titatively a minority group, and not a rnajority group-what socio-politi-
cal consequt:nces might one expect in such n case?
Mr. VAN DEN WAAG: 1 must Say that 1 have not carried out thisre-
searcli; it is a question th1thave posed to mysclf and that ha always
intrigued me-the situation that you mention, your honour, occurs in
Abyssinia (or Ethiopia)-it occursin a number ofother countries in which
a numerical minority sets the tone of the culture, and in some cases even
monopolizes political life, anitwould 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 T:ank you, Mr. President. I thank you for your
patience.
The PRESIDENT J:dge Forster.
Judge FORSTER: Rlonsieur van den Haag, j'ai moi aussi. dans votre
déposition figurantau procès-verbal du 22 juin (Sztpvap. 149)~ relevéla
précisionsuivante touchant lestermes de discriminalion ctde ségrégatian,
je cite:
"Je crois qu'une distinctions'irnposcentre ségrégationet discrimi-
nation, bien que,d'aprèsledictionnaire, ces deux termes aientApeu
pr&s le mêmesens; je préféreemployer le mot de skgrégation au
sensde 'séparation', laquelle bien entendu n'implique nullement des
mesures d'oppression ou n'est nullement liéenecessairement à des
mesures d'oppression; elle peut jouer lcmême r81e qu'un couteau,
qui peut être utilisé soit pour couper de la viande soit pour assas-
siner. II n'est pas de la nature du couteau d'ktre utililides fins
illégitinies et 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'estpas 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'cst une formde distinction et on peut l'ap-
peler discrimination. Ceuqui ont de bonnes notes ont certainavan-
tages etceux qui en ont de mauvaises siibissent certains inconvé-
nients. Mais ceci sera considérécomme légitime parce que j'ai ap
pliqué on l'espèce,et j'espère toujours le faire, un critère pertinent.
Si jedevais noter non pas d'aprés les résultats scolairesmais, disons,
d'après le sexe, la religion, le charme, la taille,out autre critère
sans pertinence, je crois que l'on pourrait parler de discrimination."
hlonsieur 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, voiis estimez queladiscrimination raciale (celle qui comporte
désavantage), érigéeen doctrine, légalement instituée par tel gouverne-
ment et systématiquement appliquée par lui depuis des décades à une474 SOUTH WEST AFRICA
popuIation africaine, est de nature à accroître le bien-être matériel et
moral, ainsi que le progrès social de ladite population?
hlr. VAK DEN HAAG W: ould you like me to answer this first question
first?1 understand that you are asking whether materiai discrimination
deliberately imposed by a government against a racial group would inter-
fere with the welfare of that racial groupdo I have your question cor-
rectly, sir?The answer is yes, if isdiscrimination in the sense in which
I have defined this terrn, and which you were good enough to quote-
then, indeed, such discrimination, whether imposed by the government
or any other authority, would interfere with and impair the welfare of
the group discriminated against. However, if it is merely segregation,
then 1 would not think, whether it is imposed by the government or by
another authority, 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 J: vous remercie, mais je faisais état de la discrimi-
nation en opposition I la ségrégation tel que cela cst défini dans le
passage que j'ai lu de votre déposition.
Et maintenant, voici ma deuxiéme question: sous quelle rubrique (dis-
crimination ou ségrégatio cnassez-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 premiére
question de ma seconde question)?
Mr. VAN DEN HAAG:Yes, sir. 1 would call this discrimination if it im-
poses unilaterally a disadvantage on one of the groups. If its purpose,
however, ismerely to separate the two groups by race or any other cri-
terion without imposing disadvantageson one group that are not irnposed
on the other, then Iwould 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-
digkne, en raisodne sa race,de pratiquer certairieprofessions telleque:
prospecteur en minéraux précieux, négociant en métaux précieux non
travaillés, administrateur,administrateur adjoint, administrateur desec-
tion ou de sous-sol, chef de brigade, surveilla~lt des chaudières et ma-
chines dans les mines appartenant à des persoIines 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 elsewheresimilar 0pportunit.ies to hold joof similar
status, so that the whole purpose is to deprive them of a higher status
they may othenvise have achieved, then 1worild call it discrimination.
If, on the other hand, these people, because of their race, are prevented
from holding the jobs you listed in a given place under given circum-
stances, but are permitted elsewhere to hold jobs of a sirnilar kind,
whether they be exactly the same jobs or not-jobs, however, that ~~~ould
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
1 rnay, if you will be good enough to allow me, add that suc11a iiieasure
rnay always have some disadvantages for some individuals {ho would
have liked to practise lawin agiven place where they are not allowed to,
or to beinspecter ofmines in a given placewhere they are not aIlowed to,
but such individual disadvantages 1would not call discrimination unless WITNESSES AND EXPERTS 475
the whole group is placed at a disadvantage in the manner 1 have just
indicated. The reason why Ithink so is that 1cannot think of any social
measure meant and perhaps effective in enhancing the welfare of oneor
two groups which would not, at times, place some individuals at some
disadvant age.
The PRESIDENT A:ny other questions, Judge Forster?
Judge FORSTER: Je vous remercie. Enfin, sous quelle rubrique (dis-
crimination ou ségrégation)classez-vous par exemple Ies restrictions au
droit d'habiter dans une zone urbaine, restrictions dictées par des con-
sidérations de race ou de couleur?
Mr. VAN DEN HAAG:My ançwer is analogous to the one 1 just gave.
If this mearis that people are deprived of advant ageous locations without
being offered other locationsequdly advantageous or similar in advan-
tages, then 1would cal1it discrimination because they would be deprived
irrelevantlyof opportunities to which, inmy opinion, they are entitIed.
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 1would Say this falls within the rubric
of segregation.
Judge FCIRSTER :e VOUS remercie. Et pour terminer, sons quelle ru-
brique (discrimination ou ségrégation)classez-vous par exemple le fait
de refuser à l'indighne en raison de sa race ou de sa couleur, l'égalitéde
chances avec le Blanc quant aux possibilités d'atteindrete1 but dans la
vie?
hlr. VAN DEN HAAG:1 must apologize-I did not understand the last
phrase-ivould you be good enough to repeat it?
Judge FORSTER e 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 refuserA l'indigène en raison de sa
race OU de sa couleur, l'égalitéde chances avec le Blanc quantbaux pos-
sibilités d'atteindre tbut dans la vie?
Mr. VAN .DEN HAAG: 1do not understand "tel but"-çuch an aim in
life,I~voulcltranslate it, bu1 have not understood what aim.
The PRESIDENT : articular goal in life.
Mr. VAS SJEX RAAG : es, that iç what1 understood, but it is not en-
tirely...
The PRESIDENT : hat particular goal in life is it, Judge Forster, that
you have in mind?
Judge FORSTER S:OUSune autre formule: j'ai étudiépour devenir in-
génieur un jour; j'arrive dans un tel pays et vous me dites: "Vous avez
toutes les capacitéspour etreingénieur, mais vous ne pourrez pas exercer
ici", alorsii'rin autre, Blanc, qui eçt dans les mêmes conditions que moi
et faitiesmêmesétudes, a passéIes mêmesexamens pourrait s'installer
et exercer 1;iprofession d'ingénieur.
Nr. VAS :DEN HAAG: Thank you. 1 have iiow understood. My mswer
is that ifthe cngineer is prevented because of his race from practising
his profession in one place and not alIowed to practise it in any other
place,1 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 inny place, then
too 1 would regard this as discrimination. If, however, the engineer be-
cause of hi5 race is prevented from practising hisprofession in a given
place, and ;iWhite engineer is also prevented from practising his pro-476 SOUTH WEST AFRICA
fession in a given other place, th1would regard this as merely incident
to segregation and not to discrimination.
Judge FORSTE REt si dans la zone où vous permettez à cet indigène
d'exercer la fonction d'ingénieur, n'y a pas de travaux d'ingénieur?
Rlr.VAN DEN HAAG: 1 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 i'Etat permet à cet ingénieur indigène d'exercer sa
profession d'ingénieur dansune 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'apoint son emploi dans
telle zone. Est-ce que cela est de la discrimination ou de la ségréga-
tion?
Mr. VAN DEN HAAG:1 may point out that the Iinguistic difficulty waç
mine and not yours. I should certainly Say that ifhe is permitted to
carry out his profession in an area where there are no material possi-
bilities to carry out his profession then in effect he is not perrnitted to
carry it out, and1would then cal1it 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 bein made dong those lines1 would have to rnitigate
rny statement accor&ngly.
The PRESIDENT : ny othcr questions, Judge Forster? Does any other
Member of the Court desire to aska question? Mr. de 17ilIiers,you desire
to re-examine? 1beg your pardon, Sir Louis.
Judge Sir Louis MBANEFO One leading off froni the questions you
have juçt 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 de~nocratic society, thereis
tremendous power in a government and power iscaptured through the
ballot-box.If you are denied the right to vote in a society in which your
interest is involved, would you consider thatby itself a discriminatory
act?
Mr. VAN DEN HAAG: There are two points which 1 wish to mention
-perhaps juçt one. The word "democracy" is subject to many inter-
pretations; 1 like to define it to mean a governmental system where at
least a substantial group of the citizens are able to elect and ousteir
government by legitimate means. However, if 1 corne to define that sub-
stantial group, 1have never been able to find a cIear-cut formula and
1 would like to indicate why that is the cas1.am not sure whether this
must include people between the agcs of 18 and 21 or over 21.
Judge Sir Louis R~BANEFO 1:am sorry to interrupt you. Perhaps you
would put it simply-having a voicc and determining your own affairs
as a people.
The PRESIDEETI : think the witness has started to respond-he spoke
about a democracy. 1 think the witness is entitled to explain iwhat
sense he understands the term. Will you contiiiue.
Mr.VAN DEN HAAG: 1 am trying to answer the question aIunderstand
it. 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 1 am aware of this being inter-
preted to mean that Switzerland is not a democracy.The very term "de- WITNESSES AND 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 PRESTDEN T ing us up-to-date, witness.
Mr. VAN DEN HAAG: conclude from this that what is essential to
democracy iç 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 deinocracy has bcen extended. Now if your contention is that in
some parts of Africa the vote is not given to some of the citIzshould
certainly say that democracy has not been extended to these citizens.
Yowever, 1 would also compare such a country with other countries in
which the vote is given to every citizen but no opportunityis givento
them to vote for an opposition ticket. This seems to me considerably
worse, in respect to the freedom othe inhabitants.
Judge Sir Louis MBANEFO That does not answcr my question. Bly
question isdo y011consider a denial of right to vote, the right for instance
either tohave a voice or to control whoever haça 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 :O,sir,1 do not.
TIiePRESIDENT The real question was "why you do not".
Mr. VAN DEN HAAG:1 am sorry. For the reasons 1 tned to indicate
before, namely that 1 find thatinmany States, fora varietyof reasons
other than placing people at a disadvantage, some of the citizens are not
allowed to vote.1am convinced that the Swiss Government has no par-
ticular intentionoi placing women at a disadvantage in denying them
the right to vote and1 am not sure whether the circumstances to which
you allude might or might not be similar to those1 could imagine, of
course, their deprivatioof the right to vote iç used, as you suggest, for
purposes of discrimination and1would not assent toany statement that
indicates that it must always be so used because we have nurnerous in-
stances to the coiitrary.
Judge Sir Louis MBANEFO M y comment to the questions you have
been asked by Judge Forster-you talk about if a person was allowed
to practise in one placand not in another place-who allows him?
air.VAN DEN ~AAG: 1 think it must be the goverilment.
Judge Sir Louis MBANEFO A:nd ihe has no voice in that government?
Mr. VAN DEN HAAG: That would still be the same as, 1am sony to
have to refer to it once more, laws about marriage, child-bearing or
special occupations undertaken by the Swiss Government abont women,
even thougIl wornen have no right to vote for or against 1tstill would
not regard that as discrimination.
Judge Sir Louis MBANEFO Now at page 148,supra, of your evidence
on 22 June, you said-"Perhaps, the most important, or at least the
most numerous, of such groups was the Universal Association for Negro
Improvement forined by Marcus Garvy and which flourished very-much
in the1g20s, etc."Do you accept that the reason behind the movement
to return to ilfrica was to escape from racial discrimination practised
in the United States which the Negroes regarded as oppressive?
Mr. v~x IIENHAAG: Ido not think so. It was 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, towards 478 SOUTH WEST AFRICA
the end of his life, as to support theKu Klux Klan, insisting that the
Ku Klux Klan's principle of separation was correct eventhough he did
not agree with al1the means. So my view of the ideas of Marcus Garvy
isthat he thought that sepâration 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 1 think for him that was a
. political rnatter 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 MBANEFOW : hat political motivation would you Say
was behind the movernent?
hlr.VAN DEN HAAE:1 tkink it was a feeling of national or racial iden-
tity.1think it was that Negroes did wish to have, or thought they wished
to have, a separate national entity of their own. If 1 may suggest this,
1 think many Jews went to Israel largely because of being oppressed and
mistreated in other countries but, 1 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 whorn they felt ethnically identified,and I think this
rnay have been amotivation of many Negroes too.
Judge Sir Louis NBANEFO1 :do not want to go into argument, but
would you tell me from which book on the Universal Association for
Negro fmprovement, where you got the material you have just given
the Court?
&Ir.VAN DEN HA&: Yes, Ican, infact it is in the record. 1offered it . . .
1 thought 1 had it herein duplicate, but1 cannot find it. The book is in
the record. 1offered it in the recorthelast time Iwas here and I think
we will easily find the title.
The PRESIDENT:Perhaps it can be identified by &,Ir.de Villiers later
on.
hfr.VAN DEN HAAG: 1 think itwiklbe very easy. 1 have another copy
of the book with me, but for some reason 1 do not have it on my table
here.
The PRESIDENT D:oes any other Member of the Court desire to ask a
question? If not, Mr. de Villiers, do you desirtore-examine?
Mr. DE VILLIERS: I have no re-examination, Mr. President. 1 would
like to express our appreciationto the Court for the special session this
afternoon at some inconvenience to itself, so as to be able to continue
the examination of this \vit.ness. May the witness be excused, Mr. Presi-
dent?
The PRESIDENTI:f no Member of the Court desires him, he can be
excused. 1 assume that there is no objection, &Ir.Gross?
MT.GROSSN : O,Mr. President.
The PRESIDENTV : ery well, youmay stand down, Professor. Professor
Logan wilInow be called to the stand. 1s Professor Logan here?
Mr. DE VILLIERS:NO,Mr. President, we have not got ProfessorLogan
here.Ive understood the arrangement this afternoon to be that we would
only finish Professor van den Haag's evidence. Professor Logan dl be
available tomorrow morning.
The PRESIDENT T:here rnust have been some misunderstanding then,
Mr. de Villiers, because it was assumed that we would dispose completely
of both aitnesses during the course of today.
Mr. DE VILLIERS: 1 am sorry, Mr. President. WITNESSES AND EXPERTS 479
The PRESIDEKTI :f he is not here, there is nothing we can do about it.
hlr.DE VILLIERS: 1 am sorry, that was not conveyed to us, as faras
1know.
The PRESIDENT: Then could you indicate to the Court, Mr. de Villiers,
that apart from Professor Logan, of whom certain hlembers of the Court
desire to ask questions you have another witness.
Mr. DE VILLIERS: Yeç, Mr. President.
The PRESIDEXT:Will he be a short or a long witness?
Mr. DE VILLIERS: 1 have Mx. Cillie, whose evidence-in-chief should
take less than the rest of tomorrow morning's session,which would Leave
a full day on Wednesday, for cross-examination and questioning by the
Court.
The PRESIDENT:Mr. Gross, the Court does not seek to tie you at al1
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,
~vhathe is going to Say.
Mr. G~oss: On Wednesday, sir?
The PRESIDENT:Yes.
Mr. GROSS:If he does not take al1 morning to answer one question,
sir.
The PRESIDENT: Ttdepends on how long the question is.
Air. G~oss:I -,il1 undertake to conclude without faiI, sir.
[Public hearingof 13 July 19651
The PREÇIDEN'T:The hearing is resumed. Professor Logan wiliyou
corne to the podium? Mr. Muller?
Mr. MULLERM : F.President, before the witness proceedmay 1 mention
that he uTasasked on Friday to obtain, ifpossible, 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. 1sthat correct?
Mr. MULI-ER:Yes, Mr. President, the Natives on the farmç in the
southern sector.
The PRESIDENT:Well, perhaps, Mr. Gross, it would be convenietit 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 pf Professor Logan. Perhaps he
should give them now before you finish yonr cross-examination. Professor
Logan, would you just give the detniIs of those figures?
Prof. LOGAW Y:es, Mr. President.The total population of South 1ITest
Africa according to the 1960 Census was 526,004. This is taken from the
Odendaal Commission report, page 37, tableXVI. The population domi-
ciled in the northern sector, outside of the Police Zone, was 286,485,
constituting 54.5percent. of the population. This figure is obtained from
the Odendaal Commission report, page 39, table XVIIT. The population
domiciled in the southern sector, withinthe Police Zone, totals239,jI9,
or 45.5 per cent.of the total populationof the Terntory.
Taking orily the southern sector, the composition of the population
domiciled there is as follows: European 73,464; Non-European 166,055;480 SOUTH WEST AFRICA
totalling to the239,519. Now, of the non-European portion of that,that
is of the composition of non-Europeans domiciled in the southern sector,
and thiç information is taken from the Odendaal Commission report,
pageqr, table XIX, on the Reserves, or home areas, 38,648; outside of
the Reserves in the urban areas, 59,073, and outçide 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, representing the Native persons domiciled on the
farms outside the Reserves in the Police Zone, includes men, women and
children. In lieu of absolute figures for tliis, it is estirnated 25aper
cent. of this figure would be adult males. The position would then be as
follorvs: adult male Natives-16,078, women and children-48,234.
These figures do not include either northern or extra-territorial Natives
contracted from outçide the Police Zone under temporary contracts. If
information is desired on this, it is in the Counter-Nemorial, BookV, II,
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-hlemorial, Book V, II,
Page 74.
Mr. President, 1 trust this will cover the information desired.
The PRESIDENT:Thank you. Mr. Gross, will you continue your cross-
examination?
Mr. G~oss: Thank you, &Ir.President. I should like to address one or
two questions to you witli respect to the statenlent jusmade. You refer-
red to temporary contracts. You testified, 1 believe, did you not, that
youdid nothave information concerning the average length of tirne which
these labourers from outside the sector spend in the southern sector?
Prof.LOGAN: That is correct.I do not have specific information.
Mr. G~oss: Do you have information concerning the average number
of contracts which are made with any class,any group, of the Natives
who come to the sector for work?
Prof. LOGAN : NO, 1 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 1 said the other day, there are a large number of
them who renew their contracts after their period of return to Ovambo-
land and came back, but as to percentages or total figures1 do not have
the information.
Mr. GROSS:DOyou know, sir, what definition or significance the word
"domiciled" has in this connection?
Prof.LOGAN : es, in working thisup yesterday, 1 proposed putting
the term "domiciled" in. It was nof in the original statement as we
worked it up. Itis a reference to lvhether 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 "domiciled", individuah from the north who perhaps
spend a good part of their Lvorkinglives in the sector? WITNESSES AND EXPERTS 481
Prof. LOGAN: 1dan't think so, no. 1 don't think so because the de-
tribalized Ovambos would be included in here.
Nt- G.~oss: But you don't know how many of the Natives from out-
side do spend asubstantial portion of their working Livesin the sector?
Prof.LOGAN: No, 1said that 1 did not have thatinformation.
Mr. G~oss: 1see. Then I will continue with other questionsProfessos
Logan.
The reference 1 shallmake, Mr. President, is to the verbatim record
of9 Jrily, and1should like to cal1your attention, sir, to page 4supra,
of that verbatim record, in ~vhichyou stated as follows, in responseato
question 1 had addressed to you: I asked you whether we urere talking
about the southern sector outside the Reservand you replied as follows:
"1 am sorry. But you seeeach of the individuals thatiswithin 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 ..."
1 should like to ask you if you would, please, explain to the Court
what meaning you bvishthe Court to attribute to the word "affiliated"
in that reply?
Prof.LOGAN: That there is a feeling on the part of the individual,
and an acceptance by the group involved, that this individual ia part
and parce1 of that particular group, that particular group being a group
basically domiciled, resident upon a Reserve.
Mr. GROSS:1s there any standard or objective criterion bvhich you
would appiy to determine whether a specific individual is "affiliated"
in thissense of theterm?
Prof. LOGAN: 1would not know how to determine such a thing pre-
cisely, no. The individual feels in hown mind, the community accepts
him outwai-dly, openlyand therefol-e his a member of that community.
1 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 comrnunity. The comrnunities
arestrong bodies within themselves and they have a strong social organi-
zation and an outsider is distinctly an outsider, or one the in-group
is distinctly one of the in-group, a1dthink there is very little marginal
room here.
3tr. G~oss: Are you talking,sir, about the groups withinthe southern
sector outside the Reserves-the communities that is?
Prof. LOGAN: Yes, 1 am.
Jlr. G~oss: Now, 1 just want to remind you once more. Your state-
ment \vas that each of the individuals, that is within the southern sector,
is still affiliated with a Reserve or homeland and 1 wouId like to ask
you lvhether, in your use of the term "affiliated" in that testirnony, an
individual who was born and lived al1his Iife 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 : ell,1 betieve that if you rcfer to other parts of that
same testimony you \vil1recall that we had a considerable discussion on
the fact that the Native normally returns to his homeland during a
period of hisyouth, and so 1believe that the number of individualswho
had never been to a Reserve would be very tiny indeed.482 SOUTH WEST AFRICA
hlr. G~oss:Well, for example, sir, would this apply to the detribalized
Ovambos who Iive in the southern sector outside the Reserves?
Prof. LOGAN :he detribalized Ovambos would perhaps be different
but most, 1believe, of the detribalized Ovambos still return to Ovarnbo-
land on occasion.
Mr. GROSS:Alid that constitutes ''affiliation" with their homeland,
in your sense of theterm?
Prof. LOGAN Y:es,1 think so-yes.
hlr. G~oss: Are there any consequences with respect to individual
freedoms, or group status, or any other conçequences,economic or social,
which arise from the concept of "affiliation" of each individual with a
Reserve or homeland?
Prof. LOGANY : es, think it givesthem a zvholebody of tradition and
culture to which they can adhere, and results in a stability in the com-
munity which would be non-existent tvere you to remove it, were it not
there. The most pitifulsituation anywhere in the world, 1 think, is the
person who does not belong to any group, and to separate such groups
from their parent comrnunity would, 1 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 Y:es,the White group feels affiliated with other meinbers
of its own national group,itsown language poul+the German with the
German group, the Afrikaaner with the Afrikaaris group, and so on.
Mr. G~oss: So that "affiliation" in this sense would not be-or~vould
it be-a scientific or technical term?
Prof.LOGAN: No, I think it is term in common, ordinary English.
Mr. GROSS : ouId you Say that scientific and technicaterms are not
ordinary English ?
Prof. LOGAN :Well,1 think thereisa 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 çomewhat warped or confined in scientific
language, and 1did not mean thisin any such terminology here-1 have
no separate and special meaning for the term "affiliated".
&Ir.GROSÇ:SOyou are not using this term in anyexpert sense or tech-
nical sense?
Prof. LOGAN: Well, not in any highly specialized sense, no.
Mr. GROSS: Very well. I would like now to refer to the verbatim
record of 8 July, at page371, szc~ra.In response to Mr. Rluller's reques-
to state your opinion asto whether the different population groups in
South West Africa can be treated uniformly for purposes of economic
development and administration, yoü responded that it is necessary to
recognize the "profound difference between the European and the non-
European", as well asthe marked differences "within the non-European
group" ; and in your response you stated further :
".. . itisquite necessary to tailor the attempts to advance each
of the individual groups to the immediate rieeds of that particular
group, rather thanto try to spread one type of blanket development
over al1 of the groups".
Would you explain tothe Court in what respects, if anyyour statcment
applies, let us Say, to thehalfof the Herero who are "absorbed in the
diversifiedeconomy of the southern sector", in the words of the Odendaal
Commission report? WITNESSES AND EXPERTS 483
Prof. LOGAN The Herero are absorbed as workers on farms operated
by Europeans; they are absorbed as emploÿees in the businesses and
industries operatedby the Europeans. Now, to sub~nit them to the same
requirements of education, for example, and of training to which you
would subinita Bushman group who have never been exposed in any
way to anything mechanized or anything urban would be, 1think, an
insult to the Herero people, because the Herero people are at a much
higher Ievel than this; bust the same time, to expose the Herero people
to the possible exploitation of them by Eiiropeans within the area of the
Native townships where they have alreadyset 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, iis
an educational device inthe first. These are quite different peoples, and
1feel that to try to appIy the same set of regulations, or the same pro-
posais for advancement, to the three different groups, rneaning the
Bushman, the Herero and the European, to take three radically different,
separate entitieç here, would be extrernely impractical, it would be
dangerous and in some cases it woiild be insulting to an already well-
developed culture.
&Ir.G~oss: I wouId like to direct yoiir attention to the Herero group
that you mentioned. You said, if 1understood you, that half-you con-
firmed, did you, the Odendaal Commission statement-the Herero are
"absorbed in the diversified economy"?
Prof.LOGAN Yes.
Mr. GROSÇ: NOWwodd you say, sir, that the (to use your phrase)
education zind training of the half of the Herero who are "absorbed in"
the "IVhiti: economy" should be the sarne as, or should it be different
from, the (:ducation and training of the other half of the Herero who
are not "absorbed" in the economy?
Prof.LOGAN :es, I think that there should be a differencebetween
the different members of the community, the different groups in the
communitj,.
Mr. GROSS:Yes-the different members within a group . . .?
Prof.LOGAN W: ithin the Hcrero community, in the different portions
of the Hert:ro comrnunity.
hlr. GROSS:So that you would think that it would be sound to differ-
entiate within a group as well as between groups, would you, sir?
Prof.LOGA NYes, definitely.
Nr. GROSS: Confining ourçelves 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.\yhy
there should be separate consideration given to the education andtraining
of these individuaIs who comprise the half of the Herero "absorbed in"
the "White economy"?
Prof. LOGAN :orne ofthe 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. Tt isfor this reasonthat bursaries are available
tothe different groups to go as far as university in the Republic, and this
has been accepted from tirne to time by Hereros who have done 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 thi:rn do not, but it is hoped that they will return and raise the484 SOUTH WEST AFRICA
standard of the entire group.To have them raise the group Erom within
is infinitely better than to have an outside grou~i,such as the European,
corne inand try to raiçethegroup, because tliey understand one another
better than outsiders understand them.
Mr. GROSS: YOUSay that it is hoped that-if 1 understand you cor-
rectly-please correct me if 1 am wrong-the educated Herero will
return to his Keserve . . .
Prof.LOGAN: Or to Windhoek, yes, or somewhere.
Mr. GROSS:Or to Windhoek?
Prof. LOGAN Y:es.
hlr. G~oss: Suppose that he is an educated Herero who reçides in
Windhoek-is it hoped that he would remain there? 1 do not understand
your comment, sir.
Prof.LOGAN : O,1 saidifhe was sent under a bursary tothe Republic
of South Africa, then it would be hoped that he would return to Urind-
hoek, to the Herero community at Windhoek, or to the Reserves-if he
were a doctor, Say, perhaps to the Reserves, if he were in other fieIds,
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 use of the word "Windhoek"-tlo ÿou mean the city of
Windhoek?
Prof.LOGA KYes.
Nr. GROSS: TO Iive in the citofWindhoek?
Prof.LOGAN : Yes.
>Ir. G~oss:It is hoped that the educated Herero will livein the city
of Windhoek?
Prof. LOGAN:Yes, that iscorrect.
Mr. GKOSS:Not in the township. ..
Prof. LOGAN : Well, he would live in the portion of Windhoek which
is the township of Katutura.
Mr.GROSS :Therefore by Windhoek you mean lCatutura inthis respect?
Prof.LOGA NYes, because the city of Windhoek is divided into various
parts, one of which is the Native townshipof Ka.tutura, and so fie would
live in Katutura.
Mr. G~oss: May I rephrase my question, then? When you refcr to
"itis hoped that" (1 shall ask you in a moment who is hoping) the
educated Herero live in Katutura,in the caseof Windhoek, or live
in a Reserve or homeland-that is your testimony, sir?
Prof. LOGAN:Yes, that is nght.
Mr. GROSS: In other words, would it befairto say that it is hoped that
the educated Herero will not be part of the so-called "White" economic
community ?
Prof.LOGAN: 1did not Say that I hoped that he would not be a part
of the White community-it is justin the nature of things, in the laiv,
in the general practice of the area, that the Herero would not be a part
of the European comrnunity, and 1 would not expect him to be; the laivs
areset up in such a way thathe would not be apart of itand the whole
social system is setup in that way.
Mr. GROSS:SO that when you Say "it ishoped", are you referring,
sir, to the legislative and administrative policy or practice?
Prof.LOGAX : When 1 Say "itis hoped" 1am meaning that the Govern-
ment hopes, the Administration hopes; 1am sure that most of the people WITNESSES AND EXPERTS 485
of Windhoek ln any community, White or Herero or any other, hope,
and 1hope, and 1 hope everyone else here hopes, that he will becomea
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. CROSS:The effort is to raise the standarof the community-
that is conceded.What effort is there to raise his standardsin the "White
economy" in ivhich he is absorbed, if he ~vishesto remain there?
Prof. LOGAN: TO raise his level in the White economy?
Mr.GROSS: We had agreed, sir1 thought, to speak about individuals
for the time being-1 am talking about Hcrero individuals who are
abçorbed in the "White economy"; what effortsif any, are made to
enable him to be absorbed in the economic community, the imite com-
munity? Are there any, sir?
Prof.LOGAN Y:es, 1 think there,are rather a great many: there is,
for example, a number of aduIt evening courses that arerun specificalIy
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 statuç economically within the White
echlr. GROSS: We will come back ina fcw moments, with the President's
permission, to the question of education-1 will take that in another
context. Tlienext reference 1would 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, sirReferring to the United States you stated that-
"The Negro andthe American speak the same English in America
-slight differences in dialect, but basically the same thing-are
certaiiily able to communicate with one another."
Prof. LOGAN: 1do not like the way1 phrase that first part "tNegro
and the A~nerican" because 1 consider the Negroan Arnerican, if this is
the way 1understand the . . .
Mr. GROSS: 1had not really asked my question,1thought you wanted
to Say something; 1thought you might wish to correct that-how would
you prefer it to stand, sir?
Prof. LOGAN: I would Say the Negro and the White speak the same
language or whatever . ..
Mr. G~oss: ". . . speak the same EnglishinAmerica"?
Prof. LOGAN: Yes.
Mr. G~oss: And do al1Negroes speak the same English in this sense?
Prof. LOGAN : ellIbelieve 1said other than slight ciialect differences
they speak the same English.
Mr. GROSS:And there are slight differences in dialect on the part of
the White English-speaking person?
Prof. LOGAN : Well, the White person or the Negro person have dialect
differences but basically theyan understand each other.
Mr. GROSS: 1 primarily wanted to give you an opportunity to correct
that in thc record. You do not wish the Court to draw any inference
from the statement in any aspect relevant to this case, or do pou, sir?
The PRESIDENT: What does that question mean, Mr. Gross?
Mr. GROSS:Tlie witness made this comment about the Negro and the
American speaking the same English in America which has now been486 SOUTH WEST AFRICA
corrected. In the context-1 willfind it ina moment, sir-on page 371,
sztpra,inwhich the witness waç discussing "profound difierence" between
the European and the non-Eürapean, and he 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 1 had
meant to ask the witness bymy question, Mr. President, what significance
if any, he considered that remark to bear in respect of any issue in this
case ...
Prof. LOGAN : hat was a slip of the tongue and1 would like the word
"American" removed and "White" or some other term put in and 1 do
not knom why 1 made the slip. conçiderthe Negro as much an American
as 1 am.
The PRESIDENT1 :understand.
Mr. GROSS : OWat page 372, s~dprao,f the same verbatim,in response
to Mr. Muller's questionwhether the various groups in South West Africa
identified themselvesasseparate groups,youresponded in part as follows:
"... each one [that is group] represents ancl considers himseto be
a member of a distinct group, a separate group.
This issometimes a friendly difference, asbetween the Nama and
the Damara; sometimes it is quite an antagonistic difference, the
groups do not get along well together; if theare mixed thoroughly,
then ali kinds of friction may develop."
Do you recall that testimony?
Prof.LOGAN Y:es.
Mr. G~oss: Would you regard the difference, if any, in thiscontext,
between the White group and the non-White group as a fnendly or
antagonistic difference in the sense in which you have used the terms
in response to Mr. Muller?
Prof.LOGA N1 am not positive, hearing this cornat me now, whether
this was in reference to only the Native groupsor the non-White groups
or whether it was in reference to the Europeaii group and the others.
1 will Say here though that the referenceas I intended to make it there,
was aimed only ai the non-White group but there is much more friction,
far more friction between the various non-khitc: groups than there is at
al1between the White and any fragment af the non-White group. There
is generally a friendly relationship existing everdwvherein South West
Africa between the European group and any part of the non-White
group.
Mr. GROSS: Itdoes not quite clarifyitfor me. it might for the Court,
sir; 1 would like if 1 may to pursue the question one or two notches
further. You refer in your answer to my question, I think repeatedly,
ta the word "group"-wouId you Say, sir, that it would be an observable
phenornenon in South West Africa that some members of the White
group have prejudice or feeling of hostility against members of non-
White groiips, jn the sensein urhich you have used the word?
Prof. Loc.4~: 1 think there isvery little, and 1 repeat, very little,
hostile feeling on the part of \hitestoward the Nativc community and
1think there is equally little hostile feeling on the part of the Native
element towards the White community, orif you wish 1 will say non-
White because I am notintentionally ornitting anycoloured groupshere.
There are amicable relations existing alrnost entirely between the Euro- WITSESSES AND EXPERTS 4s7
pean group and the other group; there are always individuals, aswe
keep repeating herc, who do not conform to the norm and there are
Fhite individuals who do not conform to what 1 just said but these are
rare. The abuse of a Native or the bad feeling towardç a Native is not
any greater than and probably not asgreat as the abuse of a child by his
own parents in a good many White communities that 1 am acquainted
with and yet wc gencrally Say we like our children ancl get along in a
friendly manner with them. 1think that basically thcre is an amicable
relationshi~i between the groups.
Mr. G~oss: Would you regard it as a normal or legitimate purpose of
government to protect individuals against the unusual, exceptional or
whatever phrase you want to use, prejudice of members of one group
against another?
Prof. LOGAN Y:es,1 think that is an element of government.
Mr.GROSS : OW,therefore, the fact that it may be exceptional in
your terms-is that factifit ia fact,relevant tothe question of whether
or not the government in South West Africa ought to protect members
of one groilp from the consequences and prejudices of members of an-
other group?
Prof. LOGAN Y:es, think this is an important item in any community
-in South West Africn too.
Mr. GROSS1 :shall corne back to that also in connection with another
question addressed by Mc. Muller to you. To what extent, if any, are
group differences-hostile, friendly or antagonistic-to what extent, if
any, are such differences (inthe sensein which you used the word) at-
tributable toenvironmental or educational factors?
Prof. LOGAN 1:am afraid1 do not quite understand the question.
Mr. G~oas: hlay 1 repeat the question? 1 willshorten it because I
wanted to make sure we were using the same words. To what extent, if
any, aregroup differences-antagonism, friendship or whatever you wish
to say-attnbutable to environmental or educational factors?
Prof. LOGAN I do not thjnk to any extent attributabtoenvironmental
factors, whether itbe social or physicak environment.I do not think to
any extent to educational factors. Perhaps the lack of education over a
long periotl of time enhances problems between the various Native
groups and perhaps proper education over generations would obliterate
this but 1 tlonot think that these are attributableto environnlenttll or
educational differences.
Rlr. G~oss: But you think that education may be relevant ta the
elimination of antagonism?
Prof. LOG.- : Yes,I think so.
Mr. G~oss: Would communication between groups be relevant?
Prof. LOGANO :fcourse, very much so.
Mr. GROSS : ow, asan expert in geography, whose study involves the
relationship between man and land and the çociological aspects thereof,
would you then say that some at lest of the differences, in tcrms of
antagonism or hostility, aretheresuItof lack of communication between
the groups?
Prof. LOGA N\'esthe lack ofcommunication and with it lackofunder-
standing which goes with communication.
Mr. GROSS W:hat do you mean, sir, when you use the phrase "if they
are mixed thoroughly" as you did in your response to Mr. Muller's
question? Would you explain that to the Court?488 SOUTH WEST AFRICA
Prof. LOGAN:Yes, if you were to put side by side within a housing
area of an wban comrnunity, a Damara, a Nama, a Herero, Ovarnbo,
mixing them thoroughly, house by house down the street, then 1 am
afraid there would be considerabie difficulty between them, ~vhereasif
you Iiave one area which is purely Herero and another area mhich is
purely Damara, then the hostility is not so likely to occur.
hir.GROSS :Othat by the phrase "niixed thoroughly" in this context
you wish the Court to understand that you are referring to residential
location, sir?
Prof. LOGAN W:ell, yes. The same thing would be true if you mixed
ina collective gathering of individuals standing together in an open space.
There might be some difficulty between them.
Mr. GROSS : ho would "them" be, sir?
Prof.LOGI~N :Between the different groups tha1 just named-between
the individualsof these groups.
Mr. G~oss: IVould you Say, sir, that congregating in the street is a
form of mising which you fear would arouse ...?
Prof. LOGAK Y:es, but congregatingin the street is under somewhat
of acontrolledcircurnstance.Wowever, when they congregatesorneivhere
else under other circumstances there may be difficultas 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.
hIr.G~oss: So that you were not using the terrn, or were you using
the terrn, "mixed thoroughIyJ', ia technical or scientific sense?
Prof. LoG.~N: No, there was no scientific or technical terminology
implied,
Mr. G~oss: The purpose of thcse questions, Mr. President, is simply
to demonstrate, and to clarify whether these phrases are used by this
expert witness in a technicnl orscientific sense. You understand that,
sir, the purpose omy questions?
The PRESIDENT The phrase "mixed thoroughly" does not sound
scientific.
AIr.G~oss: Pardon me, sir?
The PRESIDEXIT t:does not sound scientifiMr. Gross.
Prof. LOGAN: 1 did notintend to use itscientificallsir.
Mr. GROSSI:n your testimony would you Say that you have used that
term as a personal value judgment?
Prof. LOGAX: A personal value tem.
XIr.CROSS :es, sirIf it inot scientific, whatisit? You are hereas
an espert witness.
Prof. LOGASW : eU,I do not think that every noun or verb that Iuse
in my testimony is scientific a1think we have ordinary language which
is used in addressing a body like this; we address partsitfin ordinary
Ianguage to make it comprehensible to the group and it is the normal
language that I use.I am sorry that it is not al1scientific.
Mr. G~oss: That is no reasonforregret, sir; ia question of clarifica-
tion.By "mixing thoroughly" then, you do not mean the terms to be
taken in a literal sense either, do you?
Prof. LOGAN I:do not use the terms in aIiterasense?
Mr. G~oss: Do you intend this term to be taken by the Court in a
literal sense?
The PRESIDENTI: suppose in a descriptivesense, I\.Ir.Gross.think WITNESSES AND EXPERTS 489
that every Member of the Court would understand what was meant by
that.
Mt. CROSS:Yes, sir.WeH,if that is the caseofcourse,1shallnow turn
to pages 373,st@ra, of the verbatim record and1 would quote your testi-
mony in the following respect. You said among other things:
"To permit total equal opportunity for al1 groups to do every-
thingthat they wished would result in exposing many of the groups
to vei-y unequal competition. This competition would corne, of
course from the more advanced groups. This might be competition
from the European."
Now, applying this statementtothe southern sector outside the Reserves,
does it çuggest to you that the European group should be denied what
you referred to as"total equal opportunity" in order to protecthe non-
White group from their unequal cornpetition?
Prof. LOGAN U:efinitely, yes.
Mr. GROSÇ :Are you aware of any measureswhich, by law oradministra-
tion or any policies, in this sector outside the Reserves, deny the Euro-
pean group "total equal opportunity", in order to protecthe non-Whites
from uneqiial competition?
Prof. LOGAN: Yes, sir. 1 think we have been through this before.
The European is not permitted to operate ashop or a store or any kind
of business within a Native area and, consequently, since he cannot do
this, he is denied a right. This is to protect the Native within that Native
area.
hfr. G~oss: Xow 1 am talking, sir,about the situation prevailing in
the southern sector outside the Reserves.
Prof.LOGAN: SOam 1.
hlr. G~oss: 1 had not quite frnished my question, sii. That is perhaps
why we art:at loggerheads.1 now am referring to the situation,I repeat,
in the southern sector outside the Reserves, and forthe purpose of my
question ain not referring to Native locations1 am referring to areas in
which non-Whites spcnd their working day.
Prof. LOGAN: NO, inthat case he is not restricted in any way.
hlr. GROÇS: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 equalopportunity"
-your phrase-in order to protect the non-White in that situation, from
aunequal cornpetition"-in your phrase ?
Prof. LOGAN: No, not inthe European zone.
Rlr. G~oss: Now, 1 cal1your attention to page 373,szcpra,and speci-
ficaliy to hlr. Muller's question-"Do you consider that measures of
differentiat:ion to protect the various groups are necessary?" And 1
direct attention also, to your responçe, which ranges from page 373 to
page 375. NOW,Professor Logan, 1 should like to ask severa1 specific
questions concerning certain of your statements, impressions, or opinion
as expert, as the casrnay be, as to which the Court perhaps may benefit
frorn clarification. Several questions which 1 shall ask you will be pri-
marily within the context of your earlier testimony, on 7 July, in the
verbatim, at pages 338-339, su$ra, in which you stated that in 1961,
you studied-and I quote from your testimony at page 339 of this
verbatim-"the contrasting utilizationof similar areas by different
economies and by different population group;", and that this study in-4g0 SOUTH WEST AFRICA
cluded "the southern half of the territory at that tirne, the area inhabited
specifically to this area, the southern sector outside of the Reserves, and
1 suggest, i1 may, with the permission of the Court, that you confine
your responses to this area. Do you understand, sir?
Prof. LOGANl:'es.
Jlr.Gxoss: New, did your studiesinclude utilization of the areas of
the southern sector outside the Reserves?
Prof. LOGAN :Yes.
Mr. GROSS :id your studies include rural areas?
Prof. LOGAN :Yes.
Mr. GKOSS :nd did they include urban areas?
Prof. LOGAN:Yes.
Rlr.GROSS :he Odcndaal Commissionreport, which you have testified
you çtudied, contains the following findings, among others. 1 will cite
thrce, one of which 1 have already referred to. At page jr, paragraph
113-
"Large numbers [this refers to Damaraç] 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 nurnbers [this refers to the Nama]
were employed by M'hiteemployers." (P. 33,para. 118.)
And finaily,
"Approximately half of the Herero are absorbed in the diversified
economy of the Southern Sector of the country .. .Like the other
groups in the Southern Sector, they too mere strongly influenced
by the changes brought [about] by civilization and Christianity."
(Para. 127.)
I should like to askyou, sir, are these statements which 1 have just
quoted from the Odendaal Commission report confirmed by Our own
studies?
Prof. LOGAN :Yes.
hlr.G~oss : ow, on the basis of your analysis of the area which we
are discussing, the so-called "White Sector" or "White arean-the
southern sector outside the Reserves-have you any opinions concerning
the nature and extent to which the absorption-1 use the Odendaal
Commission report words-of these people into the economy of the
southern sector affects their traditional instituti1nmay Say, paren-
thetically, that youused the phrase "traditional institutions"at page
374, sz~pra,of the verbatim, as you rnay recall. The question therefore
is, do you have any judgments or impressions,based upon your study of
the area, as tothe extentifany, to which the absorption of these people
into the economg has affected or does affect their "traditional institu-
tions", in your sense of that latter phrase?
such, on European farms, or as we in Americawould cal1thern, 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 pbeen
Iost and been supplanted by Christianity.They have taken on the WITKESSES ASD EXPERTS 491
weanng of European garb and things of this sort, which has changed
their traditionalay of lifc. And they are fixed in one place, not nomadi-
cally moving from season to season and from year toyear, and thiç 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 nornadic times, in pre-White time1.think
to thisdegree, in these manners perhaps 1 should Say, their traditional
pattern has been changed.
Mr. GROSS :OW,sir, would you address yourself to the non-Whites in
the urban areas of this Sector?
Prof. LOGAN: Yes, there, there has been much more change, because
inthe urban areas they are no longer grazing to the same extent. Nor-
mally, they stiil have some flocks of sheep and goats which they rely
upon for a portion of their food supply, which are grazed on the totvn-
lands. But they are no longer foUowing their traditional pattern of
grazing as they did earlier, and they are more shifted into the European
style of culture.
Mr. GROSS: 1s the Court to understand from your response that the
ansu7er to my question is yes, that the absorption into the so-called
"White economy" does have an effect upon the traditional institutions
of these people?
Prof. LOGAN:Yes, it does.
Mr. G~oss: It does. And your reference to grazing and sheep and
goats, that iç, iç it not, irrelevant to, for example, the several thousand
non-Whites who live and work in Windhoek in domestic service?
Prof.LWAN: Yes, except thatmost of these people-you see, thisis
where 1have difficulty when 1am forced to talk only about the one area
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 fiock of domesticated ani-
mals, looked afterby a member of the family, a direct member or an
indirect member, a cousin or perhaps a daughter or son.
hfr.GROSS: But is it your testimony that the several thousand-1
believe this appears from your testirnony in the record-non-Whites,
male and femaie, who reside in homes in the city of Windhoek as domestic
servants, maintain flocks of shecp or herds of goator other animals out-
side the city. is that what the Court is to understand?
Prof. LOGAN:NO, not outside the city. On the Reserve from which
they came originaIly and these are looked after by some other member
of the family, perhaps an imniediate member, perhaps a Iairly rcniote
member, but that they still have the animals on the Reserve from which
they came originally to the city of Windhoek, and so there is still this
connection.
llr. GROSSD : Othey get milk, cheese, from theiranimais?
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 isthat they are not in-
terested in the milk and the cheese, they are interested in the number of
heads of animals, because their traditionalwealth has always been reck-
oned in heads of animsls, and so a man is weaithy if he has a number of
heads of animals, not a bank account in the local bank.
hIr. G~oss: Have you, in your studies, encountered non-Whiteç who
were serving as domestic servantsin the homes of Whites?492 SOUTH WEST AFRICA
Prof. LOGAN: Yes, many.
Mr. GROSS:Could you advise the Court how many, on the average,
heads of cattle, if any, domestic servant in that situation has? 1s that
a question you understand, sir?
Prof. LOGAN Y:es,I understand.
hlr. G~oss: Would you answer it?
Prof. LOGAN:1 have not made any census survey of it and 1 am sure
this is not in any census figures, but a man with whom the domestic
servant-I suppose you mean a female domestic servant-the man
would .. .
hlr.G~oss: I was taking two categories-non-White females and non-
White males ...
The PRESTDENTW : e do not want al1 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 wliether they have
so many cattle and whether the male domestic servants have so many
cattle. Surely questions can be put in the broad sense and sorne informa-
tion be got with which the Court will be sufficieiitly satisfied, without
going into al1 this detail. This case will never finifhwe proceed upon
this basis.
Mr. GROSS:Yes, Mr. Presidcnt. With deference, then, 1 shall turn to
anoYou, in your testimony, at page 375, supra, in the verbatim, referred
to education within the framework of-1 will read the exact language-
jn response to Mr. Muller's question whether measures of differentiation
to protect the various groups are necessary, which 1 have read, did you
take into account the extent, if any, to which social change has been
brought about by econo~nic development in the area in question, and
I am referring specifically now to the economy in the urban areas?
Prof. LOGAN:Yes, 1 did.
Mr. GROSS : OW1cal1your 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
framework of the traditional institution, something in the wayof a
better way of life from the practical point of view, from the very
materialistic pointof 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 j70u recallthat testimony, sir?
Prof.LOGANY : es,that is right.
Mr. GROSS Vas your testimony that 1 have just quoted intended to
apply to the non-White "absorbed in" the economy of the urban area
of thc White sector?
Prof.I>OGAN Yes.
Mr. GROSS :nd inthat context would you be good enough to clarify
the meaning ofthe phrase you used, ". .. to educate them still within
the franieivoo rfktheirold traditional society''?
Prof. LOGAN : Yes, to break down 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 ailof the things that constitute their basic traditional patterns, WITSESSES AND EXPERTS 493
just in order to teach thembetter to reand !{?riteand keep books would,
to my mind, be a sad situation. These people al1have aproud heritage
of their 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 them and try to superimpose another one
upon it is what 1 think would be a bad thing and 1 think it is much
better to try to do this within the frarnework of their own, still recog-
nized, tribal. or cultural syst1am not trying to advocate the perpetu-
ation of trit~alism in the worst senses of that tbut to try to raise the
group, still within the framework that they recognize,
Mr.Giioss: Are you finished, sir?
Prof.LOGAN Y:es.
Mr.GROSSI:n your view should such education-to which you referred
in respect of persons who are absorbed in the so-called "Whicconomy"
-should such education equip them to compete more effectively ~vithin
that econorriy?
Prof.LOGAS: Yes, naturally,
Mr. G~oss: 1sit your impression, sir, on the basis of your anaIysis,
that the educational practices are designed to enable them tocompete
more effectively within the "White economy"?
Prof. LOGAN: Yes, it is.
Mr. GROSS : oiild you then reconcile that, if indeed you can see that
it is inconsistent, with the impositbyngovernment regulation and lam
of ceilingupon the improvement of their economic levels above certain
fornls of labour?
Prof. LOGANW : e go back to the sanie thing again, that there is a
cciling if they wish to remain in the Wliite territory.
Mr. GKOSS1: think you did not understand my question, sir?
Prof.1-OGAN 1:am çorry then.
Mr. GROSS1 : think, i1 may Say so without a disputation but just to
clarify, your mind seems to be; pcrhaps, focused on areas outside the
area of Our discussion. Now 1am confining, or atternpting to confine,
my remarks to a non-White person "absorbed in" the White economy,
in theterrns of the Odendaal Commission report, who içbeing educated
or who has teen educated inthat same area, wlio 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 where he is. NoIam
taking that l~ersonand1 am asking you, sir, whether you can Saywhether
or not he is being educated in order to compete more effectively in that
cconomy where he is?
Prof. LOGAN :o, 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 better job.
Alr.GROSS : nd if he is precluded by health or by economic circum-
stance or merely by reason ofhis human desirc not to move hirnself and
his family, are you sajring, sir, that if he remains where lie at,the is
pricc ofnot receiving an education requisite to his advancement in ac-
cordance with his capabilities?
Proi. LOGAN N:o,he will receive the education alright but he will be
lirnitcd on how high he cango, yes.
hlr.CROSS: Lliould 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 accornplishment which the Iaw prohibitshim from494 SOUTH WEST AFRICA
achieving ifhc 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 . . .
hlr. GROSS:YOUjudge thatas responsive to my question, sir? You have
finished your response?
Prof. LOGAN:Yes, 1 have.
Mr. G~oss: You cannot then ansmer it in the tems, or do not wish
to answer it inthe terms in which 1 asked it-whether or not, if he is
educated to a level which he is prohibited by law from achieving iii the
economic context in which hc 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-asyou said earlier-
is illogical and irnpractical. We are talking about a man moving Imile,
we are not talking about a man moving to tkte ends of the earth and
therefore 1.see nothing wrong with the situation as it stands. No.
Mr. G~oss: Professor Logan, 1 will not ask you a question of a legal
nature or implication, but as a geographer-as a scientist who lias studied
sociology-are you or do you consider pourself, farniliar, shall we Say,
with the phrase or the concept "strenuous conditions of the modern
world" ?
Prof. LOGAN :Yes.
llr. 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 tlie individuals inhabiting
the Territory; "to stand by themselves under the strenuous conditions
of the modern world"? Now, in your opinion, are al1the "measures of
differentiation",in hlr. Muller's phrase which 1 quoted earlier, now
applied in the southern sector (and he did not qualify) appropriate to
the end of helping the individuals of whom 1 have just been speaking
"to stand by themselves under the strenuous conditions of the modern
world" ?
Prof. LOGAN: 1 do not know about a11the conditions. I wouId Say
that by and large most of the differentiations are essential.
Mr. GROSS : ould you include job reservation in tl-iat category?
Prof. LOGAN: This is perhaps the only place mhere 1 wouid differ from
the basic pattern asestablished generally.
Mr. G~oss: 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 bc 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 thissort,then the entire attempt ata 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, itis my feeling that in
some cases it isnecessary to jeopardise the absolute happiness, perhaps,
of a certain very small proportion-if itbecomes a large proportion then
the whole thing is changed, but as yet, in South West Africa it isasmall
proportion of the groupin order that the set of circumstances, the set
of conditions and the set of plansbe dlowed 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
comrnunity?
Prof.LOGAN It is not because of his race; it is because his whole
culture groiip, but yes.
hfr.GROS: YOUwould express-yeç, what, sir?I want the record to
be clear, in justice to you.
Prof. LOC.AN \: il1you askthe firstpart of the question again?I am
not trying to be obstructionist.
hlr. GROS: I 'ust want to be sure the record is clearforthe sake of
your testimony. t intended to ask whether the judgment you expressed,
with respect: tothe Job Reservation Act (inregard to which1understand
you expressed your disageement 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 : cll 1 do not think there is a ceiling imposed upon
economic accomplishment, no.
Mr. GROSS : e have, 1 think, brought out in theearlierrecord, have
we not, references made by high officiaof the Government-specifically
Prime Minister Verwoerd which is quotedin thePleadings of Respondent
-tliat in the White area there is "no place for"-1 think he used the
word "Bantu"-above the levelofcertain forms of labou~. Do you recall
that?
Prof.LOGAN That is right.
PilrGuoss: Ignoring the implication of the word "Rantu",1am asking
you whethei- you would care to expressa judgment concerning the policy
which is implicit in that statement, thatthere is no place for the, shall
we Say non-IVhite, in the "White area", above the level of certain forms
of labour?
Prof, LOGAN A:nd of course the important thing here is "in the White
area".
hlr. GROSS : That is the important thing. From what standpoint is it
important?
Prof. LOGAN B:ecause he is permitted this development in the other
area.
Mr.GKOSS1 :see, sir. Now, you concluded your testimony on direct
with the statement, and 1quote from page 375, supra, of the verbatim
I have cited that:
". . if al1 controls were to be abolished [this is the language of
hlr. fiIuller's question] in the area and ail differentiation between
groups ignored, 1 am afraid a rather chaotic situation would de-
velop".
That was your answer, sir?
Prof. LOGAN : That is right.
Mr. GROÇS: Have you ever heard, sir, of any suggestions being made
soberly or responsively by anybody in South West Afnca or elsewhere
that ' al1coritrols" be abolished?
Prof. LOGAN :Not in South West Africa, no, I think thatisa general
feeling in other placethough, is it not?
Mr. GROSS 1:would not wish to express an opinion about it-1 think
the Court would be niore interested in yours-and 1just want to pursue
that, toask what other arcas-urhere, in what context-have you heard496 SOUTH WEST AFRICA
a suggestion, if you have, that allcontrols (the phrase you used) "be
abolished".
Prof. LOG.^: Al1the controls me have just been describing?
Mr. GROS$: 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;
rhis is a hypothetical question which 1 think is quite frequentlÿ put.
And 1was answering a hypothetical question, and so, ifal1controls were
removed, tlien 1 would assume that there would be a chaotic situation.
blr. G~oss: Would that be true in any social situation, sir?
Prof. LOGAX:Yes, it\vould be true in any social situatibut itlvould
be much more true where ÿou had great differences in cultural levels.
Mr. G~oss: It would be less true in the United States, letus say?
Prof. LOGANI:f a11controls were removed.
Mr. GROSS : Were abolished?
Prof. LOGAN :Al1 right, abolished.
Mr. G~oss: Now, just to pursue this one or two questions lurther:
with regard to your phrase "al1 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.
Mr. CROSS:This is my final question, hlr. President, with respect and
with your permission. Are the true and only alternatives representedby
the estremes-1 shall quote from the Odendaal Commission report and
give the citations inamoment-of, on the one hand, in the language of
the Odendaal Commission report, "iviping out the differences between
the groups", and, on the other hand, "complete socio-economic integra-
tionV-the language is used in the Odendaal Commission report at
page 427, at paragraph 1434. Do you regard those as true andior only
aiternatives? Wiping out the differences between the groups, on the one
hand, and complete social and economic integration, on the other?
Prof. LOGAN:Well it seems to me those are nearly the same thing,
are they not?
hfr.GROSS P:do not know what they are,sir. You çtated at an earlier
phase ofyour testimony that you did not agee with everything in the
Odcndaal Commission report, did you not, sir?
Prof. LOGAN:Yes, that is correct, sir.
Mr. GROSS : ow, the Odendaal Commissi011report language 1 have
just cited-this is not my language, sir-states these as extremes, oras
the aIternritives, not as the same thing.
Mr. MULLER: Rlr. President, may 1 ask my learned friend, Mr. Gross,
to indicate where the Odendaal Commission deals with thesetivo rnatters
as bcing alternatives.
hlr. GROSS:1 am about to read from the Odendaal Commission report.
The PRESIDEKT : Mrould YOU identify the page, hlr. Gross.
hlr.G~oss: Yes, sir.This is page 427, paragraph 1434. 1 shall read
several sentences; 1 ~~ouldinvite your comment Professor Logan, to a
series of questions.
"IVhere there are no significant differences between CO-existing
goups or nations, it rnight 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. WITXESSES AND EXPERTS 497
However, where, owing to fundamental difierences in socio-cultural
orientation, stages of general development and ethnic classification,
the differences between the groups concerned are of so profound a
nature that they cannot be miped out, a policy of integration isun-
realistic, unsound, and undesirable, and cannot but result in con-
tinual social discrimination,discontent and frustration, friction and
violence-a climate in which no socio-economic progress can be
expected to take place."
Now, sir, 1 should like to clarify exactly what 1 mennt by stating these
as extremes. They are two extre~ne forms of statingthe sarne point, as 1
understand this quotation. Can the problem, in your judgment, be validly
and justifiably ststcd in terms of such extreme formulations as a policy
calculated to wipe out thc differences between the groups, or, çtating it
in another estrenie forrn, cornplete socio-economic integration?
Mr. G~oss: Mr. Presidcnt. Professor Logan, 1 would like to start
afresh with you, not requestirig the Court to ignore the question previ-
ously asked, but to clarify iand start afresh with you in that respect.
Iintend tu ask you, sir, with respectto the phrases used in paragraph
1434 of the Odendaal Commission report, whether what 1 took as the
estreme or polarjzed forms of expression of the phrase "to wipe out the
differences l~etweengroups" on the one hand, and the phrase "complete
socio-economic integration" on the other-whether those extreme forms
of espressicin, in your view, were the only alternative to the absence
thereof, or1:osome other policy which was not based upon that, such as
the policy of scparation or apartheid?
Prof. LOGAS:Tlie two situations, as given in the paragraph referred
to, which 1 have had the opportiinity of reading, applp to tïvo totally
different types of situation. The first, a relatiilely homogeneous society
in which there are no sharp group differences, as stated quite clearly,
I think, in the openingphrase, ivhich slipped me rvhenit was read to me
earlier, and the second in which there are estreme differences between
groups. In the first caset is quite rcasonable to wipe out such differences
as do esist, they being minor differences because m+eare dealing with a
relatively homogeneous society as proposed. And, secondly, in the latter
case, the one of great group differences, there the groups, it says, and1
agree with it, should be developed sepnrately one from the other, in
order to develop each of them as well as possible, as rapidlyas possible
and as far ;is possif~le,but because of the different requirements ofthe
different groupsn different approach is necessary. That is howI interpret
the paragraph and as 1 personally belicve to be the situation.
Mr. GROSS: Thnnk you. Now, would the testimony you just gave in
response to my question apply witliout quaIification to the situation in
which the non-M'liitc is "nbsorbccl in" the economy of the White in the
southern sector, in the urban arcs, let ussay?
Prof. LOGANY :CS.
Mr. GROS: Itwould?
-Prof. LOGAN :he first \vould apply,or . ..
Mr. GROSS D:oes your response to my question apply, without qualifi-
cation, to the situation ofthe non-ltliite who is absorbed in the White
economic community in the southern sector outside the Reserves?
Prof. LOGAN:Yes, my reply does, becauçe the individual isstilla
member of agroiip.
Mr. GROSSN : ow,what do jrou mean by separate developrnent in that4g8 SOUTH WEST AFRICA
context-separate from whom, and development to what end? What do
the two words rnean?
Prof. LOGAN :eparate from the other peoples not of higroup around
him as, for exarnple, separate from the European group for whom he is
working and towards the end of raising the entire level ofhis group, of
the particular individual Native's group.
Mr. GROSS:Rather than the level of the economy in \.hich he is
absorbcd?
Prof. LOGAN T:he airn iç todevelop the varions groups. This would
perhaps partIy raise the level of the economy ofthe White sector, but
the main emphaçis in this report, and the main emphasis aç 1 çee the
group development pattern inSouth 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. GKOSS:The individual Native who iç absorbed in the White
economy-are we talking about hirn?
Prof. LOGAN:Yes.
Mr. G~oss: 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 i explained a bit ago, there are programmes for at-
tempting togive him a better education, to do bettet things forhimself
within the area, çubject, of course, tothe fact that there is a ceiling placed
upon his economic attainment.
$Ir. GROSS : think perhaps in this context it would help to clarify
matters, ifyou 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 esplain your previous response to my
question? You differed with the Government policy in that respect?
Prof. LOGAN: 1sajd that 1differed ïvjth tGovernment poljcy berause
it does prevent certain individuals from reaching higher than they might
do otherwise, but that 1still felt that it was necessary and while 1don't
neccssarily approve whole-heartedly of such measures, it is necessary in
order to carry outthe full development of the programme as envisioned.
I believe 1 said that in the earlier testimony.
Rlr. G~oss: It is necessary, sir, to impose limitationsupon his eco-
nomic advancement ?
Prof. LOGAN:That iscorrect.
Rfr.GROSS:In order to serve whât 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, inthe case of this particular individwe haveinmind, then there
would immediately be another one of less validity, and then another one,
and eventually the system would break down because of a tremendous
number of exceptions being made endlessly. Of course ifexceptions are
made in one direction then they should be made in the other direction.
Mr. G~oss: And the "other direction" being,in thjs context, escep-
tions in respect of the White in the \mite area?
Prof. LOGA NNo, the exception of the White being allowed to develop
things in the Native area then.
Mr. G~oss: So would you Say, sir, that you see this or you discuss it,
and your testimony to the Court is entirelyor basically, withinthe con- W1Th'ESSE.S AND EXPERTS
499
cept of development of the White economy and societp in one area and
the development of the non-White society or economy jnthe other area?
Prof.LOGAN : That is correct.
Mr. GROSS : his is the basic premise of your testimony?
Prof.LOGANT : hat is correct, yes.
Rlr.GROSS : hank you, sir.No further questions.
The PRESIDEKT C:ertain Merribers of the Court desire to put questions
to Professor Logan. I cal1upon Sir Gerald Eitzmaurice.
Judge Sir Gerald FJTZ~IAURIC Pr:fessor Logan, in rpite of al1 the
ground me have travelled over,I do not think it is yet entirely clear
what is the basis of the various distinctions made in South West Africa
between diHerent groups, and between the MThitesas a group and the
non-LVhites, and I want to put a series of points to you with a view to
clarifying that; and to Save timc, wvhenyou agree with what 1Say,will
you just sa? "yes" or"correct", or something like thatOf course,ifyou
do not 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.1 take just one
passage [rom the verbatim of g July on page 403, s~pra, in ïvhich, in
answer to ;iquestion addressed to you by Mr. Gross, you said: "Do 1
think it is a valid basis to use colour as the basis for ailotting rights and
burdens?-no, I do not." That is correct1 think, is it not?
Prof. LOGAN C:orrect, yes.
Judge Sir Gerald FITZMAURIC WEel then, you Say that colour is not
the basis oj these distinctions, and the general pictuyou 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 sreas and local-
ities, and iri each of these areas or localitiesgroup has full political
and civil rights; but in the same area or locality members of other groups
would or migIit have icsser rights or restricted rigofssomc kind; and
-SOUgavsaid that in the White sector outside the reservet.1arthelnon-
Whites did not have any voting rights, but in their own homelands they
would have voting rights, ancl that sirnilarly in the White sector (1 will
cal1 it) the non-Whites were subject to certain restrictions, for instance
as to what jobs they could take on, but in tlieir own reserved areas or
homelands they would not be so subject-that is a correct general pic-
ture, 1 think?
Prof. LOGAN : es.
Judge Sir Gerald FITZMAURI WCEel, now,doyou see, ProfessoLogan,
any resemblance between that situation and the situation which rnight
obtain in a federal State? For instance-1 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 inany one state
the residents orthe perçons wvhaare admitted to the register of votes
would have full votingrights 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 restrictiassregards place of residence
or conditions of work and so on, whereas inanother state of the federa-
tion conceivably they might be, and if there was such a situation none
of that wouId have any specific reference to colour, for instaDo you ,
agree that there is some resemblance between the two sitiiations?
Prof. LOGAE There is some resemblance, yes.$O0 SOUTH \EST AFRlCh
Judge Sir Gerald FITZMAURIC 1Edo not want to push the anaiogy
too fa,of course-there are differences, too. \Vell iiow, if that is so, then
would it be correct to Say that in your view the various distinctions
which csist in South N'est Africa are based on a misturc of group and
Iocality-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 helong
to a particular area or locality?
Prof. LOGAN T:hat iscorrect-that is esactly right.
Judge Sir Gerald FITZMAURIC AEn: according to the theory, i1may
so cafl it, even a n~n-~Vhihorn in the White sector,and working there,
and having lived there all his life-he is regarded not as being, so to
speak, a member of the White sector but as being a member of his racial
group,and only in the homelands of that group would he have full rights.
Prof. LOGAN T:hat iscorrect.
Judge Sir Gerdd FITZMAURIC WEould YOU admit, Professor Logan,
that that iscarrying the theory about as faras itwilI go, thilaçtcase?
Prof. LOGANY : es, 1think so.
Jridge Sir GeraldFITZ~IAURIC XEOW1 want to test the matter just
a littIe further and consider ivhat 1 rniglit cal1 the reciprocity aspect.
The logic of the theory, of course, requires that in the non-\hiteareas
imite persons should be subject to restrictions broadly corresponding
to restrictions rvhicnon-'Il'hitesarsubject toin the IVhitearea. Iwon-
der how far that is actually the case; for instance,to take an obvious
esarnple, in Ovamboland would White persons be subject to the same
restrictions as regards the work they could do, the jobs they couId take,
that an Ovarnbo worker would be in the IVhite sector?
Prof.LOGAN Y:es, if they were coming in as independent individuais.
To begin with, they couid not corne in as independent individuals into
the area. and therefore they couId not holcljobs within the Ovambo area.
Now the exception, of course, isthe obvious one: the atlministrators,
the nledical peopIe, the missionaries and the educators who are in the
area are employed beyond any conceivable job classification, but this
is in order to attempt to raise the level of the Ovambo people generally;
they are there temporarily from outside of the area. Buta private entre-
preneur cannot go into the area and operatc without running immcdi-
ately fou1 of the regulations and la~s. Tliere have in the past been the
liccnscd 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 FITZMAURI CYEes, I see. IVeH then, would itbe
broadly right to say that the sort of job whichan Ovambo cannot do in
the \hite sector, a \mite person would not be able to doin Ovamboland?
Prof.LOGAN :his is the theory, and this will be the situation as the
development proceeds, yes.
Judge Sir Gerald FITZMAURIC TEha:nk you. IVell now, leus corne to
the actualdisabilities which are irnposed upon the nori-Ilrhitein the
\irhite sector. The theory, 1 think, leads us to this conclusion: that on
the basis ofitthe imposition of some disabilities areor rnay be justified,
but clearlyitcannot lead to the conclusion thaany disability you could
think of would be justified merely because a similar disability rnight be
irnposed upon a \aite in a non-White area; for instance, to take a ludi-
crouç but not absolutely impossible example,iftlzerewas a law by ivhich,
although Whites in the Imite sector were entitled to Wear thcir normal. WITNESSES AND EXPERTS 501
footgear the non-mites had to go barefoot, 1think one would Say that
that was clearly unjustified and discrjrninatory-you would agree with
that, would you?
Prof. LOGAN :I u~ouldagree.
Judge Sir Gerald FITZMAURIC AE: any rate it would 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 jtother than simply colour as such. That 1 think you will
agree with too. Now 1just watit to consider in relation to this question
of job reservation in particular, what are the reasons why, in the White
sector, non-Whites are prohibited by law from undertaking certain work,
and 1want to recall to you the evidence you gave on that point the other
day, it has not been referred to this morning but itis to be found on
page 405.supra, and 1shouldlike to read to you just two short passages,
which you iinswer 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, istechnologically, education-nrise, 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 Jlr.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, 1 am sure, in South West Africa an, or some, or sornetimes
a reasonable number of people who have the ability to have privi-
Ieges at a higher level than is accorded to the group. This is true in
any society, and one has to aim at the beçt for the greatest number
of people."
And then you went on to point out in other parts of the same record
tIiat of course the skilled individual was not permitted to exercise his
special skillç in the White sector,but could always do so ifhe went to
the homelands or to the Native towns, and so on the basis ofthat evi-
dence, Profcissor Logan, there emerges a picture which is somethinglike
this and 1 sliall just put it to you wliether you agree with it, namely that
these restrictionsinrespect of the work that can be done arenot imposed
on the non-\%?lites because of colour but because it so happens that at
the present stage of theirdevelopment, the non-'CVhitesconsidered as a
group, weII 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 ofwhat you say?
Prof. LOGAN :es, it wonld.
Judge Sir Gerald FITZMAUKL CEe:l, now 1 had been going to ask
Professor Logan hou. the general interest waç served by the interest of
the individual having to give way in this respect, but1 think that ques-
tion has in effect been put to you ihis morning by Mr. Gross and you
have answered it.But 1would like to pursue it just a littlefurther because
this question of a skilled individual non-White is clearla key question$O2 SOUTH WEST AFRICA
in this case and1 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 ~vhy if the reason
which you give for having these restrictions on jobs is the correct one,
why is it necessary toave lawswhich prohibit people from taking certain
jobs? If the great mass of the non-M%ites concerned are not capable of
working above a certain level, then clearly even in the absence of laws
they rvould not get the jobs or if they didget 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 done. Now what I
really want to put to you is this. 1 want to get your views generally,
and more specifically1want to ask you whethor in that situation it does
not begin to look a littleifthese laws are aimed precisely at preventing
the man who would be able to do the job from doing it?
Prof. LOGAN :es, 1 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. I1were going to work it out 1would have done it for that reason;
if I hadpassed such aIatv it ~arouldhave been for that reasonActually,
1 think that there is very little hardship as a result of this at the present
time and 1 think, knowing how things have changed in the nine years
that 1 have known South Jliest Africa myself, 1 think that in the event
that the situation changes, the law wiIl be changed; maybe not the entire
law, but the categories withiit 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 witliin the White community, then 1think the law would be
amended because the whole situation has been a situation of flux, that
is these things are rigidly stated but thedo 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 knotvn it.I am not acquainted with
the laws and so 1 do not know what has been done in the legal frame-
work but 1 think that there is sufficient flexibility and adaptabilion
the part of the Administration, the Governrnent, to bring about such
a change. This is my sincere belief.
Judge Sir GeraId FITZMAURIC SO ,Professor Logan, you would agree
then that these laws are not made exclusively because the great rnass
of the non-\mites are not up to doing certain jobs, they are made at
least partly in the interestsf the policy of separate development.
Prof. LOGAN : Ithink it is made largely in the interest of the policy
of separate development.
Judge Sir Gerald FITZMAURICE Y: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-Whites
who would have the capacity to do jobs above acertain 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 FITZMAURIC Thank you. That is all, Mr. President.
The PRESIDENT A:re there any other Members of the Court who desire \VITNESSES MU EXPERTS
503
to ask any questions? 1only 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 ~esearch purposes, were you free to move where
you wanted to and obtain such information as you thought necessary
or was what you did in the form of what rnight be calleda "conducted
tour"?
Prof. LOGAN :irst,1 have been there three rather than two times,
and there has never been any attempt in any way made to restrict my
movements orto conduct my movements. 1 have been free to travel any-
where 1wished at any time. This started with the day 1 anived, when
1 ivas virtually unknownin the Territoryanci 1mas able to go anywhere
1 wanted. 1have 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. 1 have always had open to me the
assistance of the Bantu affairs people on tlie Reserves but sometimes
1 have, without any protest whatever, been on a Reserve for upwards
of aweek withoiit ~iotifyingthe superintendent of the fact and then even-
tually made a courtesy cal1upon hirn as1 left explaining tha1had been
here or there. liavenot been folIowed by the police in Windhoek ... as
a rnatter of fact the number of police are far too few to look after a person
likemyself or any other person travening about theTerritory. There has
been the offer very frequently of asay "conducted tour" but much of
my work has been done entirely by myself, that is travelling with my
wife,mÿ two daughters, one or several of others, in our own vehicle. We
have had various vehicles, oneimported from theStates, otherçpurchased
locally, which we have used asacamping base; we have been away from
the city for long periods at a tirnI.am sorry to have prolonged that
so long.
The PRESIDEST : nother question 1 wanted to ask you about is the
useof the term "subsistence level". Sometirnes the words "subsistence
levei" is adorned by another word so that it becornes "bare subsistence
level". Youspolte about the area to the north being that of a subsistence
economy, would you just elaborate what you mean by "subsistence
level"? Does it in particular indicatthat itis apoverty level?
Prof. LOGANN :D,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 saIe nor do they purchase from
outside. But from the standards of health and nutrition this may be very
adequate,in fact itrnay be very good in some cases. and wemust realize
some of the idyiiic examples of the primitive world as the South Sea
Islands and such.
The PRESIDENT W :Cwill keep to South West Airica.
Prof.LOGAN1:am sorry, sir. Iliowthe word "bare" should be inserted
before it, or we said it was a marginal subsiçtence economy, then we
would bring in the matter of impoverishment or malnutrition, etc.
The PKESIIIENT Ilid you see any signs of impoverishment or malnu-
trition inal1your visits to South West Africa?
Prof. LOGAN :he only examples are on some of the extreme southern
Reserves in which the conditioiis are verypoor because of the dimatic
situation existingThis isthe homeland of tlie people, butsome of these
people have a bare subsistence economy. These people are now at the
present time being rnoved from such areas to the areas farther north5O4 SOUTH WEST AFRICA
which have been purchased under the Odendaal plan, as part of the Kama
Homelands, and these Reserve areas will be within,1 think, the nest
year or two, totdy abandoned.
The PRESIDEK Tn:the areasto which they are being moved, have
they previously been occupied by the White sector of themrnunity?
Prof. LOGAX :es, they were previously occupied by White karakul
sheep farmers.
The PRESIDEKT And 1 think you spoke about that before in your
testimony.
Prof. LOGAN : That is correct.
The PRESIDEN T:e other question1 ivant to ask you is in relation
to the White sector, southern area, excluding the Reserve areas. Can you
descnbe the general conditions in which the non-White people livein
that area? First away from the farms, in the urban area of \f7indhoek
forexample.
Prof. LOGAN: DOyou want the. ..
The PRESIDEX T:e general conditions,1 do not want the details.
The general conditions-are they poor, good or indifferent-this what
1 want to know.
Prof. LOGAN : In 1956 they werc deplorable; i1965 they are moder-
ately good.
The PRESIDENT : ell, 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 sanitationfrom the lack of con-
venientiy placed water supplies, etc., to weli-built substantial housing ,
good sanitation conditions, water brought directo the home and great
improvement in matters of transportation to and from work, etc., within
the Native townships and this is true, not jinWindlioek but in cach
of the other urban communities throughoutal1of the Territory.
The PRESIUENA Tn:dgenerally, the conditioofthe non-White people
in the urban area, inother words, do they appcar to be dcpressed or
othenvise?
Prof.LOGAN : NO,they are not depressedThey are dressingweil,they
are eating well, they have improved very grcatly in the nine yethat
1 have known the area. There is considerahlc cash resultinin consid-
erablepurchase ofa large number of necessary and luxury items by them.
For example, carneras, cigarettes and soft drinks and ice-cream which
do not corne within the necessity category, there arc large purchases of
these today by these people,aIIof the time, inthe city of Windhoek
and in the other communities like that in the Territory.
The PRESIDEK Tfriilyou give us the pictaseto conditions of living
on the farms?
Prof. LOGAN : he conditions on the farms are quite variable, depend-
ing on the individual farmer, the European farmer. In some cases, be
has developed nice, quite presentable houses for them to live in, usually
four rooms, cement blocks structures with windows and doors; these are
sometimes occupied by the Kative, or sometimes he prefers to build his
own building alongside the old pondok-style buildinas it is referred
to, made of sheet-metaf, etc.and to iive in this, it perhaps is better aer-
ated and this is perhaps part of the reason. Others merely provide build-
ing material and the Katives constmct their own dwellings. The d\veliings
are adequate under a mild climate suchas exists. WITNESÇEÇ AND EXPERTS 5%
The food, the nutrition, is perfectly adequate. It ismonotonous (1
would not want to eat it), but it produceç a perfectly healthy condition
and it is what they desire to eat in most cases. They wili refuse articles
of food that 1 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 to advance in materiai belongings.
The PRESIIIENT: That is al1 I wanted to ask you, Professor Logan.
Mr. Muller, do you desire to re-examine?
Mr. MULLER:&Ir.President, no. No questions in re-examination.
'I'hcPREÇIDENT:1 think Professor Logan can now be released from
further attendance.
Nr. ~IULLER: AS the Court pleases.
Prof. LOGAN:1 would like to thank you for your indulgence.
The PI~ESIDENTM : r. hluller, wiyou .. .
Jlr.lu1u1.1,~~A:fr. de Villiers will present the next witness who wiii
be &Ir.Cillie.
The YRESIDEN TIr. de Villiers.
Air.DE VILLIERS : Mr. President, in our letter of 6 July, me notified
the Applicaiits thatMr. Cillie'sevidence, "will also relate to issues arising
under i\ppIicants' Submissions 3 and 4. &Ir. Cillie isa leading South
African joui-nalist of 30 years' standing and editor ofDie Btrrgerfor the
last IIyears. Die Beirgersupports the policies of the present Government
regarding separate development of the various population groups in
Soiith Africa and South West Africa, and has played a leading part In
shapiiig and propagating it." The letter originally state"drafting" but
that \vas a typing error which has becn correctecl, Mr. l'resident-leading
part in sha~iing and propagating it. "As political observer and analyst,
&Ir.Cillie will testify on the poIitical 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 suggcsted norm andlor stan-
dards of a content as contended for by the Applicants."
Mr. President, 1have indicated to the Iiegistrar and also to my learned
friends, that Nr. Cillie may, in tlie courseofhis testimony, refer to the
politicalmap of Africa at the hack of Rook 1 of Our Counter-&fernorial.
II, ço that itmay be available to the Court ifthe Court might wiçh to
refer to it,'[would suggest that Alr. Cillie make both the declarations
provided for in the Rules.
The PRESIDENT 1:sthe affirmation before tlie witness? IVould you make
both affirmations, &Ir.Cillie.
Jfr. CILLIE: In my capacity as a witness 1solemnly declare upon my
honour and conscience that 1 will çpcak the truth,the whole tnith and
nothing but the truth. In my capacity as an expert 1 solemnly declare
upon niy honour and conscience that my statements will bein accordance
with my sincere beliefs.
The PRESIDENT: lilrde Villiers.
;\Ir.DE VILLIERS: Mr. CiIlie, you were born at Stellenbosch?
>Ir. CILI.I:: Yes.
3fr.nF: \~IL~,IEI<Stellenbosch isa University town near to Cape Town?
hfr. CILLIE:YCS,and the second oldest town in South Africa.
>Ir. DE VILLIERS:What u7asyour descent?
>Ir. CILLIE:Illr. President,1 am a South African of mixed Huguenot506 SOUTH WEST AFRICA
and Dutch descent. You can see that from niy narne. 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. DE VILLIERS:Your father was a professor at 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
elder statesman in the educational field in South Africa, especially on
the Afrikaans side.
hlr.DE VILLIERS:You went to school at Stellenbosch?
Mr. CILLIE: 1\vent to school at Stellenbosch and went on to the Uni-
versity and took a degree, rather surprisingly, in mathematics and phys-
ics,in1935.
Mr. DE VILLIERS: And what did you do after that?
hlr.CILLIE1 : joined the editorial staff oDie Burger immediately
afterwards and I have been with the paper ever since. That means it is
going on for 30 years now.
The PRESIDEN1 T:id not catch that, how many years?
Mr. CILLIE:Going on for 30 years, Mr. President.
Mr. DE VILLIERS:Did YOU become chief sub-editor, also known in
some organizations asnight editor,in 1939?
Mr. CILLIE:Yes, during the war years 1was chief sub until the year
1944.
Mr. DE VILLIERS:What did your duties, in that capacity, involve?
Mr. CILLIE: YOUhad to put the whole paper together at night and
you had, in those times, to handle al1 the war newswe are a morning
paper, so that we had to do al1 this work at night, putting the paper
together.
blr.DE VILLIERS:YOU Say you were there almost right throughout
the war? Did you become Foreign Editor of Die Burger in 19441
Mr. CILLIE:Yes, 1 was appointed Foreign Editor in 1944 and 1 held
that position for about four years unt1948.
Mr. DE VILLIERS:IVhat did your tasks as ForeignEditor involve?
Mr. CILLIE: Handling the foreign news and commenting on inter-
national affairs in general. That was during the imrnediate post-war
period.
Mr. DE VILLIERS:And in 1948,wliat didyou then become?
Mr. CILLIE: I was appointed AssistantEditor in 1948 and 1held that
position until1954 , hen 1became Editor-in-Chief.
Mr. DE VILLIERS:MF.Cillie, in order to give the Court an indication
of the extent to which your tasks atDie Burger have qualified you for
the evidence you are about to give, will you expIain to the Court, briefly,
what Die Burger is and generally what role it pIaysin South African
politicalife.
hlr. CILLIE:Mr. President,Die Buvger is quite an institution in South
Africa.Itwas started in1915 ;hat 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, togetherwith the position of
Cape leader of the Nationalist PartyHe was the man who Iater 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 EVITNESSES AND EXPERTS 507
Nationalist Party andit has always had the closest relationship with the
Ieading Nationalist Party circlesDr. Malan, in a sense, useDie Burger
to clarify his own thinking on politics, he worked out his ideas in advance.
Die Bwger was, from the beginning, quite frankly an opinion forming
paper, not inthe 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.
We have, right through our existence, llad that approach to politics
in South Afsica. We put emphasis on thinking ahead, trying to take the
lead in certain matters, also actas aforum for al1tlie various Afrikaner
groups, especialiy the Afrikaner groups, because race relations in South
Africa iç not merely a political matter, it involves the churches, it
involves the universities, the intellectual groupings and organizations,
organizations like SABRA, theSouth African Bureau of Racial Affairs.
We have acted as a forum and as a clearing-house for ideas in general.
Mr. DE VILLIERS: 1 think you may be going a little bit fastfor the
interpreters,willyou try to keep that in mind?
Mr. CILLIIC : will.
Mr. DE VILLIERS:HOWwould YOU generally describe the phase of
South .ilfrican politics at the stage when you joinDieBurger?
Mr. CILLIE:I joined Die Burgerin 1935. That was during what we
cal1 in South Africa the Fusion period, the time when Generals Herzog
and Smuts, bvho had been the two main adversaries in South African
politics upto that time, whe~ithey came together tofom the so-called
Fusion Government. We were an opposition paper then, supporting at
that time a very small NationalistParty, which had been broken down
by this Fusion proceçs to,1think, a representation of abou19 members
in the House of Assembly, which is our Second Chamber. I lived through
the eventual split between these two Generals on the war issue in1939.
Those were the days when the Nationalist Party was really developing
its thinking and its later programmes as an oppositioparty.1 think the
basic preparatory thinking for the whole apartheid policy orthe whole
policy of separate development, was done during those years, fr1933-
tliat waç two years before 1 joineDie Burger-up to 1948.In those 15
years the Nationalist Party grew fromthis small opposition party to the
governing party. It took power in1948.1 lived through that whole period
and 1 çaw the formulation of poIicy, the discussions that led to the even-
tua1 final enunciationof 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, thep had
to adapt certain of their policies, they had to think a bit further than
they did in opposition, and we tried, onDie Burger, to play also there,
a constructive role.
That more or Iess covers the period up to the time when 1took over
in 1954.
Mr. DE VILLIERS:And since that time?
Mr. CILLIIS:Well, we have tried to be true to that tradition of playing
this constructive role in South African thinkingnot only as far as the
Nationaliçt Party is concerned, but the whole South African public.
We gave great emphasiç to thinking aheadand the formulation of policy.
We also encouraged public discussion on points of difference.e 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 al1
times agree with those of the Nationalist Party Government?
hlr. CILLIE:1 hope not, Mr. President. By the very naturof 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
time. Our relationship with the Party has sometimes been described as
a sort of marriage, in which the partners never reallythink in terms of
divorce but do think, sometimes, in terms ofmurder.
In that sense, of course, we have differed on ripplications, or1adminis-
tration, and so on.1don't tkink we have ever differed to an extent that
would have given our persecutors any coinfort, because the differences
were always directed to the better implementation, the better and wiser
implementation of the basic policy, to which we are utterlycommitted.
We did help inbuilding up this policy of separate development, and we
have certainiy no idea of ever turning against it. We are totally com-
mitted to the basic principles of this policy.
Mr. DE VILLIERSD : Oyou consider thatDie Buvger has taken a leading
part in the shaping of thepolicy?
hlr. CILLIE:Oh yes, 1 do think so.1 do hope so. In fact, 1 am quite
sure thatwe 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 aheadand skirmish ahead and always to play this key roIe, which
1 think we have played up to now.
Mr. DE VILLIERS:NOW, could YOU tell the Court whether you, as
Editor of Die Burgeu, come into contact with ioreign opinion, foreign
criticism of South African policies and so on?
Mr. CILLIE:Indeed 1 do,Mr. President. It is quite a preoccupation of
mine. In my position you have to have these contacts with people.
People come to you from the outside world; you yourself go on travels
and you meet these criticisms in these places al1the tirne. 1thiiik 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. You have to meet arguments from the opposition
al1the time; you have to meet foreign criticism and foreign questions,
and 1 have had my share of that. 1have also written for overseaspapers
at their request; 1 have written for sections of the British Press and
sections ofthe Press in this country.1 have also taken part in debates
with critics of the South African policy. So 1 have been in very close
touch rvith al1these developments al1these years.
Mr. DE VILLIERS:Have you paid any visits overseas yourself, in the
course of your duties?
Mr. CILLIE:Yes, several. 1 paid a visit to the United Nations and 1
took part in Chatham House Conference in 1954 in Lahore, bvhere the
whole theme was the multi-racial Commonwealth. 1 was a rnember 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. Citlie,1 should like you to takfor granted that
other witnesçes like Dr. Eiselen, Professor Bruwer and Professor Logan
have given the basic facts tothe Court about different population groups
in South Africa and in South West AfricaAifferences between the WITNESSES AND EXPERTS 5O9
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.
1 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 tpresent context
and as a matter of future prospect. And Ishould like to beginby asking
you, what tlo 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 realitieç of the South
African situation itself,1 woiild Say that the main force that shaped
these po1icit:shas been the experience and the history of the Afrikaner
people in Sciutli Africa. By the term "Afrikaner" I mean the Afrikaans-
speaking population of Western European descent. Their language has
become quite a distinctivganguage. It evolved from the Dutch, We can
still understand each other-at least go 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, rnainly. My own
name, as I inentioned, is French. This original settler population devel-
oped, as time wcnt 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 Holland, the great distance and thcir
own distinctive circumçtances and interests soon led to the emergerïce
of what 1would cal1 a sub-national personality.
As early asthe beginning of the eighteenth century, according to the
records, some of them were calling themselves Afrikaners, ineaning
"people of Africa", and they were, even at that time, asserting rights
and freedonis against what they regarded as tyrannous and arbitrary
acts of the Dutch authorities-more specifically, the Dutch East India
Company, because the whole srttlement was n commercial undertaking
of that Company. In the perspective of today it was the beginnings of
what people would nowadays cal1anti-colonialism or nationalism, ifyou
like. In fact, a distinct people of western European descent, with its o~~i
way of life and speaking a more and more divergent form of Dutch, was
then being barn in Africa.
Its standards and its customs, deriving from Europe, were too different
from those cifthe other peoples of the sub-continent for more than what
one would cal1 marginal mixing. These other peoples, tlie Bushmen and
the Hottentots in the west and the various migrant Bantu tribes that
werc then moving down the eastern sidc of the suh-continent, had tribal
and national identities of tlieir own.
Mr. DE VILLIERS: Was there ever any conscious attempt at welding
al1these different unitsinto one people, in the modern sense of the term?
Rlr.CILLIE:NO,that was quite unthinkable. Mr. President, these pcople
were too difierent altogether for any idea of welding them together into
one nation in those days.
Mr. DE VILLIERS:So far you have spoken in general as from tlie time
of the first Dutch settIement. Do you attach any importance to the
British take-over ofthe Cape and its effect?
Mr. CILLIE:Indeed 1 do, Mr. President. 1 think that it was a very
decisive cvent indeed in the evolution 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 cut off the Cape settlers510 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.1 think it can be
described very simply as a choice between integration or assimilation
with the British world asit then was, on the one hand, and, on the other
hand, their own sepârate way as a distinctpeople of Africa. In 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 1would 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 al1 corne to the same thing, namely the building up of a
separate national identity, involving the refusa1 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". Thst was their choice, as far as the majority were concerned.
Mr. DE VILLIERS H:ow, more particularly, was that choice manifested?
Mr. CILLIE :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, 1 tliink about the distance
between this city and Moscow, and parts ofthe 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 calied "the scramble
for Africa", and British power at that time was gradually extending
itself ~iorthwards £rom the Cape over the whole of Southern Africa.
In the end there came the Anglo-Boer War 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 actirally the first anti-
colonial war in Africa of this anti-colonial century. It 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, toa large extent, won in the minds and the hearts of
people, including the British people.
Eight years afterwards Parliament at Westminster granted complete
interna1 self-rule, not only to the two vanquisIied republics, but to the
lvhole of South Africa, apart from the protectoratcsA State wascreated-
a new State,the Union of Soutli Africa-consisting of four former British
colonies-the two Kepublics, Natal and the Cape-andthey intime at-
tained complete independence, first as a rnember of the Commonwealth
and later outside the Commonwealth as the Republic of South Africa.
It allhappened rather slowly by present-day standards,partly because
the times, Ithink, were more leisurely, and partly because ofthe presence
in South Africa of a fairly big minority of British extraction who qiiite
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 biculturalnation WITNESSES AND EXPERTS 511
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 they do up to this da1.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
disposal.
Mr. DE VILLIERS:What respect is it you mean particularly?
Mr. CILLIE :1 think that we did succeed to this point,that today En-
glish- and Afrikaans-speaking South Africans of European descent are
gradually becoming integiated into a single South African nation on the
basis of mutual respect for each other's institutionsand 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 eçtablished White African nation that has won its
freedom in the hard way, and in an often desperately slow way, and a
nation, 1 think, rvho 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 cut off from their original Dutch
liorneland, ceased to be colonials-colons-more than a centurp and a
half ago, aiid those European people who came later during the time of
British rule are now largely falling in with that view, the basview 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 ofrir destiny as a nation.By
that 1 meail 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 andits 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 al1 over again. That,
Mr. President, as 1sec it, is the sort of mentality people from oiitside
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 these matters are very great, and I think very real.
The YRESIDENT: Mr. de Villiers, when are we going to be connected
up with Soiith West Africa?
hlr. nE VILLIERS: 1am coming to that imrnediately, Mr. President.
The PRESIDENT:Well, please do.
Mr. CILLE: In many quarters 1 think we are being, quite wrongly,
grouped with the so-calIed colonialiçts, the relicç of the age of irnperialisrn
that have to abdicate, or be forced to do sebut, in fact, the White
African nation is largely a child of anti-imperialism and anti-colonialism,
with al1the inner strength that that background impIies. Ive regard our-
selves as one of the free nations of theearth,andwe feel ourselves better
equipped than most for the role on account of a longer and more thorough
apprenticeship.
bIr. G~oss: Mr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS:1 shoulcl like to reserve a general objection to this witness
propagating a doctrine in this court-room rather than testifying to it512 SOUTH WEST BFRICA
which, in my respectful submission, is what he is doing in these last few
minutes, sir.
The PRESIDENT: The last few miriutes have beeii something which
seem to me to be very unconnected with the issue mhich haç been placed
before the Court, Mr. de Villiers. You said yoi~were going to corne to
South West Africa-well, please do come to South West Africa.
Xr. DE VILLIERS:Yes, Xr. President, the next question will bring us
there, 1 think.
The PRESIDENT :lease put it.
Mr. DE VILLIERS:Mi. Cillie, 1 want to ask you whether you think that
the factors you have just stressed are of importance as regards policies
concerning relations between the variouç population groupç, White and
non-iVlrhite, in Southern Africa-in South Africa and in South West
Africa?
&Ir. CILLIE: 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 iwas established in1910 ,nd 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 1Vestern European colonial powers towards their colonial peoples.
hlr.DE VILLIERS:HOWhave these responsibilities been approaclied in
tlie context of South Africa and South West Africa?
Mr. CILLIE:LVell,as happened elsewhere, our relationships with these
peoples became more urgent as the tjde of anti-colonjalism gathered
force during thiç century. As their aspirations and ambitions greu7,u7e,
the ruling IVhite 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. There were two obvious lines of thinking in this matter
whicli could be followed, andboth have their adherents in Soiith African
politics. 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-al1 these vrtstlydisparate
elements-into one all-embracing social and political structure. People
of ml7 way of thinking rcject this course cornpletciy, and 1 think this
rejection has gathered force in South African politicç as the position
developed during the last 10-20 years. These solutions do open up a
prospect of the White Africans in these two countries being politically
overwhelmed by the sheer weight of non-White numberç, and the over-
whelming involves not only the White Africans, it involves the smaller
non-White groups. I think wc fccl about this ivhole idea of irltegrating
the whole of the South African and the South West Africari population
into one single nation more or less as the British would have felt about
a plan, quite hypothetical, for granting India its freedorn, 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 Rritons and
the 400-500 million Indians and Pakistanis. Obviously one can only at-
tempt soiutions like these when dealing with fairly small minorities who
are in addition not too divergent from the main group. Ihen dealing
with majorities, or collections of minorities that could be manipulated
as majorities, even the beginnings of such an integration policy raise WITNESSES AND EXPERTS 513
such fears arnong the ruling people that the policy itself never gets off
the ground.
hir.DE VILLIISRSC : an you indicate whether the one-nation concept,
with or tlrithout qualifications, has been advocated in politics in South
Africa and in South West Africa?
&Ir.CILT-IE I: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 areslso 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 cal1
them people who advocate a sort of middle-of-the-way policy. We have,
for instance,û party who advocates a general but strictly qualified fran-
chise under which people would attain political rights on the basiç 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
Airicans.
The PRISSIOE;~TR :iIr.de Villiers1 would be very glad if you tvouId
indicate to the Court, having regard to the detail and the nature of the
witnesç's evidence so far, to what particuIar issue in the case you Say
it is relevant.
Mr. DE VILLIERSI:t is relevant, Mr. President, to the issue of a conten-
tion as \t-eunderstmd 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 PRISSIDENTW : ell, 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 1 put to the Court before, that the application of such a nom
in the political sphere with or without qualificationin Southern Africa,
including in that South Africa, just as any other country in the world
may have been relevant, js 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 pi-acticet would lead 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 subsequentelaboration 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 appIication of a
systcm of universal adult franchise within one single political unit. The
purpose of thjs evidence isto show how completely impossible that whole
concept is when regard is to be had to the well-being and progress of
the peoples concerned.
The PRESIDENT: At the moment 1 do not see that al1 this detailed
evidence isnecessary, but tlie matter will be considered between now
and 3 o'clock. Did you want to Say çomething, Mr. Gross, before the
Court adjourns?
Mr. GROSS: If 1might teserve a moment, if it pleases the honourable
President, to respond tothe comments of the counsel for the Respondent,
but 1mould be prepared to do so on resumption, subject to your pleasure,
Sir.
The PHIZSIDENT T:he hearingisresumed. Mr. Gross, 1 understand you
desire toaddress ille Court?5T4 SOUTH WEST AFRICA
Wr. G~oss: Yes, if you please, hlr. President. The Applicants would
respectfully request the opportunty to indicate points of procedure with-
out trenching on the merits, in the context of tlie 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:
(1)As the honourable President willbe aware, the A plicants respect-
fully have maintained a general objection to any an s to al1 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 formuIation that the witness will testify, and 1 quote from the
letter of the agent of the Respondent, dated 6 July 1965 l,as follows:
"Witness will testify with regard to the feasibility or otlierwise
of application inpractice of a suggestcd nom and/or staiidards 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 441. The Applicants would respect-
fulIy 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 staternents on tliat page are footnoted.
(3)The witiless has been qualified, and has taken declaration, as an
expert in the fieldof journalism and his opinions, in the Applicants' re-
spectful submission,shouldbeconfined to that fieldin hiscapacityasexpert.
(4) Inrespect 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
AppIicants respectfuIly suggest that evidence segarding, and again1quote
from the letter of6 July 1965 of the agent for the Respondent to the
Applicants: "poIitica1 aspects and implications of the policies of differen-
tiation applied in South Africa and South West Africa" is embodied in
extensoin 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' iight to comment upon
such documents, subject to permission granted by the honourable Presi-
dent. Thank you, sir.
The PRESIDENT: Well, hlr. Gross, with regard to the last point that
you have raised, the Court has already ruled ttiat the Responde~it has
the right to cal1oral evidence and unless the Respondent is prepared to
accept the stipulation which you have indicated, the rnatter must rest
there. There ino capacity of the Court, unless such evidence is irrelevarit or
otherwise inadmissible, toexclude it.That is the right of the Respondent.
50 far as your general objection is concerned that is noted, and of
course it will be, as 1 have indicated throughout, for the Court in its
final deliberation to determine to what extent any evidence which has
been adrnitted, subject to objection, is relevant to the issues which the
Court will decide, and what weight will be placed upon it.
Mr.GROSS : es, sir.
See Vol. XII, FarIV. WITNESSES AND EXPERTS 515
The PRESIDENT:SOfar 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
nrhich is their normal qualification, if they reveai a çpecial knowledge
which is far in excess of that which is normally held by a lay person and,
where a witness so qualifies, itisa question of the weight to be accorded
to his opinion, not a question of the adrriissibility of the expert view
which is espressed. That again is a matter which the Court will consider
in its deliberations.
So far as your second objection is concerned 1 am afraid I have not
the documi:nt before me but that will be noted and regard will be paid
to it by the Court.
The question which was raised by me with Mr. de Villiers was the
extent to which certain evidence of the witncss is relevant to any issue
in the case. It seems, Mr. de liilliers, that the evidence isfairly remote
£rom the issue-the question thatthe Court is concerned with is whether
or not the Respondent has discharged itsobligation under the terms of
the Mandate, paragraph z of Article 2. In other words has it promoted
to the utniost within the meaning of those words: "the material and
moral well-being and the social progress of the people of South West
Africa". One ofthe two grounds whichwere indicated by you this morning,
if 1 didn't misunderstand them, was that the policy of integration or
non-separation ii appliedin South West Africa woutd not be viable, and
not being viable it would accordingly not be for the social, moral, or
material wefare of the people. Rut su much of the evidence given by
the witness has been directedto South Africa itself, and whilst the policy
of apartheid is pursued in South Africa as well as in South West Africa,
itdoes not foltow 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 nurnber of White people
in South Africa and only a small proportion of the total population in
South West Africa happen to be White. 1am sure you will do your utmost
to bring ttie witness to the issues in relation to South iVest Africa. So
far as the second question of evidence of State practice in relation to
alleged international custom is concerned, it isdifficult at the moment
to see why it is neceçsary or reIevant 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 neecl say at the moment is that a great deal of the evidence
which has been given by the witness, whilst it explains the policy of
apartheid, is not yet very closely atal1linked up with South West Africa.
1 thii-ikthat the Court must leave it to counsel to bring the evidence
as quickly as possible to the issues ïvhich the Court has to deal with.
blr.DE VILLIERS: Thank you very mucli, Alr. President. May 1 offer
a very brief word in explanation? 1 think it ma37help in the further
presentation of the evidence. 1 may Say with respect that I am fully
in agreement with the proposition that the Court is concerned with South
West Africa and not with South Africa, and 1 would be the last one to
try and enlarge 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.
Rut, lilr. President,in the contextof deciding what is best in SouthWest
Africa, pal-ticularly the political implications of what is urged upon ussr6 SOUTH WEST AFRICA
by the statement of the norm andlor the standards to be applicd, as
advanced by the Applicants, we find it impossible to isolate the case of
Soutli West Africa from Southern Africa generally. There are certain im-
plications which run over the border lines-not onIy into South Africa
but also into other partsof Southern Africa.It is 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, (1) as regards
the negative implications of the application of a norm andlor standards
as contended for in the political sphere and (2) the positive aspects and
positive prospects attached to proceeding upon the basisof differentiation
as the South African Government is doing at the moment. 1 may say
that the witness has given almost a third of his evidence-in-chief. We
shall not take an undue time about it, 1should say about another hour
should see the evidence-in-chief through-and this isthe only context
in which those matters outside oi South West Africa are brought into
the picture at al].
The PRESIDENT :he Court will,of course, permit you, on your under-
taking to connect itup xvithSouth West Africa, to proceed, Mr. deVilliers,
andthe actual relevance of it and the Court's determination thereon will
be amatter for subsequent delibrration by it.
hlr.DE VILLIERS :ertainly, Rlr. President. Blr. Cillie, you were dealing
with the possibility of applying so-called middle-of-the-road policies-
policies of moderation, moderating somewhere between an estreme of
differentiation and one of integration and as to their actual advocacy
in the Southern African scene. 1 don't think you had completed what
you wanted to Say upon that subject.
Mr. CILLIE: Yes, 1 was saying, Mr, President, that the idea of what
1cal1a one-nation concept, the idea of bundling a lot of divergent pcoples
together, and trying toforrn one nation out of them, both in South West
Africa and in South Africa, hasits very vehement propagandists in South
Africa some of them very prominent in public lift1was saying also that
we have a party there which advocates for both South Africa and South
West Africa the idea of a qualificd franchise under which people wouid
attain political rights anbasis of their level of civilization anwitl-no
regard to their group affiliations. These policies are propagated in South
Africa, tliey are freely propagated in the Press and through political
parties and the- are offered continually to the South West Africans as
well asto the South Africans. They get full play but theÿ have in actual
fact made no headway at al1during the last 17 years since 1948, 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 seats but aIso in the aggregite vote, and that goes
equally for South West Africa, where they have gone back even further
than in South Africa itself, The reason,1 think,is fairly simple, because
every so-called rniddle of the ropolicy,every policy that suggests giving
limited rightsto these various groups inside one political structure. dues
raise fears immediately that the end of this policy is a position ofone
man, one vote, and that once you start, there is no logical, and indeed
no practical stopping place short of universal suffrage.
fiIr.DE VILLIERS:NOW,hlr, Cillie, could you then indicate what you
regard as the alternative to a policy either of buiiding one intergrated WITNESSES AND EXPERTS 5I7
nation out of a11the constituent elements, or of middle-of-the-road pol-
icies. \mat do you regard as thc alternative?
Mr.CILLIE:1 think we have chosen in South Africa, through our polit-
ical processes, wha1 regard as the only fundamental alternative to this
impossible principle oa one-nation concept in either of the two territories.
And 1 do riot think that fundamental concept is in confiict with funda-
mental Western principleç. Just as the WesternEuropean imperial powers
decolonized, not by integrating their various colonial peoples with the
ruling people back home, but by separation, by letting them advance
separately througli their own separate institution, we chose the way of
separate development-trying to build up these vastIy disparate non-
White peoples into self-respecting and self-governing organic entities.
Mr. DE VILLIERS: Do you tliink this cornparison between the cases of
relationships within South Africa and South West Africa and the de-
colonization process bythe Western powers is really a valid one?
Mr. CILLIE:Yes. We have been told that this is not valid, because,
whereas the Western powers had a11their colonial peoples in separate,
distant larids which couId in tirne develop into separate independent
states, South hfrica has her under-developed non-White peoples within
her borders and within the borders of South West Africain two gcograph-
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 circurnstances. To take a parallel, the British people's
aversion to being outvoted by an oirernrhelming majority of Indianç,
would certainly have been increased rather than decreased if they 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 wman of them came
into being. Ive have, in fact, in pursuance of this po icy of separate
deveiopment, started tentatively to redralv thmap of South Africa and
South West Africa. We are only at the very beginning of the proceçs
of demarcating more clearly the ancestral and future lands of the various
Bantu 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. ns VILLIERS:M%at is the object of creating these various çeparate
Bantu and non-White political units?
hlr. CILLIE:It is theway Ive 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 West
Africa. We are giving them increasing rights and responsibilities in
running their own affairs. We are,ineffect, doing inside the geographical
frontiers of Southern Africa what the IVesterri European inlperial powers
did, and are doing, about their own colonial peoples: granting them
their own scparate freedoms witl-iout jeopardizing the existing freedom
of the-shall we cal1 it the metropolitan people, the ruling people.
&Ir.DE VILLIERS:DO you think that in the South African context
and in South West Africa there isa greatcr risk involved in this process?
Mr. CILLIE: Oh yes, very definitely. It is a far more risky procesç
for us, this granting of separate freedoms, for the simple reason that we
shall have to livevery closely with what Ive are doing and what tve 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 sorne safe metropolitan haven.518 SOUTH \'EST AFRICA
We have to sit it out, we have to put these SoutI~ernAfrican non-White
peopIes on their feet and we hope to lead them, asbest we can, through
their adolescence and to maturity; and then we have to recognize the
new personalities that have grown up next to us, we have to CO-operate
with them for al1future time, and for the cornmon good, because there
is nothing static about this concept of separate development. Itis 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. DE VILLIERS M:r.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 1 rnayrevert for a moment to the way
in which 1 understand the Applicants to put their case in regard to a
norm and/or standards in the political sphere.1 understand them to
suggest that itmay be permissible, under certain circumstances, to have
differentiation, but that thatought to be coupled with freedom of choice
on the part ofthe 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 çay no, Iwould ratlier have for myself the
provision which is being made for another group. Kow if we are to apply
tbat idea to the political context of the various groups in South Africa
and -n-South West Africa, what do you see as the prospects of such a
possibility?
Mr. CILLIE: They do not work, and will not work, Mr. President,
because in the political sphere, that is a verv nice theoretical idea when
you are dealing with v&iy small minorities; they can have their own
çeparate institutions and they can still share in the power at the centre.
But we have had tliose situations in South Africa, we have had positions
like that, and we have seen the results. 1 think of the common-roll vote
for the Bantu of the Cape Province that we had up tiIl 1936. These
people could corne on the common roll with the Whites at a certain
levei of developrnent, and it became çuch a disrupting influence in, shall
we say White politicç, that by comrnon consent, or almost unanimous
consent in the end, this common-roll vote tvaç removed. As 1 Say, you
can deal with these situations when you deal with very small minorities,
but we in South Africa are not dealing with srnall minorities, these are
big minorities, these are in fact peoples, andthis sort of solution, having
separate institutions for these people, and then aIlowing them on the
basis that counsel suggested, to allow them . ..
The PRESIDENT hlr. Gros . ..
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, respectfuIly, that the witness is testifying with regard
to South Africa. 1 understand Respondent's question was addressed to
South West Africa and 1object to these polemics regarding South Africa,
which are irrelevant in any evcnt.
The PRESIDENT : ell, hlrde Villiers,1 think, perhaps, unnecessary
time is spent in debating the admissibility of evidence, but do please
keep the witness's attentiondirected to South West Africa, the evidence
does tend to wander too much at large, in rny view. WITNESSES AND EXPERTS gr9
Mr. DE VILLIERS:May 1 just indicate thatwe have had other evidence
about other countries and other situations in the world in testing out
whether these norrns 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 tliis respect.
The PRESIDENT:There isno dispute about South Africa, about the
practice iriSouth Africa, Mr. de Villiers, the practice in South Africais
that there there is differentiation, that is conceded, there there is separa-
tion, that is conceded; what purpose is there in having further evidence
in respect of an undisputed fact?
Mr. DE VILLIERSW : ith respect, Mr. President, it does not concern
the fact of tlhe 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
lvhereby 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, a1 understand, in regard to a particular situation, but
1 shall ask him to deal with it more particularlin regard to South West
Africa. Will you please, Mr. Cillie, in dealing with this question, appiy
it specifically to the South West African situation ?
Mr. CILLIE:Yes, 1 waç thinking that we have had these experiences
and we are going to have the same experiences . . .
The PRESIDENT1: think it better, Mr. Cillieif you respond to the
question xvhich is put to you by counsel-will you put your question
to the witness again, Mr. de Villiers.
Mr. CILLIE: Applying this to South West Africa, 1 was saying that
we have had the situations, Ive have had experiments in Southern Africa
on those lines, and 1 do believe that it is going to work out the same
way in South West Africa. 1 cannot see it working differently in South
West Africa frorn 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
whoIe concept of it is not static, but d~narnic, and 1 should like you
to indicate to the Court what you consider to be the positive values
ofan approach of çeparate development, particularly as applied to .South
West Africa in the general context?
Mr. CILLIE: Yes, as counsel suggests, there is nothing immutable
about thispolicy of differentiation and dernarcation. In factthe wkole
Odendaal report isan 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 urell as
South Africa, as political organs and economic and social institutions
develop ainong 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 cievelop a wlll of their
own, theii- wishes have to be taken into ,account in the affairs of the
farnily, and that iswhat we are driving at.
Mr. DE VILLIERS: Eiowthen do you see the question of uItimate shape,
of where this is leading to?
Mr. CILLIE:Well, that is a very large question, Mr. President. 1 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 someblack States, and 1foresee
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 done
by the British. They are leading to independence the three so-called Pro-
tectorates-Bechuanaland, Basutoland and Swaziland. But certainly
not al1 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 al1 sorts of varied and flexible solutions. Self-determination,
freedom, as I see it, after al1 dimpIy freedom to delegate or to share
some aspects of that freedom.
hlr.DE VILLIERS:Could you give the Court examples of the type of
flexible solutions which you foresee?
hfr. CILLIE:Yes, various models and patterns have been tentatively
held np at various tirnes. 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 development. On other oc-
casions he has referred to aspects of the European Cornn~on Market,
which seems to be a combination of economic interdependence and poli-
tical independence. '1Vhat we find attractive about these groupings,
whatever dificulties they may run into, is that they reject the idea of
majority rule and they substitute methods of consensus in getting to
comrnon purposcs. That is partly why we tend to reject the prospect of
a federation as an over-al1 solution for South West Africa or South
Africa, because the concept of federation does seem to retain the principle
of mnjority rule,which we find inappropriate and unacceptable in terri-
tories in wliich al1 peoples are in fact minorities. So, if you tie yourself
down to a federal solution,you do seern 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 eveiitually
going to have a dialogue.
Mr. DE VILLIERS:So I gather from what you have said that you do
not regard separate development as an end in ilself?
Mr. CILLIE:Xo, certainly not. It is not an end in itself. 1 think it is
generally conceded nowadays, on the international plain, that in the
modern world nationalism is not enough. In this sense the Inere building
up ofgroup identities is not enough; iis our waÿ to better co-operation
and a more satisfactory CO-existenceof the peoples of South Africa and
South West Africa. We sincerely believe that,by recognizing and pro-
viding for these separate identities and by rernl-ivingmutual threats to
those identities, you can attaia multi-national deal that would be more
lasting thcn any other conceivable order. 1 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 thern.
That is our basic approach in South Africa and South West Africa, and WITNESSES AND EXPERTS PX
I submit that it conforms very closely to the verybest 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-operationbetween various units in Southern Africa that
could corne from this approach?
Mr. CILLIE: YOUare talking about Southern Africa?
Mr. DE VILLIERS:Southern Africa generally.
Mr. CILLIE Y es, our theoretical thinking goes further than the geo-
graphical frontiers of South West Africa and South Africa. 1wouId refer
the Court to a map in the end of the Counter-Mernorial, II.Politically
it is a bit out of date, of course (the date of the map rg63),and since
this rnap was made, there have emerged two new black States. Northern
Rhodesia has become Zambia, a new independent African State, and
Nyasaland has become MaIawi. 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 tfie Portuguese Territories, Southern Rliodesia and yossibly
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 incIude them
in our thinking because South Africa does not want to be thrown into
isolationinto a corner in Africa, not only oOUT own behalf, but because
we believe that Ivehave a lot to offer to these other peoples and territories
of Africa. U7ehave the experience, we have the know-how, urehave more
resources than some of these others, and Our strength could form the
basis ofa very strong and very fruitful association of States.
Mr. DE VILLIERS:SO YOU see these as redistic possibilities for the
future?
Mr. CILLIE: Yes. Granted more-or-less orderly and peaceful evolution,
Mr. Presicient, a vast range of possibilities do suggest themselves in
Southern Africa.
Jfr. DE VILLIE~ZSW : hat do you mean by that proviso-"granted
more-or-less orderly and peaceful evolution"? Did you Say that?
Mr. CILLIE :Well, there is the rub. The successful implementation of
this promising, but very difficult poIicy in Southern Africa is utterly
dependent upon the sustained will and the capacity of the present leading
people, the White people of South hfrica, to carry it through. It is depen-
dent on these people's willingness to take the long viewand to shoulder
the necessaryfinancial 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-interest, the sort of caring for other groups
than your own, that becomes increasingly difficult when you feel your-
scIf threatened. ilny sort of generosity, 1 should say, ail wisdom in states-
manship is to some extent a function of a sense of security. Threats to
that security, of course, could arise from various sources, in South Africa
and South West Africa. 1 would like to distinguish between two kinds522 SOUTH WEST AFRICA
of threats. The one sort of threat comes through encroachments. If a
group encroaches on the preserves of another you get a feeling of fear
and OUengender bitterness and hostility which make al1 sorts of positive
and constructive action very difficult. That is the one sort of threat that
could upset, what 1 cal1orderly evolution. You rea1ly cannot cxpect the
iiThite South Africans in South Africa and South West Africa to act
generously or wisely if they are continually being threatened in their
social institutions or in their economic position by encroachments by
other groups; it puts their backs up, and instead of CO-operation and
friendlincss you get tension and hostility.
Mr. DE VILLIERS D:O you regard that as a factor which would be
harmful to general development 7
Mr.CILLI EYes, that is the real justification for some of the legislation
that has been under attack in this Court and in other forums. Some of
these measures may become unnecessary in the light of changing circum-
stances. Some of it may seem stupid to people who do not understand
the situation-1 can well imagine that there isalmost no country in the
world that has not got çome legislation that appearç stupid to outsiders.
1 can Say that, in so far as such Iaws standinthe way of the principIe
of çeparate development, they will have to be changed or revoked in
time. Here again there is nothing immutable about the South Afncan
set-up. We do change and we do adapt as we go along.
blr.DE VILLIERS H:ave you any examples in mind?
nlr.CILLIE:1 believe there has been some talk in this Court about the
training of non-imite engineers.1 do not know what the exact legal or
administrative barriers to such training maybe,but 1 know that if they
do exist they will have to be relaxed or removed, because obviously
you cannot have economic deveiopment in the Bantu areas without
engineers, preferably Black engineers. We shall need in South Africa
in the future al1the engineers we can get,anwe 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 tlien, again, you
cannot risk sabotaging this whole constructive outlook on the part of
the Whites by allowing a proceçs of encroachment to put economic and
social fearç into the hearts the White people.
Mr. DE VILLIERS Y:OU mentioned one type of threat to the possibility
of security and orderly development. Have you any other in mind?
Mr. CILLIE :es. This 1regarded 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 PRESIDEXT 1:don't think this needs'any development, does it?
In what way is this going to carrthecase any further?
Mr. DE VILLIERS hlr. President, thbrings in the factoof anattempt
to impose a norm andlor standard from outside. That is the relevance
of the evidence as me see it.
The PRESIDENT :ow is that relevant, Rlr. de VillierEven if there
were attempts to impose a norm from outside, if a norm or standard
exists does it matter whether it has been sought be imposed from out-
side? If on the other hand 110norm or standard esists does it matter
whether one was or is soughtto be imposed?
Rlr.De VILLIERS :es, but an attempt to impose standards or 30- WITNESSES AND EXPERTS 523
called standards which have not attained the force of law, nevertheleçs
by political pressure. That is the context.
The PRI~SIDENT X:tseems to be very remote frorn the issue which the
Court has to determine 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. It seems
tome that the evidence which y-ouare seeking now to open up has little
to do with the issues the Court has to decide.
Mr. DE VILT-IERSB : ut it is coming directly to the suggested content
of the norm, Mr. President.
The PRESIDENT:How does it come to the content of the norm? -
Mr. DE VILLIERS :he content of the norm as applied in the political
sphere, namely the content of universal adult suffrage within the frarne-
work of a single territorial unit.
The PRESIDEXT M:r. Gross?
Mr. GROSS:&Ir. President, with respect, I believe that counsel is
making a legal argument and Iwould not wish to presume on the Court's
time to request an opportunity to answer it, but this is a misrepresenta-
tion, surely unwitting, of the Applicants' case. With al1respect, s1just
will note an objection on this line of argument by the Respondent's
counseI.
The PRICSIDEN T:e objection is noted, Mr. Gross.
hlr.DE VILLIERS:Mr. President,1 am sorry, but this is a fundamental
matter to us, and perhaps 1 don't seeit 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 cor9ztsof fact upon which he relies and he made this statement
in that record of 17 May:
"The norm of non-discriniination or non-separation, when broken
down into its component parts-and we shallhave more to Say
about this shortly-for example, in the economic field, in the eco-
nomic life of the community, couId be, properly is to be, conceived
and spoken of as the nom of non-discrimination or non-separation
in economic affairs. In the area of education it is a norm against
discrimination and separation on racialgrounds in the educâtional
field. Similarlin the political and civil liberties fields, they become
noms or sub-norms, whichever phraseology is preferable, rules
which prohibit discrimination or separation in respect othe partic-
uIar area of human activity or human intercourse rvhich is involved."
(1% p. 284.)
And that, Mr. President, with respect, linksup with the explanation
which 1 have referred to,in the Reply at IV,page 441, the wording of
which 1wish to read to the Court, because it is so explicit:
"With regard to political rights, the relevanand generally ac-
cepted noms 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
aduItsuffrage and the promotion of participation on tlipart of al1
qualified individuals ial]levels of government and administration,
within the framework of a single territorial unit."
The witiless is about to address himself to the question of attempts94 SOUTH WEST AFXICA
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 is that the Respondei~t should have given universal suffrage
to the peoples of South West Africa?
Mr. DE VILLIERS:Within the frarnework of 3.single territorial unit,
Mr. President.
The PRESIDENT:Yes. That is,you state, part of the Applicants' case?
hlr. DE VILLIERS:Yes, Mr. President.
The PRESIDENT:This is the first time Ihave heard you state that,
Mr. de Villiers, but still, if you say that il is part of the Applicants' case
then proceed with the evidence.
&Ir. DE VILLIERS: That would appear to be the case, as stated here,
sir, explicitly. my learned friend tells me that thatisnot his case and
can tell me in substitution what his case is in the political sphere, then
perhaps I could deal with it.
The PREÇIDENT: Yes, Mr. Gross?
hlr. G~oss: 1hardly know how to proceed, Mr. President. This seems
to require Iegal argument of the sort which 1 know, with al1respect and
deference, is not in place here. Just for the sake ofthe record 1 should
like to read the sentence following the two sentences quoted by Respon-
dent's counsel on IV, page 441, of the Reply.
"For an elaboration of the views of the United Nations which
have given rise to this standard, and of comyliance by Administering
Powers therewith, the Court is referred to Annex 7 hereof."
The Annex sets forth, in some detail, the judgments of the United
Nations with respect to the cognate arcas of trusteeship and sets forth
the policies, as we elaborated, which explain and elaborate the two sen-
tences quoted by the Respondent. But, without venturing to go into an
elaborate argument, there are of course al1 sorts of qualifications upon
the phrases used, "the institution of universal adult suffrage" and the
"participation on the part of al1qualified indivicluals". There is no abso-
lute ormechanical standard which is applicabIe or not, without reference
to the issue in this case,which is that apartheid, which denies al1effective
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 Reply, may be considered
and, with al1respect, should he considered by this honourable Court in
interpreting the Mandate and applying the undisputed facts of record
constitutingapartheid in this respect. 1apologize if1 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 PRESIDENTM : rde Villiers, you must just proceed and the Court
will have to determine later on what relevance the evidence has.
Mr. DE VILLIERS:Thank you, hir. President. Mr. 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"? WITXEÇSES AND EXPERTS 525
hlr. CILLIE: Yes, 81r. President. These pressures have, iri my view,
been increasingly directed to the main puryose of making South Africa
itself, and South West 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 Africa, and if you want that in South West Africa, and wc have to
grant that in South West Africa, with such a system in a territory next
to us, whicIi we administer as an integral part of the country itsclf, there
\vould be no valid reason for refusing to do so at home. This certainly
would, and does, create the utmost resistance and the utrnost resolution
in the White population of South Africa to reçist aU these pressures.
When 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 terrns of numbers, is the Ovûmbos, whom 1
believe form about 45 per cent. of thetotal population. On the basis of
one man, one vote their numericd preponderance could be exploited by
ruthless and ambitious men to subject al1 the other groups to Ovambo
rule. Not only would tlie LVhites be submergea-and they are going to
form for avery long time the frnmervork and thesinews of tlie administra-
tion and er:onomic development in that Territory-but also the most
under-deveIoped non-White groups, the weak groups sucli as the Bush-
men or the tribes of the Kaokoveld would be submerged. Tiiirdly, you
are going to sub~nerge the most higiily developed of al1 the non-White
groups which are, I thinkthe Coloured people of South Wcst Africa and
the distinctive Kehohoth people. It means to theçe people, as it means
to the Whites. that tlicy are being forced to commit a forni of national
suicide, and that prospect evokes a11the forces of resistance that you
would expect in any nation in sirnilar circumstances.
Xr. nE VILLIERS:What conncction do you see between this attempt,
or this threat, cal1it what you like, from outside to attempt to imposea
standard of that kind and the prospects of evolutionary development
which you put to the Court bcfore?
hlr. CILLIE:AS I said, it does raise fears among the ruling Whitas to
their position and their safety, and itdoes make them behave in more
neg-rttiveways than is appropriate in the circumstances, than they should
behave. The Whites certainly are not going to surrender tliemselves to
so-called majority rulc based on the numerical preponderance of the
Htack peoples in South Africa or South West Africa. They woulcl resist
it as meanilig the end of their world, and they will deal with it as such.
Mr. DE VILLIERS:Would that rcsistance corne from the \Vhite pcople
only ?
Mr.CILUE:XO, 1 don't tliink 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 al1 minority groups in South Africa. South
Africa and South \??est Africa are really a collection of minorities and
you can only get a prcponderant rnajority by a ganging-up of various
minorities, Say in the nanie of their blackness, or in the naine of their
non-lvhiteness, or what you will. 1 think the resiçtance will not be con-
fined to the White people only.
Mr. DE VILLIERS: Now, what do you see as the prospective effect af
serious at.tempts to impose a norni or standards of that kind on un-
willing people in South Africa and in South West Africa?
hlr.CILLIH:1 think tlie effects are going to bvery evil, because,to526 SOUTH WEST AFRICA
put it in philosophical terms, unity is really a divineidea and the corrup-
tion of the best is the worst. Satan himself is supposed to be a fallen
angel. So if you try to impose unity, which isa very great and idealistic
concept, if you 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 rneans of forcing South Africa to abandon apartheid as a
policy in South Africa and South \%'estAfrica. And all 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. Tliat would be an act of war, of course, and be regarded
as ...
hlr. G~oss:Mr. President, may 1 interject at this line of questiand
answer, sir, plcasc?
The PRESIDI~NT Ifrankly don't see what we have got to do with this
part of your presentation, hlr. de Villiers.
hlr.DE VILLIERS : Ir.President,1shall not press it upon the Court if
that is how you firmly feel aboutiMy concept ofitis that the well-being
and progress of the peoples of South West Africa have very definitc coii-
ncctions with the well-being and progress of ottier peoples in the whole
of Southern Africa. The wliole concept of the Mandate is that ofa 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 fom part, isbeing held up to the Court as part of
the implications of this Iitigation-implications which extend so far
beyond the borders of South West Africa itself. Surely it must be, with
the greatest respect, a relevant consideration tobring to theattention
of the Court that these implications do exist.
The PRESIDEN TT: what extent is it relevant to determining wliether
at the time the Application was filed, 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 threatsf imposing sanctionsupon South Africa?
Mr. DE VILL~ERS : Mr. President. the relevance of it,myn sub~nission,
is this: that the allegation that there has been a violation of the obliga-
tion ofArticle 2of the Mandate, takesthe form implicitly, and esplicitly
on occasions. that there is to be applied in the political sphere a system
of universal adult suffrage, that that is ta be imposed upon people,
lvhether they be willing or not to accept it,thatis, universal adult suf-
frage within the context of a single territorial unit, and these are implica-
tions of the situation wliich arise.
The PRESIDENT T:hey are implications of today are they-irnplica-
tions of today?
Mr. DE VILI.IERST : hat has been part of the case, as 1 understood
it, as preserited ta the Court, namelythat the situation with which the
Court is dealing, is not a static oitis a dyna~nicone; it is a dcveloping
one. My learned friends have not confined their case towhat happened
as at the date when these proceedings were initiated.
The PRESIDENT Very well, Mr. de Villiers. Al1the 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 VILLIERS W:ell, &Ir. Cillie, would you briefly conclude what WITSESSES ASD EXPICRTS 547
you consider to be the implications of attempts to enforce standards
of the nature 1 have mentioned, from outside.
illr. CILLIE:Well, as 1 said, these discussions at the United Nations
and e1sewhf:re point to a desire to impose a certain systern on South
Africa, and as 1 said, if it is going to be done in thway, 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 revolt and group wars,
and by the time thst South Africa itself gets properly strangled econo-
mically, practically the whole of the sub-continent ivould be in astate
which 1 find rather ghastly to contemplate. 1 am assurning that on the
other side there willbe forthcoming the unified and sustained will and
the rniiitary resources to see this thing throughand 1 realize that this
is quite a large assumption, but it is the one011which Our persecutors
are working. ln actiial fact, 1 think tremendous internationacomplica-
tionsare boiind to deveIop with any such worsening of the South African
position.
Mr. GHOSSM : rPrcsident.
The PRESLUENT Y eç, Mr. Gross.
Mr. G~oss: X objcct strenuousIy to the polemic or propaganda which
has just beeii enünciated. I feelmytduty to indicate that the Applicantç
strongly resent the use of this honourable Court as a forum for this
type of unsiipported accusation lodged against the arganization which
is responsible for the supervision of the Mandate, and 1 wodd request
tlie honourable Court to note that a strenuous objection is made to this
Iine of questioning and to this line of response.
The PRESIDEST : do not think there is any reference at an to the
United Xations or any organ of the United Nations, Blr.Gross. The
reference isto "pcrsecutors". There is not tlie slightcst doubt whatever,
hlr. de Villiers, that in the presentation of the witness, thcre are great
overtones of politics which may have a bearing on the case which we
have to decide, but, surely, it caonly be a pcripheralone?
Mr. DE VILLIER Sl. President, if you will bear with me for a rno-
ment ...
The PRESIDENT:1 think the Court has been very patient in respect
of a great deal of this evidence, AIr. de Villiers.
RIr.DE VILLIE :RYeç, but 1find myself at a disadvantage,with respect.
The form which the proceedings have taken has made it impossible
for me to do what 1 indicated to the Court earlier on\vilour intention,
before the presentation of the factual aspects of the case to the Court
-and that is, to indicate to the Court the enormouç importance of the
political aspi:cts of this case. 1 do not wato present an argument to
the Court about it at the moment, but those political aspects whichare,
very often iii our submission, pIayed down by the Applicants, when it
suits them, are, in Our submission, of the esscnce of this whole case
concerning the well-being and progress of the pcoples concerned.
1 have not been able-in the way in which the case has progressed,
and in the way in wliich the presentation isnow taking place, of to a
large extent presenting evidence before there has becn argument on the
factual aspects where these matters can be brought together, as we
intend to do eventually for the benefit of the Court-tolay that founda-
tion as 1 should have liked to do it, anmay which can only be done in
argument. 1 shoulcIIikc to have this evidencc as tthepolitical implica-528 SOUTH WEST AFRICA
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
ail,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. Mr. de Villiers, there does not seem to be the
necessity for the polemics which are introduced by the witness into the
presentation of hisviews, as an expert.
Mr. DE VILLIERS:Very well, Mr. President.
Rlr. Cillie, could you indicate to the Court whether you consider that
outside interest, outside criticism, outside discussion of the situation
has no beanng and no possible influence for the good of the peoples
concerned?
Mr. CILLIE:Well, outside criticiçm, if iis inforrned, has always been
wclcome in our country but these pressures tliat have been building up
have not been well-informed, they have been ernotional 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 proceçses and the speed of that sane and orderly evolution that
we urant in South West Africa and in South Africa.
\Ve do want time and opportunity to worl~ out the solutions to a
vastly complicated and,I think, a universally important human problem.
The only sort of pressure, if one can cal1itthat, the only sort of help
that isgoing to do any good at all, as far as 1 can see, is that w-hich
encourages us to go ahead and put our principles into practice with
al1deliberate speed. Those principles, a1have tried to show, are rooted
in Ourhistory, which is 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 tobe a very great test of statesmanship and
ingenuity.
Mr. DE VILLIERS: Thank you.
The PRESIDENT : r. Gross.
Mr. GROSS: Mr. President, 1 should like to cross-examine briefly but
1 wonder whether it would be convenient to the honourable President
and the Court if 1 were granted 20 minutes in which to prepare my
noteswith the objective of finishing thecross-examination this afternoon?
The PRESIDENT:Certainly, Mr. Gross.
The PRESIDEXT: 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 prejudiced 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 1under-
stood it.
Mr. DE VILLIERS: Mr. President, may 1correct that.1 did not suggest
prejudice.1 merely meant that it was a matter with tvhich 1 would
deal adequately at a later stage, but, because of the fact that that foun-
dation had not been laid, itwas a little more difficult for me to explain
the relevance than it would otherwise have been. That is all, 1 did not
suggest any prejudice.
The PRESIDEKT B:ecause you !vil1recalthat in the Order which the WITSES5ES AND EXPERTS 529
Court made with respect to procedure, on 24 May, 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 T:hat is certainly so, sir. Bwe took the decision
ourselves, ~lamely that to deal with that aspect of the matter fully at
that stage would have meant a much longer opening atthat stage than
was being conternplated, and we thought it would be more convenient
to leave it over till later. That is just an historical partIodid not
imply any criticism of your ruling, Mr. President.
The PRESIDEXT :hen, do 1 understand that in no way have you
been prevented, inthe course of this afternoon's proceedings, from eli-
citingal1 tlie facts that you needed to elicit from the witness?
Rlr. DE VILLTER NS:,Jlr, President.
The PRESIDENT Y:OU have elicited all?
Blr.DE VILLIERS : es,I have presented certain parts more briefly
than 1 might otherwise have done, in the light of your remarks, but
that was also my decision.
The PRESIDEKT :OUdo not seem to be very unhappy about that?
Blr. DE VILLIERS N:o, Mr. President.
The PRESIDENT M:r. Gross-
Mr. GROSS : r. President-Mr. Cillie, as you know, 1 do not have
the advantage of a vcrbatim record, and therefore I shall attempt to
rely on my notes to quote yoiir testimony accurately; 1shallreconstruct
it to the best of niy ability, and iI paraphrase itincorrectly,1 wish
vou would please correct me at once and 1 shall giveyou every oppor-
;unity, as the Court would wish me to, not to misrepresent your testi-
mony-1 am working from my notes. Now, Rlr. Cillie, 1will confinmy
questions entirelyto the mandatedTerritory of South West Africa, and
if1 do not apecify thafact inany particular context or question1 trust
that you will understand that that is the scope, anthe purport,of the
questions 1 shall ask. You testified, substantially, to the following effect,
that withiii South West Africa, there is a great variety of non-White
people for whom "we have responsibilities", generaliy similar tothose
of colonial powers-did 1 get your thought accurately?
Mr. CILLIE Y:es, it could be a paralle1 responsibility.
hlr. GROSS :nd you went on, 1 believe, to say substantiallthat,
my notes show, the ruling White group had to see to it that trusteeship
was not used for oppression-is that correct, sir?
Mr. CILLIEI: think Iactually said that trusteeship should not degen-
erate into oppression.
Mr. GROSS:That içperfectly al1right, Sir. hlp cmphasis for the purpose
of the nest question is with regartothe useof the svord"trusteeship",
and the interpretation you would wish the Courttoplace upon the rvord,
particularlyin the contest of this litigatioand generally as well. 1
should like, with the Presideiit's permission, to read from a statement
by Prime .>finister Verwoerclinthe House of Assembly Debates in the
Third Session, Second Parliament on 4 3Iay to 8May 1964. This is at
column 5636 to column 5637 and it mas on the date of8 May 1g64,and
the statement reads, in relevant part, as follows:
"Itisperfectly clear that the Government adopts the tmsteeship
principle; tlie Government accepts its positionas trustee; itacts
in the spirit of thc mandate, and iaccordance with that spirit has
taken certain obligations upon itself; it has taken upon itçelf the 530 SOUTH WEST AFRICA
obligation to promote the wellbeing and the progress of those people.
[This is the Debate concerning South West Africa, 1 may remark
parenthetically] It has to do what it regards as being in the best
interests of the inhabitants. It was appointed as trustee and its
duty is not to ask what others want or how it can secure peace for
itself with other states, the question which it has to ask itself basi-
cally is this: How can 1 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 Ourpolicy and our actions
isby asking ourselves whether we are honestly and sincerely doing
what a Christian pardian can be expected to do for the peoples
entrusted to his care."
1shouldlike to ask, Mr.Cillie, whether you would take this as re0ecting
the officialposition and policy of the Nationalist Party?
Mr. CILLIE:Oh, yes, definitely.
Mr. G~oss: And of the Government, as far as you know?
MT.CILLIE:Yes.
Mr. GROSSD : o YOU use the word "trusteeship" in the same sense,
for the purpose of your response to my question, asthe word asused by
the Prime Minister?
Mr.CILLIE:ïes, I think so.
Mr. GROSS:NOWdoes that concept of "trusteeship", in your under-
standing, sir-I do not askyou, of course, to speak for, or interpret the
comments of, the Prime Minister, but in your understanding of the word
"trusteeship"-does itconnote or imply any responsibility to account
to others?
Mr. CILLIE:You are speaking about South West Africa?
Mr. GROSS:A11my questions ivill be directed with respect to South
West Africa. My question-woüld you like me to repeat it, sir?
Mr. CILLIE:Yes, please.
. Mr. G~oss: 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 responsibiiity to account or report
to any body or agency outside of the Government itself?
Mr. GROSÇ::NThe way the word is used. then, if I understand you cor-
rectIy, refers entirel,does it, to seIf-reporting, self-accountabil?ty
Mr. CILLIE :WeII,in a sense man does not live unto himself alone-
but in this technicaI, political sense it is accountability to yourseIf 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 "1 act in accordance with my con-
science", you wouId say?
Mr. CILLIE: 1 would put it more broadly than that, but you could
put it that way.
Mr. GROSS:%Tell,would you put it broadly? 1would like the Court
to understand precisely what your meaning is here, sir.
MT.CILLIE: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 ispart of the nation's conscience; it means a very WITXESSES AND EXPERTS 53I
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.
Illr. GROSS: Yes, sir. ilTe take iin the terms in ~vhich,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. CILLIE :ZTell,it is obvious that the ruling power presides at the
moment in South West Africa and in South Africa inthe hands of the
IVhite group-the predominant power, not the exclusive power, but the
predominarit power-that is what 1 meant by the ruling White nation.
&Ir.GROSS:That applies to South M'estAfrica, does it not, sir?
&Ir.CILLIE:Yes.
Mr. GROSS :OWwith regard to the White population ofSouth IlTest
Africa, are they the "ruling group" in South IVest Africa according to
your understanding of the term you use?
Mr. CILLIEN : O.Sureiy they are not an exclusive ruIing group inSouth
West Afric;~;SouthWest Africn is partly niled from South Africa. 1mean
that the White people of South West Africa have not gotexclusive power
over the Tcrritory of South West Africa.
Rlr. Gnoss: 1 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 trustce with respect to the Territory, if thatwas
your meaning?
hlr. CILLIE:No, 1 would say in this sense that thereisa double ruling
power-the Government of the Republic of South Africa in the first
instance, i11the overriding instance, and then you have the local White
group in South \17est Airica.
Mr. GROSS :nd 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?
Mr. CILLIE: Are you talking about the ruling White people of South
Africa, South West Africa ...?
hlr. GROSS:Well, sir, you have used the expression, if 1 have it cor-
rectly inrny notes, that "the ruling White group" had to see to it that
tmsteeship was not reduced, or words to that effect-used-for oppres-
sion, and abviously there are important concepts involved here, and it
seemed to me that the Court might wish to have clarification of the use
of your phrases there.
Bir. CILLIE: The ruling power of the White nation in South Africa is
expressed through Parliament, ofcourse.
hfr. GROSS S:o that by "the ruling White group" in the sense in which
you use it here you mean the Parliament of South Africa?
hlr. CILLIE: And in a lesser sense the Legislative Council in South
West Africa-in a subordinate sense.
Mr. G~ass: And that is a ruling White group that is selected how,
in the case of theParliament?
Mr. CILLIE:The Parliament of South Africa?
Mr. GROSS:The "ruling White group" in the sense you usc the term,
the Parliamentary segment of the ruling White grouphow is that se-
lected?
Mr. CILLIE: Parliament, of course, consistsofmembers chosen by the
White eIectorate in constituencies, and also four rnembers representing SOUTH WEST AFRICA
532
the Coloured people of the Cape. There are also various nominated sena-
tors in the UpperHouse-some of them arechusen by electoral college,
çome are appointed for special knowledge of non-White affairs, and 1
believe there is consideration-I cannot give you now a whole lecture
on the composition ...
Mr. G~oss: No, sir, that is not necessary-think you have answered
my question, unless you wish to add to it-that this, as1 understood
you to Say, segment of the "ruling White group" is electedby White
perçons in the population of South Africa-that is correct, sir?
Mr. CILLIE:Yes, and of course there are members from South West
Africa itself-thereare six members.
Mr. GROSS :es, sir, who are also1 understaiid. am 1 correct, elected
by \hites in South West Africa?
Mr. CILLIE:A JSiite electorate.
Mr. GROSS : es, sir. Now1 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. CILLIE:Yes.
Mr. G~oss: 1 think you testified, did you not, sir, that these middle-
of-the-road suggestions are madeby certain political parties, or members
of political parties?
Mr. CILLIE:Yes. They are more than suggestions-they are worked-out
policies.
Mr. GROSS A:nd they are proposed or projected by members of the
Parliament, among others?
Mr. CILLIE:Amongst others.
Mr. GROSS: And 1 suppose, as in every parliament, votes are taken
to determine the results?
ATr.CILLIE:Yes.
Mr. GROSS :nd those votes are not always unanirnous, 1take it?
Mr. CILLIE: They are never unanimous.
Mr. GROSS : ever unanirnous. And now, when there isa dissent, and
1 am speaking now particularly about mattersnffecting racial relations
policiesinSouth West Africa-and may 1 parenthetically ask you: have
there been cases in which there have been dissents expressed in the
Assembly on these rnatters?
Nr. CILLIE: Oh, yes, there was quita debate on this Odendaal report,
as you know.
MT. GROSS:And 1 believe there w-as a rather substantialminority
opposed to that 7
hlr. CILLIE:Yes.
Mr. G~oss: Would you Say,sir,and 1 am referring to your description
in respect of the exercise of trusteeship in the çense 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 whicisnot 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?
hlr. CILLIE: NO, not necessarily. Tlie majority isnot always right;
as a theoretical proposition moral right may reside in a minority, of WITNESSES AND EXPERTS 533
Mr. GROSS : ut in the case of a conihct of view, and particularly
one deeply held, who then is to serve as the judge to decide whose con-
science is right in the case of a conflict of that sort?
Mr. CILLIE: In these practical political rnatters you haveto corneto
decisions, you cannot sit and wait indefinitely for some sort of divine
Iight, you have to take a dccision as best you may.
Mr. GROSS: And that may or may not reflect what perhaps al1of the
members of the Parliament would regard as conforrnable to the require-
ments of conscience ina particular racial policy?
hlr. CILLIE:NO; it ccrtainly may militate against the conscience of
the minority.
&Ir. 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 tirne to time? Did
you understand my question?
&Ir. CILLIE :o, not very clearly.
fiIr.G~oss: 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 cal1 theni whatever you prefer, would Vary from
time to time depending upon the incumbent in such office?
Mr. CILLIE:Yes, itmay vary.
Mr. GROÇS: And would it be possible that personç in office from time
to time might have different conscientious orsubjective views concerning
the rightness orwrongness of policies?
hTr.CILLIE : Certainly.
hlr. GROSÇ: \bat, if any, safeguards would exist, then, with respect
to the rightness or wrongness of the decisions of that segment of the
ruling White power?
hfr.CILLIE 1;do notunderstand that question, 1am afraid.
Mr. GROSS: What safeguards would exist to assure the rightness of
decisions made by the executive branch of the ruling White power in
a particular situation?
hlr. 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. G~oss: Now if the qiiestion arose 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 N:ot a direct voice, no.
hlr. G~oss: In what form would their indirect voice be manifest?
hfr. CILLIE: We would soon know if we made a really ghastly mess,
you knoiv-that would be apparent very soon, because they do have
their ways of expressing thernselves.
Mr. GROSS: Those ways, sir, are by what means-if you would give
the Court an illustration.
Mr. CILLIE:Ey rnaking representations to authorities; by sending
deputationç; by giving interviews to newspapers.
Mr. GROSSI:n other u~ordsyou would Say, sir, thatthey have the
right ofpetition and do they have any other ways or methods of espress-
ing their consternationor. ..
Mr. CILLIE : We are tryiiig to build that upwe are trying to build up534 SOUTH WEST AFRICA
organs of self-government in order to give them that orderly way of
expressingthemselves-that channel for consultation-an officia1organic
channel for consultation.
hlr. GROÇS:When you use the term "organs of self-government" do
you mean organs of self-government within certain areas?
Mr. CILLIEY :es.
&Ir.G~oss: Noiv may 1 confine your attention for a moment to the
southern sector,outside the Reserves; do you know what the population
of that ares is?
Mr. CILLIE T:he figureshave been mentioned, but having had a mathe-
matical training, I am very bad at figures.
Mr. G~oss: Would you regard jtas of signilrcance to qualitative or
moraI 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, 1 think.
Mr. GROSSS :uppose we takeit between us then, as1 think the record
permanently resident in this sector and somc 27,000 who Iive there from
time to time under work contracts-a total of 194,000 persons; men,
women and children.
hlr. CILLIE1:s that in the sauthern zone?
Mr. G~oss: We are talking now about the southern sector-the total
non-White population of the southern sector. With respect to these
people, these individual.. .
hlr.CILLI E:am sorry, >Ir. President, 1 think that is the figure for
the non-Whites outside the Reserves in the southern sector.
hIr. GROSS1 : said the southern sector, sir. 1 waç now going to talk
about the sector outside the Reserves. Tthink the record will show that
1said southern sector but in any event 1appreciate the suggestion.
hlr. CILLIEO:utside of the Reserves in the southern sector.
Mr. G~oss:The figure was put in this morning 1 believe;1 was now
going tocome 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 come in on work contracts-155,ooo. Wewill now confine our-
selves to the non-Mites in the southern sector outside the Reserves.
With respect to these people, sir-1 paraphrased your answer and de-
scribed it asa right of petition40 they have any other methods of
expressinga voice or participating in decisions with respect to Iegislation
considered or passed by the House of Assembly?
Mr. CILLI E:ny other apart from . . .?
hlr. G~oss: Apart from what 1 think we agreed between us, did we
not,would amount to right of petition?
hlr. CILLIEY : OUare asking in effect if they have-1 am sorry Mr.
President, 1 shouid be addressing you.
The PRESIDENT N:'otat all. You are addressing me while you arais0
replying to Mc.Groçs.
lir. CILLIET :hank you.
hlr. G~oss: Ive are speaking to each other through the Court, as1
understand it, sir.
Mr. CILLIE1: think what you are asking me in effect is whether these
people in the southern sector, the non-IVhite peoples there, have any
organs of self-government, WITNESSES AND EXPERTS 535
Mr. GROS: WeIl I do not know quite what that phrasemem. 1have
preferred to put it in the form of the question which 1 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 1 understand it, passes laws with respect to their wel-
fare-that is correct, is it not?
MT.CILLIE : aybenot at the moment-this wholesituation isevolving,
as you know.
Mr. G~oss: When you Say "maybe not" do you have doubt about
that matter, sir?
Mr. CILLIE:Well, 1 am not so conversant with the precise position
there.
Mr. GROSS:In South West Africa?
Mr. CILLIE:In South West Africa-1 do not know whether they have
little councils, perhaps they have çpontaneous councilç which make
representations to the Government-1 do not know.
Mr. GROSSH :ow long have you resided in South West Afnca, sir?
Mr. CILLIE:I have never resided in South West Africa. 1 have been
there on and offon visits,
Mr. GROSS:Approxirnately how much tirne, would you tell the CouI-t,
have you spent there?
MT. CILME:I would not iike to make an estimateit would be a
maMr. GROSSAf :nd what portions of the Territory have you visited, sir?
Mr. CILLIE:The north, Windhoek and Rehoboth.
Mr. GROSS:The north being what, sir?
Mr. CILLIE:Up to Ovarnboland.
Mr. GROSS:How much time did you spend in Ovamboland approxi-
mately?
Mr. CILLIE:That was just a flying visit.
Mr. GROSS:A day or two?
Mr. CTLLIEY : es, maybe.
Mr. G~oss: How much tirne did you spend in other areas of the
southern sector outside of Windhoek?
Mr.CILLIE: 1 was in the Rehoboth area forsay a week or so.
Mr. GROÇÇ: 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 cal1first-hand know-
ledge?
Mr. CILLIE:NO,1am not testifying asan expert witness on the situa-
tion in South M'estAfrica.
Mr. GROSSA : re you testifying as a witness who has knowledge of
South West Africaat ailin anysense of theword other than asa person
who ha visited it for a few weeks?
Mr.CILLIE:1am an editor of a newspaper. 1have a newspapef editor's
knowledge of South West Africa which has to be pretty extensive.
Mr. GROSS: That isbased upon reports received, no doubt,sir?
Mr. CILLIE:Yes.
Mr. G~oss: Now you had used in your testimony the expression, 1 do
not think 1 had finished that line of testinionyam not certain that 1
recall your answer-1 just wanted to askyou one more question *th
respect to the perçonswe are discussingwho are involved in niy question
to you in the southern sector, the non-Imites. I believe you said that,536 SOUTH WEST AFRICA
in sofar asyou know they do not have any participation in the Govern-
ment in South Africa that passes laws with respect to the Temtory.
Mr. CILLIE: No direct participation.
Mr. CROSS: NO direct participation and 1 think you testified that
the only indirect participationthey have is by submitting petitions or
requestç or making noises, would that be a fair interpretation of your
te<timony, sir? -
Mr. CILLIE: LVell,1 think it is a very derogatory way of describing
petitions,as making noises.
Mr. GROSS: Well, 1 thought you said that they have ways of making
their affairs known-their objections known-1 will not insist on that
phrase. 1sthere any other method by which they can advance their in-
terest other than by submitting petitions or making statements?
Mr. CILLIE: 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
institutions.
Mr. GROSS : hank you,sir. In your testimony you referred, i1 under-
stood you correctly, to "integration?' in the sense that, accordingmyo
notes, the policy of "integration" is feared by the White ruling group.
1s that a substantially correct version of your testimony?
Mr. CILLIE: Yes, that is a generalization-1 should Say by the large
majority of the ruling group.
Mr. GROSS A:nd what to your mind js the meanjng of the word "inte-
gration" used in your response to Mr. de Villiers' question?
Mr. CILLIE:1 defined it more closeIy as what 1 cal1 the one-nation
concept-the forming of one nation in the modern sense of theword or
the generally accepted sense of the ~vord,out of various and divergent
peoples.
Mr. G~oss: You were thinking, sir, of political integration in that
sense?
Mr. CILLIE: NO, 1 think 1 was thinking ,.. 1 cannot remember the
context ...1was thinking in general of social, economic, political inte-
gration-we do not think we can separate thesi: concepts very clearly.
Mr. G~oss: Well, can we discuss one aspect of that for a moment,
with the President's permission: the economic integration that you
mentioned. tVould you regard what the Odendaal Cornmisçion report
refers to as "[the absorption of] approximateiy half of the Herero"-
this is one example-as they put it, in the "White economy" of the
southern sector, as a fonn of "integration"in the sense in which you use
the latter word?
hlr.CILLIE :NO, it would be a partial integration only-even economi-
cally itisonly a partial integration.
Mr. GROSS:And what makes it "~artial", sir, in your senseof the
term?
Mr.CILLIE: That they are not completely accepted; they are not corn-
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. CILLIE: Well, you are speaking economically now ...
Mr. GROSSI :am talking about economic integration.
Mr. CILLIE :here are certain limitations ontheir economic advance-
ment. WITXESSES AND EXPERTS 537
Mr. GROSS:And who imposes those limitations, sir?
Mr. CILLIE: The laws of the Parlianient of the Republic of South
Africa.
Mr. GROS: Of what you talked about ,asthe "rulirig iVhite 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-Imites for positionsand jobs?
irlrCILLIE:That would only be for lower rate economic jobs-it couid
possiblv happen.
Mr. 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. CILLIE:Xo.
Mr. G~oss: 1 am not sure 1 understood your response. I \.virephrase
my question, ifthe President will permit. You said,if Iunderstood you,
that the competition between the White and the non-White cxisted
only at certain levels, and I understood you to Say "at certain lower
levels".
Mr. CILLIE:WeIi, possibly at lower levels.
&Ir. G~oss: Well now, perhaps 1 could statc my question this way.
For what reason, if any, would ibe triie that competition between Whites
and non-Wiïites in the economy does not esist at higher Ievels than yori
have in mind in your response?
bIr.CILLIE:Well, there are severalanswers to that-the firstpart of
the answer is what 1 tried to explain imy main evidence, that you have
to protect the sense of security of the Whites in order to make them be-
have wisely. Ifthey are racked with fears, hostilities aiid bitterness they
cannot behave as real trustees should.
Inthe second place you are telling these grouys that their real future,
their advancement, unlimited advancement, does not lie in this southern
sector, it lies in their various homelands. l'want to direct their ambi-
tions, you want to direct their encrgies to the development of their own
homelands.
Mr. G~oss: Do 1 understand you to Say that in order to aHeviate or
avoid tensions or jealousy or other emotional phenomena that might
interfere with the sound exercise of consciencon the part of the trustee,
non-imites are deprived of economic advancement up to the level of
their individual capabilities?
Jlr, CILLIE: y~~ can only deprive a man of something that he has al-
ready had. This is no deprivation.
Mr, G~oss: Sir, 1 am sure you misunderstootl me, because your answer
baffles me and Ido 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?
JIr,CILLIE:But we are opening up opportunities al1the tirne.
Nr. GROSS: In the southern sector of the 'ïerritory outside the Re-
serves?
Mr. CILLIE:Even there, 1 would not be surprised if opportunities are,
al1 the tinit:, opening up on a limited scnle, but the opportunitiesare
certainly not going to beunlimitcd.
Mr. GROS: Have there been any restrictions or alleviationsof the
job reservation policy,JO far asyou are awarc, within the last year?
hlr. CILLIE:The job reservation policy is a very, very flexible policy538 SOUTH WEST AFRICA
indeed. 1 have not got the details here, but the job reservation policy is
being applied with the greatest flexibility al1the timc.
Mr. G~oss: By flexibility, you mean that the ceilings are being raised?
races in certain areas of employrnent and the flexibilities corne in when
you raise either the percentage of Whites or the percentage of non-
White or Rlacks or Rrowns or w-hatever you have, because this is not
merely a question of reservation asbetween Whites and non-Whites, it
is a question also of reservations between these various groups.
Mr. G~oss: I am ta1king only about the ceiling set upon a person be-
cause he is non-White. There are such ceilings, are there, applicable in
the Territory?
Aïr. CILL~E:Yes, but now again ...
Mr. G~oss: You cannot answer that question?
Mr. CILLIE:It is a vaned position altogether because thereis no ceiling
to a non-Imite doctor, following his profession in the southern sector,
there is no ceiling atail to that. In certain areas of employment there
are certain limitations, but it is not a universal ceiling that keeps every-
body down to the levcl of ...
Mr. GROSS: 1dare Saythat there would be no universal ceilings, except
thé blue sky. 1 was just asking whether there 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-ilihites, solely on
the basis of their beingnon-White?
Mr.CILLIE:Yes, as long as you Say this is a selective process and not
a...
Mr. GROSSY :ou cannot answer that, yes or no?
The PRESIDEHTL : et the witness answer his question.
Mr. CILLIE:It is not a general ceiling. Your question seems to imply
thatthere isa sort of general ceilikgeepingeverybody down. That is not
the position.
Mr. GROSS:1 am not implying anything, sir. Can you tell the Court
ïvhether or not there are any ceilings placed upon economic advance-
non-White?regard to non-Whites, solely on the basis that a person is a
Mr. CILLIE:Are you talking about the southern sector, now?
Mr. GROSS:Yes, sir.
hfr. CILLIE:Yes.
Mr. G~oss: That is ., .
Mr. CILLIET :he answer is yes.
Mr. GROSS:And the answer is "yes" to the question that there are
ceilings placed upon non-IVhites, solely because they are non-Ihites?
1s that correct?
air. CILLIE:XO,1 would Say no. If you put it like that, 1 would say
placed upon them because they do not belong ta the White group.
Mr. G~oss: You would prefer to state it that way, sir?
Mr. CILLIE:Yes.
Mr. GROSS:Al1right, sir. Now, I would like to refer to the testimony
ofProfessor Bruwer on 6 JuIy, at page 296, supra, in which Professor
Bmwer was asked to define the term "integration" and he stated as
follows : WITNESSES AND EXPERTS 539
"1 would Saytliat integration would be where you create a society
by giving rights and privileges to members of other groups, who
have already gottheir rights and privileges in another area, in that
specifii: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 al1the rights and privileges con-
nected witti the economy of that country". Would you acccpt that as a
definition of economic integration?
Mr. CILLIEW : ell, I would have to think that over. 1 would not put
it exactly like that, but it sounds to me more or correct.
hlrGROSÇ :ow, you having used the phrase "economic integration",
1 should like to ask you, again, if 1 have asked you before, hou7you
define that term, in your usage of it?
hlr. CILLIEI:t is very difficult. You know, you sornetimes think that
you have a cIear idea of these concepts and then when you have really
to define it, it becomes rather difficult. Economic integration, to me,
would be the idea of what 1 cal1a 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, norentia-
tions, no discriminations aii.
Mr.CILLIESNU pon group affiliations, at all.
3lr.GROSS :pon group affiliations. where the individual wouldbe
given economic opportunities in accordance with his innate capability,
quality, capacity, would that be upithinyour concept?
Mr.CILLIE : es.In one area, in one economic structure.
>Ir. GROSSW : ell, we are talking now about a ~articular area and a
particular economic structure, to \vit, the southern sector, inorder
to avoid confusion in the Court's mind, which has sometimcs been
engendered in mine. as to whether we are talking about one area as
againsi another or williin one area, if you will bear with me, we wiil
.confine ourselves, as I said at the outset of this line of questions, to the
soutliern sector outside the Reserves.
The PRESIDEXT :OUasked him what he meant by an integrated
cconomic society.
Mr. GROÇS: Economic integration within this area, yes, sir.
The PRESIDEN That was at large was it iiot?
àIr.GROSS: If it W~S,sir, then 1 will apologize to the witness for
having forgotten the pointofmy 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 tothe limitedarea? 1 am
nohlr. CILLIE:Ires, I would have to change rny terminology, but it would
be the same sort of idea of a one-nation concept operatingthat area.
?.Ir.GROSS N:OW, within thisarea.Professor Bruwer, in his testimony
at page 319,supra,in response to a question, testified-1wiIlqualify
this by saying "in effect" because it is a fairly lengthy exchangc but the
"effect"was, and I will ask you to comment about it, assuming 1am
correct in my paraphrase of it-that "there will always be a need for
non-White labour in the White sector". Do yoii agreewith that state-
ment, sir?54O SOUTH \TEST AFRICA
Mr. CILLIE:Always iça very long time.
Mr. GROSS:Would you then agree with the folloiving statement,
which is more specific? It appears at page 320 of the same verbatim.
1 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 hlr. Hruwcr replied "Mr. President, that is correct, for the
present and the foreseeable future". Would you agree with that?
Mr. CILLIE:That would be a better ...
Mr. GROSS F:or the foreseeable future?
Mr. CILLIE:Yes.
Bir. GROSS:That non-White labour iç an iiidispensable feature for
the functioning of the "White economy"?
Mr. CILLIE:As 1told you, 1have no very close knowledge of the local
conditions in that area, but 1 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?
Afr.CILLIE: tVe would probably follow the line that ProfesçorBrii~ver
has taken.
Mr. GROSS: NOW,1 would like to clarify, for the benefit the Court,
the basic eIement 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 territorieç, different areas, economically speaking?
AIr.CILLIE I am not quite surewhat yon are drjvjng at. It docs en-
visage a substantial physical separation, but there is no idea of realky
cutting up the South African economy . ..
&Ir.GROSS: South West Africa.
hlr.CILLIE: ... South IVest African or South African economy in
watertight compartments. That \vould be utter foolishness.
hlr. G~oss: Well, just to avoid more general lems than the question
may warrant. phyçical separation in the econornic contest-by that 1
rneant, does the policy of separate development or apartheid contcmplate
the physical separation of non-Whites from the White economy, in any
area of South West Africa?
Mr. CILLIE: Yes. You said substantial, you used the qualification
"substantia1"-you have now made it absolute.
Mr. GROSS1 :have now said "any", yes.
Mr. CILLIE: Yes, certainly, if you have hoinelandç for people, you
expect that as these lands develop, that a substantia1 majority of them
will, in the end, makc their home there, make their living there.
Mr. G~oss: There will then be, under this pre~niseof separate develop-
ment, never a total physical separation, from the standpoint of the
operation of the "White economy", so-called, in South West Africa?
1s tliat correct?
Mr. CILLIE: NO, no, we shall need them and they will need us, for a
long time to corne, you see. Imean, 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.
Alr. CROSS:And that isin the foreseeable future?
Mr. CILLIE: In the foreseeable future.
hlr. G~oss: Now, with respect to those non-IVhites who \irill be inel- \VITSESSES AND EXPERTS 54I
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 theifreedoms, so long as they remain
in the "White economy"?
Mr. CILLIE: That was rather difficult to understancl, but as 1 under-
stood it, thereisno question of forcibly making a physical scpar t'on ...
hlr.GROSS: Perhaps 1 may restate my question, sir. With respect to
the non-Whites who remain for any reason in the "White economy",
will they, under the policy of separate development, be subject to limita-
tions upon their freedoms, such as, for exarnple, job reservation?
PlIr.LILLIE: Yes, but with the various flesibilities that we do have
in changing circumstances.
Mr. G~oss: Rut, in principle, asamatter of poIicy, tiiere will be some
limitations imposed by reason of their colour. 1s that correct?
Mr. CILLIE It is not a question ofcolour. Itis not rnainly a question
of colour, it isa question of different peoples. These people are lesser
developed, they are different from us and they haven't attained the
Western standard of living. 1 don't know why you are concentrating
on colour.
Mr. GROSS:1 an1 not concentrating on colour, sir, except that it seerned
that the Oclendanl Commission constantly uses the expressions"White"
and "non-White", and 1was refcrring to colour in the sense in which
the Odendaal Commission used the word "White" or "non-White". 1liad
no other meaning in mind. Xow, just to clarify the answertomy rlueçtion,
wouId a non-\.Vhite pcrson, who rernained in the economy, then be sub-
ject to restrictions or ceilings. a matter of policy. under the doctrine
or policy of apartheid?
Air.CILLIE : The ceilings could be raised in certain c'asIn.otlier cases,
the ceilings do not exist.1 told you a non-White doctor was quite free
to operate in that sphcre.
Mr. G~oss: SO that thcre is no poIicy or principle. witli regard to
ceilings placed on the advancement of non-l\qiites in the "White ccon-
ornyP7 A
Mr. CILLIE:NO, this is an empincal policy. It is not: a question of
principle that you have Ii~nitations and keep them there for cver, never
Iift them and never adapt them. This is a changing situation.
Mr. GROSS: DO YOU foresee tlicn, sir, that the restrictions, or ccilings,
or limitations will beliftecl with respect to the non-Whitcs in the "White
economy" 7
Mr. CILLIF,:In soine cases they don't exist now.
hlr. GROS?,:Where they do esist now-would you answer my question
in those terms? 110yoii foresee that they will be lifted in the policy of
apartheid?
hIr. CILLIE: 1 cari see them being adapted, but as I see things at the
moment I cannot sce some of them being lifted in the foreseeabie future.
&Ir. G~oss: So that some will remain? Would you Say that it was a
fair interpretation of your testimony that those whicli rcrnain will be
retained on the ground of preventiag ttie jVhite group from developing
jealousies,or other emotions, which will preclude them irom being fair
trustees? 1sthat a fair paraphrase of your testimony, sir?
AZr. CILLE: NO, 1don't think so. These people will certainly not stay
there if greater opportunities open up to them back in their tiomelands.
If there were more warlr therc, more advancement and no limitations542 SOUTH WEST AFRIC.4
at all in their particular sphereof employement, they would prefer to
go back. Nothing woulr! prevent them.
hlr. G~oss: Now, this is what 1 was referring to before about the
problem of remaining within the area which 1 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 yourown way)-what would be a fair
explanation of the reason why certain ceilings will be irnposed on a non-
White who remains in the White economy, other than the one I have
me..ione-? What reasons would you assign for the maintenance of
ceilings?
hfr. CILLIE:Rut 1told you that there were tliere two considerations:
on the one hand, 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 aIso the object,
in certain cases, whether you really want this particular Herero or Ovam-
bo to go back to his horneland and to serve his people there. On the
one side you could Say itis 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, first, if 1 understood you
correctly, to prevent encroachment on the White and, secondly, to facil-
itate the White serving as a good guardian. 1s that a fair paraphrase?
hlr.CILLIE: That is only one part of the story.
Mr. Gxoss: Are there any other factors relevant to the non-White
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
homelandç.
&Ir. GRQSS:Do 1 understand you to saythat the ceilings imposed
upon the non-White are designed to encourage him to leave the area?
Is that what you meant?
Mr. CILLIE:Yes. Well, you put it rather as if it were a question of
driving him out. Ifyou have a ceiling here andyou don't have a ceiling
there, people are inclined, if the economic possibilities are there, to prefet
the area where there is no ceiling.
Mr. G~oss: That would be an observable human phenomenon, would
you say, sir?
Mr. CILLIE:Ires, 1think a Spaniard would rather not work in Holland,
he would liketo work in Spain if the economic opportunities were there.
Mr. GROSS: If Holland limited his freedom?
Mr. CILLIE: They do.
Mr. GROSS: 1 did not know that, sir. Now, I would like to read to
you a quotation from the verbatim record at page 317, s@ru, in which
Professor Bruwer responded to a question 1 asked him, my question
being :
"So that an individual and his family, who were born, perhaps,
in the White sector, have the option of re~naining there so long as
he pays the price of the limitation upon his frcedom, or else taking
himself and his family and removing outside the area. 1sthat the
alternative posed by the Odendaal Commission?" WJTNESSES AND EXPERTS 543
and Mr. Bruwer answered:
"Mr. President, that is the alternative within this frarnework
[meaning the framework of the policy of apartheidj."
Do you agree with Mr. Bruwer in his response to me?
Mr. CILLIE:Yes.
Mr. GROSS LVouldyou characterize thissituationin terms of an option
to remain or escape? LVouldyou accept that characterization?
hlr. CILLIE:Escape is a very hard word in this connection.
Mr. GROSS : won't press it, sir. You have referred several times in
pour testiniony, if 1 correctly understood it, once in particular, to re-
drawing the map of South West Africa, if 1understood 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-governinstates, 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 West
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 re-drawing the inap of South West Africa?
Mr. CILLIE: 1 would think not.
Mr. GROSS: MJhen you say "the way we have chosen", what, sir, do
you mean I)y "we"? Who is"we"?
Mr. CILL~E:Yes, that is rather a broad "we". 1 think 1 was thinking
generally ofthe Govcrnment and the ruling partp in South Africa.
Mr. GROSS:Then, if 1 understand you correctly, that would be a
unilateral determination made by the ruling party, the ruling people?
Was that the phrase you used in your testimony?
Mr. CILLIE: If you want to cal1it that.
Mr. G~oss: 1wouldn't care what you wish to cal1 it, sir, 1 was just
wondering what your meaning was, whether or not the "we" meant the
ruling White group in the context of your cxpression.
Mr. CILLIE: Ires,the ruling White party, the ruling White Govern-
ment in South Africa. One would not like to include in this general-
ization the whole ofthe Opposition.
Mr. G~oss: Now, you also referred in your testimony, according to
my notes, to the factthat "there will arise new possibilitieofcontact
and consultation and it stands to reason that as children grow up their
wishes have to be taken into account". Were you using the analogy of
the child tci al1of the non-Whites,asa group in South West Africa?
hir. CILLIE:As groups.
Rlr. GROSSD : O you accept thc term "group" as applying to non-
Whites as such?
Mr. CILLEE:NO.
Mr. G~oss: In respect of the relationship between White and non-
White, hou-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. CILLIE: But there is no collectivity of the non-Whites. Except
in one's mind, there is no collectivity of non-Whites.
The PRESIDENT:There is amathematical collectivity, 1suppose.
Jfr.GROSSN :ow, I am referring, sir, to the collectivity which is com-544 SOUTH WEST APRICA
posed of persons whose freedoms, or opportunities, are established or
lirnited on the basis of their classification asnon-Wh1sthat a sufficient
designation of a collectivity?
MI+ C.ILLIE:But there are differentiations between them too, you çee.
It is not a question of a universal set of limitations imposed upon al1
non-IVhites inSouth IiTestAfrica, orin South Africa. There are differen-
tiations between these various groups.
blr. G~oss: Are you aware of any legislation which fixes rights, or
limits rights or freedoms, such as job reservation, whichis based upon
the mere fact of being non-White?
.&Ir.CILLIE:I am not ço sure. Yes, you could have some legislation.
Mr. GROSS : ou could have-but do you, sir?
Rlr. CILLIE: 1 think we have. That may happen. But 1 am just sug-
gesting to youthat there is no such thing aa universal set of limitations
applying to everybody.
Mr. GROSÇ:1 am not intending to refer to universals, sir.1 would
Iike, however, to ask you a few niore questions and conclude.
Yoii said, in your testimony, that you could foresee at least one Black
state in South IfTest Africa. Was this a correct rendition of your testi-
mony ?
Mr. CILLIE: Yes, thatRas a persona1 opinion.
Mr. G~oss: Kow, is it an opinion of the NationaIist Party or the
Government, so far as you are aware?
Mr. CILLIE: No, 1 think it is a general idea amongst nationalists.
I don't think it has heen formulated in a policy statement, but you can
see that some sort of viable state could be forrried out of Ovamboland.
Mr. G~oss: And do you foreseeany other viable, so-called Black states
in South West Africa?
>Ir.CILLIE: Not very easily, no. 1 can see some collections, if they
want to get together. They could perhays form collectivities, as you
cal1it.
Mr. G~oss: Rriefly, in responding to Mr. de Villiers' questionas tu
what you regard as threats to orderly evolution, you referred to threat
of "encroachment" by onegroup upon the "preserves" ofanother. Would
you apply that statement specificallyto the southern sector outside the
Reserves, the so-called modern economy of South West Africa? \mat
would be the "preserves" of whom, and what would constitute "encroach-
ment", in your use of the phrase?
Mr. CILLIE: Well, that is very difficuIt. You ask me for examples
now from a territory that1 don't know very closely. There is certainly
not a verÿ highly developed economy in the southern sector of South
West -4frica and these encroachments, ordangers of encroachment, really
arise in industrial situations.
Mr.GROSS: Excuse me, sir, have you finished? Would the "encroach-
ments" you referto include economic competitiori?
Mr. CILLIE: Yes, unfair economic cornpetition.
hlr. G~oss: What do you mean by "unfair", sir, unfair by reason of
race or are thereany other criteria?
Mr. CILLIE: Well, people on a lower level of civilization are sometimes
willing to work at lower rates and you have to protect the civilized
standards.
Mr. Grioss: But would this, or would it not, be a justification for
setting ceilings on the non-White? WITNESSES AND EXPERTS 545
Nr. CILLIE:It would certainly be a justification for demarcating rights
and demarcating ...
Mr.GROS: 1 asked you about setting a ceiling on non-Whites-would
that be a justification or expIanation for settina ceiling on the level
which a non-White could attain?
Mr. CILLIE: WelI, if you can remove the ceiling with safety to group
relations, certainly, by a11means let us do so. But ifyou have ceilings
for agood reason, because if they were removed you would have an ugly
group relations problem on your handç, 1 woilld Say, keep the ceilings
rather thaii have that.
Mr. G~oss: 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,orseparate devel-
opment ?
Mr. CILLIE: "Cushioning"-1 think that again .is a loaded word,
Mr. Preçident.
hlr. G~oss: IVhat word would you subçtitute then?
The PRESIDENT 1:think you had better substitute the word ÿourself
because ÿou are seeking an answer, rather than ask the witness, Mr. Gross.
Mr. GRCISSI:Vell, 1 Iike the word "cushioning". Would you respond
in the following form? Does the prevention or limitation of cornpetition
between White and non-White enter into the policy of apartheid, or
separate development? Does it pIay a roIe inthe policy itself?
Nr. CILLIE:Certainly, the limitation of competition in the sense that
you cannc~t have indiscriminate competition between these various
groups.
&Ir. GROSS:hlr. President, 1 have a few more questions. 1 heard the
bell.1would like the guidance of the President.May 1 continue? 1 think
1 can finish, sir.
The PRESIDEN :Yesterday, Mr. Grosç, you said you could finish your
cross-esamination of a witness in a quarter of an hour if the Court
continued into the Iuncheon hour, lvhich the Court did not see fit to
do, but ithas taken you an hour today to complete that task. How
long do you Say it will taire you tonight?
hlr. GRCISÇ:About five minutes. May 1 ask, sir, is the Court to have
a session tomorrow morning?
The PREÇIDENT: 1 must first direct a question to Mr. de Villiers.
Alr.de Villiers, is the present witness your lnst witness before the summer
recess?
Mr. DE VILLIERS:Yes, Mr. President. 1did not expect this degree of
CO-operation in curtailrnent of the time tobe taken by the witness, so
there is nobody to follow him.
The PRESIDENT:Very weI1,then perhaps we rnight continue and see
whether we can conclude this evening.
Mr. GROSS: l'es,sir. Thank you for your patience, sir.1 really would
like to address myself to not more than two more lines of question.
These fa11into the general area of testimony ~vith respect to education
and 1 shouId liketo refer tothe Reply of the Applicants, aIV, page 45r,
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 suffrageJ'. 1
should like to ask your comment on the following brief quotations,
which I should like to read to you, sir.546 SOUTH WEST AFRICA
The firstisa quotation from the Repertory of PracticeofUfzitedNations
Organs which is cited in the footnote.
"Among the forms of development siipported by the actions of
the Trusteeship Council, either by approval of existing policies or
by recommendation, has been ... the introduction of rnethods of
suffrage 3,ading 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 aduit suffrage? Would that be
compatible with the policy of apartheid or separate development?
Mr. CILLIE : ell universal adult suffrage isquite compatible with
the poiicy of apartheid as long asyou define the group in which tkis
voting power operates.
Mr. GROÇS: May 1 define it for you,sir, sothat you can answer my
question briefly and responsively? 1 define the group as al1 those who
may be determined to be qualifieil in a geographical area specifically in
this case South Ilrest Africa.
Mr. CILLIE: And you are asking my opinion on that as a prospect
for South West Africa?
MT. GROSÇ: Yes, sir,that isal11 am talking about, sir.
Mr. CILLIE:It would mean chaos,
Mr. GROSS: It would mean chaos, And then secondly-1 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-
itantç 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. CILLIE:Yes, if 1 heard cosrectly 1 think that is quite a good
standard but then 1 am not'quite sure that Ihe:ird correctly.
Mr. G~oss:
"Such democratic reforms as \vil1eventually give the indigenous
inhabitants of the Truçt Territory the right of suffrage and an in-
creaçing degree of participation in the executive, leg-islative and
judicial organsof government .. ."
Mr. CILLIE:Yes, if that word "organs" means different organs for the
various groups 1 agree with it.
Mr. G~oss: 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. CILLIE: Yes, as 1 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, ifthey
want to federate Say, a certain group of peoples inclnding perliaps the
White people in South West Africa, if they want to federate, 1 would
agree, because then they have awill of their own.
Mr. GROSS :ut it would have to be, inyour opinion, in order to avoid WITNEÇSES AND EXPERTS 547
whatever the word you used was, "disaster" 1 think, an agreement
among separate groups, is that correct, sir?
Mr. CILLIE l'es.
i\lr. G~oss:And finally the Trusteeship Council 1950 following upon
a recommendation to the British administering authority of Togoland,
in thiscase,noted with satisfaction,and 1quote:
".. .that a beginning hasbeen proposed by the Coiissey Committee
in the introductionof methods of suffrage on al1 levels of govern-
ment, appreciating the difficulty of introducing at oncca modern
systeni of suffrage, recornmends that al1 necessary educative mea-
sures be undertaken to prepare the population forthe adoption of
universal suffrage with the least possibdelay."
May 1ask you,sir, first do you regarthisstandard, asthus expressed
by the United Wations organ in question, a revolutionary standard or
an evolutionarp standard?
Mr. CILLIE 1:don't know enough about Togoland. It may be perfectly
al1right for Togoland.
Mr. GROS: Therefore you would not be prepared to rejcct this asa
principle or standard in certain areas?
Blr. CILLIE: NO, certninly if they are a fairly homogeneous people or
you can weld them together by some system of education in the fore-
seeable future,1 see no objection to that sort o.. .
Mr. GROÇS: But in South West Africa you would not agree to any of
the elements of this-"the introduction of methods of suffrage on al1
Levelsof government, appreciating the difficulty of introducing at once
a modern systern of suffragev-would you disagree with that in South
West A frica?
MT. CILI-IE :es, but in South West Africa you have these very dis-
parate elernents, and 1 cannot çee you getting them to work in one
systern atall, unless you impose with force majeure,andthat iscertainly
going to start enrnities betweenthe various groups that you \rlill never
see the end of.
hfr.GROSS:And may 1 ask the ncxt element? Do you agree with this
element of the United Nations standard which enters into those for
bvhjch the hfricans triily..?
The PRIIÇIDENT: It is not a United Nations standard, it isa United
Nations oliservation in relation to one particular trusteeship territory.
$Ir.GROSS1 :accept that correction, sir.
"recommends thst al1necessary educative measures be undertaken
toprepare 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 consetluences?
Mr. CILLIE: Ko, not in that fom, not as a single territorial unit ar
single political system. that cannobe done.
.Mr. GRC)SS A:nd "educative rneasures"?
Mr. CILLIE:We can do the cducation all nght.
Mr. GROSS:tVould the educative measures prepare the population
for the adoption of universal suffrage?ould that be incompatible with
the situation in South West Africa?
Mr. CILLIE:1 do not see how education is going to make an Herero
less of anWerero. It is going to make him more of an Werero, and that548 SOUTH WEST AFRICA
goes for an Ovambo too, and for ail the peoples of South ilTest Africa.
Rlr.GROSS O:ne final question, ;\Ir. President1 may. The Counter-
Mernorial, urhich is one of the Respondent's pleadings in the case, in
Book IV, Chapter VII, at II, page 471,states as follows:
"The policy of separate developrnent is not based on a concept
of çuperiority or inferiority, but merely on the fact of people being
different."
Now, would you regard the assignment ofpriority rightsto N'bites
in the White sector of South West Africa or to "white domination"-1
quote the phrase by Prime Jlinister Verwoerd which is quoted in the
Rejoinder, V, page 213-or your own phrase "White rule", as being
compatible ~~ilitequalitybet~veen the Whites and the non-!\hites?
hlr. CILLIE :his is balanced bÿ priority rights for the vanous non-
White peoples in other parts of South ijTest Africa.
3Tr. G~oss: Within the area itself in which the non-liThites are "ab-
sorbed in the economy"-in the words of the Odendaal Commission
report-and where in theforeseeabIe future they wil be needed-in that
context aould you regard these phenomena, White domination and so
forth that I have just mentioned, as being compatible with equaIity
between Whites and non-Whites in that sector?
&Ir.CILLII ::NO, there is no equality of Whites and non-ilihites in the
White sector, just as there is eventually going to bc no equality between
Whites and Ovarnbos in Ovamboland.
Mr. G~oss: Xow, confining ourselves finally to the White sector, is
the economic subordination of the non-Whites iri ttiat sector equivalent
to "inferiority" in any sense of the term?
hïr. CILLIE: 13ut you talk as if these people are doing the \Vhites a
wonderful one-sided favour by morking for thcm. Thesc people need
work, they conle there to work, they get paid forit. am not aware of a
tembly passionate urge in this particular sector of South \l'est Africa
for breaking ccilings or changing racial demarcations, 1 have never
heard ofit.
Mr. GROSS: Or economic equality?
Mr. CILLIE1 : have never heard of a tremendous movemerit there,
because these people are fairlylow down in the ecoxiomicscale, and, of
course, as they corne up,adjustments are going io be made.
Mr. GROSS: 'l'hank you,&Ir.President, for your patience.
[PubEichearing of14 JuLy ~9651
The YRESIDENT T:he hearing is resümed, and I cal1 upori Judge
Forster wfto desires to piit a question to the witness.
Judge FORSTER M:onsieur l'espert, pouvez-vous me dire. en vo!re
qualité d'espert en apartheid,le souci majeur qui dicta l'application
de l'afiartheid dans le Sud-Ouest africain. Est-ce le souci d'accroître
le bien-êtrematériel et moral, ainsi que Ie progrès social des habitants
du Territoire ou bien est-ce le souci de protéger les intérêts desBlancs
moins nombreus que les indigènes.
hlr.CILLIE :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 policythere is fotlowed for the pro-
tection ofal1grorips. Do 1 have to expand on that, hlr.President? WITNESSES AND EXPERTS 549
The PRESIDENT:NO, YOU just give the answer that you feel that you
should give to any question which is put to you. 1s there any further
question, Judge Forster?
Judge FORSTER:Non, merci, Monsieur le Président.
The PRESIDENT : ir Louis?
Judge Sir Louis MBANEFO: My question seems to lead off from the
last question, and in doing s1 would like to refer you to some passages
of your evidence. Some of them 1 shall quote from the verbatim record
of yesterday morning; the transcript of your evidence of yesterday
evening has not yet been supplied, so 1 have got to read from my own
notes, and if it is nol correct, will you please correct me?
Mr. CILLIE: 1shall do so.
Judge Sir Louis MBANEFO N:OW,in the verbatim record at page 508,
sufiru,you were asked to give the main determinant of the policies of
differentiation, and at pag512, setpra, you said:
"W<..Il,as happened elsewhere, our relationships with these
peoples became more urgent as the tide of anti-colonialisrn gathered
force cluring this century. As their aspirations ambitions grew,
we, the ruling White Africans in these territories, in SoutAfrica
as well as South West Afnca, had to sec to it thaOur trusteeship
did not degenerate into oppression."
1 take it you mean oppression by the non-Phites against the LNiites?
Mr. CILLIE:NO, that meant that in Our trusteesliip as White people
we did not, as the urge to freedom gathered mamentum 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-JVhite people.
Judge Sir Louis MBANEFO Thank you. And you said, further down:
"These solutions [bypeople who wanted integration] do open up
aprospect of theWhite Africans in these two countries being politi-
cally ovenvhelmed 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. 1 would like to put iteven more broadly than that
because, as 1 stated somewhere else, thereis no single people in South
Africa or South \;t'est Africa that forms a majority. We are in fact al1
minority peoples.
Judge Sir Louis R~BANEF :l'es, you said that yesterday.
Mr. CILLIE: Yes, and as regards non-White numbers, one could
envisage a political rnovement 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 '1yliitpeople but al1 minority
peoples-in fact, the whole of the South African population, in the end.
Judge Sir Louis MB.~KEFO A:nd you dso said, at page 512, st4pra:
<Urhen dealing with majorities, or collections of minorities that
couId 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. CILLIE :Yes.
Judge Sir Louis MBANEPO N:ow the question 1 want to ask: is it 55O SOUTH WEST AFRICA
correct to Say that the basic reason for evolving the policy of apartheid
was to safeguard what one of your coileagues called "White nationalism"
in South Africa?
MI.CILLIE: That was a basic reason.
Judge Sir LouisMRANEF OThat is a basic reason?
Mr. CILLIE:That is a basic reason.
Judge SirLouis MBANEFO : O avoid being overwhelrned?
Mr. CILLIE:Yes.
Judge SirLouis MBANEFO B:y the more nurnerous amount of people?
Mr. CILLIE:Yes, to avoid losing our freedom, to avoid losing the free-
dom that we won in a very hard way in South Africa.
Judge Sir Louis RIBANEFOT :hatassumes a basic antagonism between
the two nationalisms.
Mr. CJLLIE:Basic antagonism? No, not necessarilyI do not see why
there should be a basic antagonism at all.
Judge Sir Louis MRANEFOB : ut if that is so, then why shothe mere
mention of integration raise fears amongst the nlindof the people?
hlr.CILLIE: We11,you do not want to subject your own nationalism
to any other sort of nationalisrn-Imean, it does raise fears, as it would
raise fears in any similar situation where you have tu70peoples, Say the
Dutch people and the German people. Their nationalisms may not be
basically antagonistic, but1 think that as soon as you start trying to
integrate on thatbasis,ifyou tryto integrate thDiitch with the German
eople, you immediately wouId see the most awful results in thform of
. R ostity and bitterness between these two peoples. Nationalisrns can
live together, but as soon as theris thethreat of one overwhdming the
other, then you have a situation almost bordering on war. 1 do not see
that there isany-there need not be any basic hostility; iisa question
of coexistence, coexistence of two different nationalisms.
Judge Sir Louis MBANEFO :our example of the Dutch and the Ger-
mans 1 am afraid 1find difficult, because the Dutchand the Germans
do not occupy the same territory, except in the time of occupation during
the war.
Mr. CILLIE: Yes, but 1 did yesterday go into the question that we
are demarcating, that we are re-drawing, in a way, the map of South
Afric and South West Africa; we are beginni~ito make these dernarca-
tions.
Judge Sir Louis MBANEFOm : at is hoped tobe achieved ultimately?
Mr. CILLIE: h peaceful coexistence, a peaceful CO-operation, between
these various peoples.
Judge Sir Louis MBANEFOA : nd uou say that this cannot be achieved
in any other way escept by a policy of apartheid?
Mr.CILLIE: Not that 1 can see,sir;1 cannot envisage it. There are
people in South Africa who differ frorn me andtake 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 ha
been losing ground al1 along the line during the last, IOyto 20years.
Quite objectivelyI do not think you can win the White people of South
Africa for that prospect.
Judge Sir Louis R~EANEFO 1: just want to get cleaiii mymind, you
see, the whole pictureYou talk of political separation, but you do not
talk of economic separation. WITNESSES AND EXPERTS 55x
Mr. CILLIE:No.
Judge Sir Louis MBANEFO 1: it true that in apartheid-1believe you
said something simiiar yesterday, but if I am wrong, wili you piease
correct me-you do not go the whole way in talking of geographical
separation or territorial separatioof the groups?
Blr. CILLIE:XO, only as much as 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 taIk about a complete
physical separation with everybody on this side of the Lineand al1other
people on the other side othe lirie-itdoes not make sense in the modem
world-1 do not think so.
Judge Sir Louis MBANEFO Y OUaccept the characterization that it
makes economic nonsense?
hlr. C~LLIE:Yes-it makes economic nonsense if you build a sort of
wall between pcoplcs ~ho are so very closely inter-locked and so closely
inter-dependent in many ways, and 1 donot see that political separation
involves economic separation-you can have a great degree of economic
inter-dependence and still have political independence.
Judge Sir Louis MBANEFO So that in the field of economy, apartheid
doeç not ofer 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 doeç offer the prospect of intense development of
their territories, of the various non-White liomelands; it does offer that
prospect.
Judge Sir Louis MRANEFO:Yes, but already the Mandatory is com-
mitted to do that. under the Mandate. It is comrnitted to develop the
Temtory materially, socially and morally tothe maximum.
&Ir.CILLIE:You see this is a CO-operation realiy, because the White
people, are the Ieading people in rnany respects inSouth Africa at
this moment, do offer the know-how, they offer the administrative and
technological abilities for the development 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 Louiç MBANEFOI:nter-Iocking in the economic field?
hlr. CILI~IEY: es,in various ways-by labour, by investment, in al1
sorts of ways-there is this inter-dependence an1 donot 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
Cornmon Narket, where you first had independence and now they are
working for cconomic inter-dependence with the retention of a large
measure of political independence. We çtart from the point where we
already have economic inter-dependence, and we tryto givethese various
non-White groups forms of self-government and foms of political self-
expression.
Judge Sir Louis MBANEFO N ow, 1 want to read to you from a state-
ment by Professor Logan, at page 405, sufira:
"In the case of the esceptional individual, sometimes the regula-
tions jintroduced in South West Africa] bear heavily upon him-I
think there is no questionofthis . .A few, yes,Ithink unquestion-
abIy are harmed by this; nFehave exactly the same thing in our own
societies."59 SOUTH WEST AFRICA
In the course of implementation ofthe policy this says a few peoplewiU
be harmed. Do you accept that?
hlr. CILLIE: \Ire get these odd cases in South Africa and we try our
best to accommodate them.
Judge Sir Louis ~IBANEFO T:he feiv1take it, are those who have ambi-
tions to get higher,men of exceptional ability, and1 think also that in
the report by the Odendaal Commission it says that in the Ovambo area
you have approximately 40 per cent. of the popiilation are already liter-
ate, 40 per cent.ofthe population of Ovambo would give you something
like g5,ooo people. How 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 thispolicy?
3Ir. CILLIE:NO. 1 mean, being literate doenot inakeyou anexceptional
individual. 1 think, as far as 1 gather from your quotation, Professor
Logan was talking about "exceptional individuals" and, of course, we
need these people. Tf 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. 1 mean their own people
need them and we need them to build them up as leaders for their own
people. So, in fact1 think if cases of thakind are brought to the atten-
tion-and as 1have said, we have an open society and such cases can al-
rvaysbe brought to the attention ofthe authorities by way of the press,
by way of deputations and things like that-we do our best to accommo-
date these cases. As1 said yesterday, the poIicy uf separate development
is a dynarnic policy and it is capable of adjusting itself to the circum-
stances as they arise.
Judge Sir Louis &I;ZRANE VOhere 1 mentioned the 40 pcr cent.,1 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. CILLIE: 1could not really put afigure on tlie exceptional inclividu-
als in that particularcase.Education isgoing ahead there.Education is
a huge movement. You have to build it from the bottom up and you have
to ïvork up to the university standard. To lift the educational standards
of a people iiiot asimple process,itbecornes a wliole people's movement.
Judge Sir Louis MBANEFO F:r these few, they may be a thousand or
more people in SouthWest Africa. the policy offers them notliing. 1woiild
like to see what they get out of it-forthe misery that they suffer, what
do they get out of it?
Mr. CILLIE: No. This is not a question of rnisery, it ia question of,
in some cases, facilities not being available perhaps for further study,
and we are doing our best to çupply those deficienciesAfter al]. iveare
committed to separate development, we need al1the talent that we csn
get, al1the leadership that bvecan get arnong these people,andyou can
be assured that me are doing our best to accommodate all these people
who are of any use in leading their own people to self-expression and
self-realization.
Judge Sir Louis MBAXEFO I:e have been told in the course of this
sitting that anyBantu in South IlTestAfrica \vho goes abroad and studies
as an engineer should not expect ernployment iii the ll'hite sector because
they would not have him-rather that he would not be allowed to work
in a position ivherehe would have White people under him.
Rlr. CILLIE:Yes, that is rather dificult in South Africa-thatposition WITNESSES AND EXPERTS 553
is rather dclicate, but if we have a man like that, we shallhim apIace
in the homelands, certainly.
Judge SirLouis MBANEFO :ut the existence of that, ywould accept,
is unfair discrimination?
Mr. CILLIE :es, it bears rather hard oii a man like tliat if he has this
tremendous desire to work in the White area, but 1 do not think that
that is a position that is likely to aise-thscope for his talents and for
his know-how isal1the time being expanded inside the Bantu homelands,
and we sh:ilfinciquitea lot of work for him to do in those areas.
Judge Sir Louis ~ZBANEFQ No:w yon said, and if 1 am wrong please
correct me, that the whole idea in South \est Africa envisages having
at least one ilfrican State thawiilbe viable and othersthat willnot be
viable.
Mr. CILLIE1 :suggested that as rather a personal 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 personal opinion, because
it also depi:nds upon whether the Ovambos want to be a separate viable
state in theend.
Judge Sir LouisM~ANEFO 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? 1would like to get this clear because ...
lfr.CILIJE: Some of those units could obviously not be independent
states in any accepted sense.
The PRESIDEN T:e witness rnight complete his arlswer to the question.
Mr. CILLIE :ome of them are so small and the numbers are so low
that obviously you cannot speak of al1 those smaller areas as viable
states. Yoii cannot envisage that, not for the foreseeable future. But the
immediate outlook is that we want them to be self-respecting peoples,
Ive 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 orgnnized way, not
merely by way of individual agitators and so on. You want to build up
their personalities and then ÿou can talk to them.
Judge Sir Louis MBANEFO Y:OU see, what 1find difficult is the term
"self-governn-ient". That is a very nebulous term because you probably
have about 50 degrees of self-government.
&Ir.CILI.IE: Yes, 1 agree with you. The degree that isattained by
people depends on so many factors that youjust have tostart the process
and see where you get, to see what these peopieç are capable of and
whether a people is viable ornot. Ifthey cannot build a viable state or
viable govcirnment, then you have to make other arrangements, perhapç
bring the various groups together and ask them: How do you see your
future? This is not a rnatter for unilateral dccisioI,explained yester-
day.
Judge Sir Louis MBAKEFO Could YOU,for instance, say what is the
degree of self-government you expect them to attain in ten years from
now?
Mr. CILLIE1 : wouldn't Iike to bind myself to tirnctables at al1in these
matters. Tirnetables can be very dangerous. l'ou can work on a tentative
timetable and 1 do not know enough about these territories and about
the administration there even to suggest a tentative timetable, but 1554 SOUTH WEST AFRICA
should think that the administration itself would worto some sort of
timetable. They would Say: next year Ive 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 worko a very flexible timetable
and 1 think that is the way things are being done in South Africa and in
South West Africa.
Judge Sir Louis MBANEFO1 : take it, then, that in introducing the
policy to the peopleyou have to explain it to them andget their approval
or consent-some sort of consent?
hlr.CILLI EYes.
Judge Sir LouisMBANEF ONOW,what would you be offering them that
wouId make them agree to the policy?
The PRESIDEET Y:OUmean, what are you doing now, or what !vil1
you do in the future?
Judge Sir Louis MBANEF :When you explain to the people you Sayto
them: Iook, this is what we are offering you under this policy, that you
\vil1 get, maybe next year, or ifive years' time, or ultimately. Have
you worked that out clearly in your mind?
Mr. CILLI ENo.That is the sort of thing that arises through the process.
There are alreadytraditionalorgans of expression amongst some ofhese
people, and asyou progress the whole process becomes a two-way process
and you are in constant consultation with these people. Their will be-
comes more and more important as they develop. Itis not a question of
promises, it is a question of CO-operationfrom datoday.
Judge Sir Louis MBANEFO D:O YOU envisage a situation where you
might n-ithdraw from that policyifit did not meet with the approval of
the people?
Mr. CILLIE Y:es. 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 again1 don'tthink there is
any evidence that these policies are rejecteby masses of people and
that they simply won't have anything to do with them.
Judge Sir Louis MBANEFO W:ell, they cannot reject it until they
understand what itis, and that is what1am trying to find out.
Mr. CILLIE Y:es, but it is being explained to themItis going to be
explained to them more and more, and they are going to be asked. to
CO-operatewith itCertainly,if,in the process, we find points of friction
and if their objections are valid, we shall make the necessasr accommoda-
tions.
Judge Sir LouisMBANEFO ": e", being the Government.
Mr. CILLIE Y:es.1 was talking in the sense of the administration, of
the ruling White people.
Judge Sir LouisMBANEFO A:nd would any adjustment involve adjust-
ing the position or attitude of the White population, or White national-
ism, if 1 use the expression as meaning the composite idea?
Mr. CILLI EWe are making adjustments al1the time. The buying of
land, for instance,isdone at the expense of 'vested White interestOf
course, they are paid for it, but it is mainly the White taxpayewho
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 SirLouis MBANEF NOow there is just one last quest1would
like to ask. There seerns to me to be an assumption that if a Native, an WITNI-SSES AND EXPERTS 555
Ovarnbo, 01Dama, wasgiven education, orput in a township, he wouldn't
want to go back to his homeland.
The PRESIDENT 1:s thia question or is it a statement?
Judge Sir Louis MBANEFO No, 1am saying that there is an assumption
in the evidence, in the formulation of this policy, that if a NativuPas
would not want to go back to his village.d here as the focal point, he
Mr. CILLIEW : ell, you could have cases like that. We do have cases
like that. 1 think that is a phenomenon that is not only true of people
in South IVest Africa. It is also a universal phenomenon, that people
cut loose from their originç and placesof birth and do not return. It is
rather sad, but there itis.
Judge Sir Louis MBAXEFO 1:don't want to start an argument about
that,but it doesn't secm to have been the experience in West Africa.
The PRESIDEST \:eil,1 don't think that statement can be made,
Judge Mbanefo.
Judge Sir Louis MBANEFO 1:am sorry. Why 1 mentioned that is
because yesterday you seemed to indicate that the person who is dis-
criminated against in the southern sector, outside the Keserves, wilI
have his corn~ensatioii by going back.
hlr. CILLIEY : eç, but 1 don't think that this matter of discrimination
in the southern sectoris as important as has been made out in the cross-
examination. 1 think this has been blown up. These are matters of life
and death,and these points are trivial, pifflingpoints which do not affect
the real case.
Judge Sir Louis MBANEFO L:ife and death for whom?
Mr. CILLIEI:t is life and death for al1the peoples of Southern Africa.
Judge Sir Louis MBANEFO A:nd for an educated h'ative who has a
ceiling puton his economic oppo~tunities it is more a matter of life and
death than for anybody ebe?
&Ir. CILLIEN : o, but, in fact, sir, these vast deprivations that are
sometimes imagined are not there. The people who work in the southern
sector-I siippose one has to go and look at them really to find the real
position. 1inean, \ve are an open society and injustice is brought to light
soJudge Sir Louis MBANEFOL :I'hat, then, is the purpose of the Job
Restriction Act?
Mr. CILLIEI: think 1 explained that yesterday, that these Acts are
there, on the one hand to guard against encroachments, to protect the
various peoples, to protect their sense of security, their security itself,
and on the other to encourage the various non-White peoples, if they are
arnbitious and are very, very capable men, to pursue their highest
ambitions rather in serving their own groups than in trying to compete
and, in a very difficult situation, to embitter group relations in South
Africa. On the one hand there is the negative aspect of protection and
on the other it does tend to channelize the ambitions and capacities of
these people.
The PRESIDENT 1:esire tonsk a fewquestions of &Ir.Cillie,but, before
1 do so, 1 wish to askthe 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
Africawithin the framework of a single territorial unit?I 556 SOUTH WEST AFRICA
alr.GROSS : o, sir.
The PRESIDENT :hank you. 1just desire to ask a few questions1 am
seeking onIy information.
In South Africa, as 1understand the position, the policy of apartheid,
or separate developmcnt, is a political policy based upsnclaimed neces-
sity to protect the White civilizatioofSouth Africa. 1s that correct?
MT.CILLIE:Yes, it is correct, Mr. President. It js miich more.
The YREÇIDEBT TOwhat estent is it beyond a political policy?
>Ir.CILLIE I:ha social aspects; ithas economic aspects and, asfar
as the protection of White civilization is concerned, it is also designed
to protect theevolutionarysituation.Itis not just aquestion ofprotecting
a group, it is protecting that group in al1 its relationships. You hava
very complicated network of relationships in Soiith Africa andthe policy
of apartheid is designed not only to protect the group as a physical,
separate, entity, but also to protect al1 these various relationshiand
also to make evolutionary development possible.
The PRESIDENT T:hat, 1 understand, as you have said, is the poIicy
in practice. That is the rnanner in which it is being, you Say, devel-
oped?
hlr.CILWE:l'es.
The PRESIDENT B:ut you told us yesterday about the original settle-
ment of the Cape and the extension of the areas of the iiThites' settle-
ment centuries ago farther north. so that there \vas established, as you
stated, a Western civilizationand that they established inSouth Africa
their homeIand and it is now their homeland, they have no other home-
land.
Mr. CILLIE: That is true.
The PRESIDENT T:hat involves upward of how many million people?
Mr. CILLIE :The White population is about three-and-a-quarter million
people.
The PRESIWENT And you Say that before 1948, certainly from the
early forties, the thinking was in political circl1ssuppose, primarily,
or was it in sociological circles.
&Ir.CILLIE: This was a whole rnovement involving many institutions
and organizationç, Blr. Prcsident. 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 al1 the time, both the churches and
the universities. This was a broad national thinking process that was
going on during those years.
The PRESIDEKTI:t was not thepolicy, then,createdby any particular
single individual or any single party.
Mr. CILLIE: 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 1 would name General
Herzog, because he was the man who started the idea, especiallyof
separate territorial development,of territorial separation, segregation
as it \iras called in those dayHe initiated that policy, butwe had to
speed 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 5years, or even less. In South Africa'therwas this con-
sidcrable speeding-up. General Herzog certainly never, as ftlçwe know,
thought jnterms of independent Black States. He did think in terms of WITNESSES AXD EXPERTS 557
self-governing Hlack areas. We had to take athis further you see, under
the pressuros of the times, and pressures of conscience too.
Thé PRESIDENT A:lthough it arose in themanner inwhich you de-
scribed, and you say was intended to be in the interests of al1the separate
communities-1 will cal1them- or groupings, nonetheless each grouping
would have an interest in it becausoftheir desire to maintain their own
separate national identity?
hIr.CILLIE Y:es, that is howwe thought about it.
The PKESIDEXT S u that, so far as the European people-we should
cd them South African, White, people-are concerned, in South Africa,
the policy is supportedby the majority or only by açmdl minonty to
protect their interestçasyou stated yesterday, as a \mite civilization
in their own homeland?
Nr. CILLIE:YOU SC^,ifYOU could strip the policy of a11its side issues,
L do think thatyou would find thatit is the vaçmajority of the South
African Whites who would support the basic principles of the policy,
but there are arguments about irnplementation and there are difierent
nuances. There are, in fact, aIso White people who do believe in a poIicy
of integraticin. It is vcry difficult in poligctsan exact division; the
issues are not always posed very clearly, thegct muddled up.
The PRESIDEXT1 : am aware of that!
Rlr.CILLI Ehcy doget muddled up and for me to say this is supported
by go per cent. ofthe White people would be presu~nptuous, because it
~vouldbe very difficult to prove.
The PREÇIDEXT :ou yourself, are unacquaintecl with South M'est
Africa, escept by reference?
&Ir.CILLIE:Tes, by a few visits and by reading and by the usual in-
formation tliatisat the disposa1of anewspaper editor.
The PRESIDEET Sir Louis hlbanefo has directed questions to you to
çeek 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 prccision as to what lies in the future?
Mr. CILLII~ YCS, 1think what Sir Louis wanted of me is a sort of blue-
print,and I thought that was the general tenor, to givamore complete
picture, and 1can apprcciate that desire. That is a very legitimate desire,
but this policy is, as 1 said, dynamic, it is an open-end policy, and you
have to see where you get as you move along.
The PRESIDENT !7ell,your concept then. is that the group or separate
development in South ifTestAfrica will follow an evolutionary course or
that itis the desire, rather, of the Administration, to follow an evolution-
ary course,in mhich the peoples of each particular group wiilhave full
liberties both political, social and othenvise, within their own groups but
will be unable to shnre the rights of others outside their groups?
Mr. CILLII::Yes, it will not be a complete separation like that,.u..
The PRESIDENT% : y and large?
Mr. CILLIE U y and large.
The PRESIDISN T:hen you speak about-this is a separate matter
altogether-the rilling 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 raciaI superiority?
&Ir.CILLIE X:O, 1 am very open-minded about the question of racial
superiority,hIr.President. 1 am not an anthropologist and people are
arguing abolit tliiç al1the tin1ekeep an opeii mind about it; there are SOUTH WEST AFRICA
558
facts of development in Western terms and of iinderdeveIoprnent, but 1
do not like using the words "superiority" or "inferiority" in these
contexts.
The PRESIDENT:That is ail I wanted to açk you.
fiIr.GROSS M:ayI expresson behalf ofthe Applicants,sir, our gratitude
for the patience with which the Court has listened to our case and to
wish the Iflembers of the Court and the honourable President a pleasant
summer, sir.
The PRESIDEXTY : es,hlr.de Villiers?
Mr. DE VILLIERSI: should very much like to associate myself with
what my learned friend haç said, on behalf of my colleagues and myself,
and I should like toadd in the list the very hard working Registrar and
his personnel.
The PRESIDEKT Th:e Court will adjourn, and before it does adjourn,
it would wish to the Agents and counsel of the Parties some opportunity,
during the t~o months of receçs, for relaxation from the heavy respon-
sibilities they have all carried during the course of this case.
noon, unless it is otherwise ordered and the Parties notified in theter-
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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)