INTERNATIONALCOURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRJCA;
LIBERIAvSOUTH AFRICA)
VOLUME XII
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIAc. AFRIQUE DU SUD)
VOLUME XIIAll rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice Abbreviated reference:
I.C.]. Pleadings, South West Africa,
Vol. XII
Référenceabrégée:
C.I.J. Mémoires,Sud-Ouest africain,
volXII
N° de vente: 336
Sales number: GENERALCONTENTSOFVOLUMES1-XII
Page
Volume I
Applications instituting proceedings . . . . . . . . . . . . 3
Memorials submitted by the Governments of Ethiopia and Liberia . .. 32
Preliminary Objections filed by the Government of the Republic of
South Africa . . . . . . . . . . . . . . . . . . . . . . , 2I2
Obseroations of the Governments of Ethiopia and Liberia . . . . .. 417
Volume II
Counter-Memorial -filedby the Government of the Republic of South
A frica . . . . . . . . . . . . . . . . . . . . . . . . . 1
Book 1. General introduction and Submissions . . . . . . . . 1
Book II. The Mandate . . . . . . . . . . . . . . . . . . 7
Book III. Geographical features, population groups and history
of South West Africa . . . . . . . . . . . . . . . . . . 289
Book IV. Alleged violations by Respondent of Article 2 (2)of the
Mandate (general aspects) . . . . . . . . . . . . . . . . 381
Volume III
Counter-Memorial filed by the Government of the Republic of South
Africa (continued) . . . . . . . . . . . . . . . . . . . . r
Book V. Alleged violations by Respondent of Article 2 (2) of the
Mandate (particular aspects of Respondent's policies) . . . . 1
Section A. Introductory . . . . . . . . . . . . . . I
Section B. \Vell-being, social progress and development in
agriculture . . . . . . . . . . . . . . . . . . . . . 2
Section C. Well-being, social progress and development in
industry . . . . . . . . . . . . . . . . . . . . . . 40
Section D. Brief account of the Native in commerce . . . . IOI
Section E. Government and citizenship . . . . . . . . . . I04
Book VI. Security of the person, Rights of residence and Free-
dom of movement . 195
Book VII. Education . . . . . . . . . . . . . . . . . . . 341
Volume IV
Counter-Memorial filed by the Government of the Republic of South
Africa (concluded) . . . . . . . . . . . . . . . . . . . . 1
Book VIII. . . . . . . . . . . . . . . . . . . . . . . . r
Section A. Supplemental material in regard to the alleged vio-
lation by Respondent of Article 2 of the Mandate . . . . . 1
l Page
Mr. Gross . . 3
Mr. de Villiers 54
Mr. Gross . . 56
Mr. de Villiers 66
~Gron.. ~
Mr. de Villiers 94
Mr. Gross . . 122
Mr. Gross . . . 124
~~~~- m
Mr. Grosskopf . 524
Mr. de Villiers . 561
Volume X
Oral Arguments on the Merits(continued). . . . . . 1
Annexes ;tothe Minutes (15 June-14 July 1965) . 3
Dr. verLoren van Themaat . . . . . . . . 3
Mr. de Villiers . . . . . . . . . . . . . . . 12
Hearings of the Witnesses and Experts . . . . . . 88
Replies to Questions put by the Court . . . . . . 183
Hearings of the Witnesses and Experts (continued) . 238
Volume XI
Oral Arguments on the M en"t(continued). . . . . . . . . l
Annexes to the Minutes (20 September-19 October 1965) 3
Hearings ofthe Witnesses and Experts (continued) .
3
Volume XII
Oral Arguments on the Merits(concluded) . . . . . . . . . I
Annexes to the Minutes (20 October-15 November 1965) . 3
Hearings of the Witnesses and Experts (concluded)
Mr. Muller. ... 67
l\Irde Villiers . . 86
Mr~ van Rooyen . 107
Mr. van Heerden 140
Mr. Muller... 169
Mr. de Villiers . 212
Mr. Rabie ... 270
Mr. Grosskopf . 294
Mr. de Villiers . 326
Mr. Botha .. 346
Mr. Gross ... 347
Mr. de Villiers . 392
Documents submitted to the Court a/ter the closure of the written
,proceedings . 453
Correspondence . . . . . . . . . . . . · . 509
4 SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIBERIA v. SOUTH AFRICA)
AFFAIRES·DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE Dû SUD;
LIBÉRIA c. AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIAvSOUTH AFRICA;
LIBERIAvSOUTH AFRICA)
VOLUME XII
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIAcAFRIQUE DU SUD)
VOLUME XIIPRINTED IN THE NETHERLANDS The present volume contains the end of the evidence of witnesses and
experts and of thè oral arguments on the merits (26 October-5 November
1965), as well as the documents submitted to the Court after the closure
of the written proceedings and the correspondence in the South West
Africa cases. The beginning of the oral arguments on the merits and the
evidence of witnesses and experts (15 March to r5 June r965) is published
in Volume VIII, pages ro5-7r2, Volume IX, pages 1-658, Volume X,
pages r-558 and Volume XI, pages r-708. The proceedings in these cases,
which were entered on the Court's General List on 4 November 1960
under numbers 46 and 47, were joined by an Ortler of the Court of zo May
r961 (South West A/rica, Orderof 20 May I96I, I.C.j. Reports I96I, p. 13).
Two Judgments have been delivered, the first on 21 December 1962
(South West Africa, Preliminai·y Objections,Judgment, I.C.J. Reports I962,
p. 319), and the second on 18 .July 1966 (South West Africa, Second Phase,
Judgment, l.C.j. Reports I966, p. 6).
Cross references correspond to the pagination of the present edition,
the volume being indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume contient la fin des dépositions des témoins et
experts et des plaidoiries sur le fond (26 octobre-5 novembre 1965),
ainsi que les documents déposésaprès la fin de la procédure écrite et la
correspondance, dans les affaires du Sud-Ouest africain. La première
partie des plaidoiries sur le fond et des dépositions des témoins et experts
est publiée dans le volume VIII, pages 105 à 712, le volume IX, pages
I à 658, le volume X, pages 1 à 558, et le volume XI, pages 1 à 708. Ces
affairesont étéinscrites au rôle généralde la Cour sous les n °• 46 et 47 le
4 novembre 1960 et les deux instances ont étéjointes par ordonnance de
la Cour le 20 mai 1961 (Sud-Ouest africain, ordonnance du 20 mai I96I,
C.J.J. Recueil I96I, p. 13). Elles ont fait l'objet de deux arrêtsrendus le
21 décembre 1962 (Sud-Ouest africain, exceptions préliminaires, arrêt,
G.I.]. Recueil 1962, p. 319) et le 18 juillet 1966 (Sud-Ouest africain,
deuxième phase, arrêt,G.I.]. Recueil I966, p. 6).
Les renvois tiennent compte de la pagmation de la présente édition,
un chiffre romain gras indiquant le numéro du volume auquel il est
renvoyé.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PART Il. ORAL ARGUMENTS (concluded)
DEUXIÈME PARTIE. PLAIDOIRIES (fin)
ANNEXES TO THE MINUTES (concluded}
ANNEXES AUX PROCÈS-VERBAUX (fin)
Page
24. Hearings of the witnesses and experts (concl.) (20 X 65) 3
Evidence of Professor Possony (witness and expert) (concl.) 3
Cross-examination by Mr. Gross. . . . . . . . 3
Witness questioned by Judge Sir Louis Mbanefo 63
Witness questioned by the President . . . . . 64
25. Address by Mr. Muller (South Africa), 26 x 65 . . 6J
Introduction to further argument. . . . . . . . . . . . 67
Relevance of two memoranda filed by the Parties in regard to
the fonctions proposed for the temporary trusteeship
committee (Applicants' Submission No. 2) . . . . . . .
Applicants' formulation of their submissions and their
explanations with regard thereto . . . . . . . . . . 68
Applicants' whole case rests on the alleged existence of
their norm or standard . . . . . . . . . . . . . . 69
Summary of Respondent's legal argument ...... . 69
Analysis of the content of the norm or standard . . . . 71
"Discrimination" used by Applicants in its primary sense 72
Motive and result exduded as irrelevant criteria . . . .
Suggested distortion of the content of the norm or stan- 74
dards ..................... .
75
Attempts at amplification of the content of the norm or
standards ...... . 75
Universal adult franchise . . . . . . . . . . . . . 76
Compulsory education. . . . . . . . . . . . . . . 77
Suggestion to Professor Possony that "discrimination"
in Applicants' definition bears some unfavourable
connotation . . . . . . . . . . . . . . . . . .
Affirmative and negative aspects of Applicants' defi-
nition . . . . . . . . . . . . . . . . . . . . . 80
Applicants' reformulation of the norm or standard . . . Bo
Introduction of new element in the definition would be
tantamount to making a new case......... . Sr
The distinction between the norm and standards . . . . 82
Evidence led on the basis of Applicants' case as set out in
their reformulated submissions . . . . . . . . . . .
Evidence fell into three main categories and remainder of
argument will fall into the same . . . . . . . . . .
26. Address by Mr. de Villiers (South Africa). 26 x 65 . • . • •
Resolutions on which Applicants rely forthe purpose of their
norm or standards contention . . . . . . . . . . . . 86X SOUTH WEST AFRICA
Page
i\fost of the resolutions were concerned specifically with
South and South West Africa. . . . . . . . . . . . 86
Purpose for which Applicants relied on thesc resolutions . 86
Grounds previously advanced by Respondent why these
resolutions could not support Applicants' case . . . . 87
Relevancy of examining the grounds on which the res-
olutions were based and the background thereto . . . 88
The political campaign that has bcen waged against
Respondent . . . . . . . . . . . . . . 90
Participants in and leaders of the campaign . 90
Campaign related to present litigation. . . . 90
No practical reason why Applicants instituted the
proceedings . . . . . . . . . . . . 90
Applicants acted as representatives of the African
States. . . . . . . . . . . . . . . . . 92
References to pleadings . . . . . . . . . . . 92
Further references to statements by Applicants'
representatives . . . . . . . . . . 94
Representatives ofother African States 94
Petitioners. . . . . . . . . . . . . 95
The nature and objectives of the campaign. 96
Calls forthe complete liberation of Africa 96
Identification of Respondent's policies with colonialism 97
Purpose is the establishment of Black rule over the whole
of South and South West Africa . . . . . . . 99
Link between this purpose and the court action. . IOI
Expression of this purpose in resolutions adopted . 101
At the conference of African States . . . . . . 102
In the United Nations. . . . . . . . . . . . ro3
Attitude of South African Government towards leaders
in the campaign . . . . . . . . . . . . 105
27. Address by Mr. van Rooyen (South Africa), 27 x 65 107
Quality of criticisms levelled against Respondent as part of
the campaign. . . . . . . . . . . . . . . . 107
Campaign characterized by emotional outbursts. ro7
Applicant States . . . . . . . . . . . . 107
Other African States . . . . . . . . . . ro7
Other States . . . . . . . . . . . . . . 108
Allegations based on statements by petitioners rog
Role played by petitioners . no
Who are the petitioners . . . . . . . . . no
Their objectives . . . . . . . . . . . . no
Their methods . . . . . . . . . . . . . . . . . no
Common purpose between petitioners, and participants
in the campaign . . . . . . . . . . . III
Applicants' reliance on the petitioners . . . . III
Fabrications exposed in the Counter-Memorial II2 CONTENTS XI
Page
Unreliability of statements of petitioners confirmed by
l\frDahlmann . . . . . . , . . . . . . . . . . . II3
The rcliance placed on the statements of petitioners in the
United Nations . . . . . . . . . . . . . . . . . . . n4
Allegations that Respondent pursues a policy of genocide ns
Statements by petitioners . . . . . . . . . . . . . IIS
Statements in United Nations debates. . . . . . . . IIS
Allegations that non-Whites are herded into concentration
camps, etc. . . . . . . . . . . . . II7
Statements by petitioners . . . . . . . . . . n7
Statements in United Nations debates. . . . . n8
Reports of the Committee on South West Africa n8
Allegations that Respondent's policies are rooted in racial
hatred and a doctrine of White suprcmacy . n9
Statements by petitioners . . . . . . . . . . . . . n9
Statcments in United Nations debates. . . . . . . . n9
Allegations that Natives are confined to the poorest areas
in the Territory. . . . . . . . . . . . . . . . . . r20
Similar allegations by Applicants . . . . . . . . . . 120
True facts set out in Respondent's pleadings and by
witnesses . . . . . . . . . . . . . . . . 120
Statements by petitioners . . . . . . . . . . 121
Reports of the Committee on South West Africa 121
Statements in United Nations debates. . . . . 122
Allegations that the objective of Bantu education is to
insure that inferior education is given to the Natives 122
Statements by petitioners . . . . . . . . . . . 122
Statemcnts in United Nations debates. . . . . . 123
Allegations relative to militarization of the Territory 124
True facts stated;
By Respondent's representative in the Fourth
Committee. . . . . . . . . . 124
In the Counter-Memorial. 125
By General ;\farshall . . 125
Allegations of Petitioners . . . . . . 125
Effect thereof on General Assembly resolutions. . . . 126
Effect thereof on draft report of the Special Committee
with regard to the implementation of the Declaration
of Independence to Colonial Countries and Peoples . 126
Applicants' suggestion to Mr. Dahlmann that United
Nations resolutions and reports were not influenced by
petitioncrs' statements. . . . . . . . . . . . . . . 128
ConsiderabJe consideration given to statements of
petitioners in 1955 report of the Committee on South
West Africa . . . . . . . . . . . , . . . . . . 129
Influence of such statements on subsequent reports of
the Committee . . . . . . . . . . . . . . . . . 131XII SOUTH WEST AFRICA
Page
Direct evidence that delegates of various States relied
heavily on the statements of petitioners . . . . . . . 132
Suppression of information favourable to Respondent's
administration in the Territory . . . . . . . . . . . rr3
Influence of thestatements of petitioners on resolutions of
the General Assembly . . . . . . . . . . . . 134
Participation of petitioners in discussions on draft
resolutions . . . . . . . . . . . . . . . . . . . 135
Assumption that petitioners truly represent Native
population of the Territory. . . . . . . . . . . . 136
Refutation of this assumption in evidence of Mr. Dahl-
mann . . . . . . . . . . . . . . . . . . . . . 136
References in resolutions to evidence of petitioners. . 138
Conclusion that evidence of petitioners has been false and
has playcd a major role in the adoption of United
Nations resolutions . . . . . . . . . . . . 139
28. Address by Mr. van Heerden (South Africa), 28 x 65 140
The resolutions on which Applicants rely did not purport to
evolve or apply a norm or standards as defincd by Appli-
cants . . . . . . . . . . . . . . . . . . . . . . . 140
The grounds on which Applicants allege that the reso
lutions were concerned with the norm or standards . . 140
Resolutions condemned apartheid on the basis of a con
ception that it was an oppressive policy . . . . . . . 141
The resolutions which pertain to South West Africa. . • . 141
Necessity to look at the debates in the Fourth Committee 141
Relevance of the reports of the Committee on South West
Africa . . . . . . . . . . . . . . . . . . . . . . 142
This Committee condemned Respondent's policies because
they were thought to be designed to oppress the in
digenous population of the Territory . . . . . . . . 142
Resolutions adopted at the 14th Session of the General
Assembly . . . . . . . . . . . . . . . . . . . . 144
Debates in the Fourth Committee. . . . . . . . . . . 144
Resolutions adopted at the 15th Session of the General
Assembly . . . . . . . . . . . . . . . . . . . . 146
Debates in the Fourth Committee. . . . . . . . . . . 146
Resolutions adopted at the 16th Session of the General
Assembly . . . . . . . . . . . . . . . . . . . . 148
Debates in the Fourth Committee. . . . . . . . . . . 148
Resolutions adopted at the 17th Session of the General
Assembly . .. . . . . . . . . . . . . . . . . . . 149
Debates in the Fourth Committee. . . . . . . . . . . 150
Resolutions adopted at the 18th Session of the General
Assembly . . . . . . . . . . . . . . . . . . . . 151
Debates in the Fourth Committec. . . . . . . . . . . 151
Applicants' argument that the resolutions established the
incompatibility of Respondent's policies with the
provisions of the Charter. . . . . . . . . . . . . . 152 CONTENTS Xlll
Page
Resolutions and debates in the Fourth Committee merely
established the view that the Charter prohibited oppres-
sive discrimination . . . . . . . . , . . . . . . . 152
The resolutions which pertain to South Africa itself . . • . 154
Necessity to look to debates in the Ad Hoc Political
Committee and Special Political Committee. . . . 154
Debates in the Special Political Committee during the
14th Session of the General Assembly . . . . . . . . 154
15th Session 155
16th Session 155
17th Session 156
18th Session 157
Conclusion: the relevant resolutions were based on the
notion that apartheid was a policy which was designed to
and did in fact oppress the Bantu population. . . . . 158
The resolutions of the Security Council on which Applicants
rely. . . . . . . . . . . . . . . . . . . . . . . . 158
Background to the resolutions . . . . . . . . . . . . 158
Participation by representatives of non-members in the
debates . . . . . . . . . . . . . . . . . . . . . 159
Views of representatives of members of the Security
Council . . . . . . . . . . . . . . . . . . . . . 159
The relevance of the studies undertaken with regard to the
question of legal action against Respondent . . . . . . 161
The history of the studies . . . . . . . . . . . . . . 16!
Grounds on which it was considered action might be in-
stituted against Respondent . . . . . . . . . . . . 162
Extracts from the reports of the Committee on South
West Africa . . . . . . . . . . . . . . . . . . . 164
Committee's criticisms based on the notion that Re
spondent's policies were designed to oppress the in
digenous inhabitants of the Territory . . . . . . . . 166
Reliance placed by Applicants on the views of the
Committee. . . . . . . . . . . . . . . . . . . . 166
Unnecessary to canvass the assertions and findings of the
Committee . . . . . . . . . . . . . . . . 167
Summary . . . . . . . . . . . . . . . . . . . . 167
29. Address by Mr. Muller (South Africa). 29 x-1 xr 65 . . 169
The norm or standards suggested by Applicants is not
universally observed in the practice of States. . . . 169
Main evidence upon which Respondent relies is that of
Professors Possony, van den Haag and Manning . . . 169
Expertise of Professor Possony . . . . . . . . . . . . 169
Gist of his evidence: differentiation by law in various
countries . . . . . . . . . . . . . . . . . . . . 169
Importance of differential treatment on the basis of
religion or sex . . . . . . . . . . . . . . ·. . . . 171
No cross-examination on the factual evidence as to the
practice of States . . . . . . . . . . . . . . . . . 172XIV SOUTH WEST AFRICA
Page
Gcneral trend of cross-examination that Respondent's and
the witness's understanding of the Applicants' case is
wrong. . . . . . . . . . .. . . . . . . . . . . . 172
.Cross-examination as to the meaning of "discrimination" 172
Suggestion that "discrimination" connotes the denial of
equality of opportunity and equal protection of the law 174
Applicants' reformulation of the content of their norm or 175
standards . . . . . . . . . . . . . . 175
This reforrnulation does not materially differ from
definition in the Reply. . . . . . . . . . . . . . . 175
The principle of equal protection merely means that the
laws shaU be applied equally to ail persons to whom they
relate . . . . . . . . . . . . . . . . . . . . . . 176
Differential laws exist side by side in constitutionswith
provisions of equality before the law . . . . . . . . 176
Applicants cannot say that their norm or standards
contain an element of unfair discrimination and do not
want to admit that they are simply standards or a norm
of non-differentiation . . . . . . . . . . . . . . . 177
The examples of differential treatment mentioned by
Professer Possony cannot be explained away on the
basis that permissible differentiation must allow an
individual to quit his group . . . . . . . . . . . . 178
A departure by Applicants from their definition of the norm
or standards would constitute the making of a new case . 178
Professor Possony's evidence conceming attempts in the
international sphere to formula te objectives with regard
to the treatment of individuals and ethnie groups. . . 179
No convention on the subject of individual or group
rights other than the Genocide Conventions . . . . 179
Attempts at drafting other covenants . . . . . . . . 180
Views expressed at recent seminar held under the aus-
pices ofthe United Nations . . . . . . . . . . . 180
Professor Possony's conclusion that Applicants' norm is
not observed in the practice of States . . . . . . . . rSr
General Assembly resolutions relied upon by Applicants
other than those pertaining to South and South West
Africa. . . . . . . . . . . . . . . . . . . . . . 182
Resolutions which were intended to haYe a general
application. . . . . . . . . . . . . . . . . . . 182
Resolutions pertaining to non-self-goveming terri tories. 183
Resolutions pertaining to education in non-self-govern-
ing teffitories.. . . . . . . . . . . . . . . . . 186
These resolutions do not provide proof of a norm or
standards as defined by Applicants . . . . . . . . 188
The application of Applicants' norm or standards would in
the circumstances of many countries lead to results in
consistentwith progress arid well-being . . . . . . . . 188
Evidence directed to countries generally was given by
Professors van den Haag, Manning and Possony . . . 188 CONTENTS XV
Page
Professor van den Haag's qualifications as an expert not
challenged by Applicants . . . . . . . 188
Expertise of Professor van den Haag . . . 188
Gist of his evidence:
Group consciousness and group conflicts . . . . . 189
Partition and mass removals as remedies to avoid
confücts . . . . . . . . . . . . . . . . 189
Immigration laws to avoid introduction of possibly
unassimilable elements. . . . . . . . . . . . . 189
Attempt to achieve assimilation by force would not be
successful . . . . . . . . . . . . . . . . . . 190
Cultural differences between groups might be so grea t
as to call for legal measurcs to separate them. . . 190
Each case must be dealt with on merits and not by·a
preconceived formula . . . . . . . . . . . 190
Professor Manning's qualifications as an expert not
challenged by Applicants . 190
Professor Manning's expertise . . . . 191
The gist of his evidence:
The collective self-hood of a group . . . . . . . . 191
Formulas to prevent conflict between different groups
in a singlecountry . . . . . . . . . . . . . . 191
Professor Possony also stressed the importance of
recognizing group diffcrences in pluralistic societie. 192
Nothing in the cross-examination of the three witnesses
that detracts from their views that application of
Applicants' norm under all circumstances would in
many cases be to court disaster. . . . . . . . . . 193
Evidence relative to the situation in general and in South
West Africa itself. . . . . . . . . . . . . . . . . 193
Certain witnesses expressed views on the basis of
knowledge obtained from the pleadings . . . . . 193
Facts in pleadings admitted by Applicants. . . . . . 193
These admitted facts include:
The existence of different population groups with
different traditions, cultures. etc. . . . . . . . . 194
In the history of the Territory there had been a
period of strife and warfare between a number of the
groups. . . . . . . . . . . . . . . . . . . . 194
Various groups find themsclves at different levels of
development . . . . . . . . . . . . . . . . . 195
The varions groups to a very large extent occupy
separate regions in the Territory . . . . . . . . 196
The indigenous groups still recognize and apply their
traditional systems of government . . . . . . . 196
The groups are conscious of their separate identities. 197
Professor .Manning cxpressed the opinion, on the basis
of these facts, that application of Applicants' norm
orstandards to South West Africa would:
Involve a non-recognition of relevant differences . . 199XVI 50 UTH WEST AFRICA
Page
Be incompatible with the idea of self-detennination . 199
Professor Manning was not cross-examined on this view 200
View of Professor van den Haag based on the admitted
facts . . . . . . . . . . . . . . . . . . . 200
Evidence of Dr. Eiselen . . . . . . . . . . . . 201
His expertise . . . . . . . . . . . . . . . . . . 201
His description of the position in the Territory . . . 201
Policy of separate development not based on any con-
cept of superiority . . . . . . . . . . . . . . 201
This policy best suited to the circumstances of the
Territory . . . . . . . . . . . . . . . . . . 202
Disastrous effects of applying Applicants' nonn to the
Territory . . . . . . . . . . . . . . . . . . 203
No cross-examination . . . 203
Evidence of Professor Bruwer . . 203
His expertise. . . . . . . . . 203
Topics covered by his evidence . 203
Basic advantages of the policy of separate devel-
opment . . . . . . . . . . . . . . . . . . . 204
Cross-examination did not detract from his opinions. 205
Evidence of Professor Logan:
His expertise . . . . , . . . . . 205
General conditions in the Territory 206
Differentiating measures necessary 206
Benefits of such measures . . . . . . . . . . 206
Abolition of differential measures would lead to
chaotic situation . . 206
Cross-examination did not directly challenge his
opinion . . . . . . 207
Evidence of Mr. Gericke . 207
His expertise . . . . . 207
Interests and activities of his church . . . 208
Establishment of sepa~ate churches for separate
groups. . . . . . . . . . . . . . . . . 208
Advantages of this system . . . . . . . . . 209
His opinion not shaken in cross-examination . 2IO
Evidence of Mr. Cillie . . . . . . . . . 2IO
His expertise. . . . . . . . . . . . . . . 210
Application of Applicants' norm in South West
Africa would create innumerable tensions 2II
30. Address by Mr. de Villiers (South Africa), 1-3 XI 65 212
The legal effect of admissions. . . . 212
In American and English systems. 212
Wigmore on evidence . . 212
Gilbert on evidcnce . . . 212
Phipson on evidence. . . 213
Larson Co. v. Wrigley Co. . . . . . 213
Court generally bound by admissions 213
In Continental systems . . . . . . . · . 214 CONTENTS XVII
Page
Effect of admissions in the present case 214
Made in real dispute. . . . . . . 214
Carefully made . . . . . . . . . 215
Cogent guarantees for the probable correctness of the
admitted facts . . . . . . . . . 216
Effect of admissions on opposite party. . 216
The legal effect of Jack of cross-examination. 216
Phipson and evidence . . 217
Browne v. Dunn . . . . 217
In Continental systems . . 217
Effect in the present case 217
Dr. Eiselen not cross-examined . . . . . . . . 218
This was consistent with attitude of Applicants. 218
Change in policy from second witness . . . . . . . . 218
Other witnesses not cross-examined on vital portions of
evidence . . . . . . . . . . . . . . . . . . . . . 219
Extracts from books, etc., put to witnesses did not become
evidence. . . . . . . . . . . . . . . . . . . . . . 219
Evidence led purely for the purpose of demonstrating the
effect which the application of the norm and standards
would have on the well-being of the population of the
Territory . . . . . . . . . . . . . . . . . . . . . 220
Applicants have not brought a case to the effect that although
official differentiatian may be permissible specifi.cmeasures
must be regarded as impermissible . . . . . . . . . . 221
Positio~ m'."X have been different on the basis of Appli-
cants ongmal case . . . . . . . . . . . . . . . . 221
In terms of Applicants' amended submissions, however,
the policy as a whole and specific measures are to be
judged by one and same criterion . . . . . . . . . . 221
This criterion does not involve purpose, results, fairness or
reasonableness . . . . . . . . . . . . . . . . . . 222
Applicants' catalogue nonetheless included only measures
which seemed to favour the White group. . . . . . . 223
Unnecessary to deal with each item in the catalogue. . . 225
Not possible for the Court to give a decision with regard
to a specific measure on the basis of any other criterion
than the one involved in Applicants' submissions . . . 225
Specific measures part and parce] of nine dynarnic
situations . . . . . . . . . . . . . . . . . . . . 226
The content of the norm or standards in their relation to the
political life in the Territory . . . . . . . . . . . . . 226
In theory norm or standards would not be violated if no
political rights granted to any group . . . . . . . . 227
Applicants' case however that such rights should be granted 227
Formulation in the Memorials . . . . . . . . . . . . 227
Reaction in the Counter-Memorial. . . . . . . . . . . 228
In the Reply Applicants introduced norm which involved
duty to institutc universal adult suffrage. . . . . . . 228XVIII SOUTH WEST AFRICA
Page
Respondent's answer in the Rejoinder . . . . . . 229
Applicant3' case agrees with objectives expressed by the
General Assembly of the United Nations. . . . . . . 230
Report of the Special Committee on South West Africa 230
Resolution No. 1760 of the General Assembly. . . . . 231
During the oral proceedings Applicants attempted to alter
thefr case regardingpolitical rights . . . . . 232
The meaning of "universal adult suffrage" . . . 232
Resolution No. 1760 of the General Assembly. . . . . . 232
Dictionary definitions . . . . . . . . . . . . . . . . 232
Restrictions and safeguards mentioned by Applicants . . 233
Applicants' latest contention: no obligation to grant universal
adult suffrage in South West Africa . . . . . . . . 234
Respondent can only deal with subject of political rights on
the basis of the alleged existence of the norm or standards 236
Application of the norm or standards must lead to universal
adult suffrage in South West Africa as one political unit 237
Implications of such an application of the norm or standards
237
Admitted facts show the differences between the groups 237
Attempts at unification of the various indigenous political
parties described by Mr. Dahlmann . . . . . . . . . 238
Such politicalparties not representative of more than one
group ............... · · · · · · · 238
No reason not to accept Mr. Dahlmann's evidence .... 239
The relationship between the White group and the in
digenous inhabitants . . . . . . . . . . . . . . . 239
Customary in certain circles to refer to members of
White groupas settlers . . . . . . . . . . . . .
In 1920 already settled White community in South
West Africa . . . . . . . . . . . . . . . . . . 240
Necessity to retain and expand that population for the
purpose of:
Maintenance of the status quo . . .
Development of the land. . . . . .
Development of the mining industry
Development of the fishing industry.
Further immigration of Europeans encouraged in order
to develop the economy . . . . . . . . . . . . . 243
Respondent consequently holds responsibility to the
White group . . . . . . . . . . . . . . . . . . 244
Delegation of measure of political power to White
group in course of time . . . . . . . . . . . . . 244
Only conclusion that application of the norm or stan
dards in the political sphere will lead to disaster
Defects inherent in granting of qualified franchise.. . .
Aims and purposes of African nationalism .
Experiments in multi-racialism in Africa. . . . . . .
Objectives of indigenous political leaders in South
\Vest Africa: evidence of Mr. Dahlmann ..... . 247
Conclusion that any attempt at graduai creation of
multi-racial political organization is doomed to
failure. . . . . . . . . . . . . . . . . . . . . 247 CONTENTS XIX
Page
Effect of the introduction of universal adult suffrage on the
well-being and progress of the inhabitants of South
West Africa ...... . 248
Events elsewhere in Africa . . . 248
Creation of one-party States . . 249
Evacuation of one-party States. 249
Opinion of Professor Bruwer . . 250
Opinion of Mr. Cilhe. . . . . . . . . . 251
Opinions of Dr. Eisclen and Professor Logan . . . . . 253
All opinions point to disruption, bloodshed and chaos 253
Specific effect as regards Ovambos and people of the
East Caprivi . . . . . . . . . . . . . . . . . . 253
Applicants' reaction to evidence of experts in the pofitical
sphere ................ - ..... . 254
No attempt to establish that abolition of differential
allotment of political rights would promote well-being 254
Examples of cross-examination of Professor Bruwer and
Mr. Cillie . . . . . . . . . . . . . . . . . . . . 254
At the most Applicants attempted to show that certain
specific measurcs were not justified . . . . . . . . . 255
No criterion advanced for testing such mcasures . . . . 255
Applicants also attempted to establish that individuals
may be detrimentally affected . . . . . . . . . . .
Whole policy must, however, be weighed . . . . . . . .
A policy involving a differential allotment of rights, etc., is
necessary . . .......... . 257
Not Court's task to enquire into Respondent's actual
policy ............... · .. , 257
Respondent Government's attitude expressed in White
Paper ..................... .
Aims and purposes of Respondent's policy discussed in
pleadings .......... .
Advantages envisaged by Respondent
Developments in the Transkei
Political devclopment . . .
Administrative development
Economie development . . . . .
Favourable rcaction to development from Natives in
South West Africa . . . . . . . . . .....
The effect of application of Applîcants' norm or standards
in the sphere of rights of residence and freedom of
movement . . . . . . . . . . . . . . . . . . . . 265
Applicants' catalogue did not include laws previously
relied upon in regard to security of the person. . . 265
Applicants' norm or standards also preclude restrictions
imposcd upon White and Coloured persans. . . . . 266
Ali restrictions which protect residential rights of
spccific groups would have to be abolished. . . . . 266XX SOUTH WEST AFRICA
Page
Such protection closely linked with separate political
development of the various groups . . . . . . . . 267
The effect of influx of Natives into urban areas.. . . 268
The effect on the residential rights of northem Natives 269
Protective measures in the sphere of rights of residents
applied by other States . . . . . . . 269
3r. Address by Mr. Rabie (South Africa), 3-4 XI 65 . . . . . . 270
Evidence relating to the field of education . . 270
Evidence given by Dr. Eiselen, Dr. Van Zyland Professors
van den Haag and Rautenbach. . . 270
Expertise of Dr. Eiselen . . . . . . . . . . 270
No cross-examination of Dr. Eiselen. . . . . 271
Expertise of Dr. Van Zyl . . . . . . . . . 271
No attempt to chalJenge bis expert knowledge 272
Advantages of system of separate educational facilities 272
Educational organization which Native people can call
their own . . . . . . . . . . . . . . . . . . . 272
Increased interest in education . . . . . . . . . . . 272
Opportunities for employment of Natives as teachers,
etc. . . . . . . . . . . . . . . . . . . . . . . 273
Stimulation of the development of Native languages 273
Mother-tongue education. . 273
Vital importance thereof. . . . . . . 273
Views of Unesco experts. . . . . . . 274
Bridges gap between home and school. 274
Leads to better results.. . . . . . . 274
In accordance with the wishes of the vast majority of the
people ..................... 275
This not disputed by Applicants . . . . . . . . . . 275
Results if attempts were made to introduce an integrated
system of schooling . . . . . . . . . . 276
No hope of success (Dr. Van Zyl) . . . . . . . . . . 276
This opinion not attacked by Applicants. . . . . . . 276
Disappearance of advantages of separate systems
(Dr. Van Zyl) . . . . . . . . . . . . . 276
Would create enormous difficulties (Dr. Eisclen) . 277
No reason not to accept opinions of these experts . 277
Cross-examination of Dr. Van Zyl. . . . . . . . . 277
Not intended to cast doubt on evidence given in exami
nation-in-chief . . . . . . . . . . . . . . . . . 277
Questions on the relationship between the South West
African Administration and the South African
Government . . . . . . . . . . . . . . . . . . 277
Questions concerning vocational and teacher training 278
Suggestion that Jack of economic opportunities
accounted for low enrolment at the Augustineum . 278
Suggestion denied by Dr. Van Zyl. . . . . . . . . 278 CONTENTS XXI
Page
Questions on mother-tongue instruction . . . . . 278
Evidence in regard to particular advantages not
challenged . . . . . . . . . . . . . . . . 278
Suggestion that it is more important for a Native child
to be taught in the medium of the language of the
economy in which he works . . . . . . . . . . 279
Suggestion of practical difficulties in usinghe ver
nacular as medium in certain areas . . . . . . . 279
Suggestion that Bantu languages not fit for dealing
with political and economic phenomena . . . . . 279
Suggestion that Native child should be allowed to
choose ta take lessons through other medium. . . 280
Questions on compulsory education . . . . . . . • • 281
Reasons mentioned by Dr. Van Zyl why there is not
compulsory education for Native children in the
Territory . . . . . . . . . . . . . . . . . . 287
Views of missionaries in the territories. . . . , • 282
Applicants' attitude that absence of compulsory
education isnot perse a breach of the Mandate . . 282
This attitude consistent with charges in written
pleadings . . . . . . . . . . . . . 283
Compulsory education in other countries. 283
Liberia . . . . . . . . . . . . 284
African States generally . . . . . . 284
Difficulties encountered . . . . . . 285
Relatively high school attendance in South West
Africa. . . . . . . . . . . . . 285
The evidence of Professor van den Haag . . . . . 286
Expertise of Professor van den Haag . . . . . . . . 286
No evidence that segregation perse causes psychological
injury . . . . . . . . . . . . . . . . . . . . . 287
The basis of the Brown case . . . . . . . . . . . . 287
Opposite views put to the witness in cross-examination
did not become evidence . . . . . . . . . . . . . 287
His views regarding system of separate education in
South West Africa . . . . . . . . . . . . . . . 287
The evidence of Professor Rautenbach. . . 288
Background information in the pleadings . . . . . . 288
Expertise of Professor Rautenbach . . . . . . . . . 289
Expertise not challenged in cross-examination . . . . 289
Disadvantages of former system of open universities in
South Africa . . . . . . . . . . . . . . . . . . 280
Former open universities limited the number of
admissions of Bantu students. . . . . . . . . . 289
Those who were admitted never led a full university
life . . . . . . . . . . . . . . . . 290
Fees at the open universities were high . 290
Gap created between Bantu students and their
communities . . . . . . . . . . . .XXII SOUTH WEST AFRICA
l'age
Advantages of present system of separate university
institutions in South Africa . . . . . . . . . . . 290
Universities for Bantu will play important role in the
development of the Bantu communities . . . . 290
Bantu students lead a full university life. . . . . . 291
Fees are low . . . . . . . . . . . . . . . . . . 291
Teaching methods adopted. . . . . . . . . . . . 291
More opportunities for Bantu intellectuals to be
appointed to academic posts . . 291
Opinion that harmful results would ensue if present
systems abolished. . . . . . . . 291
Cross-examination of Professor Rautenbach . 291
·Not directed at advantages described by him. 292
Contrary views putto him. . . . . . . . . 292
These did not become evidence . . . . . . . 292
Not putto him that universities for Bantu are inferior
institutions. . . . . . . . . . . . . . . 293
32. Address by Mr. Grosskopf (South Africa). 4-5 XI 65 . 294
Evidence relating to the economic field . . . . . 294
Purpose of the argument. . . . . . . . . . . . . . . 294
l\fain ,vitnesses Profcssors Logan and Krogh and .Mr.Pepler 294
Qualifications of these witnesses . . . . . . . . . . . 294
Their competency has been clearly èstablished . . . . . 296
The background of the economic situation in South West
Africa. . . . . . . . . 296
The size of the Territory. . . 296
Its naturaI resources . . . . 296
·The·size of the population . . 298
The nature of the population. . . . 299
The social environment of the population 299
Reasons why it is nccessary to apply a policy which
involves a differential allotment of rights on a group
basis . . . . . . . . . . . . . . . . . . . . . . 299
Reasons advanced with regard to political sphere also
important in the economic context . . . . 300
Necessity to protect land rights of groups . . 300
·Former dispute about land. . . . . . . . 300
Tendency to sell land at uneconomic prices. . 301
Return derived by Natives from land smaller than
that of European farmer. 301
Opinion of Professor Logan . . 303
Opinion of Mr. Pepler . . . . . . . . . . . . . . 304
Opinion of Professor Krogh . . . . . . . . . . . 304
These opinions not challenged in cross-examination . 304
Impossible to protect land rights without offending
against Applicants' norm or standards. . . . . . 304
Protection of land rights also required for maintenance
of matters such as social peace and traditional
political institutions.. . . . . . . . . . . . . 306 CONTENTS xxm
Page
Necessity to protect commercial and employment
opportunities. . . . . . . . . . . . . . . . . . 307
Protection of indigcnous enterprises against European
competition . . . . . . . . . . . . . . . . . 307
In Ovamboland. . . . . . . . . . . . . 307
ln the Police Zone generally . . . . . . . . . . 307
In urban areas . . . . . . .. . . . . . . . . 307
Has led to increased participation of Natives in
commerce . . . . . . . . . . . . 308
Reservation of employment in Native areas for
· Natives . . . . . . . . . . . . . . . . . . . 308
Restrictions on employment opportunities for non-
\Vhites in the White area . . . . . . . . . . . 308
Opinion of Professor Krogh . . . . . . . . . . 308
Considerable part of cross-examination directed to
this topic . . . . . . . . . . . . . . . . . 309
Norm or standards would preclude al! protective
measures. . . . . . . . . . . . . . . . . . 309
Special methods of promotion and development neces-
sary as between various groups . . . . . . . . . 309
Opinions of Professors Logan and Krogh that the abolition
of differential measures would not promote well-being. 3rn
Similar opinion of Dr. Eiselen . . . . . . . . . . . . 3II
Cross-examination of witnesses on the economic aspects . 3II
No attempt to establish that differential treatment gives
riseto undesirable consequences . . . . . . . . . 3rr
Emphasis on detriment which could be suffered by a
particular individual . . . . . . . . . . . . . . 312
Examples of topics touched in cross-examination . . . 312
Respondent did not attempt to discuss the economic or
moral merits of each measure which has been referred to
the Court . . . . . . . . . . . . . . . . . . 312
Would have been long task to attempt to do so. . . . 312
Illustration with reference to Mining Proclamation . . 313
\Vidertype of investigation would have been necessary
had Applicants kept to their original case . . . . . 315
Such investigation unneccssary in view of sole issue:e
existence of the norm or standards . . . . . . . . 315
Conclusion that application of norm or standards will be
incompatible with well-being and progress . . . 315
Applicants' Submission No. 6: Militarization . . . . 316
In oral proceedings Applicants did not devote much
attention to charges under militarization. 316
The dispute as it emergcd in the pleadings . 316
Memorials . . . . . . 316
Three bases alleged 317
Criterion suggested 317
Counter-Memorial. . 317XXIV SOUTH WEST AFRICA
Page
Meaning of "military bases" . JI7
Supported by General Marshall . JI]
Factual position . . 3I8
Reply. . . . . . . . . . . . . 3I8
Regimcnt Windhoek . . . . . 3I8
Landing ground at Swakopmund . 3I9
New charge relating to Walvis Bay . . . . . . 3I9
Military camp and/or airfield at Ohopoho . . . . . . 320
Omnibus charge relating to military activity in general 32I
The charges as formulated in the oral proceedings. . . . . 32I
Initial indication that militarization would be dealt with
during the "fact stage" of the proceedings . . . . . . 32I
Militarization eventually dealt with only in the context of
Applicants' supervision argument . . . . . 322
Analysis of Applicants' contention . . . . . 323
33. Address by Mr. de Villiers (South Africa), XI 65 326
Applicants' Submission No. 5:Incorporation . . 326
Submission in the Memorials . . . . . . . . 326
Reforrnulabon of the submission during the oral
procecdings . . . . . . . . . . . . . 327
The dispute as it emerged in the pleadings . 327
M.emorials . . . . 327
Counter-Mernorial. 328
Reply. . . . . . 329
Rejoinder . . . . 329
The charges as stated in the Oral Proceedings 330
Initial indication that charges would be dealt with dur-
ing the fact-stage of the proceedings. . . . . . . . 330
Applicants' argument that Respondent's intent must be
inferred by means of a conclusive presumption . . . 330
Applicants' argument that Respondent has an intent to
partiti?n the Territory without the consent of the
superv1sory organs . . . . . . . . . . . . . . . 33I
Contention that acts of Respondcnt are p_erse a vio
lation ofthe separate status of the Temtory did not
feature in oral argument. . . . . . . . . . . . . 332
The complaint regarding the question of nationality. . . 332
The complaint regarding representation in the South
African Parliament . . . . . . . . . . . . . . . . 334
The complaint regarding administrative separation of the
Caprivi Zipfel . . . . . . . . . . . . . . . . . . 334
The complaint regarding the transfer of the adminis
tration of Native affairs . . . . . . . . . . . . . . 334
The linking of these complaints with the charge relating to
supervision. . . . . . . . . . . . . . . . . . . . 335
Applicants' Submission No. 9: unilateral amendment of the
Mandate. . . . . . . . . . . . . . . . . . . . . . 338 CONTENTS XXV
Page
History of the dispute in the pleadings 338
The Memorials . . . . 338
The Counter-Memorial. 338
The Reply ..... .
The Rejoinder . . . . 339
339
The statements of the charges in the Oral Proceedings. 339
lntent to incorporate the Territory . . 339
Intent to partition the Territory . . . 340
Analysis of Applicants' latest contentions 341
Concluding remarks . . . . . . . .
342
Grounds upon which Applicants' submissions may be
dismissed ................... . 343 •
General remarks conceming Article 2,paragraph 2, of the
Mandate .............. . 344
34. Address by Mr. Botha (South Africa), 5 xr 65 ..
346
Statement of Respondent's Final Submissions 346
35. Observations of Mr. Gross . . . . . . . . . . 347
Reaffirmation of Applicants' submissions of 19 May . . 347
Comment on Applicants' objections with regard to the
relevance, weight and credibility of.evidence . . . . 347
Reply to criticisms directed by Respondent to Applicants'
attitude during cross-examination. . . . . . . . . . . 357
Comment on the evidence . . . . . . . . . . . . . . . 360
Restrictions on the progress, economic rights and freedom
of non-Whites "sojouming" in the White areas, solely
on the grounds of thcir colour . . . . . . . . , . . 360
Spccial position of the Coloureds . . . . . . . . . . . 373
Unjustified "balancing" of present White domination in
the modern economic sector against "eventual" Black
domination elsewhere . . . . . . . . . . . . . . . 374
Unilateral adoption of the White minority of decisions
detennining the future of the Territory . . . . . . . 382
Comment on material introduced by Respondent pertaining
to United Nations resolutions or debates or to the deliber
ations of United Nations committees and agencies. . . . 388
The evidence has shown the inherent and per se incompati-
bility of apartheid with moral well-being and social
progress . . . . . . . . . . . . . . . . . . . . 390
36. Comment by Mr. de Villiers . . . . . . . . . . . . . . . 392
Applicants' failure to comment on evidence on militari
zation, incorporation of the Territory and modification of
the Mandate . . . . . . . . . . . . . . . . . . . . 392
Alleged violation by Respondent of the obligation contained
inthe second paragraph of Article 2 of the Mandate. . . 392
General remarks on Applicants' tactics . . . . . . . . 392
Significance of Applicants' amendment of their sub-
missions . . . . . . . . . . . . . . . . . . . . 393
Meaning of ''distinguish", "discriminate" and "separate" . 394XXVI SOUTH WEST AFRICA
Page
Whether racial differentiation in South West Africa unfa.r 402
Changed attitude of Applicants towards the facts stated by
Respondent . . . . . . . . . . . . . . . . . . . . 414
Views put to witnesses in cross-examination not evidence . 418
Comments on Applicants' attacks on the relevance, weight
and credibility of the evidence of some witnesse. . . . 419
Applicants concemed chiefly withthe impact of apartheid on
individuals. . . . . . . . . . . . . . . . . . . . . 422
Unfair racial discrimination denied. . . . . . . . . . . 423
Fundamental errors in perspective of Applicants' case due to
their disregard of the conditions prevailing in the Terri427ry
Recapitulation of reasons justifyinghe policy of separate
development in South West Africa . . . . . . . . . 427
Applicants' suggestion of "the essentially racist perspective
which uniquely marks apartheid". . . . . . . . . . 429
Respondent's census classification--criteradopted. . . 430
Rigidity of classification justified; exceptions allowed 435
Criticism of Applicants' comments about false equivalence;
positive aspects of the system of apartheid.. . . . . . 437
Why Respondent did not deal with the position of the
Coloureds . . . . . . . . . . . . . . . . . . . . . 442
Criticism of Applicants' comments regarding social peace . 445
Compulsory education. . . . . . . . . . . . . . . . . 446
Applicants' comment on Respondent' s contentions regarding
the resolutions and deliberations of the United Nations 447
PART III. DOCU1ŒNTS SUBMITTED TO THE COURT AFTER
THE CLOSURE OF THE WRITTEN PROCEEDINGS
TROISIÈME PARTIE. DOCUMENTS PRÉSENTÉS A LA COUR
APRÈS LA FIN DE LA PROCÉDURE ÉCRITE
I. Documents filed by the Agent for the Government of South
Africa ............... · · , · · · · · 455
Preparatory Commission of the United Nations (PC/TC/n) . 455
Preparatory Commission of the United Nations (PC/TC/30) . 457
II. Documents filed by the Agent for the Governments of Ethiopia
and Liberia . . . . . . . . . . ........... .
Memorandum regarding evidence introduced by respondent
~t;;; tie- o~a~p_ro~e~d'.n_of2~ ~i~y _1~65_(~X: ~P ~:I.
Annex A: Preparatory Commission of the United Nations
(PC/TC/10) . . . . . . . . . . . . . . .
Annex B: Chapter IV: the trusteeship system . .
Annex C: Supplement No. 4 (PC/TC/4) . . . . .
Annex D: Supplement No. 4 (PC/TC/31) . . . .
Annex E: Committee 4: Trusteeship, summary record of
meetings No. m ................... . CO~TE~TS XXVII
Page
Annex F: Committee 4: Trusteeship, summary record of
meetings No. 15 . . . . . . . . . . . . . . . 485
Annex G: Preparatory Commission of the United Nations
(PC/TC/41) . . . . . . . . . . . . . . . . . . . . . 489
III. Document filed by the agent for the Govcrnment of South
Africa . . . . . . . . . . . . . . . . . . . 491
Respondent's reply to Applicants' memorandum . . . . . . 491
PART IV. CORRESPONDENCE
QUATRIÈME PARTIE. CORRESPONDANCE
Nos. 1-122. . . . . . . . . . . . . . . . . . . . . . . . . 509 PART II (conclusion)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held /rom I5 March to I4 ]uly,20 September
to I5 November and 29 November I965, 2I Marchand on
r8 July I966, the President, Sir Percy Spender, presiding
(concluded)
PARTIE II (suite et fin)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues du I5 mars aitr4 jiâllet, d20 septembre
au I5 novembre, le 29 novembre I965, le 2I mars
et le I8 juil/el I966, sous la présidence
de sir Percy Spender, Président
(suiteet fin) 3
ANNEX TO THE MINUTES (concluded)
ANNEXE AUX PROCÈS-VERBAUX (suite et fin)
24. HEARINGS OF THE WlTNESSES AND EXPERTS (concluded)
AT THE PUBLIC HEARING OF 20 OCTOBER 1965
)fr.GRoss: Mr. Possony, in respect of your testimony directed to the
point that attempted application of international standards-! will con
centrate on that for the moment-relating to governmental policies of
discrimination would, in many instances, have an adverse effect on the
well-being and progress of the persons concerned, what signifi.cance or
meaning do you attribute to the word "discrimination"?
Mr. PossONY: In a line on page 493 of the Reply, IV, it is said that
the terms are used in their prevalent and customary sense. According to
the Concise Oxford Dictionary the word "discriminate" means "be set up
or observe a difference between or distinguish from another, making a
distinction". Then therc is a parenthesis which says "discriminate
against, distinguish unfavourably, of taxes for examplc" or "observe
distinctions carefully". Now the dictionary here says essentially, as I
understand it, that the worcldiscrimina te or non-discrimination is meant
simply to describe a difference of fact, that you have a situation of
differences in reality and you take those into account. It does not have,
in the prevalent and customary sense, a meaning either of discriminate
against, which is what the dictionary refers to, or discriminate for, in
favour of, which would also be a meaning. That, I think, is the meaning
of page 493, that discrimination is essentially a neutral term.
Mr. GRoss: So that your tcstimony with respect to the existence or
attempted application of international standards, as defi.ned on IV, page
493, assumed, if I understand you correctly, that the word "discrimina
tion" was used in a ncutral sense, that is, equivalent to meaning any
distinction or differcntiation, whether benevolent or otherwise?
Mr. PossoNY: Well, in line with page 493, as I understand it, the word
"discriminate" is used neutrally in the sense that no laws should be
passed or, as it says hcre: "Governmental policy and action should be
undertaken in line with a discrimination concept"; that is, as is also
stated in the paragraph, the laws should essentially refer to individuals
as such. That is what I understand this to mean.
Now, in the argument supporting the norm, various texts arc quoted
which, most of the time, use the word "distinction", but at other times
they do not use this word and I think a good exarnple of this is here at
IV, page 505 of the Reply. It is said, on the last line of the text:
"The Declaration makes it clear that racial distinctions, be they
called racial discrimination, segregation, separate development, or
apartheid, are unacceptable."
In the Draft Convention on the Elimination of All Forms of Racial
Discrimination in one paragraph discrimination, as I pointed out yester
day in my testimony, is linked to evil racial doctrines and practices of
Nazism in the past.4 SOUTHWESTAFRICA
Mr. GRoss: If I may interrupt you there, what document are you
referring to, Sir?
Mr. PosSONY:That is E/CN4/873.
Mr. GRoss: What is the title of the document?
Mr. PossoNY: It is the Draft International Convention on the Elimi
nation ...
Mr. GROSS:I see, you had referred to a Convention. Please continue.
Mr. PossoNY: Now, summarizing this whole area of semantics, it
would seem that wc have here a word, or a set of words, which can be
interpreted in an entirely neutral, objective sense, as observing or taking
into account the factual differences, or we have an extremely pejorative
sense like Nazism, which is essentially genocide. As betwecn these varions
terms and these different meanings, I think this is one of the difficulties
here, it is not quite clear which is meant at what particular time.
Mr. GROSS:Mr. Possony, we will endeavour to clear that up. Now,
with respect to the use of the term, pejorative or otherwise, the Appli
cants believe that they know what they mean by the term. My question
directed to you was not one of semantics at ail. It was. if I may repeat,
and perhaps you feel you have answered it, in your testimony, directed
to the point I have mentioned, what meaning or definition did you
attribute to the word "discrimination"?
Mr. PossoNY: Weil, it depended on the context. I think this varied,
because I had to quote many texts. If you would be kind enough to
specify the precise point, I will try to answer it.
Mr. GRoss: Did you use the term "discrimination" in any context,
in which it had what you described as a pejorative sense?
Mr. PossoNY: Undoubtedlv.
Mr. GRoss: Now, with regard to your understanding on the points
to which you have testified, as set forth in the letter, paragraphs (a)
and (b), did you understand the content of the standards, contended
for by the Applicants, to apply to any differentiation or distinction,
whether or not such differentiation or distinction involvcd discrimination
in a pejorative scnse, to use your term? ·
Mr. PossoNv: As I tried to clarify a moment ago, IV, page 493, and
I will have to read it for what it says, does not say "pejorative", or
perhaps better terms would be "disabling" and "enabling", using some
of the language from lndia for example, but it uses it neutrally in the
sense that governmental policics should not be made that are allotting
status, etc., to groups rather than individuals. That. I think, seems to
me to be the gist of the second paragraph on page 493.
Mr. GROSS:So that the answer to my question, is or is it not, that your
understanding of the phrases uscd and the context in which they are
used, whethcr for good or ill, is that they refer to a neutral concept of
any differentiation or any distinction irrcspective of its quality or charac~
ter? Is that your understanding?
Mr. PossoNY: My understanding is that the norm, or I should say
the alleged norm or the norm which is under debate, as it was tried to
be defi.ned says, in essence, that the govcrnmental action, let us say a
law, drawn in terms of groups, classes or races ispso facto discriminatory
and would fall outside the norm as it is argued and that the concern of
the law should be the individual persan.
Mr. GRoss: Can you answer the question yes or no, Mr. Possony, or
do you fcel you have already answered it? In the latter case I will not WlTNESSES AND EXPERTS 5
badger you with the point any longer. Can you answer the question yes
or no: whether you understood the term "discrimination", as employed
by the Applicants, to mean and refer to any differentiation or distinction
irrespective of its quality or consequence? Can you answer that question,
yes or no?
Mr. PossoNY: No, I cannot, because I think the usage varies. I think
on page 493 that the answer would be yes. In other contexts I do not
think that would necessarily follow.
Mr. GROSS: I am talking about the standards defined and described
on page 493 and I thank you for your answer.
I should like to ask you whether you have familiarized yourself, in
the course of your preparation for these proceedings, generally speaking,
with the Respondent's \vritten pleadings and I refer specifically to those
discussions in the Respondent's written pleadings concerning the exis
tence and the content of international standards concerning official or
governmental discrimination? Have you had occasion, in preparine: your
self for these proceedings, to consult or read the written pleadings of
the Respondent in that respect?
)fr. PossONY: If I may ask a question, Mr. President, does this refer
to the pages following page 493?
1'1.r.GRoss: I beg your pardon, Sir; I should have, in fairness, identi
fied what I meant by the Respondcnt's written pleadings: I am talking
about the Counter-Memorial and the Rejoinder, and would refcr you
to III, page 529, as an illustration of the nature of the issues joincd herc,
and refer particularly to paragraph (g), which reads:
"In more recent times policies have been devised in various parts
of the world with the specific ideal, to which Respondent whole
heartedly subscribes, of eradicating, avoiding or reducing to a
minimum ail unclesirable aspects and manifestations of such group
reactions, such as unfair discrimination, domination of one group
by another, and the like."
Now, in connection with the phrase "unfair discrimination", would
you regard, Sir, or say, as a political and social scientist, that the term
"discrimination", as used in this context which I have quoted, is used
in what may be callecl a prevalent and customary sense connoting detri
ment or inequality of treatment or some other adverse ef-fectupon the
object of the discrimination? Would you say, Sir, that the word "discrim
ination" in this phrase "unfair discrimination" is uscd in a prevalent
and customary sense, in a pejorative sense?
Mr. PossoNY: It is used in a pejorative sense, there is no doubt about
it, but whether it is used in a prevalent sense I bow to the Oxford Dictio
nary on that.
Mr. GROSS: i\IayI just ... I thought you had finished, excuse me, Sir.
?\fr. PossoNY: Weil. I would like to say that they obviously have full
freedom to use the word under the heading of unfairness, in which case
we would have specifically to analyse the particular cases of unfairness
that may be aimed at by a particular declaration or convention. The
question, it seems to me, has to be handled in two steps: first of ail,
you have to decide whether. in line with your own argument, you can,
should, or must, or should never. write a law that recognizes the existence
or non-existence of groups, and whether you can clraft a law only for incli
viduals, as in the sense of the 19th-century State concept of laisser-faire,6 SOUTH WEST AFRICA
let us say for simplicity; or whether you recognize groups as a valid
object of legislation. Now, once this is decided-and this is brought up
by your formulation on page 493-then, obviously-and I quoted many
examples-there is always the question of doing something for or
against, and the very facts, very powerfully, in my judgment, call for
positive, constructive action. So then the question cornes down to
whether a particular discriminatory measure-discriminatory now in
the sense of distinguishing or differentiating between two groups-is
either fair or unfair, or is constructive or destructive.
Mr. GRoss: Now, Sir, keeping our attention focused on the point in
issue, to which I am attempting to direct your attention for the benefit
of the Court's clarification, with respect to your testimony, involving
as it did the use of terms discrimination, distinction, differentiation,
and other terms, I now ask you, Sir, whethcr in your studies of the
Respondent's writtcn pleadings you have corne across Book IV of the
Counter-Memorial, II, page 475-do you have that before you, Sir? ln
paragraph 33, I call your attention to the following language:
"It [that refers in the context, I think you will find, to the policy
of separate development or apartheid as it is used interchangeably
if these pleadings] avoids the possibility of members of one popula
tion group feeling themselves threated by the ... "
Mr. PossoNY: Just a second, Mr. President, I have not found that.
Mr. GROSS:Page 475, paragraph 33, about 21 lines from the bottom,
approximately. Have you found that?
Mr. PossoNY: Yes, thank you.
Mr. GRoss: Now, that "It", as you will notice, in the context referred
to the so-called policy of separate development or apartheid.
Mr. PossoNY:Yes.
Mr. GRoss: Now:
"It avoids the possibility of members of one population group
feeling thernsclves threatened by the educational and economic
development 011 the part of others. [I particularly call this next
sentence to your attention:] It avoids, also, the processes of discrim
ination in the private economic sector which appear to be virtually
unavoidable in ail cases where attempts are made at encouraging
... integration between groups as divergent as African Natives
and Europeans." (II, p. 475.)
Without soliciting your opinion concerning the policy of separate
development or apartheid as such-I understand that your testimony
was not directed to that point--do you consider, in the context of your
testimony, that the Respondent's reference to "discrimination", unqual
ifiedby the word "unfair" or other adjective, in the context just quoted,
is consistent with the customary or prevalent use of the word in the
political and social sciences?
Mr. PossoNY: Mr. Gross, I think in this particular instance the term
refers to an entirely different phenomenon than the one we have been
discussing so far: up to now, we have been discussing Government
policy, but now in this particular case you find that the term refers to
the factor of discrimination as between human beings, if I understand
it right-I have not studied this particular text-but that seems to
be the meaning: that in a factory or in a business firm people are be
having in a discriminatory fashion as a matter of social fact-that is WITNESSES AND EXPERTS
7
the sort of thing I was discussing yesterday in terms of the United
States, and it was considered not to be relevant to the subject.
)Ir. GRoss: Now, do you consider, Sir, as a political or social scientist
or both, that the use of the term "discrimination" in this context has
a different meaning than it would have in another context, based upon
the fact that it refers here to social discrimination of a private nature
rather than govemmental discrimination; would you say that changes
the character or meaning of the word, as you use it in your testirnony?
Mr. PossONY: But it is an entirely different phenornenon.
Mr. GRoss: I see, Sir, so that you consider that the allegation or the
contention made, in terms of your testimony, which is what we are
trying to analyse, not to debate or have word games, it is your under
standing that the term, as used in the Applicants' formulation of the
standards, relates to any distinction or differentiation, irrespective of
its character, as beneficent, benevolent, detrimental, or what have you?
:\Ir. POSSONY:On IV, page 493?
Mr. GROSS:I am talking, Sir, about the formulation of the standards.
Now, Sir, let me just clarify that point in terrns of your comment:
page 493 is not a self-containecl page in these pleadings, as you know,
Sir, the sources and content are generally described on page 493, but
there is considerable discussion elsewhere concerning the nature and
content intended to be carried by those words-you understand that,
Sir, do you not?
Mr. PossONY: Yes.
Mr. GROSS:I am not, therefore. talking about any particular set of
words, I am talking about the meaning underlying the words, and this
is what we are attempting to clarify in terms of your understanding.
Now, in those terms, Sir, did you or did you not understand the concept
or the standards, for which the Applicants contend in this case, to make
impermissible any distinction or differentiation on the basis of race,
sex, etc., irrespective ofits character, quality or effect? Or have you
answered that question already?
Mr. PossONY: I think I answered it, and I have to go back to what I
consider, and what has, apparently, corne up again and again in the
proceedings, the key paragraph or the key point, which is on page 493;
and in that text, irrespective of what follows in other parts, it is a
matter of govemmental policy in terms of group legislation.
Mr. GROSS:And of any type of differentiation or distinction, is that
what you mean to say?
Mr. PosSONY: I re-read that the tcrms refer to governmental policies
and actions, and then I skip a few words because that is on the positive
part, saying this essentially and referring to individual persons as such
-that is my understanding. That the rest of the argument and that
perhaps the motivations of the whole question are beyond that, is
certainly true.
Mr. GROSS:So that if your understanding is clarified, Sir, with respect
to the actual intent, and if it were the case that the Applicants contend
for standards which do not make impermissible any distinction or any
differentiation as such, would that alter the basis upon which your
testimony was given, Sir?
Mr. Posso~Y: I do not think so, for the simple reason that in that
case I would have to have the text to know exactly what the criterion
is on which the permissible-let us say discrimination, the enabling8 SOUTHWESTAFRICA
discrimination, is being made. As I understand it, and leaving aside
the question of South Africa or putting it in only as an example, I
have, as a political scientist,o decide when I look at this case whether
you have policies of the Nazi style, which are genocidal, and which
would obviously be entirely impermissible as far as I am concerned, or
whether you have policies which are of an enabling character-this
seems tome to be the question when you go beyond the argument that
you should not just legislate for individuals, but should take into account
groups. Do you have a Nazi policy or do you have an enabling policy,
do you have a policy which brings about the improvement, the strength
ening, the integrity of these various ethnie groups? Now, that is my
understanding of the policy intent, but once you raise the question
whether there is a permissible discrimination or not, I would have to
see exactly what are the criteria of permissibility or non-permissibility .
.l\frGROSS:Now, Sir, without attempting, and I will not pursue this
line too much further, to defend the language used by the Applicants
no doubt better wisdom would have suggested better language-without
asking you to comment about that, Sir, would it be fair to say that you
were not really sure what the definition meant in terms of your testimony?
What the phrase "discrimination" as used therein meant? \Vould that
be a fair question to ask you to answer?
The PRESIDENT:Now, ri.fr.Gross, what particular part of his testimony
are you referring to?
Mr. GROSS:I am talking of the use of the term "discrimination" and
I am asking the witness whether it would be fair to say that he just
was not sure what it meant in terms of his response.
The PRESIDENT:Whenever it is used at any time, no matter in what
context?
Mr. GRoss: I am talking, Sir, about IV, page 493, the description and
definition of the standards to which this witness's evidence is directed,
as I understand it.
.l\IPossoNY: Mr. Gross, or Mr. President, I should say, on page 493
the language is very clear. I do not feel that I have any particular
doubt-I can easily argue about the meanings of these things, but I
think the meaning is quite clear.
1\Ir.GRoss: The meaning, Sir, as quite clear is that it is used to mean
any distinction or differentiation. Is that correct, Sir? Is that your
understanding?
Mr. PossoNY: ln terms of group legislation. The meaning is, so far as
I am concerned, the State should legislate, having in mind the individuals
and not the groups. It says this: "which allot status, rights, duties,
privileges or burdens on the basis of membership in a group, class or
race", but may be this is wrong?
Mr. GRoss: Sir, I am making an effort, and perhaps I will pursue this
far enough to have it as clear as possible in my own mind, and for the
benefit of the Court, to clarify the meaning you attach to key-words and
phrases in connection with your testimony. This is my sole effort and
I do not support the language we use, nor am I now trying to interpret
it, this is between the Applicants and the Court, no doubt, Sir. I am
trying to clarify, in fairness to your own testimony and its understanding.
what meaning you gave to the word "discrimination" as used, and I
think perhaps you have answered that, Sir.
Mr. MULLER:Mr. President, the witness has answered that question. WITNESSES AND EXPERTS 9
I had put to him my understanding of the Applicants' case, and that
is that the case was that you should not distinguish on a basis of group,
class or race. I was then asked to read to the witness page 493, IV, which
I did, so my learned friend must adhere to page 493 when he asks the
witness questions like that, or he must abide by my interpretation of
the case, and that is the basis upon which the witness has answered the
question.
The PRESIDENT:I think it is not as simple as that, Mr. i\1.ullcr.That
is the reason why I asked Mr. Gross, when he referred to the use of this
term, in what context did he use it, as it has been used at different
times and in different documents, and may not have the same meaning
in different documents. That is why I earlier said to you to put to the
witness, and you did, the actual words at page 493 of the Reply. As is
there indicated, appears a defmition of the norm or standard relied
upon by the Applicants. Itis nota genera\ description, it is a definition.
Mr. GRoss: Yes, thank you, Sir. Exactly, Sir. Now with respect to
your testimony with regard to various United Nations actions and
resolutions and so forth, I call to your attention, Dr. Possony, Article 55
of the United Nations Charter, which reads in relevant part, as you
know:
"... the United Nations shall promote:
(c) universal respect for, and observance of. human rights and
fondamental freedoms for all without distinction as to race,
sex, language, or religion."
Now, Sir, did you, or did your testimony, with regard to the existence,
or otherwise, of the application, or otherwise, of standards of non
discrimination, take into account the existence of Article 55 of the
United Nations Charter?
Mr. PossONY: Mr. President, in covering a large body of eviclence, it
is always extremely difficult to decide what you put in and what you
do not put in, and we had trouble in the testimony on that very point,
and I made the assumption that the one thing I can eut out is the dis
cussion of the provisions of the United Nations, because the United
Nations provisions, as quoted in the Applieants' text here are quite
familiar. Asto Article 55, I would say that ...
Mr. GROSS:l\ir. President, I asked the witness, if I may interrupt
Dr. Possony, whether he had taken Article 55 into account in connection
with his testimony, so if the witness wishes to elaborate his views with
respect to the policies or substance of the matter, if the Court wishes,
that is ail right with me, but it is ...
The PRESIDEKT:That was the question, Professor, and it is important
to be responsive to the question, and we would appreciate it. What
you indicatcd was that in the course of your testimony you did not
refer to this particular matter because it was already before the Court,
and for that reason I understood you to say that you did not refer to
it specifically in the course of the tcstimony.
Mr. POSSONY:That is correct.
The PRESIDENT:That is not the question which Mr. Gross put to you.
The question as I understand it is, did you consider this in effect in
preparing the general trend of your testimony, or did you omit it from
considera tion altogether?IO SOUTH WEST AFRICA
Mr. PossoNY: I had considered it. I was just about to reply to it in
detail, but the ...
Mr. GROSS: Now, I shou]d like to ask you, perhaps what you were
about to comment upon, Sir, and that is: is it your understanding, or
is it the basis upon which your testimony is given, inter alia, that
Article 55, paragraph (c), of the Charter envisages or is directed toward
the elimination of all differentiation between races, or sexes, or Janguage
groups, or religious denominations? ls this your understanding of the
purport and effect of Article 55 ( c)?
Mr. PossoNv: Not at ail, Mr. Gross, the Article is under the heading
of "International Economie and Social Co-operation" and paragraph (c)
is the third subparagraph. The Article deals with the condition of sta
bility and wcll-being, which are necessary for peaceful and friendly
relations among nations, and these include respect of principle of equal
rights and self-determination, so this is the general import of the full
Article. The implementation of this generaJ point calls. for ensuring
"higher living standards", "full emplovment", and so on, I will not
read it all, to get into (this is under (b)) "health problems", "social
problems", and under (c) it is said 'human rights and fundamental
freedoms" with "universal respect for, and observance of, human rights
and fondamental freedoms ... ".
Now, it seems tome that it is self-evident that implementation should
be done in this way, and I would certainly agree that this has a general
meaning. It is, however, a repetition of a general principle applied to a
specific problem. ·
Mr. GRoss: Sir, could you answer my question, yes or no, with such
qualifications as you may think appropriate? Did your testimony reflect.
or was it in whole or in part, based upon an assumption on your part
that Article 55, paragraph (c), referring to "without distinction as to
race", etc., purported to, or was directed toward the elimination of, or
to encourage the elimination of, ail differentiation, any governmental
differentiation, on the basis of race or sex, etc. Do you understand this
Article to mean that, Sir?
Mr. PossoNY: No, Sir, I do not think it has anything to do with that
problem.
Mr. GRoss: You do not think the word "distinction" ... I am sorry,
Sir. May I focus your attention on the words "without distinction". Do
you regard the words "without distinction" as used in that context to
mean that there should be no differentiation of any kind between men
and women, for example, or between groups, minors and persons of
age, or between other groups?
l\Ir. PossoNY: l\lr. President, I have difficulty in that I think Mr. Gross
tries to interpret this particular passage in a generalway and I interpret
it in a specific way, and I interpret the language of Article 55 fi.rst of ail
within the context of Article 55. Now, to give an easy example, this
Article talks about health and related problems, and I would interpret
this to mean that in the application of what is done under the main
paragraph of Article 55 and (a) and (b), no distinction should be made.
For example, you find a new medical cure, well, it is self-evident that
the medical cure be made available to everybody who needs it, regardless
of race, sex, language or religion. The same thing applies to living stan
dards; if living standards can be made to improve, then obviously there
should be improvement for everybody, and there should not be a policy WlDŒSSES AND EXPERTS II
which would have to be a negative group policy, saying our living stan
dards have to increase and yours have to stay down. That would be
impermissiblc under this heading. So I cannot but read this language as
referring specifically to what the message of this Article is.
11fr.GROSS:I will endeavour to suggest methods by which perhaps
shorter, more rcsponsive answers might be givcn. It is my fault, I am
sure, in the form of my questions, that they are not otherwise. I think,
Sir,that the point I am attempting to elucidate is whether or not you
consider, and it is part of the basis of your testimony, that the words
used in Article 55 (c), the phrase "without distinction", whether that
is taken by you to set forth a standard or principle which would prohibit
any differentiation on the basis of race, or sex, or creed?
l\Ir. PossoNY: Of course not. But I did not write page 493 (IV).
Mr. GROSS:Thank you, Sir. Now, with regard to the existence, or
othenvise, and the applicability of the standards contended for by the
Applicants, did you take into account in your testimony that portion
ofthe definition or description which appears on page 493, and ,vhich is
as inherent a part of the definition or description as any other part?
It reads:
"Stated affirmatively, the terms refer to governmental policies
and actions, the objective of which is to protect equality of oppor
tunity and equal protection of the laws to individual persons as
such."
My question to you, very simply, is-you can answer yes or no-did
you take into account that term or portion of the definition in terms of
any of your testimony?
l\Ir.ossoNv: No, Sir.
Mr. GRoss: Now, with respect to the question of equality of oppor
tunity and i;::qualprotection of the laws, would it be within the normal
and prevalent customary use of the term "discrimination" to refer ta
phenomena, political, social, economic phenomena, in which persans are
denied equality of opportunity and equal protection of the law; would
that be a prevalent and customary use of the term "discrimination" in
the political and social sciences?
Mr. PossONY: In the political and social sciences we can certainly
use it this way, but whether it is prevalent or not I am not going to
reply to this bccause it dcpends on the author. It would be a perfectly
logical use.
Mr. GRoss: Yes, Sir. Now, with respect to the issue as joined, in terms
of the content and application of the standards for which the Applicants
contend, I call to your attention the Rejoinder, V, page 131, in which
the Respondent discusses the Applicants' contentions regarding the norm
and/or the standards, and specifically with rcference to Article 55 of
the United Nations Charter. I call to your attention, Sir, on page 131,
Respondent's statement that, after quoting the relevant portion of Ar
ticle 55, that is to say, sub-paragraph (c):
"Respondcnt is as desirous as any other Member of the United
Nations to achieve the above-quoted purpose, but does not agree
with the meaning attached to the provision by the Applicants. In
Respondent's submission it would be entirely anomalous to suggest
that any di[jerentiation (as distinct from un/air discrimination)I2 SOUTHWEST AFRICA
between races, sexes, language groups or religious denominations
would involve conflict or inconsistency with the said Article."
And then further down on the page, beginning at the last paragraph,
it is stated:
"lt is submitted, therefore, that the Charter did not purport to
establish any obligation not to differentiate between members of
varions groups, but was concerned merely to prevent oppression
and unfair discrimination."
And then it goes on to refer again to the Applicants; the version given
in the written pleadings and later in the Oral Proceedings to the Respon
dent's interpretation of the Applicants' meaning, as distinguished from
the Applicants' meaning.
Now, Sir, with respect to the terms "differentiation" and "discrimi
nation", as used in the context on page 131-was your testimony based
upon an assumption that those were synonymous concepts, or synony
mously used terms, "diffcrentiation" and "discrimination"?
Mr. PossoNY: lVlr.President, I think I have this difficulty, that we
have to decide whether I am supposed to interpret the United Nations
Charter, or the interpretation of the Charter by the Applicants. ln
interpreting the United Nations Charter I am very certain-! do not
think, at Ieast-that the word "differentiation" is not meant, or let us
say this particular paragraph 55 (c), is not meant to imply that distinc
tions between sexes, for example, should be disregarded. It would not be
feasible and I do not think this ever occurred to the drafters.
The PRESIDENT;It is not for the witness to tell the Court what is the
meaning of the Charter of the United Nations, that is a matter for the
Court. But Mr. Gross is cross-examining you to ascertain your mental
processes: it is not to get your interpretation, because Mr. Gross knows
that that is something he cannot get. He is seeking to get your mental
processes for the purpose of determining the weight to be accorded to
your testimony.
Mr. PossoNY: In this case, of course, I have interpreted Mr. Gross'
Submission on page 493, IV, and according to that, differentiation as
such would not be allowed.
.r. GRoss: Would not be what, Sir?
l\Ir. PossoNY: Would not be allowed, would not be admitted.
The PRESIDENT:That means the definition at page 493 of the Reply?
1\Ir.PossoNY: Differentiation as to groups would be ruled out.
Mr. GROSS:That is your understanding, Sir?
Mr. PossoNY: That is my understanding.
Mr. GROSS:And it was on the basis of that understanding that your
testimony was directed. I think you have already said that, Sir, is that
not correct?
Mr. PossoNY: If I may follow it up for one second I think I can show
where the difficulty sometimes arises, and I call your attention to both
the Declaration and the draft Convention on Racial Discrimination
on IV, page 506 of the Reply. There, Article 2, sub-paragraph 3, says
this:
"Special concrete measures shall be taken in appropriate circum
stances in order to secure adequate development or protection of
individuals belonging to certain racial groups." WITNESSES AND EXPERTS 13
Now the reference here is to the individuals; and we may have a third
category-it is individuals and groups, and then there. are "individuals
belonging to groups", according to this text. But then we go to IV,
page 507, which prints the draft Convention, and sub-paragraph z of
Article r talks of-
"... sccuring adequate development or protection of certain under·
developed racial groups or individuals belonging to them".
This is quoted in support of page 493. I cannot read this text on page 493
disregarding the support to the argument, and I think it stands out
very clearly that this text makes the point that laws should be addressed
to individuals.
l\Ir. GROSS: Mr. President, I am desirous to conserve the Court's time
and yet in fairness to the witnessI think perhaps it might be convenient,
ifthe Court permits, to make clear again, without attempting to engage
in a colloquy or argument with the witness, which would be unseemly,
that my purpose is not to establish whether or not the Applicants use
good, or bad, or clear, or unclear language, Sir. It is simply to ask the
witness what his understanding was on the basis of his testimony, the
point the honourable President made previously. But I think that if
that is clearly understood, we can obviate the necessity, if the witness
is agreeable,to justify his understanding or to refcr to arguments made.
I will assume that his understanding, whatever it is, is justified in his
view, Sir,and not ask for his arguments in support of his views, because
Ijust have one or two quick questions on this same point.
The PRESIDENT: It is a matter entirelv for vou, .Mr. Gross. Your
observations are noted, but you are cross-examining and ifyou wish
to put questions to the witness you have not been prevented from doing
so.
Mr. GROSS: N ow, Sir, you have testified that in many instances the
application of standards which-in terms of the definition on page 493,
to which your attention has repeatedly been directed-as contended for
by the Applicants, include, affirmatively, governmental policies and
actions, the objective of which is to protcct cquality of opportunity
and equal protection of the laws to individual persons as such. You
have testified. as 1 understand the point (b) of the letter read into the
record, that the application of such standards would in many instances
have an adverse effect on the well-being and progress of the persons
concerned. Is that a fair rendering of your testimony, Sir?
Mr. PosSONY: Entirely correct: yes, Sir.
Mr. GROSS:Would you indicate to the Court, if you will please, Sir,
one or more instances, if any, in which the application of a standard
envisaging equal protection of the laws and cquality of opportunity
would have a dctrimental effect upon the person or persans concerncd.
l\IrMuLLEic Mr. President, with respect, it is not only equal oppor
tunity and equal protection, but it is to the individual as such.
The PRESIDENT:I notice that, Mr. Muller, and I expect the witness
will too.
Mr. PossoNY: Yes. that was exactly the point. The ciucstion is again
the absence or the existence of legislation referring to a group or not
to a group, and I have given yesterday, and l was stopped short, on
this very point, testimony with respect to the Negro situation in the
United States and with respect to the Asian-Indian situation in East SOUTH WEST AFRICA
14
Africa, which shows that the legal notion that ail you have to do is
to legislate in di,c;regardof group differences and this will provide you
with equality of opportunity-this is fictional. I think we have clear
evidence, the Indians in America are another case, to show that this
is fictional,nd I ...
Mr. GRoss: Now, Sir, ...
The PRESIDENT:The witness has been invited to state instances and
he should be entitled to state thern at what length he desires to do so,
but with reasonable brevity. Continue, will you, because you have said
that you were prevented from making the observation and the question
invites you now to give the instances.
You are invited by Mr. Gross to give instances-have you finished
with them?
Mr. PossoNY: The instances of the Negroes in America, the Indians
in East Africa, the lndians in the United States, and I think that should
be enough because l testified on those.
JI.fr.GRoss: Now, Sir, is it then your testimony that with respect to
the persans or individuals comprising the groups you have mentioned,
that the application of governrnental policies, the objective of which is
to protect equality of opportunity and equal protection of the laws, has
had, or does have, a detrimental effect upon the individuals as such in
these cases? Is that your testimony?
Mr. PossoNY: Weil, it depends on how you define the words "equality
of opportunity being protected by the laws". My testimony would be
that the laws that are in existence in these situations did not protect
equality of opportunity. The equality of opportunity was not there to
start out with, and legislation would have been needed to create this
equality of opportunity. In the absence of such legislation enabling these
groups to acquire the particular capabilities needed to cornpete, there
was no equality of opportunity to protect-it did not exist.
Mr. GRoss: I am referring, Sir, as I think my question might have
made clear, to the question whether or not it is your testirnony that
the existence of laws which protect the equality of opportunity and
extend equal protection of the laws to the persons you have mentioned
are examples of instances in which the governmental policies concerned
visit a detriment, or have an adverse effect, upon the well-being and
progress of the individuals concerned in your examples-I may add-as
such.
Mr. PossoNY: Mr. President, I am at some pains to answer this, for
the simple reason that the purpose of my statemcnt is to make clear
that the Negro situation in the United States is characterized by the
fact that there is no de facto equality of opportunity and that this is
due in large part to the absence of rneasures and legislation enabling the
Negroes to reach the level on which they would have that equality of
opportunity.
Mr. GROSS:Sir, I would like now ... Incidentally, Sir, would you
also refer to--1 think you rnentioned Indians in the United States and
I think you mentioned certain persons in East Africa, did you not, Sir?
Mr. PossoNY: Yes, I mentioned thern.
Mr. GROSS:Now, with respect to those two groups of individuals, as
such, is it your testimony that governmental policy and actions, the
objective of which is to protect equality of opportunity and equal
protection of the laws to individual persons, as such, have a detrimental WITNESSES AND EXPERTS 15
effect upon the persons concerned, in terms of the point to which your
evidence was directed?
Mr. Posso:-.v: Mr. President, my testimony on the Indians in America
was that up to 1933, or thereabouts, legislation in the United States
considered the Indian as a person as such and that this legislation was
extremely detrimental to the Indians and that after 1933, legislation
was changed and that a new system was instituted which, looked at in
detail, has many differences and many similarities with other systems
we are discussing, but which, in essence, protects the Indian as a group.
Of course, the American laws also protect the Indian as an individual,
obviously, but the new feature, after many years of the lndians going
clown in many ways, was exactly that the lesson had been learned, and
the new type of legislation was instituted.
Now, in the case of these Asians in East Africa, the Indians in East
Africa, the fact of the matter is that-1 testified not from personal
knowledge but from literaturc-the Indians are leaving, are emigrating.
Therefore, obviously, their opportunity isnot being protected.
Mr. GRoss: Sir, is it correct to say that your testimony, to which you
have now referred and related back to yesterday, is properly, fairly,
construed to mean that you actually have not cited instances in which
govemmental policies, the objective of which is to protect equality of
opportunity, have a detrimental effect upon individual persons, as such?
Have you referred to any such instances, Sir, in any of your testimony?
Mr. PossONY: Yes, wc went over it a minute ago.
Mr. GROSS:And you think that your answer tome is that the Govern
ment policy in the United States, the objective of which is to protect
equality of opportunity and equal protection of the laws to certain
individuals comprising groups, is detrimental to their benefit? ls that
your testimony, Sir?
Mr. PossONY: My testimony is that the laws of the United States
with respect to the Negroes, for example, are inadequate.
Mr. GRoss: Are detrimental to their benefit, Sir?
~fr. PossoNY: Weil, if you take the evidence which I quoted yesterday,
that the Negro situation is going down, which is based on a Department
of Labor report, which came out a few months ago, on which the Pres
ident talked-if a situation is going down, I do not see that this is to
their advantage-it is detrimental.
Mr. GROSS:The point to which your evidence was directcd, which I
quoted at the outset of this series of questions, is that your testimony
might be directed towards establishing that the application of the
standards contendecl for by the Applicants would, in rnany instances,
have an adverse effect on the well-being and progress of the persons
concerned. I quoted from the letter read into the record, and I have
asked you, Sir, and attempted to elicit as clearly as possible, your opinion
whether or not, in the specific context we are now discussing, it is your
view that the Icgislation in the United States, the objective of which
is to protect equality of opportunity, let us say for certain citizens, in
particular the Negroes to whom your testimony referred, and to extend
to them equal protection of the law-is it your testimony that this is
an instance of a governmental policy which has an adverse effect upon
the persons concerned-the individuals, as such? ls that your testimony
or is it not, Sir?
Mr. PosSO!-<YI: will repeat it again. Mr. Gross. I have to use my own16 SOUTH WEST AFRICA
language. My testimony is that the legislation presently on the books
in the United States does not protect the equality of opportunity of
the Negro, simply because it has failed, and still fails, to create the
situation in which there would be such equality of opportunity.
The PRESIDENT:May I put a question to the witness, Mr. Gross, on
this matter? Let it be supposed in any territory that there are different
ethnie groups of the type that you have given evidence about and there
is government policy or action, the objective of which is to ignore the
groups but to protect equality of opportunity and give equal protection
under the law to the individuals. If the groups were ignored by laying
down such policy or action, would there be, in your view, in any instances
that you know of. or in principle, dctriment to the individual?
Mr. PossoNY: Mr. President, this \vould be true in many instances.
It would not be true in all instances. It depends exactly on the concrete
situation. There are ethnie differences where the ethnie differences, in
essence, can be disregar9-ed. There are ethnie differences which cannot
be disregarded. ln those instances. the oversight of legislating for the
group will lead to detrimental effects.
.Mr. GROSS: Now, Sir, one further question with respect to your
testimony regarding the legislation in the United States which you cite,
as I understand it, as an example of having a detrimental effect, or an
adverse effect, on the well-being and progress of the Negrocs. Is it your
testimony, Sir, is it intended by your testimony in that respect, to do
full justice to your meaning, that what you mean actually, Sir, is that
the laws, the legislation and the policy does not go far enough in the
direction of assuring equality of opportunity? Is that what you really
mean, Sir?
l\lr. PossoNY: No, I do not mean that. I mean it goes in the wrong
direction. .
Mr. GRoss: Weil, Sir, the question of assuring equality of opportunity
-we are speaking, here, about standards, are we not, Sir, a legislative
policy, governmental policy, is that not what we are talking about, Sir?
Mr. PossoNY: I think so.
Mr. GROSS:And the policy of affording equality of opportunity and
equal protection of the laws is, you would agree, would you not, the
policy which underlies and is the foundation stone of the American
legislation on this subject?
Mr. PossoNY: Similarly, Mr. Gross, the point to which I address my
self is that there is an intellectual difficulty in Washington to understand
the significance of the ethnie factor. This has been part of the national
tradition in the United States, for perfectly good historical reasons, and
that is the point which I think should be fully understood. It took the
United States many, many years-over a century-to understand that
point with respect to the lndians.
Mr. GROSS:But you do, Sir, agree or do you not agree with the va
lidity,the soundness, the wisdom of the policy of assuring equal protec
tion and equality of opportunity as a standard, as a policy, as a prin
ciple-you do agree with that, Sir, do you not?
Mr. PossoNY: In a sense absolutely, but each person is a member of
a group. With this group and alone, he should be able to go as far as
he can, of course.
Mr. GRoss: And your testimony. I take it, really is, am I correct in
this, that you would re-write the laws, you would enact different types WITNESSES AND EXPERTS 17
of legislation to further this policy-is that a correct version of your
testimony, Sir?
Mr. PoSSONY:That is, with due respect, the impact. I am not the
legislator of the United States, but I would add this observation to the
last part of my tcstimony yesterday. I think that the United Nations,
on reflection about this very type of problem, have finally corne to
realizcthat more research on these matters is necessary and that a lot
of the texts which we have publishcd immcdiately after \Vorld \Var II,
under the psychological impact of World \Var II and Nazism, failed
to take into account what the real facts of life are in multi-ethnic societies.
I will not go beyond saying that in my judgment the legislation in the
United States at the present moment is not responsive to the realities
of multi-ethnic problems but I certainly am not going to propose any
ameliorated Iegislation before the necessary research is made. The weight
of the testimony is essentially that there are unsolved problems.
Mr. GRoss: Vou would I think agree, would you not, Sir, that from a
standpoint of social science, political science, these problems never really
will be solved in any real sense of the word? You would agree, Sir,
that from now on, probably for ever more, society will be faccd with
the necessity of planning and analysing and indeed praying over the
problems? You would agree with that, Sir?
.Mr. PossONY: Yes, Sir. I agree with that but I also would make the
point that we have known a lot of these things 50 years ago but we
have forgotten them and that was why I brought in some of the his
torical evidence.
Mr. GROSS:N'ow in the course of the Oral Proceedings on 19 October,
that is in the verbatim record, XI, page 696, Counsel for Respondent,
Mr. Muller, askcd you and I quote: "Are there international agreements
on the rights of individuals?" You rcspondcd at the same page: "No
there are not." You then proceeded to discuss certain problems relative
to the formulation of the Human Rights Covenant and Dcclaration;
that is a correct version of your tcstimony, is it not, as set forth there?
Mr. PossONY: The answer certainly is "yes".
Mr. GRoss: Now, Sir, in the course of your preparation for a testimony
at these proceedings, you have, I think, already testified that you
examined, correct me if I am wrong, and studicd the pleadings and that
you have, among other things, examined the sources of international
standards, which were set out in the Reply, IV, pages 493 to 5ro. Have
you incidentally also had occasion to read the Oral Proceedings, in
which these points were elaborated, particularly, 18 May, IX, pages 325
and following?
Mr. PossoNv: That is your speech, Mr. Gross?
Mr. GROSS:That is part of the Oral Proceedings before the Court,
Sir, also rclatingto supplementing and elaborating the argument on the
content and existence of the international standards which we contend
should govern the interprctation of the Mandate-you have considered
that. Sir?
Mr. PossONY: I have read it. I have not re-read it for the last two
months or so.
Mr. GRoss: Weil, Sir, I will not tax your recollection about it but
in connection with your negative response to Mr. l\Iuller's question as
to whether international agreements exist ''onthe rights of individuals",
to use his phrase, do you consider the United Nations Charter to be an SOUTHWESTAFRICA
international agreement which, among things, embodies undertakings
to promote human rights and fondamental freedoms of individuals
would you agree to that, Sir?
Mr. PossONY: Yes, among other things.
Mr. GRoss: And do you consider the mandatory, trust territories,
agreements to be international agreements "on the rights of individuals",
to use Mr. Muller's phrase? Specifically I would refer to typical pro
visions cited in the Reply, IV, page 502, pursuant to which the admin
istering authorities undertake to guarantee to the inhabitants of the
territory certain enumerated rights and freedoms-for example, illus
trations are cited at page 502 of the Reply-"without distinction as
to race", and so forth. Do you regard these to be international agreements
on the rights of individuals?
Mr. PossoNY: No, Mr. Gross. Those are international agreements on
trusteeships. Let me make myself clear, those are not international
agreements addressed directly to the question of human rights. After ail,
we do have a major effort in the United Nations going on which aims at
writing such an agreement on human rights perse.
Mr. GROSS:By your answer then, by way of clarification, I take it
that the short question and the short response in this respect, by that,
in fairness to your tcstimony, you meant to refer to human rights conven
tions and similar documents or instruments-is that what you had in
mind in responding to Mr. Muller's question, Sir?
The PRESIDENT:That must be the meaning of the question, Mr. Gross,
which was: "Are there international agreements on the rights of individ
uals?" His reply was, I understood, "on the rights of individuals" no
agreements.
Mr. GROSS:On rights of individuals?
The PRESIDENT:Yes, that was the subject-matter of the question.
Mr. GROSS:Does the President wish me to ... ?
The PRESIDENT:No, except just to indicate that it is the witness's
understanding of the question to which he replied when he said "no".
He said he was referring to international agreements on the subject of
rights of individuals.
Mr. GROSS:I wanted to elicit that for the Court, in fairness to the
witness, Sir, to clarify what might othenvise be an obscure meaning that
could be attributed to his testimony. With respect, however, to the
distinction which you intended to draw in your response to Mr. J\Iuller,
do you consider the International Labour Organisation Constitution and
Convention an international agreement on the rights ofindividuals? I refer
particularly, for example. to the provisions cited and quoted in the
Reply, IV, pages 508-509. Just for the sake of clarification of your
response, would you regard the International Labour Organisation
Convention and Constitution as international agreement on the rights of
individuals in your sense of the term?
Mr. PossoNY: I do not know what the title of the convention is, I
think it is the Constitution of the International Labour Organisation and,
inter alia, it, of course, deals with human rights that are related to the
whole subject-matter of labour. I would not consider that a human rights
convention. The point is that human rights automatically will have to
corne up in many conventions·but the convention is drawn for another
purpose.
Mr. GROSS:Now specifically, Sir, with regard to the regional treaties, WITNESSES ANDEXPERTS
19
which are referred to in the Reply; I refer, for example, to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, would you, Sir, in terms of your testimony regard that as
an international agreement on the rights of individuals?
Mr. PossONY: The European Convention-yes. It is regional, this is
why I did not take it into consideration in the answer. Frankly, I have
not looked it over reccntly exactly to see whether it refers exclusively
to the matter but from the title, if this is the title which is given on
page 290,"The Protection of Human Rights and Fundamcntal Freedoms",
then that would be a correct exception, in a regional sense. My answer
was responsive to the effort going on in the United Nations to draft a
convention on human rights on the basis of the Universal Declaration.
i\fr. GROSS: I do not want to comment on the form of the question
put to you by i\Ir. Muller but for the sake of clarity perhaps I should
ask you one final question, if the President permits. May I continue,
Sir,just this one question?
The PRESIDENT:Yes, certainly.
l\lr.GROSS: What is the purpose, in terms of your testimony, in
drawing a distinction betwcen international agreements relating to
human rights solely and international agreements which, i'nteralia, pro
tect human rights? Is there any distinction you wish the Court to
draw based upon that characterization?
Mr. PossONY: I certainly do. The difference is that essentially in
most of these treatics-we will leave out the European convention
human rights are mcntioned as a matter of course. The meaning of these
stipulations is vague, sometimes obscure. It is precisely in order to
remedy this difficulty that the United Nations bas started on the effort
to straighten out the human rights problem by writing an international
convention of which each Member of the United Nations could be a
signatory, laying down language so clear that it could be introduced
into statutory law and so that human rights in effect could be protected.
It is the difference, I think, between a declaratory policy and positive
law.
Mr. GROSS: May I ask one more question,' to tax the President's
patience?
The PRESIDENT:Ccrtainly.
Mr. Gnoss: \Vas it the purpose and purport of your testimony in
response to Mr. Muller's question that you wished to draw the distinction
between the Human Rights Declaration as such and the Human Rights
Covenant as an international agreement-was that the purpose of your
testimony in that regard?
Mr. PossONY: The purpose of the testimony was to show that you
have a process of drafting going on for many years now, close to 20 years.
I quoted :\fr.Malik, who is an expert on the subject-matter, that this
process was started in the hope that an immediate or fairly early result
could be achieved because ail these things are so clear. Then, when the
experts of the various countries sat down and tried to work out the texts,
it turned out that there wcre many difficulties. Now there are, as I
pointed out, intellectual difficulties which have not, in my judgment,
been overcome even though there are drafts. The fact that the United
Nations itself now initiates research seminars on multi-ethnic societies
and so on would bear me out on this point. ln addition to the intellcctual
difficulties of defining precisclywhat these human rights are and how20 SOUTH WES1' AFRICA
they could be applied, you have a very large area of political difficulties
to which I just refcrred briefly.
1\Ir.G1wss: Dr. Possony, in your testimony you have made numerous
references to constitutional and other ]egislative enactments relative to
the general matter of equality of opportunity, equal protection of the
laws, al!otment of rights and burdens on the basis of membership in
a group, etc.-that is correct, is it not? I should like to read certain
constitutional provisions in respect of some of the States to which you
have referred, and ask you to indicate whether or not you agree that
such provisions as I shall refer to evidence a general or widespread
constitutional practice of States envisaging equality before the law with
out discrimination on the basis of race or other group classification.
I should like to refer, for example (and my references will be to the
work that vou have cited as a source, which is Peaslee, Constitutions
of Nations, ·which is the second edition of 1956), to the Federal Consti
tution of Austria, 1920, Article 7 (1): "AU Federal citizens are equal
before the law. Privileges based upon birth, sex, social position, class,
or creed are abolished." This is quoted in Volume I, page ro8. My
preference would be, if the President permits, to refer to these and then
ask the witness, when they have been cited, questions with respect to
them.
The PRESIDENT: It is a matter for yourself, llfr. Gross, if it can be
conveniently clone that way.
Mr. GROSS:Thank you, Sir. Belgium ...
~Ir. PossoNY: Mr. President, may I interrupt? I don't think it is
quite easy to remember ail these Constitutions; I frankly would prefer
to be asked the specific question on each case.
The PRESIDENT: I think that would be better, r.frGross. After ail,
if you ask the witness: "Having looked at these provisions in the context
in which they are found, what is your conclusion in respect of them?",
it would probably mean that you will have to go back over them indivi-
~~~ .
Mr. GROSS:With respect, Sir, 1 rather thought not; in the introduction
to my question I had indicatcd to the witness the purpose to refer to
constitutional provisions in respect of numerous of the States which
he has mentioned in his testimony and then. having called these to
witness's attention, to ask whether, taken singly or collectively or both,
they do in his opinion evidence a constitutional practice relevant to
bis testimony and in respect of the standards and/or the international
legal norrn for which the Applicants contend.
The PRESIDENT: If the witness finally says "I cannot give you an
answer except by examining each one", then you would be back in the
position in which you started.
~fr. GROSS: With respect to the Austrian constitutional provision,
Article 7 (r), do you agree that this is an example of a constitutional
standard with respect to the equality of protection of individuals regard
less of race?
Mr. Possoxv: Mr. Gross, in the first place I did not discuss the Austrian
Constitution; in the second place I agree that this is a protection, but
I should add that Austria in 1920 was a uniform State, and the only
meaning of this Article would have been, disregarding the abolition of
the aristocracy, protection of some very small minorities in the southern
part of Austria and the Jews. There is no question about the fact that WITNESSES AND EXPERTS 21
you do not have in these two cases a racial distinction of any significance,
or let us at least put it this way, of any visibility. The language was
essentialiy the same, and everything elsc was the same. It was a sclf
evident proviso after a very painful history, in the course of which the
ethnie groups were split up.
Mr. GRoss: If you arc aware, is it or is it nota constitutional practice
of Austria that all citizens are regarded and stated to be equal before
the law, and that privileges based upon birth, class, etc., are abolished
-is that the constitutional practice of Austria today?
Mr. PossoNY: Correct. It is also the constitutional fact of Austria
that it is a uniform national State.
Mr. GRoss: With respect to Belgium, I refer to the Constitution of
Belgium of 1831, which is cited in Peaslee, Volume I, page 153, and
read Article 6 which reacls in relevant part as follows: "There shall be
no distinction of classes in the State. All Belgians are equal before the
law ... " Do you accept this as constitutional practice which is relevant
to the question whether or not international standards exist, or an
international norm exists, with respect to the equal protection of the
laws and the guality of opportunity?
1\IrPossoNY: I woulcl think that this is a very good example to show
that this norm, or allegecl norrn, is very vague and general. Obviously
in Belgium, all the Belgians are equal before the law. But I testified
-1 understand that other witnesses have testified to the fact too, and
I think we have herc somewhere the documentation-that even though
thcre is no question but that the differences between the Wallons and
the Flamands are after ail slight-certainly, no racial difference between
them would be visible-troubles have arisen on account of language.
Today, because this trouble has been going on for many years and has
had weakening impact on Belgium in general, so far as I understand the
htstory of Belgium-at the present moment discussions are under way
and have led to a bill aimed at changing the representation of the two
main groups. In other words, you have here a case where at first an
attempt was made to disregard the group factor, to legislate purely in
terms of the individual, an attempt which was very much in line with
19th century, early part, thinking; and now we corne around to recog
nizing that this is not a very workable solution, and other ways are
being looked for.
Mr. GRoss: If you are aware, does the constitutional practice of
Belgium treat ail citizcns as equal before the law, irrespective of their
race or national origin?
i\Ir. Posso~Y: Of course it does.
~tr.GRoss: \Vith respect to Burma, I refcr to the Constitution of
the Union of Burma of 1947, in particular Article 13 which is cited in
Peaslee, Volume I, page 280:
"All citizens irrespcctive of birth, religion,sex or race are equal
before the law; that is to say, there shall not be any arbitrary dis
crimination bctween one citizen or class of citizens and another."
Would you say that Article 13 frorn the Burmese Constitution which
I have just read is evidence of the existence of a constitutional practice
in Burma which supports the existence of an international legal norm
or international standards with respect to the protection of individuals
before the law, equality of protection?22 SOUTH WEST AFRICA
Mr. PossoNY: I think we have a little difficulty here; I do not think
this article has anything to do with the norm as laid down at IV, page
493. I have testified on the Burmese Constitution in line with my under
standing of what the norm says, which, and I repeat, is that you should
not differentiate according ta group-I can read the exact paragraph.
Mr. GRoss: Would you be good enough, Sir, if I am not interrupting
you, to refer ta the Janguage you have in mind when you use the word
"differentiate", as I believe you did?
Mr. PossoNY: "On the basis of membership in a group, class or race."
Mr. GRoss: Would you mind reading the whole thing, please, Sir?
:Mr.Possoxv: The whole paragraph?
l\fr.GRoss: If you clon't mind, Sir, if you attach importance to the
point you are making, I would appreciate it. ·
Mr. PossoNY:
"... the terms refer to the absence of governmental policies or
actions which allot status, rights, duties, privileges or burdens on
the basis of membcrship in a group, class or race rather than on
the basis of individual merit, capacity or potential ... ".
As I stated, I interpret: and I can read on, the allegation to be that you
do not distinguish on the basis of rnernbership in a group, race or class.
The Burmese Constitution does in certain features distinguish so on the
basis of ethnie affiliation, not in a discrirninatory sense, not in the sense
of negative. ln fact, I do not recall whether they have positive provisions
in there--they probably have-saying that these various groups should
be helped. But they certainly do provide in the sense that here is one
group which ought to be given its own regulation politically, and hern
is another group which ought to be given itsregulation. That was the
purpose of the testimony on that point. For example, from what I read
in this Constitution, if a Burmese, be he a Shan or a Kasen, if he is
guilty of a crime, he will be punished in the same way as any other
Burmese, except in those cases where perhaps a different definition of
crime applies (I do not know whether this is the case in Burrna or not).
There are cases of this sort which I quoted.
i\frGRoss: I will interject this parenthetically, because I do not think
that I have brought it out before-1 may be wrong-with respect to
the definition or description of the terms used by the Applicants on
page 493, IV, which you have just read in part, do you attach any
significance in your testimony to the clause in the first part which reads
"rather than on the basis of individual merit, capacity or potential"-do
you attach any significance to that clause in the context in respect of
your testimony?
Mr. Possoxv: Yes, I do.
Mr. GROSS:And do you understand that the intent, meaning, descrip
tion attributed to these standards or this content suggest or force a
choice on the part of a government with respect to protection of the
individual as an individual or protection of the individual as a member
of a group-did you understand these to be different or unrelated con
cepts?
Mr. PossoNY: ln your thinking, Mr. Gross, or ...
Mr. GRoss: In your understanding of what we are trying to say in
our pleadings, as distinguished from the way in which it has been put
forward by the Respondent in certain of its pleadings. WITNESSES AND EXPERTS 23
Mr. PossONY: :Myunderstanding of what you are trying to say is that
one should not, undcr any circumstances, use the group, class or race
classification for legislation.
Mr. GRoss: So that your understanding, if I may pursue this once
more ...
Mr. PossŒ,v: May I add to this that I had to read this in line with
the supporting data which you have given and I have shown that, for
example, in the Declaration on the Elimination of All Forms of Racial
Discrimination the term was "individuals belonging to certain racial
groups". In other words, legal measures shoulcl be taken to secure the
adequate protection and developnient of the individuals.
Mr. GRoss: Now, with respect to the continuation of the constitu
tional practice in respect ofthe States that you have mentioned in your
testimony, I refer to the Constitution of Chile. I beg your pardon, you
did not cite Chile; I misread my notes. I will confine myself to those
which you have cited and I may, with the Court's permission, refer to
others which may be relevant to the question as well. For the moment I
will confine myself to those you have cited.
Czechoslovakia: the Constitution of the Czechoslovak Republic of 1948,
Volume I of Peaslee, page 692, Part I, section I, reads very simply:
"All citizens are equal before the law."
Would you agree that this is evidence supporting a constitutional
practice with respect to the principle or standard of equality of treat
ment of aHindividuals, irrespective of other considerations such as race
or creed?
Mr. PossŒ.v: Again, Mr. Gross, the answer is yes. If you want to
elicit from me the statement that many constitutions contain phrases
of this general wording, I think we can save time by stipulating that
this is true. Many constitutions have these phrases. My testimony is not
directed toward disputing this. It would be foolish to dispute it. How
ever, the case of Czechoslovakia is a very good case to illustrate the point
I have been trying to make. -
In the first place there was a multi-ethnic State and there werc various
attempts to set up or not to set up autonomous status for various groups.
In one instance there was the policy by the Czech State to operate on
the basis of integration. That was with respect to the Sudeten Germans.
Actually, in order to save time, I eut out from the testimony a passage
tothe effect that the Czech Government of Mr. :Masaryk and Mr. Benes
,vere accused by the Nazis of having practised national oppression. This
particular accusation was quite unfounded. I was often in Czechoslova
kia at that time. Nevertheless, it impressed the Sudeten Germans and
out of this situation-there were at least some elements there so that
Nazi agita tors could make a point-arose the Munich crises.
With the President's permission, I have given perhaps a longer answer
to indicate that in line with the United Nations Charter, certainly the
over-riding objective of the United Nations, in my reading, is the pres
ervation of peace. In this particular instance the experiment with what
you might call an integrationist ideology was one of the roots of World
\Var II. Todav Czechoslovakia is verv much reduced. lt is essentially
a national State consisting of the Cze·chsand the Slovaks. But, today,
the Slovaks, who are only slightly different from the Czechs, do have
some sort of autonomous status. It is to that part of the problem that
I address myself.24 SOUTH WEST AFRICA
Mr. GROSS:Now I would like you to addrcss yourself to my part of
the problem, if you will?
With regard to Germany-the basic law for the Federal Republic of
Germany-this is cited in Volume II of Peaslee, pages 30 to 31:
Article 3, paragraph r: "Ail men shall be equal before the Jaw."
Article 3, paragraph 2: "Men and women shall have equal rights."
Article 3, paragraph 3: "No-one may be prejudiced or privileged
because of his sex, descent, race, language, homeland and origin, faith
or his religious and political opinion."
Would you agree that this is evidence of a constitutional practice
relevant to the question of whether or not an international standard
and/or an international norm exists, of the sort contended for by the
Applicants?
Mr. Possül':Y: How can it be evidence of a constitutional practice if,
with respect to the ethnie factor, there is no such problem in Germany?
Mr. GROSS:If what, Sir?
i\Ir. PossoNY: There is no such problem.
i\IrGRoss: Of equal rights before the law?
Mr. PosSONY: ln terms of ethnie factor, there is no problem. German y
is a uniform national State, consequently one can put a provision into
the Constitution and if vou want me to confirm that this is in the Con
stitution I will gladly do so, because it is there. But it does not mean
much.
Mr. GRoss: Thank you, Sir.
Now, with respect to India-the Constitution of lndia of 1949 is
referred to, as I have cited, in Volume II of Peaslee, pages 225 and 226.
The relevant parts are as follows. You testi:lied, did you not, in the
record at XI, page 678 and following, at some length with respect to the
caste system, the scheduled castes and so forth? That is correct, is it not?
Mr. PossoNv: Yes, Sir.
Mr. GRoss: Now, with respect to the Constitution of India, which I
have just cited in Peaslee:
Article 14 states:
"The State shall not deny to any person equality before the !aw
or the equal protection of the laws within the territory of lndia."
Article r5 (r) says:
"The State shall not discrimina te against citizens on grounds only
of religion, race, caste, sex, place of birth or any of them."
I will not read the Iengthicr paragraph which follows, as it is an elabora
tion of the same principle or standards.
Now, with regard to the use of the term "discrimination" here
"shall not discriminate"-would you say that the term is used in the
sense of any differentiation whatever, so far as you understand the Con
stitution?
The PRESIDENT: I am sure that is a mat ter which the Court can work
out. It is not for a witness to start to interpret t~e Constitution of lndia
or any other constitution. You can ask him what his understanding is in
respect of it.
Mr. GRoss: Yes Sir. That was the purpose of my question: if he has
a basis for an understanding of it as a political scientist or other behav
ioural scientist. Do you wish to comment, or do you have a basis for an WITNESSES ANDEXPERTS 25
opinion which you wish to express with regard to the use of the term
"discriminate" in this context?
Mr. PosSONY: Mr. Gross, you read that it says "discriminate only"
and I am not quite sure what that means.
i\lr. GROSS:It says "not discriminate against any citizen on grounds
only of religion, etc.".
l\Ir. PossONY: That I would say is a wording which I do not know
how to interpret.
i\1r. GRoss: That is a fair answer.
Mr. PossONY: However, the Indian Constitution also has a number
of provisions with respect to schedulcd tribes and scheduled castes. I do
not assert that these provisions are neccssarily contradictory. However,
I would like to mention that they could be contradictory. In any event,
there is the social reality in India of a caste system which is taken for
granted by the Constitution.
i\fr. GROSS:Now, with respect to the Constitution of Italy, 1948, to
which you referred in the record at XI, page 678, and cited in Volume II
of Peaslee, page 482, Article 3 provides as follows:
"Ail citizens have equal social rank and are equal before the law
without distinction of sex, race, language, religion, political opinion
or social and persona! conditions.
It is the task of the Republic to removc obstacles of an economic
or social nature which, by materially restricting the freedom and
equality of citizens, impede the complete development of the human
personality and the effective participation of all workers in the
political, economic, and social organization of the country."
Now, \vith respect to that constitutional provision which I have just
cited, would you agree that this provision evidences a consti tutional
practice which is relevant to the standards and/or the norm of the nature
contended for by the Applicants, as you understand it?
The PRESIDENT:Professor Possony, have you got a copy of the clause
before you?
Mr. PossoNY: No.
The PRESIDENT:If you are asked to understand it I think you had
better read it.
Mr. PossoNY: I think I can remember it, Mr. President.
Mr. GRoss: l_will be glad to read it again, Sir.
The PRESIDENT: No, I do not think it is necessary to read it again,
Mr. Gross. I simply asked whethcr he had a copy in front of him, that
is all. I see the relevant volume is therc.
Mr. GROSS:I do not want to tax the memory of the witness, Sir.
Mr. MULLER: May 1 just ask what is the page reference in the ver
batim that my learned friend referred to?
Mr. GROSS:It is XI, page 678, in the verbatim record, according to
my notes.
The PRESIDENT:There is a reference to Italy there, that is ail.
Mr. GRoss: There is a reference to Italy there:
''There are various differential provisions for ecclesiastic persons
in terms of incompatibility with the parliamentary mandate in such
countries as Belgium, Israel, Luxembourg, Turkey, lndia, ltaly,
Egypt, Netherlands and Great Britain. This particular type of
problem was worked up ... " SOUTHWEST AFRICA
That is the reference for learned Counsel.
Mr. MULLER:Thank you.
Mr. PossONY: First of ail, the reference to Italy is a very minor one
and deals with one specific point.
Mr. GRoss: Do you wish to withdraw it, Sir?
Mr. PossoNY: Ko, it is a perfectly correct reference. Mr. Gross, you
read Article 3 to me, is that correct?
Mr. GRoss: Yes, I read Article 3.
Mr. PossONY: Weil, I would say that this Article 3 is an Article which
can be read in many ways and I certainly think it is a very interesting
Article.It speaks of removing ''obstacles of an economic or social nature''.
Now, in a country like Italy, where there is not much of a national
problem-and I may add parenthetically that there is at least one ethnie .
problem which is in the news at this moment, namely the Southern
Tyrol question, whether or not this situation calls for autonomy-leaving
that on one side, what is meant by removing obstacles of a social nature?
Mr. GRoss: I do not know.
l\Ir.PossoNY: Weil, I would certainly interpret this to mean that in
a case of a multi-ethnic society-Italy does not have this problem-the
removal of social obstacles is the thing one should do with respect to
those ethnie groups which carry more than the usual burden of obstacles.
Mr. GRoss: Now, Sir, with respect to Lebanon, to which you made
more than passing mention, did you not, Sir, in the verbatim record at
XI, page 669? Now, in respect of Lebanon: the Constitution of Lebanon
of 1926, cited in Volume Il of Peaslee, at page 573-I refer to Article7
-reads as follows:
"Ail the Lebanese are equal before the law. They enjoy equally
civiland political rights and are equally bound by public burdens
and duties without any distinction."
Then, Sir, I refer, since you have it before you, to Article 12, which
is on the next page, page 574 of Peaslee:
"All Lebanese citizens are equally admissible to all public posts
on the basis of merit and compctence, and according to the condi
tions established by the law."
Now, Sir, with respect to the latter part, you have testified, as the
Court will be aware, of conditions imposed by law, for example, with
respect to the group from which the President and the Vice-President
might be taken-1 think the Court will be well aware of the practice
of Lebanon in that respect. However, I invite your attention, first, Sir,
to Article 7, which I have read: "Ail the Lebanese are equal before the
law. They enjoy equally civil and political rights and so forth." Do you
agree, Sir,that this furnishes evidence tending tosupport the existence
of international standards of a content described by the Applicants and
defi.ned in their pleadings, so far as you understand it?
l\Ir. PossoNY: No, Mr. Gross. I do not.
Mr. MULLER:That has been defined in the pleadings or at IV, page 493?
That would be ...
Mr. GROSS: ~Ir.President, I would respectfully submit that the Coun
sel's comment is irrelevant and the reason being, Sir, that page 493, im
portant as it is, does not embody the case of the Applicants and, Sir, I
think the impression as sought to have been created previously in these
proceedings by Counsel that the language on page 493 must be interpreted WITNESSES AND EXPERTS 27
asif it were disembodied from the balance of the pleadings, not explained
by the sources to which reference is made and elaborated and which
explain the detailed content attributed by the Applicants to the stan
dards and the norm contended for and, Sir, if the point in the implication
of Counsel's question, or interposition, isthat the Applicants may not
refer to any provision or langua.ge in these pleadings other than page 493,
the Applicants would very respectfully disagree.
The PRESIDENT:That is not the objection, though, Mr. Gross.
Mr. MULLER:May I reply to that, Mr. President, please?
The PRESIDENT:No, you may address the Court.
l\fr. MULLER:Yes. I refer to the verbatim at IX, page 375, where,
having reformulated their submissions, the Applicants made this state
ment:
"The reference in Submission 4 to 'applicable international
standards or international legal norm, or both' is intended to refer
to such standards and legal norm, or both, in the sense described
and defined in the Reply, IV, at page 493, and solely and exclusively
as there described and defmed-reference is made here to the same
verbatim record already cited, at page 60, supra."
That is the record, at IX, page 60, where reference is made also--that
is in an earlier stage ...
The PRESIDENT:Mr. Gross, l think you might resume your scat whilst
other Counsel is addrcssing.
Mr. MULLER:On April 30, l\lr. President, in the verbatim, at IX,
page 60, it is stated:
"The Court's attention is respectfully directed to the Reply, IV,
page 493, in which the Applicants have attempted to formulate
their description of the relevant international legal norm."
Now, Mr. President, if my lcamed friend wants to putto the witness
what the norm of the Applicants is, he has never, up to yet, put to any
one of the witnesses what his case is. He is very quick, i\Ir. President,
to say that as wc, the Respondent, interpret the case, we are wrong,
but he has, up to now, not defmed his case to any one of the witnesses;
he merely refers to these cases set up in the pleadings. And I should
like to know what he means when he asks the witness a question like that.
The PRESIDENT: At the present moment, the Court is asked to rule
on the question of admissibility of a question. being put to the witness.
Mr. Gross, it is quite truc that there is a distinction between a statement
of the content of the normand the statcment of the content of astandard
as distinct from the sources which are relied upon to establish the existence
and content of the norm or standard. It is my recollection, but my
recollection may be quite wrong, not only in relation to the references
made by l\Ir. Muller but, more than once, throughout the presentation
of the whole argument. from the transcripts, running from r3 to 24 May,
not once, but more than once, you stated that the normand/or standard
upon which the Applicants relied wcre defined as stated at IV, page 493
of the Reply.
Now, if you say that that is not the case of the Applicants, then it
seems to raise the question as to whether, having regard to the way in
which the case is bcing presented by you, this is changing your case.
Mr. GROSS:May I rcspond as briefly as possible to that, Sir? The
refcrences which have been made and as ta which an example is cited28 SOUTH WEST AFRICA
by i\frMuller, relate to the standards, and the norm of the same content,
if it exists as a matter of international law, "defined and described"
were the words used, I think the learned Counsel will find, on page 493.
The sole point of my intervention, Mr. President, in response to the
remarks made-and, if I may respectfully, in response to the honourable
President's comment or question-is that no single words on page 493
may be taken as self-contained, fully explanatory of their intended
meaning, Sir, and the one point that I should like to add, if I may, Sir,
is the reference on page 493, among other things, to the fact that:
"The existence and virtually universal acceptance of the norm
of non-discrimination or non-separation, as more fully described
below, gives a concrete and objective content to Article 2,paragraph
2, •••JI
Sir, it has never been the Applicants' understanding or intention that
the words set forth in this paragraph, to which so much attention has
been called, and properly so, can be read and understood and evaluated
without refcrence to the general context in which they appear and the
explanations which have been made of their intended content and
meaning. The very words used, as have been brought out by this witness
and others, arc concededly susceptible to comment and interpretation
by their very generality. Reference has been made to Article 55, paragraph
(c), of the Charter, to the word distinction. That states a standard or
principle, but surely, Sir, if we relied on that, it would still be necessary,
as we have triecl to do in our pleadings and in our Oral Proceedings, to
explain, to illuminate, to clarify the content and meaning of those broad
words. Sir, that is the only point of my comment.
The PRESIDE~T:Mr. Gross, it will be a matter for the Court to decide
as to what was the case which the Applicants made out. It is not for me
to comment upon it at ail, but ifyou say it is still the same case which
it was when vou closed vour case, it will be a matter for the Court to
determine w_hatwas the case which you made out, but may I point out
to you that it was to page 493 that you frequently, yourself, referred as
indicating the basis of the norm and the standard upon which the
Applicants relied. Now, if you look at the whole of 493, you will first fi.nd
that in paragraph 2, it says:
"As is shown below, there has evolved over the years, and now
exists, a generally accepted international human rights norm of 11on
discrimination or non-separation, as defi.ned in the preceding para
graph."
Then the next paragraph; and which you referred to, says:
"The existence and virtually universal acceptance of the norm
of non-discrimination ... as more fully described below, ... "
That, so it would appear, leaves it open to construction that that is
a reference not to the content or the definition of the norm but to the
sources, because, if you look at the last paragraph, you will find: "The
sources which. severally and in their totality, comprise the generally
accepted norm, described above, ... " and so it would appear, on a
reading of 493, that the definition of the norm was as stated in the first
paragraph of 493 and that there was no other definition of the norm.
Mr. GRoss: Mr. President, the Applicants, far from changing their
case in any respect, re-affirm their reliance upon the international stan- WITN'ESSE SND EXPERTS 29
dards or alternatively, and cumulatively, the norm with the content
contended for, and it is simply. Sir, the Applicants' submission that the
meaning to be fairly assigned to the words and phrases used in the
description are to be derived from the explanations made by the Appli
cants, the arguments made thereon and the sources to which they rely
and which illuminate the significance of words and phrases used. lt was
not then, and is not, the intention of the Applicants in any way to with
draw or retreat from the arguments made before the Court with respect
to the existence of international standards or objective criteria, on the
basis of which the Mandate should be interpreted. These are of the content
described and defined on IV, page 493, the meaning of which is to be, in
our submission, understood, elucidated and arrived at by the honourable
Court on the basis of the cxplanations made.
The PRESIDENT:I exprcssed no views on that at ail, as you understand,
Mr. Gross, I simply indicated that we are debating a matter here on
the question of the permissibility of your cross-examination. I think,
having regard to the discussion which has taken place, it is better to
define precisely what you are speaking about when you address a question
to a witness.
Mr. GROSS: Mr. President, I welcome the opportunity, I do indeed,
Sir.
Now, Sir, I would not wish to burden the Court ...
The PRESIDENT:Professor, you are being cross-examined.
Mr. GROSS:I would not wish to burden the Court with an indefinite
series of referencesto similar constitutional provisions which arc conceded
by the witness to exist, but I should like, if I may, simply in the same
way that he has made reference in his testimony to numerous consti
tutions, legislative enactments of various countries, in the contcxt of his
testimony, refer, in addition to those already cited, to the Liberian Code
of Law of 1956, Volume II, pages 481,482; the Political Constitution of
the United States of ;'\lexicoof 19r7, Article 3 in particular, II Peaslee,
page 661; the Constitution of the Kingdom of the Netherlands 1947,
II Peaslee, page 754, in particular Article 4 and Article 5; the Constitu
tion of the Republic of Panama of 1946, cited in III Peaslce, pages 72-73,
in particular Article 21, and to Article 94 of the same Constitution, cited
at III Peaslee, pages 81-82; furthermore, the Constitution of the Republic
of Peru of 1933, Article 23 in particular, cited in III Peaslee, page 137;
similarly, the Philippines, the Constitution of the Philippines of 1935,
Article 3, section 1, paragraph 1, cited in III Peaslee, page 166; the
Constitution of the U.S.S. R., in particular Article 123, citcd in III
Peaslee, pages 498-499; the Constitution of the Federal Pcople's Republic
of Yugoslavia. particularly Artide 21, cited in III Peaslee, page 760;
and, with respect to the United States, I refer to the Fourteenth Amend
ment, that is, to Article r4, section1, of the United States' Constitution
as cited by III Peaslee, page 593.
The witness has made numerous references in his testimony and has
referred to certain legislative or other provisions with respect to ;'\loslem
communities and Moslem States, Islamic States-these were cited by
the witness in the verbatim of rS October; for example, at XI, page 671.
I refer to, with the Court's permission, the principles of the Interim
Constitution of 1953, of Egypt, now the United Arab Republic.
The PRESIDENT:ls this the question you propose to putto the witness,
Mr. Gross?30 SOUTH WEST AFRICA
Mr. GROSS: Yes, Sir, to save the time of going through each of these
seriaJim and carnng hîs attention to the existence of what I think he
conceded to be, if I am not mistakcn, l\Ir. President, constitutional
provisions, similar to those which I have already read into the record
regarding the equal protection of the laws, I am selecting those which
are similar in content and which the witness, as I understood him, has
conceded to exist. Is that correct, Mr. Possony?
Mr. PossoNY: This is correct, Mr. President, but I think the point
under dispute is whether these provisions stand by themselves or are
related to other provisions, and there is no question that these provisions
occur in these constitutions-it is a matter of fact. The question is,
what do they mean in a specific country, and what is the over-all regula
tion of the ethnie problem in the parhcular country-that is the matter
to which I address myself.
Mr. GROSS: Now, Sir, I am addressing myself to the problem of the
content of the standards, as distinguished, for the moment, from their
applicability. You are aware are you, Sir, that there are two separate
but related problems involved in the consideration of this matter; would
you agree, Sir, that the question of the matter of content, and the ques
tion of applicability or application, are two different but related aspects
of the problem?
Mr. PossoNY: That is correct.
Mr. G Ross : N ow, Sir, with respect to the content, I refer again,
hastily, simply by citation rather than by reading, in addition to Egypt,
cited in Peaslee, Volume I, page 8r3-these are Islamic States, to which
you referred-to the Constitutional Law of 1907 of Iran, Article 8,
Peaslee, Volume Il, page 404; of Iraq, the Constitution of 1925, particu
larly Article 6, cited in Peaslee, Volume Il, page 415; and of Syria,
the Constitution of 1950, Article 7, cited in Peaslee, Volume III, page 362.
Sir, these constitutionalprovisions, to which I have referred, are all,
on my representation as Counsel, similar, in respect of the fact that they
embody provisions which are substantially of the type already read into
the record-that isconstitutional provisions which state, in various forms
of phraseology, that "All citizens shall be equal before the law in obliga
tions, rights, dignity and social status"-I have just referred to the
Syrian Constitution, Article 7, as an example-or the Iranian Consti
tution, Article 8, "The people of Iran enjoy equality of rights before
the civil law ... ".
Now, Sir, with respect to these constitutional provisions, would you
or would you not agree that they severally and collectively evidence a
general constitutional practice, virtually universal, in which the equality
of individual citizens before the law, and equality of opportunity, are
guaranteed by the constitutional provisions? Would you agree that they
are evidence of standards covering the same subject-matter, and evi
dencing international standards?
Mr. PossoNY: Mr. President, I think many problems are involved
here: leaving aside the question of international standards, for a minute,
equal protection of the laws can mean many things. There is no question
about the fact that most constitutions have this phrase in them, but again,
when equality before the Iaw is linked to equality of opportunity, I
think we have an entirely different problem. The constitutions less quickly
analysed could produce much more diverse results.
But the main problem is: what do these constitutions state in addition WlTNESSES AND EXPERTS 31
to that? This is very often a matter of mere phraseology. For example,
in the Lebanon case, which Mr. Gross was citing a minute ago, of Article
12, which consists of two sentences, he read the first: "All Lebanese
citizens are equally admissible to all public posts ... " But then there
is the second sentence, which reads as follows: "A special statu te shall
regulate the State officials according to the administrations to which
they belong." The meaning of this, I think, is in line with the general
arrangement in Lebanon, according to which jobs, positions in Parlia
ment, and so on, are attributed on a group basis. I think the meaning
of equality in the Lebanese arrangement is, above all, that each group
enjoys equal rights-and then you have, undoubtedly, arguments about
prec1sely what that means. In addition, it also says that all Lebanese
citizens have equal rights-there is no question about that. The problem
arises that you do have contradictory or, let us say, mutually compli
cating factors involved, which in each country are solved in a particular
wav.
l\Tow,in testifying yesterday, I made a particular pojnt in stressing
that there are, under any norm, assuming a norm to exist, in all inter
national texts that I know of, always clauses to allow for spccial condi
tions. and special situations. For example, in the I.L.O. Convention,
Article 2, which is in the Reply and which, according to what Mr. Gross
said a few minutes ago, leads to the explanation on page 493, IV-there
is a phrase in there "... by methods appropriatc to national conditions
in practice ... "-1 could quote other examples, but I will not waste
the Court's time.
The argument is, I think, whether the national conditions or the
concrete circumstances call for a specific interpretation of a norm,
assuming such a norm to exist-and this is the question which ~lr. Gross
also brought out a minute ago, saving it was a question of applicability.
If the norm exists, which I do not believe it does, but assuming for
argument's sake that a norm exists, then the question is: how binding
is it in conditions where it is less applicable than it would seem? For
example, on page 493, if this whole argument were couchcd in terms of
a single or uniformly national Sta,te, this would be one mattcr; and if,
like in Austria, this norm applied to States with one nationality, it could
even be argued that it appliesipso factoand without change. But without
taking into consideration the varions concrete circumstances prevailing
in countries with different nationalities-then I would say that if this
were the interpretation, it would be self defeating in terms of the norm
itself:the purpose of the norm could not possibly be achievcd in the
way in which it is laid down that that norm be applicd.
l\fr. GRoss: Sir, it might perhaps help your understanding of the point
of my next question if I were to call to your attention page 519, IV,
of the Reply. At the top of the page, you will notice that reference is
made to " ... 'international custom' outlawing discrimination and sepa
ration, as defined above ... " and the reference is to page 493-I would
call that to your attention.
Mr. PossoNY: Yes, that is right.
Mr. GROSS: And it continues:
"... together with the wide introduction of such a norm into 'the
general principles of law recognized by civilized nations', [that is
from Article 38 of the Statute, as you may recall] warrants a deter
mination that the policy of apartheid, which strikes at the heart32 SOUTH WEST AFRICA
of the Mandate and of Article 22 of the Covenant of the League of
Nations, is a violation of international law".
That, you may say, is the "norm argument", Sir, just so that you may
follow my questions. Then you corne to the next paragraph:
"Even in the absence of such a determination, however, it is sub
mitted that the policy and practice of apartheid, or separate devcl
opment, as defined and analysed in the Memorials and in this Reply,
violates Respondent's obligations, as stated in Article 22 of the
Covenant of the League of Nations and in Article 2, paragraph 2,
of the Mandate, as measured by the relevant and generally accepted
legal norms and standards described in the l\lemorials and in this
Reply." (IV, p. 519.)
Now, Sir, I have called this to your attention so that you may, as
responsively as you wish, if you wish, answer the following questions,
Sir:
In respect of Article 22 of the Covenant of the League of Nations and
of Article 2,paragraph 2, of the Mandate, has it been your intention,
Sir, in respect of any aspect of your tcstimony, to relate the standards
of the content described and defined to the Mandate-Article 2,of the
Mandate?
Mr. PossoNY: No, Sir, the diffcrence between the norms and the
standards, content-wise, I understand to be non-existent.
Mr. GRoss: That is right, Sir.
Mr. PossoxY: I am not an international lawyer and therefore did not
address myself to the question of the applicability of the legal commit
ment to the particular situation.
Mr. GRoss: So that when, Sir, the Ietter, which has been read into
the record, states that-and I quote paragraph (b), as one of the points
to which your testimony is to be directed:
"That the attempted application of such a suggested norm and/or
standards would in many instances have an adverse effect on the
wcll-bcing and progress of the persons concerned." (XI, p. 643.)
Do you have that language, Sir?
Mr. PossONY: Yes, Sir.
Mr. GROSS:As a point to which your evidence is said to be directed
do you consider that any evidence which has been led, as to which you
have testified, is intended to include the policy or practice of apartheid
or, generally speaking, the Mandate obligations, as relevant to the con
text of the statement, as an instance in which the application of such a
norm and/or standards would have an adverse effect on the well-being
of the people? Did you understand my question, rather tortuous and I
am afraid very unclear, but do you think you understand it, Sir?
Mr. PossoNY: I think my understanding of your question would be
that the purpose of my testimony has bcen to clarify the validity, or
usefulness, of given legislation in South West Africa. It has not been to
determine whether the Mandate is being faithfully or otherwise fulfilled
by South Africain the case of South West Africa. In other words, my
testimony has no bearing on the question of the specific legal obligations
of South Africa with respect to South West Africa, and the question
whether they have fulfilled the wording of the Mandate. WITNESSES AND EXPERTS 33
MR. GRoss: Now, Sir, we understand and agree, of course, that the
interpretation of the Mandate is obviously for the honourable Court,
but I was anxious to have an understanding for the Court of the purport
and direction of your testimony with respect to the matter of relation
ship, if any, which you perceive between the standards of the content
described and defined and the interpretation of the Mandate; whether
this was within the range of your intended testimony.
The PRESIDENT:Its a little difficult for a witness-to ask what the
range of his intended testimony is. The actual range of his testimony is
determined by the questions put to him and the answers given. It is
not for him to interpret his evidence.
Mr. GRoss: Yes, Sir. I am making, I am afraid, a stumbling effort to
try to clarify and understand the significance of the point in paragraph
(b), stated by the Respondent as a point to which this evidence isdirected.
I do not understand it, Sir.
The PRESIDENT:Well, if you do not, Mr. Gross, therc is nothing you
can do about it.
Mr. GROSS: Very well, Sir. I am, however, diligent in my effort to
pursue the thread, if I may. I shall, however, turn to other aspects of the
witness's testimony, which I think are relevant to this general point.
Nevertheless, let me ask you, Sir, to refer to your testimony at XI,
page 702. You referred. did you not, to the United Nations draft
Declaration on Elimination of AU Forms of Racial Discrimination?
Mr. PossoNY: That is correct.
Mr. GROSS: Particularly to Article 5, which you characterized at that
page but did not quote. Is that correct, Sir?
l\fr. PossoNv: That is correct.
Mr. GROSS:It is truc, is it not, that Article 5 of the Declaration reads
as f~!lows: "An end should be put without delay to governmental policies
and ...
Mr. Posso:,,v: I beg your pardon, that is the. : .
Mr. GROSS:That is Article 5 of the draft Declaration, to which you
referred.
Mr. Possoxv: Of the draft Declaration-1 have here the draft Con
vention.
Mr. GROSS:\Vell, Sir, let us take the Declaration. I am talking about
the Declaration to which you addressed your testimony, Sir. Do you
have it?
Mr. PossONY: Yes, Sir; here it is.
1\'.. ROSS:
"An end should be put without delay to governmental policies
of racial segregation, and cspecially policies of apartheid, as well
as all forms of racial discrimination and separation resulting from
such policics."
That is the text of Article 5 which you referred to but did not quote.
That is correct, is it, Sir?
l\frPossm,v: That is correct.
Mr. GROSS:Incidentally, just for the clarity of the matter, it is true,
is it not, that when the draft Declaration was adopted, which it was,
I think, unanimously, by the General Assembly, on 28 November 1963,
in the form of resolution 1904, Eighteenth Session, that the same words
(just quoted) were embodied in the final resolution, except that a phrase34 SOUTH WEST AFRICA
was inserted so that the final text reads, of Article 5, of what is no longer
a draft but a Declaration: "An end should be put without delay to
governmental and other public policies of racial segregation ... " and
so forth, the rest remaining the same.
Mr. PossoNv: I do not have this here, I have only ...
Mr. GRoss: Weil, if you would be prepared to take my statement
for it, as Counsel, and reading it from the resolution 1904.
i\fr.PossoNY: I take your word for.it, certainly.
Mr. GROSS: Now, I mention this insertion merely for the sake of accu
racy, and not because I want to invite your attention to it particularly,
unless you wish to comment on it.But referring tothe draft Deciaration,
to which you testified, immediately following your referencc to Article
5, at XI, page 7 2,of the same verbatim record, you expressed an opinion
concerning the desirability, as I understood your testimony, of clari
fying the Article in certain respects. Do you fi.ndthat, Sir?
Mr. PossONY: I do remember it, yes. That is correct.
Mr. GRoss: Was your testimony in this respect intended by you to
reflect, one way or another, any judgment as to whether or not the policy
of apartheid does, or does not, and I quote the language you use, "fall
under the rubric of objectionable policies"? \Vere you intending by your
statement there to imply a judgment one way or the other with respect
to the relationship of apartheid to the problem you were addressing
yourself to?
Mr. PossoNY: Of course, I was concerned with the fact that in the
definitions in this text which you uscd to support IV, page 493, I may
read the exact text to vou ...
Mr. GROss: Yes, Sir: it is IV, pages 505 to 506 of the Reply.
Mr. PossoNY: "The Declaration makes it clear [these are the words
in the Reply] that racial distinctions, be they called racial discrimina
tion, segregation, separate development, or apartheid, are unacceptable."
Now in the draft Convention-! apologize that I use the Convention,
because I have it here and I have it marked-first of ail, in one of the
preambular paragraphs-"any doctrine", it is any doctrine, "based on
racial differentiation or superiority".Now, we have a linkage with any
doctrine of racial differentiation which would, in my rcading, say that
there are racial differences, or that there are different races, whatever
it may mean, but this is Iinked to a doctrine of superiority;and both it
says, would be scientifically false.
Then, in the next preambular paragraph, we have "evil racial doc
trines" which are linked to the "practices of Nazism in the past".
Mr. GRoss: What Article are you referring to, Sir?
Mr. PossONY: This is under "Considering ... ", "Convinced ... ",
"Reaffirining ... ".
Mr. GROSS: I mean, what document are you referring to, Sir?
Mr. PossoNY: Draft International Convention on ...
Mr. GRoss: Yes, you are talking about the Convention, Sir, but the
question was addressed on the Declaration ...
Mr. PossoNY: Yes, I apologize, but I could probably find it there,
too.
Mr. GRoss: No, Sir, you will not find it there, unless I am mistaken:
that is why I am inviting your attention to the thing we are talking
about.
Mr. PossoNY: But there is other language in it which is similar. WITXESSES AND EXPERTS
35
)Ir. GROSS: Well, would you please fmd that, Sir, so that we are talking
about the same thing.
Mr. PossoNY: In the first "considering" paragraph we have a refer
ence to the "doctrine of racial differentiation or superiority" as being
"scientifically false" and "morally condcmnable" and so on. Then it
says, in the ninth preambular paragraph:
"Convinced that all forms of racial discrimination and still more
sogovernmental policies bascd on the prejudice of racial superiority
or racial hatred [we again cnlargc the basis of the argument], besides
constituting a violation of fondamental human rights, tend to
jeopardise friendly relations ... "
In Article 5wehave the specific reference to "racial segregation", which
is then identifi.ed under, orat least linked under, "especially policies of
apartheid, as well as all forms of racial discrimination and separation".
Now, it seems to me that these things are all different. Specifi.cally, as
Itried to point out, I find it very difficult to understand why, in a decla
ration on racial discrimination which deals with future matters, there
are two clements singled out, specifically, two State practices: one is
Nazism and the other i~ apartheid.
Mr. GROSS: Where is Nazism refcrred to, Sir?
;\'lrPossoNY: Nazism-I am sorry, again it is in the Convention.
Mr. GROSS: Yes, Sir. Would you stick to the Declaration, if you please,
Sir?
Mr. PossONY: \Vell, the Declaration and the Convention do belong
together, but I will gladly oblige in this sense, that apartheid is the only
specific policy which is identifiable in terms of a particular State ...
Mr. GROSS: In the Declaration, that is right, Sir.
Mr. PossoNY: And it, however, is linked ta policies based on racial
superiority or hatred. I just do not conceive that things can be ail put
together under one heading. If there are no differences between those
various factors, then this is one thing. Then we have essentially a policy
in South Africa which would be one of racial hafred, racial superiority
and, with due respect, though Mr. Gross wants to keep out the word
"Nazism" taken from the Convention. nevertheless, Nazism. \Ve have,
thus, an identification of Nazism with apartheid. I submit, Mr. President,
that this identification is one which is in the public mind, and is one
and perhaps the most important one-which is at the bottom of the
opposition or the difficulties in which South Africa fi.nds itself.
[Public hearing o/ 2I OctoberI965]
Mr. GROSS: Mr. President. Dr. Possony, in the Oral Proceedings
yesterday, verbatim record of 20 October, I should like to draw your
attention and the honourable Court's attention to pages 22 and 23,
supra. I refer to the colloquy between us concerning your understanding
as to whether or not the standards which the Applicants contend exist,
which are defined and described at page 493 of the Reply, IV, suggest,
in your understanding, or force a choice on the part of a government
with respect to the protection or equal protection under the laws of an
individual as such on the one hand, and/or the protection of the individual
as a member of a group; in other words, I refer specifically to your reply
to my question which I addressed to you on page 22, supra, as reflected
in the verbatim record at page '23,which I quote: SOUTHWEST AFRICA
"My understanding of what you are trying to say ('you' meaning
us, the Applicants] is that one should not, under any circumstanccs,
use the group, class or race classification for legislation."
Is this an accurate formulation of your intended response to my question?
Mr. PossoNY: Yes, I said this.
Mr. GROSS:Would you, if I may ask you this question, in any respect
wish to alter your testimony, modify it or amend it in any way, if the
truc nature and content of the Applicants' standards for which we
contend as described and defined on IV, page 493 were not accurately
reflected in your response to my question but, let us say, instead refers
to governmental policies which do not give weight to individual merit
or capacity, but which allot rights and burdens on the basis of member
ship in a group which do not protect equality of opportunity and extend
equal protection of the laws to individual persons as such; in other
words, if this were the correct interpretation and understanding of what
the Applicants' contention is, would you in any way wish to alter or
amend your testimony in any material respect?
Mr. PossoNY: If I misinterpret the passages on page 493, and l can
be convinced of that, then obviously I would change the testimony;
however, I have, since this obviously is a crucial point, gone ovcr this
text again very carefully last night, and I am sorry, but I must say that
my intcrpretation on further reflection and analysis seems to stand up,
and with your kind permission I would like to explain why I said this.
For the sake of convenience let me distinguish three things: one I would
callthe no-allotment norm, as laid down on page 493; then, for the sake
of convenience, and again this is over-simplified, but just to keep the
argument manageable, I would talk about a no-unfaimess doctrine or
norm reflected in manv of the statements ...
· Mr. GROSS:Excuse· me. lllr. President, I am sorry to interrupt the
witness, but would the President be kind enough to allow me to sit
down while this answer is being given?
The PRESIDENT:You are not very well, 1\lr.Gross?
Mr. GROss: I feel a little tired. Sir.
The PRESIDENT:By all means-I expcct we all are, but sit down for
a while.
Mr. GROSS:Thank you, Sir. This may be a lengthy answer.
The PRESIDENT: It may be. If you wish to sit clown, by ail means do.
Mr. PossoNY: I will try to keep it short. The second norm would be
the no-unfaimess norm which one can, I think, distil out of many of
the documents that were published under United Nations aegis; and
third, there is the factual question whether actuaIIy faimess is applied
in South West Africa or not-these are three different things.
With respect to the no-allotment norm, I would like to call your atten
tion to the fact that the wording is non-discrimination or non-separation,
and it is quite clear that there is one norm; and furthermore in the
paragraph before the last in this whole passage, before the chapter
break, it is just called the "nonn of non-discrimination". So l would
deduce from this that the words non-discrimination and non-separation
mean the same thing, in this context. Non-separation is a very neutral
term; unlike non-discrimination, about which one can at least argue,
according to the Oxford Dictionary, that there is a secondary meaning
to it, which is positive or negative, non-separation is a purely neutral
term-it has no such connotation. WlTNESSES AND EXPERTS 37
This understanding is strengthened by going further to IV, page 498
-this is farther down on the page, and is in the words of the authors
ofthe Reply: "The legal obligation of ;\fember States not to discriminate
or distinguish ... " Again, the word "distinguish" is a neutral term.
And again, in the words of the authors of the Reply on page 500 in the
second full paragraph, we have the words "prohibiting Member States
from discriminating or distinguishing on the basis of race".
The P1ŒSIDENT: I wonder whether you would just give me the
reference?
Mr. PossŒ,,y: Page 500, second paragraph, the last line-five words
before the end is "distinguishing".
Furthermore if, on page 493, the thrust had been to oppose unfair
treatment, that is discrimination in the meaning of unfair treatment,
then I do not see why only groups were singled out. Obviously the thrust
would have to be against any sort of unfair treatment, whether derived
from a group distinction or from a distinction on any other basis, granting
that the word "group" is a very broad term, almost an unmanageable
term, but restricting it to "race", certainly then it would be clear that
any discrimination other than race also would be illicit, any discrimina
tion for examplc on an individual basis.
So much for rny understanding of what the no-allotment norm of page
493 says. As to the derivation of the norm, which is the thrust of the
text following page 493, there are cited many documents to give the
basis for this norm. I would think that the sources do not support the
norm. The sources, if anything, disregarding for example the quote by
Professor Guggenheim which essentially says that it is not too clear
what it means-leaving this aside completely-the sources that are
cited would not tend support to a no-allotment norm.
With your kind permission, let me follow this up in one specific case
to show that perhaps rny interpretation of this is not just my own.
On page 501 of the Reply, IV, one finds that there is reference to the
Draft Declaration on Rights and Duties of States, which was adopted by
the International Law Commission in 1949 by II votes to 2. Article 6
of the Declaration is quoted, and it does contain the words "without
distinction as to race, sex, language, or religion" at the end. I will read
the whole paragraph, if I may:
"Every State has the duty to treat all persons under its jurisdic
tion with respect for human rights and fundamental freedoms,
without distinction as to race, sex, language, or religion."
In the first place. who dissented from the vote? The United States and
the Soviet Union. So that would already cast considerable doubt on the
force of this particular text. The Arnerican representative was Judge
Hudson. who was a l\Iember of this Court. I am quoting from "Report
of the International Law Commission Covering its First Session 12 April
-9 June 1949", General Assembly, Official Records, Fourth Session,
Supplement No. IO (A/925), page 7.I will read the statement by Judge
Hudson:
"Mr. Hudson stated that he voted against the draft Declaration
because the provisions of its article 6 went beyond the Charter of
the United Nations, and beyond international law at its present
stage of dcvelopment."
The other dissent was cast by the representative of the Soviet Union, SOUTHWESTAFRICA
His Excellency Judge Koretsky. There were many points on which
Judge Koretsky took exception, but there was one which has a bearing
on this particular article,and it says, and I will quote the full text:
"Mr. Koretsky declared that he voted against the draft declara
tion because of its many shortcomings, including in particular ...
[and there follow four points and then No. 5] that the draft decla
ration ignored the most important dut y of States-not to allow the
establishment of any direct or indirect restriction of the rights of
citizens or the establishment of direct or indirect privileges for cit
izens on account of their race or nationality."
This is not the full quote in No. 5 but I think this gives the gist of it in
connection with this point.
Now, if I understand Mr. Koretsky correctly, I think the point was
that Article 6, as drafted and as quoted in IV, page 5or, does not say
enough and in particular, it does not enjoin upon States "not to allow
the establishment of any direct or indirect restriction on the rights of
citizens", etc.,"on account of their race". So when we read this I would
say that the text as interpreted here does not support the norm.
There is, in my judgment, and again as an over-simplification, a no
unfairness norm contained in some of these documents. There is how
ever, no no-unfairness norm stated at IV, page 493; there a no-allotment
norm is stated.
But then when we go to the declaration or the convention against
racial discrimination, then specifically the allegation would be that those
forms of-1 am using the term here as used in the declaration--discrim
ination which are based on, or reflect, or aim at racial hatred, racial
superiority or generally speaking, involve oppression and genocide, those
forms of distinguishing-if that be the word-are absolutely out of line
with the spirit of the Charter. Ido not think there would be any question
about that.
Hence the question cornes down to the material issue, whether or not
the policies which are under discussion in this room fall under the rubric
of oppression, genocide, etc. If they do not, and if I understand correctly
what Mr. Gross laid down on 18 May, if I remember it correctly, then
I do not think this is even under debate. Therefore, the question is
whether or not the policy of apartheid, which I understand to be one of
constructive purpose enabling rather than disabling in intent, is illicit,
simply because it is based on a doctrine of no allotment between groups.
Mr. GROSS:Mr. President, may I resume cross-examination?
The PRESIDENT;Certainly.
Mr. GROSS:I had hesitated, Sir, to interrupt the very interesting ar
gument just made but I should like, if I may, Mr. President, to go back
to the question I asked and see if I can obtain an answer toit or if the
witness considers that he bas answered it. I have it written down so
there is not my usual error or fault of misquoting myself after some inter
val. My question to you was: would you in any respect wish to alter
your testimony ifthe true nature and content of the standards for which
the Applicants contend, as defined at IV, page 493 and described there,
is not accurately reflected in your analysis and your understanding,
which you have now very interestingly and very ably explained to the
Court, with appropriate reference to other pages in the Reply? Would
you alter or amend your testimony, Sir, if the Applicants' true position WITNESSES AND EXPERTS 39
and contention were notas you understand it and as you have explained
why you understand it the way you appear to, if the Applicants' true
contention, the actual content of the standards-let us take the stan
dards for interpretation of the Mandate now for a moment-refers to
governmental policy and practices which do not give weight to individ
ual merit or capacity but which allot rights, burdens and privileges on
the basis of membership in a group and which do not protect equality
of opportunity and extend equal protection of the laws to individual
persans as such? If that were, Sir, a correct interpretation and meaning
ofthe content of the standards for which we contend, would you in any
respect wish to alter or amend your testimony? That, Sir, was my ques
tion-do you consider that you have already answered it?
The PRESIDENT:Any part of his testimony over the last two-and-a
half days?
l\Ir. GROSS:Any part of your testimony over the last two-and-a-half
days?
Mr. PossONY: Mr. President, this is hard to answer for the simple
reason that I would have to see exactly what the case is which Mr. Gross
is making in distinguishing the case from that on page 439. Itis entirely
possiblethat if another case were made that, of course, I would respond
differently.
The PRESIDENT:Mr. Gross is putting to you that the interpretation
which he places upon it, as hestates it now, is not the interpretation you
place upon it. So he asked you the question-would you wish to alter any
part of your testimony over the last two-and-a-half days? If you are
unaware of how your answer can be given, having regard to the length
of your testimony, then perhaps !\Ir. Gross will clarify what particular
part of your testimony he suggests your might alter.
Mr. GROSS: Thank you, Mr. President. May I clarify the point and
purport of the question for the witness? '
The PRESIDENT:No, I think, Mr. Gross, that it is much better if you
ask the questions. It is the explanations of these things which rather get
us into some diffi.culties.
Mr. GROSS: Yes, Sir. Would you please answer the question, I will
reserve my remarks.
Mr. PossoNY: \Vell, I think I answered it just a minute ago, Mr. Gross.
Mr. GRoss: What was your answer, Sir, if you recall?
Mr. Possm.v: The answer is that I would have to see exactly what
the amendment is to analyse it. I cannot, on so many points which are
very technical, improvise an answer; this requires logical analysis.
Mr. GRoss: I understand that there might be difficulties of that sort,
Sir. Are there any major points of outstanding importance, which
you happen to recall in your testimony over the last two-and-a-half
days, which you would single out, which would be relevant to my ques
tion?
Mr. PossoNY: The most important one is whether it is a no-allotment
doctrine or not, in my judgment.
Mr. GRoss: I am not attempting to engage in a discussion or debate
with you, Sir, it is obviously for the Court to decide and interpret the
contentions of the Parties. My question to you, Sir, is not what you feel
or think the standards mean or how they are defined, it is on the basis
of the understanding which the Applicants attribute to their own lan
guage, Sir. This is, if I may say so, partially in response to the statement SOUTH WEST AFRICA
made by Mr. Muller at page 27, supra, of the proceedings yesterday, in
which he says that the Applicants have not:
"He is very quick [meaning the Applicants' agent] to say that
as we, the Respondent, interpret the case, we are wrong, but he
has, up to now, not defined his case to any one of the witnesses; be
merely refers to these cases set up in the pleadings. And I should
like to know what he means when he asks the witness a question
like that."
Now, Sir, in respect of this comment by learned Counsel, I have attempt
ed to place before you an interpretation of the meaning of the Applicants'
words. I would, therefore, like to ask you again-if you do not wish to
answer it orifit taxes your memory it of course ends that. Are there any
major or important aspects of your testimony which you can recall from
these two-and-a-half days which you would amend or modify, if the
interpretation placed upon the content of the stand_ards was the inter
pretation suggested in terms of my question to you, Sir?
Mr. PossoNY: Can I ask perhaps, Mr. President, that Mr. Gross's
interpretation be read again and I will try and note it down?
The PRESIDENT:11r. Gross does not put to you any specific matter
which he thinks is inconsistent or which you might desire to alter, having
regard to the interpretation which the Applicants say they place upon
page 493. Perhaps the request can be put again but it can be put, I sup
pose, in much more direct way now that the whole field has been covered
as to the purpose of the question. Mr. Gross.
Mr. GROSS:Yes, Sir. Would your testimony in any respect, major or
otherwise, so far as you recall it, be altered of modified ifthe Applicants
attributed to the standards for which they contend, as defined on page
493 and described there. that the reference is to governmental policies
which do not give weight to individual merit or capacity, but which ailot
rights and burdens on the basis of mcmbership in a group and which do
not protect equality of opportunity or extend equal protection of the
laws to individual persans, as such-on the assumption that that is the
interpretation? My question, if I may repeat it, is whether or not you
would in any material or major respects, as far as you can recall your
testimony now. alter or modify it?
Mr. Posso:N"Y:Mr. President, I fail to see that the formula diffcrs from
page 493 in any substantial aspect. It is a little hard to be accurate on
an evaluation of this sort but on hearing it, I think this is just a restate
ment, in somewhat different sequence, of what page 493 says, and on
that basis I would not change my testimony.
l\Ir.GROSS: Now I should like for further clarification of the matter
to refer to the Rcjoinder, V, page 131, to which I referred yesterday and
from which I rcad certain extracts. The context relates to Article 55
(c) of the United Nations Charter but what is relevant to my series of
questions to you is that portion of the paragraph on page 13r, which
reads as follows-I read the first sentence ycsterday, I should like to
complete the thought in the paragraph today. The Respondent says:
"ln Respondent's submission it would be entirely anomalous
to suggest that any difjerentiation (as distinct from imfair discrim
ination) between races. sexes, language groups or religious denomi
nations would involve conflict or inconsistency with the said Article
[that refers to Article 55 (c)]." WlTNESSES AND EXPERTS
Then Respondent goes on to say:
Thus, on Applicants' argument, a Member of the United Nations
would not be entitled to provide special protection or special public
conveniences for women, or would not be entitled to grant separate
public holidays for different religious comrnunities on their respec
tive religious days, or to establish different public schools for various
language groups or even for the two sexes."
And then, later on in the page, the Respondent says:
"lt is submitted, therefore, that the Charter did not purport to
establish any obligation not to differentiate between members of
various groups, but was concerned merely to prevent oppression
and unfair discrimination. Insofar as Applicants attempt to establish
the proposition that any differentiation on the basis of membership
in a group (irrcspective of when it says differentiation was intro
duced for the benefit of the group concerned) is contrary to the
Mandate, the Charter, therefore, cannot assist them."
Now, having read this rather lengthy quotation, I draw lour atten
tion to the apparent characterization by the Respondent o the Appli
cants' case as one which suggests that any differentiation between races
-1 will just stop there-would involve conflict or inconsistency with
the said Article, and then goes on to talk about group distinctions based
upon sexes, etc., in the terms used.
Now, Sir, I cite this because I would wish to ask you whether your
testimony regarding what is described in paragraph (a) of the points to
which your evidence is directed, or was intended to be directed, or does it
reflect an assumption on your part that the standards contended for by
the Applicant are accurately reflected in the passage I have just read
from the Respondent's Rejoinder?
i\frPossoNY: Mr. President, the word standard was not used by me,
but the word norm, and with that correction. 1 think that my testimony
was certainly directed to the notion that differentiation is not allowed.
In order to establish the fact that differentiation is a fact of life and
necessarily is a common pracbce in States ifI may enlarge on this for
one sentence: I did not even enter into a discussion of the terms "group"
or "class", but restricted my testimony essentially to the matter of
"ethnie", interpreting the word "race" in a broad, perhaps not necessarily
correct way. So the burden of my testimony was to establish that differ
entiation as to groups is a fact of legislation. "According to group"
differentiation is common practice and has to be common practice. I think
page 131 of the Rejoinder, V, which ~fr. Gross Just read, is a correct
description of page 493, IV.
Mr. GROSS:Now, Sir, with reference to your statement, ifI under
stood you correctly, and please correct me if I am wrong, your testimony
was not directed towards standards but towards a norm, is that correct?
Mr. PossoNY: Yes.
l\frGROSS:I refer, and I was referring, to paragraph (a) of the point
to which your evidence was said to be directed by the Respondent, as
read into the record of 18 October, at XI, page 643, which reads as
follows, as one of the points to which your evidence is said to be directed
-1 will omit the preambular paragraph:
"(a) The absence of a general practice of a suggested norm SOUTH WEST AFRICA
42
and/or standards of non-discrimination and non-separation as rclied
upon by the Applicants."
Now, Sir, would you, if you will, clarify, for the benefit of the Court,
what you meant when you said that you were not addressing yourself to the
question of standards of interpretat10n for which the Applicants contend?
Mr. POSSONY:Mr. President, as I understand it, the norm and the
standard are the same content-wise, but the legal effect of the norm is
different from the legal effect of the standard; particularly the standard
as applied in the particular case with respect to the Mandate. I was
not testifying on the legal effects of the standard as applied to the
Mandate.
Mr. GRoss: So your testimony, then, if I understand you correctly,
was directed to the point of whether or not there exists, as a matter of
international law, a norm, an international legal rule, prohibiting dis
crimination, as defined on page 493. ls this the point towards which
your testimony is directed?
Mr. PossoNY: That is correct.
Mr. GROSS:And the sole point towards which your testimony is
directed?
Mr. PossoNY: Certainly the main point, yes.
Mr. GROSS:Now, Sir, with respect to the question of the practice of
suggested norm and/or standards-the practice-you would concede,
would you not, Sir, that there are two separate, but related, questions
involved: the existence of standards-! am now referring to standards
-the existence of standards or otherwise and their application in prac
tice are two different aspects of the problem, are they not?
Mr. PossoNY: Yes, Sir.
Mr. GROSS:With respect to the existence of standards, as distinguished
from their application in one or more instances, was your testimony,
or was it not, Sir, tended to be directed towards the question of whether
the standards existed?
Mr. PossoNY: Yes. They do not exist. I should qualify, but for sim
plicity and time-saving purposes the purpose of the testimony was that
the norm or standard, as laid down, is non-existent.
Mr. GROSS:Does not exist?
Mr. PossONY: No. Other norms exist-and standards.
l\fr. GRoss: Would you say, Sir, just to clarify this one notch further,
let me take as an illustration the equal protection clause of the United
States Constitution with which you and I are both generally familiar,
Sir, are we not, and of which the Court will no doubt be aware. Woul<l
you say, Sir-you would obviously agree, Sir, that that exists as a
principle or standard. or whatever way you would wish generally to
describe it? That exists?
Mr. PossoNY: Certainly.
Mr. GROSS:You have testified with respect to certain of your ,·iews
with respect toits application, or non-application, of particular context?
That is correct, is it not, Sir?
Mr. POSSONY:That is correct.
Mr. GRoss: So that you would concede that there is a standard at
least in the United States, on a Constitutional level, of equal protection
of the laws, would you not, Sir?
Mr. PossONY: Certainly, but, l\lr. President, that is really not the
point. The "equal protection before the law" norm or standard has been WITNESSES ANDEXPERTS
43
in existence for many years. I do not know whether it started several
centuries ago, but certainly as of 1920, which is a relevant date in
these proceedings, that norm and standard was generally applicd. Cer
tainly we do not have to go further than to say it was being applied in
France and Britain.
Now, the point in Mr. Gross's presentation, it seems to me, is that
after the 1920 period, and notably in the United Nations period, a new
norm has been developed. That is the question. That old norm, that it
bas been in existence, there is no question about it.This norm, I would
say, was clearly recognized by all parties to the !\fandate. I do not want
to go further than this because it becomes a strictly legal problem but,
speaking as an historian, I certainly would stand on the point that by
1920-and, in fact, Mr. Gross, yesterday was kind enough to read the
Constitution of the Republic of Austria, which is dated 1920, and which
was written by Professor Kelsen-certainly at that time, without
going any further back in history, that was an accepted principle. However,
the point here is that a new norm has been developed, as defined on
page 493.
i'.\fr.GRoss: Now, Sir, I should like, with the Court's permission, to
turn to another aspect of your testimony. In the verbatim record of
yesterday, at page 35, supra, you stated, Sir, among other things:
"We have, thus, an identification of Nazism with apartheid.
I submit, Mr. President, that this identification is one which is in
the public mind, and is one-and perhaps the most important one
-which is at the bottom of the opposition or the difficulties in
which South Africa finds itself."
Is that correct?
!lfr. PossoNY: Yes, Sir.
Mr. GROSS:Now, might I ask you, Sir, with respect to the possible
inferences which you might wish the honourable Court to draw from
your testimony which I have just quoted: does this testimony reflect,
or is it intended to reflect, the view, Sir, that South African policies and
practices, which are in the record of these proceedings, is one of the
instances, to use the word used in point (b) to which your evidence is
said to be directed? "Is South Africa and its racial policies, the policies
of apartheid or separate development, one of the instances in which the
attempted application of the standards, or the attempted application of
the norm that cxists as a matter of law would have an adverse effect
on the progrcss and well-being of the persons concerned? Is this one of
the instances which are in your mind, Sir, by implication or other
wise?
l\Ir. PossoNY: If I understand it correctly, Mr. President, the question
is whether the policies pursued by South Africa have an adverse impact
on the populations concerned?
Mr. GROSS:My question actually, Sir, is whether you, in your testimony
which I have just read, had intended to convey the impression or sought
to have the Court infer that this is one of the instances to which point
(b) refers?
The PRESIDENT:Do you recall your evidence at page 35, sitpra?
l\Ir. PossONY: Yes, I do.
The PRESIDE:\'T:The question is clid you intend the Court to infer,
or was it in the back of your mind, that any attempted application of44 SOUTHWEST AFRICA
the standard or norm stated at page 493 of the Reply would, in South
West Africa, have an adverse effect on the well-being and progress of
the people of that Territory? That is the question, is it, Mr. Gross?
Mr. GROSS:Yes, Sir, and specifically referring to paragraph (b) of the
points to which your evidence is directed at XI, page 643, of the verbatim
of 18 October.
The PRESIDEKT:I think it is much better if you get the answer to
that question. lt is as I have already suggested, the addition of other
matter, Mr. Gross, which frequently causes a difficulty.
Mr. GRoss: Sir, I hope I have not confused the witness by identifying
the matter, I certainly did not wish to. \Vould you wish me to restate
the question, Mr. Possony?
Mr. Posso~v: I will try and answer, )Ir. President. )ly point here
was simply that the Applicants used the Declaration on the Elimination
of ailForms of Racial Discrimination as one item supporting their norm
and this declaration, and more specifically, the draft Convention, which
they also used, is linking apartheid with Nazism. The point that I wanted
to make is that if Nazism and apartheid were identical or if apartheid
were a modern form of Nazism-which is, in my mind, genocide, by and
large-1 certainly would not be standing here testifying.
lt is clear from my reading that the draft Convention and the Decla
ration try to outlaw practices like Nazism. This does not ipso facto mean
that they try to outlaw ...
The PRESIDENT:The Court must interrupt you. It is important to
be responsive to the question; I think the question has now been clearly
put to you-1 do not desire to put it again, but perhaps Mr. Gross will,
and then you should be responsive to it.
The question is one limited to whether, having regard to that part
of your testimony which appears at page 35 of yesterday's transcript,
wh1eh vou have read: did vou intend to have the Court infer, or was it
in the back of your mind {,,hen you made that statement in your. testi
mony, that the suggested norm or standards, stated by the Appücants
at page 493 of their Reply, IV, woulcl, if applied to the Territory, have
adverse effects on the well-being and progress of the people concerned?
Now, that admits of a fairly brief response-would you be responsive
to that question?
Mr. PosSONY:The answer is ves, illr. President.
i'lfGRoss: That itwould, Si~?
Mr. PossoNY: That it would be detrimcntal if the norm were applied.
Mr. GRoss: Now, Sir, in respect of your reference-at the same page
and point, that is to say, page 35, supra-and comment that the iden
tification of Nazism and apartheid has certain consequences or implica
tions, I should like to ask you, Sir, whether you have had occasion to
examine the 30-odd United Nations resolutions or any of them cited in
the Reply at IV, pages 502 and 503, in the footnote, which specifical!Y
condemn racial discrimination, including apartheid, and also in certam
non-sclf-governing territories. Are vou familiar with those resolutions,
Sir,or any of them? '
Mr. PossoNv: I would not be able to tell you, Mr. President, I have
read many of these resolutions, but 1 do not know which specific ones.
Mr. GROSS:Weil, Sir ...
Mr. PossoNY: I know that they are listed here, but I do not remember.
Mr. GROSS:On the basis of your reading of any of them, so far as WITNESSES AND EXPERTS 45
you recall, and obviously I would not want to tax your recollection, but
on the basis of your recollection, Sir, of reading any of them or all of
them, could you tell the Court whether there is any reference to Nazism
in any of them, Sir?
Mr. PossoNY: I do not remember. I have the Draft Convention here,
and it is ...
1\Ir. GRoss: I am talking to you about the resolutions cited at the
page, Sir, that does not happen to include ...
Mr. Possoxv: This I do not know.
Mr. GROSS:... the Draft Convention. I see, Sir.
Now, have you read, Sir, as part of your study of the case in prepara
tion for your testimony, the expression of official views of certain govern
ments, which are set forth illustratively in the Reply, IV, at pages
296-302-have you had occasion to examine those, Sir?
Mr. PossoNv: Pages 296 to?
Mr. GROSS:Pages 296 to 302 of the Reply, undcr the heading "Views
of Governments".
The PRESIDENT: It is pages 293 to 295, is it not?
Mr. GROSS:Oh, I beg your pardon, Sir.
I am sorry, ::\frPossony, I am afraid 1 have misled you. Sir. Pages
295 and following; page 293 is the introduction. The views begin at page
295, the United States, and thcy continue for some pages thereafter;
I will not ask you to read them, unless you wish to, but have you had
occasion to examine them?
rt.IPossoNv: No, I have not examined them.
Mr. GROSS:May I state, Sir, that, with the exception of the Norwegian
statemcnt, which is at IV, page 299 of the Reply, there is no reference
in any of them which identifies Nazism with apartheid in any respect.
I take it, Sir, that, in respect of your comment that this identification
is one which is in the public mind, and is perhaps the most important
one which is at the bottom of the opposition or the difficultics in which
South Africa finds itself, you would not then apply this statement to
the views of governments or to the resolutions, so far as you are aware
of their content?
:\Ir. Possm,v: :\Ir. President, the culmination, so far, of the drafting
effort, has been the Draft International Convention on the Elimination
of allForms of Racial Discrimination. I do not know what happened in
the last few months at the United Nations, so I would not say that this
is the last effort under this over-all heading of human rights, but this
is definitely the last product before the resumption of United Nations
activities-and there it is, very clearly, Nazism.
Mr. GRoss: Sir, I do not have my question written down, I will not
labour the point, but you have not responded to the intent of my question.
\Vas it or was it not, Sir, to be inferred in your testimony, on page 35,
si1pra,that the identification of Nazism and apartheid has been made in
the resolutions, if you recall, which the Reply cites on the views of
governments, other than the Norwegian statement-now, my question is:
whether, in terrns of your testimony, you are referring to identification
of Nazism and apartheid in respect of anything othcr than the Draft
Convention, to which you have referred? Perhaps I can put it that way.
Mr. PossONY: No, I think this is a good enough source for the point.
Mr. GROSS:I see, Sir.
Now, in your testimony in the verbatim record, 19 October. at XI, SOUTHWESTAFRICA
pages 703 to 707, you discussed, at some length, the proceedings of the
Seminar on the Multi-National Society, held 8 and 21 June 1965, under
the auspices of the United Nations, and you quoted statements from
various participants, and certain conclusions, did you not, Sir?
i\k PossoNY: That is correct.
Mr. GROSS:Now, the report of the proceedings states, at page 8,
paragraph 23-I want to be sure I am citing the. right page ...
The PRESIDENT:Have you the report in front of you, Professor?
Mr. PossoNv: I know the reference which will be made, I am sure.
Thank you very much.
Mr. GROSS:The paragraph to which I refer ...
With the Court's permission, do you have a copy to follow me with?
Mr. PossONY: I do not.
Mr. GRoss: I will read it, if I may, Mr. President, I have it carefully
trànscribed.
The PRESIDE~T:Certainly.
Mr. GROSS: It reads, on pages 8 and 9, paragraph 23:
"Severa! participants stressed that the question of minority rights,
important as it was, seemed currently overshadowed by the wholly
abnormal situations prevailing in certain areas where a minority
denied the most fondamental human rights to an overwhelming
majority. Special attention was drawn to the discriminatory policies
pursued by the Government of South Africa [several other govern
ments are named, but focusing now on this], policies which, in the
opinion of those participants, demanded international measures in
that they violated the Charter of the United Nations, the Universal
Declaration of Human Rights, and the instruments deriving from
them."
In the first place, Sir, with respect to the views here expressed by
"several participants" on the problem of "a minority denied" the enjoy
ment of "the most fundamental human rights to an overwhelming
majority", would you agree, as a political and social scientist, that this
is an aspect of the problem of human rights. that is, it is not merely a
question of whether a minority is deprived of rights but whether a
majority is deprived of rights? Would you say that both are relevant to
a consideration of the problems to wh1ch you have addressed yourself?
Mr. PossONY: That anybody is denied of rights.
Mr. GROSS:Incidentally, Sir, I would simply point out that, it is
correct, is 1tnot, in this excerpt there is no identification of Nazism
with the policies of South Africa?
l\Ir. PossoNY: No overt identification, Mr. President. The \'ery para
graph is worded so that it is obviously in the minds of those who made
the observation that apartheid is an oppressive policy; it may not be as
bad, maybe, as Nazism, there may not be an allegation of genocide
involved here, but apartheid is, according to the people who made these
statements, oppressive. The point at issue is precisely whether it is
oppressive or not. These men in the seminar have assumed that it is
oppressive but there is no evidence presented as to why they think so.
There is a paragraph thrown in in the transcript of the proceedings. but
there is no evidence whatsoever that the people who talked about the
subject knew "any of the facts.
Mr. GRoss: Now, Sir, with further reference to the proceedings of the WlTNESSES ANDEXPERTS 47
seminar, and the views expressed with regard to the problem of minor
ities, in your testimony inhe verbatim record, 19 October at XI, pages
704-705-do you have that, Sir?
Mr. PossoNY: Yes, I have page 705, but which passage?
Mr. GRoss: You pointed out, did you not, "that the point was made
repeatedly that group rights and individual rights do not necessarily
coincide"?
Mr. PossoNY: That is correct.
Mr. GRoss: And that "both types of rights must be protected". You
stated that on page 705, supra, is that not correct, Sir?
Mr. Possosv: Yes.
Mr. GRoss: Now, you then cited and quoted from paragraph 36 of the
seminar in this connection, did you not, Sir?
Mr. PossoNY: Yes.
Mr. GROSS:I should now like to call to your attention paragraph 35,
of the same report, immediately preceding the paragraph you cited, and
ask you whether you would agree or disagree with the views there set
forth by the governmental representatives concerned.
Do you have a copy of the document? May I read it slowly? Paragraph
35 is on page II :
"Other speakers raised in this connection [and the connection was
the minority problem, generally speaking] the question whether the
rights most requiring protection were vested in minority groups or
in the individuals belonging to them. Sorne of these speakers con
tended that all political and most social rights could be extended
only to an individual."
Pausing there, do you agree or disagree with that view?
Mr. PossoNY: CouId you read it again? I did not hear the last part.
}Ir. GROSS:Yes, of course, if the President permits.
"Sorne of these speakers contended that all political and most
social rights could be extended only to an individual."
Would you agree with that view?
Mr. PossoNY: I do not know about "most" and "ail". I would say
that there are rights which can only be attributed to individuals and
there are rights which must be attributed to groups.
Mr. GROSS:It depends, does it, if I may interject a question, on the
point of view or perspective from which the problem is approached,
since groups are, are they not, necessarily composed of individuals?
Mr. Posso:--:-v:Yes, but I do not want to get into an argument about
this because obviously that is one of the factual questions. I believe,
just to give an answer to it, that many rights and obligations must be
legislated through the group and the individual does not show up.
I could explain this, for example, in terms of taxation, but I do nol
think that I should waste the Court's timc with that. As Mr. Gross
stated it, it is a generality and I will answer it with a general answer.
Mr. GRoss: Sir, my question to you was. I thought, rather axiomatic.
Groups are, are they not, composed of individuals?
1\fr. PosSONY: Yes, they are obviously composed of individuals, but
that does not exhaust this problem.
The PRESIDENT:The first part of the response was the answer to the
question, Mr. Gross put to you.
Mr. GROSS:To continue: SOUTH WEST AFRICA
"The right to vote, for example, should be enjoyed by every
citizen,but the recognition of special political rights to a group
could even carry an element of risk, as the history of the inter-war
period has shown."
Now, I am calling your attention here, in the context of this view
cxpressed in the report which you have cited, to the phrase "the right
to vote, for example, should be enjoyed by every citizen". Would yon
accept that as a principle?
Mr. PossoNY: I accept it, except for the normal exclusion clauses,
but otherwise there is no question about it.
Mr. GROSS: ln other words, as a principle or standard, you would
agree that, subject to disqualifications-insanity, age and the normal
disqualifications and qualifications-you accept the principle that the
right to vote should be enjoyed by every citizen?
Mr. PossoNv: Yes.
Mr. GRoss: Next. continuing reading:
"The creation of privileged groups, particularly within concen
trated arcas, rnight create a local situation in which a minority
discrimînated against the majority."
Would you accept that as a fact and would you agree with that state
ment?
Mr. PossoNY: Ycs. I would also agree to exactly the opposite state
ment. If I may follow up the "right to vote" with one sentence, it is not
a question of the right to vote. I do not think there is any argument
about that. The question is: to vote in what context? Similarly, a
minority may opprcss and a majority may oppress.
Mr. GRoss: Then, continuing the views expressed:
"Moreover a group enjoying special rights might abuse them to
the point of hindering those of its members who prefer to seek
total assimilation within the dominant current."
Would you accept that, if you understand it? I am not certain that I do.
Mr. PossoNY: I think I understand it. There are two sicles to this,
the group whkh may want to assimilate and the group that may or
may not want that group to assimilate. In other words, you have to
consider both elements of this equation. Assimilation means that one
group wants to mcrge with another group. The other group may not
want this. Whether this is oppression or not is, I think, a question which
is hard to decide. lt has often been stated that it is "oppressive", but
I am not sure that this is correct and I do not want to waste time here.
Mr. GROSS:Continuing and concluding the reading of this paragraph,
there is,one more sentence:
"Separate group rights could thus only be envisaged as a rule in
the linguistic, cultural or religious fields while elsewhere the rights
of a group cou!,] not exceed the sum total of rights enjoyed by each
individual therein comprised."
Now, unless you wish me to read it again, what I wish to call to your
attention is the recurrence to the theme here, as I understand it, earlier
mentioned, that "the rights of a group could not exceed the sum total
of rights enjoycd by each individual therein comprised". As you under
stand that, would you agree or disagree with it? WITNESSES AND EXPERTS
49
Mr. PossoNY: I do not think that this statement is one which is too
responsive to the problem we are discussing.
The PRESIDENT:First, could you answer the question of do you
understand what Mr. Gross put to you? Do you understand the words
which he used?
)fr. PossONY: I understand this particular quotation, Mr. President.
The PRESIDE;,;"TW : hether it is concerned with the problem we are
discussing is not the point. Counsel is asking your view of this statement,
do you agree with it?
Mr. GRoss: As you understand it, do you agree or disagree?
Mr. PossONY: That is what I wanted to express. I agree to it as an
exercise in logic. I do not agree with the particular statement as a
sociological analysis.
Mr. GROSS:Would you care to elaborate that, if the Court wishes or
permits?
With regard to your testimony on the page I have cited, that is, the
verbatim of 19 October. XI, page 705, you will recall that you referred
to the fact that "both types of rights must be protected". The point
was made repeatedly that "group rights and individual rights do not
necessarily coincide and that both types of rights must be protected".
That was your testimony.
I would like to ask you, Professor Possony, for your view, if you care
to express it,as to whether or not the purpose of group protection. in
the sense in which you use the language, is or is not precisely to protect
the rights of the individuals composing the group so that they will not
be hampered or adversely affected by reason of their membership in
a group? Is that what you mean by the purpose of protecting the group?
Mr. PossoNY: The purpose of protecting the group, or group legislation,
is to enablc the individual to get his best chances. There is only one
addîtional point, that in addition to the question of the individual's
rights and hopes and so on, therc are specific problems that must be
handled, due to the existence of groups, which do not necessarily have
a bearing on the question of individual and human rights.
Mr. GRoss: Now, of course we agree without any question or reserva
tion that special problems arise by reason of membership in a group.
I do not rnean to irtply anything else in my question to you. Proceeding
from your response to me, as I understood you, that a fondamental
purpose of a group is precisely to protect the right of the individual
as a member of the group, woulcl you go further and say that if it is
possible, by natural circumstance, that is to say other than by reason
of sex, or by reason of being blincl or otherwise disabled, or a minor,
to change group affiliation for any purpose sought by the individual,
would you say that this is a right to be protected?
Mr. PossONY: When a man is blind and he can regain his sight,
obviously the right for him to do so should be protected. Generally
speaking I agrec with you that the right of an individual to select h1s
own life is one that should be protected. The question in practice is to
what extent there is a practical capability.
Mr. GROSS:Suppose, Sir, for example, a person-1 am not drawing
you in to South West Africa or South African policies any more than
you wish or the Court perrnits you to go-but suppose, for example,
a person classifi.cd as Coloured,et us say, wishes to enjoy certain rights
which are granted by law only to persans classified as White: let us take50 SOUTH WEST AFRICA
that as an example. Would you regard it as desirable social policy, legal,
or economic, or political, or moral policy, or all of these, to allow or permit
that individual (as an example) to say, "I do not wish to be classified
or regarded as Coloured. I wish to have the rights which pertain to
me as an individual and comparable to those enjoyed by a White per
san". Would you state thatthat is a right on his part which should be pro
tected?
Mr. PossoNY: Mr. President, there are two questions-the right not
to be classified and the question with respect to activities. Without
going into the details of this I would say this depends on the over-all
situation. If you have a situation wherc it is necessary to <livide people
by groups because they are in fact quite different, and this is a political
issue in the political area, like in Cyprus, then the interests of the com
munHy as a whole, not just the individual or the sub-community, but
the over-all community, take precedence. So the desire of the individual
person is of no greater importance than the desire of the young recruit
who does not want to be drafted into the military forces.
With respect to the reduction of his persona! rights in terms of his
career or so, it depends precisely on what the facts are. If he is disabled
from making any career that is within his capability, then this would
be a reduction of his rights. If, however, he is not so disabled, then hîs
rights would not be curtailed.
Mr. GRoss: Would disablement in the sense in which you use the
term include the inability, by law, to participate in the franchise, for
example?
Mr. PossoNv: In any franchise?
Mr. Gross: Any franchise you wish, Sir, that pertains to rights of
citizenship. Let us say to vote for representatives in the central govern
ment, for example.
Mr. PossoNv: That depends on the situation, l\Ir. President. No one
can participate in any franclùse he wishes. You have to participate in
the franchise of your group; it makes no sense to vote in a group to
which you do not belong.
Mr. GROSS:And this depends then, Sir, on how you define the group,
does it?
Mr. PossoNY: It depends, I think, if it is a valid definition, on what
the actual social situation is.
Mr. GROSS: It depends on how the group is defined-would you answer
that yes or no? It seems rather axiomatic, in terms of your earlier
response.
Mr. PossoNY: If we understand that the definition would not be an
arbitrary one, then the answer is yes.
Mr. GROSS:And would it matter also who establishes the group clas~
sifications? Would that be relevant?
Mr. PossONY: It would be relevant. It would be more relevant if the
group classifications were arbitrary as distinguished from group classifi~
cations that are just natural because there happen to be those groups.
Mr. GRoss: And would it make a difference, Sir, who makes the
decision as to whether a particular classification is arbitrary or not?
Mr. PossoNY: It would matter if the decision disregarded the facts of
history. I do not know, for example, whether in the establishment. let
us say, of a system like in Cyprus or in Lebanon, people have gone
through this sort of elaborating precisely how to define this point. Those WIT};ESSES ANDEXPERTS 5I
were given situations and arrangements generally were made on the ha.sis
of those given situations.
Mr. Gnoss: Would you care to answer my question, or do you think
you have answered it? Does it make a difference who decides whether a
given classification isarbitrary or not?
The PRESIDENT:There are two questions there, Mr. Gross: one, who
makes a definition, and the other one, whether it is arbitrary.
Mr. GROSS:Sir, I intend, if I may, to clarify and re-formulate, to ask
one question. Does it make a difference who decides whether or not a
given classification isarbitrary? ,
Mr. PossoNY: Frankly, I do not know how to arisv,·erthis, Mr. Presi
dent. Logically, I would say obviously it makes a difference; practically,
I would say that there is no mechanism in existence by which this could
be determined.
Mr. GROSS:Sir, you are not tcstifying with respect to the Mandate;
that is understood, is it not?
Mr. PossoNY: No, no, I did not.
Mr. GROSS:Now, Sir, with regard to a further testimony, the report
of the proceedings of the seminar to which you have made reference,
paragraph 120 of the report reflected the view of some of the parti
cipants ...
Mr. PossONY: Do you have the page number, please?
1lr. GRoss: Yes, I do. Paragraph 120 is on page 29.
Mr. PossONY: I mean the rcference in the transcript, in the verbatim
record.
Mr. GROSS:No, this is not a reference in the verbatim record. This
is a reference to the report of the seminar. The references to the verbatim
record which I have made are those in which you discussed the report
of the seminar in other respects.
Page 29, paragraph 120, of the report of the seminar is a summarization
of the debate, and the discussion leader suggested the following con
clusions, inter alia,the one to which I shall refer:
"Sorne participants felt that the question had been somewhat
wrongly approached [again the question here being the whole problem
of minorities, multi-national State in the broadest context] since
cultural rights were not special minority rights but an essential
element of the freedom of the individual."
\Vould you agree that cultural rights were an essential element of the
freedom of the individual, rather than minority rights, or do you think
that that is an unrealistic distinction?
fllr. PossoNY: Bath.
Mr. GROSS:You think that it pertains to bath, Sir?
Mr. PossONY: If you have a society where there are many different
groups, and where, for that matter the strength of the particular cultures
is quite different, one culture being stronger than the other, you have to
keep in mind that the culture as such of the group bas to be protected.
In addition, of course, it is an element of personal freedom to have your
own culture.
;\frGROSS:Would you say, Sir, that as a matter of your belief or
approach to this whole problem, that the group which we agree, I think,
comprises individuals, is only a group because of individuals which
comprise it? This is correct, is it not, Sir?52 SOUTHWESTAFRICA
Mr. PossoNY: Mr. President, this raises an argument which has been
dealt with in 100 years of sociological theory, so I just cannot answer
this in terms of yes or no. This question does not lend itself to this sort
of answer.
Mr. GROSS:If it is a question which is difficult or impossible to answer
within reasonable time-limits, perhaps we could co-operate in my re
formulating it.
Mr. PossoNY: Let me try a very fast answer with respect to language.
You do not have languagc of an individual. Language presupposcs a
group. Without the group as such there is no language.
Mr. GROSS:Of course, Sir. Now, with regard to those who speak the
language, they are individuals or does a group spcak a Janguage, Sir?
Mr. Posso;,,y: The group spcaks the language and ail the membcrs of
the group speak the language.
Mr. GRoss: Now, Sir, T just wanted to gct a little clearer, for the
possible benefit ofthe Court, your conception of the relationship between
the group and the individual, since obviously, is it not truc, Sir, that
this is really the heart and soul of the purport of your testimony? You
would agree with that, would you, Sir?
Mr. Posso:-;v: Not necessarily.
i'.\Ir.GROSS: Not necessarily. With regard to the minorities treaties,
to which you referred, I refer specifi.cally to the verbatim of r8 October,
XI, at pages 655 and following.
At page 656, I shall read, Sir, from your testimony, the following
paragraph:
"The minority treaties provided to each member of the minority
the right to the nationality of the State exercising sovereignty. The
treaties recognized the principles of strict equality between indivicl
uals belonging to the minority element and those belonging to the
majority, notably equality of ail persons before the law and equal
treatment de facto and de juris."
ls this a correct version, an accurate version?
Mr. PossoNY: Except for the word juris, yes.
Mr. GROSS:Except for de juris. It should be de jure.
Now, Sir, with respect to this paragraph, first the statement that
"minority treaties provided to each member of the minority the right to
the nationality of the Statc excrcising sovereignty". On the basis of
your study or analysis of the minority treaties to which you referred.
could you indicate your vicw concerning why that was regarded, if you
know, as an important elemcnt for protection in the treaties?
Mr. PossoNv: Weil, I have not addressed myself to this problem
particularly, but I would venture to think that any person needs a
passport; he has to have a right to be somewhere, to be recognized,
and to corne home if he wants to, and so on, and that is involved here.
i\fr.GROSS:Do you think, Sir, that this is a fair interpretation of
your answer; that it is essentially a matter of convenience rather than,
for example, a matter of basic rights which normally go with citizenship?
Mr. PossONY: I would think this is a basic right.
l\:Ir.GROSS:And, therefore, now turning to the second sentence: "The
treaties recognized the principles of strict equality between individuals
belonging to the minority element and th.ose belongin~ to the majority",
etc. Now, with respect to that phrase m your test1mony, would you WITNESSES AND EXPERTS
53
indicate to the Court your view concerning the importance. or otherwise,
with any qualifications you may have, of the right of strict equa.lity
between members of groups, and what sense you attribute to that phrase
in your own testimony? Equality in what respect, Sir?
Mr. PossoNY: Weil, the treaties had this wording in them, this is
point number one. The specifics varied not too much, but they did vary.
The fondamental purpose was, of course, that in a multi-national State
(most of those were European States whcre the ethnie differenccs arc
relatively minor) or where there are some rcligious problems, that each
citizen of the State has equal rights in terms of voting, in terms of
passports, in terms of whatever other rights that would be necessary
and are possèssed by any member of the othcr groups.
Mr. GROSS:And the "equality of all persons before the law and equal
treatment de facto and de jure"; you would regard that, or accept that,
Sir, as a standard or principle of general application in respect of the
minorities treaties?
Mr. Possm,y: Yes, they all contain this phrase, or virtually ail.
Mr. GRoss: And further in your testimony in the same verbatim record,
but calling your attention to page 654, now you referred, did you not,
Sir, to several ways of implementing self-determination? And in the
course of your testimony you statecl, and I quote from XI, page 654:
"In this contcxt, I am using the term 'self-determination' as
denoting theidea ofnationaldistinctiveness in the sense of Bluntschli,
one nation-one State or one State-one nation. I am not discussing
how and whether the will of the populations concerned is bcing
detennined. ''
Now, would you indicate to the Court, if you wish to, whether, in your
view, the methods by which the will of the population concerned is
ascertained and determ.ined are factors relevant to the question of
implementation of the principle of self-determination to which you
rcferred?
;1:r. PossoNY: The short answer to that, Mr. President, is yes.
Mr. GROSS:And, Sir, is this what you meant in your comment (this
is for clarification), in the same verbatim record at XI, page 656, when
you said, among other things:
"A mere minority treaty cannot provide the ethnie group ...
with the capability of participating as a more or less equal partner
in decisions affecting its existence."
Did you mean, Sir, by that testimony "a mere minority treaty cannot
provide the ethnie group", etc., that the achievement of the status of,
what you so call, more or lcss equal partnership in decisions affecting
the existence of a group is an important, or even a vital element of the
problem of self-determination and equal rights?
Mr. Posso~v: I do not think these two points are too closely
connected. The point on XI, page 654, was simply a methodological one.
I was not going to discuss this problem in the framework of that particu]ar
argument. I was just talking about separations, partitions, and so on.
The point on page 656 essentially is that a minority treaty provides
some sort of protection to a group that finds itself in the usually difficult
position of being in a State with which ethnically it is not identified.
As a minority it will always, in one way or the other, stay under certain SOUTH WEST AFRICA
54
handicaps which the minority treaties can mitigate, but the handicaps
attendant to the status of minority will remain.
Mr. GROSS:I take it you would agree, would you not, Dr. Possony,
that it is, let us say, a sound application of the principle of self-deter
mination, in the context of your testimony, that what you have described
as more or Jess equal partnership in decisions affecting its existence
would be a desirable objective from the standpoint of effecting just and
sound decisions in respect of self-detennination? Would you agree with
that, Sir?
Mr. PossoNY: Certainly. .
Mr. GRoss: Do you agree that individuals composing an ethnie group
in the situations you have in mind-or have you answered this already
-should have an effective voice in decisions affecting the existence of
the group? Do you consider that you have already answered that?
Mr. PossONY: No, I do not think this was discussed before, Mr. Pres
ident. I do not have any argument with this contention, in fact I agree
with it wholeheartedly. Every group ought to have its own voice, its
own self-determination in the sense of determining, on a day-by-day
basis, its own destiny, and only if it does that can it be considered an
equal partner. I think this is the fondamental objective, at least of
some parts of the policies which are under critique. Now, the question
of how you determine in a particular case a status-whether for example,
through the plebiscite technique, and so on-that is another question.
It is still another question entirely whether, at a given time, a particular
group is ready for running its own affairs or running all of its own affairs.
This is recognized in the United Nations Charter, and so I do not think
I have to go into that.
Again, let me make this point, if I may, very clearly: there is no
question as to what the ultimate objective would have to be, or at least
there is no question in my mind as to the ultimate objective, that the
varions ethnie groups-and the word "ethnie" incidentally covers a very
broad field of many sub-differentiations-all ought to be strong, self
reliant, progressive. ln fact, every individual in each ethnie group is
dependent upon the fate, the destiny and the strength of the group to
which he belongs. This being the objective to which, I am sure, practically
everybody agrees, then the question becomes one of methodology of
how you would reach this objective. And I think this is the question
under debate.
Mr. GROSS:I think, Sir, perhaps I might invite your attention to the
question which was: do you agree that individuals composing an ethnie
group, no matter how defined, in the situations you have in mind, any
of them, should have an effective voice in decisions affecting the existence
of the group? Do you agree that individuals composing the ethnie group
should have some effective voice in decisions affecting the disposition
or the destiny of the group of which the individuals are concerned?
Mr. PossoNY: Certainly, each individual should have an effective voice
within his own group.
Mr. GROSS:Within bis own group, Sir. Then this takes us back again
to the question, does it not, of who defines the group?
Mr. PossoNY: History defincs it for you.
Mr. GRoss: And in the case, Sir, of a particular government, whether
a mandatory or not (we will leave that aside) does not the classification
by groups depend in certain cases-1 will refer specifically to South WITXESSES AND EXPERTS SS
Africa and South West Africa-by government fiat and legislation? Is
that not correct, Sir, so far as you know?
Mr. PossONY: You can have, and undoubtedly there are historie
examples and I could quote a few, I think, arbitrary government fiats,
as you call them. Those fiat decisions are not viable for a long time;
they break down somehow sooner or later. A government classification
of the groups is viable only if the groups are realities. By contrast, if
the groups are realities and the government does not take that reality
into account-which is one of the main points I tried to make-the
particular govemmental policy based on the ignoring of these groups
also is not viable.
Mr. GROSS:Speaking as a social behaviour scientist, when you refer
to reality in this context are you or are you not referring to any objective
criteria on the basfo of which a government, let us say, determines what
is "reality" and what is "artificiality"?
Mr. PossoNv: This question of objective criteria can be pushed very
far. Generally speaking, a govcrnment running a particular area knows
pretty well what the reality is, and I do not think they have to call
in the professors to tell them precisely what the criteria are of one group
or the other. But there are some commonly accepted criteria, like lan
guage and like terri tory; if I may, I can give you a set of criteria which
Ithink are self-evident.
Mr. GROSS:If I may interrupt without blocking your thought, is the
answer to my question that there are criteria which you are now about
to enumerate so I can follow, and the Court can follow, your testimony?
1\lr. PossoNv: Of course there are such criteria. You can be as accurate
in this matter as you want to be, lbut let me read such criteria: historical
development, stability, language, territory, economic life, psychological
makeup, community ofculture. The criteria I quoted to you are by Stalin,
from his book on nationalism writtcn in 1913. You can have othcr
criteria, I have written out many more, but all of those are sclf-evident
criteria.
Mr. GRoss: When you say, as I bclieve you did, that the government
of the area knows what is the reality-1 believe substantially that is
what you said, is it not?
Mr. Posso:sv: That is substantially what I said.
Mr. GROSS: In respect of the government of an area knowing what
is the reality, would you agree that it is relevant. and perhaps decisivcly
relevant, who has an effective voice in the selection of that government,
and who participates in that government, making such decisions as to
what is the reality or otherwise?
Mr. PossONY: As a general statement, of course this is correct.
Mr. GROSS:To approach the matter from still another point of vantage,
but on the same general lines, at least in my intention-you might
construe it differently-in your testimony in this same verbatim record,
at XI, page 648, to \\rhich I invite your attention, you stated in a broad
context, and if I am quoting it out of context I am sure you will be
quick to point it out to the honourable Court, about the middle of the
page, that "The diversity of mankind rests upon ethnie differences".
Then you explained, I think, what you had in mind, at least in part,
in that respect. Later on, towards the bottom of the same page, you
stated, and I read just a sentence here: "Multi-ethnic societies presuppose
the explicit recognition of ethnie difference." I should like if I may, SOUTH WEST AFRICA
first, to take the sentence I have first quoted, "The diversity of mankind
rests upon ethnie differences". Would you agree that the diversity of
mankind likewise rests, and indeed in very important respects, also upon
differences between individuals, irrespective of ethnie considerations?
Would you agree with that?
Mr. Possmff: Certainly I agree with it, i\frGross. The problem is
that individual differences, in terms of history, are less important than
differences between ethnie groups. If you look at art, for example, just
as one manifestation, you do have a world civilization, but you also
have national cultures; and the two terms are not entirely interchange
able. You have very great national cultures which are essentially by
themselves and have no great interplay with the rest of world culture.
What we call world culture, by and large, is based fundamentally on
the Grcco-Roman-European tradition. It is broadcning out now, so in
future this may change, but as of now it has not changed.
I certainly agree, and I hope this is not misunderstood, that the
individual plays an enormously great role. I would not perhaps go as
far as Carlyle in this, but he plays a great role. Therefore individual
differences play a great role.But the individual-and that is the finding
of the entire science of sociology for the last r25 years, since it was
barn-in many ways is a product of his socicty, and that mèans, his
ethnie socicty. I am not stating anything which is not essentially agreed
upon in the scientific area.
Mr. GROSS:I am sure that is right, but with respect to the perspective
or approach or point of view with which a problem of the relationship
between the individual and the group and the social order is analysed
and examined, is it or is it not true, as a matter of history and of scientific
observation, that emphasis on the group rather than on the individuaI,
in terms of similaritiesor diversities or otherwise, may tend toward what
is sometimes referred to as racist doctrines or concepts? Would you
agree with that as a consequence which, as is frequcntly observable,
flows from emphasis upon a group rather than upon the individual?
Mr. PossoNY: Yes, I grew up in a society where precisely this sort
of thing happened, but at the same time, because disease happens it
does not negate health. When you go into the whole intellectual history
underlying the concept of nationhood~take Herder, or Rousseau, ifyou
want to-you talk about a subject different from when you read l\Ir.
Hitler. That a diversity that exists and a diversity which has never
been eliminated, a diversity which has great advantages, can be abused,
there is no question about that .
.Mr.GRoss: So, if I understand you correctly, you would agree, would
you not, that emphasis on group differences or superiority or any
other aspect of group diffcrences may ]ead and has often led to what is
commonly regarded as racism? Is this a correct interpretation of your
testimonv?
M:r. PossONY: No, I do not think that is quite correct. I think you
can say that in the last, let us say, 50 years this would be a correct
statement insome instances, but the emphasis on differences does not
imply an argument as to superiority or not.
Mr. GROSS: I am not trying to put words in your mouth but, for
example, one has heard, has one not, of expressions like-let me take
one-"European blood", let us say? With respect to an expression of
that sort, would you say that that type of expression reflects what may WITNESSES AND EXPERTS
57
fairly be called a racist concept of the relationship between the individual
and the group and the social order?
l\fr. PossONY: That may be very bad language usage, and from the
scientific point of view it is a pretty unacceptable phrase, but whether
the phrase is a racist one or not depends on who the speaker is and what
the context of his speech is. I cannot, il.fr. Gross, give you a general
statement on a hypothetical question of this sort.
Mr. GROSS:I concede that it might be difficult, but I am putting it
to you on the basis of the perspective and of the inferences which you
would wish, as an expert testifying here, the Court to draw as to the
distinctions, as you perceive them, with respect to the emphasis on the
individual, proteçtion of his diversity, his individuality, and the emphasis
on the protection of a group as an, if I may say, abstraction. Do you
wish to comment on that?
Mr. PossoNY: Not as an abstraction.
Mr. GROSS:All right, Sir-as a group composed of individuals-would
you acccpt that?
Mr. PossoNY: The difficulty again is that this is one of the prob\ems
which the sociologists really have been fighting for roo years: precisely
how do you defme it?-and I do not think we can open this up. I must
demur against identifying a group just as a sum total of individua\s
jtis more than that. \Vhat "more than that" means, I do not think we
can go into without really wasting time.
l\1r. GRoss: Ail right, Sir. Let me refer to you. You co-authored a
book, did you not, with Mr. Nathaniel Weyl called The Geography of
Intellect?
ri.fr. PossoNY: Yes.
ilfr. GROSS:And this was published, was it not, by the Regnery Press
in Chicago in 1963. is that correct?
il[r. Posso::-v: That is correct~! am Jooking for your reference.
l\1r. GRoss: Do vou have the book, Sir?
illr. PossoNY: r"do not have the book, no.
1\frGRoss: I presume you are familiar with it?
Mr. PossoNY: I am, yes. .
Mr. GROSS:I should like to read page 284 in the context of our present
discussion, where you state:
"A vast elite of European blood is being uprooted in tropical
Africa. It is utterly fanciful to suppose that this elite can be sup
planted by transient acrohats and reformers from the Peace Corps.
The goal of the anti-colonialist crusade is to extrude from Negro
Africa (since they obviously will not remain there as a downtrodden
minority under Negro rule) four million people who are virtually
the only persons with skills and technology, administration and the
other disciplines of western civilization ... There is nothing in the
slothful and insecure progress of the Negro that suggests that he
will be able to replace this elite in Africa from his own ranks at
any time in the foreseeable future."
Pausing there, would you say that the refcrence in your book to expres
sions such as "European blood", and reference to "the Negro" would
be examples or not of what might be rcgarcled-1 do not mcan to use
a term you will not accept, but might be reasonably regarded-as a point
of view, sha\l I say, without characterizing it as racist or otherwise,58 SOUTH WEST AFRICA
which reflects very heavily a concentration on the group as such-"the
group", "the Negro", the "European blood"-would you agree with that
as a fair interpretation of your writing in this respect?
Mr. PossoNY: In the first place let me say that this is a co-authored
book.
The PRESIDENT:This is what?
Mr. PossoNY: I am only the co-author of the book, and the exact
words were ,vritten by my co-author-I wrote the first draft. Without
disassociating myself from it, however, the point simply here is that
we are talking in this book about a very important matter. The same
-subject-matter came up in testimony two days ago with respect, for
example, to the Indians in East Africa. The question simply is whether
.aparticular group, qua group, that has provided (and this is the question
in this particular paragraph) in Africa the main managerial talent, if
that group is eliminated, what would happen to the land? This is the
point we were discussing. I would say one other thing-the usage of
"Negro", or whatever. the word was ...
Mr. GROSS:"European blood."
Mr. PossONY: That was the other one.
Mr. GRoss: Yes. Sir. "The Negro."
Mr. PossoNY: That is not more objectionable than, for example, the
term which is used all the time. "African personality".
Mr. GRoss: I am not commenting as to whether it is objectionable
-ornot; I have my own persona! views on that, but they are of no interest
to the Court. What I am trying to establish is your view as an expert,
as a behavioural scientist, with respect to the words used, the thoughts
-expressed, in tenns of preoccupation or concentration on the group
.as such; I think you have answered the question to your satisfac
tion?
Mr. PossoNY: The group is important in this context, in fact it could
be of overriding importance. If you take-and I just give you a European
-example which is, for that matter, mentioned in the book-the decline
of Spain after the Inquisition and the extirpation of the Jews, you have
the answer of what might happen. That is an example which is probably
not quite as problematic as the one we are discussing now.
Mr. GROSS:This is not to quibble with you, but the extirpation of
the Jews refers, does it not, to the extirpation of individuals who were
classifiedor otherwise ethnicallv identified, or religiously identified with
Judaism? Is that not correct? \Vhen you talk about the extirpation of
1he Jews. you mean of individuals, do you not?
Mr. Possm-v: No. I think the Jews were elirninated from Spain as
Jews, on a religions ground.
Mr. GRoss: What do you mean by extirpation of the Jews as distinct
from extirpation of individuals who àre classified or who profess Judaism?
Mr. PossŒ.v: It.was the Jewish group which was kicked out.
Mr. GRoss: Now, I would like to return to your second sentence,
which I have quoted from page 15,that "Multi-ethnic societies presuppose
1he explicit recognition of ethnie differences". Would you agree that
it is relevant to that statement that the question of what is ethnie
-difference is relevant in the use of your phrase? In other words, to what
aspects of the social order, for example, 1sthe ethnie differcnce relevant?
That would be an important part of the problem would it not?
Mr. PossoNv: Yes. WITNESSES AND EXPERTS
59
Mr. GROSS: Would you be prepared to add to your comment that not
only is recognition of relevant ethnie difference important, but also that
protection is likewise important? As important as recognition?
Mr. PossoNY: \Vell, I really mean it in the sense of protection.
Mr. GRoss: And this, of course, also would be consistent with the
Applicants' view. This leads me to ask the foilowing question. Would
you further agree that the methods by which such recognition and
protection are regulated and the nature of the group or groups within
a given society which exercise the power to regulate and makc the
determ.ination, are relevant considerations? First, would you agree that
the methods by which such recognition and protection are regulated is
an important aspect of the problem?
l\fr. PosSONY: Certainly.
Mr. GROSS: And would you not also agree that the nature of the
group, or groups, within a society which make the decisions with regard
to regulation and determination is also an important part of the problem?
Mr. PossONY: You mean the decision makers? Certainly.
Mr. GROSS: And the nature of the composition of the decision-making
group-that is important, is it not?
Mr. PossONY: Certainly.
Mr. GROSS: Then would you conclude from that, or would you be
prepared to agree that the conditions and the methods, the objectives
if you will, of recognizing and protecting ethnie differences, should be
the product of decision-making processes which are effectively shared
by ail concerned? Would you agree to that?
Mr. PossONY: As a general proposition, yes. As a specific proposition,
the sharing of decision-making is an ideal. It is not always a practical
reality.It depends on the level attained by the different groups and the
methods of selecting their representatives and so on. •
Mr. GROSS: So that if there were individuals within a particular
group as to whom there was no question of capacity or quality, intel
lectually or any other way, would you feel that, in light of the
ideal to which you refer, that those individuals as such should not be
denied participation in the decision-making process? Would you agree
to that?
l\fr. PossONY: No, because what this means, if I read this correctlv
and if I misread it, l\fr.Gross, I hope you will correct me-it would
mean, for example, in voting, that as soon as a persan has reached a
particular level he hasthe franchise and he can vote in an over-all society
which is beyond his individual group. I would consider that to be wrong
in certain instances, not always of course. Accordingly, I would say
that it does not follow that the man at that point should essentially
leave his group. The question is, does he stay with his group and does
he contribute to his group?
Mr. GROSS: Suppose that he feels, "I want to stay with my group;
I am desperately anxious to contribute to its benefit and I feel that
the best way I can do this is to claim a voice in the decision-making
which affects my group, of which I am proud". Now, if he is, by the
hypothesis of my question, capable, qualified, sound and sane as an
individual persan, is it or is it not part of your ideal, ta which you referred,
that he should be granted his wish and allowed to participate in the
decision-making process to which you referred, pertaining to the welfare
of his group, the decision perhaps being made by a government? This60 SOUTH WEST AFlUCA
is what we are talking about-official action. Could you answer my
question in those terms?
Mr. Possosv: No, I cannot. The man ought to participate in the
decision-making of his group. Then that group, in the ideal schematic
way, will set up certain facilities or governmental organs by which this
group handles its ovm affairs and those that are connected with the
other group. If he participates in these organs as a representative of
his group, this is exactly what he should be doing. If the implica
tion is that he should go over to the other group and participate in
the decision-making there, I do not think this is a very tenable proposi
tion.
Mr. GRoss: I do not want to quarre! with you, but I do not think
you can possibly understand my question. I am talking about a society
in which there are numerous groups. I am talking about a society in
which decisions are made by a government which affect the welfare and
destiny of ail of the groups. Do you follow me so far?
Mr. PossoNY: Yes.
Mr. GROSS:I am talking about the participation by a qualificd member
of any one of these groups, and you can pick any. in the dccision-making
process which affects his group's welfare, along with other groups. Do you
understand my question? Is that, or is it not, relevant to or part of the
ideal to which you referred a short white ago?
Mr. Posso:-v: Absolutely.
Mr. GROSS:And you think he should be given that right?
Mr. PossoNY: I think the way to do it is essentially laid out in such
cases as for instance in the Cyprus Constitution. Again, I am not going
against history or the experience of history, Iam saying, on the contrary,
let us look at the experience of history and a case like Cyprus, which
bas had a difficult problem for many years, over nearly a hundred years,
and which has been the subject of much international consideration, and
they finally came up with this solution. It is not yet an ideal solution
because they are still negotiating about re-defining the Statute that they
have today.
That is the way in which I would approach the problem and it is
I think the only way in which it can be approached.
Mr. GROSS: Are you then saying that the ideal of participation,
effective participation, is applicable inU circumstances as an objective,
a standard of equal protection of the laws? Would you agree to that
formulation of vour testimony?
Mr. PossoNv: Participation is necessary, yes. Participation is not
always practical when you have groups. I may add that the i\Iulti-ethnic
Seminar has not corne to grips with the whole depth of the problem.
In addition to multi-ethnic problems you do have diffcrences between
"distant" ethnie groups (I will skip that one), and you also have enormous
differences in cultural levels. The international legislation on theseters
and the very existence of the mandate system or the trusteeship system,
bear this out. There are different situations where thisort of participation
is for the future.
Mr. GROSS: When you used the expression, as according to my notes
you did, of the individual "not going beyond his group"-did you use
that phrase?
Mr. PossoNv: I may have.
Mr. GROSS: In respect of that phrase, or a synonymous phrase, did WITNESSES ANDEXPERTS 61
you mean to imply that the otherwise qualified individual, qualified as
a person, should not be permitted to exercise the right of effective
participation in a government on the grounds that, or bccause, his
group as a whole is disqualified by legislative fiat? Is that what you
meant by the phrase you used?
Mr. PossoNY: No. First of all, this is a general interpretation of a
problem which has to be handlcd in specifics. What I mean to say is that
if a man is qualified to be a decision-maker, he should be a decision
maker in his own group. How the particular group arranges its affairs
with the other group is another question, but you asked about the
individual. He can be a decision-maker in only his group.
Mr. GRoss: Now, lest we seem to be playing on words, and I am sure
ncither of us wishes to, in the case of a multi-group socicty, which is
what I am talking about and to which I am inviting your attention,
whcn you say that the individual otherwisc qualified should exercise or
participate in effective "decision-making within his own group", I take
it that excludes him from decision-making participation in respect of
the society as a whole. Do I understand you correctly?
Mr. PossoNY: No, because in that case you deal through indirect
levels. Again, speaking of the ultimate, not spcaking necessarily of the
present transitory situation, the various groups in a society all have
their representation. Let us take the example of Cyprus: you have the
Greeks and you have the Turks, and thcse people form together a govern
ment, in one way or another, by which they decide, by joint agreement,
what the decisions have to be for the whole community. They do not
do this as individuals, they do it as representatives of the Turkish
community and of the Greek community. It is essentially an interna
tional set-up within a one-State arrangement. I think that this explains
it the easiest way.
Mr. GROSS:Would you regard the participation of an individual in
a multi-group society in governmental decision-making, which affects
the destiny and welfare of his group (1 assume him to be qualified)
to be a just and important aspect of decision-making in the multi-racial
society? Can you answer that question or have you already clone so?
Mr. PossoNY: That a person participates in government?
Mr. GROSS:In decision-making of the central government, dccisions
which affect the welfare of all the groups in this society, including his
own. Do you regard such participation as relevant and/or important to
the exercise of the ideal to which you referred?
i\lr. PossoNY: Of any individual? No.
Mr. GROSS:Of any qualified individual, yes.
i\fr. PossoNv: Certainly, if a man is qualified he should participate .
.Mr. GROSS:In the process of the central government if that affects
the welfare of his group, is that correct?
Mr. PossoNY: ln the processes that are established; whether this is
central government, or not, is an open question.
Mr. GROSS: Suppose the centra1 governmen t does take dccisions
affecting the welfare of the groups within the society. This would not
be an unusual phenomenon, would it?
i\Ir. PossoNY: No.
l\Ir. GROSS:I am not trying to complicate the question but to simplify
it.With respect to the decisions of a central government in a multi
national Society, a multi-group society, which affect the welfare of the62 SOUTH WEST AFRICA
groups, are you saying or not that the participation of the qualified
individual in those essential decision-making proccsses is a relevant and
even an important aspect of the exercise of equal protection of the
laws? Would you agree with that?
Mr. PossONY: Iwill state it in my own terms which is that any person
qualified to participate in government should participate in the govern
ment that affects him. Now, the way in which this is done depends on
the situation.
Mr. GROSS: I have just one more question, Sir, unless footnotes occur
by reason of your response. Would you agree that the principle of
governmental protection of equality of opportunity and equal protection
of the laws is a virtually universally proclaimed standard, which is
enshrined in most constitutions of civilized countries and in decisions
and declarations of international organizations? Do you agree with that
as a statement?
The PRESIDE);T: I think there are about four questions in that,
Mr. Gross.
Mr. GROSS:The one question I have, Sir, is whether you would agree
that the principle of governmental protection of equality of opportunity
and equal protection of the laws-do you understand me so far, Sir?
Mr. PossŒ.v: I am trying to put it down.
Mr. GROSS:... is a virtually universally proclaimed standard, en
shrined in most constitutions and in the decisions and declarations of
international organizations-have you written it down, Sir? Do you wish
me to break it up if you regard it as a coµ1pound question, Sir?
1\Ir. PossONY: Mr. President, it is a compound question because there
is the question whether these points are in the constitutions and whether
they also proclaim ...
Mr. GRoss: You do not have to persuade me, Sir, the President has
already indicated the fact of the matter, Ijust wanted to clarify ...
The PRESIDENT: I simply indicated, Mr. Gross, not that it was com
pound but that it contained four questions and there is no doubt what
ever that it does contain four questions. Now the witness might answer
in his own way.
Mr. GRoss: Now, Sir, would you answer in your own way or, if you
would prefer me to break it down, I would be glad to, Sir.
Mr. PossONY: I only tried to save time. I think equal protection of
the Iaws, there is no question about it, the question merely is, what it
means. So far as Iunderstand it,it means that a law that is in existence,
depending on what the law says, it is applied without regard to the
individual person; it is applied equally. Equality of opportunity, or to
protect equality of opportunity, I think this is a more difficult propo
sition, but without going into the constitutional and normative parts of
it, I think you cannot protect what you do not have. The material
question is how you get this equality of opportunity and that is, I think,
one of the problems which has often been overlooked and forgotten.
Even if you had this as a clause, it would not mean much and it would
have to be followed up by specific legislation to achieve it. I think you
can easily follow this through and I will not. But just as an example
-leaving out entirely the ethnie problem-in labour legislation, the
problem was to achieve that equality of opportunity which, for one
reason or the other, did not exist.
Finally, we have to assess whether there is a universally proclaimed WIT:SESSE S ND EXPERTS
standard. I would say all constitutions basically are recognizing the
equal protection of the laws, certainly; whether they recognize equality
of opportunity, I do not think you can say this is a general situation.
In decisions and declarations of international organizations, again I think
I must distinguish between how the Applicants interpret norms and
whether this is in line with the norm as stated at IV, page 493, or not.
I think, as I reacl it,the United Nations declarations are by and large
against unfairness. Now, you eau probably go beyond this in analysing
because they have. after ail, made provisions for economic and social
improvements, and so on, and these factors could be considered. Gen
erally spcaking, in line with the discussion we have had, the rule is:
"no-unfairncss ".
Air. GRoss; I have no further questions, Mr. President.
.The PRESIDENT:Thank you, Mr. Gross. Does any Member of the
Court desire to put a question to the witncss? Sir Louis.
Judge Sir Louis MBANEFO:Mr. Possony, when you were discussing
the question of self-determination and suffrage, you used the expression
"if a group is rcady to exercise the right of suffrage" in the context in
which you wcre talking.
The PRESIDENT:Sir Louis, would you minci repeating it over again,
the witness did not catch what you said.
Judge Sir Louis MBANEFO:You used the expression when discussing
suffrage and self-determination "if a group is ready to exercise the right
to participate in a decision in matters affecting the group". I believe
you used the expression "if a group is ready"?
l\lrPOSSONY:That is correct.
Judge Sir Louis MBANEFO:How do you determine the readiness of
the group?
l\lr. PossONY: Mr. President. there are many ways in which this could
be dctermined. It is quite clear that in the application of all standards
there will be a matter of some arbitrary findings or judicial weighing
of factors. You cannot be entirely objective throughout but I think you
can Jay clown, and I believe there are criteria laid clown in various
international agreements which would allow you to do this. I would say
that the extent of literacy, whether it exists in a substantive way or
only in a formai way, would have a very great bearing. The particular
range of interests of the group, whether they are interested in the over
all affairsof their society or just interested in their own close society,
also matters. I could go on, Mr. President, but I think the point is that
there are criteria and the criteria, in my judgment, are fairly good; they
could be certainly sharpened up, and this could obviously be a matter
of agreement internationally.
Judge Sir Louis MBANEFO:Would the criteria apply to the group as
a whole or to individuals in that group?
Mr. PossoNY: I believe, Mr. President, that when the criteria would
show that a substantial portion of the group bas gone beyond this
criteria level, then obviously the group as a whole would follow. It is
one of these dialectic inter-acting relationships.It is not necessary, let
us say, that you have to have a literacy rate of 99.9 per cent. in order
to say that the group is literate; you would consider a group litera te
at some lowcr level. I believe that you would have to take into account
a fairly large number of factors. There is no implication I am making
here that the way to decide this should be very restrictive. You can SOUTH WEST AFRICA
under certain conditions certainly takc chances, whereas under other
conditions this might be more difficult.
Judge Sir Louis MBANEFO:Now, when you get a multi-racial Society
or group, would you regard the capacity of the individual to vote within
his own group as relevant in determining his ability to vote in the
federal structure?
Mr. PossoNY: If you have a federal structure which calls for federation
wide elections, where everybody votes for the federal government, this
is one thing.If you have a federal structure which the members concerned
of the federation would have to determine, which sets forth an electoral
law where the individual votes within his electoral group, this is some
thing else. I do not think that is connected with the ability of the indi
vidual himself, one way or the other, it is a matter of the political
convenience between the membership groups as to how they want to
set up thcir federation.
Judge Sir Louis MBANEFO:ln answcr to my other question you said
"a substantial number of the group being literate"-what percentage
would you considcr as substantial?
Mr. Posso:-.v: I would say half is certainly a substantial number.
Judge Sir Louis MBANEFO: So that unless you have 50 per cent.
literacy then the group would not be ready to ...
)fr.PossoNY: I would not, Mr. President, put it in these terms.
I used literacy as one example, there are many other factors you can
use: the ability to use modern equipment, the awareness of modern facts
and so on-some of those are hard to measure. I would say that in
practical application, if you take some-the word "primitive" is rightly
objected to by the anthropologists but to save time I will use it-very
primitive groups, those are not ready for participation in a complex
government dealing with modern technology, for example. On the other
hand, if you have a group which is developing very fast, where education
is making great progress, where they begin to understand what the
problems of modern life are, obviously they are getting ready or are
ready.
Judge Sir Louis MBANEFO:Finally, you spoke about Cyprus. Do you
regard it as fondamental that the constitution of Cyprus is based on
the consent of both the Greeks and the Turks?
Mr. PossoN'Y: Generally speaking, the answer to that is: yes, of
course. Howcvcr, in order to make a constitution of this sort work, it is
often necessary-I do not know whether this happened in Cyprus-to
make sure that a sort of viable arrangement is accepted regardless of
whether the two groups concemed really like it. I take it that neither
the Greeks nor the Turks are particularly happy with this statute, yet
this seems to be the only one that is working and so, without really
getting the question decided too clearly whether there is consent or not,
I think the constitution has been put in operation. I can readily conceive
that this is not a long-range viable solution, but at least a transitory
solution it might be.
The PRESIDENT: Does any other .Member of the Court desire to put
anv questions to the witness? If not, there are one or two questions
I. \vould liketo put to you. It relates to the last portion of the first
paragraph on page 493 of the Reply-what is being referred to is the
defi.nition of non-discrimination or non-separation. If you will just keep
in mind the last portion of the defi.nition, it is- WITNESSES AND EXPERTS
"stated affirmatively, the terms refer ta governmental policies and
actions the objective of which is to protect equality of opportunity
and equal protection of the laws to individual persans as such".
Having that in mind, I direct your attention to that part of your testi
mony which l\Ir. Gross cross-examined you upon this morning, which
you gave on Tuesday, 19 Octoher, XI, page 705, where you say:
"The point was made repeatedly that group rights and individual
rights do not necessarily coincide, and that bath types of rights
must be protected-in fact, there was unclerstanding that human
rights and group rights are interrelated and cannot be considered
in isolation from one another."
It is to that part of your testimony which I desire to put the question
to you in relation to the final portion of the defmition at IV, page 493.
My first question is-if the rights of the individual and the rights of
the group do not necessarily coincide, do they at times corne into conflict?
Mr. Possm:v: Yes, Sir. ·
The PRESIDENT:And if they corne into conflict, how then is there
reconciled the rights of the individual, and rights of the group; or, to
put it another way, the interests of the individual, and the interests of
the group?
Mr. PossoNY: The State prn.ctice, I would say, is that the rights of
the community predominate, and that this is done on the basis of
generalized laws, and that as individual cases arise where on one or
the other ground a hardship has been created, therc are usually, but not
always, ways by which hardship cases could be handled.
The PRESIDENT:But you have given evidence to the effect that since
1920, or about that time, the timc when the Mandate was entered into,
there was a norm or principle of equal justice before the law, for example;
and you have also given evidence, if my recollection is correct, that in
different countries of the world, where there are different ethnie groups,
depending upon either religion, or upon the group, a different scheme of
laws is incertain circumstances applicable, or different courts, in quality,
administer the law. Is that correct?
Mr. PossONY: That is correct.
The PrrnsrnE:-rT:Well, thcn, if thcre is a conflict between the intcrests
of the group in a society which is composed of a number of ethnjc
groups but at different stages of cultural development, or with different
aspects of cultural developmcnt, can you throw any more light upon
the problem as to how you serve the interests of the group without,
in many cases, placing limitations upon individuals by allotment of
rights, or duties, or status, in accordance with thcir membership of the
groups and not as individuals as such?
Mr. PossONY: The fondamental way in which this is done, I think,
is laid clown in many of the constitutions, which consists in allowing
to a backward group resources which in the normal course of events,
without such a provision, it would not receive. Then you have to follow
through with practical programmes in the various fields, such as capital
investment, education and so on. Then as the group progresses as the
result of these investments and so on, or simultaneously, you try to
organize the group as a group in the best way you can. The group, as
it acquircs its economic and educational potentials, also acquires its
political potential;it has to be organized, it has to run its own affairs66 SOUTH\\TEST AFRICA
on whatever level it is operating, and as the level goes up, as the achieve
ments are higher, of course, it can branch out further.
I think the fundamental requirement in all this is to create in each
group, or strengthen, an elite which can provide, leadership; while the
dissipation or dispersal of the available elite to other groups would
basically spell the min of this particular group. So the fundamental
point, in addition to the allocat10n of resources, is to ensure that the
elite group îs there, stays there, and that the capacity of the elite group
is enhanced.
The PRESIDENT:That is all I wished to ask you.
M.r.l\Iuller.
l\Ir. MULLER:Thank you, Mr. President. I have no questions in re
examination.
The PRESIDENT:Mr. Gross, do you desire the Professor to remain in
attendance for any purpose?
Mr. GROSS:No thank you, Mr. President.
The PRESIDENT:Well, Professor, you are released from further atten
dance.
Mr. Muller, the next step is the continuation of the Respondent's
address.
Mr. MULLER:That is so, .Mr.President. 25. ADDRESS BY MR. MULLER
COU:>i"SFEOLRTHEGOVERNl\lENO TFSOUTHAFRICA
ATTHEPUBLICHEARtNG OF26 OCTOBER 1965
Mr. President, the oral testimony having been completed, I intend to
indicate to the Court how the further argument will proceed from here.
Before I do that, l\frPresident, may I be permitted to advert to a
matter relative to a part of the argument that has already been com
pleted. I refer to the Applicants' Submission No. 2,which raises, inter
alia, the question whether Article 6 of the Mandate is still in force and
whether the United Nations has supervisory powers relative to South
West Africa.
The matter which I wish to refer to, Mr. President, is the filing of
two memoranda, one by the Applicants under cover of a letter addressed
to the Registrar on 30 June, together with copies of certain documents
referred to in the memorandum; and the second memorandum filed by
Respondent on 21 October.
I do not wish to re-open the argument, Mr. President, but merely to
indicate the relevance of the subject-matter dealt with in these memo
randa, if I may be permitted to do so now.
The PRESIDENT:Very well.
irr. MuLLER::\Ir. President, I think I should start by indicating that
in the course of our argument on 24 1fay, relative to the Applicants'
Submission No. 2,we filed certain documents. The first was a document
marked P.C./T.Cn, which contained a proposal by the United States of
America that the proposed ternporary Trusteeship Committee, and later
the Trusteeship Council itself, should specifically be vested with super
visory powers in respect of mandates not converted to tmsteeship; a
second document, P.C./T.C30, being a verbatim record of a speech by
the representative of the United States of America at the Ninth Meeting
of Committee Four of the Preparatory Commission, held on 8 December
1945. These documents were referred to in the verbatim record, IX, at
pages 401 and following.
Mr. President, we submitted these documents as being relevant to an
argument previously advanced by the Applicants regarding the fonctions
proposed for the temporary Trusteeship Committee. In replying to
Applicants' argument, we referrcd to these documents and we drew
certain conclusions which are stated at IX, pages 403 and 404 of the
verbatim record to which I have just referred, that is, of 24 May.
Briefly, the conclusions which we drew were that the United States
must deliberately have abandoned the proposa! contained in document
P.C./T.Crr, and in all probability after having been informed of opposi
tion thereto by other delegations.
Inasmuch as this came in our oral rejoinder, there was no normal
opportunity for the Applicants to deal with the matter in argument.
Apparently for this reason, Mr. President, the Applicants have since
filedwith the Registrar of the Court the memorandum to which I have
just referred, as well as the documents annexed thereto; and they seek68 SOUTH WEST AFRICA
in the said memorandum to demonstrate that Respondent's conclusions
are erroneous.
Now, we have in reply thereto filed the written memorandum, that
is the second one, to which I have referred, and which deals with the
statements of fact and submissions made by the Applicants in their
memorandum.
Our memorandum submits, i\Ir. President. that Respondent's conclu
sions, as stated in the argument in the oral rejoinder, are fully justified,
and that Applicants' attempted demonstration to the contrary is erro
neous and without substance. Our contention with regard to this aspect
is fully dealtwith in the memorandum and we do not wish to repeat the
argument unless the Court requires us to do so, or to give any explanation.
That is ail I wish to sayon this aspect of the matter. ·
Now, proceeding to the development of the argument which is now
commencing, I must indicate that before going into the more detailed
aspects of our argument I propose setting out briefly the purpose which
was sought to be achieved by the leading of evidence, and then to
indicate to the Court how the further argument will be developed with
reference to such eYidence and otherwise.
I propose first to make reference to the issues raised by Applicants'
Submissions Nos. 3 and 4, to which nearly all the evidence was directed.
ln view of the frequent complaints made by Applicants during the
course of the leading of evidence that their case is misrepresented by
Respondent, it may, however, be convenient at this stage to sketch in
outline the Applicants' formulations of their submissions and the expia
nations given by the Applicants with regard thereto.
The Applicants' Submissions Nos. 3 and 4, as amended on 19 l\lay
1965, read as follows, and I refer in this regard, Mr. President, to the
verbatim record, IX, at page 374; Submission No. 3 reads:
"Respondent, by laws and regulations, and official methods and
measures, which are set out in the pleadings herein, bas practised
apartheid, i.e., has distinguished asto race. colour, national or tribal
origin in establishing the rights and duties of the inhabitants of the
Territory; that such practice is in violation of its obligations as
stated in Article 2 of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondcnt has the duty forth
with to cease the practice of apartheid in the Terri tory."
Submission No. 4, as now reformulated, and also in the same verbatim
record, reads as follows:
"Respondent, by virtuc of economic. political, social and educa
tional 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 Iight of applicable international
standards or international legal norm, or both, failed to promotc to
the utmost the material and moral well-being and social progress of
the inhabitants of the Territory; that its failure to do so is in
violation of its obligations asstated in Article2 of the Mandate and
Article 22 of the Covcnant; and that Rcspondent has the duty
forthwith to cease its violations as aforesaid and to take ail practi
cable action to fulfil its duties under such Articles."
In the same verbatim record, Mr. President, at IX, page 375, the
Applicants presented what they terrned "forma! interpretations and ADDRESS BY MR. MULLER 69
explanatory comments" with respect to Submission No. 4. Now, the
formai interpretations and explanatory comments read as follows:
"The formulation of Submission 4 is not intended in any manner
to suggest an alternative basis upon which the Applicants make or
rest their case other than the basis upon which the Applicants
present in Submission .No.3 itself ...the distinction between Sub-
missions 3 and 4 being verbal only ... "
On that follows another paragraph reading as follows:
"The reference in Submission 4 to 'applicable international stan
dards or international legal norm, or both' is intended to refer to
such standards and legal norm, or both, in the sense describcd and
defined in the Reply, IV, at page 493, and solely and exclusively as
there described and defincd ... "
Mr. President, it is consequently clear that from the submissions, both
on their wording and as read in conjunction with the "formai interpre
tations and explanatory comments", Applicants' whole case rests on
the alleged existence of a norm and/or standards. The legal significance
of formai submissions as defining the ambit of a party's case was raised
by questions addressed to the Parties on 22 June, and I refer to the
minutes, VIII, at pages 60 and 62. This topic was debated on 30 June and
I July in the verbatim records.
The Applicants' attitude as there expressed was summed up in the
following passage, and I read from the verbatim record of 30 June, X,
at page 188:
" ... it is the right and dutv of the Court to interpret the obligations
under the terms of the :ri'.fandate,as the organ vested with the
fonction of serving as the final bulwark of protection of the rights
of the inhabitants of the Tcrritory against asserted breaches and
abuse of the Mandate".
In reply thereto wc contended, with reference to authority both in
international and in municipal law, that in court proceedings the ambit
of a dispute between the parties is defined by the submissions, and that
the parties would not be entitled to canvass or debate matters falling
outside such ambit. Similarly, the Court would not be entitled to corne
to any finding on matters falling outside the dispute as defined by the
submissions.
We demonstrated also that this principle applied particularly toques
tions of fact. Parties to a case, we submit, are entitled to lead evidence
only on matters falling within the definition of the dispute. lt follows,
therefore, that if any finding of fact were to be made on an issue extra
neous to the procccdings, such a finding woulcl be in respect of a matter
on which the parties were not entitled to lead evidence, a course which
clearly would prejudice the party against whom the finding was macle.
Now, I do not wish to repeat our arguments, Mr. President. They
appear in the verbatims, X, at pages 188-228.
Since we contend that the whole ambit of the case is defincd by the
pleadings and, in particular, the submissions, it follows, Mr. President,
that ail argument and evidence should be related to the issues raised
in the pleadings. This, indeed, has bcen the governing consideration in
our presentation of cvidence and also in our argument. The legal argument
which has been concluded wa.s directed, fi.rstly, towards showing that70 SOUTH WEST AFRICA
the processes relied upon by Applicants as creating binding standards
or norms are in Jaw incapable of having such an effect.
It wiH be recalled that, according to the Applicants, the content of
the alleged norms and the standards is the same. The only distinction
between norms and standards is the extent of their applicability. Thus,
the standards were said to have been laid down by the supervisory organs
in respect of mandates and to be binding only on Respondent qua
Mandatory, whereas. the norm was said to be binding upon ail States.
Applicants' argument as regards standards was met by us by showing
not only that there are no longer any organs possessing supervisory
authority in respect of the mandates since the dissolution of the League,
but that even had such organs existed they would not have been entitled
in law to Jay down objective rules enforceable by law against the Man
datory.
With regard to Applicants' norm, they suggested that it had been
created by acts of international organizations, either acting as quasi
legislative organs or as giving so-called "authentic interpretations" to
their constitutive instruments.
We analysed these processes in legal argument and demonstrated that
they could not in law create binding norms, at any rate as against a
State which has always and consistently maintained its opposition to
the imposition of any such norm against itself.
Mr. President, it is submitted that we showed clearly that no legally
binding or enforceable mies of any description could have been created
in the manner contended for by the Applicants.
In the second part of our argument, which led up to oral testimony,
consideration was given to the question whether any standard or norm
of the content relied upon by Applicants has been created by any legally
valid process in international law. It was also as regards this issue that
evidence has been led.
Now, before consideration is given to the effect and purpose of the
evidence, it is necessary to advert to a matter which has given continuous
trouble, and that is the question: what is the content of Applicants'
norm or standards? It is, for the most part, as regards this aspect that
Applicants' accusations of distortion have been levelled, and it is conse
quently necessary to give some attention thereto.
The authoritative definition of Applicants' case is, wc say, in the
submissions. Submission 3, as I have indicated, contains the allegation
that Respondent has violated the Mandate, in that Respondent "has
distinguished as to race, colour, national or tribal origin in establishing
the rights and duties of the inhabitants of the Territory" (IX, p. 374).
The allegation, then, is that the mere act of distinguishîng in the
respects in question is illegal, irrespective of whether such an act were
well-intended or produced beneficial results.
Mr. President, that this reading of the submission reflects the actual
intention of its drafter is clear, we say, inter alia, from the wording of
the submission, as it appeared originally in the Memorials, and from the
change brought about in amending the submission to read as at present.
The Court will recall that in the Memorials the conduct objected to
was defined as follows:
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily on
the basisofrace, color and tribe, in a pattern which ignores the needs ADDRESS BY MR. MULLER 71
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." (1,p. 108.)
It will immediately be apparent that the amendment effected a
significant change in the meaning of the submission. Both the words
and the concept of arbitrariness, or disregard for the actual "needs and
capacities of the groups and individuals affected", or the subordination
of such needs to the desires and conveniences of the minority were
abandoned.
This same feature appears from Subrnission No. 4, as now amended.
This submission was intended-we are so told by the Applicants-to
cover exactly the same ground as their Submission No. 3, and, in the
former as in the latter, all references to purpose or results of Respondent's
policies have been carefully excised. Submission No. 4 rests only on an
alleged norm or standard defined at IV, page 493 of the Reply.
Now, this definition, Mr. President, at page 493 reads as follows. It
has been read a few times into the record but for purposes of analysis
I would, ifthe Court permits me, read the relevant part again.
"... the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and customary sense: stated negatively, the terms
refer to the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of mem
bership in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the laws to
individual persans as such".
Throughout the course of the oral presentation of their case, the
Applicants made it clear that it was the normand standards, as defined
at page 493 of the Reply, and only as there defined, upon which they
rested the1r case.
I can quote many passages, Mt. President, but I shall quote only two;
one is in the verbatim of 17 May, at IX, pages 306-307. This is what
the Applicants said:
"The Applicants now turn, i\Ir. President, with your permission,
to an exposition of the evolution and the content, and the applica
bility ofhe international legal norm, and the international standards
of non-discrimination or non-separation for which they contend,
and which are defined in the Reply, IV, at page 493: It is the inter
national standards and the legal norm, (thus defined by whatever
label one chooses to describe it) upon which the Applicints rely and
which represents the cote of their case-the heart of their case."
The second citation I wish to make is in the verbatim of 19 May,
at IX, pages 375-376--that forms part of the explanation given by the
Applicants as to the reformulation of their Submission No. 4, and I shall
only cite a few lines:
"The reference in Submission 4 to 'applicable international stan
dards or international legal norm, or both' is intended to refer to
such standards and legal norm, or both, in the sense described and
defined in the Reply, IV, at page 493, and solely and exclusively as
there described and defined ... "72 SOUTH WEST AFRICA
Now, examination of the wording of the various formulations both
in the submission and at page 493 of the Reply shows that the basic
act to which Applicants objcct has bcen described as "distinguishing"
-that appeared in Submission No. 3-or "discrimination" and "separa
tion" which appeared in the Reply, at page 493. and are incorporated
by reference in Submission No.+
These three words are used interchangeably by the Applicants and
it is clear that their primary meanings arc indeed closely related. The
word "distinguish", Mr. President, is defined in the ConciseOxford Dic
tionary as meaning in its primary sense to "Di vide into classes, etc.;
be, see, or point out, the difference of ... differentiate, draw distinc
tions".
The word "discriminate" is defined in the same dictionary as primarily
meaning "Be, set up, or observe, a difference between ... distinguish
from another; make a distinction .. .''.
The primary defi.nition of "separate" in the same work is "1Iake
separate, sever, disunite, kcep ... from union or contact, part ... secede
from, go different ways, disperse ... <livide ... into constituent parts
or sizes".
Now, on a number of occasions, Applicants have objected to their
norm being described by us as a norm of non-diffcrentiation. For con
veniencc, therefore, I shall also givethe dictionary meaning of the word
"differentiate''.It reads: "Constitute the difference between, of. or in;
develop ... into unlikeness, specialize ... discriminate, discriminate
between.''
Analysing these dictionary meanings of the words "distinguish" and
"discriminate", both used interchangeably by the Applicants, and the
word "differentiate", to the use of which they object, one finds that
these words are virtually defined in terms of one another. The word
"scparate" has a somewhat diffcrent meaning but not one of these words
has an unfavourable primary meaning, although "discriminate" has a
secondary meaning which is clcfined in the same dictionary as-"dis
criminate against. distinguish unfavourably, of taxes, etc.".
In addition to these definitions in the dictionary, there are a number
of indications, not oniy in the text of Applicants' definitions of the norm
at IV, page 493 of the Rcply, but also in their trcatment of the sources
upon which they rely as evidence of the existence of the norm, that
they use the word "discrimination" in its primary sense and not in a
derogatory or pejorative scnsc.
The following indications can be mentioned:
First, although the Applicants, in the first sentence of their definition
at page 493 of the Reply, speak of an "analysis of the relevant legal
norms", they clearly rely on one norm only, which is referred to as a
norm of"non-discrimination or non-separation". In this regard I wish
to refer to the paragraph just bclow the defmition at page 493 of the
Reply. This paragraph rcads as follows:
"As is shown below, there has evolved ovcr the years, and now
exists, a generally accepted international human rights norm of
non-discrimination or non-separation, as dcfincd in the preceding
paragraph."
Inasmuch, then, as the words "non-discrimination" or "non-separation"
arc used interchangeably by the Applicants to describe one norm, it ADDRESS BY MR. MULLER
73
seems evident that discrimination in the context was not intended to
be used in the pejorative scnse of discriminating against.
The second indication to which I wish to refer, is that the Applicants
state specüically that they use these terms, that is, non-discrimination
and non-separation, in what they term "their prevalent and customary
sense". This is also in the Reply, at IV, page 493.
A third indication, ?\fr. President, is that Applicants' definition of
these terms as referring to:
"... the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of member
ship in a group, class or race, rather than on the basis of individual
merit ... [and their further defi.nition] ... governmental policies
and actions the objective of which is to protect equality of oppor
tunity and equal protection of the laws to individual persons as
such" (IV, p. 493),
does not connote any discrimination in the pejorative sense.
Fourthly, it appears that Applicants specify a number of sources
which they say "severally and in their totality, comprise the generally
accepted norm". This is stated at page 493 and the Court will remember
that from that page on they deal with the so-called sources. Now, in
some of these so-called sources, the word "distinction" is used; in others,
the words '-'discrimination", "separation" and so forth. These words
may, in some of these documents, have been usccl in a pejorative sense,
for example, to connote unfair discrimination. This, however, is not
important. \Vhat is of importance is the meaning which Applicants
assign to these terms whcn they seek support for the existence of their
norm from the sources in question. Thus they say of the Charter of the
United Nations, and this is at IV, page 498 of the Reply:
''The legal obligation of i\Iember States not to discrimina te or
distinguish on the basis of membership in a group or race (whatever
specific human right or freedom may be involvcd) is set out in
Article 56 of the Charter."
I emphasize the use there of the words "not to discriminate or dis
tinguish".
Applicants also say, and I quote from page 500 of the Reply:
"There is a body of case law which upholcls the proposition that
the human rights provisions of the Charter contain legally binding
commitments prohibiting Member States from discriminating or
clistinguishing onthe basis of race."
Thosc are the Applicants' words and I again emphasize "discriminating
or distinguishing".
With regard to the United Nations Declaration on the Elimination
of All Forms of Racial Discrimination, the Applicants quote Article 2
(3) of the Declaration. The quotation is at IV, page 506 of the Reply.
That Article reads as follows:
"Special concrete mcasures shall be taken in appropriate circum
stances in order to sccure adequatc development or protection of
individua1s belonging to certain racial groups with the object of
ensuring the full enjoyment by such individuals of human rights
and fondamental frcedoms. These measures shall in no circumstances
have as a consequence the maintenance of uncqual or separate
rights for different racial groups." SOUTH WEST AFRICA
74
The Applicants say, with reference to this clause that I have just
read, that this clause is "of particular relevance, in so far as Respondent's
policies in South West Africa are concerned", and this provision, in the
Applicants' words at IV, page 506 of the Reply:
"... specifically prohibits the use of special measures of development
as a justification for allotting rights and burdens on the basis of
membership in racial groups. This is re-inforced by Article 5, which
bans racial discrimination, segregation, separation and apartheid."
Mr. President, it is submitted that it is clear from the above, from
the quotatfons I have just given and also the analysis of the definition
on page 493, that the definition of the norm at that page can only be
read as meaning that in the allotment of rights, duties, privileges or
burdens by govemmental policies or actions, there may be no differen
tiation on the basis of membership in a group, class or race. I say that
the above analysis shows conclusively, in our submission, that Applicants,
in reformulating their submissions, did not intend to rely on discrim
ination in the pejorative sense.
Submission 3, as I have indicated, charges Respondent with no more
than having :
"distinguished as to race, colour, national or tribal origin in estab
lishing the rights and duties of the inhabitants of the Territory"
(IX, p. 374),
and the charge in Submission No. 4 is said to rest on the same basis.
Likewise, the definition at IV, page 493 of the Reply is, as I have
indicated, quite neutral and seeks to prohibit differential allotment of
rights and duties irrespective of motive or result. .
Indeed, Applicants have repeatedly emphasized that invocation of the
norm does not require the allegation or proof of any improper intent
on the part of Respondent. Simiiarly, they have stressed that their case
does not depend on any ill results flowing from the differential allotment
of rights, duties, etc. lndeed, they contended that such a differential
allotment would be illegal. even if it were intended to operate, and did
in fact operate, for the benefit of the inhabitants of the Territory.
I refer in this regard to the verbatim record, X, at pages 209-224, also
IX, at pages 563 to 573, where we dealt exhaustively with the various
statements made by Applicants in this regard.
Therefore, Mr. President, both motive and result are excluded as
irrelevant criteria. There can be no question of a charge of unfair dis
crimination or of discrimination against persons or groups. For discrim
ination can only be unfair, or be said to be discrimination against a
person or persons, if (a) the intent of discriminating is to be unfair,
or (b) if, irrespective of intent, the results of a policy of discrimination
prove in fact to be unfair, or (c) if both of these apply.
From what I have stated, it is clear that when Applicants reformulated
their submissions their norm was an absolute one, that is, that any
differential allotment of rights, duties, etc., on the basis of group, class
or race, would be a contravention of their alleged norm. They did so
advisedly and deliberately in order to 1mpress upon us and the Court
that there was no need of a factual inquiry into purposes or results, a
factual inquiry as we were offering, both by evidence and an inspection
in locn. ,; ADDRESS BY MR. MULLER
75
When faced with the difficulties inherent in their proposition, partic
ularly with examples such as the minorities treaties, Applicants distin
guished them ad hoc and with reference to suggested points of distinction
that were entirely immaterial to the elements of their norm as defined.
I refer in this regard, without reading, Mr. President, to the verbatim
record of 9 June, IX, at pages 534-542 and X, at pages 53-57. In the
result, and after strenuous attempts on our part to obtain clarity as to
the exact content of the normand the nature and extent of any qualifi
cations thereto, we intimated that we would proceed to test the suggested
norm and/or standards on a dual, alternative basis. We said in this
regard, and I refer to the verbatim record, X, at page 57:
"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 means that the allotment of rights and duties on the
basis of membership in a race, class or group is impermissible every
where and anywhere in the world. That they said, several times. That
is, after ail, the signification of their submissions; in No. 3 this
signification appears from the wording of the submission itself, and
in Submission No. 4 from the wording of the submission read with
the forma! explanation; and those definitions and that explanation
contain no qualification whatsoever; it is differentiation per se in
this defined sphere that is struck at by the suggested norm.
At the same time, î\fr. President, and alternatively, we shall also
consider the matter with reference to the factors which have been
mentioned by the Applicants, not as clearly defmed qualifications,
but as possible factors which could distinguish pcrmissible from
impermissible differentiation-factors rnentioned by them in relation
particularly to their discussion of the case of the minorities treaties
... 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 sphere as defined by the Applicants, would
nevertheless be permissible if such differentiation could be said,
firstly, to serve the purpose of protecting the individual rather than
the group,'and, secondly, ifit could be said to avoid the consequence
that the individual may suffer by reason of membership of his
group, inter alia, by having regard to his facility, or otherwise, to
quit the group." ·
This, then, Mr. Presid~nt, was the basis upon which we proceeded to
lead evidence. However, from time to time, we have been faced with
complaints or objections by the Applicants to the effect that their case
was being distorted. This commenced in a letter of 20 June, which
appears at XII, Part IV, and orally in the same record, at page 104.
The complaint, or objection, was frequently repeated thereafter. I shall
give the Court a few references only, without reading what was stated.
In X, at pages r32, 138-139, 348, 523-524; XI, at pages 314-315, 600,
644-647.
For the most part, Mr. President, these objections were not reasoned
or motivated, they made the bare assertion of distortion without further
amplification. However, such attempts at amplification as are found,
do not, in our submission, assist in removing the confusion in the
Applicants' case. In some instances the objections were based on the
allegation that the distinction betwcen standards and the norm was being SOUTH WEST AFRICA
ignored. Now, since Applicants have rendered it clear that there is no
distinction as far as the suggested content of the norm and standards is
concerned, this question does not arise for consideration at this stage-1
shall, however, say something aboutit later on.
As far as the suggested distortion of the content of the norm and
standards is concerned, I wish to refer to some pertinent passages.
In stating their objection to the evidcnce of Professor van den Haag,
on 22 June, my learned friend, Mr. Gross, said in the verbatim record,
X, at page 139:
"... ifthis or any other witness is competent to testify with respect
to the practice of States, citing the official laws and regulations
which, in his view, do constitute discrimination or separation by
reason of group without regard to individual merit or capacity
(which is the contention of the Applicants as to the content and
nature of the norm and standards) ... "
On r3 July, in X, at page 524, the topic under discussion was universal
adult franchise. Now, whether and to what extent the Applicants
contend-or have contended in the past-that Respondent is under an
obligation to introduce universal franchise in South West Africa, are
matters to which attention will be given at a later stage of these pro
ceedings. At present, Mr. President, I am more concerned with the
bearing which the discussion in the verbatim has on the general issue as
to the content of the norm and standards.
In the said verbatim record, at page 524, my learned friend, Mr. Gross,
is recordcd as having said:
"But, without venturing to go into an elaborate argument, there
are of course ail sorts of qualifications upon the phrases used, 'the
institution of universal adult suffrage' and the 'participation on the
part of al! qua!ified individuals'. There is no absolute or mechanical
standard which is applicable or not, without reference to the issue
in this case, which isthat apartheid, which denies ail effective rights
ofparticipation--<lenies suffragetotally-is aviolation of the ~fandate.
That has been, and remains, our case." •
Mr. President, the question immediatcly arises: what do these words
mean? And I shall rcpeat them: "... which is that apartheid, which
denies all effective rights of participation, denies suffrage totally, is a
violation of the Mandate." Is the Court, Mr. President, asked to de
termine whether the provisions, present or contemplated, for political
participation of the various population groups, are, and I quote the word
of the Applicants, "effective" or not? What factors are to be considered,
and what criteria applied, in determining the "effectiveness" of rights
of participation in the political life of the Territory? And, finally. is this
suggested test of eftectiveness to be a substitute for the all-embracing
norm on which Applicants rcly in their formai submissions? To put the
matter concretely, if political opportunities are "effective", would it
matter if they were allotted on the basis of membership in a group,
class or race, rather than on the basis of individual qualities? Perhaps,
Mr. President, the explanation is that this was an ex tempore statement
by my leamed friend, }.frGross, and did not express what the Applicants
really intended to convey. I only wish to say that, to us, it has no
understandable connection with the Applicants' norm and/or standards ADDRESS BY MR. MULLER 77
contention. as previously explained by them, but perhaps we shall, at a
later stage, have an explanation of what was meant.
The content of Applicants' norm and standards arose again within
the context of the imposition of compulsory education. l\Ir. President,
the Court will recall that, with regard to that aspect of the case, you,
Mr. President, asked my learned friend, Mr. Gross, the following question:
"... there is compulsory education of the White people in what we
call the White sector or the southern zone? ...
There is no compulsory cducation elsewhere. Do I understand
that if there is no compulsory education imposed upon the peoples,
take for example of the north, irrespective of the difficulty of policing
it, irrespective of the question whether it is acceptable to the
people, irrespective of any other circumstances, that is inherently
inconsistent with Article z ofthe Mandate and perse a breach of the
Mandate?" (XI, p. 315.)
The reply to this question, which was put by you, Mc President, was
the following, and I read from the same verbatim record, at the same
page, where my learned friend rcplied:
"No. Sir, that would not be the Applicants' contention. The
Applicants' contention in respect of the clifference, standard or
requirement of compulsory education on a strictly racial basis
would be that that, standing alone, unsupported and unexplained,
would violate the duty ta allot rights and burdens, privileges and
so forth on the basis of promotion of welfare and progress of ail the
inhabitants to the fullest practicable extent, and that it would seem
to the Applicants that a system in which no compulsory education
in any part of the Territory, irrespcctive of its economic devclop
ment, is a practice or a policy, that this would be a factor relevant
for the Court's consideration in connection with the signifi.cance of
the educational aspect of apartheid seen in relation to ail other
aspects of the apartheid policy, of which this forms a part."
If one studies this explanation, Mr. President, one finds that there are
several key concepts in the passage: the first is that differential allotment
of an obligation of compulsory education on a group basis would violate
Article z (z) only when "standing alone. unsupported and unexplained",
and that it is only a "factor relevant for the Court's consideration in
connection with the significance of the educational aspect of apartheid"
and other aspects of apartheid.
Itis difficult to imagine, l\fr. President, a policy which is more clearly
covered by Applicants' norrn than the policy regarding compulsory
education. The obligation or, looking at it from another view, the bcnefit
of compulsory cducation is allotted to some of the inhabitants of the
Territory purcly on a group basis. and without regard to the individual
qualities ofthe persans involved. ln those circumstances. on Applicants'
case as formulated heretofore, the policy is inherently and pcrse contrary
to Article 2 of the Mandate. No explanation would be relevant or
permissible, and the Court would not be entitled to accept any ex
planation-it could not, in the Applicants' own words, and I quote from
IX, at page 246:
"... undertake the task of second-guessing the competcnt inter
national organs responsible for the development of the norm'·. SOUTH WEST AFRlCA
Applicants now appear to suggest that it might be possible for Respon
dent to explain or support a differential policy of the sort that I have
just refcrred to-a policy differentiating in the application of laws
relative to compulsory education. The question then arises: what
criterion should be applied in determining the validity of any explana
tion? \Vhat, in the Applicants' words, should be, and I quote a portion
of the passage which I read previously-" ... the significance of the
educational aspect of apartheid seen in relation to ail other aspects of
the apartheid policy of which this forms a part" (XI, p. 315). l\frPresi
dent, no answer is given to this question, n(!r is it clear what the Appli
cants intend to convey by the words also contained in the passage that
I read-" ... would violate the duty to allot rights and burdens, privileges
and so forth on the basis of promotion of welfare and progress of ail the
inhabitants to the fullest practicable extent ... ". Mr. President, we
do not understand what is intended to be conveyed by the words Ihave
quoted.
The same comment applies, l\Ir. President, to the cross-examination
of Professor Possony. It appears in his cross-examination to have been
suggested that the word "discrimination" in Applicants' definition at IV,
page 493 of the Reply, bears some unfavourable connotation. I refer in
this regard to pages 5-8, supra, where, the Court will remember,
Professor Possony was asked what interpretation he placcd on the word
discriminate. This witness, after some cross-examination as to his
understanding of the word discrimina te, said:
"... once you raise the question whether there is a permissible dis
crimination or not, I would have to see exactly what are the criteria
of permissibility or non-permissibility" (supra, p. 8).
With respect, l\fr. President, this rather obvious observation is one
which we have been pressing for months. Applicants, however, have not
explained their position to us, or to the Court, nor did they at the time,
to Professor Possony.
As regards the suggestion that explanations for differential allotment
of rights may be given by Respondent and accepted by the Court, on
the basis of unspecified criteria, it may here be apposite, Mr. President,
to refer back to previous statements made by Applicants, and, out of
many, I wish to quote only a few. In the verbatim record, IX, at page 298,
my learned friend, Mr. Gross, is recorded to have said the following:
". . . the Respondent al!ots status, rights, dutics, 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 ,'.\rticle 22 of the Covenant and constitute per se and
ipso facto violations of Article 2, the interpretation and the applica
tion 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 submissions, no evidence or testimony
in purported explanation or extenuation thereof is legally relevant
to the issues joined in these proceedings."
Mr. President, I wish to underscorc the words of the last sentence that
I have read: that no explanation or extenuation would be pcrmissible. ADDRESS BY MR. MULLER 79
And, in a still earlierpart of the Oral Proceedings, my learned friend,
Mr. Gross, stated in the verbatim, IX, at pages 45-46:
"... any conception that would lead to a doubt or an inference or
an assumption that promotion of the welfare and progress of an
individual is compatible with the allotment of the rights, burdens,
duties and privileges, upon the basis of his membership in a group
rather than upon his quality, merits and potential as an individual
person is impermissible, inconsistent and such a policy is repugnant
to the legal norm which we assert covers the situation.
The condition of the individual's health, his happiness, ostensible
happiness, or other factors which are frequently referred to. do not,
in these circumstances, have a relevance to the validity and content
of the norm ifit exists, as the Applicants respectfully submit that
it does."
In the same verbatim, at page 46, we fmd this statement, ;i.1r.Presi-
dent:
"... in view of the inherent incompatibility of the practice and
policy of apartheid, as defi.ned in the written pleadings, as they
appear from undisputed facts of record, there would be no basis
[and I skip a few words) for an investigation of the factual situation
whether by hearing evidence or by local inspection. That would be,
again, inherently, a superfluous form of inquiry in either form. lt
would be superfluous because of the inherent, assertedly inherent,
repugnance and incompatibility of the admitted and undisputed
facts of record regarding the policy and practice of apartheid with
the legal norm, for which the Applicants contend, and upon which
their submissions rest."
Then I shall read only one more of the statements made by my learned
friend, Mr. Gross, with regard to this aspect of the case, and I quote at
IX, page 57:
"But [said Mr. Gross] on the basis of the submissions, as the
Applicants intend and respectfully present them-on the basis of
the undisputed facts of this record, the Applicants 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 propositions would make irrelevant,
unnecessary. for all the reasons the Applicants have endeavoured
to explain, the introduction of further evidence."
Mr. President, this very dogmatic attitude stands in sharp contrast
not only to the above-quoted replies by the Applicants to questions
put by you, Mr. President, relative to compulsory education, but also
to a further incident when the following question was put, again by you,
Mr. President, to Mr. Gross, during the testimony of Professor Possony.
The question, recorded in XI, at page 690, was as follows-the question
was put to the learned Agent for the Applicants:
"Is it your contention that if it is established that to apply the
norm which you allege exists. would be contrary to the welfare,
social progress and development of the people of South West Africa,
that is wholly irrelevant to the Court?"
The answer given, recorded at that page, was "No, Sir."
Now, after this question was repeated, the reply, given the second80 SOUTH WEST AFRICA
time by my learnecl friend, l\fr.Gross, was amended to read as follows:
"Weil, Sir, I do not think I can answer yes or no."
I just quoted from XI, at page 691.
Mr. President, as regards the alleged content of the norm or standards,
one furthcr point calls for comment. Since the fi!ing of the Reply, the
content of the norm, with which the content of the standards was
assimilated in the course of Applicants' oral reply, was stated to be as
defmed at IV, page 493 of the Reply. Now. this defmition, which I have
already quoted, contains two aspects. There is an affirmative aspect
and a negative aspect. As is to be expected of a definition, the two
aspects are to the same effect, namely a prohibition on the allotment of
status, rights, duties, etc., on the basis of membership of a group rather
than on individual qualities or, conversely, an injunction to allot rights,
etc., on the basis of individual potential, quality, etc. Since the suggested
norm as a whole is a prohibition rather than an injunction, as the name
non.discrimination or non.separation indeed indicates, Applicants and
also Respondent have normally referred only to the negative formulations
at page 493. In this regard, reference may be made to the formulation
on the first day of the oral argument, VIII, at pages n7 and u8, when
my learned friend referred to the norm as defined at IV, page 493.
There are a number of examples. I do not wish to read them, I shall
just give the Court an indication where they can be found-that is
where the norm was refcrred to only in its negative definition. Those
are VIII, at pages 246, 252, 262, 263 and 267; IX, at pages 45, 46, 48,
60,245. 247, 248, 26r, 282·283, 284, 298 and 306·307. Mr. President, 1
have noted quite a longer list but I think that is sufficient.
Towards the end of the oral evidence Applicants, however, attempted
to escape the definition. It started while Professor l\fanning was giving
evidence on I4 October-1 refer in this regard to XI, at pages 607·609,
where it was suggested that the definition at IV, page 493 of the Reply.
was not conclusive-the Court will remember that Professor Manning
was askcd by my learned friend, I\Ir. Gross, whether in addition to having
read the definition at page 493 of the Reply, he had also read ail the
verbatim records in which cxplanations were given. I would in this regard
also refer to XI, pages 62r·625. And, Mr. President, in the course of
cross-examination of Professor Possony, Mr. Gross pertinently stated as
follows at page 7, supra: "... page 493 is nota se]f.contained page in
these pleadings". Later at pages 26.27, supra, of the same verbatim
record he said-
"... page 493, important as it is, does not embody the case of the
Applicants and, Sir, I think the impression has sought to have been
creatcd previously in these proceedings by Counscl that the language
on page 493 must be interpreted as ifit were disembodied from the
balance of the pleadings, not explained by the sources to which
reference is made and elaborated and which cxplain the detailed
content attributed by the Applicants to the standards and the norm
contended for and, Sir, if the point in the implication of Counsel's
question, or interposition, is that the Applicants may not refer to
any provision or language in these plcadings other than page 493.
the Applicants would very respcctfully clisagree."
After some debate on the very same day, during which reference was
made to the terms of Submissions 3 and 4 and the content of the defi.nition
at page 493 of the Reply, my learned friend, ~Ir. Gross stated: ADDRESS BY MR. MULLER Sr
"l\fr. President, the Applicants, far from changing their case in
any respect. re-affirm their reliance upon the international standards
or alternatively, and cumulatively, the norm with the content
contended for, and it is simply, Sir, the Applicants' submission that
the meaning to be fairly assigned to the words and phrases used
in the description are to be derived from the cxplanations made by
the Applicants, the arguments made thereon and the sources to
which they rely and which illuminate the significance of words and
phrases uscd. It was not then, and is not, the intention of the
Applicants in any way to withdraw or retreat from the arguments
made bcfore the Court with respect to the existence of international
standards or objective criteria, on the basis of which the Mandate
should be interpreted. These are of the content described and
defined on IV, page 493, the meaning of which is to be, in our
submission, understood, clucidated and arrived at by the honourable
Court on the basis of the expia nations macle." (Supra, pp. 28-29).
On the very next day the Applicants reformulated their norm or
standard to prohibit (and I quote from the verbatim, p. 36, supra;
the definition was repeated on the same clay at p. 39 and again at p. 40):
"... governmental policies which do not give weight to individual
merit or capacity, but which allot rights and burdens on the basis
of membership in a group which do not protect equality of opportu
nity and extend equal protection of the laws to individual persons
as such".
Mr. President, we submit that this reformulation does not diffcr in anv
material respect from the definition of the norm given at page 493 of the
Reply. The only difference would appear to be (a) a change of sequence
in the negative formulation whereby the position of the incliviclual is
dealt with before that of the group, and (b) the substitution of the
words "which do not give weight to individual merit or capacity" for
the words "rather than on the basis of individual merit, capacity or
potential" in the definition at page 493. It is submitted, Mr. President,
the Professor Possony was quite correct when he said at page 40, supra:
"Mr. President, l fai1to see that the formuJa differs from page 493 in any
substantial aspect."
In the same record, on analysis of the terms of the Reply, and the
various sources relied upon for the creation of the norm or standards,
Professor Possony demonstrated that the norm as interpreted by him
and also by Respondent inclèeclrepresents the only possible interpretation
of page 493 of the Reply. The Court will also recall that he demonstrated
that a norm or standards of such content is not supported by the sources
relied upon by the Applicants-this is founcl at pages 35-38, supra.
Further reference will be made later in the argument to this aspect,
Mr. President, when Profcssor Possonv's evidence wm be dealt with in
more detail. '
Applicants' present embarrassment with the definition of the norm
as set out at page 493 of the Reply, j\fr.President, stands in sharp con
trast to their previous fondness for the phrases appearing on that page.
This does not only appear from the references which I have already given
and read but it also appears incleed from the very terms of Submissions
3 and 4. In this regard, I may also refer the Court to VIII,pages u7-n8
and page 267, where the reference to norm is wholly as to the negative82 SOUTH WEST AFRICA
part of the definition; IX, page 245, whcrc the definition as is contained
in the Reply at IV, page 493 is quoted; IX, pages 306-307, which I have
already read tothe Court this afternoon and where the Applicants stated
that the label does not matter but that the norm is defined at page 493
of the Reply and that that is the corc and the heart of their case.
l\Ir. President, from what Applicants have indicated in the course of
oral testimony, and that is both by statemcnts made and by questions
putto witnesses, it would seem as if they are no longer content with the
norm or standards defined at page 493 of the Reply. They appear to
abject to the norm being dcscribed as one of mere differentiation, that
is, one prohibiting the mere allotment of status, rights, duties or burdens
on the basis of a group, class or race. On the other hand, however, they
do not state specifically what additional element is comprised in their
norm and standards. If they now attempt to introduce a new element
into the dcfinition of a norm or standards, we submit that the position
would be as follows:
(a) that they would be attempting to make a new case;
I have already stated an additional element would relate to either
purpose or effect, and that that would involve a factual enquiry
which Applicants repeatedly and explicitly said was not necessary and
(b) that in contending for any norm or standards other than a norm or
standards as defined at page 493 of the Reply, Applicants must by
necessary implication be considered to admit that their charge, as
contained in their Submissions 3 and 4, would not succced. ln these
submissions, the Respondent is charged with a violation of the norm
and/or standards merely and solely because Respondent has
"distinguished as to race, colour, national or tribal origin in estab
lishing the rights and duties of the inhabitants of the Terri tory".
It must therefore follow that if the norm or standards contain an
element other than, or in addition to, the element of distinguishing
on the basis of membership in a group, class or race, the Applicants
have not charged Respondent with having breached such a norm
or standards. Indeed, they have not prodùced any evidence to show
·violation of such a norm or standards containing an additional ele
ment. They have, on the contrary, repeatedly informed the Court
and they have informed us, that it is unnecessary and indeed irrele
vant to the case brought by them for Respondent to bring any evi
dcnce to show non-violation of such a norm or standards.
Mr. President, I had been dealing with what I contend can be described
as attempts on the part of the Applicants to reformulate their norm.
I now w1sh to deal with a related matter, and that is the distinction
between Applicants' norrn and standards, which was also a matter raised
in the various objections put forward by Applicants in the course of the
oral testimonv.
When the norm of non-discrimination or non-separation first reared
its head in the Reply it was clearly a norm, or norrns in the plural, but
not a standard, or standards in the plural. I refer in this respect to the
Reply, IV, at page 492 and the following pages. Although reference was
made to standards in the Reply, they remained nebulous as regards
both content and effect. Thus Applicants said: "The standards referred
to in the Reply are of course of a political, moral and scientific charac
ter" (VIII, p. 247). ADDRESS BY MR. MULLER
During the course, however, of the oral reply Applicants developed
and expounded the concept of a binding standard. Now their argument
was that Rcspondent had agreed in 1920 to apply standards laid down by
the competent supervisory authority in respect of mandates, and that
such a standard, with the same content as the norm defined at IV, page
493, had been created. In this regard I draw the Court's attention to
what was stated by the Applicants in the verbatim record of r8 May,
IX, at pages 315-320, and 243-244. At the same time Applicants sought
to establish that the rule in question had attained the status of a norm
or a legal rule binding on ail States and not only on the Mandatory.
However, Applicants' enthusiasm for their norm seems to have waned
with the passage of time. \Ve find on 30 June, and I quote from X, at
page 18ï, that Applicants then say:
"The Applicants, moreover, have contended that the condemna
tion of official discrimination is soirmly and universally enunciated
as to be regarded as a rule of international law within the meaning
of Article 38 of the Statut:e of the Court.... 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 requested to accord due and authoritative weight."
Again, in XI, at page 647, the Applicants referred to their contention
regarding a legal norm as "an alternative and, in effect, a subsidiary
argument-an alternative and cumulative argument".
In this fashion the "norm of non-discrimination and non-separation"
which was introduced in the Reply to meet the exigencies of the moment,
and, in particular, the collapse of the original case, made by Applicants
based on oppression, has in turn been superscded by the "standard of
non-discrimination and non-separation" which later arose in the oral
reply to counter, as we contend, the collapse of the legal norm. It is
necessary to point out further that Applicants are apparently becoming
doubtful also as to the basis of their standards. Thus they refer to-
"... their contention that. Article 2 of the Mandate should be inter
preted in the light of standards which concededly and undisputably
exist, in the form of United Nations Charter, resolutions, other inter
national instruments and so forth". (XI, p. 644.)
And in the same verbatim record, at page 647, they say:
"... Applicants' main arb'"llmentwith regard to the conceded exis
tence of international conventions and so forth, which are contended
by the Applicants to result in standards which should be applied
in the interpretation of the Mandate".
They also say:
"\Ve believe that the United Nations standards, as elaborated in
the Reply, mav be considered and should, with ail respect, be con
sidered by this honourable Court in interpreting the Mandate ... "
(X. p. 524.)
Mr. President. I do not propose re-arguing the Jegal issues of the case,
but I would emphasize that these formulations of the Applicants' con
tention regarding standards differ entirely from their earlier version,
according to which standards were (a) laid down by the administrative SOUTH WEST AFRICA
supervisory organs, and were (b) binding upon the Mandatory and upon
the Court. There was thcn no suggestion of standards which (to quote
the words from my last quotation in the Applicants' oral argument)
"may be considered" by the Court.
lt would not, in our submission, be proper or nccessary to consider
whether these various formulabons and re-iormulations by the Appli
cants are consistent with their case as set out in the submissions. The
submissions, we say, contain the authoritative definition of Applicants'
case, and in the result we can do no more than repeat what was said on
r July, and l quote from a statement by my learned friend, Mr. de Vil
liers:
"\Ve do not understand that there is any case being made against
us, outside of the ambit of the case explained so 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
rcpeatcdly that we are prepared to meet any case that may be prc
sented against us, provided that it is presented fairly-thatis 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
oursclves to that case.
My learned friend had his choice, and he cxercised it with delib
eration, at the stage before it came to the amendment of these sub
missions. He [that is, the Agent for the Applicants] then gave notice
to us of this limited scope of his case. On the basis of that notice
we have made arrangements totally different from what they were
initially.\Ve are calling our evidence now on this very much more
limited basis of prcsentation of the case-very much more limited
than it was before. \Ve made new arrangements in regard to wit
nesses, disposing of some whom we had in mind and not negotiating
- any further with others whom we had in mind to call in regard
to the issue as wc initially understood it to be presented. We
have limited ourselves in these various respects; we have addcd
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 linùt to the extent to which a party can chop and change and
then indicate a new attitude to the Court. There must corne a time
when the Court should say to a party: you have made your election
and you must abide by it, because the case has been shaped on the
basis of the election you made and you cannot now, at this late stage,
alter it again." (X,p. 227.)
Applicants have not sincc the re-formulation of their submissions indi
cated any intent to alter their case and their submissions a.gain. On the
contrary, when asked about it by you, l\fr.President, on 20 October
they indicated that they did not contemplate any alteration. I refcr
in this regard to the verbatim record, at pages 28-29, supra.
Our evidence was led on the basis of Applicants' case as set out in the
submissions as re-formulated. It fell into three main categories, in accord
ance with the scheme explained to the Court on r7 June (X, at pp. 76-
77) and on r8 June (X, at pp. 77-78 and 82-87), the scheme being the
following: ·
The first category: evidence which served as a basis for explaining ADDRESS BY MR. MULLER 85
or illustrating the methods and proceedings in international organiza
tions, which evidence is intended to be amplified in the further argument
with reference to the readily available sources. The purpose of this evi
dence, and of the further demonstration to be added thereto, is to show
that such methods and proceedings cannot be regarded as creating or
applying standards or norms of a legal nature, or of the content relied
upon by the Applicants.
The second category: evidence showing that no norm or standard as
defined by Applicants at IV,page 493of theirReply, is universally applied
in the practice of States.
The third category: evidence showing that the application of the
norm or standards in the circumstances of many countries, including
South Africa and South West Africa, would lead to results inconsistent
with the promotion of well-being and progress of the inhabitants.
The remainder of our argument on the issues raised by the Applicants'
Submissions Nos. 3 and 4 will fall into the samc threc categories that
I have just now mcntioned, and it will follow the same sequence. In the
course of argument we shall refer to the cvidence given by the witnesses
and the facts in the written pleadings which have all been admitted by
the Applicants. In this regard I call the Court's attention to IX, at pages
20-21 and 43-44. The Applicants there indicated to the Court as follows,
and I quote in particular a short passage in IX, at page 21:
"The Applicants have adviscd Respondent as well as this honour
able Court that ail and any avcrments of fact in Respondent's
written pleadings will be and are accepted as truc, unless specifi
cally denicd."
Wc shall at an appropriate stage in the later course of our argument
deal with the sigmficance and legal cffect of the admission by a party of
pleaded facts, and with a related subject, namcly the significance and
effect of failure by a party to cross-examine witnesses on material aspects
of their testimony.
In addition to the admitted facts, as we have indicated in the verbatim
record, X, pages 77-78, 83-84, and later in XI, at page 456, we shall
also refer to some United Nations documents in the first part of our
argument that is, that part of the argument wbich will deal with an
appraisal of the procedures and activities in international organiza
tions, and, in particular, the United i\'ations.
The argument which I bave sketched will conclude our contentions
regarding Applicants' Submis::ions 3 and 4, subject of course to the right
to reply on any comment made by the Applicants relative to the evi
dence. Submissions 1,2, 7 and 8 have alrcady been disposed of. Tbat
will then leave us with only Submission No. 5, which dcals with uni
lateral incorporation, No. 6 (militarization) and No. 9 (unilateral modi
fication of the terms of the Mandate). These Submissions Nos. 5, 6 and
9 were, 1 submit, but faintly pressed by the Applicants in their oral argu
ment, and wiU be dealt with by us after we have concluded our argu
ment regarding Submissions 3 and 4.
Mr. President. with the permission of the Court my learned friend, Mr.·
de Villiers, will now start to deal with the first portion of the first cate
gory of the argument that I have indicated.86
26. ADDRESS BY MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 26 AND 27 OCTOBER 1965
My learned friend, Mr. :Muller, has indicated to the Court in what
category this portion of the Respondent's address will fall, and it is
unnecessary for me, Mr. President, to repeat that.
I should like to begin by drawing attention to a large category of reso
lutions of international bodies upon which the Applicants rely for the
purposes of their norm and standards contention. The Court wm recaU
that they referred in their pleadings and in their oral addrcsses to the
Court to a large number of such resolutions. The large majority of these,
Mr. President, were resolutions of organs of the United Nations, and of
that category again, the overwhelming majority were concerned specif
ically with South West Africa and South Africa, and it is this last-men
tioned category which I want to isolate for the moment-that is the
group of resolutions with which we wish to deal first.
We shall deal at a latcr stage of our address with the other resolutions
falling outside this category, some still being United Nations resolu
tions, but not specifically referring to South Africa or South West Aftica,
and some not being United Nations resolutions at all.
The resolutions in question, with which I am going to deal now, are
identified inthe Applicants' written Reply, at IV, pages 502 to 504, and
one will particularly find full references to the records in the United Na
tions inthe relevant footnotes at those pages. We find again, Mr. Presi
<lent, reference to these resolutions in the verbatim record 18 May, IX,
at page 332, and I should like to read to the Court a portion of what was
said there by my learned friend on that occasion. First, he quoted from
the Reply at IV, page 502, this sentence:
"Since the founding of the United Nations, there have been more
than thirty resolutions of the General Assembly specifically con
demning racial discrimination or segregation, whether in South
Africa itself, South West Africa, or generally in Non-Self-Governing
Territories."
That was the end of the quotation from the Reply. My learned friend
continued:
"Applicants have set out at page 502 of the Reply a list of such
resolutions. Inasmuch as the purpose of citing such resolutions was
to demonstrate the judgment of the organized international com
munity with respect to separation or discrimination on the grounds
of race or membership in a group, it is immaterial to the purposes
of the present discussion that the rcsolutions apply to apartheid
both as practised in the Republic of South Africa and in the Terri
tory of South West Africa, as the pleadings make crystal cl_earand
as 1s conceded by the Respondent. The fondamental pohcy and
practices in force in the Territory and in the Republic are essentially
the same in all respects relevant here." (IX, p332.)
}Ir. President, let us attempt to attain clarity first as to the purposes ADDRESS BY MR. DE VILLIERS
for which the Applicants relied upon these resolutions, this particular
group of which I am speaking.
The purpose was, in the first instance, to show that these resolutions
were part of the process of the creation of the norm as defmed and
relied upon by them, and/or as proof of recognition that such a norm
exists. That was the first purpose as we understood it of the argument
as relying upon these resolutions. Secondly, Mr. President, they rclied
upon these resolutions with the same purpose in view as far as their
standards contention was concerned; in othcr words, as part of the process.
of creation or formulation of those standards, or as an indication of
recognition that such standards exist and are intcnded by thesc organs.
to be applicable and binding upon the situation in South West Africa.
Thirdly, Mr. President,the purpose was, as would appear from the passage
which I have just cited to the Court, to show the judgment of the so
called organized international community that policies of the Respondent
in the Territory offended against the norm and/or the standards.
I have stated the purposes in this order. No particular significance
isattached, for the purpose of my argument, to the order. I have not
given attention at all for purposes of my argument here to the Applicants·
distinction as to what is their main contention and what is their alter
native or subsidiary contention. It does not matter for my purposes
because this argument will serve as a reply to ail of those contentions.
It is particularly in this last-mentioncd respect, Mr. President-in
respect of relying upon thcse resoiutions as constituting a judgment of
the organized international community that policies of the Respondent
offended against the norm and/or the standards-that the Applicants
contended that these resolutions were binding also upon the Court; that
the Court, in othcr words, was bound by these decisions and simply had
to apply them. In the Applicants' words, which my learned friend,
Mr. Muller, also recalled earlier this aftemoon, there was to be no
"second guessing" of the so-called "competent international organs" and
there was to be no "veto" of their "judgments". The Court was simply
bound to accept and to apply these so-called "judgments". My learned
friend gave reference to the passages in that respect in the verbatim
record of 9 June at IX, pages 543 to 545.
Now, in this last-mentioned respect also, it is clear that the Applicants
could rely only on resolutions pertaining specifically to South West
Africa and to South Africa. It would not be possible for this purpose
to rely on othcr resolutions, and that is a factor which distinguishes this.
group of resolutions from the others relied upon by the Applicants.
Mr. President, that is not my main reason for isolating this group and
for dealing with it first. Our main reason for that is that there arc certain
special reasons which we shall advance to the Court-special reasons in
addition tothe legal argument presented to the Court before-why these
particular resolutions could not possibly support the Applicants' conten
tions as to their norm and/or standards. Thcrc are again special reasons,
also additional to those advanced before, which similarly apply to the
other group of resolutions, but they are different reasons and ,,·cshall
corne to deal with thosc at a Iater stage.
Now the grounds which we have already advanced, why these particular
resolutions could not support the Applicants, have again been referred
to earlier this afternoon by my learned friend, Mr. Muller, and I do not
intend to make any dctailed reference to them at all-it is unnecessary.88 SOUTH WEST AFRICA
I merely want to identify those very broadly in order to contrast the
argument which is now to be presented with what has gonc before.
Broadly, we may say that, apart from jurisdictional aspects which we
mentioned, we have demonstrated in our earlier argument that the
proceedings in these bodies could not possibly have resulted in anything
that would be binding upon the Respondent or upon the Court, that
is, as a binding norm or as binding standards or as a binding judgment
that the norm or the standards have been violated. That is the broad
trend of the substantive portion of our argument as we dealt with it
in the verbatim records of rn, II and 14-17 June (IX and X). Those
arguments, Mr. President, were advanced by us quite independently of
what thesc resolutions were, in fact, intended or what they purported to
achieve. ·
Although that argument concentrated on the processes and the lcgal
significance ofthe proccsses themselves-although that argument would
have been entirely sufficient for our purposes-we prornised that we
would in addition, at a later stage, deal with the matter with reference
to the content of the suggested normand the suggested standards relied
upon by the Applicants. We promised that we would then dernonstrate
in what light the activities in these international bodies were, in fact,
to be seen, and in particular we promised to show, Mr. President, that
the organs and the agencies of the United Nations in passing these
judgments did not purport to have applied standards or a norm with the
contents suggested by the Applicants, but. on the contrary, that they
condemned the Respondent's policies on an entirely different basis
namely as being tainted with improper motives, or as being oppressive
of certain groups. And we added that, as we would show, the findings
were in any event to a large extent based on incorrect or distorted facts
or assumptions or on deliberate misrepresentations.
Those indications the Court will fi.ndin the verbatim record of r8 June
at X, page 84. And it is in this light, Mr. President, that we intend to
continue the argument as from here.
It will be evident in my submission that if it can be shown that the
organs, in condemning the Rcspondent\ policies, did not apply standards
or a norm of non-separation or non-discrimination, as defi.ned, this would
be an independent and an additional ground, quite apart from those
already aclvanced, why the Applicants' case under consideration must
necessarily fail, at least, of course, as far as it depends on these particular
resolutions. It will, therefore, be highly relevant to examine very carefully
the considerations which gave rise to these resolutions.
ln some cases one finds that the wording of the resolution itself throws
a reasonably clear light on what those grounds and what those motiva
tions were, but that does not apply in all cases, and even in cases where
the wording is enlightening one finds that it does not always tell the
whole story in its full impact.
We thcrefore have to turn to what one might call the antecedents of
these resolutions in order to fi.nd as accurately and as fully as possible
the real motivations behind them-the real bases upon which they were
adopted. These antecedents include views expressed by delegates who
voted for those resolutions; thev include the material and sources on
which those views were based and they include other relevant evidence
as to the motives with which that material and those sources were
placed before the United Nations and its organs. ADDRESS BY MR. DE VILLIERS
89
I consequently propose to embark upon this background inquiry, but
let me first, Mr. President, by way of recapitulation and in order to
have no misunderstanding at all, state very clearly what the purposes
of this inquiry are. It will be done vcry, very concisely and cven if it
involves a bricf measure of repetition, because we do not want to have
any misunderstanding about this.
Basically, we propose to show that the resolutions on which the
Applicants rely did not purport, and were never intended, to create a
norm or standards of any kind or particularly of the kind as relied upon
by the Applicants. That was not their function-not the creation of
anything in the nature of a norm or standards-and in so far as it was
a question of giving recognition to the existence of a norm and/or
standards, that recognition ,•.rasnot accorded to a norm or standards
of a content as relied upon by the Applicants.
We submit. Mr. President, that that appears in two ways. Firstly,
because the resolutions were, to a very large cxtent, the outcomc of a
political campaign which was waged against the Respondent Govern
ment by a large number of States-a campaign which was based on
politicaland particularly on emotional grounds, rather than upon objec
tive grounds concerned with the well-bcing and progress of the peoples
concerned. The objectives of the campaign, in our submission, are to
procure the so-called "liberation of the people of South West Africa",
to secure the independence of the Territory on the basis of Black African
ruleand to securc the consequent ousting of the \Vhite group from the
Government of the Territory or any part thereof. no matter what the
effect might be on the interests and the needs of the population as a
whole. That campaign, we submit, has culminated in these very proceed
ings in this Court, in which we submit that the Applicants act in a
representative capacity, as representativcs of some of the leaders of that
campaign. That is the first part of the rcasons, in other words, of the
manner in which it appears that the purport and the intcnt of thcse
resolutions wcrc not what is claimed by the Applicants.
Secondly, we submit that the real purport appears from the grounds
upon which the Respondent was attacked in the course of the campaign
and upon which the resolutions in question were cventually based. and
we find. on analysis, that these amounted to nothing else than alleged
deliberate oppression of the indigenous population of the Territory. A
suggested norm and/or standards of the kind defined by the Applicants
and relicd upon by them did not enter into the discussions at ail.
In this last respect we shall indeed show that while considcration was
given in special committees and othcr bodies of the United Nations to
the prospect of litigation in this Court on the question of South West
Africa, that is contentious litigation as was eventually institutcd in
these proceedings, at no stage whatsoever in those deliberations and in
those recommendations was any suggestion made of bringing an action
on the basis of standards or a norm of the kind now under discussion.
It was purely and simply a case of an allegation of deliberate oppression
of the indigenous population of the Territory.
Then there is a further feature, with a view to which we embark
upon this background inquiry, this inquiry into antecedents, and that
is that the resolutions were, in our submission, to a very large cxtent
based on completely erroneous and distorted information, mostly clerived
from statcments by petitioners from the Territory and derived from SOUTH WEST AFRICA
'90
them under circumstances in which their statements werc not tested,
but wcre indeed acceptcd and echoed without reservation.
Those, then, are the purposes for which we embark upon the inquiry.
I propose to deal first with the campaign and with related aspects
-of it. This seems to us to be a natural starting point and a natural
background with a view to demonstrating both the unreliability of the
.allegations relied upon in support of the resoiutions, and also the real
nature of the purported grounds upon which South Africa's policies were
attacked.
Now, when we speak of a campaign, let us be very clear, so as to
avoid misunderstanding, as to what is meant. We shall speak in general
-of an anti-colonialistic campaign, but we shall speak also in particular
-of leading participation, which has corne to be taken in that campaign
over more recent years by the independent African States. When we
.speak of that participation by the independent African States, that
leading participation, it does not mean that we suggest that criticism of
South Africa's policies in South West Africa first started with the coming
upon the scene of the African States, or that an anti-colonialistic cam
paign, for that matter, first started with the African States.Itis common
knowledge and we all know that it came much earlier. Nor do we suggest
that in the furthering of this campaign over the last few years-a
campaign culminating in these proceedings, and still running paraUel
with these proceedings, that the African States are standing alone and
that they have no allies. Certainly, we all know that they have allies
in that very campaign and that they are very strongly supported by
various States and groups of States for various motivabons, but our
-concern is not with what went before, with the motivations of other
States which, sometimes enthusiastically and sometimes perhaps less
·enthusiastically,may act as allies and supporters of the African States
in this particular respect.
Our purpose is, in particular, concerned with the leading participation
iaken by the African States over these later years, with a common
purpose which the representatives of the African States have made in
this respect \vith petitioners from South West Africa, and with the light
which that feature throws upon the issues and upon the purposes and
upon the objectives involved in this litigation.
The most careful reading of Applicants' pleadings does not reveal any
practical reason why the Applicants particularly have corne forward to
institutc these proceedings. The Applicants did, of course, express in
their plcadings an attitude of being gravely concerned about the well
being of the indigenous peoples of South West Africa and they have gone
:further. Throughout the pleadings they have sought to create the im
pression that they have taken action solely in the interests of the inhab
itants of the Territory. So we find, in the l\Iemorials, at I, page 86, that
-each of the Applicants stated:
"The Applicant has repeatedly expressed grave concern concerning
the violations by the Union of its duties with respect to the Territory
and the well-being of its inhabitants."
Mr. President, there are, in the pleadings, some references, I might
-call them "legalese" referenccs, to a so-called legal interest, or legal
interests, on the part of the Applicants and on the part of other Members
,ofthe United Nations. But othenvise we find that the proceedings are ADDRESS BY MR. DE VILLIERS
presented throughout as being directed to the benefit and the interests
of the inhabitants of the TeITitory, and nowhere do the Applicants
offerthe least practical reason why they particularly have corne ta be
the champions of the inhabitants of the Territory.
Now, a momcnt's reflection will show how strnnge and artificial this
situation really is. There are no cultural, economic or other ties between
the Applicant States and South West Africa. The Applicants have no
direct contact with conditions in South West Africa and, as far as we
know, no first-hand experience of conditions in South West Africa.
\Ve found that both the Applicant States were Members of the League
of Nations. The Respondent, as everybody knows, has, since the inception
of the Mandate, applied policies of ethmc diffcrentiation in South West
Africa, but neither of the Applicants, nor for that matter, any other
State, at any stage during the lifetime of the League of Nations sought
to bring about a change in this state of affairs in the interests of the
inhabitants of the Territory. In addition, as has been shown in the
pleadings and it would now appear to be part of the undisputed and
admitted facts, the standard of progress and achievement in South West
Africa appears to be certainly not Jess favourablc than in the Applicant
States and in many cases higher or better than in the Applicant States.
It is against this background that the Applicants now, without any
special explanation, emerge as the self-appointcd protectors of the inhab
itants.It must be manifest, Mr. President, that thcre must be some
practical reason or motive why this has corne about and the Applicants'
very persistent silence about this point becomes the more remarkable,
especially in view of the fact that we have specifically challenged them
about it in our pleadings.
The Court will recall that in our Counter-Memorial, Il, at pages 446-
449, dealt with what we described as-
"... the increasing pressure exerted by the newly independent
African States to enforce the grant of self-government or indepen
dence ta dependent teJTitories and peoples in Africa".
The quotation is from page 446 of that volume. Then we went on to
say this, at the same page:
''The present proceedings against Respondent are to be seen as
part of this political campaign designed ta bring South West Africa
(and eventually the Republic of South Africa itself) into line with
the new governmental systems established in other parts of Africa,
and to achieve for the Territory majority rule by the Native popula
tion-as an over-riding objective to which ail other aspects and
implications are to be subordinated."
\Ve did not make that as a rash and unsupported assertion. In support
of the statement, we quoted from debates at conferences of African
States and from resolutions at conferences of African States. That will
be found in the same volume, on pages 446-449.
Without going into detail, I should like at this stage, particularly
because of the reaction we had from the Applicants, ta which I shall
refer in a moment, ta refer to some of the material on which we relied
there in the Counter-Memorial.
We pointed out by way of background that the Presidents of Liberia
and Guinea and the Prime Minister of Ghana made the following state- SOUTH WEST AFRICA
ment in regard to South West Africa in a joint communiqué, dated
July 1959. 1 quote from Il, page 446, paragraph 31:
"We maintain that this Territory is in fact a Trust Territory of
the United Nations, and as such the United Nations cannot relin
quish its legal and moral responsibilities to the indigenous inhab
itants who are entitled to the same treatment given to other Trust
Territories. Consequently, we will request the United Nations to
give further consideration to this question, declare the Territory
not a part of South Africa and fix a date for the independence of
the Trust Territory of South West Africa."
That is the end of the quotation, Mr. President in July 1959, somewhat
more than a year before the institution of these proceedings.
In the next year, in 1960, the Secretary of State for Liberia, l\Ir. J.
Rudolph Grimes, spoke of the "determination" of bis Government (that
was the word he used "determination") "on behalf of ail the African
States, to pursue further action to get this territory placed under the
Trusteeship provisions of the Charter". The quotation is from Il, page
447 of the Counter-l\Iemorial, Mr. President, and it proceeds as follows:
"We are pleased to know that in this we have the support and co-operation
of other African States. This matter will be discussed at this conference
and it is hoped that final decision for further action will be taken before
we adjourn."
I should like to make two comments: one is that, as we point out
in the Counter-i\lemorial. this was 1960, and, as we have demonstrated
before, by 1960 trustccship \\'aS considered as being merely a bricf
prelude to complete political independence. That is one comment. The
other comment is that at this conference, as was foreshadowed bv
Mr. Grimes, resolutions were indeed adopted-at that conference and
at othcr conferences.
We fine! that, as is also demonstratedin the Counter-1\Iemorial at the
pages in question, 448-449, at this particular conference it was decided
"that the international obligations of the Union of South Africa con
cerning the Terri tory of South- West Africa should be submitted to the
International Court of Justice for adjudication".
Next quotation from the samc resolution, at the same page in our
Counter-Mcmorial: "that the Governments of Ethiopia and of Liberia
have signified their intention to institute such a proceeding." The purport
of the quotatîon was that the resolution noted this fact. Then, there
is this furthcr rathcr significa.nt paragraph which l guote, still from the
same page: "that a Steering Committee of four African States, including
the dclegations of Ethiopia and of Liberia, should be established to
detcrmine the procedures and tactics incident to the conduct of the
juridical proceedings in this matter'' (Il, p. 448).
Mr. President, we dealt also, in that portion of our Counter-fllemorial,
with the reasons why we assigned those particular objectives to the
campaign. I shall leave those aside for the moment. I am coming back
to that at a later stage. l merely wish to refer now to our conclusion
which we statcd at page 448, and which reads as follows:
"It will be apparent from the facts set out ... that the Applicants
in the present case are in substance only nominal parties to the
proceedings. the real parties being the independent African States,
and that the main purpose of this action is to secure political
independence for the Territory.'' AODRESS BY MR. DE VILLIERS 93
Now, Mr. President, what was the reaction of the Applicants? We get
that in their Reply, at IV, pa~e 295, and we find that ît was sharp and
profcssedly indignant. They sügmatize our conclusion, which I have just
cited to the Court, as "a sweepingly declaratory judgment". Then they
go on to declare the following: "Applicants do not consider compatible
with the dignity of this honourable Court, or with the gravity of the
issues in dispute in these Proceedings, to reply to irrcsponsible and
unwarranted comments of such a nature."
But, significantly, .Mr. President, despite all this indignation, we find
that the Applicants did not attempt to rcfute, or even to answer, any
of the supporting matcrial upon which we relied in the relevant portion
of our Counter-Memorial-that we pointed out in our Rejoinder, V, at
page 380. Nor, Mr. President, did the Applicants indicate any other
practical reason why thcy particularly were now championing the cause
of the inhabitants.
\Vhen we corne to these Oral Proceedings we find that this line of
indignation and disdain was maintained-again, Mr. President, without
dealing in the least with the merits of what wc had said, and, again,
without taking this Court into their confidence about the real reasons
for thcir concem about the well-being of the inhabitants. We find that
they dealt with that in the verbatim record of 27 April, at IX, pages 8-n.
Mr. President, I need only point out that, on this question as to the
representative capacity of the Applicants, they said nothing at all
exccpt to suggest, as they had clone before, that thcy might be rcpre
senting the United Nations, or the Membcrs of the United Nations, and
so to divert the trail. We find, for instance, on page 9 of this record
thcy said: "In this very case, the United Nations General Assembly by
an overwhelming majority has seen fit to refer to this pending litigation."
Then they refer to the resolution in question. But, otherwise, we hear
nothing about this question of who is being represented and we find at
page II the following is stated:
"... Respondent levels against the Applicants accusations of im
proper motive in seeking judicial recourse.
Mr. President, it is distasteful to dcal with charges which call
more for disdain than for denial, but denial thcre must be of the
charge and denial must justly be recorded at this point."
Now, I point out that this. therefore, is one of the exceptional instances
in which the Applicants have qualified their admission in regard to facts.
They indicated that they accepted as true ail the facts in our pleadings
except where they would indicate otherwise, and this is an indication
to the contrary. Therefore, and also, Mr. President, because we rather
resent the suggestion that we have drawn the dignity of this Court in
issue by irresponsiblc statemcnts, it is a matter which requires to be
pursued further. But, before cloing so, I should like to refer to this
wording that "Respondent levels against the Applicants accusations of
improper motive in sccking judicial recourse". That, Mr. President, was
not the point why we raisccl this matter. It was nota matter of suggesting
"improper motive in seeking judicial recourse". Wc were concemed with
pointing out that thcrc was a campaign with certain political objectives,
and that this litigation was part and parcel of the methods being pursued
in order to attain those political objectives, and we thought it as well,
and very important, that the Court should be informed of that implîca-94 SOUTH WEST AFRIC.-\
tion of this litigation. That was the purpose why we referred to this.
Whether one would describe that as an "improper motive in seeking
judicial recourse" is really immaterial. It is certainly a motive; whether
it is improper or not would depend upon the extent to which it is true
that, as we say, the Applicants are concerned more with the attainment
of these emotional objectives than with the real interests and bcnefit
of the inhabitants of the Territory. That is a matter which is not of the
essence of this investigation.
Now, Mr. President, in pursuing the matter further, because we have
been challenged on this, l should like to begin with the representative
role played by the Applicants in the proceedings. I may say that we
have really submitted sufficiently in that respect in the Counter-Memo
rial, especially in view ofthe fact that what we have submitted has not
been countered at all.
But, Mr. President, in addition there are very pertinent speeches
delivered by representatives of both the Applicant States themselves in
the United Nations General Assembly.
I begin with Mr. Yifru of Ethiopia. The reference is to the Official
Reports of the General Assembly, Plenary, 16th Session, 1020th Plenary
Meeting, page 177, 2 October 1961. Iquote from the paragraph numbered
134:
"The numerous violations of the terms of the Mandate held by
South Africa over South West Africa have been taken jointly by
Liberia and Ethiopia to the International Court of Justice at The
Hague ... \Ve are happy to report that ail the African States have
participated in ail decisions leading to this action ... \Ve feel that
this co-operation augurs concerted action in other areas of common
interest."
Next we corne, Mr. President, to the same Mr. Rudolph Grimes of
Liberia. This isat the 1964 Session, the 19th, in plenary. Unfortunately,
all we have available, and I think all that is available in the records
of this Court and in its Library up to the present stage, is the provisional
record, at page 91:
"Since Iast I had the occasion to address the General Assembly,
the African States, through the Govemments of Ethiopia and
Liberia have not relented in their efforts to obtain for the people
of South West Africa that which is rightly theirs. We have sponsored
and vigorously prosecuted the South-West Africa case almost through
the pleading stage ... As you are well aware, this case represents
the efforts of a united Africa to ensure that South Africa does not
further extend its racial policies to a helpless and defenceless people.''
That is the end of the quotation, Mr. President, and the question
arises whom are we to believe? Are we to believe the Ethiopian and
Liberian representatives in the United Nations or are we to believe the
indignant evasions which are proffered to this Court?
We find, Mr. President, that the Applicants' representatives at the
United Nations were, on this point, very pertinently confirmed by a
representative of another African State, namely the representative of
Somalia. We find that in the General Assembly, Plenary, 17th Session,
page 476. That was on 12 October 1962. The quotation is from a paragraph
numbered 184- After this representative of Somalia had referred to this ADDRESS BY MR. DE VILLIERS
95
Court's Advisory Opinion about South West Africa-apparently the
1950 Advisory Opinion-he proceeded as follows:
"\Ve are also watching with interest the efforts of Liberia and
Ethiopia on behalf of the African countries in their case against
South Africa before the same judicial body."
I repe<l:t:".. ;,the efforts of Liberia and Ethiopia on behalf of the African
countnes ...
That this is the true position is further confirmed, if any confirmation
were necessary, by the fact, Mr. President, which was widely publicized
inthe world press at just about the time when this Court was assembling,
that members of the Organization for African Unity are expected to
contribute to the costs of these proceedings. Very shortly before these
proceedings started, there were, as I say, reports freely in the press
that the Council of the Organization for Afncan Unity had required
each member State of that organization to contribute $13,378 towards
the cost of this case by 15 April. I can refer the Court to a copy which
we have of a Sapa-Reuter message of March 1965 to that effect. I can
referthe Court also-1 have it: here-1 shall hand it in to the Registrar
-1 have also a photostatic copy in duplicate-1 could hand one copy
to my learncd friends if they wish-of a publication called A/rica Research
Bulletin published in the United Kingdom. I have here the issue for
1-31 March 1965. There is a photostatic copy of the title page and also
the relevant page, which is 254, at which the report appears. lt has been
marked in the margin. I shall also hand these in.
Mr. President, in further support, again, if that were required, we
could refer to numerous statements made by petitioners from South
West Africa. From what was said in the Counter-Memorial, and not
met at aH in any subsequcnt pleadings by the Applicants, and from
what was said in the evidencc of Mr. Dahlmann on the subject of the
petitioners, it will already be evident to the Court to what extent there
is comrnon cause between these petitioners and the representatives of
other African States. \Ve shall refer to this matter later in more detail
and we shall also point out that in many respects the representatives
of the African States at the United Nations and the petitioners from
South West Africa speak as if with one voice. They do so, amongst
others, with regard to the nature and the objectives of this campaign
of which we are speaking, but for the moment we are concerned with
the question of the representative role of the Applicants.
I refer toMr. Kozonguizi in the Fourth Committee, Fifteenth Session,
1050th Meeting, r4 November 1960. I think it is page 302. I quote:
"Liberia and Ethiopia, with the support of the other African States
had started legal action against the Union of South Africa."
ln this same report, Mr. President, we find that there was a statement
circulated in accordance with a decision taken by the Fourth Committee
at the next meeting. We found this at page 4. I am not sure what the
page of the previous one is. I could correct that in the record, if necessary.
"We appreciate very much that Liberia, with Ethiopia, has agreed
to shoulder the responsibilities of legal action entrusted them
by the African States."
Next, we find Mr. Kerina, at one time also known as Mr. Getson, at
the Fourth Committee, 1051st :Meeting, 15 November 1960, p. 310.
There, he spoke of: "the legal action taken by the Governments of96 SOUTH WEST AFRICA
Liberia and Ethiopia on behalf of the African States." And in the
Fourth Committee, 1372nd Meeting, on 5 November 1962, at page 277,
he spoke more simply of: "the African States acting through the Inter·
national Court of Justice."
So. i\frPresident, having shown that the Applicants are appearing,
in this case, asthe mouthpîece of a United Africa. the way is now being
cleared for taking a doser look at the nature and the objectives of this
concerted action.
\Ve have said already that the campaign is political in its nature.
Let us bcgin with that clcment in itself and we shall see, Mr. President,
that that is very forcibly demonstrated by the manner in which the
attacks on South Africa by the African States. and their associatcs, in
debates in the various organs of the United Nations, have been associated
with the call for the "complete decolonization" of the African Continent,
for the so-called "liberation" of the Africans, and for, according to the
Africans, a right of self-determination, which, it is continually alleged,
is being denied to them by the Respondent Govemment in South Africa
and in South West Africa.
So we find, to mention just a few examples, Mr. President, that the
po!icy of the South African Govcrnment is frcquently referrcd to as
"one of the worst forms of colonialism". 1 quotc next: as "that hateful
form of colonialism" and, thirdly, as "the worst legacy left by colo
nialism". The first quote is from :Mr. Sulciman of the Sudan, in the
Special Political 'Committee of the General Assembly, 16th Session,
284th Meeting. page 121, 9 November 196!; the second one is that of
l\lr. Achkar of Guinea, Provisional Record of the Plenary Session of the
General Assembly, 1308th i\Ieeting, 21 December 1964, at pages 78-80;
and then the third one is that of i\IrDugersuren of Mongolia, the r9th
Session, Provisional Record of the Plenary Meeting, r306th Meeting,
18 Decembcr r964, at page 33.
Mr. President, we can quote many extracts from speeches providing
typical examplcs of this approach. 1 do not intencl to burden the Court
unduly with these. I shall give one or two outstanding examples.
\Ve have, again, representatives of the Applicant States taking a very
strong part in this aspect of the demonstration. So, l\Ir. Yifru, the same
one as before, of Ethiopia, inthe Plcnary Session of the General Assembly,
7 December 1964, r293rd Meeting, at page 32 of the Provisi'onal Record,
stated:
"My Governmcnt earnestly hopes that the United Nations, truc
to its declared objectives, will continue to appeal to the conscience
of nations in a position to exert influence in the abolition of colo
nialism and the policy of apartheid, a policy disgraceful both to
man and to God.''
Then we find representativcs of other African States: l\Ir. Lozes of
Dahomey said again in the Provisional Records I964 Plenary, rzgoth
Meeting, 4 December 1964, page 41:
"\Ve, the African peoples, today still call for the complete clccol
onization of our continent. What is involved is the right of self
determination of peoples, which certain States such as Portugal and
South Africa refuse to recognize."
Then we corne to Mr. Murumbi of Kenya, who stated in Provisional ADDRESS BY MR. DE VILLIERS 97
Records of the r9th Session, 1293rd Meeting, at page 12, and again at
pages 13-15 (this is also Plenary Session, 7 December 1964):
"Let me strike a note of restraint by saying that the time for
total rejoicing for Africa will corne only when ail the African terri
tories now under colonial subjugation are finally liberated. There
are still millions of our African brothers in South Africa, Rhodesia,
Angola, Mozambique, French Somaliland and the Spanish Colonies
who are living under the worst forms of human oppression. They
are denied the right of sclf-determination; the regimes imposed upon
them by brutal force have stamped out their fundamental rights
and freedoms [omitting somewhat and quoting again].
I would like to put it on record that Africa will no longer tolerate,
or permit the existence of, colonialism and neo-colonialism, no
matter in what form it is disguised or from what source it ema
nates ... "
{Public hearingof 27 Octoberr965}
I was dealing at the adjournment yesterday with certain statements
by representatives of African States identifying the Respondent's policies
of apartheid, or separate development, with colonialism, or "that hateful
form of colonialism'', as it was called.
I wish to read one more extract from a statement on this subject
because it is somcwhat illuminating of the reasoning and the emotions
that go into this identification. It is a reference t;\IrBotsio of Ghana's
statement in the Provisional Recordsof the GeneralAssembly, Plenary,
19th Session, 1299th Meeting, at page 66-the date was II December
1964-which reads as follows:
"The situation in Africa is naturallv the immediate concem of
Ghana and, indeed, of ail Africa. Wh.ile great strides have been
made in recent years in the emancipation of the continent of Africa,
there are still residual pockets of colonialismd racial discrimination
which constitute an affront, not only to us Africans, but to al!
civilizedhumanity. The continued domination of the rest of Africa
... including South Africa, Southern Rhodcsia, South-\Vest Africa,
Angola, Mozambique, Portuguese Guinca, French Somaliland.
Spanish Sahara, Spanish Equatorial Africa and other Spanish
enclaves ... continues to pose a serious threat to peace and racial
harmonv on the continent of Africa. For us in Africa. the issue
is quite·c1ear.\Ve would Iike the transition from colonial domination
to freedorn and independence to be achieved peacefully and without
bittemess on either side. However, if the imperialists persist in
frustrating the rights of Africans to independence, then we will
accept the challenge and we will use every available means to
ensure the total liberation of Africa. [And, then, the speaker went
on, l\fr. President, to refer to apartheid and racialism as being] the
handrnaidens of imperialism and colonialism."
I think I have read enough on this subject to the Court. I shall merely
give certain further refcrences to the records of instances of similar
statements.
The first is Mr. ]llbazumutia of Burundi in the same Provisional SOUTH WEST AFR!CA
Records of the 19th Session, Plenary, 1305th Plenary Meeting, pages 86
and 87. Then, from certain other States than African States we find
rcmarks to the same cffect, for instance, from Mr. Muraywid of the
Syrian A.rab Republic; during the same Session, in the Provisional
Records, 1306th Plenary Meeting, at pages 3-5. And then, there are
three instances, all in the Special Political Conunittee during the 15th
Session, 238th Meeting, the first was :1-.f. oncar of Yugoslavia, at page
53 of the record A/SPC/SR 238, the next Mr. Krishna Menon of India,
24rst Meeting at page 7r of that record, and the other one Mr. Galkin
of the Byelorussian Soviet Socialist Republic, at page 71 of that record.
Mr. President, in al! these cases the theme is the same. Apartheid or
separate development is seen as a form or as a manifestation of colo
nialism at its worst. Different words are used to describe this situation
but every time that is the theme, and, therefore, this policy requires
liquidation as soon as possible in the course of the decolonization process.
Now, once one has attained clarity on that identification, which was made
in this campaign, then the real objectives of the campaign, as specifically
applied to South West Africa, are not diffi.cult to ascertain, nor the
role which is visualized for this Court action in the whole of this campaign.
We can, on that point, Mr. President, go back to some of the statements
to which we have already referred on the point of the representative
role of the Applicants. Sorne of those statements are most explicit also
on the question of the objectives of the campaign.
We find in the statement of Mr. Grimes of Liberia, to which I referred
yesterday, in the 19th Session, Plenary, r3ooth Meeting, at page gr,
that, still speaking in the context of the court action, of which, he said,
that it represented efforts "to obtain for the people of South West
Africa that which is rightly theirs", he went on and he said this:
"The irresistible surge of dependent people to freedom and in
dependence is a movement which al! freedom-loving and peace
Ioving people must support. \Ve hope it will not be long before we
see our brothers in Angola, Mozambique and other parts of Africa
as well as the world take their rightful place in the international
community."
1\fr. President, the context of this passage is of extreme importance
because it cornes directly in line as a part and parcel of the statement
by Mr. Grimes in regard to this action, which was being prosecuted by
the African States, he said, through Liberia and Ethiopia. It came
immediately after a passage which reads as follows, and which I shall
quote to the Court:
"Consequently, we call upon ail Members of the United Nations
to stand firm in their determination to resist any attempt by the
South African Government to undermine whatever dccision the
International Court of Justice may see fit to give."
After calling for consolidarity in that respect, he went on to this
note of "The irresistible surge of dependent people" which was some
thing which deserved the support of "ail freedom-loving and peace
loving people".
I can refer the Court also to Mr. Kerina in the Fourth Committee,
the ro51st Meeting, 15 November 1960. In a circulated statement at
page r of that record he expressed gratitude to President Tubman, to ADDRESS BY MR. DE VILLIERS 99
Liberia, to Ethiopia, "and the Independent African States" for bringing
these proceedings. And then he said this:
"To us in South West Africa, this is a concrete expression of
African solidarity and also a clear demonstration of purpose in
ridding our continent of foreign domination and exploitation.''
(Verbatim statement as circulated.) .
Now, Mr. President, that this purposc amounts to no more and no
Jess than the establishment of black rule over the whole of Africa,
including the whole of South West Africa, and the whole of South Africa
itself, is made abundantly clear by numerous statements by represen
tatives of African States, of which I shall quote some examples to the
Court.
First in the Special Political Committee we have Mr. Wachuku of Ni
geria, at the 15th Session, 236th Meeting, page 41, 30 March 1961. Mr.
Wachuku there spoke of the "difficult position" in which "the rulers of
South Africa" were :6.ndingthemselves. And he said this:
"The final victory of the Africans, who were ready ifneed be to
die rather than accept further humiliations, was certain. In fi.ve
years' time perhaps. or ten at the latest, not an inch of African
territory would remain under foreign domination."
Thcn we have Mr. Quaison-Sackey of Ghana at the r6th Session, 269th
Meeting, still in the same Committee, at page 46, 25 October 1961, in a
paragraph numbered 8, he "emphasized that Africa belonged to the
Africans and that the Boers could rcmain there [that is, in South Africa]
only on sufferance".
Then we corne to Mr. Kanc of Senegal, same Session, same Committee,
277th Meeting, at page 90, in a paragraph numbered 17, and I quote from
the body of it:
"The movernent for imlependence was sweeping over Africa like
a tidal wave from north to south, and if the White South Africans
wished to save their lives and their property they should accept
the inevitability of its triumph while there was still time, for to
morrow would be too late."
Then there is i\fr. Akakpo of Togo, same Session, same Committee,
282nd Meeting, at page us:
"It [the South African Govcrnment] must realize that the wind
of change which was sweeping over Africa would not spare enclaves
of foreign rule in any part of the continent ... "
Then Mr. Abedi of Tanganyika at the Eighteenth Session, same Com
mittee, 383rd Meeting, page 31:
"The whole of South Africa like Tanganyika and the other former
colonial territories, belonged to the African. The \Vhites there would
have to bow to dcmocracy and be satisfied with the status of citizen
ship accorded to ail inhabitants of the country. Those who did not
wish to do so should leave South Africa and return to their ancestral
homelands."
Mr. President, bowing to democracy in this context very clearly means
nothing else than submitting to black rule over the whole of South Africa.
This was said explicitly by Mr. Eesaafi of Tunisia. That was on the veryIOO SOUTH WEST :\FRICA
next day in the same Committee at the 18th Session, 384th Meeting,
page 37:
"The position of the African countries and of the African leaders
in South Africa was clear. What they were asking for must neces
sarilyand logically take the form of transfer of powers to the African
population ... "
I have only two more quotations on this matter before referring to a
general Iist. They are both addresses by Mr. Wachuku of Nigeria in the
General Assembly during the 16th and the 17th Sessions. First, the
16th Session, rn34th Plenary :Meeting, page 400, paragraph 7: there Mr.
Wachuku spoke of the \Vhite inhabitants of South Africa and he said
that South Africa: "... has obviously made it clear that this microscopie
minority which exists in South Africa is not fit to live on that continent".
Then we have the next quotation in the 17th Session, rr53rd Plenary
Meeting, at page 513, where he applied this philosophy to South West
Africa. I quote from paragraph 125:
"As far as we are concerned, on the African Continent, whether
it is decided one way or the other, there will be no question of legal
ity or illegality about it. Our law is clear. South West Africa is an
African territory.
Just to illustrate how these delegates and the petitioners from South
West Africa speak as if with one voice, I may remind the Court of Mr.
Kerina's statement in his letter to his associate John i\Iuundjwa, dated
5 .March 1959 and quoted by Mr. Dahlmann in his evidence in the ver
batim record of 8 October. XI, at page 463. This is a quotation from the
letter:
"Let the stupid Africans and Coloured agitators such as Klop
pers, etc.,etc .. encouraged by deceptive White settlers stop preach
ing multi-racial or partnership in South West Africa at the expense
of the African people. \Ve have had enough of these nonsense. Our
position should be made clear to the Whites. \Ve want South West
Africa back no more no less."
I have further references to the petitioners but I am not going to weary
the Court by reading them out. We have, in this exposition dealing with
United Nations sources, several instances where we would like to give
further references to the record but where it may be tedious to the Court
just to listen to the referenccs without any quotations. We have thought
that it might be convenient in such instances, subject to your approval,
.Mr.President, to prcpare a list on a loose sheet of paper. which we hand
in, not as a document forming part of the documentation, but merely
for the convenience of the Registrar, who will then hand it to whoever
types the transcript of the evidence. for typing at a particular spot. We
have an identification mark on each one of these lists and I propose at
this stage, if it meets with your approval, to hand in list A, giving refer
ences to certain statements by Mr. Kerina, and the Reverend Markus
Kooper without quoting from the statements at ail. I have a copy also
which can be handed to the Applicants. Would that be convenient?
The PRESIDENT:I think you should first hand it to the Applicants
and then I shall ask Mr. Moore whether he has any objection to that
course being pursued.
l\fr.MOORE:Mr. President, Applicants find no objection to this. ADDRESS BY MR.DEVILLIERS IOI
The PRESIDENT:Let it be donc.
Mr. de VILLIERS:So this one, then, is list No. A. That list concerns
the need and the desire to apply a so-called decolonization process in
respect of South West Africa. Then wc have list No. B referring to state
ments by the petitioners Mr. Nujoma, i.\IrKooper, i.\frKozonguizi, Mr.
Kcrina and l\Ir. Garoeb. That is list No. B which I hand in now.
The PRESIDE:-iT:Will you hand a copy to the Applicants? Any objec
tion, i\lr.Moore?
l\lr.l\IooRE: We fmd no objection to this, l\Ir. President.
Mr. de VrLLIEHS:Now, to revert to the link between all this and the
Court action, wc found that in the Colonialism Committee, at the 69th
Meeting, 8 August 1962, at pages 38-40-for the record I may say that
the document is numbered A/AC.ro9/P.V. 96-there, Mr. Obercmke
of the Soviet Union refcrred to these proceedings and to "the extra
ordinary long time" taken by them. As I have said, the date was
August 1962. He asked i.\1r.Kerina:
"What use will there be in further consideration of this question
by the International Court of Justice?"
Mr. Kerina in his reply said, inter alia,the following:
"\Ve do understand that the question of South West Africa is
not only lcgal, but political. We also undcrstand that the procccd
ings arc now pcnding before the 1ntcrnational Court of Justice;
and should a decision be in our favour, it will be determined by
political action, in view of the fact that such a judgment has to be
referred to the United Nations, where we have been petitioning
allthe time ... [I break the quotation there, but further on it con
tinues] ... Our position has always been that legal action must go
hand-in-hand with political action, that both of them complernent
each other."
Now, it will be obvious how well all this fits in with the statements
by !lfr. Grimes of Liberia, to which I have referred twice, to the effect
that the action represents the efforts of the African States through the
Governments of Ethiopia and Liberia to obtain for the people of South
\Vest Africa that which is rightly theirs.
l\Ir. President, this expression "that which is rightly theirs", as con
templated by what one might call the sponsors of this litigation, has now
been so clcarly identificd. It is Black African rule over the whole of
South West Africa, no more and no less.
'Mr. Kerilia: Ponrth Committee, G.A., O.R., r6th Session, 1217th Meeting,
20 November r961, A/C. 4/SE. r2r7, p. 377, para. 32; p. 378, para. 4r. Fourth
Committee, C.A., a.a., 16th Session,1241st Meeting, 7 Decembcr 1961, p. 549.
Hev. Markus Kooper: Colonialisrn Cornmittec, 145th Meeting, A/AC. 109/P.V. 145,
9 April 1963, p. 32.
2 Mr. Nujoma: FonrthCornrnittee (17th G.A.), 1371stIITeeting2 Novemher 1962,
p. 275. Mr. Kooper: Fourth Committee, 16th C.A. (1961). 1241st Illeeting, p. 550;
Fourth Committce (16th G.A.), 1241st :lleetin7 December 1961, p. 550. Mr. Ko
zonguizi (S\VANU): Fourth Committee, 16th Session, J219th Meeting, 21 November
1961, p. 393. para. 44. Mr. !(erina: Committee on South West Africa (A/AC. 73/SR.
121) p. 4; A/AC. 73/3 (Seventh Session). 9 September 1960, p. 10 (Committee on
South \Vest Africa); Fourth Committee, 15th Session, uooth Meeting, ro March
1961; Fourth Committcc, 15th Session, ro98th Meeting, 9 March r96r. .Mr. Garoeb:
Special Cornmittce for S.W.A., 11th Meeting, 30 July 1962 (A/AC. no/SR. Il).102 SOUTH WEST AFRICA
I promised to revert on this subject to some of the material with which
we dealt in the Counter-Memorial, in the passages to which I referred
yesterday. I think it was about II, page 446.
I should likc to refer to three of the items there. the first one being at
II, page 447. This was a reference to the proceedings of the l\Ionrovia
Conference of Foreign Ministers of lndependent African States held in
1959, at which both the Applicants were represented and we quote first
from an opening address at this conference by the President of Liberia.
There he said, amongst others:
"In our relationships with non-self-governing territories, what
is most important to us is the independence of these territories.
Any policy which tends to hinder the attainment of this aim is
reproachful to the Liberian point of view."
Then, at this Conference, a resolution was adopted specifically on the
question of South West Africa. The whole of it is given in the Counter
Memorial and I shall read only the third paragraph with the introduc
tion, which says that:
"The Conference of Independent African States,
Deeply concerned by the situation in the territory of South
West Africa,
. ~ . . . . . ~ . .
3. Appeals to the United Nations to fixa date for the indepen-
dence of the territory of South West Africa."
That is the second matter to which I wish to refer. The third one is at
page 448 of that volume. It is a refercnce to a resolution adopted at the
Summit Conference of independent African States, which again included
the two Applicants, at its meeting in Addis Ababa on 22 to 25 May 1963.
Extensive portions of the resolution, in so far as relevant, are quoted
in the Counter-Memorial, at II, page 448, and I do not propose to read
all. I should like to read some of it for purposes of the present argument.
The heading is Agenda item II: Decolonization and it starts off by
reading:
"The Summit Conference of lndependent African States ...
Having considered all aspects of the questions of decolonization.
Unanimously convinced of the imperious and urgent necessity
of co-ordinating and intensifying their efforts to accelerate the
unconditional attainment of national independence by ail African
territories stiU under foreign domination;
Reafferming that it is the duty of all African Independent States
to support depcndent peoples in Africa in their struggle for freedom
and independence ;
[Iomit some of the next paragraphs]
Having agreed unanimously to concert and co-ordinate their ef
forts and action in this field, and to this end have decided on the
following measures :
[I propose to read to the Court the second and fi.fthof those measures]
2. Invites the colonial powers to take the necessary measures for
the immediate application of the Declaration on the Granting of
Independence to Colonial Countries and Peoples; and insists that ADDRESS BY MR. DE VILLIERS
103
their determination to maintain colonies or semi-colonies in Africa
constitutes a menace to the peace of the continent;
~ . . .. . . ~ ~ . . . . ~
5. Reafferms further, that the territory of South-West Africa is
an African territory under international mandate and that any
attempt by the Republic of South Africa to annex it would be re
garded as an act of aggression; Reafferms also its determination to
render all necessary support to the second phase of the South-West
Africa case before the International Court of Justice; Reafferms
[still] further, the inalienable right of the people of South-West
Africa to self-determination and independence."
When we have regard to certain features of this resolution, the objec
tives and also the role seen for this court action become crystal clear.
We find in this last portion that the question of South West Africa
is dealt with as part and parcel of the question of decolonization, which
was considered by the Conference in all its aspects, and in respect of
which the African Independent States decided to give their support, or
rather acknowledge a duty to give their support to the struggle of the
dependent people. So, that is the context in which this question of South
West Africa is dealt with-part and parcel of the same question in the
very same resolution.
Secondly, Mr. President, we find that support to be rendered in regard
to this court action is seen as one of the measures decided upon as con
certcd and co-ordinated measures in this field.
Thirdly, Mr. President, the goal in respect of South West Africa is
stated as being the inalienable right of the people of South West Africa
to self-determination and independence. That by this is not meant the
same as the concept which the South African Governmcnt has of self
determination and, if they so wish, independence for each one of the
various peoples of South West Africa, is made very clear by several
considerations. This is a different concept of self-determination and
independence; it is a concept of handing over power to the indigenous
population in respect of the whole Territory, as we have seen from other
quotations before, but as is also dear from the context of this very reso
lution because, Mr. President, there is no reference to the peoples of
South West Africa; this is spoken of as the inalienable right of the people
of South \Vest Africa; secondly, we find that the colonial Powers are
invited to take the necessary measures for the immediate application
of the declaration on the granting of independence to colonial countries
and peoples, and this was the year 1963. :Mr.President, that declaration,
if the Court would recall, was adopted in 1960, and by 1963 rapid strides
had been made in regard to the interpretation and the manner of appli
cation of that declaration in the further developments at the United
Nations, very strongly supported and, in most instances, sponsored by
the group of African States.
May I refer the Court to the declaration itself; it has been referred
to before and is resolution 1514 of the 15th Session. I do not wish to
read any portion of it except this, in paragraph 5 of the operative por
tion, in which the General Assembly declares that-
" Immediate steps shall be taken, in Trust and Non-Self-Govern
ing Territories or ail other territories which have not yet attained
independence, to transfer a~ powers to the peoples of those terri-104 SOUTH WEST AFRICA
tories, without anv conditions or reservations, in accordance with
their free]y expressed Will and desire, without any distinction as
to race, creed or colour, in order to enable them to enjoy complete
independcncc and freedom." (C.A., 0.R., Fifteenth Sess., Sup. No.
16 (A/4684), p. 67.)
Whatever ambiguity there might be in this formulation, Mr. President,
as to what exactly this concept of indepcndence was, and self-determina
tion as applied to the people of South West Africa, is surely removed
altogether in the later phases of this matter at the United Nations;
for instance. resolution 1702, of the next Session, deals specifically with
the question of South West Africa, to which, the Court will recall, we
have referred several times before, and is the resolution on the basis
of which the Carpio Commission eventually went out to South West
Africa. I shall read only two brief portions of it: the introductory words
state that-
"The General Assembly, recalling its resolution 1514 (XV) of I4
December 1960 entitled 'Declaration on the granting of indepen
dence to colonial countries and peoples' ... [and recalling various
other resolutions]" (C.A., 0.R., 16th Sess., Suppl. No. 17 (A/5rno),
p. 39),
and then I skip the rest of the preamble, Mr. President, which we have
referred to several times, and we corne to the operative portion, para
graph 2:
"Decides to establish a United Nations Special Committee for
South \Vest Africa ... whose task will be to achieve, in consulta
tion with the 1'1andatory Power, the following objectives:"
and objective (e) reads:
"Preparations for general elections to the Legislative Asscmbly,
based on universal adult suffrage, to be held as soon as possible
under the supervision and contrai of the United Nations;" (C.A.,
O.R., 16th Sess., Sup. No. 17 (A/5100), p. 40).
So, l\Ir. President. that is where we stand, and that is the light which
is thrown on this resolution during the next year at the Addis Ababa
Conference. I may point out that this resolution 1702, of the 16th Ses
sion, was known in the committee stages as draft resolution A/C4/L7r4/
Rev. 4: it appears that this draft resolution was sponsored by no fewer
than 37 States. in which the African group played a very prominent part,
and that appears from a statement bv Mr. Diallo, of Mali, in the Fourth
Committee, 1245th Meeting, paragraph 4.
In the next year, :\fr. President, therc was resolution 1805, of the Seven
teenth Session, again specifi.cally on the question of South West Africa,
and the only factor to which I wish to refer in this resolution is that the
previous one, 1702, of the Sixteenth Session, was spccifically recalled
and reaffirmed in the gcneral tenor of the resolution-I do not think I
have to read further from that. Further concrete steps were proposcd
but this principle of demanding elcctions on the basis of universal adult
suffrage in South West Africa stood. It appears that the draft resolution
in this case was sponsored by the African-Asian group, according to a
statemcnt made by Mr. Purevjal of Mongolia, in the Fourth Committec,
1386th Meeting, paragraph r:
"l\fr.Purevjal (Mongolia), speaking as the chairman of the Afri- ADDRESS BY MR. DE VILLIERS 105
can-Asian group, submitted draft resolution ... [and the number
is quoted] on behalf of that group. The Mongolian delegation entire
ly endorsed the text, which expressed the views of the members
of the African-Asian group on the question of South West Africa ... "
And then, in paragraph 2, \Veread:
"Mr. Arteh (Somalia), chairman of the drafting committee of the
African-Asian group, introduced the draft resolution. The text
was wholeheartedly supported by every member of the group ... "
So,;\Ir. President, no doubt can remain about these objectives. This is
the situation which we find at the United Nations; this is the situation
which has led to this litigation, and that is the real motivation why
these proceedings have been brought to the Court.
?IlayI say, Mr. President, that when we speak of this campaign, in
which the group of African States is so particularly active, we do not
do so with any pleasurc at all; it is not a pleasant matter to refer to; we
do so because we have to. Despite cverything that has happened in this
campaign, the attitude of the South African Governrncnt has always
been that it secks friendship with other countries and. in particular,
with other countries on the African continent.
The attitude of our political leaders has been expressed several times,
and that that is the attitude of the South African people also would have
become clear to the Court from the evidence which has been given here
by witncsses frorn South Africa.
South Africa's attitude is not that it wants to dominate on the African
continent~that the Prime Illinister, Dr. Verwoerd, has said several
times. He does not even like the phraseology of taking a lead or a leading
rote on the African continent because. he savs, whv should South Africa
be claiming that situation for itself, it may affect the feeling of indepen
dence and the equal status of other countries on the African continent.
But there is certainly a wish and a desire to co-operate in matters of
cornrnon concern, matters of cornmon intcrest; there is certainly a feeling
that South Africa, in all humility, has a contribution to make in this
respect, and, after the Court has hcard the evidence. and observed the
personalities of men like Dr. Eiselen, Dr. Bruwer, Mr. Pcpler, and Dr.
Van Zyl, to mention only a few, it will become quite clear that South
Africa has people who should be able to make a contribution in that
respect.
On an earlier occasion, Mr. President, I spoke of large quantities of
goodwill waiting to be applied over the colour lincs under situations
where one group wm not feel itself threatened or oppressed by another.
I am quite sure, Mr. President, that from these witnesses the Court would
have found sorne indication of the existence of that goodwill, and not
onlv from them but also from the other witnesscs from South Africa
who are not in any way in the service of the Governmcnt, men like Mr.
Cillie,the Rev. ;\[r. Gcricke, Professor Krogh and Professor Rautenbach.
May I, Mr. President, read to the Court just a brief extract from an
acldress on this particular subject by the Prime Ministcr, Dr. Verwoerd,
on 16 May 1962: I am quoting from a work published in Afrikaans,
Verwoerd aan die Woord. This is a collection of addresses by Dr. Ver
woerd, made on various occasions. We have not previously cited directly
from this volume because it is \vrittcn in Afrikaans, and in referrinto
the original sources, particularly in Hansard, in Parliament, and so forth,106 SOUTH WEST AFRICA
we could find official English translations or sometimes the original text
was in English, so we quoted from those. but in this particular instance
we have not got the original source because it was an address not made
in Parliament, it was made to an export promotion convention held in
Johannesburg in l\fay 1962, this particular quotation is at page LV of
the foreword, and it is in English:
"I am quite convinccd in my own mind, that as time goes by and
present feelings subside, the services which South Africa can render
through its specia1ized knowledge of African conditions, and its
proximity to African States, will prove more attractive than all
the bad feelings which exist at present. .
For that reason I am firmly convinced that we should retain
proper self-control ... In the course of time, change must corne.
The change will corne but not through any words of ours ... It will
be the deed of progrcss here, the evcr-remaining willingness to aid
others ... our preparedness to share our know-how of the particular
conditions of Africa with African States-such factors. deeds-will
ultimately change the attitudes with which we are faced today."
That is the attitude of the South African Govemment, Mr. President,
and of the South African people. It was referred to also at the United
Nations by Mr. Jooste, Head of the South African delegation, at the
Eighteenth Session of the United Nations, at the 1236th Plenary Meeting,
during the general debate on 10 October 1963. I do not wish to quote
from H. I merely make the generaI reference to the subject, which is
dealt with there quite extensively and very ably by l\Ir. Jooste.
l\lr. President, it does not help, meanwhile, to close our eyes to reality
and if one is to have a proper appreciation of what has happened at the
United Nations in regard to these resolutions relied upon by the Appli
cants, ifone has to have a proper appreciation of the real objectives and
motivations involved in these proceedings, then one must look reality
in the face.
At this point, I wish to hand over to a younger and abler man; with
your leave, Mr. President, my learned friend, Mr. van Rooyen, will take
over the further portion of this argument. 107
27. ADDRESS BY MR. VAN ROOYEN
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 27 AND 28 OCTOBER 1965
l\lr. President, myleamed friend, Mr. de Villiers, has dealt with the
nature and the objectives of the campaign which is being waged against
the Respondent Government and now this has been made clear we can
proceed to examine the quality of the criticism which is levelled against
Respondent as a part of this campaign as well as the factual sources on
which such criticism is based. ·
As far as the quality of criticism is concemed, it will bccome evident
during our treatment of this subject that the campaign is characterized
by emotional outbursts rather. than by any attempt at any objective
assessment of the facts and that the most fantastic assertions of fact are
utilized as a basis for violentattacks upon Respondent's policies and
actions. For example, Respondent's policies are very often summarily
stigmatized as being inhuman, oppressive, aimed at the domination of
the Whites over the non-Whites; the members of Respondent's Govern
ment are referrecl to as Fascists or Nazis and there are repeated references
to supposed murders and massacres of Africans in South \Vest Africa.
We proceed to give some illustrative quotations. With the exception of
the first one, ail the examples are taken from the 1964, 19th Session of
the General Assembly.
As far as the Applicant States are concerned, first a quotation from
Mr. Yifru of Ethiopia, from the 16th Session, document A/PV.1020,
page 177, of 2 October 1961, in Plenary Sessions, paragraph 134:
"The Union Government, in violation of the mandate, bas made
South West Africain rccent years a prison cell by garrisoning armed
forces on ail the frontiers of the land sotacontinue its unhindered
massacre, imprisonment and, in short, wholesale suppression of the
innocent înhabitants of the international terri tory."
The Court wil1find similar expressions used by the same speaker also
in the Provisional Record of the 19th Session, document A/PV.1293,
page 31, on 7 December 1964. I do not propose to read that but to pass
on to illr. Grimes of Liberia.
ln the Provisional Record, 19th Session, document A/PV.1300, pages
83 and 84-85, of II December 1964, Mr. Grimes says the following:
"The abominable and iniquitous policy of apartheid practised by
the Republic of South Africa remains a cruel and stubborn problem
and a cancerous blight on the continent of Africa. African States
will not relent in their efforts to bringt the end of this repressive
system. [I skip aew words and continue] The injustice, pain, rnisery,
suffering and death inflicted on innocent Africans by a horrible
system which is indirectly supported and strengthened by the poli:
cies of some Members of this Organization are bot1nd to have serious
repercussions.''
A few examples of the typical type of statement made by other African
States follow: SOUTH WEST AFRICA
ro8
Mr. Lozes of Dahomey, in the Provisional Record of the 19th Session,
document A/PV.1290, pages 41-42, of 4 December 1964:
"At the Southern end of our continent an even more inhuman
situation prevails. Three million white racists keep ro million human
beings under the abject system of apartheid. [He went on to refer to :]
this institutionalized expression of contempt of certain men for
others ... [to:] misguided colonialists and racists [mcaning the
South African Government or people] ... to prevent the inevitable
bloody confrontations ... [to:] the murders and tortures of African
patriots that are deliberately and coldly perpetrated by the police
Government of the Republic of South Africa ... [to :] our horror at
the unspeakable things ... [and, finally, to extension by the Pretoria
Governmcnt, of] its oppressive apartheid rcgime to the Trust Terri
tory of South West Africa."
A few words out of the mouth of Mr. Odaka of Uganda, the same
session, document A/PV.1293, page Sr, of 7 December 1964 are cited:
"However, the biggest problem is posed by South Africa and its
policy of apartheid. The Draconian laws, the massacres, the trumped
up charges, the trials and sentences of innocent people are unaccept
able and arc rcminiscent of Nazi Germany. But the indifference, nay
the tacit support, of the Western Powers for so atrocious a system
is perhaps the most heinous of crimes committed against Africa
since the days of the slave trade."
l\Ir. Avaro of Gabon, same session, document A/PV.1301, pages 67-68,
of 14 Decembcr 1964 said:
"In South Africa, the apartheid policy of Dr. Verwoerd likewise
becomes more and more savage ...
So long as millions of human beings continue to be oppressed,
despised and trcated as pariahs, Africa will know no peace and the
peace of the world will remain imperilled."
He went on to describe the so-called Pretoria Government's policy as
"their insane and criminal policy".
This, Mr. President, is by no means the full 1964 list for speakers from
African territories. [ shall give references to a number of others, without
quoting them, who speak in exactlv the same vein; but first just two
brief extracts from statements by •representatives of allies of the in
dependent African States in this campaign.
Mr. Singh of lndia, same session, document A/PV.1301, pages 57-58,
of 14 December 1964 said: "The Government of South Africa is blindly
stepping from one heinous act to another"; and Mr. Romani of Malaysia,
same session, document A/PV.1306, page 43, of r8 December 1964, spoke
of the "sacred cause of ridding humanity of the shame of apartheid",
and went on to describe the policy as "this crime against humanity".
Now, Mr. President, I do not intend wearying the Court with further
examples, statements in this vein but we have also prepared a list which
I shal! hand in as list C1,containing statemcnts of a similar nature.
1 General A ssembly:
Mr. Tchicelle (Congo, Brazzaville)G.A ., O.R., 16th Session, A/P.Vro37, pp. 99,
103-104, 16October 1961 (Plenary}.
M,. Puplampu (Ghana}: G.A ., O.R.t7th Session, A/P. V. 1143, p. 345, 5 October
1962 (Plenary}. ADDRESS BY MR. VAN ROOYEN 109
THE PRESIDE~T:First hand it to Mr. Moore, the Agent for the Appli-
cants.
Is there any objection, Mr. Moore?
l\fr. Moo1Œ:Mr. President, the Applicants find no objection to that.
The PRr:smENT: Thank you, Mr. !\foore.
Mr. VAN RooYEN: Finally, Mr. President, an excellent example of
what we submit is certainly a biascd and emotional approach towards
South Africa's policies is afforded by a speech delivered by Mr. Achkar,
the representative of Guinea. during the Plenarv Session of the General
Assembly in December 1964. :\Ir. Achkar spoke· in reply to a speech by
Dr. Muller, the South African Minister of Foreign Affairs. Dr. Muller
had given an exposition of the facts, the motives and the objectives of
Respondent's policies in the same vein as that in which statcments had
been dclivered and argued before this Court. The answcr thcreto by
Mr. Achkar of Guinea is representative of the reaction of the African
States to that exposition. ln the Provisional Record of the 19th Session,
document A/PV. 1308. pages 78-82 of 21 December 1964, he said the
following:
"\Ve took note of the speech made this morning by a representa
tive [that was Dr. MuUer] who claims to be the representative of an
African country ... a speech in which the orator endeavoured to
defend from this rostrum, with the audacity which characterizes
the spokesmen of any fascist regime, a policy which has been con
demned by the entire world. lt is well-known that the General As
sembly and the Security Council of the United Nations have con
stantly requested those who govern the South African settlers to
respect the obligations incumbent upon them under the Charter,
to renounce their policy of apartheid, and to put an end to the system
of brutal repression practised against the adversaries of that abject
and humiliating policy."
And soit went on and on, with references to: "the most Machiavellian
tribalism"; to: "that hateful form of colonialism"; and to: "inhuman
measures of unprecedented gravity with a view to intensifying racial
discrimination and oppression ... "
Now, !\fr.President, the question immediately arises, on which sources
are these allegations based? Surely, one can argue, these vehement charges
Jlfr. Mazigh (Libya): P.R., 19th Ses,ion,A/P.V. 11<)(>pp. rS-20, 9 Deccmber 1964
(Plenary).
Mr. D11aleh (Somali.:i): P.R., 19th Session, A/P.V. 1290, p. 28, -1Dccember 1964
(Plenary).
Mr. Mahmoud Riad (U.A.R.): P.U., 19th Session, A/1'.V. 1298, pp. 28-30, 9 Decem
ber 196,1.
ivfr.Kamboua (Tanzania): P.R., 19th Session, A/1'.V. 1298, p. 76, 10 Dccember 1964
(Plenary).
Mr. Rudabivi (l\1alawi): P.R.,19th Session, AJP.V. 1297, p. 26, 9 December 1964.
11lr.Cha/mers (Haiti): P.R., 19th Session, A/P.V. 1304, p. 7, 16 December 1964
(Plenary).
Special Political Committee
Mr. Alemayehov (Ethiopia):r..A .. 0.R.,rth Session, A/SPC/SR. 113, p. 57,r5 Janu
ary 1957.
Mr. Thiam (Mali):C.A., O.R., 15tll Session, A/SPC/SI{. 235, p. 37, 29 ;>.tarch 196r.
Mr. Kamiwlilleke (Ceylan): G.A., O.R., 12th Session, A/SPC/SR. 56, p. 71, JI Oc
tober 1957.IIO SOUTH WEST AFRICA
of brutal oppression cannot be maintained year after year without some
factual basis. We need not seek far for an ansv.:er. The violent attacks on
Respondent's administration of South West Africa, in so far as they pur
port to have any factual basis at al!, are mere cchoes of the allegations
made by the petitioners.
It is impossible, in our submission, to understand the true nature of the
proceedings during the past roto 12 years in the United Nations organs
relative to conditions in South West Africa without fully appreciating
the role which petitioners and petitions play and have played in the
deliberations of such organs. \\Te ha\'e already shown the existence of a
campaign against South Africa as well as the objectives of the campaign.
It has been vigorously conducted in the United Nations organs and we
shall, during the course of this address, demonstrate that the mcthod by
which it has been conducted has progressively centred more and more
around the so-called evidence of the petitioners. It will appear clearly
that they are intimately connected with this campaign and have played
and still play a pivotal part in the propagation of the campaign in
United Nations bodies.
A few points must therefore be made regarding the petitioners, their
objectives, and especially the methods employed by them in striving
after these objectives; firstly, who are they? The answer is that they con
stitute a small body of men, a large percentage of them not in South
West Africa; this appeared clearly from our treatment in the Counter
Memorial, Book VIII, IV, and also from the evidence of l\fr. Dahlmann.
Secondly, what are their objectives? This was also dealt with fully in
the Counter-Memorial, IV, pages 36-46, and in Mr. Dahlmann's evidence
before this Court. lt was, with submission, clearly demonstrated that
their objective was to seize political power and achieve African rule
over the wholc of South West Africa. As regards objective there is a
clear common purpose between the petitioners, on the one hand, and
the leaders of the campaign on the part of certain States, on the other
hand, as has already been demonstrated and as will more fully appear in
the treatment as we continue. Respondent's exposition of fact in the
Counter-Memorial was not controvcrted by the Applicants and today
stands admitted. The cross-examination of Mr. Dahlmann on this
particular aspect, that is, as far as the objectives of the petitioners were
concerned, was very faint and this faint cross-examination resulted, in
our submission, only in l\lrDahlmann giving more proof in support of
his evidence.
Then thirdly, when we ask this question: what are the methods em
ployed by this group of petitioners in the propagation of this campaign,
we find that this was also dealt with in the Counter-Memorial, IV, pages
38-46, and in Mr. Dahlmann's evidence which also stands uncontroverted.
There are varions methods by which the petitioners conduct their cam
paign but the one basically relevant to our present enquiry is described
at IV, pages 45-46 of the Counter-Memorial, as follows:
"In order to influence international opinion, the leaders of the
aforesaid campaign [that is referring to the pctitioners] adopted a
system of flooding the world in general, and the United Nations
Organization in particular, with continuons allegations of suppres
sion and atrocities allegedly committed by Respondent. This was
clone mainly by the submission of written and oral petitions to the
United Nations Organization." ADDRESS BY MR. VAN ROOYEN III
Now, Mr. President, it is especially in this field, this particular method
by which the campaign is being conducted, that the common purpose
and close association between the delegations of States and the petition
ers, who are united in the carnpaign against Respondent, are strikingly
in evidence. It will appear (a) that the petitioners are invited to give
evidence as to conditions in the Territory; (b) that these petitioners are
free to say whatever they want, even the wildest possible allegations,
and that this evidence is thcn accepted unquestioningly and echoed un
reservedly; (c) that any contradiction of this so-called evidence by the
petitioners which casts doubt on the veracity of the evidence is silenced
or ignored. In short, the petitioners are expected to supply and they do
suppl y the ammunition, and the representatives of the States which take
the lead in the campaign against South Africa carry it further from there,
in order to achieve condemnation of South Africa on the basis of the
petitioners' evidence as to what the conditions in South West Africa
purportedly are. We shall proceed shortly to deal with these propositions
more closely and we shall afford conclusive proof of the truth of these
propositions, but before we proceed to this point the following question
automatically arises: what measure of rcliance can be placed on the
evidence of this small group of petitioners? The answer, Mr. President,
is singularly clear, after a due study of the Counter-Memorial, IV, pages
1-46, and Mr. Dahlmann's evidence, in the verbatim record, XI, and will
become even more impressive as we continue. No reliance can be placed
on their statements or their evidence.
Let us very briefly review the unfortunate experience of the Applicants
in this case. They started off in the Memorials, Chapter VI, I, page 167
and further, by relying on a number of extracts from petitions. At that
stage thcy relied, as they stated it: on "the cumulative effect and thrust
of the petitions, received from so wide a variety of independent sources"
(1, p. 167). At that stage they also advanced the proposition that the
extracts quotcd by them illustrated "The manner in which the daily
lives ofthe inhabitants are affected" (ibid.). Respondent dealt thoroughly
with this aspect in the Counter-Memorial, Book VIII, IV, and demon
strated that the petitions relied on by Applicants had emanated from a
relatively small group of biased professional petitioners, actuated by
ulterior motives, thus rendering the contents of their petitions highly
unreliable. Furthermore, each and every extract relied upon was fully
dealt with, the true facts were set out and the gross distortions and pure
fabrications contained in the extracts reJjed upon were exposed. The Ap
plicants did not controvcrt this demonstration in their Reply, indeed,
the Reply was totally silent on this point.
Now, of course, at the present stage the Applicants have for purposes
of this case admitted as true ail Respondent's factual allcgations in the
pleadings, unless specifically clenied, and nothing with regard to this ex
position in the Counter-Mcmorial, IV, has been denied by the Applicants.
It therefore stands admitted as truc and common cause.
It follows, ;\Ir.President, by necessary implication, that Applicants
tacitly also admit for purposes· of this case that many of the allcgations
of the petitioncrs are indefensibly false. There can be no middle ground.
Many of the allegations of the petitioners dealt with in Book VIII of the
Counter-Memorial are so diamctrically opposed to the true facts set out
by Respondent that once the truth of Rcspondent's factual exposition
is admitted, and thcrefore common cause, the unreliability of the peti
tioncrs' statements is incontrovertible. II2 SOUTH WEST AFRICA
I am not going to weary the Court with an analysis of ail the distortions
and fabrications exposed in Book VIII of the Counter-illemorial. A mere
reading of the volume from IV, pages 3-37 will suffice to make the point
obvious. I wish to mention but one example-a case where some of the
petitioncrs themselves apparently had very little faith, or very short
lived faith, in the soundness of their allegations. On pages 173-175 of
the i\Iemorials, I, Applicants quoted and relied on a statement allegedly
coming and emanating from Chief Kutako and certain others regarding
the alleged regulations applicable in Native townships such as in Katu
tura. There were numerous serious distortions, and even pure fabrica
tions, containcd in this quotation which wcre exposed and correctcd in
the Counter-Memorial, IV, from pages 23-31. Now looking at the petition,
it appeared that the petition in question had been forwarded to the Com
mittee on South West Africa bv the Reverend Michael Scott, who stated
"I am sending the statement to you direct as I am not sure whether you
have received the original". The Reverend i\Ir. Scott's letter was dated
22 July 1958. The original did arrive. It was dated 29 July 1958, that is,
it purported to have bccn written one wcek after the Reverend Michael
Scott had forwardecl the copy on which the Applicants relied. The original
dated 29 July was identical with the copy which had been sent on by the
Reverend l\lichael Scott, but only up to a point. An entirely new text
had been substituted as far as the alleged township regulations were con
cerned, differing totally from the text of the copy which had been trans
mitted by the Reverend Michael Scott, and not containing all these pure
fabrications. Now what could be the explanation, Mr. President, of this
sort of occurrence? Perhaps Chief Hosea Kutako et al. had first drafted
the petition, had then sent a copy of a first draft to the Reverend Michael
Scott, and had thereafter felt that, after ail, the portion dealing with the
regulations was demonstrably untruc on its face, and had substituted it
with a new section when posting the original-that might be one ex
planation. But therc could of course also be another explanation: this
could perhaps have bccn one of those petitions, to which Mr. Dahlmann
referred in his evidence, which was not drafted in South West Africa,
but which was drafted overseas and merely sent to South West Africa
for signature; and it might be that the authors of this petition overseas
were so sure that it would be signed as drawn up overscas that a copy was
.sent on in the meantime to the United Nations; but that when this peti
tion arrived in Soutq West Africa for signature by Chief Hosea Kutako
it was felt that these allegations about the location regulations were going
too far,and that a substitution had then taken place leading to this un
fortunate difference betwecn the copy and the original, which was dated
a week later. However, that might be, the fact is that the false version
was transmitted, and it impressed not onlv the Committee on South
West Africa; it impressed the Applicants to'a sufficient extent to make
them quote it in their Memorials and rely on it in their Memorials. This
whole matter was referred.to, if the Court wishes to read in greater detail
and refer to the documents concerned, in the Counter-Memorial, IV, on
pages 30-31.
I have already mentioned that in the Reply the Applicants remained
entirely silent asto the Rcspondent's exposure in the Counter-Memorial
ofwhat was going on in connection with the petitioners and the type of
evidence they were transmitting. In the Oral Proceedings there was one
reference to the petitioners. On 28 April 1965, IX, on page 49, the
Applicants on one occasion referred to the petitions and said: ADDRESS BY MIL VAN ROOYEN IIJ
"Numerous petitions from time to time have been submitted to
the United :Nations agencies by inhabitants of the Territory. They
illustrate the manner in which the dailv lives of the inhabitants
are affected by the systematic implementation of the apartheid
policy. Examples are set out in the Memorials, I, page 167 and
following."
Then follows this strange statement:
"The Applicants have not relied upon the accuracy of statements
in such petitions; the Applicants have cited such petitions for the
bearing they may have as confirmator_y of the reasonably predictable
consequences of the practices and policies which are undisputcd."
l\Ir. President, it is indeed extremely difficult for us to understand how,
if the accuracy of the statements is not relied upon. as said in this
quotation-in other words, on the hypothesis that they are falsc-they
could conceivably be viewed as confirmatory of anything. However, in
view of the admission of all facts in Respondcnt's plcadings as true, and
in view of the exposition in the Counted\Iemorial, and in view of
Mr. Dahlmann's evidence, I submit that it is quite clear that the Appli
cants have very good reason for asserting that they do not rely on the
accuracy of statements in the pctitions.
Mr. President, just before continuing, and revcrting to these lists to
which we shall refer from tirne to time and which we wish to hand in
merely for the purpose of typing into the record and to save the time of
tedious repetition, we have, over the adjournment, handed copies of ail
the lists to which we propose to refer, to the Applicants and also to the
Registrar, and there is no objection to this procedure being followed.
In future, therefore. I propose to refer merely to the list for purposes
of identification.
Now, Mr. President, we were dealing with the measure of rcliability
of the resolutions, or rather of the petitions, and the statements by
petitioners, before the adjournment, and we macle the point that an
exposition showing their unreliability is clearly to be deduced from
Book VIII of the Counter-Memorial. If any further demonstration and
confirmation is nccessary, Mr. President, I need refer only to the evidence
of Mr. Dahlmann and specifically to one passage in the verbatim record
of 8 October at XI, page 480, where Mr. Dahlmann said the following:
"Tous in South West Africa, it is sometimes very hard to under
stand these petitions. Many of them. whethcr they corne from within
South West Africa or from abroad, contain false statements and
serions distortions and exaggerations of the real situation. Only to
name a few which are made very often, for example, that there is
a large scale of militarization in South West Africa, there is a
missile tracking station, that the non-Whitcs within the territory
live in conditions of slavcry, that genocide is committed against
the non-Whites. that they are being exterminated or murdered, that
they have no schools, no hospitals."
It should be observed, Mr. President, that the Applicants did not
even attempt to attack thîs evidence in cross-examination. The Agent
for the Applicants merely asked Mr. Dahlmann whether he sought to
have the Court infer that petitioners were deliberately telling untruths, to
which Mr. Dahlrnann rep\ied at XC,pages 568-569, in the verbatim record·II4 SOUTH WEST AFRICA
"Mr. President, it is difficult to sav which motive is behind this.
I can only compare the petiticin and the true facts. That is the
only thing I can say. \Vhat their motives are and whether they
do this deliberately, or as professionals, I think this is too persona!
a view."
Mr. President, it was perhaps Mr. Dahlmann's sense of propriety as
a witness which made him desist from expressing a view in this matter,
for, if regard is had to the nature of the statemcnts made by the peti
tioners, such as that genocide is being committed, that the Natives have
been robbed of their land, that they live in the most infertile parts of
the country, that there is a large scale of militarization, etc., it seems
hardly possible that the petitioners could have been innocently mistaken.
Now this, l\1r.President, then brings us to the next question, and
that is: Now that it has been established that no reliance can be placed
on the evidence of the petitioners, what reliance was placed on their
evidence before the United Nations because, Mr. President, after all,
this is the crux of this enquiry. The whole purpose of this treatment is
that we intend to show to the Court that the factual basis on which
condemnation of South Africa's policies in the Territory has been based,
is one of erroneous fact and untrue assumptions, and that therefore the
resolutions which were based on such assumptions and on such evidence
cannot be relied on for any purpose whatsoever, and also cannot be
relied on as establishing a normand/or standards of the nature contended
for by the Applicants in this case.
So this then brings us to the crux: \Vhat reliance was placed on the
untrue evidence of the petitioners in the United Nations? And we shall
fi.nd,Mr. President, during our treatment of this matter, that the greatest
importance was attached to the allegations of the petitioners before United
Nations organs, that even the most fanciful allegations were unques
tioningly echoed as establishing true fact, and also that the heavy
reliance which was placed on their evidence played an extremely im
portant rote in the nature of the resolutions which were adopted by the
various committees of the United Nations and also by the General
Assembly itself.
So much reliance was placed in the United Nations on this evidence
by petitioners that there is a striking similarity betwecn the ideas
expressed, and the manner of expressing them in the debates on South
West Africain the various organs of the United Nations, that is, on the
one band, between the views as expressed by the petitioners and. on
the other band, the views expressed by the delegates within these United
Nations organs. lndeed, in many respects, the representatives of the
leaders of the campaign at the United Nations and the petitioners from
South West Africa speak as with one voice. This, Mr. President, is. in
our submission, not surprising, in view of the common purpose to which
we have referred earlier.
Now, what we propose to do now is to examine how this common
purpose fonctions in practice. We shall deal with this aspect by shov.:ing
how certain fantastic statements readily occur in the evidcnce of the
petitioners, and how they are accepted and echoed and acted upon in
the United Nations organs, paving the way for acceptance of a resolution
condemning Respondent's administration of the Territory. It is, of
course, Mr. President, impossible to give a full picturc. That would take
days and days. In the emotional and biased setting of the campaign ADDRESS BY MR. VA~ ROOYEN
against Respondent with which both the petitioners and certain delega
tions at the United Nations are associated, the attacks on Respondent
and its policies bristle with factual inaccuracies, with distortions and
with baseless accusations. \Ve propose to deal shortly only with a few
categories of charges which regularly dominate the discussions. We intend,
first, to cite a few short statements of the petitioners as regards each
category, and then to show how these have been repeated and echoed
in the debates in the United Nations organs.
The first category relates to those attacks which characterize Respon
dent's policies as being a policy of genocide or equal to genocide.
We find these allegations occurring with monotonous regularity
throughout the attacks on Respondent. Respondent's policies are charac
terized as racial extermination, as having the objective of the physical
destruction of a nation, and that it is in fact plainly and simply a policy
of genocide. Thcse allegations. Mr. President, are so preposterous that
they require really no refutation, especially in the light of the indisput
able facts which appear from the voluminous pleadings handed down to
this Court by Respondent and the uncontroverted evidence which has
been delivered bcfore this Court.
Now, I propose first to give some random examples of statements by
the petitioners. First, Mr. Ngavirue of SWANU, quoted, and I might
state parenthetically, quoted apparently with approval, in the report of
the Committee on South West Africa to the r6th Session of the General
Assembly in 1961-i.e., 16th Session, Supplement 12A, document A/4926
at page Iï, paragraph 120:
":\Ir. Ngavirue stated that while it was obvious that there was
a great need for welfare services, one could not expect philanthropy
from the ruthless South African Government which was bent on
the task of doing anything possible that would directly or indirectly
exterminate the indigenous population. Hence, there was absolutely
nothing done to prornote the general welfare of the indigenous
population .. .''
Then, we have Mr. Kozonguizi, who should by this time be well known
to the Court. He is the President of SWANU and is living at present in
London. In a verbatim statement before the Fourth Committee of the
United Nations. the 904th-906th Meetings, 14th Session, 1960 at page 19,
he said-
"When South West Africa will have reached a stage where tech
nical means of production replaces human labour, the present trend
indicates that the deliberate annihilation of the entire African pop
ulation will not be out of consideration." (Verbatim statement as
circulated.)
:\frKerina, who was at that time the President of the Ovamboland
Peoples' Organization, in October 1959, before the 4th Cornmittee, the
909th :Meeting of the 14th Session said:
"... Artificial conditions were created-with the drought as pretext
-in order to put hundreds of thousands of human beings at the
mercy of the Govemment and to wipe out a race ... ".
And the same author, Mr. Kerina, at the 1051st Meeting of the Fourth
Committee, 15th Session, 1960, page 5, said this:
"The South African Government has committed repeated crimesrr6 SOUTH WEST AFRICA
against our people and humanity. There is no defence for their
actions in our country. They claim Christianity and civilization,
yet they have killed and are continuing with their systematic cam
paign of extermination of our people." (Verbatim statement as
circulated.)
And finally, Mr. Mbaeva, of SWANU also, in a verbatim statement
before the ColoniaJi5m Committee-i.e., the Committee of Twentv-four
at the 255th l\Ieeting, on 8 May 1964, whilst referring to the Odendaal
Commission report, stated:
"The Commission was appointed to devise means through which
a large number of Africans or non-Whites should be extcrminated
through starvation under the guise of bcing developed .... Unless
the United Nations takes immediate action to prevent Verwoerd and
his gang from carrying out their programme for racial genocide,
there will be a serious danger that may be beyoynd the control of
this Organization." (A/AC/ro9/P.V. 255, pp. 26, 27.)
I think, Mr. President, that that is enough to illustrate the type of
refrain of the allegation of genocide running through the allegations of
the petitioners. Now, how is this reacted to within the organs of the
United Nations?
First may I give a quotation from a representative of the Applicant
States, Mr. Dasumu Johnson of Liberia, in General Assembly, Official
Records, 18th Session, document A/SPC/SR 385, pages 40 and 41, which
was in answer to a refutation by Mr. Jooste, the Chief Dclegate of South
Africa, on that occasion as far as the factual position was concerned.
Mr. Dasumu Johnson had this to say:
"However. it would be a mistake to be lulled by l\Ir.Jooste's
sweet words, which perhaps represented a stratagem designed to
gain time to ensure the complete annihilation of the Africans in
that explosive area."
Turning to the Gcneral Assembly, Mr. Yifru of Ethiopia, in Provisional
Records, 19th Session, A/P.V. 1293, at page 3r, of 7 December 1964,
said this:
"Yet. oblivious toits obligations under the Charter, the numerous
decisions of the United Nations urging it ·to abolish apartheid, and
the condemnation of most of the rest of the world, the South African
Government cold-bloodedly pursues its policy which, in truth, is tanta
mount to racial extermination.''
The following are a few examples of statements from other African
States before the Special Political Committce: l\frBaghdelleh of Tangan
yika, now Tanzania, 17th Session, Document A/SPC/SR 328, IO October
1962, paragraph 2, said-
"The Government of Tanganyika catcgorically rejected the policy
of apartheid and was ready to support any draft resolution designed
to expell South Afriea from the Organization if it persisted in its
policy of genocide." (ltalics added.)
And Mr. Sahnoun of Algeria, 17th Session, Document A/SPC/SR 339,
30 October 1962, page 69, stated-
"29. The South African Govemment, blind to everything save
racism and fascism, was now preparing for a war of extermination by ADDRESS BY MR. VAN ROOYEN n7
building up its armaments with the aid of other countries
(Italics added.)
Mr. Bocoum of Mali, before the General Assembly, Document A/P.V.
1025, 4 October 1961, page 240, said-
"i\Ir. Verwoerd's ;\fachiavellianism is now quite unambiguous:
genocide has been offi.cially announced as the programme of the
South African National Party."
And then just to make it absolutely clear, I add a quotation from some
of the Allies in the carnpaign, )Ir. Pciris of Ceylon, Document A/C. 4/SR
1231, 30 November 1961, page 473, stated the following:
"20. There was also a genuine policy of genocide, because South
Africa had imposed conditions of life calculated to bring about the
physical destruction of a nation. The intention behind South Africa's
graduai destruction of the indigcnous peoplcs was to inherit their
land ... "
Mr. President, I feel that I have mentioned enough quotations. In
this respect many more are to be found, I would refer to the list marked
"D" i_
That brings us. Mr. President, to the next catcgory and that is that
accusations are often made by the pctitioners that Respondent herds
the non-White population into concentration camps, that the non-Whites
are treated like animais, that they have been reduced to a sub-human
status and that conditions of naked terror exist. A few random examples
of this type are given in the following excerpts: Mr. Kozonguizi, in his
oral statement to the Committee on South West Africa, 1 :Ilay 1959,
quoted in the Committee's report to the General Assembly, 14th Session,
Supplement No. 12, Document A/4191, page 41, saie!:
"The South African Government has transformed our country
into a huge concentration camp and our people into slaves, in the
name of its exclusive policy of white supremacy."
Mr. Kerina in the Verbatim Text of the 571st Meeting, Fourth Com
mittee 1956, page II, said:
"The method has been and is, up to the present time, that of
taking away African land and means of livelihood. denying them
a voice in the government, preventing their social and cultural
development, and applying brute force. Africans, except those work-
1Fourth Committee:
Mr. Gren (U .S.S.R.): G.A ., O.R., 17 Sess., A/C. 4/SR. 1378, pp. 317-318, 9 Xovember
1962.
Special Poiitical Commitlee:
Mr. K,ua;;hmko (Ukrainian Soviet Sociali,t Republic): G.A ., 0.R., 12th Sess.,
A/SPC/SR 54, p. 60, 29 October 1957.
Mr. ]{izya (Ukranian Soviet Socialist Republic): G.A., O.R., 11th Sess.,A/SPC/SR
13,p. 58, 15 January 1957.
Mr. Mendo::a (Guatemala): G.A ., O.R .. 17th Sess. AJSPC/SR 333,p. 33, 18 October
1962.
Mr. Shaka (Nepal): G.A., O.R., 17th Sess., A/SPC/SR 336. pp. 50-51, October 1962.
Mr. Shukairy (Saurli Arabia): G.A .. O.R., 17th Sess., A/SPC/SR338, p. 60,2•)Octo
ber 1962.
.ilfr. Naco (Albania):G.A., O.R., 18th Sess., A/SPC/SR (Provisional) 394, p. 12,
30 October 1963.II8 SOUTH WEST AFRICA
ing for Europeans, are herded into concentration camps known in
South African terminology as 'native reserves'."
Mr. President, I do not wish to weary the Court with more quotations,
I would refer to the list marked "E" 1,which contains references to
numerous other allegations in the same vein.
Now once again, let me turn, Mr. President, to how this type of
statement is accepted or portrayed within the United Nations by the
delegations speaking there. Before the Fourth Committee, Mr. Gassou
of Togo, during the 15th Session, 6 December 1960, A/C.4/SR. 1076,
page 457, said-
"4r. For fourteen years, while the representatives of the Union
Government in the United Nations had engaged in their well-known
manoeuvres, people in South West Africa had been dying of hunger
or had been murdered in concentration camps. Oppression became
heavier from year to year and measures such as, different educa
tional systems for Whites and for non-Whites, with the abject of
destroying the African intellect, were being introduced." (ltalics
added.)
Mr. President, I have quoted one example, there are many that are
typical of that and references are to be found in the list marked "F" 2
Not only are these statements, of course, reflected, Mr. President, in
the speeches and statements of delegates, they are also reflected in the
reports of the Committee on South West Africa to the General Assembly.
For an example, I make reference to the following extract from the 1961
report concerning the Implementation of General Assembly resolutions
1568 (XV) and 1596 (XV), Document A/4926, page 14. After referring
to the testimony by the petitioners, this report continues:
"102. From such testimony, it is obvious that. under the opera
tions of apartheid, the Native African is a social outcast and a
prisoner in his own country, denied ail basic human rights and
1Fourth Committee:
1l1r. Nujoma: 1052nd Meeting, 15th G.A., 1960, pp. 3, 5, and 6; 1217th Meeting,
16th G.A., 20 Xovember 1961, p. 379, para. 53; 1388th Meeting, 17th G.A.,
16 Xovember 1962.
Rev. 1ll. Kooper: 1050th Meeting, 15th G.A., 14 Xovember 1960, pp. 13 and 303.
Mr. Jacob Kuhangua: 1052nd Meeting, 15th G.A., pp. 1 and 4; 16th Session, 1219th
Meeting, Fourth Committee, 21 Xovember 1961, p. 390, para. 16.
2Fourth Commillee:
11/r. Purevjal (Mongolia): G.A ., O.R., 17th Sess., A/C. 4/SR 1379, p. 326, 12 November
1962.
Specia! Polilical Commiltee:
1'1r. Udovichenko (Ukrainian Soviet SocialistRepublic): G.A., O.R., 15th Sess.,
A/SPC/SR 241, p. 69, 4 April 1961.
Mr. Perera (Ceylon): G.A., O.R., 16th Sess., A/SPC/SR271, p. 58, 27 October 1961.
ilfr.Kozachenko (Ukrainian Soviet Socialist Republic): G.A., 0.R., 12th Sess.,
AJSPC/SR 54, p.60, 29 October 1957.
Mr. Aldunale (Chile): G.A ., O.R., 13th Sess., A/SPCJSR SS, p. 16, 14 October 1958.
Mr. Hasegana11 (Roumanîa): G.A ., O.R., 16th Sess., A/SPC/SR 274, p. 71, 31 Octo
ber 1961.
Mr. ]uarbe T. Juarbe (Cuba): G.A ., O.R., 17th Sess., A/SPC/SR 337, p. 56, 26 Octo
ber 1962.
Mr. Aru (Bolivia):G.A., 0.R., 18th Sess., A/SPC/SR 383, p. 29, 14 October 1963.
111r. Djerdja (Jugoslavia):GA., O.R., 18th Sess., A/SPC/SR 383, p. 33, 14 October
1963. ADDRESS BY MR. VAN ROOYEN II9'
fundamental freedoms. As a human being, he is deemed and treated
as an inferior, whose only purpose and role in life is to serve the
\Vhite man. Thus he leads a bare, spare life with no inccntive or
sense of purpose."
I turn to the next category, l\fr. President; it is also an accusation
which is levclled with monotonous regularity against Respondent, and.
that is that Respondent's policies are rooted in racial hatred and ani
mosity and in a doctrine of White superiority and African inforiority.
A similar charge was made by the Applicants in this case; but of course,
after Respondent had shown in its pleadings that such accusations were
devoid of substance (in this respect I refer especially to the Counter
Memorial, Il, pp. 470-471, and the Rejoinder, V, pp. 409-412), this
charge bas now in effect been abandoned by the Applicants as part and
parcel of their abandonment of the charges of oppression, and of their
acceptance of the facts as presented by Respondent. Nevertheless,
accusations of this nature run like a refrain through the att.acks on the
Respondent at the United Nations. Once more, these wholly erroneous
views of Respondent's policies appear to be based on "information"-on
"evidence"-supplied by petit:ioners, as will appear from a reference to
their statements, of which only one typical cxample necd be quoted.
I quote the statement of the Reverend Michael Scott, who has probably
been the most frequent petitioner of all, dating back for many years,
although hc was present in the territory of South West Africa only for
a few weeks during the year 1946. Before the Comrnittee on South West
Africa, 5th Session, 94th Meeting, Document A/AC. 73/SR. 94, 17 Sep
tember 1958 (p. 4), he states this:
"Much of the havoc which had been wrought in the Territory
could be attributed to religious and political bigotry. A large part
of the problem derived from the fact that white people had been
taughtthat they had beenplacedtherebyGadtarule overeveryoneelse."
(Italics added.)
And he also mentioned {pp. 4-5) that the "whole State structure and
system of legislation [was] based on the assumption that one race was.
superior to another". Ultimately he also said (p. 5):
"It was a question of a tradition and philosophy in which the
white population had been indoctrinated by preachers and politicians.
alike until they had corne firmly to believc in the concept of superior
and inferior races. The legislation which was designed to keep a
whole people servile was based on that philosophy."
There are many more quotations which quite clearly and plainly level 1
this accusation; a few of them can be found in the list marked "G" .
Now, how are these accusations taken up and portrayed or judged in
the debates bcfore the United Nations? Just a few quotations, first on
the part of the Applicant States. Before the Special Political Committee,
!llr. Petros of Ethiopia, Document A/SPC/SR. 88, page 15, of 14 October
1958, said-
1
CommWee for South West Africa:
Mr. Garoeb: nth Meeting, A/AC. 110/SR 11, 30 July 1962.
Fourth Commitlee:
Rev. 1l!arkus Kooper: 1372nd ;\leetin17th G.A., 5 :-So,·emb~r 1962
Mr. Kozo1tgi1izi: 904-906tl\Ieetings14th G.A., 1959.120 SOUTH WEST AFRICA
Ethiopia condcmned not only the incidents which had taken
place but above all the theory of white supremacy upon which the
policy of discrimination was founded". (Italics added.)
Then Mr. Eames of Liberia, 16th Session, A/SPC/SR. 272, page 6r,
30 October 1961 statcd-
"5. What exactly was 'apartheid'? A doctrine of racial superiority,
which held that the Africans were mentally inferior to the whites."
And so, Mr. President, it goes on and on and further exampies wilI be
in the list marked "H" 1
found .
Then, Mr. President, coming to the next category, that is a charge that
is often levelled and is also reflected in the reports of the Committee on
South West Africa, that Respondent is depriving the non-White popula
tion in South Africa and in South West Africa of "the richest part of the
Territory" and confining them to "desert-like" or "unhealthy" areas
to make way for European settlers. The respective areas set apart for
White and non-White occupation are very often totally misreprcsented.
In parentheses, we can point out that identical charges wcre also made by
Applicants in their written pleadings. For examplc, in the Memorials, I,
page rr8, the Applicants alleged that-
"(i) The Mandatory has progressively reduced the proportion of
farm land available for cultivation or pastoral use by the 'Native'
population ... "
And in the Reply, IV, page 464, Applicants stated that-"thc'non
White' inhabitants are confined to the poorest areas of the Terri tory .. ."'
It is hardly nece;;sary, !\Ir.President, to remind the Court that these
charges have been abandoned by the Applicants, and the untenability
of such charges, and the falsity of the allegations contained in the ex
tracts which we shall cite, are demonstrated by a reference to the true
facts as set out in Respondent's pleadings. I wish to refer to the Re
joinder, VI, pages 255-266, and references to the Counter-Memorial given
1Special Politîcal Commillee:
Mr. Pelros (Ethiopia): G.A ., 0.R .. 14th Sess., p. 76.
Mr. Gabre Se!la$sie (Ethiopia\: G.A ., O.R., 16th Sess., pp.lr 7-119.
Mr. Collet (Guinea): G.A ., O.R., 16th Sess., A/SPCJSR. 274, p. 74, 31 October 1961.
Mr. Daddah (Mauritania): G.A .,O.K. 18th Sess., A/SPC/SR. 388, p. 60,21 October
1963.
Alr. Sharif (Indonesia):G.A ., 0.R., 11th Sess., A/SPC/SR. 13, p. 56, 15 January 19.57.
Mr. Allouni (Syria): G.A., O.R., nth Se~s., A/SPCJSR. 14, p. 61, 16 January 1957.
/l!r. Sheldov (Byeloru,sian S.S. R.):G.A ., O.R., r1th Sess. AJSl'C/SR. 14, p. 63,
16 January 1957.
Mr. O'Brien (!reland): G.A ., O.R., 12th Sess., A/SPC/SR. 54, p. 57. 29 October 1957.
Mr. Gashka (lJ.S.S.R..): G.A ., 0.R., 13th Sess., A/SPC/SR. S9. pp. 20-21, 15 October
1958.
Mr.Ge-Farra (Jordan): G.A., 0.R., 15th Sess .. A/SPCJSR. 229, p. 13. 23 March 1961.
Mr. Shahi (Pakistan): G.A ., 0.R., 15th Se~s., A/SPCJSR. 239, p. 58. 3 April 1961.
Mr. Benites Vineuza (Ecuador): G.A ., O.R., 15th Sess., A/SPC/SR. 238, p. 53,
3 April 1961.
Mr. Townsend (Peru): G.A ., O.R., 16th Sess., A/SPC/SR. :!75, p. 82, 1 Xovember
1961.
Mr. Laummg (Denmark): G.A ., O.R., 17th Sess., A/SPC/SR. 336, p. 49, 25 October
1961.
Mr. Pudlah (Czechoslovakia): G.A .•O.R., 18th Sess., A/SPC/SR. 390, p. 69. 23 Octo
ber r963. ADDRESS BY MR. VAN ROOYEN I2I
there, and also to the evidence of Profcssor Logan in the verbatim
record of 8 July, X, on pages 367-368.
I give firstjust one or two examples of the misrepresentations from
the mouth of the petitioners. First, Mr. Kozonguizi, before the Fourth
Committee, the 1053rd Meeting on 16 November 1960 (p. 317), says:
"... the reservations in which the African population lived were in
the most infertile part of the Territory, for example in the Kalahari
Desert. If any good water were found in a reservation, the area was
handed over to European farmers and the Africans were forced to
move away."
Mr. Nujoma stated before the Fourth Committee, the 1371st Meeting on
2November 1962 (p. 275)-
"The Government also intended to eliminate all Native reserves
in the Police Zone in order to enable new settlers to corne to the
country."
And before the 1374th :Meeting on 6 November rg6z (p. 292) he said:
"Under the Bantustan system the Africans had already been
forced to leave their homes for a desert arca without sufficient water
or pasturagc for their cattle."
The Reverend Markus Koopcr {the Court will recollect that, according
to Mr. Dahlmann's evidence, he appeared on behalf of SWAUNIO which,
according to l\fr. Dahlmann, was practically non-existent in the Territory
and had no real support) stated before the Fourth Committee at the very
same meeting as the one just mentioned (p. 291)-
"It was therefore clcar that, when Africans occupied good land,
the Government tried to drive them out and replace them by
Europcans."
This type of allcgation was also taken up and portrayed by the Commit
tee on South West Africa; I take but two examples: the Report of the
Committeeon South West Africa for r959, Supplement No. 12, Document
A/4191, at page 21, paragraph 144 reads-
"The Committee recalls that the Territory has been divided by
the Union Government roughly into two sections. The southern
section, which is the richer and bettcr developed portion, has been
named the Police Zone. The northern section is the poorer and less
desirable portion, whcre the 'Natives' are bcing relegated to 'Native'
reserves. It is apparently the policy of the Administration gradually
to remove the 'Native' rcscrves still remaining in the Police Zone
to other sections of the Tcrritory so as to make room for expansion
of 'Europcan' settlemcnts in that zone."
And in the 1961 Report of theCommitteeonSouth West Africa Concerning
the Implemcntation of General Assemblv Rcsolutions 1568 (XV) and
1596 (XV), in Supplement No. r2A, Document A/4926, page 14, para
graph ro3, the Committee states as follows:
"The general economic and social situation in the Mandated
Territory ma.y perhaps be pictured by quoting Mr. Ngavjrue as
follows: [itwill be rcmembered that I have referred previously to
Mr. Ngavirue's allegations of genocidc and extermination whilst
speakirig on behalf of S.W.A.N.U.]
'.• , If you look at the map of South West Africa today you will::r22 SOUTH \VEST AFRICA
realize that about 75 per cent. (93 million acres) of the land has
been eut up into White people's farms. These White people are
South African nationals brought for the sole purpose of displacing
the Africans. The Africans have been crowded into small pieces
of land called "Native Reserves". These cover only IO percent.
(about 25 million acres) of the total land, half of which is desert
area. In fact, the reserves were not meant to be of any economic
value to the Africans but to be labour reservoirs from which cheap
labour could be drawn for distribution on the farms and mines of
the so-called mastcr race.'"
That, Mr. President, then, is the opinion of the Committee on South
West Africa.
There are many more examples of delcgates speaking in the same vein;
I do not feel that it is necessary to refer to them; I could just mention
·that Mr. Diallo of Mali, for example, in the 4th Committee, Report
A/C4/SR. 1385, 15 Novcmber H)62, page 373, said that "the indigenous
population were herded into reserves consisting of the least fertile land",
and so it goes on and on, and there are certain further examples of this
type of allegation referred to in list I 1.
The next category of regular allegations and regular attacks are in the
·_fieldof education: it is regularly alleged that the object of the Bantu
,education system was to ensure that the education &iven to the non-
White population should be inferior to that of the White groups, and to
prepare the non-White groups for an inferior position in life. It is regu
larly said that there is no form of free public education on the elementary
level, or any institution for higher Jearning in the Territory, and that
:Native children are taught only a few rudimentary subjects. The com
plete untruthfulness of these allegations appears clearly from the ad
mitted information contained in Book VII of the Counter-Memorial.
and from the evidence of Dr. Eiselen and Dr. Van Zyl before this Court
I refer to the verbatim records, X, pages n4-122, and XI, pages 252-268.
Here are examples of these allegations by the petitioners. Mr. Getzen
(at that stage, of course, known as Getzen, now known as Mr. Mburumba
Kerina) in 1956-that was on the first occasion of his oral petitioning,
during the nth Session, in the Fourth Comrnittee at its 571st Meeting
-said:
"A new factor which would adversely affect education in South
West Africa was the Bantu Education Act, which had been passed
by the South African Parliament in 1953. That Act ... in general
provided that the education given to Africans should be inferior to
that of Europeans. The subjects were few and inadequately taught,
limited to religious instruction, rudimentary arithmetic, and reading
in Afrikaans. Such education was not calculated to bring a nation
to a high level of advancement. In the North very little was done
at all."
1 Special Polilica/ Commitlee:
.Mr. Shahi (Pakistan): G.A ., O.R., 15th Sess., A/SPC/SR. 239, p. 58, 3 April 196r .
.Mr. Sobolev (U.S.S.R.)G.A ., 0.N.., 15th Sess., A/SPC/SH240, p. 64, 4 April 196r.
Mr. Kizia (Ukrainian S.S.R.): G.A ., O.R., 17th Sess., A/SPC/S331, p. 24, 16 Octo-
ber 1962.
. ,. Verret (Haïti)G.A., O.R., 17th Sess., A/SPC/SR. 337, p. 57. 26 October 1962.
..l.fr. Naco (~lbania)P.R., 18th Sess., A/SPC/SR. 394, p. r1,30 October 1963. ADDRESS BY MR. VAN ROOYEN 123
Mr. Nujoma, who should also be well known to the Court by this time,
the President of SWAPO, before the Fourth Committee, at the 1371st
Meeting, during the 17th Session of the United Nations, said:
"In education, South Africa had introduced into South West
Africa the backward and primitive system known as Bantu Educa
tion. African children were taught that they were inferior to white
people ... "
In a written petition sent to the United Nations by Chief Kutako,
Chief Witbooi and SWAPO it was alleged:
"The object of Bantu Education is (a) to indoctrinate African
children from childhood that Afdcans are inferior to Europeans,
(b) that that in/eriority is a God created status which no man has the
right to change."
That was in a whole book of petitions which had been issued in 1961,
Document A/AC.73/4 (1961), page 34. And soit goes on and on.
Turning once more to their acceptance in the United Nations, we find
that these charges are not only accepted, they are echoed in remarkably
similar wording. It suffices to quote only one or two examples of the many
that are on record. Mr. Carpio of the Philippines in the Fourth Com
mittee, 1n5th Meeting, page 94, said:
"In the educational field, the system of 'Bantu Education' was
designed to enclose the indigenous inhabitants in their tribal cul
ture, immurn~ from outside influences, and to prepare them to pro
vide cheap labour for the whites. Consequently, the future facing
the indigenous inhabitants was a lifetime of virtual slavery."
Mr. Sato of the Central African Republic, also in the Fourth Committee,
1387th Meeting, page 389, said:
"The retrograde system of Bantu education kept them [that is,
the indigenous inhabitants of the Territory] in astate of ignorance,
poverty and perpetual servitude."
These allegations in the educational field have also influenced the
reports of the Comrnittee on South West Africa, and by way of illustra
tion I refer to only one summary in the Committee's 1961 Report con
cerning the Implementation of General Assembly resolutions 1568 (XV)
and 1596 (XV), the document to which I have already referrcd, A/4926,
paragraph rzr. It states:
"According to the evidence of those who appeared before the
Committee, the basic policy of the South African Government in the
educational field is to restrict Natives to a rudimentary system of
schooling and training designed to confine them tomenial occupa
tions in orderto keep thern in a state of subservience to the \il/bite
minority. The policy is also to deny them access to higher education,
thus keeping them from professional activities, from participation
in the fruits of their native resources, and from contact with en
lightened ideas which would cause them to aspire to better ways
of lifethan their present unbearable conditions. Bad as the past
system was, the system of Bantu education which entered into force
in 1961 is worse."
The first sentence of paragraph 123 of the same report reads
"Bantu education was described by 1\fr. Ngavirue as a system SOUTH WEST AFRICA
aimed at teaching the Africans from childhood that they were in
ferior to the Whites and that the good things in life were meant for
Whites only."
That is the opinion of the Committee on South West Africa as based on
the evidence of these petitioners.
It will be remembered that in 196! the Committee on South West
Africa left on a so-called fact-fmding mission to hear evidence from
petitioners in varions parts of Africa, and it was during that mission
when petitioners such as Mr. Kerina, Mr. Kozonguizi, Mr. Nujoma.
Mr. Kuhangua and various other representatives of SWAPO and
SWANU gave evidence, that ail these conclusions were arrived at.
I corne, Mr. President, to the last field. As I said, we cannot deal with
everything-1 am just taking a few broad categories by way of example,
and the last field in which we wish to illustrate the untruths emanating
from the petitioners and the effcct thereof in United Nations organs is
that of militarization.
Now, although some of this material would be specifically relevant on
the charges made by Applicants under Submission 6, relative to militari
zation, that is not the context in which we deal with it here. We are here
concerned with the nature of the charges by which it was sought to con
demn Respondcnt's policies and actions in the United Nations in the very
resolutions on which Applicants now rely in substantiation of their allcged
norms and/or standards.
At the present stage ,ve are particularly concerned with the reckless
ness with which the charges were made and, indeed, still are being made
today, and with the acceptancc accorded to these charges at the United
Nations.
Now, in order properly to evaluate the allegations of the petitioncrs in
this field, let us.r. President, first consider the true facts. These can be
stated shortly and simply, especially in view of the Applicants' admis
sion ofthe truth of ail the facts under this head in Respondent's pleadings.
In 1959 a full explanation of the facts, showing an absence of militari
zation, was given to the Fourth Committee of the United Nations by
Respondent's reprcsentative. A reference to this will be found in the
Counter-:11-Iemorial,IV, page 60. I propose to continue (because it is ad
mitted fact at this stage) with further facts now common cause on the
same page of the Counter-Memorial, that is, IV, page 60:
" ... M. Carpio and Dr. Martinez de Alva, respectively Chairman
and Vice-Chairman of the Special Committce for South West Africa,
visited the Terri tory during 1962. They were given full opportunities
of investigation.and were specifically rcquested to investigate allega
tions of rnilitarization in the Territorv. Their visit in fact includcd,
inter alia, Windhoek, the Kaokoveld: Ovamboland and (in the case
of Dr. Martincz de Alva) the Caprivi Zipfel-in other words, ail the
places mentioned by the App!icants in their allegations regarding
militarization, except Swakopmund. At the end of their visit, in a
Statement issued by Respondent's Prime Minister and Minister of
Foreign A.flairsand the Chairman and Vice-Chairman of the Special
Committee, it was stated that:
'... in the places visitcd they had found no evidence and heard
no allegations ... that there were signs of militarization in the
territory'." ADDRESS BY MR. VAN ROOYEN 125
Further reference to this aspect is to be found in the Counter-Memorial,
II, at pages 3-4, and in the Rejoinder, V, at pages 5-12.
I rrùght just note, i\lr. President, that despite a long history of con
troversy as far as these facts are concerned, Applicants now, for the
purposes of this case, adrrùt the truth of this rendcring by Respondent
which I have just read.
Furthermorc, as far as militarization was concerned, the full facts were
set out in the Countcr-Memorial, IV, from pages 54-61, and amplified
and reiterated in the Rejoinder. Ali these facts are now admitted by the
Applicants as truth. In this connection, we refer the Court to the ver
batim of 27 April, IX, page 21, and, referring specifically to militari
zation, the Respondent's factual exposition is admittcd in the verbatim
of 12 May, at IX, page 235.
Now, during the hearing of witncsses, the Court had the benefi.t of
hearing Gencral Marshall testify that he did not see anything in South
West Africa that he could regard as a military base and that the Terri tory
is lessmilitarized and more under-armed than any terri tory of üs size he
had ever secn in the world. That will be found in the verbatim, of 14 Oc
tober, XI, at page 587.
So, Mr. President, these are the facts. This, now, is the truth. Let us
contrast it with the allegations made by the pctitioners and the echo of
these allegations in the United Nations.
I can summarize it in a few words. Year aftcr year, the petitioners
testify that the military build-up in the Territory is increasing. that
troops are swarming throughout the Territory, that a number of military
bases have bccn established. I mention but a few random examplcs.
In 1960 Mr. Sam Nujoma testified that there were three South African
bases in the Territory of South West Africa. That was before the Com
mittee on South West Africa, 7th Session, 1960, [32nd Meeting (A./AC
73/SR.132}, page 7,
Before the Fourth Committee the following was noted-that is, in 1960,
the 1054th l\leeting on 16 Novcmbcr 1960, paragraph II:
"Mr. Alwan (Iraq) noted that, according to Mr. Fortune, the
South African Government had set up military bases at Windhoek
in the Caprivi Strip near Okavango and in Ovamboland, and an
emergency landing strip near Swakopmund. He asked what was
the exact number and the purpose of those bases."
Mr. Fortune. who was at that time describcd as the Secretary-General
of SWAPO, replied that "therc were fi.vebases. They had been estab
lished in flagrant contradiction with the provisions of article 4 of the
Mandate."
In 1961 Mr. Ngavirue was quotcd by the Committee on South West
Africa as illustrating the general picture in the Territory. ?,ilr.Ngavirue
stated this:
"Military bases have been planted in the Mandated Territory,
one in Ohopoho in the Kaokoveld [The Court will, no doubt, recall
General .Marshall's evidence as to the facilities at Ohopoho] and on
the South West Africa Angola border, one at Windhoek, one at
Walvis Bay, and the countr,v is generally under martial law ... "
(Report of the Corn. on S.\\ .A. concerning the lmplementation of
General Assembly Resolutions 1568 (XV) and 1596 (XV), 16th Sess.,
Supp. I2A (A/4926), p. II.} SOUTH WEST AFRICA
And, so, Mr. President, it goes on and on. In the same year (1961)
l\fr. Nujoma stated at the 1217th Meeting of the Fourth Committee, on
20 November 1961, page 379:
"In the micldle of 196!, the South African white settler Govern
ment had sent more than 6,000 troops into South West Africa ...
New military bases had been established in the Territory, at Walvis
Bay, in the Eastern Caprivi Zipfel, on the northern border between
South West Africa and Angola, and at Windhoek."
And these charges were repeated in 1963 by Garoeb, also on behalf of
SWAPO, at the 1455th Meeting of the Fourth Committee, paragraph 36,
and by Mr. Kuhangua of SWAPO at the same meeting. I shall not quote
this; I think I have done enough in that regard.
May I, then, further submit that one need only look at the contents of
the three General Assembly resolutions quoted by Applicants on page 563
of the Reply, IV, and initially relied on by them to prove their charges
relativeto militarization, to see what results these untruthful statements
of the petitioners led to. I may also note that two of these resolutions,
that is, 1702 (XVI) of 19December 1961, and 1805 (XVII) of 14 December
1962, are also contained in the list of resolutions on pages 502-503 of the
Reply, IV, upon which Applicants rely as cstablishing their norms and/or
standards.
But, Mr. President, this is not yet the end. The self-same aliegations
are made, not only again and again, but they persist up to the present
day, even after Applicants have before this Court admitted Respondent's
factual averments as being true.
Let us turn to the 1965 Draft Report of the Special Committee on the
Situation with regard to the implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples, dated
19 August 1965. This is document A/AC. ro9/L. 241. \Ve must now con
trast this with the evidence of General Marshall.
Mr. Nujoma of SWAPO stated on page 27 of this document, para
graph 77:
"In violation of the Mandate, South Africa had established
military bases. in Windhoek, Walvis Bay and at Katima Mulilo in
the Eastern Caprivi Zipfel."
Mr. Kuhangua, giving evidence, stated on page 41:
"It was the Committee's duty to seek rapid and effective ways to
put an end to the apartheid regime's military ventures in the inter
national territory of South West Africa."
And once more referred to "the heavy military build-up in South West
Africa".
Mr. Kerina, on page 49, paragraph 152, found it fit to state: "ln de
fiance of the Mandate, South Africa had established numerous militarv
bases in South West Africa ... " ·
But, Mr. President, this is not even the limit of fabrication in this
sphere. Not content merely with repetition of the old allegations, the
petitioners have now in this nuclear and missile age ventured also into
allegations of nuclear and missile activities in South West Africa.
Mr. Make, of the Pan Africanist Congress, who has never set foot in
South West Africa, stated on page 31 of this document, in paragraph 89: ADDRESS BY MR. VAN ROOYEN 127
"As part of its military activities, South Africa was now building
nuclear reactors in its own country and in South \Vest Africa."
I\lr. Kerina, on page 51, paragraph 156, stated:
"After their experiences in the war, the people of South West
Africa were not surprised to sec ... that a nuclear reactor had been
built in their country."
And Mr. Kuhangua, on page 34, paragraph 103, stated:
"... that the greatest danger to South West Africa lay in the
Federal Republic of Germany's decision to establish a rocket station
in the Namib Desert. He appealed to the Special Committee to call
upon the Federal Republic to dismantle its rocket station immedi
ately."
Ali these allegations, Mr. President, were intended to refer to the Max
Plankt Institute for Oronomy at Tsumeb. The Court will, no doubt,
recall General Marshall's evidence relative to this installation.
Now, what reaction did all these statements elicit in the Comm.ittee?
Acceptance, :tlfrPresident, nothing but acceptance of every word the
petitioners said.
I quote the representative for the United Republic of Tanzania. He
said on page 63 of this document:
"Turning to the military build-up in South West Africa, his dele
gation had bcen greatly disappointed by the role of West Germany
and the United States in nuclear development in South vVest Africa
as disclosed by the petitioners."
And-
"The United States must understand that South Africa's policy
was to exterminate the Africans and that it would never hesitate
to use atomic bombs for that purpose."
Before the Disarmament Committee, in United Nations Document
DC/PV. 82 of 17 May 1965, at page 48, the same representative of Tan
zania said: "The South African Government has established an atomic
testing centre at Tsumed, ... in South West Africa."
)1r. President, it is unfortunate that so many delegations are misled
by this type of statement.
The representative of Yugosiavia, on page 60 of the document, A/AC.
ro9/L. 241, already referred to, stated:
"... it was impossible to disregard the testimony of the petitioners
concerning South Africa's m.ilitary preparations, the installation
of military bases in the Tcrritory of South West Africa, as also the
secret chemical and nuclear research in which certain circles in
\Vestern Europe, particularly the Federal Republic of Germany,
were participating ... "
The reprcsentative of the Ivory Coast, at page 64 of this document,
said-"The pctitioners had given the Committee clear proof that the
situation was cletcriorating from day to day."
And the reprcsentative of Ethiopia, on page 66, that is, aftcr the
admissions of his government's agent in this Court, stated:
"... by establishing military bases in the Territory, it [meaning
South Africa] had committed a serious breach of Article 4 of the
Mandate".128 SOUTH WEST AFRICA
And soit went on and on, many of the represcntatives referring to the
clear and convincing statements of the petitioners.
What is the upshot of all this, Mr. President? A draft resolution is
introduced by the representative of India, co-sponsored by r2 of the
members of the Committee. In introducing it, the representative of
lndia states the position of the co-sponsors and says, inter alia,on page
69, in paragraph 212:
"Certain representatives had claimed that the Special Committee
had been too ready to accept the petitioncrs' statements at face
value. In the case of South West Africa, no discussion with South
Africa was possible, so the Special Committee had no alternative
but to accept what the petitioners had said as a true description of
the situation in South West Africa. And it was no longer possible
forthe Special Committee or the United Nations to give the Govern
ment of South Africa the benefit of the doubt-its past and prcsent
deeds were there for ail to see and observe."
This was said in introducing the draft resolution, and this, months after
the detailed information had been taken up in the Counter-l'llemorial and
in the Rejoindcr and had been available for al! the world ta rcad and,
after ail this detailed information, surely one of the instances of the most
detailed information of the administration of any territory ever supplied
by any government in the history of the world, had been admitted by
the Applicants for the purpose of this case.
Nevertheless, we fi.nd that these falsehoods of the petitioners are
accepted-they arc echoed-and they ultimately shape the judgment
and resolution of the organ involved. We have extracted, by way of
illustration, onlythe allegations relevant to militarization from this 1965
document-August 1965, one might almost say the late harvest. It is
possible to do exactly the same in respect of each of the major untruths
which form the pctitioners' favourite themes, as also refuted by Mr.
Dahlman, for example, that Respondent's policy amounts to genocide,
that it is slavery, that the best land is stolen from the Natives, that they
arc herded on to inferior land and into concentration camps, that educa
tion is aimed at keeping them inferior, that they arc denied medical
assistance, etc.These allegations are ail in that document and thcy are
all accepted. This is typical of what Applicants refer to as the judgments
of the United Nations, on which thcy rely as so-called law-creating pro
cesses, which judgments this Court, in their submission, may not second
guess.
Now, the unqualified acceptance of ail these wildest allegations by the
pctitioners, and the direct influence thereof on the resolutions adopted,
arc important in view of the Applicants' present attempts to minimize
the effect of such statements by petitioners on the United Nations reso
lutions.
During cross-examination of Mr. Dahlmann Applicants attempted to
illustratethat reports of the Committee on South West Africa and cer
tain General Asscmbly resolutions had not bcen inftuenced by pctitioners,
or in any event, not to any markcd degree. We find that attempt, during
the cross-examination of Mr. Dahlmann, in the verbatim record, XI,
pages 564-565 and pages 566-567, r3 October. Inter alia, an extract was
read from the r955 report of the Committee on South West Africa, page
8, paragraph 2, and the tenor of questions asked was to extract from ADDRESS BY MR. VAN ROOYEN 129
Mr. Dahlmann an admission that the petitioners had not really influ
enced the Committee and that the portion read to him was a typical
or illustrative report in respect of the statements of the Committee con
ceming the sources of its information.
This stands in strange contrast indeed to the Applicants' attitude in
the Memorials, when they wcre still relying on statements of petitioners,
and when they prefaced their reference to such statements by stating
on page 167, I, of the Memorials:
"... the Committee on South West Africa and the Applicant, as
well, are constrained to gather information from other sources, in
cluding petit ions".
But, we must take this a little further.
If we look at this 1955 report of the Committee on South West Africa,
it becomes clear that considerable consideration was given to the con
tents of petitions by the Committee on that occasion. Pages 4-6 of the
report deal with a number of pctitions relating to the Territory of South
West Africa and reference is made to the petitioners and the meetings
during which the petitions were discussed. As from pages 37-49 there
appear copies of petitions received and considered by the Committee.
These include those of the Reverend Michael Scott, a most prolific peti
tioner; Mr. Kozonguizi, the President of SWANU; Chief Hosea Kutako
and the Reverend T. H. Hamtumbangela. The Court will remember that
in Mr. Kerina's letter to Toivo Ta Toivo of Februarv 1959, which appear
ed in the evidence of Mr. Dah!Înann, the Reverentl"Mr. Hamtumbangela
had been proposed by Mr. Kerina as a possible president for the Ovambo
land Peoples Congrcss which hc wanted to be formed.
Now, on the basis of the contents ofthese petitions, already before the
Committee in 1955, the Committee proposed a number of draft resolu
tions which are also contained in this 1955 report, criticalf Respondent's
administration. When we turn to the General Assembly resolutions of
the same year, 1955, we find that no less than five resolutions dealt
directly with the petitions. These were resolutions No. 935 (X), 10th
Session to 939 (X). roth Session. To takc but one example, the last reso
lution, 939 (X), dealing with Mr. Kozonguizi's petition, notes, inter alia,
the petitioners' allegations that: "The indigenous people have suffered
under oppressive lcgislation and have not developcd in any sphere." It
also notes the following allegation of Mr. Kozonguizi: "The enforcement
of the Bantu Education Act ... would virtually eliminate African edu
cation in the Terri tory ... "
In resolution 943 (X) of the same year, 1955, the General Asscmbly
having grantcd an oral hearing to the Reverend 11IichaelScott, who was
alleged to be speaking on behalf of the Native inhabitants of South West
Africa transmitted the petitioner's statement to the Committee on South
West Africa for the Committee's study and consideration.
Even Applicants, if we look at the Memorials, werc influenced by the
contents of petitions annexed to this one particular 1955 report of the
Committee on South West Africa, to a sufficient extent to quote and
rely on an extract taken from one of them, namely a petition signcd by
Chief Hosea Kutako, in the Memorials at I.page 171. \Ve find that an
extract is taken from this 1955 Committee report and this is quoted as
one of the alleged illustrations of the manner in which the daily lives
of the inhabitants are affected.130 SOUTH WEST AFRlCA
It is thus clear, Mr. President, in our submission, that the Applicants'
present attempt to miniruize the influence of the petitioners and their
petitions in the United Nations organs is without substance. It is true
that before 1955 no oral hearings of petitioners took place, but it must
be remembered that written petitions had been transmitted long before
oral testimony of petitioners became the practice. ln fact, the Appli
cants have quoted in the Memorials at I, page 178, a petition taken from
the 1954 report of the Committee on South West Africa.
We have already demonstrated that the suggestion on the part of
Applicants, during cross-examination of Mr. Dahlmann, to the effect
that the statements of petitioners did not influence United Nations dis
cussions and resolutions in 1955 is incorrect. But we must take this aspect
still a little further.
Itwas also, in the question which was put, suggested that the portion
read from the 1955 report was typical and illustrative of the Committee's
sources of information and the extract which was read did not contain
any reference to the petitioners or to petitions. Let us examine whether
this is typical and illustrative of the approach of the Committee on South
West Africa.
[Public hearing of 28 Octoberr965}
Mr. President, we were dealing yesterday with the nature and quality
of the criticism lenlled against Respondent in United Nations organs
and the factual sources upon which such criticism was and is based. We
made the point that the criticism was mostly based on emotional grounds
and on the basis of incorrect factual assumptions. We also showed that
a small group of petitioners had been largely responsible for supplying
the incorrect factual information on which Respondent was condemned.
Proceeding from there we demonstrated that no reliance could be placed
on the evidence supplied by this group of petitioners as to conditions
pertaining within the Territory of South West Africa or as to the quality
of Respondent's administration.
Turning to the reaction within United Nations organs to the alle
gations regularly made by the petitioners, we demonstrated that practi
cally everything that the petitioners said was accepted as true in such
bodies by majoritics and paved the way to the adoption of resolutions
condemning Respondent's policies and its administration of South West
Africa.
At the close of the session I was dealing with the suggestion on the
part of Applicants during cross-examination of Mr. Dahlmann that the
Committee on South West Africa had not been influenced by petitioners
to a great extent in the drafting of its reportsAn extract was read from
the 1955 report by Applicants' Agent, which could have supported such
a view. I then proceeded to demonstrate that not only the Committee
on South \Vest Africa, but also the General Assembly as well as the Appli
cants themselves, were influenced by statements of petitioners contained
as annexes to the r955 report of the Committee on South West Africa.
In view of the possible suggestion on the part of Applicants that the
extract read from the 1955 report of the Committee was typical and
illustrative of the Committee's sources of information and that such
sources did not include the statements of petitioners as a major source,
I stated at the close of the proceedings yesterday that I would proceed
to investigate the validity of such a suggestion. ADDRESS BY MR. VAN ROOYEN 131
Turning to the r956 report of the Committee on South West Africa
to the General Assembly, that is the nth Session, Supplement No. 12,
document A/3151, we find that petitions are mentioned on pages 3-4 of
that report. On page 5 in the report, the Committee states, referring to
the petitions reccived: "It [that is the Committee] has taken into account
a number of communications received concerning the Territory."
In 1957 the Committec stated that it had drawn up its report on the
basis of relevant information "including communications from inhabi
tants of the Territory". That was the report to the 12th Session of the
General Assembly, Supplement 12, document A/3626, on page 5.
In its 1959 report, the Committee stated that it had drawn up its re
port, inter aliaon:
"Relevant information including, in particular, petitions and
communications from inhabitants of South West Africa and other
sources."
That was the report to the 14th Session of the Gencral Assembly, Supple
ment 12, Document A/4191, page 5, and on page 3 of this report the
Committee on South \Vest Africa referred to a large number of petitions
it had taken into account during its examination of conditions in South
West Africa. The vast majority of these petitions emanated from Chiefs
Kutako and \Vitbooi, the Reverend Markus Kooper and Mr. Toivo Ja
Toivo-the Court will no doubt remember this name as itwas mentioned
by Mr. Dahlmann. This particular person was the recipient of numerous
letters from Mr. Kerina in 1959 and he is also, to this day, a leading per
sonality of SWAPO. Mr. J. Dausab, also mentioned in the Counter
Memorial, Book Vlll, IV, and a supporter of SWANIO, and the Rever
end Michael Scott were also petitioners.
By 1960, Mr. President, the Committee on South West Africa stated:
"The fifty-four petitions referred to below were taken into ac
count by the Committee during its examination of conditions in
South West Africa ... "
That was on page 7 of the 1960 report and on page 13 of this report I
quote:
"It drew up the present report to the General Assembly on the
basis of the documents made available toit by the Secretary-Gene
ral, supplemented by oral statements by petitioners, written peti
tions and communications from inhabitants of South West Africa
and other sources, and reports in the territorial Press."
During 1960, when one examines the annexes to the report, it appears
that the vast majority of petitions emanated from the Ovamboland
Peoples' Organization, which was, as Mr. Dahlmann testified, formed
in 1959, SWAPO, Chief Kutako, Chief Witbooi, Mr. Kozonguizi, SWANU,
Mr. Nujoma, Mr. Kerina and the Reverend M. Kooper. It will also appear
that in 1960 a whole subsidiary book of some 248-odd pages containing
petitions had to be published as United Nations document A/AC. 73/3.
During 1961 the Committee on South West Africa left on a fact
finding tour of Africa and heard testimony of petitioners. These were
mainly ;\frKerina, Mr. Kozonguizi, Mr. Nujoma and other officebearers
of SWANU and SWAPO. On the basis of their evidence, described by
the Committee in its 1961 report as "informed views", one finds that
the whole report is based on the allegations of these petitioners. The con- 132 SOUTH WEST AFRICA
clusions of the Committee were reached on page 20 of this report, which
is the. report to the General Assembly regarding the implementation
of General Assembly resolutions 1568 (XV) and 1596 (XV), 16th Ses
sion, Supplement r2A, document A/4926. On page 20 of this report, the
Committee said the following:
"From an objective study of the situation in South West Africa,
through a careful analysis of the evidence given by petitioners,
political leadersand refugees from the Territory, along with addi
tional information from other available sources, including views of
informed leaders for African unity and liberation, the Committee
on South West Aftica reached the conclusions outlined below";
and when the report is studied in detail it becomes clear that both the
contents of the report as well as the conclusions are based practically
exclusively on the evidence of these petitioners.
Mr. President, I feel I need not go further. One can illustrate it as
from year to year and l shall make the submission that it should be
apparent that any suggestion that the Committee on South West Africa
was not grcatly influenced by the evidence proffered in written as well
as oral petitions by the petitioners, is without substance.
Quite apart from the foregoing, l\fr. President, there is still further
proof that written petitions and oral statements by petitioners play a
most important part in United Nations discussions and resolutions
relative to South West Africa. Delegates of various States have often
shown by direct statemcnts that they rcly heavily on the evidence of
petitioners. as the following random extracts will show.
Mr. :Morse of the United States of America said, before the Fourth
Committee of the 15th Session of the General Assembly, during the
rn6oth Meeting, page 350:
"The petitioners had spoken with clarity, dignity and remarkable
moderation. Their cloquent and straightforward statements deserved
the thoughtful consideration of the Committee."
Mr. Neklessa of the U.S.S.R. said in the Fourth Committee, during
the 16th Session of the General Assembly at the 1241st 1'1eeting,page 551:
"... he wished to thank the petitioners for their important state
ments. He felt that no delegation that was genuinely interested in
the welfare of the people of South West Africa could fail to take
thcm into account."
.Mr.Purevjal of .Mongoliasaid during the 1379th Meeting of the Fourth
Committee, during the r7th Session of the General Assembly, page 326:
"It was clear from the statements of the petitioners that the
South African administration was deliberately holding back the
social development of the indigenous inhabitants in order to keep
them in slavery."
Mr. Arteh of Somalia, during the 1454th Meeting of the Fourth Com-
mittee, 18th Session of the General Assembly, at page 131:
"... thanked the petitioners and assured them that the reason why
his delegation was not asking any questions was not lack of interest
in the problem of South West Africa but rather its feeling that
after the long and serious discussions to which that problem had
given rise and the clear and complete statements of the petitioners,
the world was now fully aware of the situation in the Territory." ADDRESS BY MR. VAN ROOYEN 133
One of the clearest indications of the influence exerted by the state
ments of petitionersin the deliberations and decisions of United Nations
organs, is afforded by an extract from the statement made by 1'Ir.
Busniak of Czechoslovakia, during the 14th Session of the General
Assembly, before the Fourth Committee. 914th Meeting, at page r6r,
when be stated:
"The pctitioners, in particular, contributed esscntial elements to
the debate, and it was often on the basis of the direct information
they provided that delegations decided what position to adopt."
.Many more examples along the same lines can be provided, but I
think, 1'1rPresident, that these arc enough to make the point which
I am trying to makc.
Now, Mr. President, although Respondent's representatives never
attcnded the hearing of petitioners, because Respondent's contention
was that the committees concerned were not competent to grant such
hearings, Respondent's representatives at times gave clear factual in
formation concerning the statements ofpetitioners. and corrected untrue
and erroneous evidence given by them. Unfortunately, the reaction of
delegates was often to dismiss the statements of Respondent's represen
tatives and to confirm their implicit faith in the allegations of the
petitioners. In this regard, I think I need give only two examples:
Mr. Achkar of Guinea, during the r6th Session of the General Assembly,
in the Fourth Committee, 1247th Meeting, said at page 587:
"The representative of Australia had suggested that the report
of the Committee on South West Africa might not be fully in
accordance with the facts, since that Committee had not visited
the Territory; the petitioners. however, were ail from South West
Africa and, while there was no reason to doubt their statements,
there were innumerable reasons for doubting those of the Mandatory
Power."
i\lr. Carpio of the Philippines said, before the same Comrnittee, in the
same year, at page 444:
"He wondered whom the Committee was expected to believe: the
petitioners, who came from the Territory and asserted that the
Native reserves were fenced, or the Minister for Foreign Affairs,
who had probably never been to the Territory and who maintained
that that was not the case."
Mr. President, perhaps the best e:xample of suppression of information,
favourable to Respondent's administration of the Territory, came after
the visit by Mr. Carpio and Dr. Martinez de Alva in 1962 to the Territory:
I am not going to enlarge on the facts, the full facts were dealt with
in the Rejoinder, V, pages 5-12, and I might just state that these factual
allegations are now common cause as they have been admitted by
Applicants as truc. Now, it will quite clearly appear, on reading these
pages, that the chairman and the vice-chairman of the Committee on
South West Africa visited the Territory, that they had complete frcedom
to visit whatever place they wanted, and that they had requested
specifi.callyo go into and investigate the allegations which had been
made with consistent regularity in the United Nations-that the condi
tions in South West Africa constituted a threat to peace, that there
was a large scale of militarization, and certain of the other allegationsr34 SOUTH WEST AFRICA
which were regularly relied on in the United Nations organs to condemn
Respondent's policies. After their visit, a joint conununiqué was issued,
which is also a United Nations document, and the result was, as quoted
on page 8 of the Rejoinder, V, paragraph 3:
"At the request of the Prime Minister both tht Chairman and
the Vice~Chairman gave their impressions gained during their ten
day visit to the Territory. They stated that in the places visited
they had found no evidence and heard no allegations that there
was a threat to international peace and security within South West
Africa; that there were signs of militarisation in the territory; or
that the indigenous population was being exterminated."
This conununiqué, Mr. President. caused consternation at the United
Nations. One would have assumed, Mr. President, that delegations,
which had professed great concern about the conditions prcvailing within
the Territory of South West Africa, and about the welfare of the inha
bitants, would have been greatly pleased at and pleasantly surprised by,
this satisfactory information jointly concurred inby the chairman and the
vice-chairman of the Committee on South West Africa; but to the con
trary, we find that certain delegations expressed the view that this com
muniqué came as a disagreeable shock.
Furthermore, Mr. President, it is also clear from a reading of these
pages that the communiqué did not go far in the United Nations organs,
as far as its influence was concerned: the Cornmittee on South \Vest
Africa out-voted the suggestion that this communiqué should be entered
into the documentation of the Committee as an official document, and
the communiqué, vastly important as it was, was not included in the
documentation which was sent forward for consideration by the Com
mittee on Colonialism, and was not included in the documentation avail
able to the General Assembly when it reached its decision and its parti
cular resolution ro85 of that year. I think I need say nothing further
in regard to this incident.
Now, Mr. President, the influence of the statements of petitioners
bas obviously not been confined to the committees of the General
Assembly-the Committee on South West Africa or the Fourth Com
mittee. The General Assembly itself has consistently, for many years,
adopted, endorsed and acted upon reports made and draft resolutions
forwarded by the various committees which dealt with South West
Africa and the petitions and verbatim statements of petitioners. In
fact, Mr. President, it is officially part of the General Assembly procedure
to actas far as possible on these reports and resolutions. In this respect,
I wish to refer to resolution 844, during the 9th Session of the General
Assembly, II October 1954. ln this resolution the procedure was adopted
which was to govern the examination of conditions in South West Africa,
and in Special Rule B, as regards reports, the following appears:
"The General Assembly shall, as a rule, be ~ided by the observa
tions of the Committee on South West Afnca and shall base its
conclusions, as far as possible, on the Committee's observations."
In Special Rule D, relating to the procedure with regard to petitions,
the following appears:
"The General Assembly shall, as a rule, be guided by the con
clusions ofthe Comrnittee on South West Africa and shall base its ADDRESS BY MR. VAN"ROOYEN IJ5
own conclusions, as far as possible, on the conclusions of the Com
mittee."
We have already shown that thcse reports of the Committee on South
West Africa, and the draft resolutions adopted there, were, to a large
extent, based on an acceptance of the evidence of the petitioners, and
we have quoted some pertinent examples in this regard.
But, Mr. President, it goes even further: the petitioners have even
been allowed to take part in the discussions of the committces on draft
resoJutions. Let us take as an example the discussions in the Fourth
Committee of the United Nations, which preceded the adoption of the
resolution which ultimately became General Assembly resolution 1702
of the 16th Session-that was the resolution referred to by my leamed
friend, Mr. de Villiers, yesterday, as containing the broad outline of
what is now expected in future. During the 1241st Meeting of the Fourth
Committee, some seven petitioners were present when the different draft
resolutions before the Fourth Committee were discussed, and they freely
expressed their views as to which resolutions suited their purposes best.
So, in paragraph 36 of that meeting's record, we find l\fr. Kerina, on
behalf of SWAPO, saying that the petitioners had asked for a further
hearing in order to state their views on the draft resolutions before the
Committee.
In paragraph 37, he stated:
"Two of the draft resolutions were diametrically opposed to the
desires and interests of those people. In their view they were clearly
designed to delay and sabotage the process of decolonization in
South West Africa."
I might state that the two draft resolutions opposed by l\fr. Kerina
were introduced by the United Kingdom and by Sweden and that both
these draft resolutions were rejected at the final vote, after the petitioners
had had their say. ·
In paragraph 40, Mr. Kerina continued:
"The petitioners regard draft Resolution A/C. 4{L. 714, [that is
the one which was eventually adopted] as the only acceptable com
promise with their own proposais."
Mr. Nujoma, in paragraph 52, is recorded as having stated: "The
petitioners fully supported the ... draft Resolution A/C. 4{L. 714."
In paragraph 53, Mr. Fortune, on behalf of SWAPO, associated him
self with the statements made by the other pctitioners concerning the
draft resolutions.
Paragraph 55 refers to the Reverend Markus Kooper, who said:
"Draft Resolutions A/C. 4/L. 712 and A/C. 4/L. 713 Rev. 2 [those
were the two resolutions proposed by the United Kingdom and
Sweden] had their origins in that suggestion by South Africa [that
was a suggestion that there was a possibility of partition]. Although
the petitioners appreciated the motives of the sponsors, they could
not ask the Committee to support those proposais which, in his
view, should be withdrawn. The petitioners were not fully satisfied
even with draft Resolution A/C. 4/L. 714, which did not meet their
desires completely, but they could at least see that it would have
some effect and meaning."
And so it followed on. There were a number of other petitioners who
expressed views in similar vein.136 SOUTH WEST AFRICA
The list, Mr. President, is not isolated; often in the Fourth Committee,
when the draft resolution is adopted which goes to the General Assembly,
supplementary hearings of petitioners are granted and they express
thcir views. They were present during the deliberations of the Fourth
Committee on the resolutions when resolution 1805 of the Seventeenth
Session was adopted, as well as when resolution 1899 of the Eighteenth
Session was adopted. I need not give further examples along that line.
Just returning to one of the examples which I have given, which illus
trates the procedure that was followed in the Fourth Committee before
resolution 1702 was adopted, we fi.nd that before the petitioners had
exprcssed these views, to which I have referred, Mr. Salamanca of
Bolivia had stated he assumed that: "the petitioners had been consulted
by the sponsors and their views taken into account." That was on page
534 of the record, referred to, of the same meeting. At page 547, Mr.
Achkar of Guinca provided the answer, when he said:
"... The sponsors of draft resolution A/C. 4/L. 714 had taken into
account the wishes of the people of South West Africa as expressed
by the petitioners ... " (4th Committee Meeting 1241.)
Now, turning to a slightly different point, it will appear from this
last quotation that the wishes of petitioners were regarded as truly
representative of the indigenous population of South West Africa. This
erroneous assumption has often been made, as the following illustrative
examples of statements in the Fourth Committee will show. Mr. Quaison
Sackey of Ghana, during the Fifteenth Session of the General Assembly,
before the Fourth Committee, its ro53rd Meeting, page 318, said it was
clear to his delegation:
"that the petitioners definitely represented the territory; thanks
to their help and to that of the Reverend Michael Scott, his delega
tion had obtained the information which it required."
Mr. Diallo of Mali, during the Seventeenth Session, said before the
Fourth Committee at its 1385th Meeting, page 372:
"The petitions included in the reports and the statements made
bcfore the Committee by the genuinc representatives of the people
of South West Africa furnished eloquent testimony of the violation
of the Mandate by the South African Government, etc."
The same assumption even appears from resolutions of the General
Assembly itself. Thus resolution rn56 of the Eleventh Session of 26
February 1957 cxplicitly reads as follows:
"The General Assembly, Having granted hcarings to !\frMburumba
Kerina Getzen, a petitioner from South West Africa, and the
Reverend l\fichael Scott, a petitioner on behalf of African inhabitants
of South West Africa,
r. Takes note of the statcments of the petitioners on behalf of
African inhabitants of the Territory of South West Africa under
the administration of the Union of South Africa;
z. Decides to transmit to the Committee on South West Africa
the statements of the petitioners for study and consideration."
In our submission. Mr. President, Mr. Dahlmann's evidencc has clearly
shown that the notion that the views and wishes of the petitioners
represent those of the indigenous population of the Terri tory is without ADDRESS BY MR. VAN ROOYEN r37
substance. It will be recalled that Mr. Dahlmann testified that the first
non-White political parties in South West Africa were formed mainly
as a result of instigation by pctitioncrs, notably i\IrKerina, from over
seas. That was in the verbatim record of 8 October 1965, XI, at page 459.
He also testified that apart from the Chief's Council, today represented
through the political front of NUDO, which is a purely Herero organi
zation, the cstablishcd political parties enjoy very little support amongst
the indigenous population. That was in the same verbatim, on pages 470,
et seq. and especially on page 477. He also testified that some petitJons
sent to the United Nations from the Territory were actually drafted
by petitioners overseas (that is from pp. 464-465 of the same verbatim)
and that the petitioners overseas are actually continuing with their
campaign without much reference to their associates in South West
Africa. To quote his own words, on page 478 of the same verbatim:
"They [that is the petitioners overseas] are issuing often policy
statements which are unknown in South West Africa. One example,
as I have already mentioned. is the Kerina petition to the United
Nations about the political programme of NUDO. Kerina is in
favour of one unit and Kapuuo. the party president in South West
Africa, stated that he is in favour of a federation, in favour of
regionalism, and he said that his party knew nothing about this
petition and he had not rcceived a copy."
The question then arises how clid the petitioncrs overseas corne to
be regarded as rcpresentatives of the whole indigenous population of
South West Africa or at least as rcpresentative of the majority of them.
It is not difficult to find the answer. Before 1959, the petitioners simply
said that they were representing the indigenous population of South
West Africa and thcy were belicved. After r959, one will notice on a
rcference to the records of the hearings that werc granted to them and
the petitions transmitted by them, that almost invariably they refcrred
to themselves and were referred to as representatives of political parties.
That, after ail,l\frPresident, was one of the main reasons why Mr. Kerina
in 1959 had written to associates in the Territory to create political
parties so that hc would be able to represent himself as a representative
of those parties at the United Nations, and he hacl said that that would
strengthen his hand and afford him power at the United Nations.
Now, l\Ir. Dahlmann has shown in his evidence that the number of
members claimed by these organizations is unreliable and incorrect.
To refer to but one example: the Secretary-General of UNI PP-the
Court will recall that Mr. Dahlmann gave evidencc that UNIPP existed
only on paper and was totally unknown in South West Africa-this
Secretary-General, Isilima Sokugoina, claimed in a petition to the United
Nations that bis party represented 245,000 people. Reference to this is
to be found at XI, page 500. And the petition concerned, which makes
interesting reading also as far asthe political objectives of this particular
party is concerned, was referred to, which is document A/AC. ro9/Pet.
279, Add. 3, page 2.
Moreover, Mr. President, when petitioners were asked, during hearings
of the various committees, for information on the organizations repre
sented by them, it often happened that a point of order was raised or
that the Chairman stated that such questions should not be asked.
By way of illustration, I quote just one excerpt from the records of SOUTH WEST AFRICA
the Committee on South West Africa at its 133rd Meeting, pages 4-5.
It states:
"Mr. Boeg of Denmark asked for information of the various
organizations in South West Africa, in particular on the Ovamboland
People's Organization and the South West Africa National Congress."
(A/AC. 73/SR. 133.)
Mr. Kozonguizi started explaining and I am skipping that portion
where he started explaining the position and then the record continues
as follows:
"Mr. Hailemariant (Ethiopia}, speaking on a point of order, said
that in his opinion representatives should abstain from asking peti
tioners to reveal information which might be prejudicial to them
or injurious to their political organizations.
The Chairman endorsed the statement of the Ethiopian represen
tative. He recalled that he had several times issued the same
warning. He hoped that the petitioners would take due account
of it."
In view of these facts, Mr. President, it is not surprising that the entirely
erroneous notion was established that the petitioners are truly represen
tative of the indigenous population of the Territory.
Finally, Mr. President, I am shortly reverting just to a fe,v examples
of General Assembly resolutions themselves. From the portion of resolu
tion ro56 of the rrth Session which I have quoted a few moments ago
to show that this notion exists, it would have been observed that note
was taken of the statements of petitioners in this resolution. As a matter
of fact, every year since 1955 the General Assembly has passed resolutions
taking note of the statements of petitioners. I might state in passing
that all the resolutions pertaining to South West Africa relied upon by
Applicants for the substantiation of their alleged normand/or standards
were adopted after this date. The extent to which the statements of
petitioners are used as a basis for specific resolutions of the General
Assembly sometime.s even appears from the text of the resolution itself.
The following are just a few examples-the preamble of resolution 1360
of the 14th Session, which is one of the resolutions relied on by Applicants
in their Reply, IV, pages 502-503, contains the following paragraph:
"The General Assembly having also heard the statements of peti
tioners which further corroborate the conclusions and opinions
formed by the Committee on South West Africa concerning political,
social, economic and educational conditions prevailing in the Terri
tory,"
and then the resolution goes on from there. Resolution 1567 (XV) of
the 15th Session referred in the preamble to the following:
"Taking into account the additional information contained in the
report of the Committee on South West Africa and in oral and
,vritten petitions from inhabitants of the Territory."
Resolution 1703 of the 16th Session is also explicit; one of the paragraphs
of the preamble reads:
"Noting with the gravest concern, as evidenced in the petitions,
the unswerving determination of the Mandatory Power to intensify
the application of its apartheid policy and of other policies con
trary to the principles and purposes of the Mandate, and that any ADDRESS BY MR. VAN ROOYEN 139
attempts to protest or resist those policies have been met only
by the dismissal from employment, arrest. deportation and exile of
the persons, leaders and members of African political organiza
tions concerned."
Resolution r805 of the r7th Session, the preamble, once more referred
to certain previous resolutions including 1702, which I have briefly
discussed; it also referred to the reports of two Special Committees and
continued-"bearing in mind the findings, conclusions and recommenda
tions set forth in these two reports and having heard the petitioners,
expressing its deep concern", etc.
Mr. President, this concludes our exposition of the background against
which the adoption of the resolutions on which Applicants rely, must be
viewed. It is possible to give many more instances of the erroneous
premises and factual distortions contained in the attacks upon Respon
dent, but there is no need for us to try to be exhaustive. We have said
enough in our submission to justify the following conclusions:
Firstly, that the allegations of petitioners to the United Nations on
matters of fondamental importance regarding Respondent's policies
and actions have been patently false.
Secondly, that such allegations have nevertheless been repeated con
sistently and systematically, and have been unfortunately accepted
by a large number of delegations and by committees and organs of
the United Nations.
Thirdly, that the attitudes of a large number of delegations-especially
from the independent African States but also from certain others
acting in this respect as their allies~have, we very much regret to
say, been influenced detrimentally by the allegations of petitioners
and have shown in the result also a taint of prejudice, emotion,
distortion and ulterior political motivation, as far as Respondent's
policiesand actions are concerned.
Fourthly, that the factors mentioned clearly played a major role in the
adoption of United Nations resolutions condemning Respondent's
policies and actions.
Fifthly, that in the result this Court could not be safely guided by
such resolutions for any purpose, let alone consider itself bound by
them as processes whereby a norm and/or bindîng standards were
created or whereby binding judgments were pronounced regarding
violations of legal obligations.
This, ;\fr. President, brings me to the end of my address. There is still
one aspect relating to the resolutions which must be dealt with and, with
the President's permission, my colleague, Dr. van Heerden, will address
the Court on that aspect. 28. ADDRESS BY l\IR. VAN HEERDEN
COU~SEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 28 AKD 29 OC'fOBER 1965
l\fr.President, my colleagues have already demonstrated that for
several reasons stated by them no wcight can be attached by this Court
to the resolutions upon which Applicants rely, within the context of a
norm or standards contention.
I turn now to yct another reason why, in our respectful submission,
Applicants' contention, as based on the resolutions in question, cannot
possibly succeed .. This reason can be stated very simply, namely that
the resolutions d1d not even purport to attempt to evolve or apply a
norm and/or standards of non-separation as defined by Applicants.
The resolutions of the General Assembly relied upon by Applicants
have already been identified by my learned senior Mr. de Villiers; they
are referred to in the Reply, IV, page 502, footnote 4, and were again
mentioned in the verbatim record of 18 l\:Iay, IX. As already stated,
nine of these resolutions applied to South \Vest Africa and 16 to South
Africa itsclf. These resolutions, Mr. President, were ail General Assembly
resolutions except for three Security Council resolutions which wcrc con
cerned with South Africa itsclf.
Now, it is convenient to consider at the outset the grounds on which
Applicants allege that the resolutions were concerned with the standards
and/or norm. These grounds are to be found in the verbatim record of
18 May, IX, page 332, where Applicants said:
"The essential element linking all relevant reports, resolutions,
communications, statements and conclusions of the United Nations
bodies, including the specialized agencies directly concerned, is
repudiation and condemnation of apartheid. This there is no room
to doubt or dispute."
But a little bit further on at the same page the Applicants also said:
"Inasmuch as the purpose of citing such resolutions was to
demonstrate the judgment of the organized international com
munity with respect to separation or discrimination on the grounds
of race or membership in a group, it is immaterial to the purposes
of the present discussion that the resolutions apply to apartheid
both as practised in the Republic of South Africa and in the Terri
tory of South \Vest Africa, as the pleadings make crystal clear and
as is conceded by the Respondent. The fondamental policy and
practices in force in the Territory and in the Republic are essentially
the same in al! respects relevant here."
Mr. President, there are obviously two key passages here: in this in
stance, Applicants say that the resolutions "[stand] in repudiation and
condemnation of apartheid"; then, they say that thcy cite these resolu
tions for the purpose of demonstrating "the judgment of the organized
international community" and not with respect to apartheid but with
respect to "separation or discrimination on the grounds of race or mem
bership in a group". One could here use Applicants' more usual phrase, ADDRESS BY MR. VAN HEERDEN
namcly: the judgment of organized international communities with
respect to the allotment of rights, duties, etc., on the basis of member
ship in a group rather than on the basis of individual merit. It will be
seen, Mr. President, that Applicants here equate apartheid with separa
tion or discrimination on the basis of membership in a group.
On analysis, the argument appears to amount to this: if a norm and/or
standards as suggested by Applicants were in existence, apartheid would
be in conflict therewith. The resolutions condemn apartheid, therefore,
the resolutions must have been based on the notion of the existence and
application of a suggested norm and/or standard. 2\fr. President, it wiII
be obvious that such an argument involves a complete no1i sequititr.
Most of the resolutions indeed spoke advcrsely of, or even condemned,
apartheid by name or Respondent's policics in general. But surely the
important question is, what did the authors and supporters of the resolu
tions conceive to be the features of apartheid which deserved their con
demnation? Did they conccive of apartheid merely as a policy which
involves separation or differentiation on the basis of group or race, and
regard that feature as being obnoxious in itself and requiring their con
demnation, or did they think of apartheid as a policy which unfairly
discriminates against a particular group for the benefit of another?
Itwould be obvions that if the authors and supporters of the resolutions
viewed apartheid, separate development. in this latter sense. that is, as
involving unfair discrimination, then these resolutions cannot possiblv
assist Applicants' case regarding the standards or norm, and, l\IrPresi
dent, it is of course purely for the purposes of a norm or standards con
tention that Applicants rely on these rcsolutions.
It is our purpose in this review to dcmonstrate that apartheid was
condemned in these resolutions exactly on the basis of a conception that
apartheid was an oppressive system, discriminating against some groups
for the benefit of others, and not on the basis of a conception that any
differential allotment of rights, duties, obligations, etc.. on the basis of
membership in a group rather than on the basis of individual merit,
need, capacity, etc., must be regarded as a perse violation of international
law and/or of standards intended to be laid down as binding by the United
Nations.
\Ve propose dealing first with the resolutions pertaining to South
West Africa, and thereafter with those pertaining to South Africa itself.
The former nine resolutions were ail adopted durîng the 14th, 15th, r6th,
17th and 18th Sessions of the General Assembly-that was during the
period 1959-1963-and thcy were ail based on reports of the Fourth
Committee. Since no or very little discussion took place in the General
Assembly prior to the adoption of these resolutions, and since the resolu
tions were identical with the relevant draft resolutions which were adopted
in the Fourth Committee, it is to the debates in the Fourth Committee
that one has to look in order to ascertain the views of delegates who
voted for the draft resolutions. But before proceeding to deal with the
specific.resolutions relied upon by Applicants, it is convenient to point
to the mfluence of the annual reports of the Committec on South West
Africa on the debates in the Fourth Committee. My colleagues have al
ready shown that these reports were to a large extent influenccd by
written petitions and by oral statements of petitioners who were granted
hearings by the Committee on South West Africa. These reports were
annually submitted to the Fourth Committee, and, together with state- SOUTH WEST AFRICA
ments made by petitioners who were granted additional oral hearings
by the Fourth Committee served as the basis for the discussion that took
place in that Committee. In other words, the basis for the discussion and
the debates in the Fourth Committee was statements by petitioners and
the reports of the Committee on South West A.frica.
In view of the influence of the reports on these debates, from which we
shall cite a number of extracts, it is important to observe that while the
Committee on South West Africa condemned Respondent's policies, it
did not do so on the basis of the existence of any norm or standard of
non-separation or non-discrimination, but purcly because the Committee
viewed apartheid or separate devclopment as a policy designed to oppress
and subjugate the indigenous inhabitants of the Territory. \Ve shall at
a later stage, when dealing with the so-called question of legal action
against South Africa, iHustrate this thesis by citing extracts from the
Committee's reports during the period 1954-1959. The Court will probably
know that prior to the institut10n of the present action against Respon
dent studies were undertaken by organs of the United Nations relative
to possible legal action which could be instituted against Respondent;
it is when dealing with these studies that we shall cite extracts from the
reports for the pcriod 1954-1959.
For the present, however, our point can be sufficiently demonstrated
by quoting some random examples of the views of the Committee con
tained in the 1960 and 1961 annual reports and the special report for
1961. I quote first from the 1960 report-the reference is General As
sembly, Official Records, 15th Session, Supplement No. 12 (A/4464). In
this report, in its concluding remarks, the Committee stated:
"The Mandatory Power bas continued .toadministcr the Terri tory
on the basis of a policy of apartheid and 'White supremacy' which
is contrary to the Mandate, the Charter of the United Nations, the
Universal Declaration of Human Rights, the advisory opinions of
the International Court of Justice and the resolutions of the General
Assembly.
For several years, particularly since the transfer of direct control
over the administration of 'Natives' and 'Native' areas in the Terri
tory to the Union Department of Native Affairs, the Committee
has become increasingly concerned at the trend of the administra
tion which subordinates the well-being and paramount interests of
the 'Native' and 'Coloured' population to those of 'Europeans' ."
(P. 56.)
Here there are also two key passages. In the first instance the policy of
apartheid is equated with the policy of White supremacy, and then it is
said that the Administration subordinates the well-being and paramount
interests of the Native and Coloured population to those of the Euro
peans.
In the rg6r special report the Committee, with reference to the eco-
nomic life of the Territory, concluded that- ·
"the Native peoples have no share in the profits of trade, commerce
and industry, or in the utilization or exploitation of their agricul
tural, fishing or rich minerai resources, their only role being as a
cheap source of labour for the benefit of the \\'hites, with no right
to own land, which has been alienated to the extent that only 26 per
cent. of the total land area of the Territory has been reserved for ADDRESS BY MR. VAN HEERDEN
143
the Non-European majority. Neither have the Natives the right to
practise the professions or to engage in general trade, commerce
and industry ... ". (General Assembly, Official Records, 16th Session,
Supplemcnt No. 12A (A/4926), pp. 20-21.)
In the same report, and as regards the field of education, the Com
mittee stated:
"Under the present system of Bantu education, Natives are
restricted to a rudimentary system of schooling and training
designed to confine them to menial occupations in order to keep
them in astate of subservience to the White minority." (P. 2r.)
Here it is said that in the economic field apartheid ensures that the Natives
have no share whatsoever in the resources of the Territory, their only
role being one of a source of cheap labour,and then it is said that in the
educational field apartheid ensures that this cconomic status quo is
perpetuated-c\early allegations of suppression and oppression of the
Native inhabitants of the Territorv.
In the 1961 annual report the Committee, with reference to the special
report,stated that two basic policies were consistently applied to the
Territory; firstly, a policy of annexation, and secondly~
"the ruthless application of the policy of apartheid in all aspects of
life of the Native inhabitants whereby their interests and well
being, which are paramount under the terms of the Mandate and
the International Trusteeship System, have been completely sub
ordinated to those of the White minority, thus depriving them of
basic human rights and fondamental freedoms ... ". (General As
sembly, Official Records, 16th Session, Supplement No. 12 (A/4957),
p. 30.)
There we have the same theme of subordination of the indigenous in
habitants to the interests of the White inhabitants.
In view of the nature of these and other statemcnts and conclusions
of the Committee on South West Africa, and of the evidence of petition
ers, it was only to be expected that in the ensuing debates in the Fourth
Committee condemnation of Respondent's policies was based on the
alleged oppressive nature; that this was indeed the case I shall now
proceed to show.
It will be realized that it is, of course, not feasible to quote the views
of every delegate to the Fourth Committee who voted for the draft
resolutions in question, but the passages which we shall cite, in our sub
mission, provide sufficient examples to dcmonstrate that when speaking
of apartheid or of Respondent's policies in general, delegates thought of
the policy designed to oppress, and in fact oppressing. the non-White
inhabitants of the Territory. and not of the policy involving mere differ
entiation or separation or discrimination on the basis of group or race.
We do not suggest that this appears positively from each and evcry
statement to be found in the relative debates. Sorne statements, Mr.
President, are colourless in the sense that they do not explicitly reveal
why the speakers concerned spoke adversely of Respondent's policies.
\Vhat we can say, however, is that we did not find a single statement
which unequivocally showed that the speaker condcmned Respondent's
policies as being objectionable for the mere reason of allotment of rights,
duties, on the basis of membership in a group, rather than on the basis of SOUTH WEST AFRICA
144
individual merit, etc. We can also say that at least the majority of
speakers in the debates positively based the opposition to such policies
on the alleged oppressive nature.
We have already demonstrated the factual unreliability and inaccuracy
of the sources upon which the statements of such speakers rested, as
well as the lack of substance in the charges of oppression. In view, how
ever, of Applicants' abandonment of the charges of oppression in these
proceedings, and their acceptance of Respondent's exposition of the facts,
it is unnecessary to pursue the aspect of fact1:al inaccuracy in respect of
each and every one of the statements made in the debates. Nor is it our
concern for purpose of argument now being advanced. Indeed, it suffi.ces
to sav that absence of further comment on the truth, or otherwise, of
the statements to be cited is not to be construed as a concession of the
corrcctness thereof.
It may also be pointed out that in the quotations to follow there may
be some overlapping with the substance of extracts already stated for
other purposes. This is regrettably unavoidable and we have endeavoured
to reduce that ta a minimum. It is a fact, Mr. President, that quotations
made for other purposes have already, ta a large extent, illustrated the
point with which I am concerned in this argument. Consequent1y I need
not cite so many passages as otherwise might have been necessary.
I turn now to the 14th Session of the General Assembly. During this
session only one resolution pertaining to South West Africa was adopted:
that was resolution No. 1360, the reference being: General Assembly,
Official Records, 14th Session, Supplement No. 16 A/4354. Whilst the
operativc part of this resolution did not contain a condemnation of Re
spondent's policies, the preamble noted-
"... that the administration of the Territory in recent years has
been conducted increasingly in a manner contrary to the Mandate,
the Charter of the United Nations, the Universal Declaration of
Human Rights ... ".
And as has already been pointcd out by my colleague, Mr. van Rooyen,
the preamble also referred to-
"... the statements of petitioners which further corroborate the
conclusions and opinions formed by the Committee on South West
Africa concerning political, social, economic and educational con
ditions prevailing in the Terri tory".
Reference to the debates in the Fourth Committce immediately makes
it clcar why it was thought that the administration of the Tcrritory was
conducted in a manner contrary to the Mandate, etc.
ln the first place, Mr. President, I refer to a statement made in the
921st Meeting of the Fourth Committee, by Mr. Samsuri of Albania.
This is a representative statemcnt containing a number of clements
echoed by other delegates. This speaker-
"... stated that the Union Government, flagrantly violating the
principles of the United Nations Charter, had virtually transformed
the Territory of South West Africa into a colony and reduced its
African population to astate of slavery. The report of the Commit
tee on South West Africa and the statements made by petitioners
shov.red that the economic situation of the African inhabitants was
steadily detcriorating, that they were looked upon by the Adminis- ADDRESS BY MR. VAN HEERDEN 145
tration as nothing more than a source of low-cost labour and that
they were given no opportunity to develop skills which would enable
them to rise above their present position. Whole communities of
Africans were being forcibly removed from their traditional lands in
order to make way for European settlers. Educational and health
conditions among the African population were deplorable. The in
sincerity of the Union Government's efforts to convince world
public opinion that the policy of 'apartheid' was consistent with
respect for human dignity and human rights had been clearly de
monstrated by the statements of the petitioners ... "
At the same meeting, Mr. Kudryavtsev (Byelorussian S.S.R.) said
that the Respondent-
". . . practised a policy of racial discrimination and segregation
which according to the Committee on South \Vest Africa had been
not only continued but intensified".
In support of this statement, he echoed that-
"... people were driven from their land and their homes, and families
were separated, in order that the best land might be taken from the
indigenous population and handed over to the Europeans ... that
Natives could be compelled to work for Europeans in conditions of
virtual serfdom. Thev were denied the most elementarv human
rights." , ,
Mr. President, this was from the 14th Session of the Fourth Committee,
at page 204.
The same theme was repeated by other delegates, but I think that
these quotations from the particular debate are sufficient to illustrate
our point, namely that the theme was one of confining the Natives to
poverty, of confining them to slavery, of forcibly expelling them from
the lands to make place for European settlers. The same theme rccurred
with absolute monotonous regularity, as reference to our list marked
"J" 1 will show.
Mr. President, I may say here that I shall refer to a number of other
lists, ail of which have been handed in to the Registrar and a copy has
been handed to the Agent for the Applicants. I should like, however, to
add two references to the list marked "J". I had intended to read these
quotations, but did not find it nccessary to do so. They are:
Mr. Rodriguez Fabregat (Uruguay): 922nd Meeting (pp. 2n-212).
Mr. Abikusno (lndonesia): 920th Meeting (p. 201).
Mr. President, bcfore the adjournment I cited some extracts from de
batcs in the Fourth Committee during the Fourteenth Session of the
General Assembly. I also referred to further references set out in our list
marked "J".
But many more speeches could have been rcfcrred to: throughout
1 Fourth Commillee :
U Tin Maung (Burma): 916th :IIeeting (p. 178).
i\fr.Kim Khoan (Cambodia): grSth .Meeting(p. r86).
Air. Shumada (Ukrainian S.S.R.): 918th Jlleeting (p. rS9).
i\fr. Caba (Guinea)<,J21stMeeting(p. 203).
Mr. Sidi Baba (l\forocco):916th Meeting (p. 177).
Mr. Adam (Ghana): 923rd Meeting (p. 216).
Mr. Grinberg (Bulg::iria): 931st Meeting (p. 252). SOUTH WEST AFRrCA
these debates, as also in the debates of later sessions, statements made
by delegates who voted for the draft resolutions left no doubt that they
perceived apartheid to be an arbitrary and even brutal policy, designed
to suppress and oppress the Native population and to benefit the White
group.
I corne, then, to the 15th Session of the General Assembly. During this
session, four resolutions pcrtaining to South West Africa were adopted.
One of these. No. 1567, dealt with a specific occurrence, that is, the riot
in the Windhoek Native Area in December 1959; whi!st another, No.
1565 (p. 31), was concerned with-
"Legal action to ensure the fulfilment of the obligations assumed
by the Union of South Africa in respect of the Territory of South
West Africa."
A third resolution, No. 1596, related to Respondent's refusai to allow
the Committee on South West Africa to enter the Territory; and the
fourth one, No. 1568, was concerned more generally with the so-called
question of South West Africa.
Resolution No. 1596 spoke in its preamble of the application to the
Territory of "tyrannical policies and practices such as apartheid".
Resolution No. 1568 deprecated "the application, in the Territory of
South West Africa, of the policy of apartheid". ln the first paragraph
of the operative part of this resolution, reference was made to--
"... a policy which infringes the fondamental rights and freedoms
of the indigenous inhabitants of South West Africa and imposes
upon them disabilities of various kinds, hindering their political,
economic and social advancement".
It will be seen that the wording of these two resolutions already in
dicates clearly that disapproval of Respondent's policies was based on
the notion that they oppressed the indigenous inhabitants. After ail,
Mr. President, the resolutions spoke explicitly of tyrannical policies, of
disabilities imposed upon the indigenous population, and of infringement
of the fondamental rights. At any rate, the debates in the Fourth Com
mittee confirrn this entirely. I shall cite only three passages to prove this
point.
At the rn58th Meeting of the Fourth Committee Mr. Kuchava, U.S.S.R.,
said:
"In flagrant vio1ation of the principles of the Charter, the General
Assembly resolutions and the international commitments cntered
into by the Union of South Africa, the South African Govemment
had transformed the Territory into a colony where the indigenous
inhabitants had no rights, were deprived of the more fertile land
they possessed, herded into reservations, subjected to forced labour,
slavery and torture, and reduced to a state of wretchedness. The
reports of the Committee on South West Africa. statements by
petitioners, and articles in the Press, ail testified to the shameless
exploitation of an entire people by a minority of European settlers
who were carrying out the 'apartheid' policy of the Union Govem
ment."
The reference here is Fourth Committee, 15th Session, page 339.
At the ro62nd Meeting of the Committee, i\Ir. l\Iaghera (Romania) at
page 365, speaking of the policy of apartheid, said that- ADDRESS BY MR. VAN HEERDEN
147
"... under that policy the welfare and înterests of the 'Native' and
'Coloured' populations were completely subordinated to the policy
of 'white supremacy'. The examples of the implementation of that
policy cited by the petitioners and in the report had filled the mem
bers of the Fourth Committee with indignation. Not only were the
indigenous inhabitants confined to reserves deprived of ail political
rights and rcduced to a condition of virtual slavery, not only were
unarmed Africans at the mercy of armed 'Europeans', but the Ad
ministration had introduced Bantu education, which consisted in
training Africans to resign themselves to the status of beasts of
burden."
At the same meeting Mr. Lamani, Albania, virtually repeated the
statement made by his colleague during the previous year-that was
at page 367 of the relevant dcbatcs-and Mr. El Amin (Sudan), repeated
portions of the statements made by Mr. Maghera of Romania, which I
have just cited. As a matter of fact, Mr. President, the similarity in the
language used by the speakers is truly remarkable, for Mr. El Amin of
the Sudan also said that the Natives were prevented from resisting
"apartheid" "under which their status would be that of animais". This
is at page 369 of the relevant report.
Finally, Mr. President, I cite from a speech by U Tin Maung, Burma,
at the rn6th Meeting of the Fourth Conunittee, page ror:
"What that policy (i.e., apartheid) amounted to was domination
by the '\Vhites' over the indigenous population in the economic,
social and political fields.''
There are many other speeches, Mr. President, which repeatcd this
very same thing. We have made reference to some in our list marked
r,Kt'1.
There will be found examples of sirnilar characterizations of apartheid,
which clearly show that the speakers concerned viewed the policy of
apartheid as one of arbitrary and tyrannical oppression of the Native
groups.
To the references in our list marked "K" I should like to add a few
others, which I had first of all intended to read out to the Court. First,
Mr. Kudryavtsev, Byelorussian S.S.R., at the nr5th Meeting, page 91,
and Mr. Cassou, Togo, at the ro76th Meeting, pages 456-457.
Only one resolution pertaining to South West Africa was adopted at
1 Fourth Commiflee:
Mr. Kestler (Guatemala): 1058th i..!eeting, p. 340.
Mr. Thapa (Xepal): 1059th Meeting, p. 343.
J\fr. Kizia (UkrainianS.S.R.): 1059th Meeting, p. 3-14.
J\fr. Marcos {Philippines)1060th )!eeting,p. 349.
Mr. Quaison-Sackey (Ghana): ro6oth Meeting, p. 348.
Mr. Zahir (Malaya): J06oth Meeting, p. 352.
k!Y. Lamaiii (Albania): 1062nd Meeting, p. 367.
l\lr. Diallo Aiphc1 (Guinea)ro6rst Meeting, p. 358.
Mr. Wahab (U.A.R.): 1062nd Meeting, pp. 36r-362.
Jifr. S0phirim1 (Indonesia)106:rnd Meeting, p. 366.
Mr. Carpio (Philippines): ro5oth Meeting, p. 3or.
Mr. Loriuc (Hungary): 1062nd :lfeeting, p. 36+
Mr. Bouziri (Tunisia): ro73rd .:\1eeting, p. 436.
1lfr. Lapin (U.S.S. R.): r 101st :'lleeting, p. r8.
Mr. Carpio (Philippines): r r r5th Meeting, pp. 93-94.148 SOUTH WEST AFRICA
the 16th Session of the General Assembly. The preamble of the resolution,
that was No. 1702 (XVI), spoke of-
"... the progressive deterioration of the situation in South West
Africa as a result of the ruthless intensification of the policy of
apartheid".
In its operative part it was decided to establish a United Nations
Special Committee for South West Africa whose task it would be to
achieve the repeal of laws and regulations which "establish and maintain
the intolernble system of apartheid". The rcference here is to General
Assembly, Official Records, 16th Session, Volume I, Supplement No. 17,
A/5roo, page 40. Reference to the debates in the Fourth Committee
shows that apartheid was still viewed as before, that is, as an oppressive
system.
Mr. President, as the general tenor, from year to year, was the same,
the only difference being an increase in intensity, I shall from now on
wards make the actual quotations shorter and !cave more to references
in the record.
At the 1233rd Meeting of the Committee, Mr. Hajro of Albania stated
at page 490:
"Under the apartheid system the Africans were prisoners in their
own country and were deprived of ail human rights and of their
fondamental freedoms. Trcated as inferiors and as slaves, their sole
function was to serve the Whites."
This is from the Fourth Committee records, 16th Session, page 490.
Mr. Khosla of India, at the 1232nd .Meeting of the Committee, at
page 481, said:
"There was ample evidence to sho\Vthat the Mandated Territory
had been treated as a domain reserved for exclusive and mcrciless
exploitation by the Afrikaners. The indigenous inhabitants were
denied all basic human rights and fondamental freedoms, kept in
subjection by force, made to live in poverty and denied education."
Finally, a reference to l\Ir. Carpio of the Philippines, at the 1225th
:Meeting of the Committee, pages 428-429 fol!ows:
"The situation was aggravated by the fact that South Africa had,
from the start of its administration. practised a policy of 'apartheid',
which was one of the vilest forms of racial segregation and resulted
in the interests of the indigenous population being entirely sub
ordinated to those of the minority of settlers ... "
There is still onexcerpt which I should likc to quote and that is from
a speech by Mr. O'Sullivan of Ireland at the 1236th Meeting of the Com
mittcc, page 518:
"lnstead of preparing the Territory for independence, instead of
promoting to the utmost the material and moral well-being and the
social progress of the inhabitants as required by the terms of the
Mandate, the South African Govemment had enforced a series of
mcasures designcd to maintain the indigenous inhabitants in a rudi
mentary state of civilization, to dispossess them of their land and
move them forcibly to Native reserves, to organize the cultivation
of former Native land bv South African and other white settlers and
generally to establish a situation leading up to the annexation of the
Mandated Territory." ADDRESS BY MR. VAN HEERDEN
149
Here we find, in the extracts which I have quoted, the same basic theme
repeated over and over. Apartheid means the deliberate oppression of the
non-Vlhites for the benefit of the White group. 1
Further refercnces are given in the list marked "L" •
Coming to the 17th Session of the General Assembly-during this
Session the Assembly adopted resolution r805 (XVII). The reference to
this is General Assembly, Official Records, 17th Session, Supplement
No. 17, A/5217.
This resolution did not in so many words condemn apartheid, or Re
spondent's poHcies generaJly, but referred back to previous resolutions,
and, in particular, to rcsolution 1702 (XVI}, with which I have just
dealt, which was adopted during the 16th Session. In its opcrative part
the resolution condemned-
"the continued refusai of the Government of South Africa to co
operate with the United Nations in the implementation of resolution
1702 (XVI) as well as othcr resolutions conceming South West
Africa";
and since the latter reso1ution requested Rcspondent to assist in repealing
ail laws which established the system of apartheid, the resolution under
discussion by implication condemned the application of a policy of
apartheid or separate development to the Territory.
ln the prcamble of this resolution conccrn was exprcssed "that the
continuance of the critical situation in South West Africa constitutes
a serious threat to international peace and security". lt will be recalled
that Applicants placed somc obscure importance on what they termcd:
"... the characterization by the General Assembly of the policy
practised in both South West Africa and in the Republic itsclf not
only as a brcach of the Charter obligations but also as a threat to
international peace".
This is from the verbatim record of r8 May, IX, pages 333-334. This,
said Applicants, was:
"Indicative of the seriousncss with which member States, with a
consensus virtua11y approaching unanimity, have regarded the
developmcnt and continuation of the policy of apartheid ... "
(IX, p. 333.)
As in the case of the other resolutions, the debates in the Fourth
Committee clearly show why delegates who voted for the draft resolu
tions, condemncd what they termed apartheid and why they thought
that the continuation of Rcspondent's policies constituted a threat to
1 Fourth Committee:
Mr. Neklessa (U.S.S.R.): 123,md l\teeting,p. 504.
Mr. Carpio (Philippines): 1218th Meeting, pp. 385-386.
Miss Imru (Ethiopia): 1230th ;\'leeting. p. 469.
Mr. Peiris (Ceylon): 1232nd l\1eeting, p. 473.
1\lr. Szilagy(Hungary): 1231st Meeting, p.475.
Mr. Khosla (lndia): 1232nd Meeting, pp. 481-482.
Mr. Banzar (I\Iongolia):1233rd 11.foeting, p. 48j.
Air. Bingham (U.S.A.): 1233rd I\Ieeting, p. 492.
Mr. Neklessa (U.S.S.R.): r234th Meeting, p. 504.
Mr. !be (?sigeria):1236th Meeting, p.517.
Mr. Brykin (U.S.S.R.): 1235th Meeting. p. 509.
Mr. Sanliso Galvez (Guatemala): 1·i34th .Meeting, p. 499..ISO SOUTH WEST Al?RICA
international peace. We shall show that even to a greater extent than
before, the notion was expressed that apartheid was a policy of ruthless
suppression and even extermination of the indigenous inhabitants of the
Territory.
At the 1379th Meeting of the Conunittee, Mr. Langlo of Nonvay was
reported to have said:
"Apartheid was the cause of ail the evils afflicting South West
Africa. As long as that system was maintained, the indigenous in
habitants could not expect equality of educational facilities, since
the very purpose of education under apartheid was to prepare the
non-white population for permanent inequality."
This is from the records of the Fourth Committee, 17th Session, page 325.
At the 1380th Meeting of the Committee, Mr. Ngando-Black of
·Cameroon said, inter alia, that the indigenous inhabitants-
"... were not allowed to own land ... nor were they allowed to
enter the liberal professions, to carry on trade or industry or to
establish trade unions ... Under the so-called Bantu education
system, the indigenous inhabitants were given only a rudimentary
education and training, so that they would remain in subjection to
the white minority."
This is from the same source, at page 329.
I have one final quotation and this is taken from a speech by U Tin
Maung of Burma at the 1377th Meeting, at page 309:
"The Republic of South Africa was engaged in setting up large
Native reserves which would fumish cheap labour for the European
farms and industries, and whilst the Africans were being removed
to desert areas, white immigrants from Europe were being en
couraged to occupy the fertile lands from which the indigenous
inhabitants had been expelled."
Further references are given in our list marked "M" 1•
1 Fourth Commiltee :
.lvfr. Atidépé (Togo): 1376th Meeting,pp. 300-301.
Mr. Dmyterko (Ukranian S.S.R.): 1377th Meeting, p. 310.
Mr. Valencia (Ecuador): 1377th Meeting, p. 311.
.A!r. Khosta (India):1378th ;\leeting, p. 315.
}.-fr. N'Garabaye (Chad): 1378th .Meeting, p. 317.
.Mr. Gren (U.S.S.R.J: 1378th Meeting, pp. 317-318.
Mr. Purevjal (l\1ongolia): 1379th Meeting, p. 326.
.Mr. Sûlagyi (Hungary): 1380th Meeting, p. 333.
Mr. Lamani (Albania}: 13Soth Meeting, p. 334.
.1Wr. Shaba (Tanganyika): 1381st Meeting, p. 34~.
]}fr. Bozovie (Yugoslavia):1382nd Meeting, p. 353.
.Jl,Jr.Erebih (Mauritania)1383rd Meeting, p. 358.
.llfr. Delgado (Senegal)r385th l\leeting, p. 371.
.Mr. El-Afasri (Libya): 1386th Meeting, p. 380.
11/r.Hamdani (Pakistan): 1386th Meeting, p. 381.
Mr. Issa (Niger): 1387th 1Ieeting, pp. 388-389.
]1,JrSato (Central African Republic): J387th Meeting, p. 389.
Jlfr. !polo (Congo, Leopoldville):1387th Meeting, p. 392.
Mr. Huidobro (Chile): r376th Meeting, pp. 299-300 .
.Mr. Makkawi (Lebanon): r383rd Meeting, p. 359.
_Jfiss Kama/ (Iraq): 1383rd Meeting, p. 364.
.lvlr. El Awad (Sudan): 1381st Meeting, p. 343. ADDRESS BY MR. VAN HEERDEN 15r
Finally, l\Ir. President, we corne to the 18th Session of the General
Assembly. During this Session, the General Assembly adopted two
resolutions pertaining to South West Africa: resolution 1979 (XVIII)
was exclusively concerned with Respondent's so-called refusal to co
operate with the United Nations in regard to the implementation of the·
Declaration on the granting of independence to colonial countries and.
peoples, and it is consequently not of any immediate interest; resolution
1899 (XVIII) followed much the same lines as resolution r805 (XVII),
adopted at the 17th Session of the General Assembly. In the preamble·
of this resolution. reference was made to "the continuing deterioration
of the situation in South West Africa resulting from the intensification
of the policies of apartheid"; in the operative part of the resolution it
was decided-
"... to draw the attention of the Security Council to the present
critical situation in South West Africa, the continuation of which
constitutes a serions threat to international peace and security".
Now, Mr. President, references to the debates in the Fourth Com
mittee show that the notion that Respondent's policies were designed
to suppress, subjugate, and even exterminate the mdigenous inhabitants.
had, if anything. grown firmer, and that the condemnation of these
policies on such false premises had become cven more hysterical. A few
examples, selected at random from the dcbates of the Fourth Committee·
during the 18th Session, should suffice to prove this point.
First of ail, I should like to refer to a statement made by Mr. Chernush
chenko of the Byelorussian S.S.R., at the 1462nd Meeting of the Fourth.
Committee, when be said, inter alia:
"In South West Africa, 500,000 Blacks, representing 90 per cent.
of the Territory's total population, lived in slavery and were de
prived of their most elementary rights. The overwhelming majority
of the population had been herded into reserves that were com
parable to the fascist concentration camps and were mainly to be
found in the dry and least fertile regions in the north ofthe Territory.''
At the 1460th Meeting of the Committee, Mr. Kooli of Tunisia said :.
"The principle which guided the Mandatory was that of white
supremacy and, through its policies of apartheid. South Africa
withheld from the indigenous inhabitants any possibility of social,
economic and political progress and any hope of some day being·
able to exercise their right of self-determination."
At the 1464th Meeting of the Committee, Mrs. Meneses de Albizu
Campos of Cuba said, at pages 217-218:
"Thus the policy of genocide was being pursued with greater·
vigour jn South West Africa, while the barbarous policy of apartheid
was also being more broadly and more intensely applied."
Finally, I refer to a statement made by ;1r.Cabal of Brazil, at the
1457th Meeting of the Committee, at page 151:
"Thus the factual situation was that there was in the Territorv
of South West Africa an inhuman policy designed to subordinate
and exploit the indigenous population ... "
So, Mr. President, we fi.ndhere allegations of oppression, of subjection,
of treating the Natives as inferior human beings, even scrious allegations.
of genocide-that is what the word or the concept of apartheid conveyed152 SOUTH WEST AFRICA
to these delegates, not a mere a!Iotment of rights, duties, etc., on the
basis of membership in a group rather than on individual merit, etc.
The same theme, l\lr.President, was expressed in numerous other
statements, some of which are referred to on our list marked "N" 1.
Many more examples of speeches to the same effect as extracts quoted
by us could be cited, but we submit that we have shown conclusively
that none of the resolutions relied upon by Applicants, at lcast those
pertaining to South West Africa, were based on the application of their
standards and/or norms. The delegates who voted for the resolutions,
condemned Respondent's policies or apartheid by name, not because
they thought that differentiation on the basis of a group or race is im
permissible, but upon the basis of acceptance that such policies were
designed to, and did in fact, oppress the indigenous inhabitants of the
Territory for the benefit of the White group. Hcnce, Mr. President, the
repeated allegations of subjugation of the Natives, of depriving them of
all human rights, of confiscating their land, of driving them to the poorest
and least fertile areas of the Territory, of deliberate retarding of economic
progress, of slavery, of forced labour, of education desîgned to maintain
them in an inferior position as beasts of burden, of lack of assistance in
health, agricultural and other matters, even of wholesale murder, slaugh
ter and genocide. lf these resolutions were based on the application of
any norm or standard, then it was a norm of non-oppression on the basis
of group or race. As we have already demonstrated, Applicants have
abandoned the case which they originally sought to bring on the basis
of such a norm of non-oppression, clearly, Mr. President, because, in the
face of the facts presented to the Court by Respondent, Applicants would
have bcen wholly unable to produce the necessary factual proof that
would have been required for success on that basis.
It is consequently wholly unnecessary for us to show that Respondent's
policies are not in fact in conflict with the norm or standard of non
oppression, neither have we sought to do so, nor will we seek to do so,
either by the presentation of evidence or in further argument. But
before leaving the resolutions pertaining to South West Africa, it will be
convenient to recall that one of Applicants' arguments relating to their
standards and/or norm theory was that so-called authoritative inter
pretations of the United Nations Charter are relevant to an interpreta
tion of the Mandate, and we refer to the verbatim record of II June, IX,
at pages 583-584, where we summarized this argument. They relied
upon the self-same resolutions of the United Nations as establishing-
• Fourth Committee:
lllr. Ene (Rornania): 1459th Meeting, p. 169.
Mr. Sali/ou (Niger):1458th Meeting, pp. 160-161.
Mr. Hudu-A cquah (Ghana): 1458th Meeting, p. 158.
111r.Dias Gonzalez (Venezuela): 1460th Meeting. pp. 181-182.
Mr. Anonw (Ivory Coast): 1460th Meeting, p. 183.
Atr. Rana (i'>cpal): 1460th Meeting, pp. 184-185.
Mr. Purevjal (Mongolia): 1460th Meeting, p. 185.
1lfr.Kundya (Tanganyika): r460th Meeting, p. 186.
l\lrl\fongono (~igeria):1461st Meeting, p. 191.
Mr. Alexeyov (Ukrainian S.S. R.):1464th Meeting, p. 215.
Mrs. Campos (Cuba): 1464th Meeting, p. 217.
Mr. Lulo (Albania): 1461st Meeting.
lifr.Mankou (Congo, Brazzaville): 1472nd l\Ieeting, p. 258. ADDRESS BY MR. VAN HEERDEN
153
the incompatibility of Respondent's policy of apartheid with
the relevant Charter provisions, in the light of which, as the Ap
plicants contend in their M.emorials, the Mandate should be read"
(IX, p. 331).
Now, it is true that most of the resolutions in question stated that
Respondent's policies were in conflict with the provisions of the Charter
if my recollection is correct, some also referred to a conflict with the
Mandate and with the Universal Declaration of Human Rights-but,
as we have shown, the resolutions condemned apartheid on the basis
that it was a policy designed to oppress the indigenous inhabitants of
the Territorv. In so far, therefore, as these resolutions could be said to
be interpretative of the Charter, they merely cstablished the view that
the Charter prohibitcd oppressive discrimination-and this, of course,
does not in the least assist Applicants' contention regarding a norm
and/or standards as defined by them.
It is also clear that whenever a delegate contended that Respondent's
policics were in conflict with the Charter and/or the :Mandate and/or
the Universal Declaration of Human Rights, he did so on the basîs of
regarding Respondent's policies as being oppressive of the Native popu
lation and of subjecting their interests to those of the White group.
Examples are to be found in a number of the speeches which I have cited
to the Court and which are referred to in our various lists. 1 think it is
sufficient to quote three more very typical examples, and then give
references to some others.
At the r4th Session of the Fourth Committee, Mr. Caba of Guinea said:
"The Union Govemment disregarded its obligations as laid down
in Article 22 of the Covenant of the League of Nations and in
articles2 to 5 of the i\Iandate. The people of the Territory were kept
in a position of inferiority, denied political rights, education, medical
care and freedom of movement, and subjected to forced labour.
The country was administered for the benefit of the European
citizens, who atone possesscd civic rights and enjoyed democratic
liberty, freeclom of movement, the protection of the law, human
dignity and opportunity for econornic, social and political develop
rnent." (Fourth Committee, 14th Session, 921st l\leeting, 22 Oct.
1959, p. 203.) '
Finally, at the 15th Session of the Cornmittee, Mr. Marcors of the
Phillipines stated that the policy of apartheid was-
"... based on the concept of 'white supremacy' whereby the rights
and well-being of the 'Natives' were completely subordinated to
those of the 'whites'. Those policies were a flagrant breach of the
sacred trust assumed by the Union Govemment under the League
of Nations Mandate and the United Nations Charter, a violation of
human rights and fundamental freedom, an open defiance of the
United Nations and a callous clisregard of world public opinion."
(Fourth Committee, 15th Session, ro6oth Meeting, 22 Nov. 196o,
p. 349.)
Furthcr examples of the same kind, Mr. President, are set out in our
list"O" 1.
1 Fottrlh Committee:
Afr. Carpio (Phillipines15th Session, p. 3or.:J:54 SOUTH WEST AFRICA
1:1.r.President, we submit that there can be no question that these
:and other speakers thought that apartheid was in conflict with the
Mandate or the United Nations Charter because it allotted rights, duties,
etc., on the basis of membership in a group. These speakers clearly
-thought that apartheid was contrary to the Charter because it was an
oppressive and, as was also said, a radical and inhuman policy.
\Ve turn now to resolutions pertaining to South Africa itself. As already
·stated, Applicants rely on IJ such resolutions, which were adopted
between the 5th and r7th Sessions of the General Assembly. It is true
that most of these resolutions, which were not by any means all adopted
by, to use Applicants' phrase, "a majority approaching unanimity",
nferred adversely to, or even condemned, Respondent's policies and
.apartheid by name.
Once again, reference to the debates in the ad hoc Political Committee,
,during the 5th to the 8th Sessions, and in the Special Political Committee,
during later sessions, where the relevant draft resolutions were adopted,
,shows that such adverse commentary on Respondent's policies was based
,on the notion that these policies in South Africa were designed to oppress
the Bantu population and not on the application of the standards or
norm, for which Applicants contend.
Mr. President, it will be appreciated that it would be a tedious business
·to illustrate this point by citing extensively from the debates during
all the sessions concerned-it would be IJ in aH-the more so because
the speeches tended to be repetitive to a very high degree. We submit
that it suffices to quote a few extracts from the last five sessions of the
Special Political Committee, during which criticism of the Respondent's
·policies became steadily more vehement than before.
First of all, then. I refer to the 14th Session of the General Assembly
.and during this session of the Special Political Committee, Mr. Talaat
,of the United Arab Republic, at the 140th Meeting. page 69, said:
"... the concept of racial superiority was quite out of date. The
policy of 'apartheid' had been recognized by Church leaders in
South Africa as a doctrine of white supremacy and privilege, seeking
to maintain Africans in a permanent state of subservience."
One more quote should suffice, Mr. President; I refer to a speech by
'Mr. Malalasekera of Ceylan, at the 143rd Meeting of the Committee,
:page Sr:
"The Union Government had based its political philosophy on
the doctrine that the white race, as the heir to Western Christian
civilization, was in duty bound to perpetuate its dominant position
despite its numerical inferiority. In pursuance of that policy, the
Union Government had taken various measures against the non
whites which were contrary to human dignity, thereby reducing
them to the status of second-class citizens."
There we find, Mr. President, the same allegations, the same content,
:as encountered in the debates in the Fourth Committee, which of course
Mr. Sophiaan (Indonesia): rn62nd Meeting, p.366.
M r.Valencia (Ecuador) : 7th Session, p3 1r.
_ivfrPurevjal (Mongolia): r 7tSession, p. 326 .
.1.llr. Ale:r:(Ukrainian S.S.R.):18th Session, p.215. ADDRESS BY MR. VAN HEERDEN I5S
related to South West Africa. Further references are given in list "P" 1
to which I should like to add a speech by Mr. Jamil of Iraq, at the
141st Meeting of the Special Political Meeting, page 73.
Next, Mr. President, at the 15th Session Mr. Sobolev of the U.S.S.R.
said, at the 240th Meeting of the Special Political Comrrùttee, at pages 64
and 65;
"The purpose of apartheid was to preserve a society based on the
exploitation of the cheap labour provided by a body of indigenous.
inhabitants who were denied the exercise of all political and civil
rights and freedoms."
l\fr. Wojado of Ethiopia stated at the 240th Meeting of the Committee.
at pages 66-67:
"Although based on a philosophy which rationalized prejudices.
and interests, in the final analysis apartheid wa.s a system of ex
ploitation which attempted to guarantee a life of comfort and luxury
to the few million Europeans.
Since apartheid was fundamentally a policy to maintain the
economic status quo, which enabled the minority to live on the
labours of the disenfranchised and subjected majority, the resolution
emphasized econorrùc measures."
It is seen, Mr. President, that it was clearly stated that the concept
of apartheid conveyed to this speaker a policy designed to maintain the
economic status quo, namely a life of comfort and luxury to the few
rrùllion Europeans.
Further references, Mr. President. are given in our list marked ''Q" 2•
I tum now to the 16th Session of the General Assembly. First of all,
I cite a passage from a speech by Mr. Barnes of Liberia, made at the
27znd Meeting of the Committee, at page 61:
"The Assembly had adopted many resolutions condemning 'apart
heid', but the Government of South Africa had aiways refused to
1Special Political Commiltee:
MY. Quaison-Sackey (Ghana): 140th Meeting. p. 68.
MY. Cassel (Liberia):141st Meeting. p. 71.
Mr. Pelros (Ethiopia): 142nd Meeting, p. 76.
MY. Shaha (Nepal): 142nd Meeting, p.78.
Mr. Chlerev (Bulgaria): 143rd Meeting, pp. 83-84.
Mr2 Bryaznov (Byelorussian S.S.R.): 146th Meeting, p. 93.
Special Political Committee:
Mrs. Fekini (Libya): 233rd Meeting, p.31.
Mr. Asha (United Arab Republic): 233rd Meeting, pp. 31-32
Mr. Thiam (Mali): 235th Meeting, p. 37.
U On Sein (Burrna): 235th Meeting, p. 38.
Mr. Shaha (Nepal): 235th Meeting, p. 39.
MY. Otfendal (Norway): 236th Meeting. p. 44.
My. Collet(Guinea): 238th Meeting, pp. 51-52.
Mr. Lonca, (Yugoslavia): 238th l\Ieeting, p. 53.
Mr. Malile (A!bania): 239th Meeting, p.57.
Mr. Bogdan (Rornania): 240th Meeting, p. 63.
Mr. Calkin (Bye!orussian S.S.R.): 241st Meeting, p. 7r.
MY. Akakpo (Togo): 242nd Meeting, p. 75. SOUTH WEST AFRICA
comply with them. Far from revising its evil policy, it was stepping
up its systematic repression of the Africans.
What exactly was 'apartheid'? A doctrine of racial superiority,
which held that the Africans were mentally inferior to the Whites."
Here, i\Ir. President, a representative, and, if I may say so, a very
distinguished representative, of one of the Applicant States clearly stated
what the concept of apartheid conveyed to him; a doctrine of racial
superiority which held that the Africans were mentally inferior to the
Whites.
At the 279th Meeting of the Committee, at page 94, Mr. Pachachi of
Iraq said:
"The South African representative had said that 'apartheid' did
not mean inequality and oppression for Africans but simply separatc
forms of development for two differcnt races with their distinct
cultures. That argument was patently, false, for anyone could see
that the policy of 'apartheid' was so conccived and carried out as to
keep the African inhabitants for ever subservient to the whites in
all aspects of life, whether political, social or economic, while at the
same time it provided the labour on which the whole South African
economy was based."
Mr. President, this statement is very important because the speaker
said in so many words that apartheid did not mean a policy which merely
separated the races and provided separate forms of devclopment for
different races with their distinct culture; he said that concept of apart
heid was false. In other words, Mr. President, he said that apartheid was
not merely what I can term a colourless policy which in effect allotted
rights, duties, etc .. on the basis of membership in a group rather than
on the basis of indiYidual merit, etc. This delegate said that any argument
that apartheid was merely such a differential allotment was false. Apart
heid was something else. It was, to him. a policy conceived and carried
out so as to kcep African inhabitants for ever subservient to the Whites.
Mr. President, further references are set out in our list marked "R" 1•
I corne to the second from last of the sessions of the General Assembly,
to which \\'e refcr, namely the 17th Session, and I refer fi.rst of all to a
speech by Mr. Subashinghe of Ceylon, at the 332nd l\Ieeting of the
Special Political Committee, at page 27:
"Under the pretext of a threat to the whites, a society had been
created in which a small white minority enjoyed riches which did
not belong toit and were exploiting a mass of indigenous semi-slave
labour. The State had instituted apartheid in order to perpetuate
that shameful society.''
1 Special Political Committee:
Mr. Qitaison-Sackey (Ghana): 269th Meeting, p. 46.
Mr. Tevoedfre (Dahomey): 269th Meeting, pp. 47-48.
Mr. Astaphenko (Byclornssian S.S.R.): 272nd :Meeting, pp. 62-63.
Mr. Benabud (Morocco): 247th Meeting, p. 70.
llfr. Hajro (Albania):281st Meeting, pp.105-ro6.
Mr. Jurtbre y juarbe (Cuba): 281st Meeting, p. ro6.
ltfr. Stamboliev (Bulgaria)281st Meeting, p. w7.
Mr. Gabre Selassie (Ethiopia):263rd Meeting, pp. 119-120.
1\1r. Suleiman(Sudan): 284th Meeting, p. 121. ADDRESS BY MR. VAN HEERDEN 157
At the 339th Meeting of the Committee, at page 67, Mr. Cassou of
Togo, speaking of apartheid, said that:
"... they [referring to the Africans] were deliberately kcpt in astate
of illiteracy and ignorance by the white colonialist rulers and
together with South Africans of Indian and Indo-Pakistan origin,
lived in constant fear and uncertainty ... Racist laws rerniniscent
of those which had been enforced in Germany at the time of the
Third Reich wcre being enacted for the purpose of protecting the
privileges of the whitcs and postponing indcfinitely the emancipation
of the indigenous inhabitants."
i\ir. President, further references to speeches made during the 17th Ses
sion of the GeneraI Assemb1y in the Special Political Committee are
given in our list "S" 1•
I may say that in all these speeches the same old theme was repcated,
namely one of oppression of the non-White inhabitants of South Africa.
Then, finally, Mr. President, we corne to the 18th Session of the General
Assembly: i1IrDiallo Telli of Guinea, at the 379th Meeting of the Special
Political Committee, at page 9, clearly said what apartheid conveyed to
him. He said:
"Apartheid meant blind repression, arbitrary imprisonment and
floggings; it meant constant humiliation for the sole crime of not
having a white skin. The entire international community was
directly concerned by a situation which degraded the coloured man
to such an extent, which flouted the United Nations Charter and
trampled underfoot the dignity of the African people and of man."
At the 385th Meeting, at page 39, Mr. Jargalsaikhan of Mongolia said:
"The policy of apartheid was a philosophy of hatred which per
vadcd every aspect of the country's administrative, political, social
and economic life. It was based on an out-and-out domination of
the overwhelming indigenous majority of the population by a
small white rninority, on persccution and on tyranny."
Then a last, final, quotation, Mr. President; this is from a speech made
by Mr. Mimbang of Carneroon, at the 390th Meeting of the Special
Political Committee, at page 70:
"The policy of apartheid which the advocates of scgregation
described as 'separate development', was based on force-enough
1Special Political Committee:
Mr. Talaat (United Arab Republic): 329th Meeting, pp. r 1-12.
i\1r. Dosumu-j olrnson (Liberia)329th Meeting, pp. 14-15.
Mr. Küia (Ukrainian S.S.R.): 33 rst Meeting, pp. 23-~4.
Mr. Mollinedo (Bolivia): 332nd Meeting, p. 29.
Mr. Usher (Ivory Coast): 333rd Meeting, p. 32.
]\1r.Mendoza (Guatemala): 333rd l\Ieeting, p33-
Mr. Ngyese (Congo, Leopold ville): 334th Meeting, p. 42.
1,fr. Jargalsaikhan(;\longolia)335th ;\leeting, p. 42.
Mr. Lamani (Albania): 335th Meeting, p. 44.
l'vfr. Garda del Solar (Argentina335th Meeting, p. 45.
Mr. Gallin-Couathe (Central African Republic): 336th Meeting, p. 47.
Mr. Badra (Tunisia): 337th Meeting, p. 53.
Mr. Nur Elmi (Somalia): 337th Meeting, p. 54.
klr. juarbe y Juarbe (Cuba): 337th Meeting, p. 56.
]\fr.Verret (Haiti):337th Meeting, p. 57.
Mr. Sahnoun (Algeria): 339th Meeting, p. 69. SOUTH WEST AFRICA
to hold in a state of slavery more than 12 million human beings.
The aim was to perpetuate the domination of the Whitcs over the
Blacks."
I'm sorry, Mr. President; there is one further important quotation
which I should like to give, from the speech of Mr. Hiram of Ireland
at the 423rd Meeting of the Committee, page 254:
"South Africa's racial policy was contrary to natural law. It was
degrading not only to its victims but also to those who had con
ceived it. There was no doubt at all that it deliberately sought to
kcep the majority of the population of South Africa in a state 0f
perpetual servitude."
Quite clearly then, these speakers whom we have cited expresserl. the
notion that the main aspect of apartheid which deserved their condem
nation was that it was a policy which was deliberately designed to keep
the non-White inhabitants of South Africa in an inferior position and
the White inhabitants in a position of superiority. Further references
are given in the list marked "T" 1.
The Court will have observed that the same accusations as in the case
of South West Africa were made with respect to South Africa itself:
inter alia, economic exploitation of the indigenous population, confining
them to arid areas, deprivation of all human rights, refusai to assist the
Bantu in matters of health, commerce, etc., deliberate withholding of
educational facilities-even serions allegations of herding of Bantu into
concentration camps and of large-scale murder. Quite clearly, l\IrPresi
dent,. the relevant resolutions on which Applicants relied, were based on
the notion that apartheid in South Africa is a policy which is designed
to, and does in fact, oppress and subjugate the Bantu population. We
consequently submit that the resolutions pertaining to South Africa
itself also afford no proof whatsoever of Applicants' allegation that the
United Nations, in condemning apartheid, applied standards and/or a
norm of non-discrimination and non-separation on the basis of group or
race as defined by Applicants.
Mr. President, the conclusions I have stated in regard to the resolu
tions of the General Assembly apply equally to the three resolutions of
the Security Council pertaining to South Africa itself on which Appli
cants rely. These resolutions are referred to at IV, page 503 of the written
Reply and the verbatim record of 18 May, IX, page 332. The resolu
tions in question did express the view that Respondent's policies were,
or apartheid by name was, in conflict with the United Nations Charter,
but again, Mr. President, this fact in itself does not assist Applicants'
case.
The question is: why and on what grounds did the authors and sup
porters of the three resolutions deem apartheid to be in conflict with the
Charter? And the answer, Mr. President, is not far to seek. The back
ground of these three resolutions is illuminating. The first resolution,
1 Special Political Committee:
MY. Menskikov (U.S.S.R): 39rst Meeting, p. 75.
Mr. Gebre-Egzy (Ethiopia):39rst Meeting, p. 77.
Mr. Astapenko (Byelorussian S.S.R.):392nd 1Ieeting, p. 88.
JI.fr. Taylharda(Venuzuela):392nd Meeting, p. 88.
Mr. Dato· Ong (Malaysia):394th Meeting, p. 95.
Mr. Nacof (Albania): 394th Meeting. p. 96.
MY. Nur Elmi (Somalia):396th Meeting, pp. 108-ro9. ADDRESS BY MR. VAN HEERDEN 159
S/4300, was concerned with specific occurrences in South Africa, that is,
disturbances which took place in 1960, while the other two resolutions
were more generally concerned with Respondent's policies. The first
and third resolutions were adopted after the Security Council had been
convened at the request of what is popularly known as the Afro-Asian
bloc at the United Nations, whilst in the case of the second resolution
the meeting of the Security Council followed on a request of the in
dependent African States, which were then 31 in number.
At ail the relevant meetings of the Security Council representatives
of African and Asian States, including Ethiopia and Liberia, which were
not members of the Council, took part in the debates. They indeed did
so to such a degree that during the 852nd Meeting of the Council, 30 March
1960, the President remarked (S/PV 852, para. 164, p. 36):
"... that there are more non-members of the Council participating
in this discussion than in the discussion of any item that I can recall
during my service here".
At the 1040th Meeting of the Security Council, Mr. Grimes of Liberia
explained the participation of representativcs of non-members of the
Security Council as follows {S/PV 1040, paras. 16 and 17, p. 4):
"\Ve have corne to the United Nations Security Council as rep
resentatives of allthe independent States of Africa under indigenous
mie, bearing the instructions of all heads of States and Governments
who met at Addis Ababa, in May 1963 ... Our mission is to present
the Security Council with the true facts of the situation of apartheid
in the Republic of South Africa ... "
Now, Mr. President, what were the true facts which were presented by
the representatives of non-members of the Security Council? ln our sub
mission, it is not necessary to cite more than a few extracts from the
speeches of such representativcs in order to show that the theme was the
old familiar one of oppression, which was repeated so often in the debates
of the Fourth Committee and the Special Political Committee. At the
852nd Meeting of the Security Council (S/PV 852, para. i"49, p. 33),
Mr. Cox of Liberia said:
"... in a country in which the non-white population constitutes
over 80 per cent. of the total, measures were adopted designed to
create perpetual economic and social servitude and to practise the
vilestforms of racial discrimination and segregation",
And in paragraph 151 on the next page, Mr. Cox said:
"Thus the Union of South Africa has proclaimed to ail the world,
openly and without any attempt at subterfuge, that it seeks to
create a social and legal system to ensure the permanent supremacy
of a small minority and utterly to prohibit participation of its non
white citizens in civil life."
At the same meeting, Mr. Gebre-Egzy of Ethiopia stated that the
"structure of 'apartheid' is based on the colonial concept of racial
supremacy" ,-this is in paragraph 133, at pages 30-31.
Finally, Mr. President, I rcfer to a speech made by Mr. Slim of Tunisia
at the 1050th Meeting of the Security Council, who said:
"The pernicious and universally repudiated doctrines of racial
superiority and apartheid are applied in South Africain a cruel and
odious manner. Human beings are treated as things, deprived of160 SOUTH WEST AFRICA
freedom and the enjoyment of any of the rights and privileges which
we are accustomed to regarding as the essential and basic principles
of any society ... " (Para. 45, p. n.)
And in paragraph 49, on the same page, Mr. Slim stated:
"At the mercy of the multiple and varied demands of law and of
injustice, pursued at every step by the exactions of agents of a sort
of South African Gestapo, the black-skinned inhabitants are daily
subjugated, humiliated and oppressed, haunted by the constant
spectre of arrest and suppression. AU the paths of progress and
development are closed to them."
l\fr. President, it will be clear from these few extracts that the true
picture of apartheid, the true facts of apartheid, were represented to the
Security Council by these representatives of non-members of the Security
Council, as being oppression and subjugation of indigenous inhabitants
of South Africa.
ln view of statements such as these and against the background of a
long campaign in the General Assembly and its committees, it is not
surprising that the authors and supporters of the three resolutions in
question viewed apartheid as a policy oppressing and subjugating the
non-White inhabitants of South Africa.
ln parenthesis, it may be pointed out that there is no indication
whatsoever that any independent fact-finding enquiry in regard to
apartheid was conducted by the Security Council or by any of its in
dividual members.
lt is true that some representatives, when speaking adversely of Re
spondent's policies, did not indicate clearly on what grounds the criti
cisms were based. On the other band, Mr. President, we did not find a
single statement from which it can be inferred that the speaker concerned
based his objection to these policies onthe notion that they merely allot- ·
ted rights, etc., on the basis of membership in a group rather than on
the basis of individual merit, etc. The important point is that those
speakers who did gi ve clear reasons for their views, based the condemna
tion of apartheid on its alleged oppressive and unfairly discriminatory
nature. To illustrate this point it suffi.cesto cite a few extracts, selected
at random, from the debates in the Security Council, which culminated
in the adoption of the three resolutions in question. At the 852nd Meeting
of the Council, Sir Claude Corea of Ceylon stated:
"The vicions doctrine of racial superiority and 'apartheid' have
been practised in a cruel and calions way, and human beings are
treated as no more than mere chattels and are deprived of freedom
and enjoyment of aHthose rights and privileges which we have corne
to regard as basic and fundamental privileges of a civilised demo
cratic society ... " (S/PV 852, para. 19, p. 6.)
At the 854th Meeting of the Security Council, Mr. Sobolov of the U.S.S.R.,
speaking of Respondent's policies in South Africa, said:
"In the political sphere, this racial discrimination means that
the indigenous inhabitants are arbitrarily deprived of the elementary
civil rightsand freedoms, that they are excluded from service in
government establishments and prohibited from taking any part
in the country's political and social life.
In the economic sphere, it means the creation of conditions en- ADDRESS BY MR, VAN HEERDEN I6l
suring for the settlers the possibility of a ruthless and unobstructed
exploitation of the local population, depriving the latter of ail rights
to the means of production, to the land and what lies under it, and
converting the African population into a cheap, underprivileged
labour force." (S/PV 852, paras. 28 and 29, p. 8.)
;\fr.Sidi Baba of Morocco referred at the ro54th l\Ieeting of the Council
to: "the criminal policy ... of the Verwoerd government'' and then he
proceeded to state:
"Apartheid, which the South African regime has raised to the
level of a governmental policy, can be compared only with the
barbarous policy of Nazi Germany, aimed at the extermination of
whole groups of people on the grounds of so-called racial inferiority."
(S/PV 1054, para. 7, p. 2.)
And a little bit further on, he said:
"Racism in South Africa takes the form of an inhuman system
of persecution and tyranny against the overwhelming majority
of indigenous population by an insignificant minority of whites."
(P. 3.)
At the ro55th Meeting of the Council, the same view was expressed by
Mr. Nielsen of Norway, who was then the President of the Security
Council. He said that the Norwcgian Government was shocked-
"... by the merciless ways of discrimination and the other forms
of suppression under which the large African majority in South
Africa suffers". (S/PV 1055, para. 9, p. 3.)
Now, .Mr.President, in our submission these extracts make it perfectly
clear if the resolutions in question were based on the existence or ap
plication of any norm then, as in the case of the General Assembly
resolutions with which we have dealt, such a norm was one of non
oppression, and not a norm or standards as defined by Applicants. It
follows that the resolutions of the Securitv Council also do not assist
Applicants' case. •
But, Mr. President, apart from the views of delegates with which I
have dealt, there is another very important source of evidence which
clearly dispels any notion that in condemning Respondent's policies the
United Nations created or applied the standards or norm contended for
by Applicants. I refer to the studies which were undertaken at the request
of the General Assembly regarding the so-called question of legal action
to ensure. the fulfilment of the obligations assumed by the Union of
South Africain respect of the Territory of South West Africa. \Ve shall
show that it was never suggested that this Court could be asked to de
clare that Respondent's policies are in conflict with standards and/or
a norm of non-discrimination or non-sepa'.ration, and that the bodies
concerned concluded that such policies were contrary to the Mandate
because they were designed to, and did in fact, oppress the Native popu
lation of South West Africa. lt is, however, convenient first to sketch
briefly the history of the so-called legal studies which were undertaken.
It started off with resolution 1060 (XI) of 26 February 1957 in which
the General Asscmbly rcquested the Committee on South West Africa
to study what legal action was open to ensure that Respondent fulfilled
the obligations assumed bv it under the Mandate for South West Africa.
(General Assembly, Official Records, nth Session, Supplement No. 17 SOUTH WEST AFRICA
(A/3572).) Having received the Committee's special report on this study,
the Genera\ Assembly in October 1957 adopted Part Bof resolution 1142
(XI), in terms of which the Committee was requested-
"to consider further the question of securing from the International
Court of Justice advisory opinions in regard to the administration
of the Territorv of South West Africa, and to make recommenda
tions in itsnext report concerning acts of the administration on
which a referencc to the Court mav usefullv be made as to their
compatibility or otherwise with Article 22 of the Covenant of the
League of Nations. the Mandate for South West Africa and the
Charter of the United Nations". (General Assembly, Official Records,
12th Session, Supplement No. 18 (A/3805).)
Pursuant to the adoption of this re~olution the Committee appointed
at its 88th Meeting a Sub-Committee to go into the question. This Sub
Committee submitted a study of the question which served as the basis
for a special section of the Committee's 1958 report contained in Part
II thereof, General Assembly, Official Records, 13th Session, Supplement
No. 12 (A/3906), page 2.
After the General Assembly had at its 13th Session by resolution 1247
(XIII) decided to resume consideration of the question of iegal action
at its 14th Session, the Committee appointcd another Sub-Committee
which was called the Sub-Committee on Legal Questions to undertake
further studies of the question: the reference is General Assembly, Offi
cial Records, 15th Session, Supplement No. 12 (A/4464), page 4. The
report of this Sub-Committee was brought to the attention of the Gener
ral Assembly during its 14th Session, and the latter body then adopted
resolution 1361 which drew-
"the attention of Member States to the conclusions of the special
report of the Committee on South \Vest Africa covering the legal
action open to Member States to refer any dispute with the Union
of South Africa concerning the interpretation or application of the
Mandate for South \Vest Africa to the International Court of Jus
tice for adjudication in accordance with Article 7 of the Man
date ... ". ·
The reference is the same as the previous one.
At its 120th Meeting the Committee on South West Africa decided
to keep the matter of legal action under review pending further instruc
tions of the General Assembly (A/AC 73/SR 120, 9 Sep. 1959), but as far
as we can ascertain nothing further was done, and in its 1960 report the
Committec on South West Africa merely drew attention to the fact that
at the Second Conference of Independent African States held at Addis
Ababa in June 1960 it was decided that contentious proceedings con
cerning Respondent's obligations with respect to the Territory should
be submitted to this Court by Ethiopia and Liberia (G.A., O.R., 15th
Sess., Suppl. No. 12 (A/4464), p. 4).
Itis clear therefore that in order to determine the grounds on which
it was thought that this Court might give a judgment against Respon
dent reference must be made to the special reports of the Committee on
South West Africa and to the report of the Sub-Committee on Legal
Questions.
Tlie first special report of the Committee on South West Africa,
General Assembly, Official Records, 12th Session, Supplement No. 12A ADDRESS BY MR. VAN HEERDEN 163
(A/3625), dealt mainly with the competence of organs of the United
Nations to requcst advisory opinions of the Court and with that of indi
vidual States to institute contentious proceedings. It is, however, sig
nificant that having pointed out that in a request for an advisory opinion
questions might also be put as to whcther specific acts of Respondent
were in conformity with the Mandate, the Committee remarked:
"If an advisory opinion were rcquested regarding, for example,
the status of the Territory or the relationship between clauses of
the Mandate and acts of administration of the Territory, there
would be the advantage that the Court, in reaching its opinion,
would proceed by impartial judicial methods and on the basis of
evidence produced to and weighed by the Court." (P. 3.)
This attitude stands in striking contrast to that lately adopted by the
Applicants, namely that no evidence may be weighed by this Court,
that ail evidence is irrelevant, that the Court may only have regard to
what was said and decided in the United Nations, and that this Court
is not compctent to second guess what was there said or decided.
In its second special report, being Part II of the 1958 yearly report,
(G.A.. O.R., 13th Sess., Suppl. No. r2 (A/3906)), the Committee concen
trated more on the specific acts of Respondent which could be referred
to this Court for adjudication. The Committee considered that the com
pilation in its successive reports of acts of administration on which
either legal doubts had been expressly stated or the conclusion put for
ward that they were inconsistent with the Mandate or the Charter,
served to indicate the subjects of questions on which advisory opinions
might be sought. Such acts were divJded into two groups, namely (a)
acts relating to the international status of a territory, and (b) acts re
lating to the moral and material well-being and social progress of inhab
itants of a territory. \Ve are of course for the present only concerned
with the latter group of acts. Thcse were sub-divided as follows: firstly,
application of the practice of apartheid or racial separation with refer
ence to the Committec's 1957 report; secondly, application of racially
discriminatory legislation in the political, economic, social and cduca
tional fields with reference to the 1954, 1955, 1956 and 1957 reports;
thirdly, application of restrictions on freedom of movement and va
grancy legislation, with reference to the same reports; fourthly, alloca
tion and alienation of land, with reference to the 1957 report, and finally,
legislation providing for the expulsion of persans from the Tcrritory,
with refcrence to the 1956 report.
The report of the Sub-Committee on Lcgal Questions, in so far as it
is relevant for present purposes, merely repcated these suggestions of
the Committce on South West Africa. It is, however, of some interest
to note that when this report wa~ discusscd by the Committee on South
West Africa, Mr. Carpio of the Philippines remarked-
"that the examples of questions which might be submitted to the
International Court were badly chosen. To choose questions dealing
with the administration of South West Africa as an integral portion
of the Union of South Africa, when the Union Government was
authorized by the Mandate to do so, was to choose the weakest
arguments. The questions should, on the contrary, deal with such
acts as the subjection of the interests of the indigenous inhabitants
to those of the European settlers." (A/AC. 73/SR. 120, p. 3.) SOUTH WEST AFRICA
It is clear that i\frCarpio thought that the main case which had becn
macle against Respondent was one of oppression of the Native popula
tion of the Territory. Applicants must have thought so too when they
instituted the present action, for that was exactly the case, and the sole
case, made in the ~lemorials.
[Public hearing of 29 OctoberI965]
l\Ir.President, prior to the adjoumment yesterday, I was dealing with
the studies on the so-called question of Jegal action against Respondent
which were undertaken by United Nations organs. I pointed out that
the Committee on South West Africa suggested that the compilation
of acts of administration in its successive reports served to indicate the
subjects of questions on which advisory opinions might be sought. Such
acts included the application of the practice of apartheid, and racially
discriminatory legislation in the political, social, economic and educa
tional fields. I also pointedout that the report of the sub-committee on
legal questions merely repeated these suggestions.
In the concluding paragraph of its report, the sub-committee sug
gested that as regards acts affccting the well-being and progress of the
inhabitants of the Territory, the list of acts contained in the previous
reports of the Committee on South West Africa should be expanded to
include such further acts as might be selected by the Committee during
its then current examination of conditions in the Territory-that would
have been the 1959 report. (The reference here is A/AC. 73/2-31 Au
gust 1959.) ln its 1959 report, the Committee on South West Africa did,
in fact, in the context of the discussion of a question of legal action
against Respondent, draw the attention of the General Assembly to
certain aspects of Respondent's administration of the Territory. It
follows that one has ta look at the 1954, 1955, 1956, 1957 and 1959
reports of the Committee in order to ascertain the grounds on which
it was thought that action could be instituted against Respondent. \Ve
propose to cite extracts from these reports in order to illustrate that the
Committec's complaints and criticisms were directed at \vhat it thought
to be an oppressive and arbitrary policy, and not to mere separation
or differentiation on the basis of membership in a group or race.
Referring to apartheid generally, the Committee, in its 1956 report,
stated:
"The 'Native' of South West Africa still has no part whatsoever
in the management of the Territory's affairs; he lives and works
in an inferior and subordinate status in relation to a privileged
'European' minority and his opportunities for advancement in his
own right are limited not only by the inadequacy of technical facil
ities,but also by a restrictive system of law and practice." (G.A.,
O.R., nth Sess., Suppl. No. 12 (A/3151), p. 27.)
In its 1957 report the Committee stated:
"The continued and increasing political, social and economic
pressures and restrictions imposed in ail walks of life on the vast
majority of the inhabitants and especially on the indigenous African
population reveal, in the Committee's opinion, a policy intended
to give paramount importance to the interests of the population
of European origin, to maintain and reinforce the entrenchment ADDHESS BY MR. VAN HEERDEN
of government control in the hands of this minority ... " (C.A.,
0.R., 12th Sess., Suppl. No. 12 (A/3626). p. 26.)
The statements at page 10 of the 1959 report are to the same effect,
and the refcrence is Ceneral Assembly, Official Records, 14th Session,
Supplement No. 12 (A/4191). We find here, Mr. President, the same
accusations that were levclled in the debatcs of the Fourth Committee
and in the Special Political Committee, and these remarks, of course,
referred to apartheid in general, but the same accusations were made
with respect to specific fields of administration, education, economics,
health, and so forth.
Under the heading "Economie Conditions", but referring more gener
ally to land settlement, the Committee concluded in its 1959 report:
"The Committee considers that the land scttlement programme of
the M andatory Power is contrary to Article 2 2of the C avenant of the
League o/ Na/ions and the Afandate in that it has resulted in the trans
fer of the major portion of the Mandated Territory to 'European' cit
izens of the Union of South Africa and in the removal of groups of
'Native' inhabitants, without due regard for their well-being, /rom
place to place within the Territory and possibly even beyond the bound
aries of the Territory, depriving the indigenous peoples not only of
their traditional lands but o/ secitrity of tenitre and immolested resi
dence on the limited lands allocated tothem by the Union Covernment."
(C.A., O.R., 14th Sess., Suppl. No. 12 (A/4191), p. 2r.)
Referring to the economic development of Native areas, the Committee
concluded in its 1955 report:
"It [the Committee] cannot ignore the inference ... that the
limited efforts thus far made by the Administration to develop
Native areas reflect a policy to relieve the longstanding labour
shortage by compelling the Natives to seek employment on mines and
Ettropean farms." (ltalics added.) (G.A., O.R., 10th Sess., Suppl.
No. 12 (A/29IJ), p. 21.)
1\fay I add, M'r. President, that similar statements are to be found
in the same 1955 report, at pages 17-18, and the 1957 report (A/3626), at
page 17.
As regards education, Mr. President, the following passage from the
1956 report is illustrativc of the way in which the Committee viewed
Respondent's policies in the Territory:
"... it [the Committee] can only conclude that, in a manner par
alleling the situation in ail other fields of development in the Ter
ritory,a position of privilege and of superior opportunity for advance
ment has been and is stilt being provided for the children of the 'Euro
pean' minority through the failure to expand and improve at a reason
able rate the educationalfacilities availablefothe chi{dren of the major
ity of the population." (Italics added.) (C.A., 0.R., nth Sess., Suppl.
?:,'o.12 (A/3151), p. 26.)
With reference to the 1958 Commission of Enquiry into Native Edu
cation, which recommended that the South African system of Bantu
education should be appiied to the Territory, the Cornrnittee stated in
its 1959 report its conception that the proposed change woukl be--
"... devising for one part of the popiûation a type of education for
their children which on the basis of the system of apartheid would166 SOUTH WEST AFRICA
confine them to a subordinate role in the life of the country." (G.A.,
0.R., 14th Sess., Suppl. No. 12 (A/4191), p. 32.)
Finally, l\Ir. Precddent, reference may be made to the concluding
remarks in the 1959 report, to which the Committee, in paragraph 8
of the same report, drew the attention of the General Assembly in the
context of a discussion of the question of lcgal action against Respon
dent. Paragraph 230 of these remarks reads as follows:
"The Mandatory Power bases its administration of the Terri
tory on a policy of apartheid and '\Vhite supremacy' contrary to
the Mandates System and to the Charter of the United Nations,
and its goal is the annexation of the Territory. The Union Govern
ment has reserved political authority in the Territory, by law, to
a 'European' minority, has transferred a major portion of the .Man
dated Territory and its resources to 'European' citizens of the Union
of South Africa, has allocated the bulk of the public funds of the
Territory to 'Europeans', and has reserved to them the larger share
of the economic, social and educational opportunities available in
the Territory. Itbas at the same time denied to the 'Non-European'
inhabitants of the Territory, not only a recognition of their para
mount interests, but also the right to participate on a basis of equal
ity and merit in the political, economic, social and educational
life ofthe Territory. The indigenous 'Native' majority of the popu
lation in particular have been subjected to unnatural restrictions
on their freedom of movement and regulation of their daily life,
and have suffered damaging removals and threats of removals
from their lands to places even beyond the boundaries of the inter
national Mandated Territory." (1959 report, pp. 32-33.)
Now, Mr. President, the extracts which we have cited from the varions
reports suffice to show that the Committee's adverse comments on, and
criticisms of, Respondent's policies, particularly in the political, economic,
social and educational fields, were based on the notion that these policies
were designed to, and did in fact, oppress the Native population of the
Territory for the benefit of the White group. As already stated, the
policies and practices enumerated in these reports were those which, in
the opinion of the Committee, should have been referred to this Court
for adjudication. There can, therefore, be no room for doubt that the
basis on which the Committee thought that a judgment could be pro
cured against Respondent, was that of deliberate oppression of the
Natives. It is, perhaps, no slight coïncidence that the Memorials of the
Applicants almost exactly adopted the enumeration of, and remarks
pertaining to, Respondent's policies and practices contained in these
reports. The important point, however, is that nowhere in the reports
or in the discussions of the g.uestion of legal action is any indication
whatsoever to be found that 1t was considered that Respondent's poli
cies were in conflict with the Mandate merely because they involved
separation or differentiation on the basis of membership in a group,
rather than on the basis of individual merit, etc.
In conclusion, Mr. President, I wish to emphasize two points. In the
first place, Applicants, in connection with the so-called evolution of
their standards and/or norrn, in addition to the resolutions of the General
Assembly placed much reliance on conclusions of the Committee on
South West Africa. So, for instance, in the verbatim record of 18 May, ADDRESS BY ll!R. VAN HEERDEN' 167
IX, page 334, Applicants cited an extract from the Cominittee's report
in which it was concluded that the situation in the Territory was not
in conformity with, inter alia,the principles of the mandate system.
Applicants wcnt on to say:
".Mr. President, it is perhaps relevant to note here that Respondent
throughout the pleadings and again in the Oral Proceedings, has
sought to evade the force of the resolution, and has sought to construe
the findings of agencies of the United Nations, such as and including
the Committee on South West Africa, in terms of allegedly improper
motivation, in terms of political campaigns, in terms of conspiracy
and in terms of trading arnong nations for position, or favours,
or other considerations of unenlightened self-interest. The force and
effect of these resolutians, of these findings, cannot, in the Applicants'
view, be disposed on such a basis."
That is in the same verbatim record, at page 335.
We have already dealt with the political campaign and related aspects,
but the point which we wish to emphasize is tnat Applicants have made
no attempt whatsoever to show that the Committee's findings cited by
them were based on the premise that Respondent's policies were in
conflict with Applicants' suggestcd norm or standards of non-separation
and non-discrimination.
As we have shown, Mr. President, the Committee's findings were indeed
not based on the application of any such standards or norm.
In the second place, Mr. President, there is the question of the factual
correctness or otherwise of the sweeping condemnations contained in
the report of the Committce. It will have bcen evident that thesc asser
tions and findings are very strongly contested by Respondent, in the
light of the facts set out in the pleadings and presented to the Court in
evidence and also the review of the influence of the petitioners on the
findings of these reports.It will also be evident of what great signifi.cance
in this respect the Applicants' admission of Respondent's exposition of
the facts is. In view of this admission, but particularly in view of Appli
cants' abandonment of the charges of oppression and their confinement
of their case to the normand/or standards contention, it is unnecessary
for Respondent to canvass systematically each and every one of the
assertions and findings of the Committee.
Mr. President, this concludes our analysis of the processes and proce
dures in the United Nations, on which Applicants rely, within the
context of a norm or standards contention.
i\lay I be allowed to summarize very briefly what we have, in our
submission, demonstrated to the Court? First, that the resolutions upon
which Applicants rely were influenced by a political campaign which
has been waged against Respondent; secondly, that these resolutions
were to a very large extent based on erroneous factual information
contained in statements of petitioners and in the reports of committees
such as the Committee for South West Africa, which were in turn also
based on statements of petitioners; thirdly, that the reference to the
debates in the Fourth Committee and in the Special Politica1 Committee
clearly shows that the delegates who voted for the draft resolutions
based their confirmation of Respondent's policics on the notion that
these policies were designed to, and did, in fact, oppress the Native
inhabitants of South and South West Africa, for the benefit of the White168 SOUTH WEST AFRICA
groups; and finally, that at no time when the studies on the so-called
question of legal action were considered by organs of the United Nations
was it suggested that Respondent's policies were in conflict with the
Mandate merely because they allotted rights, duties, etc., on the basis
of membership in a group rather than on the ha.sis of individual merit.
I thank you, Mr. President. With the leave of the Court, my learned
Senior, l\Ir. Muller, will continue our address. 29. ADDRESS BY MR. MULLER
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC HEARINGS
OF 29 OCTOBER AND I NOVEMBER 1965
)fr.President, I indicated on Tuesday that our argument, which is
now in progress, would be divided into three parts. My leamed friend,
Dr. van Heerden, has just concluded the address on the first part and
I intend to proceed now with our argument on the second part; that is
that a norm and/or standards, as suggested by the Applicants, is not
universally observed in the practice of States. The argument on this
part of the case, Mr. President, need not be a lengthy one inasmuch
as the Applicants, in our submission, have virtually conceded in their
cross-examination of Professor Possony that a norm a:nd/or standards,
as defined in the Reply, IV, page 493-that is as we interpret page 493
and as Professor Possony interprets that page-is not observed in the
practice of States.
The main evidence upon which we rely for our contention that the
norm and/or standards of non-discrimination or non~separation is not
universally observed in the practice of States ~sthat of Professor Possony,
Professor van den Haag and Professor Manmng.
Professor Possony, in his evidcnce, addressed himself particularly to
the question whether States do or do not, by govemmental policies and
practices, allot 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 potcntial.
The evidence of Professors van den Haag and Manning, although deal
ing alsowith practices which would not be in accordance with the alleged
norm and/or standards, concentrated more on the question whether the
application of the normand/or standards in certain circumstances would
or would not lead to unfavourable results for the well-being and progress
of the people concemed.
It is intendcd to deal at present with the first topic, that is, the
allotment by govcrnmental policies and practices of status, rights, duties,
etc., onthe basis of membership in a group, class or race.
That Professor Possony is emincntly qualified to speak with authority
on the subject is clear from his expertise.
I will not read it, Mr. President, I shall only indicate that he said
that he had done research and teaching in the field of international
relations, sociology, modern history, comparative constitutions and he
has also, in his own words, for many years-
"worked on the subject of ethnie problems and relevant constitu
tional and lcgal provisions for the management of ethnie groups in
multi-national societies".
That is from the verbatim of 18 October, XI, page 648.
Now, his evid1mce can be divided broadly into three parts: the .first
is an historical development of group relations in the world; the second,
an analysis of differential treatment by govemmental polîcies and
practices of population groups in various parts of the world; and the170 SOUTH: WEST AFRICA
third, attempts in the international sphere to formulate uniform objec
tives with regard to the trcatment of individuals and ethnie groups.
I do notintend to deal in detail with the first part, that is the historical
part of his evidence, which is contained in the verbatim of 18 October,
at XI, pages 648-660.
ln brief, Mr. President, this part of his evidence demonstrates the
importance of group relations in the history of the world-the recognition
over centuries of group idcntities, both on an ethnie and on a religious
basis, and the methods which have been applied in giving effect to the
principle of self-determination-methods such as separation, partition,
population exchanges and removals and protective measures such as
minority treaties and autonomy arrangements.
This part of his evidence is important in dernonstrating that differential
treatment of ethnie and religious groups has a long history, and it
explains why, in pluralistic societies, differentiation is in many cases
desirable or even a necessity.
The part of his evidencc which goes to the very core of the issues in
this case is contained in the record of 18 October, at XI, pages 664-677,
and of 19 October, at XI, pages 677-686.
He dealt there with certain broadly gauged systems of group differen
tiation by law, and, in that sense, of course, by official government
policy and practice. These systems he divided, for convenient treatment
of the subject, into the following groups: (1) Asiatic systems of pluralistic
societies; (2)certain systems in the Eastern Mediterranean; (3) pluralistic
systems in the Islamic countries; and (4) systems in various countries
dividing advanced from aboriginal groups or providing differentiation
between tribal groups. He also mentioned other specifi.c provisions of
differentiation in manv countries.
The division of his "testimony in these four main groups is indicated
at XI, pages 664-665.
Mr. President, it is not my purpose to repeat or to analyse in detail
Professor's Possony's evidence on this aspect. I think it would be sufficient
to give rnerely a summary of differential treatment found in constitutions
and laws which are in force and then merely to mention the countries
concerned.
In the verbatim of r8 October, at XI, page 665, Professor Possony
dealt with Burma. He indicated differential provisions for representation
of ethnie groups in the legislative body of Burma. At XI, pages 665-667,
he dealt with India. There, he indicated differential treatment of castes
and tribes with regard to administration, land rights, judicial systems.
succession Jaws, and differential treatment of the Anglo-lndian com
munity with regard to political rights. At pages 667-669, he referrcd to
Cyprus. There he dealt with differential treatment of Greeks and Turks
in respect of political rights, offices of State, schools, etc. At pages 669-
671, he discussed the Lebanon. There, he indicated that there were
differential measures between .Moslems and Christians with regard to
representation in Parliament and offices of Government. At pages 671-
676, he dealt with the Islamic States. He indicated to the Court that
there were 16 Islamic States-! shall not repeat the names of the States,
they are to be found at page 671-and indicated that these Islamic
States had a population of more than 230 million people.
In respect of those States he dealt with differential treatment of
Moslems and non-Moslems in respect of appointment to offices of State, ADDRESS BY MR. MULLER 171
persona! status, testimony, guardianship, inheritance, marriage, etc. He
also dealt with differential treatment as between men and women in
these Islamic States with regard to marriage, succession, testimony and
divorce. If I may mention here, the differentütl treatment of persons
on the basis of religion and sex is important. Although the charge against
Respondent does not extend to either of these fields, it is Applicants'
case that there must be no differentiation on the basis of membership
in a group, class or race and the so-called sources on which AppJicants
rely for the existence of their norm-whatever their substantive signifi
cancc might be-spccify the requirement of no distinction, inter alia,
as to sex or religion-! refer in this respect to the Reply,IV, pages 497
and what follows.
Then at XI, pages 675-677, and in the verbatim record of the next
day, pages 677-678, Professor Possony dealt with countries which have
large concentrations of Moslem groups. I shall not give the names of
the countries-he mentioned a number and then he gave specific exampJes
of the Sudan, Indonesia and Nigeria. It is stated there that Moslems
live under their own persona! statutes often guaranteed constitutionally,
and he mentioned certain examples. Then at XI, pages 677-678, Professor
Possony dealt with the differential measures on religious grounds and
he there mentioned ten States in ail. In the same verbatim record,
pages 678-684, he mentioned the following States: Liberia, Sierra Leone,
Nigeria, Basutoland, Bechuanaland, Swaziland, Northern and Southern
Rhodesia, Kenya, Eritrea, Peru, Panama, Brazil, Canada, the United
States, Sweden, Ghana, Ethiopia, Pakistan, Australia, Venezuela and
New Zcaland. In respect of these States I have just mentioned, he
discussed differential treatment of less advanced societies, particularly
of aboriginal tribes with regard to one or more of the following: political
organizations, administrative and judicial systems and/or land rights
and ownership of land. I would indicate that with regard to his evidence
concerning Basutoland, Bechuanaland, Swaziland, Northem and Southern
Rhodesia and Kenya, he referred to the Counter-Memorial of the Re
spondent, III, pages 257-262, in which certain facts are set out that have
not been denied by the Applicants. With respect to Canada and the
United States, he also referred to the Counter-Memorial, III, pages 263-
265, also containing facts in this respect which are not denied.
Then at pages 684-685, of the same verbatim record, Professor Possony
dealt in particularwith the case of Indians in certain countries in South
America and in the United States of America. In all, Professer Possony
mentioned 50 countries including protectorates under the British Crown,
in which by law and official practice status, rights, duties and burdens
are allotted on the basis of membership in a group, class or race. Of these
50 countries mentioned by him, 40 are Members of the United Nations
and they include both the Applicant States.
\Ve sav, l\Ir.President, that it is clear from this bodv of evidence
that in many countries in the world status, rights, duties, 'burdens, etc.,
are allotted on the basis of membership in a group, class or race rather
than on the basis of individual merit, capacity or potential, and that
a so-called norm of non-discrimination or non-separation, as defined by
the Applicants, is not observed or practised. This indeed, Mr. President,
was the expert view expressed by Professor Possony when he said in the
course of his testimony-in-chief and I quote from IX, page 662:
"Mr. President, I can state that in my judgment on reading ther72 SOUTH WEST AFRICA
evidence in history and social development there is no such norm.
My testimony up to this point has dealt with aspects of the norm
as stated on pages 492 and 493, [of the Reply] notably the question
of differentiationin general, allotment, separation and equality of
opportunity. As I go on I will be able, I think, to add additional
evidential points on other parts of the norm, or allegcd norm."
And at the end of his evidcnce-in-chief, he said, at pages 707-708:
"Mr. President, from what I have indicated to the Court with
relation to the practice ail over the world, there is no general obser
vance of such a rulc or norm."
Mr. President, how did the Applicants react to this evidence of Pro
fessor Possony? Not one question was asked by Mr. Gross, questioning
the correctness of Professor Possony's factual evidence as to the practice
of States, or questioning his expert view that a norm of non-discrimina
tion or non-separation-as both Professor Possony and Respondent
interpret Applicants' definition at page 493, IV, of the Reply-is not
generally observed in the practice of States. Instead the general trend
of my leamed friend, ~Ir. Gross's cross-examination proceeded on the
basis that Respondent's and the witness's understanding of the Appli
cants' case was wrong and that, soit would seem to follow, the witness's
testimony was not directed to the real issue before the Court. Thus,
Mr. Gross commenced his cross-examination by questioning the witness
with regard to the meaning of the word "discrimination". He asked
Professor Possony what significance he, that is, the witness, attached to
the word "discrimination"? I refer in this regard to the verbatim record,
20 October, page 3, supra. The witness replied that he interpreted
that word in the context of page 493, IV, of the Reply in its customary
sense and not in the pejorative sense of distinguishing against.
Mr. Gross continued to press the point by asking Professor Possony:
"Now, with regard to your understanding on the points to which
you have tcstified, as set forth in the letter, paragraphs (a) and (b)
[that was the letter by the Respondent indicating the points to
which Professor Possony's evidence would be directed] did you
understand the contents of the standards, contended for by the
Applicants, to apply to any differcntiation or distinction, whether
or not such differentiation or distinction involved discrimination in
a pejorative sense, to use your term?" (Supra, p. 4.)
And the answer of the witness was this:
"As I tried to clarify a moment ago, IV, page 493, and I will
have to read it for what it says, docs not say 'pejorative· or perhaps
better terms would be 'disabling' and 'enabling', using some of the
language from India for example, but it uses it neutrallv in the
sense that governmental policies should not be made i:hat are
aHotting status, etc., to groups rathcr than individuals. That, I think,
seems to me to be the gist of the second paragraph on page 493."
Mr. Gross then suggested that page 493, IV, of the Reply is "not a
self-contained page in the pleadings" and that the "sources and content
are generally dcscribed on page 493, but there is considerable discussion
elsewhere conceming the nature and content intended to be carried by
those words" (supra, p. 7). ADDRESS BY MR. MULLER IJJ
Professor Possony was however adamant that;
"... on page 493 the language is very clear. 1 do not feel that
I have any particular doubt-I can easily argue about the meanings
of these things, but I think the meaning is quite clear." (Supra,
p. 8.)
This attitude was adopted by Professor Possony throughout and he
in fact gave a full explanation to the Court on 21 October in the verbatim
record, pages 36-38, supra, of his reasons for interpreting page 493,
IV, the Rcply as he did. f shall not read what he said there, -;\fPresident.
Mr. Gross did not specificallput it to the witness that the Applicants'
case was one of unfair discrimination or that the definition of the norm
of non-discrimination or non-separation, as worded at page 493, IV, of
the Reply, could reasonably be intcrpreted to contain a suggestion of
unfair discrimination. Yet, my learned friend, Mr. Gross, raised some
doubt on the question whether Applicants had expressed thcmselves
clearly in their formulation of the suggested norm. Thus, he stated at
page 8, supra, of the verbatim record of 20 October 1965:
"Now, Sir, without attempting, and 1 will not pursue this line
too much further, to defend the Janguage used by the Applicants
-no doubt better wisdom would have suggested better language
~without asking you to comment about that, Sir, would it be fair
to say that you were not really sure what the definition mcant in
tenns of your testimony? \Vhat the phrase 'discrimination' as used
therein meant? \Vould that be a fair question to ask you to answer?"
And this immediately after my learned friend, Mr. Gross, had asked the
witness whether he, that is the witness, would change any of his testimony
and I quote:
"... if it were the case that Applicants contend for standards
which do not make impermissible any distinction or differentiation
as such ... " (supra, p. 7).
Later, 1\fr.Gross, with reference to certain terms used in the affirmative
part of the definition at page 493, IV, of the Reply asked Professor
Possony the following question:
"Now, with respect to the question of equality of opportunity
and equal protection of the laws, would it be within the normal and
pre\'alent customary use of the term 'discrimination' to refer to
phenomena, political, social, economic phenomcna, in which persons
are clenied equality of opportunity and equal protection of the !aw;
would that be a prevalent and customary use of the term 'discrimi
nation' in the political and social sciences?" (Supra, p. II.)
1Ir. President, it is not clear what was meant by 1Ir. Gross's use of
the words "phenomena, in which persans are denied equality of oppor
tunity and equal protection of the law", but the question seems to
suggest that Applicants intended by the use of the word "discrimination"
at page 493. IV, of the Reply the denial of equality of opportunity and
equal protection of the law. It is to be noted, however, that Mr. Gross,
in formulating this question, left out the words "to individual persons
as such" which appear in the definition at page 493, IV.
Mr. Gross then went on to cite certain constitutions which contain
provisions to the foltowing effect: that ail citizens are "equal before the
law"; "(a]ll men shall be equal before the Iaw": "the State shall not174 SOUTH WEST AFRICA
deny ... equality hefore the law and the equal protection of the laws
within the territory ... "; I refer in this regard to the verbatim_ record,
pages 20. 23 and 24, supra. With reference to such provisions in the
constitution, l\fr. Gross asked the witness whether they wcre not:
"... evidence of a constitutional practice relevant to the question
of whether or not an international standard and/or an international
norm exists, of the sort contended for by the Applicants" (mpra,
p. 24). .
At page 26, supra, of the same verbatim record, Mr. Gross asked the
following question:
"Do you agree, Sir, that this furnishes evidence tending to
support the existence of international standards of a content de
scribed by the Applicants and defmed in their pleadings, so far as
you understancl it?"
That is again with reference to the provisions in certain Constitutions
the equal protection clauses contained in Constitutions.
And at page 30 of the same verbatim record the question was put in
this form:
"... with respect to these constitutional provisions, would you or
would you not agree that they severally and collectively evidence a
general constitutional practice, virtually universal, in which the
equality of individual citizens before the law, and equality of op
portumty, are guaranteed by the constitutional provisions? Would
you agree that they are evidence of standards covering the same
subject-matter, and evidencing international standards?"
In the course of this questioning it was pointed out to the Court that
Mr. Gross was not directing his questions specifically to the norm as
defined at page 493, IV, of the Reply, and this led to an explanation by
1\Ir.Gross as follows, and I quote from the verbatim record at pages
26-27, supra:
"Mr. President, I would respectfully submit that the Counsel's
comment is irrclevant and the reason being, Sir, that page 493, im
portant as it is, does not embody the case of the Applicants and,
Sir, I think the impression as sought to have been created previ
ously in these proceedings by Counsel that the language on page 493
must be interpreted as if it were disembodied from the balance of
the pleadings, not explained by the sources to which reference is
made and elaborated and which explain the detailed content at
tributed by the Applicants to the standards and the norm contended
for and, Sir, if the point in the implication of Counsel's question, or
interposition, is that the Applicants may not refer to any provision
or language in these pleadings other than page 493, the Applicants
would very respectfully disagree."
Thereupon attention was drawn to the fact that in their submissions as
reformulated Applicants relied on-
"standards and legal norm, ... as described and defined in the
Reply, IV, at page 493, and solely and exclusive! y as there described
and defi.ned ... " (Supra, p. 27.)
When the question then arose whether Applicants were not changing
their case, Mr. Gross stated emphatically that they were not, and he relied
on a passage at page 493, IV, of the Reply in support of the contention ADDRESS BY MR. MULLER 175
that the content of the norm and/or standards was elucidated by what
is stated in the pages following on page 493, dealing with the sources.
This passage at page 493 of the Reply reads as follows:
"The existence and virtually universal acceptance of the norm
of non-discrimination or non-separation, as more fullv described
below, give~ a concrete and objective content to Article 2, para
graph 2 ...
As was thcn pointed out by you, Mr. President, the passage relates to
acceptance of the norm and not to its content. I refer in this regard to
the verbatim, page 28. supra.
Eventually on 21 October Applicants came forward with an apparent
formulation of their understanding of the content of their norm and/or
standards. We find this in the verbatim record, pages 35 and 38-40,
supra. At page 39 of the said verbatim record .Mr. Gross's tentative for
mulation was as follows:
"... if the Applicants' true contention, [on] the actual content of
the standards ... refers to governmental policy and practices which
do not give weight to individual merit or capacity but which allot
rights, burdens and privileges on the basis of membership in a group
and which do not protect equality of opportunity and extend equal
protection of the laws to individual persons as such?"
And at page 40 of the samc verbatim record Mr. Gross described this
formulation which I ha\·e just read now as an attempt "to place before
you [that is, the witness] an interpretation of the meaning of the Ap
plicants' words".
As we have already indicated, and 1 refer in this regard ta the verbatim
record, at page Sr, supra, this reformulation by the Applicants in the
course of cross-examination of their normand standards "does not differ
in any material respect from the definition ... at page 493, IV, of the
Reply". Ali that the Applicants have donc in this reformulation is (a)
to change the sequence in the negative formulation of the definition
whereby the position of the individual is dealt with before that of the
group, and (b) to substitute the words "which do not give duc weight
to individual merit or capacitv" for the words "rather than on the basis
of individual merit, capacity or potential" which appear in the definition
at page 493, IV, of the Reply.
It is submitted that Professor Possony was quite correct when he
stated as follows, and I quote from the verbatim record at page 40,
supra:
"I fail to see that the formula differs from page 493 in any sub
stantial aspect. It is a Jittle hard to be accurate on an evaluation of
this sort but on hearing it, I think this is just a restatement, in
somewhat different sequence of what page 493 says, and on that
basis I would not change my testimony."
We submit that the reason why Applicants now Cavoura reformulation
of their norm as earlier defined at page 493, IV, of the Reply is evident
from their cross-examination of Professor Possony. 1 have already made
reference to the fact that on 20 October M.r. Gross read to Professor
Possony extracts from varions Constitutions which provide that all
citizens arc "equal before the law"-"[a]ll men shall be equal before the
law", etc. On 2r October, after having reformulated their suggested
standards, as I have just indicated, Mr. Gross revcrted to this matter.176 SOUTH WEST AFRICA
He asked Professor Possony whether he would agree that "the equal
protection clause of the United States Constitution ... exists as a prin
ciple orstandard ... whatever way you would wish generally todescribe
it?" (supra, p. 42); and be also asked whether the witness would concede
that ''there is a standard at least in the United States, on a constitutional
level, of equal protection of the laws" (ibid.). To this Professor
Possony answercd, and I would, with the Court's permission, want to
read the whole answer before I deal further with this matter:
"Certainly, but, .Mr. President, that is really not the point. The
'equal protection before the law' norm or standard has been in
existence for many years. I do not know whethcr it startcd several
centuries ago, but certainly as of 1920, which is a relevant date in
these proceedings, that norm and standard was generally applied.
Certainly we do not have to go further than to say it was being
applied in France and Britain.
Now, the point in !\Ir. Gross's presentation, it seems tome, is that
after the 1920 period, and notably in the United Nations period, a
new;norm has been developed. That is the question. That old norm,
that it has been in existence, there is no question about it. This
norm, I would say. was dearly recognîzed by ail parties to the
l\fandate. I do not want to go further than this because it becomes
a strictly legal problem but, speaking as an historian, I certainly
would stand on the point that by 1920-and, in fact, Mr. Gross
yesterday was kind enough to read the Constitution of the Republic
of Austria, which is dated 1920, and which was written by Professor
Kelsen-certainly at that time, without going any further back in
history, that was an accepted principle. However, the point here is
that a new norm has been devcloped, as defined on page 493 [of
the Reply].'' (Sitpra, pp. 42-43.)
Mr. Gross's cross-examination eventually culminated in the following
general question :
"\Vould you agrec that the principle of governmental protection
of equality of opportunity and equal protection of the laws is a
virtually universally proclaimed standard. which is enshrincd in
most constitutions of civilized'countries and in dccisions and declara
tions of international organizations? Do you agree with that as a
statement?" (Supra, p. 62.)
Then Professor Possony· went on to explain how he saw the equal pro
tection clauses. I do not wish to read his explanation, which is fairly
long. but in the course of that he said: "So far as I understand it [that
is, the equal protection clauses in Constitutions], it means that a law
that is in existence. depending on what the law says" (supra, p. 62). is
to be applied equally. lt is submitted that Professor Possony gave the
correct answer to this question relative to the provisions in Constitutions
indicating that there should be equal protection of the law: The equal
protection clauses to be found in many Constitutions, some dating back
to the 19th century, have nothing to do with a norm and/or standards
as defined at page 493 of the Reply. The principle of equal protection
of the laws means no more and no less than that the laws of the land shall
be applied equally to ail persans to whorn they relate. The principle does
not introduce a concept of non-discrimination or non-separation in the ADDRESS BY MR. MULLER 177
making of a law. I draw the distinction bctwecn the application of the
law and the making of the law. In other words, it does not involve a
concept that the content of the laws is to be such as to accord identical
treatment to every person in the Statc. This latter concept might be
involved in the phrase "equality of opportunity" which is also found in
some of the constitutional provisions, but that would depend on how
that phrase is interpreted in the context. If it mcans equality in /act,
diffcrcntiation in law would not only be permitted but very often rcquired.
Only if it means an artificial kind of equality in law could it be inter
prcted as requiring identical Jegal provisions for ail persons in a State.
That this is not what was meant in the Constitutions concerned, is shown
by the differential laws which cxist sicleby side with provisions in various
Constitutions-provisions regarding cquality before the law. A very
good example in this respect, Mr. President, is the case of India. The
Constitution of India cited by l\Ir. Gross in the verbatim at page 24,
supra, contains an equal protection clause reading as follows:
"The Statc shall not deny to any persan equality before the law
or the equal protection of the laws within the territory of India."
And in respect of India, the Court will remember Professor Possony
referred to a number of measures of differential treatment of persons by
reason of membership in a group, class or race. I refer in this regard to
·the verbatim record, XI, at pages 665 ff.
)Ir. President, it scems clear from the whole trend of Mr. Gross's
cross-examination of Professer Possony that Applicants are on the horns
of a dilemma. On the one hand, they cannot say that their normand/or
standards contain the Clement of unfair discrimination. Now they cannot
say that for two reasons-thc first is that in reformulating their Sub
missions 3 and 4 they excised all allcgations of discrimination in the
pejorative sense and tied their submissions to the normand/or standards
as defined at page 493, IV, of the Reply, and exclusively as there defined
-a definition, 11r. President, which upon analysis shows that it contains
no suggestion of unfair discrimination. The second reason is that they
clearlv stated to the Court that their case was not concerned with motives,
or with the results of Rcspondent's policies or practices. From that,
)lr. President, it must follow that their case cannot be one of unfair
discrimination. As I already indicated in addressing the Court on Tues
day, Respondent's policies and practices can only be unfair if such
policies and practices are tainted with improper motives, or if,whatever
the underlying motives may be, thcy, in fact, work out to be unfair in
practice, or bath of thesc two situations.
On the other hand, Mr. President, the Applicants do not want to
admit that their norm as defined at page 493, IV, of the Reply is simply
a norm of non-differentiation-i.e., a norm which prohibits the allotment
by governmental policies and practices of status, rights, etc., on the
basis of membcrship in a group, class or race. I say they do not want to
admit it becausc, on the evidencc, it is clear that such a norm is not uni
versallv observed and does not exist. It is because Applicants find them
selves În this dilemma that they now have to improvise and formulate
thcir case as resting on a norm and/or standards which prohibit-and I
quotc )Ir. Gross's words in defining or reformulating the norm, in the
verbatim record, at pages 36 and 39, siipra:
"... governmental policies [and practices] which do not give weight SOUTH WEST AFRICA
to individual merit or capacity, but which allot rights and burdens
[and privileges] on the basis of membership in a group [and] which
do not protect equality of opportunity and extend equal protection
of the laws to individual persons as such ... "
Mr. President, in this passage "equality of opportunity" and "equal
protection of the Jaws" clearly mean non-differentiation on the basis of
membership in a group, and this appears for three reasons: (a) from
the words "to individual persons as such"; and (b) from the need to
reconcile the second part of the definition with the first-the second part
of the definition reading: "which do not protect equality of opportunity
and extend equal protection of the laws to individual persons as such"
the first part of the definition reading: "which do not give weight to in
dividual merit or capacity, but which allot rights, burdens and privileges
on the basis of membership in a group." Now, those two parts of the
total definition must be reconciled. Applicants have never contended
that there are two norms-there is only one norm-and consequently
the two parts of the definition must be reconciled.
Furthermore, if the suggestion were to be that equality, in /act,is to
be striven after, and that it was, in fact, not done by Respondent. the
allegation would involve an enguiry into fact,into purposes or resu!ts
which the Applicants have repeatedly told the Court that that is not
necessary. There is, consequently, in fact no differe'ncebetween the norm
as recently reformulated by Mr. Gross in cross-examination, and the
norm as defined at page 493, IV, of the Reply, and as Professer Possony
has demonstrated, the practice of States does not bear out the existence
of such a norm.
l\Ir. President, it may, in this regard, also be stated that the examples
of differential treatment mentioned by Professor Possony cannot be
explained away by the Applicants on a basis at one stage advanced by
them relative to differential measures such as, for example, the minorities
treaties. It will be recalled that they seemed to suggest at that stage,
earlier inthe argument, that in order to be permissible the differentiation
must be aimed at the benefit of the individual rather than the group,
and that the individual member of the group should, in particular, be
permitted, if he wished, to quit the group. In most of the cases mentioned
by Professor Possony this would be either legally or physically impos
sible. As examples, one can refer to the position of Cyprus, where you
have the Greeks, on the one hand, and the Turks; the differential laws
applied in the Islamic countries as between Moslems and 11011-Moslems;
the laws differentiating between tribes, and the laws differcntiating
between men and women.
Mr. President, I wish to draw attention again at this stage of my ar
gument to a point which was made earlier in the introductory part of
our argument on Tuesday-i.e., in the verbatim record, at page 82,
supra-wîth regard to the results which must necessarily flow from a
departure by Applicants from their definition of the alleged norm and/or
standards as forrnulated at page 493, IV, of the Reply, and it was this:
that it would, in effect, constitute the making of a new case which Re
spondent has not been called upon to mect, and which Respondent, in
fact, has not sought. to meet; and that Applicants' charge as formulated
in their Submissiom 3 and 4 would then not correspond with the norm
if the new definition differs from the definition at page 493, IV, of the
Reply. ADDRESS BY MR. MULLER 179
This must be so, inasmuch as Applicants have charged Respondent
with a breach of Article 2,paragraph 2, of the Mandate, on the sole ground
that Respondent has (and I quote from their Submission No. 3 as re
formulated) "distinguished as to race, colour, national or tribal origin
in establishing the rights and duties of the inhabitants of the Territory".
As so formulated, the charge was tied to the norm as defined at page 493,
IV, of the Reply, and any departure by Applicants from the norm as so
defined must render the charge in their submissions defective.
Then I corne now to dcal with the third branch of Profossor Possony's
evidence, namely that concerning attempts in the international sphere
to formulate uniform objectives with regard to the treatment of individ
uals and ethnie groups. His evidence on this aspect is contained in the
verbatim record of 19 October, XI, at pages 695 to 708. Again, Mr.
President, it is not necessary to enter into a detailed analysis of this
evidence as the factual correctncss thereof was not disputed in cross
cxamination. A brief summary of the purport and effect of this evidence,
I think. will suffice.
Professor Possony's evidence is to the cffect that on the subject of
group rights, and the rights of the individual, there are no international
conventions other than the Convention on Genocide which, he said, can
be interpreted to mean that it provides each ethnie group the funda
mental right of survîval. Now, in stating that there are no international
con\'entions, he did not mean that ther.e are no conventions, which, in
some way or another, deal with rights of certain groups or with the rights
of individuals. In this regard he stated that there are conventions which,
in fact, deal with rights of individuals such as, for examplc, the Charter
of the United Nations, which, among other matters, embodies under
takings to promote human rights and fundamental freedoms of individ
uals. He referred to that in the verbatim record at pages 17-18, supra. And
he also referred to trust territory agreements, which deal with the rights
ofindividuals, but in certain areas, in the same verbatim record, at page 18.
He referred to the International Labour Organisation Constitution and
Convention, which deals with certain aspects of human life relative to
the question of labour, in the same verbatim record at page 18. supra.
And he also referrecl to regional treaties, such as the European Conven
tion for the Protection of Human Rights and Fundamental Freedoms,
which dcal with human rights within a particular region. That is at page
19 of the same verbatim record.
~Ir. President, Professor Possony distinguished conventions of the
kind I have now stated when he said:
''Let me make myself clear, those are not international agreements
addresscd directly to the question of human rights. After ail, we do
have a major effort in the United Nations going on which aims at
writing such an agreement on human rights perse."
That is in the verbatim record. at page 18, si1pra. And, Mr. President,
he went on, after further questioning by Mr. Gross, to explain the position
as follows:
"The differencc is that csscntially in most of thcse treaties-we
will leave out the Europcan convention-human rights are men
tioned as a matter of course. The meaning of these stipulations is
vague, sometimcs obscure. It is precisely in order to remedy this
difficulty that the United Nations has started on the effort to180 SOUTH WEST AFRICA
straighten out the human rights problem by writing an international
convention of which each )1ember of the United Nations could be a
signatory, laying down language so clear that it could be introduced
into statutory law and so that human rights in effect could be pro
tected. Itis the difference, I think, between a declaratory policy and
positive law."
The statement which I have just read is from the verbatim record at
page 19, .rnpra.
Now with regard to attempts in the United Nations to draft a connant
on the subject of human rights perse, Professor Possony, in his evidcnce
in chief, dealt with the Human Rights Declaration of 1948, which he
said was-
"... issued by the Gcneral Assembly as a statcment defining human
rights in general terms so that on the basis of this declaration and of
the ideas expounded in the declaration an international convention
could be elaborated".
This is in the verbatim record, XI, at page 696.
Mr. President, he mentioned the attempts that have been made to
draft a covenant or covenants, attempts which have come up against
many difficulties, with the result that no international convention has
as yet resulted. He explained that these difficulties were of two kinds.
namely of an intellectual nature and of a political nature. The Court will
find that in the verbatim record, XI, at pages 697 to 698. And he went
on, Mr. President, to dcscribe exceptions which make the drafting of a
covenant difficult: that isin the same verbatim record, at pages 698 to 700.
Likewise, he dealt with the Declaration on Racial Discrimination of 1963
and the attempts which have been made to settle a draft connntion.
The Court will find his testimony in that respect in the same verbatim
record at pages 700 to 702.
Mr. President, in the course of his testimonv he referred to the "in
discriminate use of the terms racial discrimination, segregation, separa
tion, apartheid, Nazism and the linkage of ail these terms to racial
superiority doctrines and doctrines of expansionism and racial hatred",
which, he said, had "no rational basis and leaves the whole subject in
utter confusion". The Court will find that in the same verbatim record,
at XI, page 703.
Now, ;\fr.President, also, this declaration has not resulted in a cove
nant, and how far the world communitv is rcmoved from consensus on
such matters as rights of groups and rights of the individual, is clearly
demonstrated by the further evidence given by Professer Possony re
garding a recent seminar held under the auspices of the United Nations
in June of this year, in Yugoslavia. The names of the States that were
represented at this seminar are stated in the verbatim record, XI, at
page 703.
Of particular imp9rtance, Mr. President, is the main conclusion reached
at the seminar which in part (and I shall only quote a part of it) reads as
follows:
"There was gener~l agreement that ail Governments should
promote and protect the rights of ethnie, religious, linguistic or
national groups, not only through the adoption of constitutional
and legislative provisions, but also through the promotion of ail ADDRESS BY MR. MULLER r8r
forms of âctivities consistent with the political, economic and social
conditions of the State or country concerned."
That is in the verbatim record, XI, at page 704.
In the same verbatim record, at the same page, Professor Possony
quoted another conclusion tothe following effect:
"There was general consensus that the United Nations, as well
as Governments and institutions, should undertake measures and
stimulate more intensive rescarch on ethnie, religious, linguistic
and national problems."
Professor Possony read parts of the record of the seminar which dealt
with the following matters-I am not going to read the views expressed
in the record, I shall merely give the Court the reference and the subject
matters dealt with, which were the following-the nature of the minority
problem; !anguage rights; individual group rights; the rights of ethnie
groups; assimilation, and types of solutions. The Court will find extracts
from the seminar, quoted by Professer Possony in respect of these subject
matters, in the verbatim record, XI, at pages 704 to 707.
Mr. President, also of particular importance is what Professor Possony
described as the major operational conclusion reached at the seminar,
parts of which he quoted at page 707 of the verbatim record that
I have just referred ta. These conclusions clearly bring out the point that
there is as yet no consensus with regard to such matters as human rights
and racial discrimination, and that the general consensus of the con
ference itself was that only ratification of a convention could impose bind
ing commitments in this regard.
Mr. President, it is no wonder that when Professor Possony was as.ked,
in conclusion, to express an opinion whether in practice and usage there
was observance bv States of a norm of non-discrimination or non
separation which prohibits the allotment by governmental policies or
actions of rights, duties or burdens on the basis of membership in a
group, class, etc., hestated emphatically:
"Mr. President, from what I have indicated to the Court with
relation to the practice all over the world. there is no general ob
servance of such a rule or norm. And furthermore, from what I have
said relative to attempts at formulation of a concept of effective
practice, thoseattempts have progressed no further than expressions
of gencral abstract ideas.''
The Court wi11find the quotation which I have just read in the verbatim
record XI, at pages 707-708.
Mr. President, beforc the adjournment I had read to the Court Professor
Possony's opinion expressed as to whcther the norm suggested by the
Applicants is observed in the practice of States and that it indicated
"no". \Ve say, Mr. President, that nothing in the cross-examination of
Professer Possony, with regard to this aspect of the case, in any way
detracts fro.m the _factual testimony given by Professor Possony or fr?m
the concluston wh1ch he stated on the basis of such facts-a conclus10n
which, indced, is so manifestly justifiedy the facts and by the documents
to which he referred.
It is submitted that Professor Possony's evidence establishes bcyond
any doubt that the Applicants cannot rely on any of the following
sources as evidence of the virtually universal acceptance of the norm182 SOUTH WEST AFRICA
of non-discrimination or non-separation, as defined at page 493, IV, of
the Reply, that is, the Universal Declaration of Human Rights, the
Human Rights Draft Covenants, and the United Nations Declaration
on the Elimination of all Forms of Racial Discrimination.
It may be convenient, Mr. President, also at this stage to deal with
a number of resolutions of the General Assembly which are relied upon
by the Applicants in regard to their norm or standards contention.
The Court will recall that when we dealt with the resolutions of the
United Nations organs, as specified at pages 497-504, IV, of the Appli
cants' Reply, we intimated to the Court that not ail of those resolutions
related to South Africa or South West Africa. \Ve then stated that the
remaining resolutions, that is, those not specifically concerned with
Respondent's policies, would be dealt with at a later stage, together
with other suggested sources outside of the United Nations. I refer in
this regard to the \'erbatim at page 87, supra.
Now, the other suggested sources have been disposed of and it remains
to deal with the United Nations resolutions which are not directed at
South Africa or South West Africa, and I propose to do so, Mr. President,
in the light of the iestimony given by Professor Possony.
The resolutions in question can be divided into two groups: those
pertaining to non-self-governing territories and those which were intended
to have a more gcneral application. I shall deal first with the latter
group, which comprises the following resolutions, namely resolution 103
(I) dcaling with persecution and discrimination; resolution 1779 {XVII)
dealîng with manifestations of racial prejudice and national and religious
intolerance; resolution 1780 (XVII) dealing with preparation of a draft
declaration and a draft convention on the elimination of all forms of
racial discrimination, and resolution 1904 (XVIII), United Nations Dec
laration on the Elimination of all forms of Racial Discrimination.
As the title of the fi.rst rcsolution shows, it did not deal with mere
diffcrentiation on a group basis. The very short tcxt of the resolution
merely declared that "it is in the higher intcrests of humanity to put
an immcdiate end to religious and so-called racial persecution and dis
crimination ... " The resolution called on governments and responsiblc
authorities to conform to the Charter of the United Nations. The resolu
tion is contained in General Assembly, OffecialRecords. 1st Session, Second
Part, Document A/64, Add. 1, page 200. The coupling of the word in
this rcsolution "discrimination" with "persecution" makes it perfectly
clear that the word "discrimination" was used in a pejorative sense,
and the resolution can, consequently, not be regarded as a source of the
norm and/or standards, as defined at page 493, IV, of the Applicants'
Rcply.
The second resolution, that is number 1779, in its preamble expressed
concern at "the continued existence and manifestations of racial prcjudice
and of national and religious intolerance in different parts of the world".
The resolution is recorded in General Assembly, O"{ficialRecords, 17th
Session, Supplemcnt No. 17, Document A/5217, page 32. ln its operative
part, the resolution, inter alia. called upon governments "to take all
necessary steps to rescind discriminatory laws which have the effect of
creating and perpetuating racial prejudice and national and religious
intolerance wherever they still exist ... ".
Here, again, Mr. President, the use of the phrases "racial prejudice"
and "national and rcligious intolerancc" in one breath, so to speak, ADDRESS BY MR. MULLER 183
shows that what the General Assambly had in mind were laws which
involved unfair discrimination and not laws which merely involved
differentiation or separation on the basis of membership in a group. This,
indeed, is expressly stated in the resolution, part of which reads. as I
have quoted, "discriminatory laws which have the effect of creating and
perpetuating racial prejudice, etc."
The third resolution, No. 1780, referred to "manifestations of discrim
ination based on diffcrences of race, colour and religion still in evidence
throughout the world". In its operative part the resolution requested
the Economie and Social Council to ask the Commission on Human
Rights to prepare a draft declaration and a draft convention on the
elimination of all forms of racial discrimination. The resolution is recorded
in General Assembly, Official Records, 17th Session, Supplement No. r7,
Document A/52r7, page 32.
The fourth resolution, No. 1904, inter alia, stated in its preamble that
"any doctrine of racial differentiation or superiority is scientifically false,
morally condemnable, socially unjust and dangerous, and there is no
justification for racial discrimination either in theory or in practice".
The resolution went on to state "al! forms of racial discrimination and,
still more so, govemmental policies based on the prejudice of racial
superiority or on racial hatred, beside constituting a violation of fonda
mental human rights, tend to jeopardize friendly relations amongst
people, co-operation between nations and international peace and secu
rity''. This is to be found in General Asscmbly, Official Records. 18th
Session, Supplement No. 15, Document A/5515, at page 36.
In its operative part the resolution proclaimed the Declaration on
the Elimination of all Forms of Racial Discrimination.
In view of the evidence given by Professor Possony, Mr. President,
as to the as yet abortive attempts at drafting a covenant on the basis
of the Declaration on the Elimination of all Forms of Racial Discrim
ination, and with regard to the views expressed at the recent seminar
in June of this year, it follows in our submission that the said two
resolutions-1780 and 1904-cannot serve in substantiation of a norm
as defined by Applicants at page 493, IV, of the Reply. These resolutions
produce yet further illustrationof the lack of clarity and the confusion
in regard to terminology, as was referred to by Professor Possony in
his evidence.
I now, 11fr.President, tum to the second group of resolutions under
consideration, namely those pertaining to non-self-governing territories.
This group can in tum be divided into two sub-groups, namely those
resolutions concemed with racial discrimination in general, and those
concerned with equal treatment in matters relating to education in
particular. I shalI deallrst with the resolutions which had a more general
tenor, and then with those resolutions which relate to the particular
subject of education.
Five of the resolutions relied upon by Applicants dealt in general
with racial discrimination in non-self-goveming territories. These resolu
tions are 644 (Vll) of 10 December 1952, r328 (XIII) of 12 December
1958, 1536 (XX) of 15 December 1961, 1698 (XVI) of 19 December 196r,
and 1850 (XVII) of 19 December 1962.
Mr. President, in the first resolution that I have just mentioned,
644 (VII) of IO December 1952, the General Assembly, after referring
to the Charter and the Declaration of Human Rights, recognized- SOUTH WEST AFRICA
"... that there is a fondamental distinction between discriminatory
laws and practices, on the one hand, and protective measures
designed to safeguard the rights of the indigenous inhabitants, on
the other hand".
And the General Assembly recommended, inter alia, the abolition of
"... discriminatory laws and practices contrary to the principles
of the Charter and of the Universal Declaration of Human Rights".
And further, that-
"... where laws are in existence providing particular measures of
protection for sections ofthe population, these laws should frequently
be examined in order to ascertain whether their protective aspect
is still predominant, and whether provision should be made for
exemption from them in particular circumstances". (G.A., O.R.,
7th Sess., Suppl. No. 20 (A/236r), p. 32.)
i\Ir. President, it is important to note the distinction drawn, on the
one hand, between discriminatory measures, and, on the other hand,
measures which are intended to protect indigenous inhabitants. Itseems
that the General Assembly intended to draw that distinction-that is,
on the one hand, discriminatory legislation, that is, legislation which is
motivated by an improper design, and, on the other hand, legislation
intended to protect indigenous peoples.
As long as the predominant aspect of a measure was and remained
one of protection the legislation was not outlawed. ·
This resolution, l\Ir.President, we say, does not, therefore, lend support
to the norm as defined at page 493, IV, of the Reply.
Coming next to resolution r328 of rz December 1958, which is the
second resolution I mentioned, this resolution merely referred back to
resolution 644 (VII), that I have just dealt with, and-
"[r]eaffirrns its resolution 644 (VII) and draws the particular atten
tion of the Administering Members to the recommendation contained
in paragraph 2thcreof ... ",
and further urged members responsible for the administration of non
self-governing territories to pay special and constant attention in future
to implementation of its resolution 644 (VII). (G.A., O.R., 13th Sess.,
Suppl. No. 18 (A/4090), p. 35.)
Mr. President, again this resolution does not assist the Applicants.
Resolution 1536 (XV) of 15 December 1960-the third one mentioned
by me~also in turn refers to resolution 644 (VII) of ro December 1952,
and to the second I have mentioned 1328 (XIII) of 12 December 1958.
Now, this resolution in its operative parts-
(a) endorsed the view that racial discrimination is a violation of human
rights and a deterrent to progress in ail fields of development;
(b) recommended the revision of al] laws and regulations which tend to
encourage or sanction, directly or indirectly, discrirninatory policies
and practices based on racial considerations;
{c) urged that measures to solve the problem of race relations should
include the extension to ail inhabitants of the full exercise of basic
political rights. inparticular the right to vote, and the establishment
of equality among the members of ail races inhabiting the non-self
governing tcrritories.
I have just referred to the contents of the resolution as recorded in ADDRESS BY MR. MULLER 185
the General Assembly, Official Records, 15th Session, Suppiement Xo. 16
(A/4684), at page 27.
Now, again, )1:r. President, as this resolution refers back to resolution
644 (Vil), there must, by implication, again be a distinction between,
on the one hand, discriminatory legislation, as such, and, on the other
hand, protective legislation. In so far as it may possibly be construed
as going any further, it is purely declaratory of a broad trend of policy
favoured by those who voted for the resolution, as distinct from something
intended to bring about binding commitments of an exactly formulated
content. Consequently, we say, Mr. President, also this resolution does
not assist Applicant;' norm or standards contention.
I"wish to deal now with resolution 1698 (XVI) of 19 December 1961.
That resolution referred back to the resolution with which I have just
dealt, that is resolution r536 (XV) and also to resolution 1514 (XV)
which is entitled "Declaration on the granting of independence to colonial
countries and peoples". Mr. President, this resolution notcd that racial
discrimination still existed in non-self-governing territories and endorsed
the view of the Committee on Information from such territories "that
on no grounds whatsoever can the existence of racial discrimination in
any aspect of life in the Non-Self-Governing Tcrritories be justified".
In its operative part, the resolution condemned "the policy and practice
of racial discrimination and segregation in Non-Self-Governing Terri
tories",and urged the administering .Members to take steps to ensure:
"The immediate rescinding or revocation of aU 1aws and regula
tions which tend to encourage or sanction, directly or indirectly,
discriminatory policies and practices based on racial considerations."
That is in the General Assembly, Official Record, of the 16th Session,
Supplement No. 17, document A/5100, pages 37-38.
Before saying something about the meaning and purpose of this resolu
tion, it will be convenient to refer to the last resolution that I mentioned,
that is 1850 (XVJI), which was closcly linked with this one. This resolu
tion recalled resolution 1698 (XVI), and noted with deep concem:
"that racial discrimination in law and in practice, which is utterly
repugnant to humanitv, has not been eradicated in Non-Self-Govern-
ing Terri tories", ·
and it reaffirmed the General Assembly's "resolute condemnation of
the policy and practice of racial discrimination in Non-Self-Governing
Territories". That is in the General Assembly, Official Record, of the
17th Session, Supplement No. 17, document A/5217, at page 43.
Mr. President, I should like to draw attention to two features of
these two resolutions which I have just mentioned. The first is this:
resolution 1850 (XVII) refem:d back to resolution 1698 (XVI), which
in turn referred to resolution 1536 (XV); the last-mentioned rcsolution
in turn again referred back to resolution 644 (VII) which I mentioned
earlierand which was the first resolution pertaining to non-self-governing
territories that I mentioned. As already stated, Mr. President, that
resolution, that is 644 (VII) raised no objection to laws providing par
ticular measures of protection for certain sections of the population.
No resolution of the General Assembly ever expressed an opposite view.
And since the last two resolutions in effect referred back to resolution
644 (VII), it would seem that these tv,,o resolutions also did not intend
to condemn mere differentiation on the basis of membership in a group,186 SOUTH WEST AFRICA
class or race. In other words, it scems again that where the words "racial
discrimination" were uscd in thesc resolutions, they were intendcd to
mean "unfair racial discrimination". If they meant anything else, Mr.
President, they certainly did not succeed in stating so.
A further point I wish to make is that ail the resolutions pertaining
to non-self-goveming territories were based on information fumishcd
with regard to such territories, which of course do not include South
West Africa. and werc intended to apply solely to those territories, and
then, of course, merely as recommendations. They were never intended
to lay down a norm or standard or principle which should also apply
to other countries or territories.
ln sum, therefore, these resolutions may at their highest be seeft as
part of the thus far abortive attempts, which Professer Possony referred
to, towards arriving at a generaUy applicable mie about individuals and
group membership.
May I then deal with the resolutions relied upon by the Applicants
in so far as the subject of education is concemed. The first of these
resolutions, No. 328 (IV) of 2 December 1949 invited the administering
members:
"to take steps, where necessary, to establish equal treatment in
matters related to the education between inhabitants of the Non
Self-Governing Terri tories",
and further :
"in cases where for exceptional reasons educational facilities of a
separate character are provided for different communities, to include
in the information transmitted under Article 73 e of the Charter
fulldata on the costs and methods of financing the separate groups
of educational institutions".
I have just quoted from the General Assembly, Ofjicùû Record, of the
4th Session, document A/1251, at/age 41.
This resolution clearly recognize that, under particular circumstances,
it might be necessary to provide educational facilitiesof asepara te character
for different communities and it is worth noting that, as was pointed out
in our Rejoinder, VI, page 152. the Special Committee on Information
gave the following interpretation of the above rcsolution:
"The Special Committee considers the resolution to stress equality
of opportunity for different ethnie and religious groups of the school
population. in order that every child, regardless of race, religion,
language or social status, may acquire both a knowledgc of his own
culture and a sympathetic understanding of the cultures of others.
lt does not necessarily mean that a common educational programme
should in ail casesbeprovided for all groups in a commimity of difjerent
racial or religi011scomposition." (Italics added.)
It is consequently clcar that resolution 328 (IV) cannot possibly be
regardcd as a source of the norm or standards as defined at page 493,
IV, of the Reply.
The second resolution dealing with education, that is No. 1464 (XIV)
of 12 December 1959 endorsed-
"the view expressed by the Committee on Information from Non
Self-Govcrning Territories that on no ground whatsoever can educa
tion on a racial basis be justified", ADDRESS BY MR. MULLER 187
and requested the comrnittee to pay speciaI attention to this matter.
I refer in this regard to the General Assembly, Offecial Record, of the
14th Session, Supplement 16, document A/4354, at page 35. At the
same time, the General Assembly reaffirmed resolution 328 (IV) with
which I have just dealt.Ifregard is further had to the fact that resolution
1464 (XIV) did not call upon adrninistering members to give effect to
the view expressed by the Comrnittee on Information, it is perfectly
clear that there is no intention of laying down a standard or rule of
non-separation in educational matters even with regard to non-self
governing territories.
It should be observed that the views of the Committee on Information
which were endorsed by the General Assembly were conditioned by its
belief that no territory could financially afford to provide equally advan
tageous facilities for each of the population groups. Thus, Mr. President,
the committee stated, inter alia, that-
"whether or not it had been feasible to provide equally advanta
geous facilities for each of the racial groups, it was liable to entai!
a multiplication of staff, effortand resources which no Territory
appeared able to afford".
That is in the Rejoinder, VI, at page 155. It would therefore appear
that the committee did not consider whether separate cducational systems
which provide "equally advantageous facilities for each group would be
justified".
It should be observed that after the adoption of the resolution in
question, adrninistering authorities continued to provide separate educa
tional systems for different groups, although they informed the Trust
eeship Council that such systems were not based on race. The following
two extracts from the report dealing, respectively, with Ruanda-Urundi
and New Guinea, are illurninating in this respect. I quote from the report.
The first one is from 1959. relative to Ruanda-Urundi:
"So far as discrimination in schools is concerned, there are, at
the primary level, schools with an African syllabus, a school for
Asians at Usumbura and schools run on Belgian lines. The Admin
isteringAuthority explains that these distinctions are prompted not
by racial discrimination but by practical requirements arising from
the location of the establishments and from profound differences in
customs, education and, particularly, language, which make a single
common system of education impossible."
Mr. President, the second quotation is in the report relative to New
Guinea, dated 1962:
"The great majority of both mission and Administration primary
schools are classifi.ed as Primary "T", and have a curriculum spe
cially designed for indigenous pupils. The others, cJassified as Pri
mary "A", follow the primary school curriculum of the State of
New South Wales. The Adrninistering Authority states that the
difference in schools is necessary because of the wide variations in
the respective cultural and educational backgrounds of the students
attending them."
Mr. President, those quotations are from the Rejoinder, VI, pages 159-
160.
It is also important to remember, Mr. President, that the resolution188 SOUTH WEST AFRICA
in question and the views of the Committee on Information wer~ based
on particular circumstances existing in specific terri tories, viz., the non
self-goveming territories, which do not include South West Africa.
Neither the committee nor the General Assembly purported to express
the view that separate systems of education for different groups can
under no circumstanccs be justified in countries or territories other than
the non-self-governing territories. Itis not necessary for us to show that
circumstances in South West Africa differ from those in the non-self
governing territories, but in passing it may be pointed out, as was stated
in the Rejoinder, VI, at page 150, that the White population of non
self-governing territoriesconstituted a very small percentage of the total
population of such territories.
The important point, however, is that the resolutions in question do
not provide the slightest proof of a norm of non-discrimination or non
differentiation of general application,or of standards which are intended
to apply to South West Africa. The resolutions which I have just dealt
with, therefore, do not assist the Applicants with regard to their norm
as defined at page 493, IV, of the Reply.
~fr. President, with your permission. I now turn to the third part
of our argument. The Court will recall that on Tuesday I explained
that the argument would be dividcd into three parts. I wish to deal
now with the third part, and that is with regard to evidence showing
that the application of a normand/or standards, as defined at page 493,
IV,of the Reply, would, in the circumstances of many countries, including
South \Vest Africa, lead to results inconsistent with the promotion of
well-being and progress.
For convenience. the matter can be dealt with in two main parts,
namely evidence directed at the circumstances of pluralistic societies in
gencral, and the second part, evidence directed at the particular circum
stances of South West Africa.
With regard to the first-mentioned branch, that is the evidence directed
to countries generally, I shall refer to the evidence of Professor van den
Haag, and Professor :Manning and also to the evidence given on this
subject by Professor Possony.
Mr. President, Professor van den Haag's qualifications as an expert
were not challenged by the Applicants. At one stage, it was indicated
that he would be cross-examined as to his qualifications-this appears
in the record, X, at page 139. However, Mr. President, there was no
such cross-examination.
Professor van den Haag's qualifications and special fields of study are
set out in X, pages 133-135. Mr. President, I shall not repeat what he
stated there. I wish to make a few points relative to thcse qualifications.
He mentioned that he had obtained certain degrees, inter alia, an l\LA.
and a Ph.D. degree and his special fields of study were sociology and
psycho-analysis. He is a Professor of Social Philosophy-it is sociology
and psychology combined-at the New York university. He is a lecturer
in psychology and sociology at the School of Social Research in New
York, and has also lectured at other universities in the United States of
America. He is in private practice as a psycho-analyst and he has pub
lished very widely, one of his books being used as a text-book in United
States universities.
He has for a long time given special attention to the subject of minority
problems and particularly to the manifestation thereof in the United ADDRESS BY MR. MULLER 189
States regarding the relationship between the Negro minority and the
White majority, and he is engaged in major research projects on the
effects of segregated and integrated schooling of Negro pupils under con
ditions wherc ail variables are controlled.
?\ow, Mr. President, Profcssor van den Haag dealt with the existence
of human or social groups and with the importance of having due regard
to such groups in matters of governmental policies and practices. He
stated that although a human group was, of course, composed of individ
uals it was something more than "a mere aggregate of persons". I refer
in this regard to the verbatim at X, page 141. Mr. President, as I go on
I shall not try to give a complete summary of what was said, but merely
indicate generally the topics and then refer to the pages where the refer
ence is made in the testimony.
He said a social group was an aggregate that felt as a group and was
bound together by a feeling of group solidarity usually based on the
perception of similar characteristics, on a sharing of values, or possibly
on common historical experience. (X, p. 141.)
He went on to say that nations could be described as groups that were
"held together by cultural values that are perceived as common". That
is the same verbatim, same page.
Now such group solidarity, he testifi.ed, led to a sense of order and
law-abidingness in the community and manifested itself, inter alia,
in a preparedness to makc sacrifices on behalf of the group. (Ibid., pp.
141-142.)
He said that where more than one group, with such a group conscious
ness, found themselves within the borders of the same country, the situa
tion could give rise to conflict, especially when one group felt itself or its
identity thrcatened by another group. (Ibid., p. 180.)
Now, in this regard, Professor van den Haag referred to situations
which arose in certain countrics, namely India, which, he said, was parti
tioned to accommodate two incompatible groups in an effort to reduce
strife and conflict. (Ibid., pp. 143, 144, and 435-436.)
He also pointed out how the Governments of Poland and Czechoslo
vakia after World \Var II, fearing the introduction of elcments of dis
soJidarity, had the German populations within their countries removed.
He referred also to the case of Ruanda-Urundi and the fact that group
conflicts led to the partitioning of the country-partitioning which in
the final evcnt turned out to be one that did not go far enough, as the
tragic events showed. (Ibid., p. 144.)
Professor van den Haag also refcrred to two cases-the United States
of America and Russia-where govemmcnt fears of possible disloyalty
on the part of certain population groups within its borders led to action
against such ~roups on a purely group basis. (Ibid.,p. 145.)
He also pomted out that certain countries framed their immigration
laws in such a wav as to avoid the introduction within their borders of
elements which might not be readilv assimilable because of the cultural
or ethnie differences. "
He referrcd in this regard to the United States of America, Australia,
the United Kingdom and Canada. (Ibid., pp. 146-147.)
i\ir. President, all this, apart from supporting Professor Possony on
the fact that there was no general practice of a norm or standards of
non-separation, demonstrated also the practical importance of group
solidarity and ethnie differences-practical recognition accordcd to the190 SOUTH WEST AFRICA
importance of these matters, and the tragic consequences of overlooking
them or granting insufficient recognition to them.
In regard to the question of assimilation, reference may also be made
to the evidence of Professor van den Haag as recorded in X, at pages 167
to 174, the effect of which can briefly be stated as follows.
At the base of group solidarity lies identification, a consciousness of
kind, and it is a universal phenomenon that members of an ethnie group
show a preference for, and tend to associate with. fellow members rather
than wîth others. Indeed, as between different ethnie groups, there is
everywhere in the world, he said, a tendency to "ethnie prejudice" and
''ethnie separation" unless circumstances can be so arranged that there
is mutual acceptance. I refer to the same verbatim, at page 172.
Professor van den Haag said that atternpted assimilation might be
successfully accomplished "when it is carefully regulated, when there is
a lot of groundwork laid, when it was done slowly", and when it was
produced, as he said, by "mutual acceptance". That is at page 174 of
the same record. He said an attempt to do so by force would not be
successful. Disruption leads to very injurions consequences and psycho
logically and sociologically it is extremely difficult for a member to quit
his group. That is in the same record, pages 174-175. "The greater the
cultural differentiation" between two groups, Professor van den Haag
said, "the less I would urge any inunediate and sudden homogenization",
and the more he would want the two groups "to remain relatively iso
lated from each other". (X, p. 179.)
He also said that cultural differences between two groups might be so
great as to cal! for legal measures to maintain separation between them.
If this was not done a technologically weaker group might be overrun
by a more advanced group. He referred in this regard to the Indians in
the United States of America. (Ibid., pp. 179-180.)
According to Professor van den Haag, it cannot be said that segrega
tion is, by itself, harrnful. many cases, he said, it would have beneficial
results. (Ibid., pp. 179-180.)
Mr. President, in this regard, he emphasized the importance of certain
factors which are of particular significance with regard to the suggested
norm and/or standards, and they are the following:
(a) The desirability of maintaining a native culture that bas any sort
of strength. (ibid., pp. 152-153.)
(b) Differences in cultures and in levels of development are factors
favouring separation. (Ibid., pp. 164 and 179.)
(c) When a group considers itself or its identity or its standard of life
to be threatened by another group, "the amount or intensity of
prejudice tends to rise". (Ibid., p. 180.)
Mr. President, ail this emphasizes the need to deal with each case, as
Professor van den Haag said, on its merits and not by a fixed preconceived
formula, as appears from the way he expressed himself, at page 180.
Professor van den Haag also dealt specifically with the question of
education. I do not intend to deal with this herc. It will be dealt with
later, 1\fr. President, when we corne to the particular subjects, such as
education.
May I, then, deal very briefly with the evidence of Professor l\Ianning,
l\Ir. President? His qualifications as an expert were not challenged by
the Applicants in cross-examination. Itis true that during the examina- ADDRESS BY MR. MULLER 191
tion-in-chicf Applicants raised objections as to the formulation of the
points to which Professor Manning's evidence was to be dirccted and to
the relevancc of his evidence, but this objection obviously did not relate
to his expertise as such. At one stage-that was during the examination
in-chief~i\fr. Gross for the Applicants suggested that Professor Manning
was not really qualified as an expert, but that he was expressing his
"persona! credo". I rcfer in this regard to the verbatim, XI, at page 604.
)lr. President, in our submission and for reasons which I shall outline,
this suggestion was unfounded.
Professor Manning's qualifications appear at XI, page 601 and the
following pages of the verbatim record, and I shall very briefly sum
marize the qualifications. He obtained the degrees of Bachelor of Arts
and Bachelor of Civil Law at the University of Oxford, bis main fields
of study being philosophy and law. Thereafter, he held a fellowship at
Harvard University. Having taught legal subjects at Oxford, he held
for more than 32 years the Chair of International Relations in the Uni
versity of London. He has published a number of articles and in 1962 a
book The Nature of International Society.
His basic field of study, international relations, entailed a study of
charactcristics of the international society and such developments in
the domestic affairs of States as have an impact on international issues,
especially the problem of the nature of groups and group personality.
Also he, Mr. President, testified on the matter of group solidarity and on
situations which may arise where differcnt groups fmd themselves within
the same country.
Very briefly, his evidence was: a group----as he said-is, of course,
composed of individuals, but it can also be more than a mere aggregate
of individuals. The group is sometimcs socially viewed as a person, as an
enbty with a group personality (XI, at p. 606). He said that every individ
ual member of a group has firstly an image of himself, as participating
in the collective selfhood of his group, and secondly an image of bis group,
and the collective self-image of the members of the group is a part of
that which gives them their cohesion and their so!idarity as a group
(ibid.).
The existence of more than one such group in a single country, Profes
sor l\fanning pointed out, could lead to difficulties in governrnent and
administration. Sometimes, he said, peacc and order could be maintained
only by some external power or by a particular form of government.
such as one-party rule (ibid.,p. 6rr). He mentioned lndia and Ruanda
Urundi in this regard, where resort was had to partition when Great
Britain and Belgium respectively withdrew. He also referred to Cyprus,
whcre he said a formula for ensuring peaceful coexistence of the Greek
and Turkish communities was still being sought (ibid., p. 614).
"Where the population of a country is a single people with a single,
ail-inclusive self-hood and a single, collective self-image", Professer
Manning said, there is no difficulty about making satisfactory constitu
tional arrangements (ibid.).
Difficulties, he said, arise "when within the ambit of a single polity
there are included one or more less dynamic ... self-hoods whose presence
and potentialities are not sufficiently allowed for in the given constitu
tional schcmc" (ibid.). By way of illustration he rcferred, inter alia, to
the position of French-Canadians in Quebec, and of the Flemings
and the Walloons in Belgium-both cases where groups in a country SOUTH WEST AFRICA
have shown themselves to be unassimilable and not wanting to be assim·
ilatcd one to the other (ibid.).
\Vhere the objective is the promotion of the well-being and progress
of two or more underdcvelopcd peoples living in one territory, the ap·
proach should not be (in Professer Manning's words) "ideological or
doctrinaire" but "tentative" and "clinical", i.e., suited to the sociological
necds of the particular situation. I refer in this regard to the verbatim
record, XI, at pages 6r6-617.
The Court will also remember that Professor ?ilanning was asked to
express certain views with regard to the position in South West Africa
itself.I shall not deal with that now, but at a later stage.
Coming to the evidencc of Professor Possony, he also stressed the im
portance of recognizing group differcnces in pluralistic socicties. I shall
only read a brief extract from bis evidence in this regard (ibid., p. 648).
This is what Professor Possony said:
"i\1.ulti-ethnic societies presuppose the explicit recognition of eth
nie differences. Such societies require institutions that are based
upon and manage the ethnie diversity. In addition. an effective
organization to ensure the collaboration of different ethnie groups
is needecl to bring about mutually beneficial economic progress
and to provide for each individual an intact social community of
his own. If such communities are disrupted, or if the rclationship
between the individual and his community is disorganized, man
becomes psychologically alienated, that is, he no longer belongs to
his group.
In summary, ethnie differences demand recognition. If multi
ethnic societiesare to fonction well such differences must be handled
through institutional arrangements."
Mr. President, the Court will also recall that when asked the question
whether it would be practicable and just to apply a normand/or standards
as contended for by the Applicants under ail circumstances and at ail
times, Professor Possony's answer was (and I shall read only a part of
it):
"l\Ir. President, my answer to this question is no. Mankind with
ail its diversities has never accepted a single writ. To impose a
single formula would be ideological imperialism ... the best prin
ciple, it seems to me, is to tailor methods or responses to specific
challenges. An optimal solution can be optimal only in terms of a
concrete situation. A solution can be viable only if it respects the
history of an area and is implemented in the same rhythm as the
society living in that area is evolving." (XI, p. 708.)
Mr. President, it will therefore be seen that Professor van den Haag,
Professor Manning and Professor Possony each, from bis own field of
learning and research, and each in his own wording, emphatically came
to the same conclusion, namely that the best principle (and I quote
from the words of Professor Possony) is "to tailor methods or responscs
to specific challenges". This evidence, in our contention, !ends support
to an argument which we have already advanced relative to the discre
tionary powers which were vested in the Mandatories, namely that it
would have been impracticable, ifnot entirely impossible, to prescribe
special methods of promoting well-being and progress for each of the
mandated territories. Consequently, Mr. President, save for providing for ADDRESS BY MR. :\IULLER 193
certain speci:fic prohibitions,cach Mandatory was expected and em
powered to (and I quote Professor Possony's words) "tailor methods or
responses to specific challenges".
\Ve submit, Mr. President, that there is nothing in the cross-examina
tion of Professorvan den Haag, Professor 1fanning or Professor Possony
which in any way detracts from their statcd views that to apply the
norm of non-discrimination or non-separation for which the Applicants
contend, under ail drcumstances and at al! times, espccially in countries
in which there are pluralistic societies, that is, societies composed of
differentethnie groups, would in many cases be to court disaster.
Mr. President. having dealt with the gcneral evidencc, I now wish to
proceed to deal with witnesses who expresscd themselves relative to the
situation in South West Africa itself. Here again, the testimony can be
divided into two broad categories, namely (a) the evidence of witnesses
who expressed opinions on the situation in general; and (b) the evidence
of witnesses who dcalt ,vith particular aspects of policy. such as political
rights, education, and, for instance, the economic aspect. There is, how
ever, some overlapping between the two categories, and the evidence of
some witnesses may be rcferred to in the argument relative to both,
but, ne\·erthclcss, I consider it convenient to deal with the subject, as
far as possible, in terras of these two categorics.
Concerning the witncsses who expressed views on the situation in
genera\, the Court will reca\l that certain witnesses, such as, for example,
Professor van den Haag and Professor Manning, did so not on the basis
of personal or intimate knowledge of conditions in South West Africa,
but on the basis of knowledgc obtained from our pleadings, the facts
treated in the pleadings being admitted by the Applicants.
It willaccordingly be convenient, before clealing with the evidence of
such witnesses, to refer bricfly to certain general circumstances or factors
as described in the pleadings concerning the different population groups
of South West Africa, which facts are not disputed by the Applicants.
In this regard T wish to refer the Court to a statement made by my
learned friencl, Mr. Gross, with regard to the admission of facts, in the
verbatim record, IX, at page zr . .M.ayI be permitted to read the passage,
which is to the following effcct:
"The Applicants have gone further in order to obviate any plau
sible or reasonable basis for an objection that the Applicants have
not painted the whole picture in their own written pleadings. The
Applicants have advised Respondent as well as this honourable
Court that ail and any averments of fact in Respondent's written
pleadings will be and are accepted as true, unless specifically denied.
And the Applicants have not found it necessary and do not find it
necessary to controvert any such averments of fact. Hence, for the
purposes of these proceedings, such avcrrnents of fact, although
made by Respondent in a copious and.unusually voluminous record,
may be treated as if incorporated by rcference into the Applicants'
pleadings."
ofr.President, may I now be permitted to state the more important
circumstances or factors to which I have just referred, and which in
our submission are not only relevant but very material in the present
enquiry? I shall state them very briefly, and then refer to, or give, very
brief quotations from certain passages in the pleadings.194 SOUTH WEST AFRICA
The first factor to which I refer is the existence in South West Africa
of a number of population groups with different traditions, cultures and
languages. In this regard I refer to the Counter-Memorial, II,pages JII
to 348, which contains a description of the population groups of South
\Vest Africa. The Courtis respectfully referred to what is stated in regard,
inter alia, to the history, social and political organization, language,
cconomy, etc., of the different groups. The following passage states very
briefly the position in r920 and the position today:
"The population of South West Africa is today, and has been for
centuries, a heterogeneous one. \Vhen Respondent assumed the
:Mandate in 1920, the Territory was occupied by at least nine major
population groups differing widely as to appearance, ethnie stock,
territories of origin, culture, language and general level of develop
ment."
I have just read from the Counter-Memorial, II,page 3n, paragraph 1.
There is also a passage in Book VII of the Counter-~Iemorial, III,
with regard to the position in 1920. If I may be permitted to read, it
is as follows:
"Each of these groups had its own identity, its own culture,
customs and language (save that the Bastcrs and other Coloureds
spoke one of the European languages, and the Dama the Nama
language, as they still do). There were in these respects differences
not only between the White,' Coloured and Native groups, but also
between the various Native groups inter se." (III, p. 354, para. 5.)
And the following passage reflects not only the position in the past but
also the present position:
"At no time prior to, at or since the assumption of the Mandate
by Respondent, has the population of the Territory in fact formed
an integrated, homogeneous society. On the contrary thcre has at
ail times existed a wide diversity of population groups. several of
which have always bcen confincd in their habitation to defi.ned and,
in some instances, relatively isolated regions or areas within the
Territory. There have at ail times been wide differences between
the groups-in levels of development, modes of living, outlook and
aspirations-and in the not too distant past conflicts of interest
resulted in almost incessant warfare between some of them." (Ibid.,
p. 106, para. 7.)
Without reading it, ] would also refer the Court in this regard to the
Counter-Memorial, III, at page 375, paragraph 49.
The second factor, Mr. President, is that in the history of the Territory,
prier to the assumption of the l\fandate, there had been a period of
strifeand warfare between a number of indigenous groups. The factual
position in this regard is briefly stated as follows in the Counter-Memorial,
II, at page 407, paragraph 13:
"In the Police Zone, ... Respondent found various Native groups
which had been in contact with one another for at least a centurv.
This contact had not led to the creation of a common societv-on
the contrary, tribal and racial differences, and conflicting cla(ms to
land, had led to continuai bloodshed, resulting in the subjugation
or even extermination of the weaker by the stronger."
In Book III of the Counter-Memorial we dcalt with these matters ADDRESS BY MR. MULLER 195
in some more detaiJ. 1t sets out at Il, page 327, paragraph 56, how the
Bushmen were hunted down and virtually exterminated by the stronger
Hottentot, Herero and other Bantu groups ;how the Dama were persecuted
and enslaved by the Nama and the Herero (that is at pp. 332 to 333,
paragraphs 64 and 65); and how the Herero and the Nama fought each
other almost continuously for most of the nineteenth century (that is
at p. 349 of the same part of the pleading).
I think the position may be summarized by the following short quota
tion from page 349, paragraph I:
"The history of South West Africa during the nineteenth century
consists of a record of almost uninterrupted warfare, particularly
between the Nama and the Herero. As will be seen, in the period
between 1835 and 186r the Nama became undisputed masters over
the Herero. After 1861, the tide turned in favour of the Herero,
and in 1870 they concluded a peace treaty which confirmed their
position as the dominant group in central South West Africa. After
ten relativcly peaceful years, the year 1880 saw the beginning of
rencwed hostilities, wh1ch were not finally terminated until the
Germans, who had in the meanwhile acquired authority over the
Territory, suppressed the warring tribes by force of arms in the last
couple of years of the century."
Mr. President, the third factor is that, generally speaking, the various
groups find themsclves at differcnt levels of development, and, in partic
ular, that there is a vast difference in this respect between, on the one
hand, the European group, which has a tradition of western civilization
and is used to a modern economy, and, on the other hand, the various
Native groups, which are to a large extent still bound to the tradition
of subsistence economy.
Book III of the Counter-:;\femorial contains brief descriptions of the
traditional economic systems of various indigenous groups. Ali these
economies were of a simple subsistence type, with some more primitive
than others. So, for example, the economy of the Bushmen was one of
hunting and food gathering, and that of the Dama almost equally prim
itive. The referenccs in this regard to the various groups are the following:
I shall only indien.te where they are to be found, Mr. President, without
quoting or even summarizing.
The Eastern Caprivi people are dealt with in Book III of the Counter
Memorial, II, page 316, paragraphs 18 to 21; the Okavango people, in
the same volume, pages 318 and 319; the Ovambo, at pages 324 and 325;
the Bushmen, at pages 329 and 330; the Dama, at pages 335 and 336;
the Nama, at pages 338 and 339; and the Herero, also in this same volume,
at pages 346 and 347. '
The agricultural and pastoral activities of the groups in the northern
terri tories are, clespite devclopments which have taken place, still largely
of a subsistence type. Details of this are contained in the Counter
?.Iemorial. III, at pages 4 to 9.
In the Police Zone dcvelopment has progressed further. In that area,
Native farmers have to some extent become commercial farmers who
produce for the market. I woulcl rcfer the Court in this regard to pages
ro to 21, III, of the Counter-Memorial, which deal with agriculture in
the Police Zone and, more particularly, pages 15 to 19, paragraphs 13
to 17, which deal with the position in regard to the Natives.196 SOUTH WEST AFRICA
In the field of industry and commerce the Natives of the Territory
have generally not acquired the experience, enterprise or means to initia te
modern dcvelopment. So. Mr. President, for cxample, the following is
said in regard to mining, if I may quote a short passage from the Counter
Memorial, III, page 59:
''... due regard must be had to the fact that the Native population
has as yet not acquired the cxperience, and generally does not as
yet have the initiative or the means, to undcrtake prospecting and
mining operations, which ... must usually be on a large scale to
render them profitable".
l\Ir. President, details with regard to commercial activities on the part
of the Natives are briefly set out on pages ror to 103, III, of the Counter
Memorial.
The fourth factor, Mr. President, is that to a very large extent the
groups occupy, and have in the past for many years occupied, separate
regions in the Territory.
Thus, the Eastern Caprivi people occupy the territory they have
always occupied (Counter-Memorial, Il, pp. 312-313); the Okavango
people have occupied their present territory for probably more than
one hundred years (ibid., p. 317); the position would seem to be about
the same in the case of the Ovambos (ibid., pp. 320-321); the Himba and
Tjimba of the Kaokoveld seem to have been there for considerably more
than a hundred years and probably also some of the Hereros in that
area (ibid., pp. 341-342, paragraph Sz); the othcr Herero wcnt to the
Kaokoveld in 1915, this matter is dealt with in the Counter-Memorial,
III, p. 242, paragraph 39; the Nama of Okambahe have occupied that
area since 1870 (Counter-Memorial, II, p. 378, paragraph 86); the Basters
of Rehoboth have occupied that tcrritory since 1870, I refer in this
regard to the Counter-Memorial, ibid., page 379, paragraph SS.
l\frPresident, the fifth factor is that the indigenous groups, to a
large extent, still recognize and apply their traditional system of govern
ment through chiefs and headmen. In this connection, the Court's atten
tion is firstly drawn to what is said in Respondcnt's Counter-~Iemorial,
III, pages 114-125, paragraphs 38-83, about the indigcnous political
institutions outside the police zone. As will appear from these pages,
the Ovambo tribes have in some cases in a somewhat adapted form
retained the original or tradition al systems of government: some tribes
have chiefs assisted by councils of lcading men, others have councils of
headmen; I refer to the Counter-~1emorial, III, page rr6, paragraph 47.
These chiefs and governing bodies, as is also the position clsewhere
outside the police zone, also exercise judicial functions (ibid.). I also
refer in this regard to II, pages 322-323, as to the Ovambos' traditional,
social and political organizations. The tribes in the Okavango territory
have a system of chiefs assisted by councils of headmcn; the councils
of headmen are an innovation. At the inception of the l\fandate there
were only chiefs; this is also in the Counter-Memorial, III, page ng,
paragraphs 58 and 59. In the Eastern Caprivi, the traditional system
is still in operation~hereditary chiefs assisted by councils; I 'rcfer to
the Counter-~[emorial, ibid., page 120, paragraph 66, and Il, pages 314-
JI5.
In the Kaokoveld, where conditions for a long time werc unsettled
and where the different sections, that is, the Herero, Himba and Tjimba, ADDRESS BY MR. MULLER 1 97
living there dicl not get on too wcU with each other, a solution has been
found by instituting a joint council of headmen who are elected by
mcmbers of the tribe concerned usually on a hcreditary basis-that is
in the Counter-:\Iemorial, III, pp. 121-125 and particularly page 124,
paragraph 79.
Attention, Mr. President, is next drawn to what is stated in the
Counter-Memorial, III, pages 125 and 130, with regard to the indigenous
political institutions within the Police Zone. It will appear from what is
said in those pages that tribal lifc and institutions had been broken
down by the events during the nineteenth and early twentieth century,
that members of the different groups were scattered ail over the southem
sector at the tirne when the Mandate was assumed-1 refer in this
regard to page 125, paragraph 84, III, of the Counter-:\femorial. It will
also appear, Mr. President, from thcse pages, that although the various
groups do not today have their traditional systems of government, some
elements of such traditional systems, largely in the forms of councils
of headmen, have been introduced into the systems of administration
applied in the diffcrent Reserves. The gcneral linc of development in
this regard is set out at pages 125-128, III, of the Counter-;\Jemorial
whilst at pages 128-130 there is contained particulars relevant to the
Herero, the Nama and the Dama.
The sixth and the last factor to which I wish to rcfer, Mr. President,
is that the population groups each have and are conscious of their
separate identity and that they wish to be treatcd as separate groups.
I have already quoted certain passages from which it will appear that
at the time of the assumption of the Mandate each of the population
groups had a separate identity, and that is still the position today;
I rcfer in this regard ta what I stated under the first of the factors that
I dealt with earlicr.
Reference may also be made to certain other passages which show
that the various groups wish to be treated separately and this applies
not only as between the White groups, on the one hand, and the non
White groups, on the other hand, but also as between the latter, the
non-\Vhite groups themselves, and that is so even in those areas where
they do not occupy areas of their own, for example, in the urban areas
in the police sector.
Speaking of this position in 1920, it is said in the Counter-Mcmorial,
II, page 408, parngraph r5, th;it;
"The absorption of the non-White population in the money
economy of the White group did not lead to the creation of an
integrated society, even among the Native groups. Each group
still regarded itself as different fromthe other."
And speaking of the position of the Natives in the Police Zone in 1920,
we stated in the Counter-Memorial, II, page 409, paragraph 21 (e):
"... wide differences between the various groups were still found, and
each group retained its own identity" and it is stated in various places
in the Counter-;\1emorial that there has at no time in the historv of
the Territory been social integration between the White and the non
White groups. So for example, ~lr. President, it is saicl that:
"In the history of the Territory there has at ail times been social
separation betwcen these groups, and expericncc has shown that
members of cach group prcfer ta associate with members of their198 SOUTH WEST AFRIC,\
own group, and that certain kinds of contact between members of
these groups tend to create friction." (III, p. 55.)
Mr. President, the following passages relate to members of the :N"ative
groups living in the urban residential areas. l cite from the Counter
Memorial, III, page 180, paragraph 46:
"The various groups prefer to have their own separate schools.
clubs, churches, sportsgrounds and other amenities and intermarriage
between the different ethnie groups is a very rare occurrence.''
And in the Counter-l'llemorial, ibid., page 296, we have the following:
"In South West Africa Respondent makes, as far as is practicable,
separate provision for each of the different Native groups, since the
majority of Natives preferto live inethnically grouped communities."
Mr. President, may I conclude then by indicating the statement to
be found in this regard in the Odendaal Commission report, page 55,
paragraph 187, which states as follows:
"In the course of the enquiry the Commission gained the impres
sion, supporteclby evidence, that the various population groups har
bour strong feelings against other groups and would prefer to have
their own homelands and communities in which they will have and
retain residential rights, political say and their own Janguage, to
the exclusion of al! other groups."
Mr. President, the factors I have mentioned are the more important
factors. Other factors, for example, that different groups wish to have
different schools will be dealt with later whcn we corne to the particular
subjects to be dealt with.
[Public hearing of I November I965]
Mr. President, on Friday I dealt with certain factors which in our
submission are very material to the issues before the Court, factors which
are set out in our pleadings with particularity, and which, as facts, have
not been disputed by the Applicants.
The last factor \vith which I dealt was that the different groups in
South West Africa each have. and are conscious of, their separate identity,
and that they wish to be treated as separate groups. 1 ended up on
Friday by rcferring in this regard to a passage in the report of the
Odendaa] Commission. l\fay I be permitted to add another reference,
and that is to Respondent's Rcjoinder, V, pages 285 to 291, where we
deal with consultations with the different population groups hcld by the
Odendaal Commission before it brought out its report and consultations
held subsequent to the publication of the report. The results of these
consultations, in our submission, clearly demonstrate the wishes of the
groups to be treated as separate groups.
I proceed next, Mr. President. to deal with the testimony of witnesses
who expressecl opinions in gencral relative to the application in South
West Africa of a norm and/or standards of a content suggested by the
Applicants. The first witncss is Professor Manning. Now, for the purpose
of bis opinion, he assumed the correctness of the description of the
Territory's population groups as contained in Responclent's Counter
Memorial and in the report of the Odendaal Commission. On the basis
of these descriptions Professor Manning said-and I quote from the
verbatim record, XI, at page 615- ADDRESS BY MR. MULLER
"The Territory would appear to me to be a veritable continent
in miniature, inhabited by a divcrsity of peoples not in general
yet able to stand by themselves in the world. Even so, they are,
I would gather, fully conscious each of its own distinctncss from
the others. Individuals in general do very wcll know of what
group they are a part. I do not assume that the group consciousness
of these scveral communities is as vet in the nature of a national
consciousness. In some cases it may" well be. For instance, with the
Ovambo. But that is nota necessary part of my theme. My concern
is simply with the diversity of thcse ethnie groups and the unmis
takably separate identity of each."
:\Ir. President,in expressing his opinion on what the effects of the
application of the Applicants' norm in South West Africa would be,
Professor Manning dealt with the matter from two points of view. The
first concerned the prcsent and the conditions for the development towards
full maturity of the.varions groups; and the second concerned the future
and the desirability of ensuring to the various peoples the fullest oppor
tunity to make their own choice in respect of their own political future.
The testimony in this regard is found in the verbatim record, XI, at
page 605, and also, at page 6r6.
As to the first point, that is the present, Professor Manning stated
that the application of the norm would involve a non-recognition of
relevant differences. It might be, he said, administratively convcnient
to treat all the groups alike, once one had decided whose needs and
aspirations were to be taken as typical of the needs and aspirations of
ail,but that such an approach would not prove conducive to the speedy
development and greater well-bcing and progress of ail. He exprcssed
the view that one should look at the needs of each group separately,
and, so far as possible, deal appropriately with each one's important
needs.
"Only so [he said], will one be able to give to each group a height
ened sense of and a more lively pride in its own identity, enabling it
through the modernizing of its own traditional institutions to move
forward towards a genuine self-determination in a world and a South
West Africa made safe for diversity."
I refer in this regard to XI, at page 617.
As to the second point, that is the future, Professor Manning stated
that, in his view, it was "necessary to the dignity of every ethnie group
that it be given the right of self-determination". I refer in this regard
to XI, at page 618.
Now, proceeding from that premise, he expressed the view that a
rule of non-differentiation would be radically incompatible with the
essential idea of self-determination. The appilcation of such a rule, he
said, would mean a Jumping together of the several communities and,
at best, the creation of a synthetic unit. This, he said, would preclude
the several groups from the right of sclf-determination and the oppor
tunity for sclf-rule. It would mean, furthermore. that a group could
fi.nd itself joined with other groups beforc it had achieved the needed
understanding of itself and before it was mature enough to be fully a:
party to what was being clone. The evidence in this regard is in the
verbatim record, XI, pages 6r8 to619.
Professor .Manning also expressed the view that even if self-detcrmina-200 SOUTH WEST AFRICA
tion was not precluded in the sense that I have just stated, the applica
tion of a rule of non-differentiation would preclude a group from advanc
ing and from preparing for constitutional change at the rate at which
it was capable. Failure to apply different mcasurcs for the specdicr
advancement of the several groups would therefore. Professor Manning
said, be like the case of an entire convoy having to move with the
slowest ship. The cvidence in this regard is in XI, at page 6r9.
Now, Mr. President, although Professor Manning was cross-examined,
be was not cross-examined on the opinion he expressed to which I have
just referred.
May I then proceed to deal with the cvidence of Professor van den
Haag. As in the case of Professor ilfanning, Professor van den Haag
was asked to express an opinion relative to the circumstances in South
West Africa. Now he bas not visited the Territory, but he stated in
evidence that he had read certain parts of the written pleadings, partic
ularly Book III of the Counter-Memorial, which contains a detailed
description of the different population groups in the Tcrritory. He was
asked whether, in the light of his general knowledge of human relation
ships over the world, he found anything inherently improbable in the
descriptions given in Respondent's pleadings. After this question was
put, an objection was made by the Applicants, but the objection having
been heard the question was allowed to be put and was repcated. That
is in the verbatim record. X, at page 161.
Professor van den Haag's reply was as foliows:
"I am aware, as any sociologist is. that there are in this world
different human groups at different levels of development, if we
take developmcnt not to be a matter of developing by rcgular
stages-which is a theory I do not hold-but it is certainly true
that some peoples have primitive, and others more complex cultures,
that some are pre-literate and others arc literate, that some are
more highly developed and others less highly developed in particular
respects ... so there are major differences along thosc lines and
though I cannot vouch for the corrcctness of the description of
thesc differences in South [West] Africa I should think that, in
general, one would expect that different tribes, different people,
different groups, are developing in different ways."
I have just quoted from the verbatim record, X, at page 162.
This matter was then takcn further in his evidence, with particular
reference to Respondent's educational policies, a matter which will be
dealt with later in the course of our argument relative to education .
.Mr.President, as we have noted before, the principles and conclusions
stated by Professor van den Haag generally-that is without specific
reference to South West Africa-tend very strongly against the applica
tion of Applicants' normand/or standards in South West Africa, that is,
at least for a considerable time in the future. I have in mind, in this
regard, particularly his emphasis on the importance of different cultures
and different levels of development, and of the tensions which arise when
one group feels it.self threatened by another. The references in this
regard, l\Ir.President, were given in Friday's record, at page 190, supra.
Now, the facts concerning South West Africa, as set out in the Re
spondent's pleadings, to which I referred on Friday-that is in the ver
batim record at pages 193 to 198, supra-are not only admitted by the ADDRESS BY MR. MULLER 20I
Applicants, but their existence and the importance of thcir existence
have been testified to by a number of witnesses who werc asked to ex
press an opinion relative to the application in South West Africa of a
norm of a content suggested by the Applicants.
The first witnesswith whom I wish to deal in this regard is Dr. Eiselen.
He is a renowned anthropologist who has made a special study of African
lifeand languages, linguistics and social anthropology, as well as physical
anthropology, and he testified with regard to population groups in South
West Africa. He is a person with a missionary background who, in his
own words, "grew up amongst the Bantu peoples" and-
"spent really the whole of my life in the service of the Bantu people
of the Republic of South Africa, and I have endeavoured to obtain
an intimate knowledge of the circumstances of the people there,
and my life's work has been devoted to helping ... the Bantu people
of South Africa, in their efforts to attain a higher standard of civi
lization".
The Court will find that quotation in the verbatim record, X, at page 89.
In testifying with regard to the population groups in South West
Africa, he described the position in the Terri tory as follows:
"1\fr.President, the term 'multi-community' applies to an even
greater extent to the Territory of South West Africa. [He was com
paring the position in the Territory with conditions in South Africa.]
When we spoke of South Africa we were able to speak of the pres
ence in South Africa only of the Bantu-the yarious population
groups of the Bantu-the Coloured people, the Indians and the
White people, but in the Territory of South \Vest Africa there are
many more population groups and they differ far more widely than
the population groups in South Africa. You have, in addition to
the closely related White people relatcd 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. There also exists a great difference
between the Ovambo and the Herero in their social structure and in
man y other respects." (X, p. rn8.)
He then went on to describe to what cxtent the various groups in the
Territory differ relative to their customs, traditions, ways of lite and
languages. The Court will find that in the verbatim record, X, at pages
rnS to 109.
He described what the position was when South Africa assumed the
·Mandate, what parts of the Territory were occupied by the different
groups, and how a policy of separate devclopment has, throughout the
existence of the :Mandate and up to the present, been applied in the Ter
ritory. In this regard the reference is toX, at pages ro9 to III.
Now, in the latter regard, he denied that the policy of separate devel
opmcnt is based on anv concept of superiority and inferiority of any of
the population groups or that the object of the policy is to discriminate
against the Bantu people. I refer in this regard to the same verbatim,
pages III-IIZ.
\Vhen asked to state his opinion relative to the application in South
West Africa of a rule or norm or standard which would prohibit the
allotment of rights or duties on the basis of membership in a race, or
tribal or ethnie group, he stated that he had difficulty in undcrstanding
how the idea of non-separation could be applied to South West Africa.202 SOUTH WEST AFRICA
He stated that the term could have in the context three possible mean
ings.
With regard to the first meaning, he said:
"... that you must not take to pieces a natural whole, because that
would obviously be a separation; but as no such natural whole has
ever existed in South West Africa, as Ovambo and the Herero. the
Dama, the Bushmen and all the others have never formed a natural
whole, this cannot surely refer to taking to pieces a natural whole".
(X, p. n2.)
With regard to the second possible meaning, he said:
"Therefore, it is perhaps the next possible meaning of this con
cept, namely to allow to corne together again those who ha\·e been
separated by historical events, who did form a unit at one time or
other. ln this respect I can think of, say, the Ovambo, of whom a
portion live in Portuguese Angola and another portion-perhaps
the major portion-in South West Africa; these people werc at
one time a unit, and they have been takcn apart by action of the
so-callcd colonial powers, but it is not somcthing in which the South
African Govcmment could take action unilaterally, although every
body would of course be pleased to sec that, if these people so de
sired, they could once again form a whole." (Ibid.)
And, then, regarding the third possible meaning, he said:
"But then there is apparently this third possible meaning: that
you must not allow units who in the opinion of people of greater
wisdom should form a unit to remain apart, although they had
never fonned 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 thcy had been
included in one area by the people who carved up Africa in the time
of colonial expansion; that the Herero, the Ovambo and others had
been included in the same area and were therefore, bv virtue of that
action of the colonial powers, now expected to becoine 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 [he said)
... is something that seems to be entirely against the feelings not
only of the Govemment, but something that would definitely not
be wekomed by the people." (Ibid., p. rr3.)
He expressed the view that the policy of separate development of
the various population groups in South West Africa was the policy best
suited to the circumstances of the Territory both in respect of political
advancement as well as in respect of economic advancement. This was
stated by him in X, at pages rr3-rr4.
Asked what the cffects would be of applying the Applicants' suggested
norm of non-separation or non-discrimination, he replied that in so far
as the political aspect is concerned it is difficult to visualize what would
happen. He went on to say:
"If one speaks in terms of the majority, the people who are
unfortunate enough to be the smaller groups would in forming a
new unit-an artificial new unit-be obliged to accept the precept
and example of the most numerous group. For instance, if every
body were given political rights-the vote-in the same way in ADDRESS BY MR. MULLER 203
South West Africa, then the Ovambo people would, by being the
vast majority in that area, obviously be the people called upon to
form the Government, and I take it that their language would
become the official language unless they would choose to make En
glish or Afrikaans the offü;ial language, which does not seem to be
very likely. To the other tribes, the Herero for instance, whose name
is perhaps better known than that of any other people in South
West Africa but who are numerically only about twelve per cent
as strong as the Ovambo, this would mean a terrible thing that they,
being a proud people, should now be forced to live according to the
ideas of the Ovambo people." (Ibid., p. 113).
Relative to the economic aspect, he stated:
"In the case of the economic sphere it is very difficult to think
that anything could result from this except chaos." (Ibid., p. 114.)
And he went on to say:
"... to give to them (that is the peoples of South West Africa]
immediate power as a government chosen by the people of South
West Africa just on the strength of their numbers, to give to such
a govemment the power of dealing with substantial achievements
in the economic sphere, in the mining sphere, in the fishing industry,
in the diamond industry, in the wool industry, the meat industry,
and so forth, would be asking for trouble." (Ibid.)
The Court will recall, Mr. President, that Dr. Eiselen was not cross
examîned at all. I merely state that now as a fact. The significance and
effect of it will be considered later in our argument.
1[ay I, then, proceed to deal with the evidence of Professor Bruwer.
He is a renowned social anthropologist, who can also be said, as student,
missionary, educationist and administrator, to have devoted his life
to a study of and the upliftment of the Bantu people, not only in South
Africa itself, but also in Rhodesia and in South \Vest Africa. I refer in
this regard to the verbatim, X, at pages 239-242, where he gave the Court
a detailed description of circumstances in South West Africa and, partic
ularly, of the different groups in the Territory.
Mr. President, Professer Bruwer is, in our submission, eminently
qualified to speak on these subjects. Not only has he lived amongst the
indigenous peoples of South West Africa and studied their ways of life,
but he was also a member of the Odendaal Commission, the report of
which is beforc the Court, and he also served for one year as Commis
sioner-General for the indigenous peoples of South West Africa. The
evidence in this regard is in the verbatim, X, at pages 241-242.
His description of the population of South West Africa was briefly
as follows:
"... looking at the population from an anthropological point of
view, I would in fact say that it is extremely heterogeneous, com
prising as it does a number of separate and also distinguishable
groups or communities of people". (X, p. 243.)
He described in detail the differences between the varions population
groups.
illr. President, it will be a lengthy process even to summarize his evi
dence. I shall not do so but simply state the tapies covcred by his evi-204 SOUTH WEST AFRICA
dence and indicate where such topics can be found in the record, the
tapies being the following:
the different names of the groups-X, page 243;
the classification of the indigenous groups into two main groups-ibid.,
pages 244-246;
the languages of the groups-ibid., page 246;
the ethnie background and derivation of the groups-ibid., pages 246-251;
the cultural configuration, social structures and institutions and the
customary Jaws of the different groups-ibid., pages 251-256;
the economic systems, political systems and judicial systems of the
groups-ibid., pages 251-256.
Asked what conclusions he drew from his study of the different groups
Professor Bruwer stated, and I quote from the verbatim record, X,
pages 258-259:
"l\lr. President. if I take into account the pattern that I have
tried to indicate to the honourable Court, if I take into account
the qualities inherent in the different systems and if I take into
account the functional value, the varying systems of value inherent
in these various systems, then I can only say, Mr. President, that
there is no doubt in my mind that we have to do with a variety ...
on the basis of language. we have to do with a variety in regard to
social structure and institutions, we have to do with a variety in
regard to political systems and we have to do with a variety even
in regard to the application of customary law."
He also explained the extent to which the various groups occupied
different parts of the Territory, in the verbatim record, X, at pages 259-
261.
When asked whcther there is an inclination amongst the people of
South West Africa towards forming an integrated whole, he stated:
";\Ir.President, I cannot say that because I have never corne
across anything that convinced me of such a desire, either in the
past or in the present ... neithcr the Commission [that is the Odcn
daal Commission] nor I myself in the capacity as research worker,
have evcr bcen impressed by facts or. by possibilities in regard to
such an inclination, because I simply have not corne across them.
I admit that there are individuals and that there also are certain
political organizations that have expressed such a desire, but it
1s my earncst deduction and my conviction that they do not repre
sent the wishes of the majority in any one of these groups, ncither
the wishes of the majority within the population as such."
This quotation is in the verbatim record, X, at pages 26!-262.
He explained to the Court what he considered the basic advantages
of the policy of separate development as applied in South West Africa,
in X, pages 262-264, and, when askcd to state his opinion as to what the
effect would be if the present mensures of differentiation in the Terri tory,
that is, measures based on mcmbership in a group, were to be done away
with, his reply was:
" ... prediction is naturally based on opinion. 1 have quoted certain,
what to my opinion are, advantages of a certain approach, having
in mind the situation as 1 know it and as I interpret it. Now, !Ir.
President, naturally if you do away with this system at a specific ADDRESS BY MR. MULLER 205
moment, or let us say momcntarily, you discard an approach that
has bcen going on not only during the pcriod of the Mandate, but
long before that. Ifyou discard that, Mr. President, then naturally
ail the advantages that I have explained as being my opinion, will
disappear. ln practice ail the essential measures of protection will
fall away. There would be no protection of land rights, there could
be no protection of language rights, I am afraid; now what can be
then the predictable consequences of something like that?" (X,
p. 265.)
Having posed that question relative to the predictable consequcnces,
Professor Bruwer discussed thcse consequences and he said:
"... if we had to take as an example what happened and did happen
in the previous century, then one would inuncdiately 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 predict
ablc consequcnce, Mr. President, and that is that one will destroy
that which I have pleaded for as being the achievement by people
themselves, and I do not think that 1 would ever be able to agree
to an approach where one destroys a people even through other than
physical means, i\fr.President; but as far as South West Africa is
concerned, I also think that the one group, either on the basis of num
bers or on the basis of economic strength, will undoubtedly dominate
the other group if you have not got protective measures; and I
also think, 1>fr.President, th,lt one can say that if you have now to
start a novcI or a new system, an alicn system, you w'illvery defi
nitely retard the process of evolutionary devclopment that has been
going on for the last 40 years approximately after the assumption
of the Mandate.'' (1bid.}
In cross-exarrnnation my learncd friend, Mr. Gross, questioned Pro
fcssor Bruwer on various matters of detail conceming the implcmenta
tion of policy in South West Africa. It is submitted, howcvcr, that
nothing in the cross-examination detracts from the opinion expresscd
by Professer Bruwer.
The next witness, whose evidence I intcnd to deal with shortly, is
Professor Logan. The evidence of Professor Logan is generally to the
same cffect as the evidence of the two other witnesses I have mentioned,
that is, Dr. Eiselen and Professor Bruwer. At a later stage of the argu
ment we shall deal in more detail with his evidence relative to the eco
nomic aspect. At the prescnt time I întend to refer only to certain fea
turcs of a more general nature.
Professor Logan cxplaincd that his particular study, that is, geography,
is concerned not only with the crust of the earth as such, but also with
man and actually involves a study of the relationship betwecn man and
the land. I shall indicatc whcre that is to be found: it is in the verbatim,
X, page 337. As such, his study impinges on the field of sociology, as to
which he said: "... as geographers we have to know about men, and
knowing about men wc have to know about sociology and societies ... ".
This quotation is in X, at page 344.
This assertion by Professor Logan is amply borne out by the extent
of sociological studics actually pursucd by him and that is quite apart
from the sociological aspects inherent in his discipline as a geographer.206 SOUTH WEST AFRICA
He told the Court that he made special field studies in many parts
of the world, particularly certain arid regions, and that he also had made
a study in South West Africa, where he spent a considerable time. Pages
338 to 339, X, contain the evidence that I have just indicated.
Professor Logan describcd the general conditions in South West Africa,
dealing both with the different geographical regions in the Territory
and with the people inhabiting them. The aspects of this discussion which
relate more directly to economic mattcrs, as I have indicated, will be
dealt with later, but what is of general importance at this stage of the
argument is his description of the people in the Territory. \Vhen asked:
"Would you say that the population of the Territory is a homogeneous
one?" he replied: "I do not believe there is anywhere in the world a more
diverse one." This quotation is from X, at page 368.
Professor Logan then proceeded to describe the various groups and
to point out the differences among thcm in the cultural, ethnie, techno
logical and economic sphercs. This is in the verbatim, X, pages 368-370.
He also explained and illustrated the relationships among the various
groups, evidence which hc summed up as follows:
"... they distinctly identify themselves as separate groups. They
not only identify themselves as separate groups but they want
to be treated separately in most cases. They do not mix together
to any great extent." (X, p. 371.)
For his discussion and illustration of this aspect, I refer to ibid., at pages
371-373.
\Vhen asked about the desirability of measures differentiating amongst
the varions groups, Professor Logan expressed the view that such mea
sures were necessary, for reasons which he gave in his testimony. Sorne
of these reasons were of a purely economic nature and, as I have indicat
ed, those will be dealt with later,but at this stage it is necessary to point
out that the economic measures regarded by Professor Logan as neces
sary rclated spccifically to such matters as allotment of rights, duties
and burdens on the basis of membership of a group rather than on the
basis of individual merit or individual qualities. For example, he referred
to the measures dealing with the protection of land rights and economic
opportunities which necessarily entai! privileges and disabilities for the
varions Native groups as well as disabilities for the Europeans.
Apart from referring to economic matters, Professor Logan also ad
verted to some more general benefits of the differential measures. Thus
he referred to the necessity for controlling population movements in
X, at page 374, and he concluded this part of his testimony by stating,
and I quote from the same record, at pages 374-375:
"Finally, I think that the really, perhaps most important, of all
of thcse, is the need to protect and to allow to develop, the tradi
tional institutions of the people ... There is a lot of dignity, there
is a lot of common sense, there is a lot of 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 very well bring about a rather chaotic
situation, a deculturized society ...
Now perhaps the better thing to do is to permit the original tradi
tional institutions to remain and then to develop, within the frame
work of the traditional institutions, something in the way of a better ADDRESS BY MH. MULLER 207
way of life from the practical point of view, from the very material
istic point of vicw, to give them better food, to give them health
services, to educate them, but to educate them still within the frame
work of their traditional society; and the modern ideas can corne
in gradually, but not be suddenly forced upon them. I empha
size, 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 mattcr of allowing
to develop the individual group within itself, rather that to force
a different type of culture upon all of the individual groups."
After he had discussed these various reasons for differentiating between
the groups. Professor Logan was asked:
"\Vhat, in your opinion, would happen if these measures of pro
tection and control that you have referred to. were to be done away
with in South West Africa?" (X, p. 375.)
His reply was as follows:
"Weil, I think probably what I have said during the past few
minutes has ... led up to this: that to remove the controls would
result in the domination of many by a few, would perhaps result
in the subjugation or almost the obliteration of some of the existing
tribal groups, it would result, 1 think in many cases, in a re\·ersion
to an old way of life and that was a way of violent antagonism and
frequently of warfare.
The economy, as it has been developed, both on the European
basis and on the Native basis, would, to a large extent, fall apart.
In other words, what I would visualize myself, if ail controls were
to be abolished in the area and all differentiation between groups
ignored, I am afraid a rather chaotic situation would develop."
( Ibid.)
Mr. President, Professor Logan was cross-examined at length, and
we shall, at a later stage when dealing with the economic aspect, deal
with the matter of cross-examination. At present, I think it will sufficc
to say that this cross-examination did not directly challenge the opinion
cxpressed by Profcssor Logan. and, I submit, did not in any way detract
therefrom.
l\Iay 1 then proceed to deal with the evidence of the Reverend )fr.
Gericke?
Mr. President, he is a membcr of the Dutch Reformed Church of
South Africa, and has been a minister of that Church for 27 years.
I refcr inthis regard to XI, page 4.
He is the Vice-Chairman of the Synod of his Church and has for the
past 20 years bcen a member of the General :Missions Commission of
the Church.
At the outset of his testimony, .Mr. Gericke's attention was directed
to the diversity of the population groups in South West Africa, and the
following was putto him by Counsel for the Respondent, Dr. Rabie:
"The Applicants say that they are particularly concerned with
what they call the qualitative aspects of the well-being of the
inhabitants of South \Ve3t Africa, that is, with their moral well
being and social progress. In this regard the Applicants rely on a
suggested norm and suggested standards which appear to emanate208 SOUTH WEST AFRICA
from a certain premise, and this premisc is apparently that the
allotment of rights and obligations, burdens and privileges, on the
basis of membership in a race, class or group must neccssarily be
detrimental to the moral wcll-being and the social progress of some
of the inhabitants. In particular, the notion seems to be that the
provision of separate institutions and facilities for the diffcrent ...
groups must inevitably be detrimental to such moral well-being and
social progress.'' (XI, p. 5.)
;\Ir. President, in this regard the Court's attention is drawn to state
ments made by the Applicants on 17 May, and I refer to the verbatim
record, X, at pages 232-233.
Mr. Gericke was then asked whether his church had gained experience
in Southern Africa with regard to provisions of separate institutions and
facilities for diffcrent groups, and, in connection thcrewith, moral and
social well-being.
His answer was this, i\fr.President:
"The church is not concerned only with what I may cal! the
care of the soul. The church is also deeply concerned with the moral
well-being and social progress of people and has gained extensive
experience which, as I see it, is relevant to this matter which has
been referrecl to." (XI, p. 5.)
He then went on to explain the various spheres of life to which the
activities of the church extend, such as mission work in a number of
southern African States-he refcrred to Bechuanaland, Malawi, Rhodesia,
Zambia and Nigeria-all of which countries the Reverend Mr. Gericke
has visited, with the exception of Nigeria. In this regard, I draw the
Court's attention to the cvidence in the verbatim record, XI, at page 5.
He described the interests and activities of the church in such matters
as medical work and hospitalization, and also in the field of cclucation.
The reference here is to the sarne verbatim record, at page 6.
He dealt with the history of the church, and stated that in the begin
ning in South Africa itself, the services of the church were multi-racial
-that is, in the sense that they were attencled by White people and also
by slaves of that time, as well as a few Aborigines.
However, by the rgth century, according to him, it became clear that
the rcsults were very unsatisfactory, and he gave the following explana
tion for that state of affairs:
"Very few non-White people became Christians. Furthermore,
those who joined the Church had a very inadequate opportunity
for full religious experience. They were a mere appendix to the
White congregation. They were seated in a separate part of the
church and received very little benefit from a service which was
attuned to the needs and the background of the White people."
(Ibid., p. 7.)
This, he said, led to the establishment of a separate, independent and
self-governing church for the Colourcd people in the Cape Province of
South Africa.
The main consideration for such a step, in the words of l\fr. Gericke,
was as follows:
"... as appears from history, it became quite clear that the differe~ce
in culture, language, level of intellectual development and racial ADDRESS BY !IIR. MULLER
background, dcmanded a different method of approach, cven an
adapted form of preaching; also, new hymns to serve as a means
of expression of religious experience.
In addition, there was no real communion, spiritual communion,
between the White and non-White members of the congregations,
chiefly due to the absence of social intercourse in ordinary life.
Friction occurred on occasion bctween groups as a result of a feeling
of frustration on the part of the Coloured people who found them
selves in a minor position in the church. At that time there was a
growing desire for separate services and separate churches on the
part of leading members of both groups." (Ibid., p. 8.)
Later, :Mr. Gcricke said, separate rhurches were also establishcd for
the Bantu groups, so that today therc are, in addition to the mother
church, 12 scparatc, or daughter, churches which are completcly in
dependcnt. The evidence in that regard is to be found in the verbatim
record, XI, page 8.
Now, the advantages of this system of separate churches were described
by ;\frGericke as fo!lows:
"First of al!, this system provides full opportunity for self
development for the members of the daughter churches. Ail offices
are open to them. A new stimulus is providcd for development of
their own leaders and the management of their own affairs. This
has brought about a more positive attitude and a new sense of
enterprise and responsibility on the part of the members of the
daughter churches. Furthermore, this system has stimulated co
operation and removed possible occasions of friction.
The scparated churches realize and appreciate the fact that they
are not merely an appcndix of the White Church but churchcs
equal in status. This has really engendered a spirit of co-operation.
of mutual respect and of neighbourlincss. They can now rnect. their
White brothcrs in the church .as equals. The present relationship
between the mother and the daughter churches is one of mutual
respect and readiness to co-operate." (Ibid., p. 9.)
He stated, Mr. President, that the daughter churches _had become
less and less independent on the mother church, even financially, and
he said:
"All these factors must have contributed to giving the mcmbcrs
a new sense of self-respect and independence.
But, Mr. President. to me a point of suprcme importance is this,
that in this set-up the feeling of human dignity must corne into
its own. Where vou ha\·e independent self-governing churches and
cornmunities. thérequirement that one must love one's neighbour as
oneself becomes easier of ful:filment than might otherwise be the
case." (Ibid., pp. 9-ro.)
When asked ta express an opinion on what the resuits would be if
there were to be no separation in the church, Mr. Gcricke replied:
"... it would cause a disruption of the orderly situation which
now exists in the Dutch Reformed Churches, and orderlincss is of
supreme importance to the Church. You cannot preach the Gospel in
a disordered society where there is tension and friction. It would
also lcad to ... unfair competition in the church organizatfon2IO SOUTH WEST AFRICA
which would cxclude many non-White members from leadership
and consequently cause friction, frustration and even bitterness.
In short, it would nullify the advantages which resulted from this
particular system in our Church." (Ibid., p. ro.)
He said in this respect also the following, and the quotation that·
I give the Court now, which will be the last one out of the e,,idence of
the Reverend Mr. Gericke, is in the verbatim record, XI, at page 12:
"Once it is appreciated and accepted, as we firmly belie\'e, that
a policy of integration will lead to-and I am speaking figuratively
now-either suicide or homicide of certain groups and to a fatal
set-back in the advancement of the country and its people, there
can be no quarrelling with the morality of a viewpoint that such
consequences are to be avoided at ail costs. I think that it is largely
because of a different understanding of the situation that churchmen
have been led to express divergent views on this particular policy
and not because of a difference of opinion on moral concepts and
Christian ethics."
The policy of separate development as practised by the Dutch Reformed
Church in South Africa is, according to the Reverend Mr. Gericke, also
practised by that church in the territory of South West Africa although,
as he explained to the Court, Mr. President, the church has only recently
extended its mission work to South West Africa where other denomina
tions have for many years covered the field. He also described to what
extent separation is practised by such other denominations in South
West Africa, and he mdicated to the Court to what extent the church
had influenced the development of policies by the South African Govern
ment. I refer in this regard to the verbatim record, XI, at pages 10-rr.
Mr. President, although the Reverend Mr. Gericke was cross-examined
at length, and particularly with regard to opposite views held and
expressed by certain other church bodies and ministers of religion, he
was, in our submission, not at all shaken in the opinion which he expressed
to the Court, or the reasons upon which he based his opinion.
May I then deal with the last witness in the group of general witnesses,
which form part of the argument at present, and that is the evidence
of Mr. Cillie. The Court will recallhat, according to Mr. Cillie'se\·idence,
he has for many years had experience as a political jounalist and as
the editor of one of the leading newspapers in South Africa itself. I refer
in this regard to the verbatim, X, at pages 506-507. He described politîcal
developments in the history of South Africa and dealt in particular with
the policy of separate development, as it is applied in South Africa and in
South West Africa, and also with the basic reasons for such a policy
and the abject sought to be achieved thereby. The reference which I
wish to give in this regard is to the verbatim, X, at pages 509-518.
\Vhen askcd to express his view with regard to the application in South
Africa and South \\'est Africa of the normand/or standards by a process
of what he himself termcd ''pressures from outside", he stated:
"These pressures have, in my view, been increasingly directed
to the main purpose of making South Africa itself, and South West
Africa, conform to this standard of one man, one vote-this standard
of universal adult suffrage."
The quotation is taken from the verbatim, X, at page 525. ADDRESS BY !\IR. MULLER 2II
11Ir.President, he then went on to explain that the imposition of such
a svstem on South Africa would, in his words, "be a mortal threat to
the'whole of Southern Africa" and he said, "innumerable tensions would
be created ... perhaps even 1:othe extent of revoit and group wars".
I refer in this regard to the verbatim, X, at page 527. For his views
regarding the application of such a system in South West Africa, may
I refer, )Ir. President, to the answers given by him in cross-exarnination
in the record, X, at pages 546-547.
Mr. President, although Mr. Cillie, in his evidence, concentrated on
the political aspect, his evidence is, in our submission, of gencral im
portance in the sense that the political aspect has an over-riding im
portance, and effect with regard to the promotion of ,vell-being and
progress in ail spheres in South Africa and in South West Africa.
This brings us now to the part of our argument which will deal with
particular subjects, such as the political aspect, the educational aspect
and the economic aspect. With the Court's permission, my learned friend,
:Mr.de Villiers. will address the Court on the first of these tapies, that is,
the question of the political aspect in South West Africa.2I2
30. ADDRESS BY MR. DE VILLIERS
COUNSEL FOR THE GOVERNl\lE:,;'T OF SOUTH AFRICA AT THE PUBLIC HEARINGS
OF I-J NOVEMBER 1965
l\fr.President, honourable :'11embers,before I pass from the more
general subject to the more specific ones, and beginning then with the
subject of government and citizenship, or the political aspect, there are
certain matters of what I might call a transitional nature between the
two which I should like to deal with first.
My leamcd friend, Mr. Muller, promiscd the Court earlier that we would
deal with certain authorities on the question of the legal effect and the
practical effect of admissions and with certain related considerations.
I propose to do so now, Mr. President, at this particular stage, with
brief reference to authority. I refer to the authority not through any
mistaken notion that the principles would not be known to the Court;
it is purely a matter of giving ready references and also of building
further arguments in regard to the particular circumstances of this case,
on the basis of certain formulations in these principles.
Now, as far as the American and the English systems of law are
concerned, the effect of admissions made by a party is dealt with very
lucidly by Wigmore in his major work on Evidence, the third edition,
in Volume IX. That is the edition in the Court library. l read from
page 586:
"An express waiver, made in Court or prcparatory to trial, by
the party or his attorney, conceding for the purposes of the trial
the truth of sorne alleged fact, has the effect of a confessory pleading
in that the fact is thcreafter to be taken for granted; so that the
one party need offer no evidence to prove it, and the other is not
allowed to disprove it. fornitting some words] It is, in truth, a
substitute for evidence, in that it does away with the need for
evidence."
That is the end of the quotation from the tcxt at that page, but in the
footnotes to this portion of the text, at the sa.me page 586, we read,
amongst others, the following: a reference to the law of England and
to a ,vork catled Gilbert on Evidence and a quotation from that as follows:
"The consent of the parties concerncd must be sufficicnt and
concluding evidcnce of the truth of such fact, for they, [the jury]
are only to try the truth of such facts wherein the parties differ."
That is the end of that quotation; and then further in the footnotc a
reference to the law of Louisiana, in respect of which it is said that in
Louisiana the Continental law has left its mark Thcre is a reference then
either to a decision or to a publication, I am not quite sure which,
from which there is given the following quotation:
"Judicial confession is the declaration which the party, or his
special attorney in fact, makes in a judicial proceeding. It amounts
to full proof against him who has made it. lt cannot be divided
against hirn. It cannot be revoked ... " ADDRESS BY MR. DE VlLLlERS 213
That is the end of the quotation, but the authors add, "unless made
through the error of fact, but not for error in law."
Then in Wigmore's text, at the next page, 587, we find the following:
"The vital feature of a judicial admission is universally concedcd
to be its conclusiveness upon the party making it, i.e., the prohibition
of any further dispute of fact by him, and of any use of evidence
to disprovc or contradict it."
That is the end of the quotation, and I may say, Mr. President, that
Phipson on Evidence in his ninth edition, at pages 18-19, is broaclly to
the same effect as 1 have read to the Court, thus far, about the general
principles.
Then the next question is (we are now seeing what the effect of the
admission is upon the party making it), what is the effect on the court?
Now on this subject we fmd that Wigmore quotes quite extensively
from an American decision Larson fr. Company v. Wrigley fr. Company;
it was a dispute about allegcd unfair trade in the chewing gum line.
\Ve find in this decision, in the extracts cited in Wigmore~passages
reproduced thcre-very clear descriptions of considerations of logic and
of fairness which according to one's experience are applied very generally
in practice in this regard. I read some of those passages as reproduced
in Wigmore, the first being at page 588 in the text:
"Undoubtedly a litigant has no cause for complaint if the Court
accepts his solcmn and sworn admissions in pleadings and testimony
as true. But we must rejcct the contention that his adversary has
the right to compel the Court to do so. Othenvise a Court would
be forced by parties to decide moot, feigned, and coltusive cases,
or a Chancellor might be made to procced with an equitable account
ing betwcen partners who had stolcn the property they brought
into court. But the present case on the countcrclaim is not moot,
nor feigned, nor collusive, and it presents. a question of Larson's
legiimate property rights.'·
Then at that page, and running over onto the next page, we find passages
in which the court discussed certain features of fact in that particular
case which could be said to throw some doubt upon the correctness of
certain admissions which hacl been made in court by Wrigley. The
admissions concerned particularly the question of the likelihood of con
fusion between the two articles wrappecl up in accordance with the
particular trade-mark, or whatever it was that was in dispute, and the
court referred to those considerations, as 1 say, which might throw
some doubt on the question whethcr those admissions were correct in
fact.But the court then procceded:
"But Larson's counscl may have relied on the stipulation of fact
in bill and counterclaim to savehunting up and bringing in witnesses
ofwrongful sales. Furthermore, \Vrigley and another interested with
him gave testimony as experts in the gum business that confusion
was likely to result from the similarities; and so there is a basis
forat least the possibility that Wrigley's averment of fact and his
expert opinion may be true, and that Larson's diminished sales
came from Wrigley's simulation of the 'Wintermint' package.
In such a situation, the rule, in our judgment, is this: In a real
and legitimate controversy, a party should be left within the knot214 SOUTH WEST AFRICA
of his averments in pleadings and admissions in testimony, unless
the Court can find an absolute demonstration frorn other evidence
in the case, or from facts within judicial notice, likc the laws of
physics, etc.,that uncier no circumstances could the averments and
admissions be true."
That, then, gives a very apt summary, in our submission, of the very
highly exceptional circumstances under which a court would consider
itself freeto depart from admissions made in a particular case.
The principles to which I have rcferred are not peculiar to the Anglo
American systems. They are basically founded on considerations of
natural justice and of sound common sense and, as one would expect,
one finds them of general application in the procedures of civilized
systems. I can give the Court an example of a Continental system~the
case of the German Code of Civil Procedure, paragraph 289. I read our
own translation;
"A fact alleged by a party need not be proved by him if in the
course of the proceedings such fact is admitted by the other party
... " (Baumbach-Lauterbach, 7.ivilprozessordnung, 22nd edition,
p. 5 9.)
And then we find comment on the effect of such an admission bv Rosen
burg, Lehrbuch des deutschen Zivilprozessrechts, 8th edition, page"550,and
I read again our translation:
"The effect of an admission is that the admitted fact need not
be proved, and that the judge must accept it as true for the purpose
of his judgment, even if he is not satisfied that it is in fact true,
unless he considers it to be impossible-i.e.contrary to ail experience
--or if the contrary is beyond question."
Paragraph 275 of the Austrian Code of Civil Procedure is to ail intents
and purposes identical with the paragraph of the German Code which
I have just read. In that respect I could refer to Wolff, Grundriss des
osterreichischenZivilprozessrechts,page 296. .
Applying these considerations to the present case, and to the admissions
of fact that have been made here and to which reference has several
times been made by my learned friend, Mr. Muller, and my learned
friends, Dr. Van Heerden and Mr. Van Rooyen, there can be no question
of collusion. or something similar, between the Parties in this case with
reference to these particular admissions. If ever there was a real dispute,
it surely is this one. on the subject-matter in respect of which the admis
sions were made. The admissions concern expositions of fact in respect
of which we gave copious references in our pleadings to documentary
sources and documentary proof in substantiation of those facts. Not
only did we give those. \Vhere we could not give a documentary source
but relied upon information given to us by officiais or departments
we cited that information as being based upon departmental information,
and we gave the explanation in the introduction to our Countcr-Mcmorial
that in such cases we had the evidence available, if the information
were questioned at ail by the Court or by the opposite Party, to sub
stantiate that information.
So it was in respect of documented and substantiated information of
that nature that, the admissions were made. The Applicants had full
access to ail kinds of records and sources from which they could check ADDRESS BY MR, DE VILLIERS 215
the accuracy of what we said. They had full access to official publications
from the Union of South Africa and the Territory of South West Africa,
to records of Parliamentary debates, to press reports. There is a full
reporting of everything done, particularly in the political field, in South
Africa, anything said by a pohtical leader, anything done. lt is always
brought to light. As Mr. Cillie said, we are an open society, and there is
copious record of anything that occurs which could have been of interest
tothe Applicants in this respect in order to check upon the information
which wc supplied. The Applicants had full access to the researches and
the attempts at fact-gathcring that hacl been going on in the United
Nations for years and ycars on the subject. They had full access to
numerous books and articles ,nitten about South Africa and about
South West Africa by authors and by joumalists from South Africa,
from South West Africa and from elsewhere, as well as to visitors to the
countries, many of whom had writtcn about the countries, and many of
whom may have visited the countrics without having written about
them, and indeed a host of South Africans and South West Africans
who had gone abroad. in many cases persans who were not friends of
the Govemment at al!. Virtually all the basic aspects of these facts
that have been admitted have been confirmed by the expert witnesses
in their evidcnce, not bccause that was the purpose of their evidence,
but becausc in many instances in order to assist the Court by way of
the inferences which they drew from the facts-the conclusions at which
they arrived-it was necessary for them to refer again to those basic
facts. And although they did not deal with them each and evcry one
systematically, by and large the basic aspects of them stand fully
confirmed by that expert testimony.
Mr. President, I was dealing with what may be teimed the surrounding
circumstances regarding the admissions that have been made to the
Court-the considerations which go to guarantee their probable accuracy,
or otherwise I was dealing with the question whether it could ever pos
sibly be said of these admissions that they relate to facts which could
not possibly be true, and I have refcrred in that respect to the documen
tary and other sources which we quoted for the facts, which werc even
tually admitted. I have referred to the sources available to the Applicants
for checking on our tacts, and I have referred to the fact that the basic
aspects of the facts were confirmed by the expert witnesses who have
given oral testimony before this Court. Those experts, ;\frPresident,
were not confined to South Africans, thev included also a man like
Professor Logan, an outside, entircly independent observer, whose very
vivid descriptions of the basic facts the Court will recall.
Then, ;\fr. President, I want to refer to the fact that the admissions
were very carefully made, not irrationally. They wcre made with respect
to all the facts concemed, except in so far as there might be denials in
particular instances-except where otherwise indicated-so that the
opportunity was reserved to the .Applicants to check upon the facts as a
whole and to see whether, in some cases, those admissions required
qualification.As the Court will recall, denials were very few. They were
in effect almost non-existent. .
Finally, Mr. President, there is this important aspect about it. The
admissions must not have been easy for the Applicants to make. lt will
be recalled that we dealt with the fact that the Applicants are appearing
here in a representative capacity, representing the collectivity of African216 SOUTH WEST AFRICA
States. And it wiH be evidcnt from the revîews which we have given that
thosc admütcd facts go rllrectly counter to what had becn aJleged over
ail these years against South Africa and its policies at the United Nations
by that very group of States and others acting in this respect as their
allies, so it could not have been an easy admission to make, and yet it
was made.
Ail these factors, in my submission, combine to makc just about the
most cogent guarantee one could wish for the probable correctness of
the admitted facts. There is no suggestion that these facts could not pos
siblv be true or that "under no circumstances could the averments and
submissions be true", if I may use the words of the authoritics. On the
contrary, it scems most highly probable that each and every one of them
is true.
I refer next to another aspect of the authorities in regard to admissions,
and that is the effect of admissions on the opposite party-the party who
had not made the admissions. That is dealt with in the same volume of
Wigmore, Volume IX, at page 589:
"A fact that is judicially admitted needs no evidence from the
Party benefi.tting by the admission.
But his evidence, if he chooses to offer it [i.e., evidence in the
context on the subject-matter which had been admitted], may even
be excluded;".
And then the author goes on to explain that that rule applies for reasons
of practical convenience, for reasons, for instance, that the evidence
then proferred may be superfluous, because it may unnecessarily take
up the time of the Court, and so forth. But then he states a qualification
lower down on the page as follows:
"Nevertheless, a colourless admission by the opponent may some
times have the effect of depriving the party of the legitimate moral
force of his evidcncfurthermore, a judicial admission may be cleverly
made with gruclging limitations or cvasionsor insinuations ... Hcnce,
there should be no absolute rule on the subject; and the trial Court's
discretion should dctermine whether a particular admission is so
plenary as to render the first party's evidence wholly needless under
the circumstances."
Now, applying that is this case, Mr. President, we find that in some
of the Applicants' formulations of their admissions of the facts, although
not consistently in all of them, they sought to draw a distinction be
tween "the facts" and the "inferences that may be drawn therefrom".
One finds their distinctions stated, for instance in the verbatim record of
18 March, at VIII, pagesn5-n6. As I said, in later formulations that was
not repeated and I do not know to what extent they intended to proceed
with that distinction. Nevertheless, a good deal of the evidence which
we proferred to the Court did not concern the same facts as wcre covered
by the admissions, they concerned other and additional facts. But in so
far as the evidence did refer to the admitted facts, it did so exactly for
the purpose of assisting the Court with regard to the proper inferences
that may be drawn from the admitted facts, evaluating them, seeing
them in their proper perspective and then coming to certain conclusions
about them. That i:;, of course, in relation to the issues as thcy are now
before the Court. Initially thcre wcre the wider issues of allcged oppres
sion and so forth, but now the matter in respect of which inferences were ADDRESS BY MR. DE VILLIERS 217
sought to be drawn, particularly from this evidence which was covered
by the admissions, concerns, in particular, the question of the detrimental
effect, alleged by the Respondent from the application of the suggested
norm and standards in certain circumstanccs, in certain countries of
the world, and in particular, in South West Africa.
1 shallproceetl next, Mr. President, to refer to certain aspects of, and
implications regarding, cross-examination in proceedings of the present
kind. I should like to begin by referring to the following passage in
Phipson on Evidence, Ninth Edition, at pages 497-498:
"As a rule a party should put to each of bis opponent's witnesses
in turn so muclt of his own case as concerns that particular witness,
or in which he had a sharn, c.g., jfthe witness has dcposed to a con
versation, the opposing counsel should indicate how much he accepts
of such version, or suggest to the witness a different one. If he asks
no questions he will in England, though not perhaps in Ireland,
generally be taken to accept the witness's account."
Then there is a rcference to an Irish case-a case decided in Jreland
and one decidcd by the House of Lords-Hrowne v. Dimn. I mention
the name of that one because it is referred to scveral times again in the
passage which follows:
"Moreover, where it is intended to suggest that the witness is not
speaking the truth upon a particular point his attention must first
be dirccted to the fact by cross-examination, so that he may have
an opportunity of explanation ... and this probably applies to all
cases in which it is proposed to impeach the witness's credit ...
Failure to cross-examine, however, will not alwavs amount to an
acceptance of the v,·itness's testimony, e.g., if the- witness has had
notice to the contrary beforehand, or the story is itself of an in
credible or romancing character ... or the abstention arises from
mere motives of de!icacy, as where young children are called as
witnesses for their parents in divorce cases,or when counsel indicates
that he is merely abstaining for convenience, e.g., to save time.
And where several witnesses are called to the same point it is not
always necessary to cross-examine them ail."
Those are the comments of Phipson on this subject, .Mr. President, and
I may add that in the case of continental systems, to the cxtent that we
understand them at ail as far as their procedure is concerncd, they ap
parently do not know the system of cross-examination. Apparcntly the
Court itself leads the evidence of the witness, or expert, as the case may
be, and opportunity is then afforded to the representatives of the parties
to put questions, but within certain very definite limits. So under the
circumstances the whole nature of the process there is a vcry different
one, and I should take it that the failure or otherwise of the represcntativc
of a party to ask questions in a particular case would be a matter of
common sense to weigh, a matter from which inferenccs may or may not
be drawn, by effect, depending on the circumstances of the particular case.
It is largely the same, of course, in the Anglo-American system,
except that thcre is this tendency, and a strong one, of cornmon sense,
that in particular circumstances particular significance may by way of
infercnce be drawn from failurc to cross-examine or from particular
Jines adopted in cross-examination, and the form which the leading of
the evidence has taken in this particular case, is, of course, in accor-218 SOUTH WEST AFRICA
dance with the adoption and adaptation of the Anglo-American system.
Now, Mr. President, applying that to the circumstances of this case,
there are certain features of the cross-examination to which I should
like to draw attention at this stage. The first noteworthy feature was
that Dr. Eiselen was not cross-examined at al!, but after Dr. Eiselen
had given his testimony and the other witnesses came, there was an ap
parent change of policy in this respect.
The non-cross-examination of Dr. Eiselen was perfectly consistent
with the attitude which the Applicants had so forcibly and so repeatedly
expressed during the argument on the inspection-that was towards the
end of April-and thereafter again during their argument which led up
to the amendment of their submissions on 19 May, the attitude which I
can very briefly summarize as being firstly, that the case was now con
fined to the normand the standards-that was the only case they were
bringing-that only the per se aspects of the Respondent's policies and
measures were relevant, that the Court was bound by the judgments of
the organized international community. and that there was to be no
''second-guessing" of the findings or judgments of that organized inter
national community.
Consequently, l\Ir. President, applying that attitude in its logical im
plications, all evidence would of course be irrelevant, and even evidence
demonstrating to the satisfaction of the Court that the application of
the suggested norm and standards would operate to the detriment of the
population, even that evidence would, on that legal approach to the
matter, be irrelevant. That, the Applicants, indeed, indicated as being
a logical consequence of their attitude, in the verbatim record of 30 April,
IX, at page 64, where, as I quoted to the Court before, they acceded
to an exposition in our Rejoinder. in which we had suggested that on the
basis of the alleged norm, and the standards of the same content, Re
spondent's policies would violate the Mandate "even if the Court were
to hold that such policies were intendcd to enure, and did in fact enure,
to the benefit of the population as a whole''.
So, as I say,it would follow the other way around, that if it were to be
established to the Court's satisfaction that the application of the norm
and the standards in South West Africa would operate to the detriment
of the population, then that would still be a legally irrelevant considera
tion to the case which was being advanced by the Applicants.
It seems then, l\frPresident, that this was the basis upon which Dr.
Eiselen was not cross-examined. Quite obviously, it seems that it was
considcred unnccessary, and pcrhaps futile, to attempt to contest the
strong conclusions from his evidence that the application of the norm
would detrimentally affect the inhabitants. and to contest the basis upon
which he arrived at those conclusions. Thev were not canvassed at all
in cross-examination. •
But, Mr. President, as from the second witness onwarcls we find a
change in policy. Now there is Jcngthy cross-examination of each witness,
and the question is, why? The probable answer, in our submission, is
this, l\Ir.President, that probably the Applicants wcre no longer so
happy with their theory of the case, particularly because of its extreme
implications. On this basis, one could understand that the Applicants
could proceed with cross-examination on an alternative basis. In other
words, their attitude could be something like this. They could say: we
abide by our contentions as to the absolute nature and effect of the nonn ADDRESS BY MR. DE VILLIERS 219
and the standards, and permitting no evidence to explain them or to be
relevant at all as to the question of their application in South West
Africa. But, in the alternative, if the Court were to find it relevant to
detcrmine whethcr the norm or the standards would operate to the ad
vantage or to the detriment of the inhabitants, and/or whether the norm
and the standards were observed gencrally in the practice of States,
then the Applicants would assist the Court by offering a testing of our
evidence-the evidence of the Respondent on those subjects-and seek
to break down that evidence, or to qualify it sufficiently for the Appli
cants' purposes.
That is a line of procedure which one could undcrstancl but, Mr. Presi
dent, this was not in any way, as far as we can infer, the purpose of the
subsequent cross-examination.
My learned friend, Mr. Mu11er,has shown that Professor Possony was
hardly cross-examined at all on his vital evidence about the practice of
States, and that there was nothing in the cross-examination to throw
the Jeast shadow of doubt upon the conclusions at which he arrived. The
same applies, Mr. President. about the conclusions of Professor Possony,
Professor Manning and Professor van den Haag regarding the detriment
that would often result from the application of the norm and the stan
dards in particular situations in the world. On those conclusions again,
there was hardly any cross-examination.
\Ve frnd the same, Mr. President, in regard to the conclusions of those
three witnesses-Professor Possony, Professer Manning, Professor van
den Haag-and also of other witnesses, like Dr. Eiselen, Professor
Bruwer, Professor Logan, the Reverend Mr. Gericke and Mr. Cillie,
about the general detriment that would result in South West Africa from
the application of the norm and the standards. Again, those conclusions
and the manner of arriving at them were in no way really tested in cross
examination.
Those werc the general aspects of the evidence and the general con
clusions arrived at as have been dealt with and summarized again by
my learned friend, Mr. Muller. When we corne, in the subsequent portion
of our argument, to the evidence and the conclusions of witnesses regard
ing specific aspects of life inhe Territory-the political aspect, the eco
nomic aspect, the educational aspect, and so forth-we shall see that the
same pattern emerges. We find, Mr. President, that witnesses were one
after the other asked mostly hypothetical questions about the effect of
particular measures upon particular individuals in particular circum
stances-for instance, the one about which we heard, I think, <luring
the cross-examination of everv witness, viz., the individual who was
born, who lives and who dies in the Police Zone outside of the Reserves.
The witness was particularly questioned, whether he was an expert on
the subject or not, about the effect on such an individual of certain
measures pertaining to, for instance, job reservation and the like. In
other words, Mr. President, this was concentrating on isolated aspects
of a policy flowing from particular individual measures in that policy,
and notas affecting the general well-being of the people entrusted to the
care of the Mandatory, but as affecting the case of, and very oftcn the
hypothetical case of, certain individuals.
But the over-all conclusions regarding the well-being of the population
as a whole, those were left virtually uncanvassed, and thcy were cer
tainly left unshaken by this cross-examination.220 SOUTH WEST AFRICA
Another fcature of the cross-examination was this, that very often
there were put to a witness long extracts from a work written by some
body else, somebody who expresses an opinion contrary to an opinion
expressed by a witncss on a particular subject-matter, or putting a
certain interpretation upon facts, and, on the basis of that interpretation
of the facts, or version of the facts, coming to certain conclusions, or
rnaking certain comment. It was quite evident, Mr. President, that very
oftcn the purpose of that, in our respectful submission, was to get those
passages on the record, not so much to ask the witness about thern,
because very often the question was concerned with a very minor portion
of the whole long extract, and sometimes it was hardly concerned with
that at ail.
lt is hardly neccssary to say that that is not a legitimate method of
bringing evidence before a court, as you, Mr. President, with respect,
had occasion to point out on certain occasions. The opportunity is af
forded to both Parties to put their case in regard to the facts before the
Court by way of evidence, or by other legitimate means as may be proper
in the presentation of their case, with a fair and proper opportunity to
the other Party to meet that case. But the mere reading into the record
of views or versions of fact of other witnesses, and not giving the other
Party a proper opportunity at ail of canvassing those, is no legitimate
way of putting any evidence bcfore the Court, and it is accordingly, in
our submission, to be entirely disregarded as a possible source of evidence.
I refer to certain instances in the record, in this respect-! am just
giving the references-for example, in Professor van den Haag's testimony
in X, at pages 444, 460, and again, at page 461.
Mr. President, I cannot emphasize enough that it was purcly for the
purposes of the conclusions upon the question of the general well-being
that Respondent led its evidence. That was the only relevance which
this evidence now had in the light of the altered submissions and the
altered issues between the Parties-the effect which the application of
the normand the standards may have on the well-being of the population
as a whole, in general and in respect of the various aspects of their lives.
The only question raised by the amended submissions, in our submission,
is whether the approach should be one of differentiation or non-differen
tiation, meaning, of course, differentiation or non-differentiation in the
sphere of the official allotment of rights and obligations, and so forth,
and with reference to the question whether there may or may not be,
in that sphere, differentiation with reference to membership in an ethnie
group.
So, ~fr. President, as a convenient shorthand expression for this anti
thesis, may I use the terms "official ethnie differentiation", on the one
hand, versus "official ethnie non-differcntiation", on the other hand.
The suggested norm and standards involve that an approach of
official ethnie difforentiation, in this sense in which we understand it,
violates the Mandate. :Now, part of our answer to that contention is
that an approach of official ethnie non-differentiation would inevitably
be detrimental, catastrophicatly detrimcntal, to the well-being and pro
gress of the population as a whole in South \Vest Africa. And wc say,
Mr. President. that, in our submission, the only method for avoiding
the catastrophe is to build constructively upon the historical basis of
ethnie differentiation as it exists, and in this manner to attain self·
determination and self-realization for cach group. ADDRESS BY MR. DE VILLIERS 22I
Therefore, Mr. President, the issue concerns the choice between the
two general approaches-official ethnie differentiation, or official ethnie
non~diffcrentiation. The issue concerns nothing more than that, as now
formulated before the Court. When I say "now" I mean evcr since the
amendmcnt of the Applicants' submissions in May, togethcr with the
explanations offered in regard to the purpose and the scope of that
amendmcnt.
The Applicants have not brought a case to the effect that although
official ethnie differentiation may in general be permissible, nevertheless,
certain specific measures must be rcgarded as impermissible on some
criterion or other. That was not a case which they brought, or which
they explained as being involved in their case as they made it in their
amendcd submissions.
The position might well have been different, Mr. President, on the
basis of the Applicants' original case, as we understood it-the original
case of the allegation of oppression. One could understand that case as
relating to the Respondent's policies, legal measures, laws, regulations,
official practices,taken as a whole-as a body. One could understand
the contention to be that the Respondent's policies in that sense, taken
as a whole and as a corpus, are oppressive of the Native population for
the benefit of the European population. One could understand that purely
as a proposition; and one could understand that that could carry within
itself possibly the alternative that even if the Court should find that the
policy as a whole is not oppressive in that sense, and is not aimed at op
pression of the Natives, then, nevertheless, certain of the rneasures may
be isolatcd, and in respect of that particular mcasure it may be said that
it does not conform to the duties of the Mandatory, and particularly
to the authorized purposes of the :Mandatory in the 1\fandate. That would
have been a possible alternative linc of proceeding on the basis of the
Applicants' original forrn of complaint.
But, as soon as wc came ta the new form of complaint, that no longer
becomes logically possible-that form of alternative-because now,
1'.fr. President,there is one criterion and one criterion only-official
ethnie differentiation or official ethnie non-differentiation.And we know
that in respect of each one of the measures relied upon by the Applicants
-the laws, the regulations, the official methods and measures-each one
of them involves official differentiation. That is common cause. lt is
adrnitted on the pleaclings that that is the position in respect of each one
of these measures and in respŒt of a large number of the measures of
Respondent's policies and that, indeed, is the basic characteristic of the
policies viewcd as a whole.
So, Mr. President, the test in each case is the same and we know that
the outcome of the test in each case is the samc. As soon as we enquire
whether the policy as a whole involvcs official ethnie differentiation, the
answer is yes. As soon as we enquire further whether each one of the
measurcs invoJves that, the answer is yes again. So there is no distinction
and no room for an alternative.
If one were to corne to the conclusion that, in general, a policy of
official ethnie differentiationdocs not violate the Mandate, then that is
the end of the question, because in the issues as they now stand there is
no criterion suggested as an alternative upon which the Court could
say that neverthcless this particular measure, or that particular measure,
is,within the context of the issues before the Court, a violation of the222 SOUTH WEST AFRICA
Mandate. That is the inevitable conclusion to which we corne on the
basis of the Applicants' amendecl case. And the Applicants have made
it so clear that they advance no othcr criterion than this official ethnie
differentiation as being a basis for contending that policies or measures
violate the Mandate.
Purposes, results, fairncss or unfairness, reasonableness or unreason
ableness, none of these is advanced as a criterion. And it is not merely
a question of omission-of the Applicants not mentioning any of those
as a criterion,it goes much further than that, Mr. President. It is a matter
of the Applicants explicitly and with emphasis telling the Court and
telling us that they are not advancing any one of those criteria as a basis,
and they do so for the specifi.cpurpose of tetling us that the factual can
vassing, that would have been necessary in the event of any one of them
being advanccd as a criterion, is now rendered unnecessary. That is the
basis, then, upon which the rest of the case is shaped.
When we say this, Mr. President, then we are not adopting in any way
a technical approach. It is a very realistic approach and, indeed, the only
practical one which was possible to us in these circtJ-mstances. Our at
titude, as expressecl to the Court several times, was that we were prepared
to meet any case properly presented against us, and, so, when we were
first charged with impropcr motives or deliberate oppression, we met that
properly on the pleadings, and we prepared ourselves to meet it further
by oral testimony in order to resolve the factual issues emerging from
the pleadings. But, then the change came in the Applicants' case. They
not only altered the wholc basis of the charge, but they admitted ait the
facts which we hacl presented to the Court in our answer to the original
charge. There was then no longer any need for us to meet the case which
was not brought against us. There was no need for us to prove admitted
facts, and, more than that, Mr. President, on the basis of the authorities
to which I have referred-well-known principles-it would have been
incompetent for us to take up the time of the Court by bringing evidence
in answer to a case which the Applicants emphatically said they were
not bringing against us, and in proof of facts that had been admitted.
The abandonment of that charge of oppression, and the admission of
the true facts which so abundantly refute that charge, had a very im
portant practical effect on the Respondent's position, Mr. President.
lt had the effect of clearing the Respondent's name of these charges, at
least before this Court. And it will have the same effect to a large extent
before the whole world, if only the world gets to know about it. In ex
planation, I may say, in parenthesis, that, with commendablc exceptions,
it does not seem as if the press of the world is, in general, keen to inform
the world of these extremely important developments in this case
extremely important, Mr. President, in regard to a subject-matter which
has been the cause of international concern for such a long time. The
importance of these developments is this: the abandonment of their
charge and the acknowledgment-the admission-of the facts, constitute,
at the same time, acknowledgment of the falsity or the incorrectness of
the factual basis upon which the Respondent's policies have been con
demned at the United Nations· over all these vears.
And, l\Ir.President, the acknowledgment did not corne from a third
party that stands disinterested in ail this. lt did not corne from a party
of whom the rest of the world need take no notice. It came, Mr. President,
from representatives of the whole collectivity of African States which ADDRESS BY MR. DE vrLLŒRS 223
has taken this leading part at the United Nations which wc have de
scribed.
Indeed, Mr. President, it cornes from States whose representatives
daim, in thcse proceedings and on the pleadings before the Court, that
they seek to uphold the intercsts also of ail other Members of the United
Nations, and indeed of the Organization itself, and they pride themsclves
on the fact that they were commended by the General Assembly for in
stituting this action. That is the tremendous practical importance for
the Respondent of these developmcnts in this case. These are the States
that made the fundamental admission and this is the context in which
thev made it.
And, therefore, Mr. President, there is no basis, either in law or as a
matter of practical dispute requiring decision by this Court, upon which
individual mcasures are to be judged as being in conformity or otherwise
with Article 2, paragraph 2, of the Mandate-individual measures that
are divorced from the question of the general approach. The issue con
cerns, in our submission, only the general approach. In a legal sense that
is so; in a practical sense that is so.
\Ve corne, Mr. President, to that same conclusion by an examination
of the Applicants' so-called illustrative catalogue of laws, regulations,
and official methods and measures, on which they rcly as the factual basis
for saying that the Mandate, read in the light of the norrn and/or stan
dards, has been violated. The catalogue, as the Court will rccall, is set
forth in the record of 17 May, IX. The Court may also recall that I dealt
quite extensively with itin my address to the Court on I July, particu
larly at X, pages 219-221, in order to show how the Applicants emphasized
that their case was concerned only with the perse aspects of these laws,
regulations, and so forth. I nced not repcat that argument.
But therc is a curions aspect of the catalogue, Mr. President, to which
I feel that I must draw attention. The purpose of the catalogue is said
to be merely that of showing and illustrating differentiation on a group
basis. Now, the Respondent admits that its whole policy is based on
differentiation on a group basis, and, in fact, Mr. President, there are,
by the Respondent's own admission, numerous 1aws, regu!ations, and
so forth, involving such differentiation. some of them operating in faveur
of some ethnie groups, others operating in favour of others. So, under
those circumstances, by reason of these aclmittecl facts, the catalogue
was unnecessary for the purposes of this amended case. Yet we fmd
that the catalogue was very carefully compiled and it was read out to
this Court with great gusto, and the question is, why?
The answer, in our submission, Mr. President, is not far to seek. \Ve
find the answcr in, what I might call, a process of selectiveness that went
into the compilation of that catalogue. The only measures selected were
those which. when viewed in isolation and without reference to the total
system of which they formed part, appeared to favour the White group
vis-à-vis the non-White groups. Not a single measure having an opposite
effect, or even distinguishing between the non-White groups inter se,
was included in this catalogue. They ail went one way, favouring the
one group. the White group vis-à-vis the non-White groups-nothing
in favour of a non-White group, or non-White groups generally, vis-à-vis
the White group or inter se as between the various non-\Vhitc groups.
Now, why was that, Mr. President? In our submission, the Applicants
clearly wanted the best of two worlds.224 SOUTH WEST AFRICA
In the first place, they wanted to avoid the factual enqufry that wou1d
have been involved in a straight-forward allegation of oppression, or
unfairness, or the like. They did not want that factual enquiry-that
enquiry into the whole of this system of which these laws and regulations
formed a part. But, at the same timc, Mr. President, they wished to
attempt to attain somc emotional appeal suggestive of such oppression
or unfairness, through the superficial impact of these bits and pieces
which werc taken out of their context and then stacked together in a
kind of a Guy Fawkes bonfire pile. That was the effect of the compilation
of this catalogue, as we see it, and I very much regret to say, l\fr. Presi
dent, that, in our submission, it was a somewhat unworthy manŒuvre
and that the Court will have no hesitation about unmasking it as such.
The important point is that this so-called "corpus of fact" was pre
sented with reference only to its aspect of being per se and inherently
in violation of the alleged norm and/or standards, as was stressed so
repeatedly in the record of 17 May. I read from IX, page 285 of that
record the words "without elaboration, without argument, without
charactcrization". And I should like, Mr. President, to rcad from that
record just a brief passage, which I have read before, but, because it is
of such crucial importance for the whole foundatîons upon which the
case now rests, I should like to refer toit again, at IX, pages 298-299 of
the record of 17 11Iay:
"These, and similarly conceded existent legislation and adminis
trative measurcs, and effectuating implementing policies and prac
tices, form the corpiis of factual material or describe the pattern of
Respondent's conduct, which is known and characterized widely as
'apartheid' or, more generally now, in Respondent's own usage, but
referring to the same pattern, 'separate development'. Pursuant to
such policy and practice, the Respondent allots status, rights,
duties, privileges or burdens on the basis of membership in a group,
class or race rather than on the basis of individual mcrit, capacity
or quality. In the Applicants' submission such a policy and prac
tices are inherently incompatible with Respondent's obligations
under Article 2 of the 11Iandate and Article 22 of the Covenant,
and constitute perse and ipso facto violations of Article 2, the inter
pretation 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 explanation or extenuâtion thereof is legally relevant to the
issues joined in these proceedings".
So, i\Ir. President, apartheid or the policy of separate development
itself is given a new dcfinition forthe purposes of the new case.
Thercfore our conclusion is clear. The issue is joined, on the Applicants'
amended case, about the choice between a general policy of official ethnie
differentiation and a general policy of official ethnie non-differentiation.
There is no issue joined about the merits or the demerits, the fairness or
the unfairness, the purposes or the results involved in any individual
law, regttlation, method or measure. It is for thesc reasons that we sha\l
deal, in the further portion of this argument, only with the issue that
has been joined, in referring to the fact under the varions headings
of political rights, economic aspects and so forth. \Ve shall not deal ADDRESS BY MR. DE VILLIERS 225
separately or systematically with each item in the catalogue. \Ve shall
only refer to some of them as illustrations in regard to this only general
issue which is before the Court. We shall concentrate on that sole issue.
We shall dcmonstrate, Mr. President, with submission, that on the
basis of the admitted facts and the evidence, a general approach of
official ethnie non-differentiation would be catastrophically detrimental
to the well-being and the progress of the population as a whole and that
only an approach of differentiation could avert that catastrophe.
Now, the Court may ask me this question: what if the Court, or in
dividual Mcmbcrs of the Court, may feel or considcr, as a considered
judgment, that a general approach of differentiation-official ethnie
differentiation-is permissible and is indeed to be preferred to one of
officialthnie non-differentiation, but nevertheless feel that a particular
individual measure is perhaps not what it ought to be? It is quite pos
sible, of course, to have views of that kind and it is a practicaI problern
that could arise in the decision of this case and in deliberating upon
the issues in this case. And it is for that reason that I give some attention
to it, with the greatest respect.
Mr. President, for the reasons I have advanced it would. in my sub
mission, not be possible for the Court, within the framework of the issues
brought before it at the moment, to give a decision on the basis of any
criterion in respect of thcse individual mcasures except, of course, as
forming part of the totality and of saying that the general approach is
to be differentiation or non-differentiation.
The Court, or individual i\Iembers of the Court, may possibly consider
that even though a general policy of diffcrentiation is permissible and
to be preferred, a particular measure is one that could corne in for criti
cism. Then one has to distinguish: now criticism on what basis? Would
it be criticism merely in the sense of questioning the wisdom of the Man
datory in the exercise of its discretionary po\ver in deciding upon a
measure of that kind, in other words, a difference of view as a matter
of policy? For reasons of law and logic, which I indicated to the Court
before in arguments which I need not repeat, that is no basis, of course,
for a court of law to condemn any measurc decided upon by an authority
in the course of a discretion duly conferrcd upon it. It may be that the
Court may feel that even if it were to apply the more stringent tests
which I suggested before, the tests of seeing whether the Mandatory
was pursuing its authorized objective or unauthorized objective, whether
the measure could be said to be so unreasonable that no reasonable
authority could have decided upon it, that under those circumstances
it may have becn possible to inva!idate some of these mcasures.
I would suggcst, Mr. President, with respect, that in view of the turn
which events have taken in this Court, that would be a dangerous linc
of enquiry to embark upon at ail, especially because of the inadequate
canvassing of the factual aspects which would have been necessary in
order to corne to a decision in respect of each of these individual measures.
I may say, in general, that if we had been called upon to meet a case in
which it was nccessary to consider each one of these individual measures
upon these various bases, then we would have been very much nearer
to the beginning of this case now than to the end of it.
Therefore, l\1r. President, I ha,,e pointed out before that whenever
there isa system of governmental regu1ation there may be agreement upon
the need to have such a system and upon the general benefi.t involved.226 SOUTH WEST AFRICA
I used the example before of a system of rationing or of import control,
and there may be differences of opinion as to whether inclividual measures
in that particular system may or may not be commendable. lt mav well
be that if ~lembers of the Court feel that they want to indicate that they
have not considered each measure on these various bases-on the hasis
of expressing a view of policy about it or on the basis of clcciding whcther
it does or does not conform to the authorizcd objectives of the Mandatory
or the like, then the Court or ~Iembers of the Court may make that clear,
that their judgment does not extend to matters of that kind because
those have been taken outside the purview of the issues in the case.
It is, in that respect, important to· bear in mincl the general factor
which has so often been stressed in our addresses to the Court and in
the oral testimony of the expert witnesses, and that is, that these policies
and these measure3 do not constitute a static situation. They are part
and parce! of a dynamic situation in which adjustments are continually
being made as time goes on. Thcrc are many individual measures which
are of an empirical and transitory nature; they are clesigned to deal with
a particular problem as it arises at a particular stage. and particular
measures which may cause concern at a particular stage may have dis
appeared or may have been radically altered by the next year or in five
years' time or in ten years' time.
Itis, then, against this background and this analysis of what the real
nature of the issue now is before the Court that we proceed to deal with
the facts in relation to the various aspects of the lives of the inhabitants
of the Territory of South West Africa and we begin with the political
aspect.
The first question, then, is what exactly is the content of the norm
and/or the standards of like content in their relation to the political
lifeof the Terri tory? The Applicants said in this regard, in the record of
I7 May, prior to stating their catalogue of laws and measures and so
forth to the Court, the following at IX, page 284:
"The norm of non-discrimination or non-separation, when broken
clown into its component parts ... for example, in the economic
field, inthe economic Iife of the community, could be, properly is
to be, conceived and spoken of as the norm of non-discrimination
or non-separation in economic affairs ... Similarly, in the political
and civil liberties fields, thev become norms or sub-nonns, whichever
phraseology is preferable, •rules which prohibit discrimination or
separation in respect of the particular area of human activity of
human intercourse which is involved.
Taken together, the norm of non-discrimination or non-separation,
or the international standards covering the same subject-matter,
having precisely the same content, would of course extend to the
entire life of the community in its total aspect. This is the theory
of the Memorials and it is explicitly set forth as such, although it
had not at that phase of our pleadings the name, the style; the
title was not yet formulated or incorporated in the pleadings. It was,
however, precisely the same scope and content and applicability
of the international standards and the legal norm, as described at
IV, page 493, of the Reply for the first time in those terms."
I apologize for making the quotation so long, but I had to read the whole
of it in order to corne to this Iink at the end with IV, page 493, of the ADDRESS BY )l'.R. DE VILLIERS 227
Reply. It dcscribes the content of the normand the standards taken as a
whole and then the breaking clown into the component parts, inter alia,
in respect of the political aspects. Then it does bring the link with page
493, IV.
Now, in that definition (I need not read it to the Court again, it has
been read so often} the tenus "non-discrimination" and "non-separation"
are definecl in two ways: one, in a negative way, with refercnce to the
prohibition on the allotment of status, rights, privileges and so forth on
the basis of mcmbership in a group, class or race, rather than on the basis
of individual merit, capacity and so forth; then there is added the positive
part (as my leamed friend, Mr. l\1uller, has pointed out, obviously in
tended to bear the same meaning) where the same concepts are expressed
with reference to the ideas of equality before the law and equality of
opportunity.
When one applics this to the political field, this could in theory mean
that the norm would be violatcd only where there existed a diffcrcntial
allotment of political rights-that that was the sole aspect with which
the norm was concerncd. ln other words. i\Ir. President, one could in
theory read this as applied in the political sphere to mcan that the norm
would not compel the granting of any political rights at ail, or political
rightsof a particular type, aslong as no difference was made on the basis
of membership in a group. class or race. That would theorctically be a
basis upon which one could apply this norm. But the Applicants have
made it clear that that is not their case and has never been their case.
In the 11emorials, I, at page 131, the Applicants contended that the
Respondent's duties under Article 2 of the Mandate included:
"Political advancement of such persons [that is the inhabitants
of the Territory] through rights of suffrage, progressively increasing
participation in the processes of governmcnt, developmcnt of self
govemment and free political institutions.''
So, one sees that there is no suggestion here that the Respondent would
be acting perfectly lawfully by just granting no political rights to any
body at all. The Respondent was expected to sec to political advance
ment of the persons "through rights of suffrage" and in that respect, as
the Applirnnts latcr statecl in their Reply, there was to be applied this
criterion of official ethnie non-differentiation. This suggested duty. as it
was formulated in the Memorinls, drew frorn us the following rcaction in
our Counter-Mcmorial, Il, page 398, and I think it is important to read it:
"Applicants' duty No. 3 seeks to impose on Rcspondent the obliga
tion to promote the 'political advancement of [the inhabitants of
the Territory] through rights of sut}rage' ...Ncither in the Mandate,
nor in the Charter, is there any provision requiring that the political
advanccment of the inhabitants of dependent territories should
necessarily be promoted 'through rights of suffrage'. Whereas Re
spondcnt admits that it is under a duty, inter alia, to promote the
political advancement of the inhabitants of the Territory, it is sub
mitted that the method to be adopted in this regard rests in its own
discretion. which is to be exercised by applying policies 'as may be
appropria.te to the particular circumstances of [the] tcrritory and
its peoples'. Respondcnt, while in no way opposed to the idea of
suffrage for all or any peoples in appropriate circumstances. does
not consider that provision for such rights in one integrated political228 SOUTH WEST AFRICA
entity is the only or bcst method of achieving political advancement
in all cases, and is satisfied that it would certainly not be the best
method for the peoples of South West Africa."
And we set out the factual basis for this conviction on the Respondcnt's
part at some length in the succeeding portions of the Counter-Memorial,
following on this page 398, and again at pages 104-138, III.
Now we corne to the Reply stage when the Applicants introduced
their norm of non-discrimination and non-separation. They then retained
their contentions regarding the essentiality of granting rights of suffrage,
and they made these contentions indeed very much more precise than
before. And so we find under the heading "(B) Statement of Law", at
page 441, IV, of the Reply, the passage which has been quoted so often,
and I have particularly now referred to the background of what has
gone before, in order to put this passage in its proper perspective:
"With regard to political rights, the relevant and generally accept
ed norms by which the obligations stated in Article 2,paragraph 2,
of the Mandate should be measured, have been established by the
United Nations. These include the institution of universal adult
·suffrage ...within the framework of a single territorial unit."
And then, at page 442, Mr. President, they repeat the same point
where they advance the proposition that these alleged requirements
are some of the-
". . . cstablished principles and processes [which] constitu te norms
by which the obligations statcd in Article 2, paragraph 2, of the
l\Iandate, and Article 22 of the Covenant of the League of Nations,
should be measured ... ".
And they indicate further. Mr. President, that their case is-
"... that Respondent's policies and practices in the Territory are
inconsistent with and repugnant to such principles and processes ... ".
Annex 7 is then referred to as containing the material which provides
the existence of this standard.
When we turn to Annex 7, at pages 451-457, IV, of the Reply, we
find that it starts with this heading: "(A) United Nations policy regard
ing establishment oi universal adult suffrage" and under this heading,
the Applicants then proceed to contend the following:
" ... the introduction of mcthods of suffrage leading eventually
to elections by universal adult suffrage ... evidences a clear stan
dard from which substantial deviation is illegal under the practice
of the United Nations". (VI, p. 45r.)
At IV, page 452, we have this: "The principle of universality of suffrage
has never been in doubt." The Applicants then go on to quote as an
example ail the trust territories in Africa which became independcnt
on the basis of "majority rule with full franchise by adult indigenous
inhabitants."
The next heading in Annex 7 reads as follows: "(B) United .·fi.rations
policy regarding the treatment of a territory as an integrated ttnit."
Now, Mr. President, the degree to which the contents of the matters
quoted under this heading assist the Applicants is oftcn rather illusive,
but the Applicants' purpose in quoting ail this is made clear enough
explicitly clear-and that purpose is to prove the existence of a norm
or a standard which requires "... the development of territorial integ- ADDRESS BY MR. DE VILLIERS 229
rity, with identical political rights for all ... " (IV, p. 453, para. 2).
Next, I give a quotation from the same page, still indicating the pur
pose: "... one system of government in which both Ei,ropeans and indig
enous inhabitants woidd participate ... ". And a further quotation from
the same page reads: "... a unified political structure for each territory
in which all inhabitants would have equal rights in the government ... ".
Finally, still at the same page, paragraph 3, mention is made of "... a
totalJy integrated political unit for cach Territory ... ".
So, we ftnd in the context, under both of these hcadings, just one
theme-an attempt to substantiate the existence of the alleged norms
contended for in the statement of law, at IV, page 441, which I read out
to the Court shortly before, and again at page 442.
Finally, then, Mr. President, facts are canvassed by the Applicants
in their Reply from IV, page 442-444, which lead them to a conclusion
obviously based on the alleged norms or standards contended for in their
sfatement of the law, and this conclusion is stated as follows, at pages
442-445:
". . . Respondent's refusai ... to grant to the indigenous peoples
of South West Africa rights of suffrage ... within the framework
of the Territorial Government, constitutes ... a violation of the
obligations of Article 2 (paragraph 2) of the Mandate agreement".
So, Mr. President, the impact of the Applicants' case in the sphere
under discussion, as contained in the Reply, is clear-quite unmistak
ably they arc saying in effect that Respondent must conform to the
"... norms by which the obligation stated in Article 2, paragraph 2,
of the Mandate ... should be measured". (IV, p. 442.) And they say, in
other words, that Respondent must, inter alia, institute "... universal
adult suffrage ... within the framework of a single territorial unit ... ".
(IV,p. 441.) To act inconsistently with, or in a manner repugnant to,
this would be ipso facto to violate the Mandate obligations. And to
ensure that Respondent does in future conform to these alleged norms,
wc ftnd that the Applicants castigate "... the policies projected in the
report of the Odendaal Commission". (IV,p. 444.) They castigate them,
Mr. President, as bcing even more serious and repugnant to Article 2
of the Mandate than the present one. That we :findin the Reply at IV,
page 444.
And we :find in their submission No. 4 that they ask the Court not
only to condemn the Respondent's present policy, but also to adjudgc
and declare that Respondent-~
"... has the duty forthwith to cease its violations as aforesaid and
to take all practicab]e action to fulfill its duties under such Arti
cles;" (I, p. 197;IV, p. 588).
This case, Mr. President, was met by the Respondent in the Rejoinder.
Respondent could quite clearly understand what this was about, it ac
corded with its practical appreciation of what it was that the African
States were really driving at, what their goals were, and the Respondent
dealt with this matter in the Rejoinder, V, at pages 185-187, and again
at pages 189-201, and in the Rejoinder, VI, at pages 1-12.
At this stage, we still dealt with the matter on the dual basis because
it had not been made quite clear exactly what the Applicants' case was
-we dealt with it on the basis of the norm, on the one hand, and on the
basis of the alleged oppression on the other hand, as will be seen from230 SOUTH WEST AFRICA
the Rejoinder, VI, at pages 7-8, and again, at page 8. But that is of less
importance now because it was made clear at the hearing that Appli
cants' whole case is now based on the norm and/or the standards, and
that in these Oral Proceedings also these norms, as set out in the Reply,
IV, at page 441, were seen in this light was rendered perfectly clear on
.18l\fay, that is on the day preceding the closing of the Applicants' case,
when they stated the following:
'..'.. in the Applicants' Reply are set forth examples of the United
Nations standards of non-discrimination and non-separation in
the fields of ...political development, allas expressed through the
years by the organs of the United Nations with respect to dependent
territones generally subjcct to the scope of supervision of the United
Nations ... Such examples, referred to in the pleadings at the places
cited ... "(IX, p. 336.)
Those places cited, I may interpose, Mr. President, include, inter alia,
the Reply, IV, at pages 451-457, in other words, Anncx 7. Those exam
ples, the Applicants say, are the examples of the United Nations Judg
ments.
So, those then wcre the norm and the standards which the Applicants
contended to be per se legally binding upon the Respondent, and any
contrary conduct could not in law be explained or extenuated by the
Respondent or approvcd by the Court.
The normand the standards so explained in the Reply, IV, at page 441,
agree exactly with the objectives that have been expressed by the Gen
eral Assembly of the United Nations, as well as by the Applicants in
that forum. I may quote but a single example, Mr. President. The special
Committee on South West Africa in its report to the 16th Session of
the General Assembly demanded-
"... the transfer of Government power to the indigenous people
of the Territory who constitute a great majority of the population".
"Attainment of independence by South West Africa ... the
election of representatives of the people on the basis of universal
adult suffrage."
The refcrence is Official Records of the 16th Session, Supplement No.
12A, Document A/4926, at page 22. I indicated to the Court a few days
ago that this was taken up entirely in resolution No. 1702 of the 16th
Session.
Therefore, the Applicants' case as stated in the Reply, and the case
of the African States as stated at the United Nations, we find, corre
sponded entirely.
[Public hearing of 2 Novemher I965]
Mr. President and honourable Members, at the adjournment yesterday
I had pointed out that the Applicants' attitude as expressed in their
Reply, in the political sphere was entirely clear. It was an unqualified
demand for universal adult suffrage in South West Africa within the
framework of a single territorial unit, as being a norm and/or standards
with which, soit was contended, the Respondent was obliged to comply.
I pointed out also that this clear attitude was entirely in accord with the
attitude taken up at the United Nations by the Applicants, by the ADDRESS llY l\1R. DE VILLIERS 231
African States in general, and by others who were acting as their allies
inthat respect. I had referred to a committee report and I had rcferred
also to resolution 1702 (XVI) of the 16th Session in 1961 giving effect to
that committee report. 11fayI point out that (or remind the Court as I
have pointed out before) both of the Applicants voted in favour of this
resolution,together with the whole block of African States.
I should like to refer also to a very nearly contemporaneous resolu
tion (the previous one was 19 December 1961, that is, No. 1702 (XVI)).
\Ve corne to resolution 1760 (XVll) of the 17th Session, clated 31 October
1962. This is a resolution in respect of Southern Rhoclesia. Of course,
in Southern Rhoclesia ail groups of the population, on the basis of exis
ting arrangements, have rights of suffrage within a single political unit,
but on the basis of suffrage qualifications. In the case of Southern Rho
desia,the General Assembly demanded in this resolution "a constitution
for Southern Rhodesia ... which would ensurc the rights of the majority
of the people, on the basis of one man, one vote, in conformity with the
principles of the Charter of the United Nations and the Declaration on
the granting of independence to colonial countries and peoples ... "
And, thcn, further I quote again: "The immediate extension to the
whole population without discrimination, of the full and unconditional
exercise of their basi~ political ri~hts, in particular, th~ right to vote."
(G.A., O.R., 17th Sesswn, Suppl. No. 17 (A/5217), resolution 1760 (XVII),
p.38.) .
So, Mr. President, on the basis of this clear exposition in the Reply,
and in view of the fact that the attitude as expressed there accorded
entirelywith the attitude as expressed at the United Nations, we thought
that this was a clear-cut case for us to meet and we dealt with that case
in our Rejoinder, V, and I shall read a passage at page 243, the para
graph numbered 3:
"3. The first, and fondamental, issue between the parties relates
to the method whereby political advancement of the inhabitants
of the Territory is to be secured. Respondent was at pains in the
Counter-l\1emorial to demonstrate that the only realistic alternative
to separate development was domination of the whole Territory
by majority Native groups (or, possibly, by a despotic régimederived
from them). Respondent emphasized, particularly, that there was
no middle course~all expedients and manipulations intended to
achieve such a course really being just slightly more extendecl ways
of arriving at majority mie by Natives. The correctness of this
assessment not only has been borne out by further events in Africa,
but is confirmed by the attitude adopted by Ap_Plicants in the
Reply. They urge, without any qualification, abolition of ail differ
entiation between groups, treatment of the whole population as a
unit, and universal adult suffrage-daims which have also been
pressed by majority groups at the United Nations in recent years."
Mr. President, we again drew attention to this feature of the Appli
cants' case in the verbatim of 3 May, at IX, pages 1n-n2, while we were
dealing with the inspection proposai.
\Ve saw, in other words, a clear-cut straight issue between ethnie non
differentiation and ethnie differentiation-between political separation
or political integration-and that was the basis upon which we deaJt
with this case.232 SOUTH WEST AFRICA
Mr. President, the Applicants did not like that formulation of such
a clcar-cut issue, apparently because the extrcme aspects thereof hit
them between the eyes when dealt with in this manner. Possibly for
this reason, they started a process during the Oral Proceedings of trying
to get away from the implications of this straight-fonvard issue. The
process commenced on 13 May when the Applicants said in the verbatim
record of that date, at IX, page 248: "Another illustration of Respon
dent's attribution of extreme and, indeed, unintelligible contentions to
the Applicants appears from the Rejoinder, V, at page 243." And then
a portion of what I have just read out from that page in the Rejoinder
isquoted by the Applicants.
Somewhat later, in the same page, they went on to say:
" 'Universal adult suffrage' is a target for achievement-but
obviously those words have a content with which the Court will be
familiar and of which it may take judicial notice--subject to the
normal restrictions and safeguards which attend all democratic
principles of suffrage in all civilized societics; age, li~eracy and
other factors are of course implicit in such a standard of achieve
ment." (IX, p. 248.)
;\Ir. President, this passage contains a number of elements which call
for comment.
First of al!, we find that Applicants say that the words "universal
adult suffrage" have a content which is so familiar that the Court may
take judicial notice of it. And then they go on to say that there are cer
tain restrictions implicit in the concept. l'lfr. President, one wonders
where they get this concept from and what exactly is the content which
they say is so familiar that the Court may take judicial notice of it. We
have looked at sources and we could find no support whatsoever for
this suggestion of the qualifications or restrictions, particularly per
taining to literacy and other factors referred to by my learned friends.
Let us start with the United Nations resolution to which we have
referred-the General Assembly resolution on Southern Rhodesia.
There we have the concept expressed of "one man, one vote, in confor
mity with the principles of the Charter of the United Nations and the
Declaration on the granting of Independence to Colonial Countries
and Peoples". (C.A., O.R., 17th Session, Suppl. No. 17 (A/5217). reso
lution 1760 {XVII), p. 38.)
And, again we have the words "extension to the whole population
without discrimination, of the full and unconditional exercise of their
basic political rights, in particular the right to vote". We do not, Mr. Pre
sident, in those formulations find these suggested implicit restrictions.
Let us turn next to the dictionaries. \Ve find in the Shorter Oxford
English Dictionary, 1959 edition: "Universal suffrage: a suffrage ex
tending to the whole of a community, especially one in which all persons
over a fixed age, except lunatics, aliens and criminals, have the right
to vote for representatives to a legislative assembly." So, there one finds
no exception or restriction of the kind referred to.
In Websters New International Dictionary, 2nd edition (p. 2782).
published in the United States in 1947, we find again, under the heading
"Universal suffrage" "suffrage of all, that is, of ail adults not legally
disqualified by the laws of the country, as criminals, idiots and aliens;
formerly manhood suffrage, but now in most countries including also ADDRESS BY MR. DE VILLIERS 233
those entitled to vote under woman suffrage". And, then "manhood
suffrage" is defined as "suffrage of all male citizens not under a civil
disability as crime, lunacy, etc."
Then A New English Dictionary on Historical Princip/es, Volume X,
-this is somewhat older in date, 1926 edition. I quote from this: "Uni
versal suffrage: a suffrage extending to the whole of a community, espe
cially one in virtue of which all male persons over 21 years of age exccpt
lunatics, aliens and criminals, have the right to vote for representatives
to a legislative (usually parliamentary) assembly (p. 242)."
And, then, of very recent vintage, The Concise Oxford Dictionary, the
1964 edition, which is the fifth. Under the heading "Universal"-"Uni
versal" is defined as "belonging to ... ail persons ... in the world or
in the class concerned; applicable to all cases". Then, under "Suffrage"
"the right of voting in political elections; ... manhood suffrage, extended
to all adult males without property tests, etc." And, then, "Universal
suffrage" is defined as "extended to all adults".
So, Mr. President, in the light of these dcfinitions it is certainly not
clear what the Applicants mean when they say that the concept "universal
adult suffrage" is:
"... subject to the normal restrictions and safeguards which attend
all democratic principles of suffrage in all civilized societies; age,
literacy and other factors are of course implicit in such a standard
of aduevement". (IX, p. 248.)
We have seen that literacy is not a factor in any one of these definitions
and one seriously wonders whether the Applicants are suggesting that
in the African context it would be realistic to suggest that literacy is,
either in practice or as a matter of general concept, part and parcel of
a concept of "universal adult suffrage".
Further, no light is thrown on the question of the other factors which
may be involved-we are not to1d what they may be-other factors
which would operate as restrictions and safeguards.
Another important feature of the passage under discussion is that the
Applicants speak of "universal adult suffrage" as a "target for achieve
ment". ln other words, it is not something to be established immediately,
it is to be left to some time in the future, but what that time is, is left
vague. So the question arises whcther thcy still regard "universaJ adult
suffrage" as one of the alleged norms-as they stated in the Reply,
IV, at page 441, "nonns by which the obligations stated in A~ticle 2,
paragraph 2, of the Mandate should be measured", norms wh1ch had
been ''established by the United Nations" and in respect of which
Applicants contended that that organ "is legally bound, not merely
penn.itted, to formulatc criteria with respect to the conduct of the
administration of the Territory''. \Ve :fi.ndail that in the verbatim record
of 18 11ay at IX, page 320.
lt must be recalled, Mr. President, what the United Nations in fact
said on the subject and when we revert to those resolutions which
I referred to this morning, 1702 (XVI) on South West Africa and the
subsequent one on Rhodesia, there is certainly no suggestion of waiting
until some distant date in the future, or to some uncertain date in the
future. In the case of par-agraph 2 (e) of resolution 1702 (XVI) the
phraseology for South West Africa is:
"Preparations for general elections to the Legislative Assembly,234 SOUTH WEST AFRICA
based on universal adult suffrage to be held as soon as possible";
(G.A., O.R., r6th Sess., Suppl. No. 17 (A/5100), p. 40.)
and in the case of Rhodesia, as the Court would recall, I stressed in
reading it out, the immediate extension to the whole population of this
facility of universal adult suffrage.
So that again is a question that arises when the Applicants now tell
us that their daim is not concerned with the immediate present; it is
concerned with some stage in the future and so, as in other instances,
the Applicants' attempts to qualify what they have said before have
raised for them more difficulties than they have solved.
This subject as to what was meant by the concept of "universal adult
suffrage" and as to what exactly the Applicants were claiming in this
regard, arose again in the course of the evidence of l\lr. Cillie, which
the Court will recaU was given on 13 and 14 July. Certain queries were
raised by you, ilfr. President, about the relevance of certain portions
of the evidence and certain objections were raised by my learned friend,
and as a result there were certain discussions in the course of which
I had occasion to refer first to page 441, IV, of the Reply and later, in
fact, to quoteit to the Court. The reference to page 441, IV, the Court will
fmd in what I said on page 513, X, of that record and again at X, page
523, and the actual quotation was given on that page. On these prior
occasions, before actually quoting the passage in the Reply, I referred
to (and I use the words as at p. 523):
"The content of the norm as applied in the political sphere.
namely, the content of universal adult suffrage within the frame
work of a single territorialunit."
Later, on the same page, my learned friend, in speaking of this, said that
this was "... a misrepresentation, surely unwitting, of the Applicants'
case"; and he added: "With ail respect, Sir, I just will note an objection
on this line of argument by the Respondent's counsel."
It was in response to this, Mr. President, that I pressed this reference,
the actual quotation from page 441, IV, of the Reply, and I pressed
my learned friend to explain what his attitude was. Then, in response
to your invitation, Sir, he said, at X, page 524, the following:
"I hardly know howtoproceed, Mr. President. Thisseems to require
legal argument of the sort which I know, with aH respect and
deference, is not in place here. Just for the sake of the record I
should like to read the sentence following the two sentences quoted
by Respondent's counsel on page 441, IV, of the Reply [and then
follows the quotation].
'For an elaboration of the views of the United ~ations
which have given rise to this standard, and of compliance by
Administering Powers therewith, the Courtis referred to Annex
7 hereof'."
That was the quotation, then, by my learned friend from the Reply,
and his statement proceeded:
"The Annex sets forth, in some detail, the judgments of the
United Nations with respect to the cognate areas of the trusteeship
and sets forth the policies, as we elaborated, and which explain
and elaborate the two sentences quoted by the Respondent. But,
without venturing to go into an elaborate argument, there are of ADDRESS BY :\IR. DE VILLIERS 235
course ail sorts of qualifications upon the phrases used, 'the institu
tion of universal adult suffrage 'and the 'participation on the part
of ail qualified individuals'. There is no absolu te or mechanical
standard which is applicable, or not, without reference to the issue
in this case, which is that apartheid, which denies all effective
rights of partidpation-denics suffrage tota1ly-is a violation of the
:.\Iandate. That has been, and remains, our case. We believe that
the United Nations standards, as elaborated in the Reply, may be
considered and, with all respect, should be considered by this
honourablc Court in interpreting the ;\Iandate and applying the
undisputed facts of record constituting apartheid in this respect ... "
(X, p. 524,)
.Mr. President, I shall comment on this passage presently. I should
just like to follow it up by referring to a question which you, 1tr. Presi
dent, fut, arising from this, on the next day, 14 July, at X, page 555.
I shal read the 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 contended, an obligation to grant universal adu1t
suffrage in South West Africa within the framework of a single
territorialunit?" ·
and to this question, if the Court will recall, there came the cryptic
reply, immediately: "No, Sir."
So that is where the matter rests. \Ve have had no subsequent explana
bon. This final answer, in reply to your question, Mr. President, does
not provide any guidance as to what the Applicants now say their
case is. Of course wc know what case we have to meet. \Ve have to
find that from the submissions, as amended and defined on 19 May,
and in the contemporaneous explanations given in regard to those sub
missions. That is whcre wc have to find what their case actually is,
but we do not know, in regard to these subsequent explanations, what
the Applicants now say their case is. This is particularJy so when regard
is had to the fact that the Applicants say that they use the expression
"universal adult suffrage" as being subject to certain implicit restrictions
concerning, as I have pointed out, inter alia, age, literacy and other
factors. So, if they use the phrase as carrying within itself those implicit
restrictions, what does their answer to you mean, Sir, when they say
that universal adult suffrage is not a part of what they suggest we have
to comply with on the basîs of thcir norm? . . .
Surely one would have expected an answer, then, saymg: yes, 1t 1s
part of our case, but of course one has to bear in mind that it is subject
to certain restrictions and inherent qualifications. But that is not the
answer; the answer is that it is not part of their case as founded on the
norm at ail.
So the only statement we now have which affords some guidance as
to what the Applicants now say their case is. is the one which I quoted
just now from the verbatim record of 13 July at X, page 524, In
essence, it will be realized, this passage appears to be contradictory
to the whole norm and the standards theory, as my learned friend,
Mr. 11uller, pointed out earlier.Ttcontains the statement, amongst others,
that:
"... apartheid, which denics all effective rights of participation- SOUTH WEST AFRICA
denies suffrage totally-is a violation of the Mandate. That has
been, and remains, our case." (X, p. 524-)
But, in putting it this way, the Applicants fail to state why apartheid
is in this sense a violation of the Mandate. Is it bccause of the existence
of some norm? If so, then what is the content of that norm? And in
regard to this statement that "apartheid ... denies ·effective rights of
participation" who is to judge, Mr. President, whether the political
rights existing and contemplated for the people and pcoples of South
West Africa are effective or not effective and what criteria are to be
applied? This question arises particularly: may "effective rights of
participation" legitimately be granted upon a group basis? Or does the
idea of non-ethnie differentiation enter into this and, if so, how does it
enter into it?
Furthermore, Mr. President, the other puzzling feature is what has
now happened to the Applicants' contention that the United Nations
standards and the norm are per se, ipso facto and inherently binding
upon ail concerned, including this honourable Court. Now the Applicants
only ask that such standards "... may be considered and, with ail res
pect, should be considered by this honourable Court in interprcting the
Mandate ... ". (Ibid.)
Finally, Mr. President, the question is how do the Applicants reconcilc
ail this-I may call it, not in a derogatory sense but purely in a descrip
tive sense-twisting and turning with a clear and explicit wording which
we find at page 441, IV, of the Reply, clearly and explicit]y and consis
tently explained in the subsequent pages of the Reply, and their clear
and consistent attitude before the United Nations-their attitude and
the attitude of the other African States which they represent. How are
ail these things to be reconciled with one another? The Applicants give
no answers whatsoever to these questions.
In the result, Mr. President, and until we receive those answers, I shall
proceed to deal with the subject of political rights on the only safe basis
which we have-the only legitimate basis indeed-and that is the basis
of the case which we are called upon to meet. And that case. I need
not emphasize again, is the one which is contained in the amended
submissions as read out to this Court on rg May, and as explained in
the immediately preceding and the contemporaneous explanations. I
proceed against this background to deal with the potential application
of the Applicants' norm and standards in the political sphere in South
West Africa.
The Court will recall that I pointed out yesterday that, as a matter
of theoretical possibility, the application of the Applicants' norm and
standards in the political sphere need not necessarily involve the grant
of any particular type of political rights or any political rights at ail,
provided that there is no official differentiation between the different
groups in the allotment of political status, rights, privileges, and so forth.
But, Mr. President, it would be entircly unrealistic to approach the
matter on the basis of that theoretical possibility. The Applicants quite
clearly do not expect the Respondent perpetua!Iy to deny the inhabitants
of South West Africa ail political nghts whatsoever, and that course
would hardly be in accordance with an obligation "to promote matcrial
and moral well-being and social progress". Indeed, the Applicants them
selves have frequently emphasized the importance of the concept of
self-determination and of political development towards self-determina- ADDRESS BY MR. DE VILLIERS 237
tion, as ,ve sec, for instance, in the ReplIV, at page 238, where reference
is made to "... the fundamental importance attached to the concept
of self-determination and self-government ... ".
On 19 March, in the verbatim record of that date, at VIII, page 140, my
learned friend, }fr. Moore, rcferred to "... the importance which the
founders of the mandates system attached to the principle of self
determination". And, at page 142, he said:
"l\fr. President, it is clear, in Applicants' submission, that the
basic principle of self-determination includes two necessary ele
ments: first, an independent political unit; and second, the free
choicc of the inhabitants."
Now, on this phrase-" ... an independent political unit ... ", some
light is thrown by the previous passage, at page 140, in which ?1Ir.?lloore
said, in a slightly different context:
"The phrase 'apolitical unit' indicates ... [a] view that the concept
of self-government and sclf-determination meant the establishment
of a po1itical unit, and not several po1itical units."
So, those were the contentions as stated on behalf of the Applicants
at that stage of the record.
Now, Mr. President, let us for the moment disregard the Applicants'
cxplicit formulations in the Reply, IV, at pages 439 and the following,
and let us just work with these two concepts of self-determination, on
the one hand, and non-discrimination-ethnie non-discrimination-and
non-separation, as defined at page 493, IV, of the Reply, on the other
band, and bring them together. It then becomes perfectly clear that
if political advancement towards self-determination of all the inhabitants
is to be secured without a differential allotment of rights, duties and
burdens, and so forth, on an ethnie basis, then it must in the end lead
to universal adult suffrage în South West Africa as one po1itical unit,
whether unitary or federal; it must be so. Once you combine those two
features-the ethnie non-differentiation and the idea of advancement of
ail the inhabitants to self-determination-then this is the point at which
you must arrive logically. So, Mr. President, it is not surprising at ail
that the Applicants themselves put that situation so clcarly in the Reply.
at the pages to which I have referred before. And if the Applicants
now have Jess enthusiasm for what they said in the Reply at those
pages, then it becomes clear that this is not any disenchantment with
the principle in gencral-the principle of universal adult suffrage. It
could, at most, suggest a contemplation that certain qualifications (on
a non-group basis) might be attached to the idea of universal adult
suffrage, which qualifications could delay the ultimate attainment of the
principle, but not bring about any deviation from the principle as such.
Let us look, then, at the implications of this attitude, in the light
of the facts which arc admitted on the record.
On Friday, and again yestcrday, my learned fricnd, Mr. Muller,
summarized the main facts which were admitted by the Applicants,
and I shall revert very briefly to just a few aspects of that summary
and put them in the briefest possible terms to the Court. Firstly, there
exists in South West Africa a number of population groups with different
traditions. cultures and languages. Secondly, in the history of the Te:ri
tory, prior to the assumption of the ,\Iandate, there had been a penod238 SOUTH WEST AFRICA
of strife and warfare between a number of these indigenous groups.
Thirdly, generally speaking. the various groups found themselves at
different levels of devclopment, and, inparticular, there is a vast differcnce
in this respect between, on the one hand, the European group, which
ha\·e a tradition of Western civilization and are used to a modern
economy, and, on the other hand, the varjous Native groups which are,
to a large extcnt, still bound to the traditional subsistencc economy.
Fourthly, to a very large extent, the groups occupy, and have in the
past, for many years, occupied, separate regions in the Territory. Fifthly,
the indigenous groups, to a large extcnt, still rccognize and apply their
traditional system of govcrnment through chiefs, headmen and councils.
Sixthly, the diffcrent population groups are conscious of their separate
idcntity, and they wish to be treated as separatc groups, also in the
political field: this, Mr. President, being of the utmost importance.
These differences among the groups, as here summarized, and their
group consciousness and their wishes as groups. have exerted their
influence even upon the political parties which have been formed amongst
the non-White inhabitants, even thosc which agitate for the abolition
of White rule, as thev call it.
The Court Will recall the evidence of :\Ir. Dahlmann in which he
described the varions attempts at unification amongst the varions anti
Government bodies of this kind-attempts which were stimulated by
a very important factor which was referred to by Mr. Dahlmann in the
verbatim record, Xl, at page 473, as follows:
"This movement was necessary because the liberatîon committee
ofthe Organization of African Unity had indicated that no füiancial
aid should be given to splinter groups or tribal organizations but
only to a united front."
And that explains, therefore, the frantic efforts that were made to
create such a unitcd front. But these efforts failed almost completely,
as l\fr. Dahlmann described.
When Mr. Dahlmann was asked, in the same record, XI, page 477,
whether any of these political parties are represcntative of more than
one of these population groups in South West Africa. his reply was as
follows, on that page and running on to the next page:
"Most of the parties are formed on a tribal basis. Ail attempts
to achieve unity proved a failure. Therc is one exception-that is
the South West Africa National Union [SWANU]-which has only
a small following. Neither the leaders nor the followers are able to
rise beyond the borders of group nationalism and therefore SWANU
consists only of a small number of intellectuals, ·but from various
population groups. You find there Ovambos. Hereros (especially
Hereros) and a few Damaras."
And Iater, Ilfr. President, he was asked, at XI, page 480:
"From your expericnce, can you state as your opinion whether
the differcnt non-White political parties will be able to co-operate
and form, or ,vork in, a single political party unit?"
And he then replied:
"I would like to associate mysclf with .Mr. Kapuuo, who said, in
an interview ... that tribalism and group loyalties are things which ADDRESS BY MR. DE VILLIERS 239
you have to take into account in South West Africa for many years
to corne. So I cannot see any possibility for a unification within the
foreseeable future." (XI, p. 480.)
Mr. President, the impact and the significance of this evidence is self
evident. And Mr. Dahlmann's evidence in this respect was not challenged
in cross-examination. lt is apparent that he is eminently qualified and
experienced to express an opinion on this point, and I can refer in this
respect particularly to the record, XI, at pages 457-458.
My learned friend, Mr. Gross, did indicate that he might be attacking
the credibility or the degree of expertise of this witncss apparently
because Mr. Dahlmann had been born in Germany, had grown up there,
belonged to a certain youth organization and had fought for Germany
in the War.
Mr. President, this line of questioning of the man's expertise and
integrity as a witness was very effectively answered by the witness him
sèlf and I need not take it anv further. I have difficulty in sceing what
relevance this could have to 'the matter at ail. Perhaps we shall hear
more of that subject at a 1atcr stage. My submission is that .Mr. Dahl
mann's evidence was quite clearly the product of very intensive and
very systematic study of this matter, extending over a long period,
based on his experience and delivered with full frankness to this Court.
There is no reason whatsoever why it should not be accepted. Indeed,
~lr. President, the probability of the correctness of this evidence i.salso
borne out by so many other factors on record, to some of which I shall
refer in the further portion of this address.
The question is, then, 1\fr. President, \.\'hcther, in the light of thesc
admitted or undisputed facts, the well-being and progress of the inhabi
tants of the Territory would be promoted by applying the norm or
standards contended for by the Applicants. ln dealing with this question,
the relationship bctween the various non-White groups, if I may call
them that, or indigenous groups, inter se, is quite obviously as important
as, if not more important than, the relationship between the White
group and ail or any of the non-White groups. Ali thosc aspects of the
matter cal! for consideration and for equally serious and important con
sideration. But, Mr. President, we find that it is stressed, particularly
in attacks which are made upon South Africa's policy from outside and
again in the catalogue particularly relied upon by the Applicants in this
particular case, that this relationship between White and non-White
must be seen as the primary problem.
lt is, in our approach, not so at all. The problem is not primarily one
of colour or race, as is so often represented. It is much rnther one of
relations between various ethnie groups-between peoples, or embryo
nations ifone might prefer to call them that-living in close geographical
contact with one another, as was so strongly stressed and so clearly
illustrated by the various South African witnesses and also by Professor
Logan. The situation is indeed, Mr. President, a specific example, and
a very intricate one, of what was c'!lled the multi-national problem,
which was discussed at this recent seminar in Yugoslavia in regard to
which Professor Possony testified.
As I said, because this relationship betwccn the \Vhite inhabitants
and the indigenous inhabitants of South West Africa is so stressed in
these outside attacks upon South Africa's policies and because of the
emphasis it received in the case being brought against us hcre, I should SOUTH WEST AFRICA
like to say something at the outset in regard specially to the position
of the European section of the population, and to the regard which is
to be had to them in the potential application of this norm and these
standards to South West Africa in the political sphere.
1t is customary in certain circles to refcr to ail Europeans or White
people in Africa as "settlers", a term which is often interpreted to mean
persons of recent arrivai, who have no real right to remain. The Court
will recall from the numerous passages we cited from debates in the
United Nations, particularly in the Fourth Committee, how this theme
recurred time and again. 1 need not refer back to the wording of those
statements. The Court will also recall that Mr. Dahlmann testified that
NUDO, which is a party of Hereros, wishcd ta <livideSouth West Africa
into a numbcr of regions with regional parliaments and a fcderal govern
ment, but that in this whole scheme no provision is made for a region
for the White people. That we find in the record, XI, page 476.
However, Mr. President. what are the true and the admitted facts
about the European population of South West Africa? When the Respon
dent assumed the Mandate in rgzo there was already a settled European
population in South West Africa and not only was that so but the
circumstances were also such that it was necessary, with a view to the
fulfilment of the Mandatory's charge, to retain and to extend that
population. Wc deal with thosc circumstances very specifically in Book lV
of the Counter-Memorial and I should like to refer to some of the
most important aspects of our treatment of the subject, just in brief
summary.
First,Mr. President, we point out at Il, page 406, that at no time
during the German regime was South West Africa self-supporting and
that was in spite of the fact that under the German administration there
was a much more limited extent of administration than was required
of the i\fandatorv under the Mandate. The German administration went
no further than "the Police Zone but under the Mandate of course the
other territories were brought in and al! were put under the Respondent's
charge.
\Ve summarized the situation as Respondent found it in 1920 in the
Counter-Memorial, II, at page 409It is a fairly bricf summary and I should
like to read it out to the Court. Paragraphs 20 and 2I read:
"Outside the Police Zone, trie social, political and economic lives
of the inhabitants were virtually untouched by contact with the
White man.
Inside the Police Zone, the salient features were as follows:
(a) A modern economy had been developed by the White popula
tion, the major export products of which were minerais, and,
in particular, diamonds.
(b) The revenue of the Territory was also largely dependent on the
production of diamonds, and had never been sufficient to caver
the costs of administering the Tcrritory.
(c) The only other possible source of revenue which was apparent at
that stage, was livestock farming. Progress had been made in
this field,but it had bcen limited and retardcd by the high
capital expenditure required, and the inaccessibility of markets.
(d) The Terri tory was served by an extensive railway system, which
had been joined to that of South Africa during the war. ADDRESS BY MR. DE VILLIERS 241
(e) The traditional tribal economies of the Native tribes had been
shattered, [we arc dealing with the Police Zone, the Southern
Sector now] but wide differenccs between the various groups,
were still found, and each group retained its own identity.
(!) The Native inhabitants did not possess the skills required for
modern economic or administrative activities.
(g) The Police Zone was considerably under-populated.
So, those are the important basic factors-the basic situation-as Re
spondent founcl it in 1920 on the assumption of the Mandate.
?-.Ir.President, we have pointed out in Il, at page 4ro, that even the
maintenance of the status quo, namely an organized administration
which could provide certain elementary protections, would requt'rethe
presenceof a largenumber of Europeans in the Territory. When wc speak
of providing certain elementary protections, we include those which ,vere
envisaged in the provisions of the Mandate relating to protection of the
indigenous inhabitants against abuses such as forced labour, traffic in
arms and ammunition and the suppl y of liquor, and, Mr. President, those
involved in making the basic provisions which viterethen required for the
population, in the state in which they were, such as gathering the scat
tered remnants together again, putting them on land, providing the
basic facilities for them such as housing and, in the first place, safety and
protection against the other groups in this state of chaos which had
pertained before.
Now, the matter could not rest, in terms of the Mandatory's charge
under the Mandate, at maintenance of the status quo. And-even before
I corne to that merely as a matter of balancing the budget, and merely
as a matter of crcating reserves on this basis of maintaining the status quo,
reserves to combat droughts and other calam.ities which are known to
occur in that part of the country, and also for the purpose of extending
the administration to the northern areas, for ail these reasons and before
we even corne to the question of advancement, it was necessary to cxtend
the sources of revenue of the Territory-to have additional sources of
revenue-because, in the circumstances which prevailed at that time,
l\1r.President, thcre were no international fonds available for this pur
pose. The l\Ianclatory was appointed to folfil the task and the task had to
be performed within the range of available fonds.
But then, as I have said, it was required of the Mandatory to bring
about advancement, and not merelv to maintain a status quo. Therefore,
there had to be development o[ the'Territory--0eveiopment which could
produce benefit and advantage for the whole of the population. And for
that purpose, Ilh. President, as we pointed out at pages 4ro-4n, Il, of
the Counter-Memorial, it was absolutely necessarv for the Respondent
to relv on the capital, on the initiative and on the entrepreneuriat skill
of Europeans. The Native inhabitants were not at a stage of development
which made it possible for them toprovide these elements.
The only natural resourcc which could be developcd was the land, in
the state of knowledge as it existed at that stage, and since the Territory
was under-populated the obvious method was to introduce productive
White farmers, and that is exactly what the Mandatory did, that is
exactly what was foreshadowed that the l\Iandatory would do, and that
is what was cxpected amongst the Powers which agreed upon the con
ferring of the Mandate upon the Respondent, as we pointed out beforc.
\Ve deal with this in the Counter-.\1emorial, Il, at pages 419-421. And so. SOUTH WEST AFRICA
for this reason, there was a positive encouragement to \Vhite farmers to
settle in the Territory and to help with the process of economic develop
ment.
It is important to note that various investigating authorities who
examined the circumstances of South West Africa came to the conclusion
that this policy on the Respondent's part was a sound one and a virtually
inevitable one in the circumstances in which the Respondent found itself
with regard to this Territory, and we refer in that respect to the findings
of the 1936 South West Africa Commission, the Commission consisting
of three judges of the Supreme Court of South Africa known as the
Van Zijl Commission, which is quoted in the Counter-Memorial, Il, at
page 420, and we refer also to comment on this subject by Lord Hailcy
in his report on South West Africa, quoted at II, pages 420-421.
And even today the main economic bases in the Territory are those
which have been developed and maintained by Europeans. It was inev
itable that it should be so, because if we look at the descriptions given by
the economists, the geologists, the geographers and the others in regard
to South ·West Africa it was evident that the only possible sources of
economic development which have been put into operation so far required
a very high degree of modern technology.
Let us take the varions pillars of the economy in South West Africa,
and they are very easy and very simple to relate. First there is farming in
its two branches of agriculture and cattle and stock farming. In the
sphere of agriculture the basic problem is water, "water-making" as it is
called in South West Africa, involving very often the drilling of vcry deep
bore-holes on the basis of geological knowledge and modern techniques
specially adapted to the circumstances of South West Africa, water con
servation and, in places where the water may be availablc, irrigation.
All these things hacl never been known in the economies and in the
practices of the Native groups of South West Africa.
\Vhen we corne to the other branch, cattle and stock farming, there
the Court will recall that there has been the development of the Karukul
industry in the Southern part of South·West Africa. That is a long story
in itself, dealt with to some extent in the Odendaal Commission report
where one sees the indications of the large degree of technology and of
research that was necessary in order to make it possible to have this
lucrative fonn of industry there at all-research in regard to the denlop
ment of a particular kind of pelt and so forth. Generally in regard to
stock and cattle farming, be it Karukul, or be it cattle, or any other form
of cattle and stock farming, there is the problem of combating stock
diseases in a territory such as South West Africa-an absolute necessity
as a prerequisite for marketing-and al! those requirc the highest degrees
of technology.
Then in the mining industry, the two major portions being diamonds
and copper, again the techniques involved require high degrees of tech
nology. In the case of the diamonds in the southern part of the Territory,
where diamonds are taken from the desert, there is this whole process of
clearing a huge ovcrburden, as it is called, of sand and soil and so forth
until one cornes down onto the rock layers where the diamonds are found
-the beds, as they are called-and then the process of sorting out all
this and coming to the actual gem. In the case of copper mining, it is deep
underground mining, and of course the processes involved in separating
the copper from the other things brought up from the earth and in putting ADDRESS BY MR. DE VILLIERS 243
it in a state fit for marketing, all those arc techniques of high modem
tcchnology.
ln the fishing industry it is the same thing. First therc was a problem
which had never been tackled by any of the indigenous groups, of con
quering ·a most inhospitable and a dangerous coastline for purposes of
navigation and landing and setting out to sea; but apart from that, the
fishing industry in itself is based for the greater part upon an export
market requiring canning processes, and the making offish-meal in fish
meal plants and similar products which again require high degrecs of
technology.
Those are the economic bases of the Territory. Professor Logan said in
the verbatim record, X, at page 367, in referring to the southern part of
the Terri tory:
"That anything has been donc with it, I think, is most remarkable.
Vast portions of it, were they under many other economic systems,
\vould have been lcft totally unused and yet they are today pro
ducing a modest income and in some cases, a fairly good incarne, to
the people who have developed them in the last 70 years or so."
And then, in the verbatim record, X, at page 348, Professor Logan said
in regard to the Namib area (the Court will recall that is the western,
desèrt-like area):
"... sincc the European group is the one that today keeps the water
supply going, keeps the food supply coming in, kceps the railway
operating, that it is the managerial ability, that it is the initiative
and drive of this group that has kept the place in operation, the
removal of this group without its direction and initiative, would. I
think, result in almost immcdiate and almost complete collapse".
And in bringing the European group into South West Africain order to
folfü this fonction, nobody was dispossessed of land, nobody was dispos
sessed of rights, nobocly was forcedmto a position of being unable to make
a living any more. The southern portion was underpopulated, as we
demonstrated, and it continues to be so today. There is sufficient land
for C\"erybody, as was so clearly testified to by Mr. Pepler, in the verbatim
record, XI, at pages 223-224 he said:
"... according to my survey and our planning made in terms of the
agro-ecological rcgions and the carrying capacity of the different
Reserves, far more people, I am talking about the non-Whites now,
can be accommodated agriculturally in their Reserves than what we
find there today. Actually far more stock can be carried in those
Reserves than what we find thcre today.''
And earlicr, at page 221, he had said specifically-
"... that there is more than enough land in the Rcserves to accom
modate the non- \Vhites on an agricultural basis, on a farming eco
nomic unit ag:ricultural basis".
So, }Ir. President, putting it briefly, at the inception of the Mandate
there was already this settled European population. Thereafter immigra
tion \ms encouraged in order to dcvelop the economy and to provide the
revenue for the maintenance of law and order and for the upliftment of
ail thegroups-so as to make surplus fonds available from thesc growth
points in the economy for the development of the whole Territory-and
one sees how the growth of this economy, togcther with the economy in SOUTH "\\TEST AFlUCA
South Africa itself, has resulted in that very process coming about-in
the large amounts becoming available, and having become available over
quite a number of years now, for development. so that Mr. Pepler says
that he has more than sufficient funds at his disposa! for the purposes of
development of the Native areas-the sole question is one of concern
about the pace as far as the human element is conccrned. He worries on
the question whether they are not, in some respects, perhaps going too
fast as far asthat is concerncd.
These aims have been abundantly realized as one sees also in al! the
planning which is involved in the Odendaal Commission report, and in
the \Vhite Paper of the Govemment which came in response to that
report.
Now, under those circumstances, :O.frPresident, we submit that it
surely could not be suggested that the Mandatory holds no responsibility
to this White population, or that the provisions of Article 2 of the
Mandate do not apply to the European section of the population as well
as to any other. Indeed, in our submission, in requiring the l\fandatory
"to promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the Terri tory", the authors of the
Mandate did not distinguish between, or among, the different classes of
the inhabitants, and, having regard to the circumstances I have men
tioned, the White population group is as much a population group of
South West Africa as any other. It has a right, not only Iegalistically,
not only by way of a vested economic interest, but a moral right to be
there and to be so considered. What is more, its presence in South West
Africa is still,nd continues to be, of the utmost value to all the popula
tion groups in that Territory.
Now, Mr. President, when we against this background consider the
probable effect of applying the Applicants' norm to the political life of
the Territory, we shall submit that regard should be had to the present
political institutions in the Territory. The Court will recall that at the
inception of the Mandate ail political authority was vested in the Re
spondent Govemment, but there were alargenumberoftraditiona!Native
political institutions in existence. \Vhere they existed they were main
tained and devcloped, positivelv as a matter of policy bv the Respondent
Govemment, and in cases where thev had been destroyed or injured they
were regenerated. That was as far as the various non-\Vhite groups were
concerned.
For the White group, on the other band, a certain measure of delegated
political power was granted in due course, and in the result the White
group attained a greater degree of development in political power than
the other groups which is not surprising in view of the differences in
stages of development. However, 1fr. President, I must emphasize that
that additional amount of power was not granted at the cost of the non
\Vhit~ groups, nor were those groups deprived of any power y,reviously
exerc1sed by them. By and large the powers given to the \\'lute group
were powers of local self-government for themselves and over those who
corne into their area, and corne and work for them in their economy. lt
did not extend to the other portions of the Terri tory, to portions go-..-emed
by the Natives, or the various indigenous groups themselves, on the
basis of their own institutions.
It is evident that the Respondent had to start from scratch in 1920.
The European population was able to make a greater contribution at ADDRESS BY MR. DE VILLIERS 245
that stage than was possible in the case of the other groups. The European
population group was used to this form of political institution in the
various countries from which they had corne. It was a natural extension
to them at that stage, and the differentiation in the stage of development
of these institutions-the stage of advancement of these institutions
was also perfcctly natural. Of course, that was not a situation that was
intended to pcrsist for evcr. It was one that was to be gradually wiped out
in the processes of dcvelopment. As we said in the Rejoinder, V, at
page 309:
"Everybody, including Respondent, will agree ... that the pre
sent position. in which the European section of the population of
South West Africa exercises greater political rights than other
sections, can be justified only on a transitory basis, and that the
goal should be equality arnong the various groups."
The question before the Court is now in the choice between the two
alternatives which I held up to the Court ycsterday-whether this
cquality must necessarily be sought on the basis of the method laid down
in the Applicants' norm and standards, that is, by the abandonment of
the separate political institutions of the varions non-White groups and
a more or Jess precipitant introduction of a multi-racial parliamentary
institution. The question is whether that method is to be adopted or
whether the approach of separate development of official ethnie differen
tiation is to be pursued in a constructive manner as a basis for leading
each one of these groups also to their political self-realization.
In our submission, i\lr. President, the admitted facts and the uncon
tested opinions of the acknowledged experts lead to the conclusion that
the application of the Applicants' norm as a methocl towards the achieve
mcnt of this ideal of equality amongst the various groups is bound to lead
to disaster.
On the admitted facts there is a very large difference in the levels of
development of the ·white group, on the one hand, and the most advanced
of the non-White groups, even the most advanced amongst them, on the
other, and it is probably for this reason that the Applicants no longer
insist in this Court, as I pointedut this moming, as they insist elsewhere,
that universal adult suffrage should be introduced immediately in South
West Africa. The extremeness, if I may call it that, of that attitude, and
the very obvions detriment involved in it must have struck the Appli
cants, and that is probably the reason for these attempted qualifications
to which we had regard carlier this morning.
However, Jet us examine this possibility of a qualified franchise, which
may be what they are suggesting now, I do not know, leading to eventual
universal franchise in a single political unit. We submit, Mr. President.
that that approach sufters from the very same defects as the immediate
introduction of universal suffrage.
We dealt in the Counter-~lemorial, II, at page 472, with the implica
tions first of immediately handing over.control to the non-White majority
in South West Africa (1 shall not deal with that for the moment as we
shall corne back to the implications of that situation at a later stage),
and following from that we dealt thcn with the possibility of a further
alternative, another method of approach, which appears to accord with
this middle course now suggested by the Applicants.
Mr. President, we arc dealing with the implications of a possible SOUTH WEST AFRICA
middle-of-the-road poliey in regard to the political aspect as may or may
not be suggested by the Applicants at this stage. After dealing inour
Countcr-Memorial with the implications of an immediate handing over of
power, ,ve went on, at II, page 473, as follows:
"Another method of approach may be to attempt to establish a ·
multi-racial society on the basis of identical rights for aU. In view of
the utter failure, ... of all such attempts in other parts of Africa,
and of the fact that no experiment of this kind has ever succeeded,
or is showing any signs of being likely ta succeed, it does not seem to
Respondent that this alternative can really commend itself. The
evidence is overwhelming that African nationalism does not in fact
desire such a multi-racial state, that it will not tolerate any process
of gradualism aimed at bringing about such a state, and that its
only dcmand is absolute power for African Natives on the basis of
their majority. In other words, this second alternative is but a
slightly longer drawn out process than the first, but otherwise one
involving exactly the same results."
Mr. President, the facts set out in this passage are now, of course,
admitted by the Applicants, including the facts regarding the aims and
the purposes of African nationalism in general. Indced, Mr. President,
events in Africa have made it impossible for the Applicants to dispute the
statements. Examples of the failurc of multi-racial expcriments in Africa
were given in the Counter-Memorial, II, at page 454, and again at pages
470-471, and in the Rejoinder, V, at page 200, and further references
werc given there. \Ve made references to the Congo, to Kenya, to Tan
ganyika and to Nyasaland, the present Malawi.
In regard to Rhodesia we said in the Counter-J\Iemorial, that 1s,
towards the end of 1963 when this portion of the Counter-i\Iemorial was
,,-ritten:
"Perhaps the only remaining instance on the continent of Africa
whcre a real attempt is still being made at the creation of a genuine
multi-racial community on a basis of partnership between White
and Black, is Southern Rho<lesia ... the present constitution and
franchise arrangements are such as will probably result in a majority
of the members of the Legislative Asscmbly being White for somc
time to came. But the fact is well known, and has been much
emphasizecl, that this process is likely to be reversed in favour of an
African majority in about 15 years' time-i.e., if the present arrange
ments continue in force. There is overwhelming evidence, however,
that this arrangement does not satisfy any African national leader,
whether in or outside Southern Rhodesia." (Il, p. 470.)
Then we gave a more up to date and thorough review of the history of
the Central African Federation, of which Rhodesia formed a part, of its
break-up and subsequent events in our Rejoinder, V, at pages 231 to 234-
In the course of this we said, at page 233:
"1t is manifest that an impasse has been reached in the attempted
integration of the different population groups in Southern Rhodesia
into a single integrated political unit. Instead of bringing the popula
tion groups closer together, as had been hoped, the method of
political development advocated by Appiicants is now producing
the opposite result." ADDRESS BY MR. DE VILLIERS 24ï
The facts in this passage, Mr. President, are of course admitted by the
Applicants, and they are very heavily underscored by the current events
and the situation in regard to Southern Rhodesia, upon which I need not
enlarge. I need only refer to the threat of leaving the Commonwealth,
of even trade bovcotts and so forth, which are levelled at the United
Kingdom Govern·ment in regard to this issue of granting independence
to Southern Rhodesia before an African majority has already taken over.
The whole situation, Mr. President, was very well summed-up by the
noted authoress and expert on Africa, l\1rs. Elspeth Huxley, in a letter
dated 24 September 1963, which we quote in our Rejoinder, V, at page 384.
She writes:
"Alas, multi-racialism is dead beyond hope of revival and there can
be no sharing of power, only seizure of it.If the whites relinquish
their grip then the black majority willtake it, as in Kenya-and as
blacks, African racialists, not as so-called 'civilized men' measuring
up to some common non-racial standard politically expressed in a
qualified franchise .
. . . \Ve believe in compromise and face saving; most African
nationalists do not. Theirs, they believe, is the earth of Africa and
everything that's in it, and this they mean to have. \Vhether we
think this 'reasonablc' or not is beside the point. Itis no good going
on trying to ride a dead horsc."
Now, Mr. President, that this phenomenon just described applies to
South \Vest Africa as much as to other parts of Africa appears very
clearly from passages which we cited from statements by petitioners to
the United Nations, and to which I am not going to refer again now, and
also from the evidence of Mr. Dahlmann. He was asked in cross-examina
tion whether he had encountercd Natives in South West Africa whom he
regarded as suffi.ciently mature and sophisticated to participate in the
political life of the Terri tory, and we find his reply in the verbatim record,
XI, at page 485. He said:
"Yes, I must say I could think of a few political leaders who would
be capable, I would say, to sit in the Legislative Assembly of South
West Africa."
Then he mentioned a few examples, and he proceeded:
"... but the greatest diffi.culty is these people do not want to sit in
the Legislative Assembly under the qualified franchise system. They
have stated again and again that they only accept majority rule-
that means one man, one votc-nothing Jess,and they are so dedica
ted to their own nation or to their own group and to group loyalty that
they do not think of this qualified franchise. On the other hand,
their respective nations or groups would regard them as traitors.
I might mention one name again, and that was Kozonguizi; and
Kozonguizi isof course for multi-racialism and against group loy
alties and tribalism in anv form, but he is even more outspoken
against participation within, if I may say so, White-led parliament,
and he went so far as to say that he is against any sort of co-opera
tion with the White liberals within the Territory."
So, l\1r. President, it is clear that any attempt at a graduai creation
of a multi-racial political organization is doomed to failure. The African
Nationalists do not want it except, perhaps, that they may takc it as a SOUTH WEST AFRICA
stepping stonc to complete control, and as one that is to be a fairly
expeditious stepping stone. That has been made pcrfectly clear, but it
has also been made clear that no experiment along these lines has ever
succeeded, or has ever shown any signs of succcss. That is the attitude
that has manifestcd itself from the African side.
Now, as far as the \.Vhite population is concerned, Mr. President, we
find the following evidence of Mr. Cillie in X, at page 516:
"... every so-called middle-of-the-road policy, every policy that
suggests giving limited rights to these various groups inside one
political structure, does raise fcars immediately that the end of
this policy is a position of one man, one vote, and that once you
start, there is no logical, and indeed no practical, stopping place
short of universal suffrage".
I may interpose again, Mr. President, the situation in Rhodesia which
so forcibly emphasizes this.
Itis, consequently, in these circumstances predictable that any form
of qualified franchise introduced in South West Africa would create
irreconcilable tensions between the Whites, on the one hand, who would
want to retard or arrest the extension of the franchise, and the Natives,
on the other hand, who would press for a continua! lowering or abolition
of the franchise qualifications. And the end of the road could only be
one man, one vote, and sooner rather than later.
Now, Mr. President, what would the effect be of the introduction
of universal adult suffrage in one political organization? \.Vhat would
the effect be on the well-being and the progress of the inhabitants of
South West Africa, whether it occurs now or reasonably soon at the
end of such a middle-of-the-road policy?
A reference may appropriately in this respect be made, Mr. President,
to events in other similar countries or territories in Africa and in the
rest of the world. We deal in our pleadings also with such matters and
the facts we state there appear to be entirely accepted.
In the Rejoinder, V, at page 194, we referred to-
"... the generally observable fact that there are peoples and groups
(nations or embryo nations} which are for ail practical pi,rposes not
assimilable, the one by the other, because of unwillingness ta become
assimilated. The same psychological, emotional or cultural attributes
which prevent assimilation, frequcntly result in a situation in which
the groups concerned cannot govern one cowilry jointly in a manner
which is fair and acceptableta bathor all of them-the underlying reason
being not that one is superior and the other(s} in/erior, but simply
that the difjerencesbetween them are tao great."
Applying this observation, more particularly to Africa. we said at
page 198: "\Vhere deep-seated tribal, racial or ethnie differences have
been ignored in African States, the result has frequently been bloodshed
and chaos." We could demonstrate that proposition with reference to
a certain number of territories and States in Africa. So, for instance, we
could refer to the example of Rwanda which is dealt with in the Rejoinder,
V, at pages 221-223, the case of the Sudan, V, pages 224-226, the Congo
(Leopoldville), V, pages 205-207, and, outside of Africa, we could refer
to the cases of India and Pakistan, dealt with at pages 235-236, V,
and of Cyprus, dealt with at pages 237-238, V. Ali these facts, Mr. Presi
dent, are now covered by the Applicants' admission, and, indeed, we ADDRESS BY MIL DE VILLIERS 249
believe that they have been set out in such a way in regard to matters
which are fairly generally known, that there can really be no disputing
of any of those facts.
A further fcature which has commonly followed on the grant of
independence to African States, apart from these cases of utter chaos,
bloodshed and so forth-a feature which has often followed on the grant
of independence under this system of universal adult suffrage-has been
the creation of one-party States. We deal with that feature in our
Counter-Memoria], Il, at page 455, and again in the Rejoindcr, V, at
pages 190-191, and pages 199-200.
In some cases, as we pointed out, this tendency appears to be stimulated
by the need to overcome the difficulties created by ethnie diversity and,
as it were, to stifle them from above, or to keep them in control by
sheer force. But, be that as it may, democracy in the western sense has
had a rather rough passage in thesc tcrritories in Africa-in independent
Africa. This has often been to the detriment of opposition parties, what
ever their colour, whcther they be White, Black, Brown, African or
Asiatic.
In addition, i\Ir. President, we pointed out and we dealt quite exten
sively with the phenomcnon of precipitate "Africanization" of the civil
service in many of thcse territories and the consequent lowcring of
standards in them. I do not need to enlarge upon that. The Court will
find the references in the Counter-Memorial, Il, at pages 455-45(1, and
in the Rejoinder, V, at pages 187-189.
AU these tendencies, i\Ir.President, are facts, and they are admitted
facts and indisputable facts. So, if we take them into account, the
overwhelming likelihood, in our submission, is that the introduction of
universal adult suffrage in South West Africa would lead to intcr-group
rivalry and, possibly, clashes, or it would lead to a strong centralized
rule by one group or by a dictatorial clique from such a group. Africani
zation would be the policy in the civil service, with the resultant decline
in the standards of administration.
Now, in other parts of Africa, this syndrome has led to an evacuation
of Europeans, as we point out in the Counter-Memorial, Il, at page 454,
and the Rejoinder, V, at pages 188-189 and 200-201. At page 200 wc said:
"Apart from instances where Europeans were forced out of newly
independent states by reason of violence and disorder, the general
lowering of standards and development of black despotisms ... have
induccd many White people to depart."
This again forms part of the admitted facts, the indisputable facts.
But, Mr. President, as Mr. Cillie pointed out, and as I tried to point
out to the Court earlier this morning, the situation of the European
population, not only in South Africa, but also in South West Africa,
is different. There is no question of evacuation here and of going to
another homeland. Let us quote Mr. Cillie who is very apt on this point,
in X, at page 5n:
"... The Afrikaners, by being eut off from their original Dutch
homeland, ceased to be colonials-colons-more than a centurv and
a half ago, and those European people who came later during the
time of British rule are now largely falling in with that view, the
basic view that we arc therè to stay as a White African nation, a1;d
in the second place that wc are there to stay with full controi of our SOUTH WEST AFRICA
250
destin y as a nation. By that I mean that colonial minorities tend to
hold on as long as possible, and then they abdicate, or they depart
under the usual anti-colonial pressures; but a nation cannot do
that-by its ,·ery nature it cannot do that; a nation has to defend
its freedom and its right to self-determination to the very last and,
even if beaten down by superior force, it has this inner compulsion
to start its struggle for freedom all ovcr again."
It is against this background, Mr. President, that the experts whom
we called. expressed an opinion as to the probable cffect of applying
the Applicants' suggested norm in South West Africa in the political
sphere.
The first expert was Professor Bruwer. My learned friend, Mr. Muller.
has dealt with his outstanding qualifications to speak on the subject
and I need not refer to those again. After cxplaining the composition of
the population and the measurcs of differential allotment of rights and
duties and so forth which are found necessary in the Territory, Professor
Bruwer was asked this at X, page 264:
"Will you state your opinion as to what the effect would be if
the present measures of differentiation on the basis of membership
in a group were to be clone away with?"
and his answer reads as fol!ows at page 265:
"Mr. President. prediction is naturally based on opinion. I have
quoted certain, what to my opinion are, advantages of a certain
approach, having in mind the situation as I know it and as I interpret
it. Now, Mr. President, naturally if you do away with this system
at a specific moment, or let us say momentarily, you discard an
approach that has been going on not only during the period of the
Mandate, but long before that. If you d1scard that, M:r.President,
then naturally ail the advantages that I have explained as being
my opinion, will disappear. In practice ail the essential measures of
protection will fall away. There would be no protection of land rights,
there could be no protection of language rights, I am afraid; now
what can be then the predictable consequences of something like
that?
Mr. President, if we had to take as an example what happened
and did happen in the previous century, then one would immediately
say that therc would be a violation of rights, or assumed rights,
and such violation would undoubtedly )ead to friction, and perhaps
even more than friction, perhaps even struggle; but there is also
this other predictable consequence, i:llr. President, and that is that
one will destroy that which I have pleaded for as being the achieve
ment by people themselves, and I do not think ... "
May I interpose there: speaking of the achicvement by the people them
selves,the Court will recall that Professor Bruwer stressed particularly
the achievcment by the various non-White peoples themselves. I proceed
with the quotation:
"... and I do not think that I would ever be able to agree to an
approach where one destroys a people even through other than
physical means, Mr. President; bu"t as far as South West Africa is
concerned, I also think that the one group, either on the basis of ADDRESS BY MR. DE VILLIERS 251
numbers or on the basis of economic strength, will undoubtedly
dominate the other group if you have not got protective measures;
and I also think, Mr. President, that one can say that if you have now
to start a nove! or a new system, an alien system, you will vcry
definitely retard the process of evolutionary development that has
been going on for the last 40 years approximately after the assump
tion of the Manda te".
Now, to revcrt to Mr. Cillic, who gave evidence specifically on the
political issues, his qualifications have also been dealt with and thcy
are beyond any question. He explained how the policy of separate
development had its origin in the nationalism of the Afrikaner nation.
The feature of nationalism he regarded as basic to the political scene
in South Africa and in South West Africa and thus he said, in X, at page
512:
"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."
That was then, in his opinion, one of the main determinants of the
policy of separate dcvelopment as it had devcloped in southern Africa,
a policy whereby all groups were to be cncouraged to develop thcir
own national identities.
When he was asked to express a vicw about the effect upon the
prospective well-being and progress of the inhabitants of South West
Africa of political pressures from outside the country, Mr. Cillie said
this,at page 525, X, of the record:
"These pressures have, in my view, been increasingly directed
to the main purpose of making South Africa itself, and South West
Africa, confor·mto 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 we have to
grant that in South West Africa, with such a system in a territory
next to us, which we administer as an integral part of the country
itself, therewould be no valid reason for refusingto do so at home. This
ccrtainly would, and does, create the utmost resistance and the ut
most resolution in the White population of South Africa to resist ail
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 terms of numbers, is the Ovambos,
whom I believe form about 45 per cent. of the total population.
On the basis of one man, one vote, their numerical preponderance
could be exploited by ruthless and ambitious men to subject all
the other groups to Ovambo rule. Not only would the Whites be
submerged, and they are going to form for a very long timc the
framework-and the sinews of the administration and economic
development in that Territory-but also the most under-developed
non-White groups, the weak groups such as the Bushmen or the
trîbes of the Kaokoveld would be submerged. Thirdly, you are going
to submerge the most highly developed of ail the non-White groups
which are, I think, the Colourecl people of South West Africa and the
distinctive Rehoboth people. It means to these people, as it means252 SOUTfl WEST AFRlCA
to the \Vhites, that they are being forced to commit a form of
national suicide and that prospect evokes ail the forces of resistance
that you would expect in any nation in similar circumstances."
That quotation recalls forcibly the evidence given by Professer van den
Haag upon the situation which as a general principle emerges-the
tensions which emcrge-when one group fcels itself or its identity, or
its continued existence, threatened by another.
A further question was put to Mr. Cillie as to whethcr the resistance
mentioned by him would corne from \Vhite people only, and his reply
was:
"No, I don't think so. As they become wise to what is the probable
end product of this, some of the minority groups would act likewise.
In fact we are ail minority groups in South Africa. South Africa and
South West Africa are really a collection of minorities and you
can only get a preponderant majority by a ganging up of various
minorit1es, say in the name of their blackness, or in the name of
their non-whiteness, or what you will. I think the resistance will
not be confi.ned to the White people only." (X, p. 525.)
I took the liberty, in reading, to correct an obvious mistake in the
phrase "preponderant-should be-majority" and in the text it reads
"minori ty". I am quite sure that Mr. Cillie will probabl y have corrected
that.
In the result, Mr. President, Mr. Cillie expressed the opinion that the
only practicable policy in the circumstances, as he called it "the only
fundamental alternative" was one "of separate development; trying to
build up these vastly disparate non-\Vhite peoples into self-respecting
and self-governing organic entities". That is in X, at page 517.
Mr. CiJlie's evidence was summed up succinctly in cross-examination
in certain passages, the first one of which occurs at X, page 546, and
to begin I quote a question by my Jearned friend, l\fr. Gross:
"Do you favour the introduction of methods of suffrage which
might lcad eventually to elections by universal adult suffrage?
Would that be compatible with the policy of apartheid or separate
development? ''
Mr. Cillie replied:
"Weil, uniYersal adult suffrage is quite compatible with the policy
of apartheid as,,long as you define the group in which this voting
power operates.
Mr. Gross:
"May I define it for you, Sir, so that you can answer my question
briefly and responsively? I define the group as ail those who may
be determined to be qualified in a geographical area specifically
in this case South West Africa?"
Mr. Cillie replied: "And you are asking my opinion on that as a
prospect for South West Africa?"
Mr. Gross: "Yes, Sir, that is all I am talking about, Sir."
Mr. Cillie: "It would mean chaos."
The cross-examination continued in a similar vein up to the bottom ADDRESS BY MR. DE VILLIERS 253
of page 547 and there is just one brief passage there which I should
like to read to the Court. My learned friend, Mr. Gross, asked:
"Would the educative measures prepare the population for the
adoption of universal suffrage? Would that be compatible with
the situation in South West Africa?"
l\Ir. Cillie replied:
"I do not see how education is going to make an Hercro less
of an Herero. It is going to make him more of an Herero and that
goes for an Ovambo too and for ail the peoples of South West
Africa."
Again, this was so clearly supported by the expert testimony of other
witnesses like Professor Logan and Professor van den Haag.
In addition to Mr. Cillie and Professor Bruwer, we may also make
a reference to general opinions expressed by men like Dr. Eiselen and
Professor Logan, opinions which are also apposite to the political life
of the country, because I cannot emphasize enough that the political
aspect is the crucial, the kcmcl, aspect of ail this~themain determinant
of the happincss and the prosperity of the particular conununity. These
general opinions cxpressed by Profcssor Bruwer, Dr. Eiselen and Professor
Logan, were referred to by my learned friend, 11r. Muller, and will
again be referred to under other topics such as education or economy,
and consequently I shall not quote them here, but 1 merely wish to
ask the Court to bear them in mind also for their bearing on the political
issues.
Mr. President, there we have the picture painted by these experts
on the basis of undisputed facts-really indisputable facts. Apart from
al] these possibiJibes mentioned of complete disruption, bloodshed, chaos,
what would the result be on the situation of the least developed and
the most developcd groups in the country, being ail minorities in that
country? May I refer to two of the very artifical aspects that would
result from the application of the normand the standards in the political
sphere, as we understand that normand thosc standards. Werefer to them
in our pleadings, and I merely wish to refer to them very briefly now.
If we take the preponderant position of the Ovambos in regard to
numbers, it means not only that they would, in this suggested takeover
on a basis of one man one vote, mie over other groups, it means also
that they would geographically rule over the whole of So~th West
Africa-and the Ovambo nation have never had aspirations of aggrandize
ment of that kind. The Ovambo nation have always been vcry happy
and very satisfied to live in the northern part of South West Africa,
which is Ovamboland. They only have the complaint of the kind which
Dr. Eiselen mentioned because the colonial Powcrs went and drew a
line inthe midst of their territory, so as to place somc of them in South
West Africa and some in Portuguese Angola, but apart from that,
Mr. President, as far as anybocly knows, there has never been any wish
on the part of the Ovambos to rule any other country than their own.
Yet, here they would, as it were, have colonialism thrust upon them
domination of other groups and other territories not their own.
The case of the Eastern Caprivi peoples aftords another cxample of
the complete artificiality of this approach. As described in the pleadings,
the Court will recall, and these facts are admitted. they are completely254 SOUTH WEST AFRICA
isolated geographically, ethnically and otherwise from the other peoples
of South West Africa; they have no form of contact with one another.
They have ethnie relationships with the peoples of Bechuanaland, and
again, over the river, with the peoples of Zambia. And, ~fr. President,
according to the approach of separate development, thcse peoples are,
whcn thcy achieve thcir stage of maturity, to decidc upon thcir own
destiny-they rnay dccidc whether they want to become an indcpcndent
territory, thcy may decide whether they want to link up, say, with
Zambia or with Bechuanaland, or partly with one, or partly with the
other-that is part of the outcomc of the approach of separate dcvclop
ment. But, Mr. President, on the basis of the approach of non-discrim
ination and non-separation, with which we are dealing-non-ethnic
differentiation-that freedom is not to be allowed, cven when thev
reach that stage of development, to the peoples of the Eastern Capriv1.
If the majority in South West Africa should decide, if the Ovambos
should decide, that they stay a part of South West Africa, then they
stay a part of South West Africa, and then they are ruled by the Orambos
or whoever may have the sway in such an independent South West
Africa.
Now, Mr. President, let us see what the Applicants' reaction was
to the evidence which was given by the experts.
\Ve noted that ail these experts testify that in their view certain
differential allotments of rights, burdens, privileges, and so forth, on
the basis of group or race, were essential for the promotion of well-being
and progress. Now, one would have expected the Applicants to adopt
one of two courses-those to which I referred yestcrday. The one course
they could adopt, was that this evidence was entirely irrelevant and
therefore required no cross-examination at all, on the basis that the
organized international community had spoken, and that the actual
benefit or the detrimcnt caused by the Respondent's policies or by the
application of the norm would not matter but, Mr. President, as we
pointed out, this attitude was consistently adopted only in so far as
Dr. Eiselen was conccrned, and thereafter we had cross-examination
of the varions witnesses.
Once it was decided to cross-examine, one would have expected the
Applicants to attempt to break down the witnesses' testimony in these
crucial respects-in other words, to establish that a differential allotment
of rights, burdens,and so forth, indeed necessarily gave rise to undesirable
consequences for the well-being and progress of the peoples concerned.
And one would have expected them to endcavour to demonstrate that
the abolition of such diffcrential allotment would necessarily promote
well-being. But, l\fr.President, this the Applicants did not in the least
attempt to do. Instead, they limited themselves on the whole to crit
icizing certain Iimited aspects of Respondent's policies, including aspects
without any apparent relationship to the context of the norrn or the
standards. I give some cxamples without reading from the records but
merely by way of reference to the records.
Professor Bruwer was cross-exarnined, amongst others. on the mem
bership of the Odendaal Comrnission-that we find in the verbatim
record, X, at page 267, and following-and he was questionecl on the
census classification between the various population groups, at pages 272
and the following; he was questioned about what was meant by the
phrase "... absorbed in the economy ... "-that we find at pages 2ïï ADDRESS BY MR. DE VILLIERS 255
and the following; about changes in the boundary of the Police Zone,
at pages 280 and the following; and then about job rcservation, at
pages 282 and the following.
~\Ir. Cillie was cross-examined on job reservation in the verbatim
record, X, at pages 541 and following; he was cross-examined on the
ultimate aims of separate development in that record, at page 544; and
he was questioned on the meaning of "trusteeship", at pages 529 and
the following.
:\Ir. President, I do not propose to analyse this cross-examination in
detail. Therc are various reasons why I am not doing so. In the first
place, the Applicants' cross-examination would, for the reasons I have
just given, appear to be irrelevant to their case-to the case which
they called upon us to meet. \Ve are in the dark as to what the purpose
really was which was intended to be achieved by this form of cross
examination; possibly we shall have some explanation later, and if we
do have the explanation there will be opportunity for us to deal with
that at a later stage.
From our point of view, as I pointed out at the beginning, the evidence
was led to establish that implementation of the norm or standards
would, in many instances. be detrimental to wcll-being and progress
that it would, indeed, ovcr-all, for the general wcll-being and progress
of the population, be detrimental. And it seems clear, Mr. President,
that the Applicants did not even attcmpt to attack our evidence on
that basis. At the most, they attempted to show that certain specific
measures werc not justified-not justifi.ed on criteria which now do not
form part of their case-and they also attempted to show that certain
individuals might or would suffer hardship in particular situations by
reason of Respondent's policies.
Now, Mr. President, let us just have a look at these two aspects and,
firstly,at the suggestion that particular measures were not justified. As
I have said, no criterion is suggested in the Applicants' case for distin
guishing between individual measures and the policy as a whole. If it
is contrary to the Mandate to distinguish in the allotment of rights,
obligations, and so forth, on the basis of membership in a group or
class or race, then the whole of the Respondent's policy is in conflict
with the ;\fandate, and each and everv measure which contains that
differentiation isin confüct with the Mandate. There would, thercfore,
on this criterion be no basis for saying that the policy as a whole is
perfectly lcgitimate, but individual measures arc to be rcgarded as being
in conflict with the l\landate. So, if individual measures were to be
tested it would have to be on a different criterion. ln the fi.rst place,
no such different criterion was takcn up in the Applicants' case, which
wc are now called upon to meet as being part of the issues between the
·Parties and, in the second place, Mr. President, if we look at the type
of suggestions made in cross-examination, the criteria suggested were
not e\·en such as would serve as a basis for a court of law to corne to
a conclusion about, in a process of testing the validity qf measures,
because they rcferred in general to aspects or criteria of policy-aspccts
of criteria of an economic nature, of a social nature, of a moral nature,
and so forth-where there mav or mav not be difference of opinion in
a particular respect, and where no acèount is taken whatsoever of the
discretionary nature of the l\fandatory's task which was entrusted toit.
We have, as I said yestcrday, not essayed the task of following up SOUTH WEST AFRICA
cach and evcry measurc on the basis of such criteria as would be justiciable
criteria.It would have taken a tremendously long time to have done
that, and a fortiori, ~fr. President, we have not essayed that task of
following up these measures one by one on the basis of non-justiciable
criteria.
Consequently, to take just one example, if we had to debatc whether
the job reservation provisions in the mining legislation-to which a very
great deal of attention was devoted in the cross-examination of all
witnesses, irrespective of whether they professed to have knowledge
thereof-are sound economically, morally, and socially, then a great deal
more attention and evidence would have had to be directed to the
moral, the social and the economic purposes, and the effects involved
in those measures and in the particular setting in which they occur.
This task was not essayed by us.
We shall later, in our discussion of the economic aspect, deal broadly
with this question and we shall Jimit ourselves to showing that, in this
particular sphere, certain differential allotments of rights, duties and
burdens in the field of employment opportunities were necessary with
a view to the promotion of well-being and progress. Mr. President, this
general proposition that certain differential allotments in this sphere,
also in the field of employment opportunities, were nccessary, was not
contested by the Applicants. They were each time concemed with the
individual-the particular-instance as affecting particular individuals
-and very large aspects of this total question were left entirely untra
versed by the Applicants, for instance, the whole subject of the pro
tection of Native tradesmen, in particular areas and in particular fields,
and the vast opportunities offered to Native entrepreneurs who could
make use of those opportunities in urban areas as well as in the more
rural projected homelands. That is a matter that will be dealt with in
more detail in the economic aspect.
Now, Mr. President, that was the one aspect, that the Applicants
refer to ail these non-justiciable criteria in their cross-examinat10n per
taining to particular measures. The other aspect was that they referred
to the fact, or tried to establish, that some persons may be detrimentally
affected by Respondent's policics. Now, surely it must be truc of every
policy in the world, that some people would be detrimentally affected
by it. If one were to examine the merits of a particular policy 1 am talk
ing now not of a justiciable basis; I am talking of a basis of comparing
merits and trying to corne to a conclusion as to where the balance Iies
then of course one would look at the nature and the cxtent of the detri
ment suffered by the individuaJs. One would see what the total defect,
the total quantum, if I mav call it so, of that factor would be, but one
would view that as a relevant factor, together with so many others, to
be weighed in the balance-together with other factors, such as the
extent of the benefits sought to be achieved or actually achieved. And,
Mr. President, what is a very important factor is weighing the policy
not in vacuum, not against suggested idealistic standards of perfection,
or criteria of perfection,but weighing it against the pros and cons of the
only alternative policies that may be _possiblein the particular circum
stance, because that is the only realistic way in which to weigh a policy.
That would be the nature of the task which one would have to under
take if one were to have regard to individual aspects of detriment or
benefit; but that task was not essayed. lt was not the nature of the ADDRESS BY MR. DE VILLIERS 257
Court's task to make a determination of that kind in regard to policy.
\Ve may have had to essay a task of that kind for the purposes of the
case originally brought by the Applicants-the case of deliberate op
pression-but again the necessity of that fell away with the change in
the Applicants' case. So, Mr. President, we are, with what are left, as
the issues between the Parties bcfore this Court for adjudication, not
concerned with this factor of a certain amount of detriment to individ
uals.That, in itself, means nothing. It certainly does not weigh up against
the preponderant weight of the undisputed and uncontestcd evidence
that, taken as a whole and in the over-all bearing upon the well-being
and progress of the population, the results of the application of the
norm or standards would definitely be chaotically detrimental and that
the only alternative would be the policy of separate development.
To summarize, then, Mr. President, the Applicants criticized some
points of policy. Their criticismmay or may not be justified on the basis
of some undefinetl criteria, and critcria not forming part of the dispute
before the Court. The criteria were not suggested, and no enquiry was
attempted to ascertain whether the Respondent's measures complied
with the criteria or whether any alternative measure or policy would
have been preferable. And what is significant is that the Applicants made
no serious attempt to break down the evidence of the witnesses on the
crucial aspect. In other words, they did not attempt to show that in
the over-all cffect, the measures which contravene the norm or standards
defined at page 493, IV, of the Reply are, or must necessarily be, harm
ful. \Ve therefore, Mr. President, still wait with interest for their com
ment on this evidencc.
Now, Mr. President, the last aspect of the political field: we submü
that we have established that the Applicants' norm or standards would,
if applied in South West Africa, be detrimental to well-being and pro
gress. In our submission we have, conscquently, also established that
some system involving a diffcrential allotment of rights, duties and
burdens, etc., in the political field would be necessary. In our pleadings,
as also inthe evidence, there was some discussion of the method wherebv
we consider this can best be clone on the basis, therefore, of the policy
of separate development.
We have not, in these Oral Proceedings. attempted to definc in detail
a political programme for the Court's approval or otherwise. Indeed,
Mr. President that would have bcen completely inappropriate. lf, as
we submit, the Court is satisfiecl that official ethnie differentiation would
be required in the political life of the Territory, that concludes the matter
as far as the issue before the Court is concerned. The Court would not
have to enquire into the actual policy which is proposed by the Respon
dent Government-the policy of building forth constructivcly on the
basis of separate devclopment. However, Mr. President, because one
does not in practice look at things in vacuum, it may be desirable for
us to sketch in very broad outline what our policies in the political sphere
really entait in order to provide a more tangible illustration of the real
matter which is at issue here. One can only, in these matters, be realistic,
as I say, when one weighs practicable alternatives against one another.
The Respondent Government's attitude in the matter was expressed
broadly in the White Paper which followed on the Odendaal Commission
report and which is contained in the supplement to the Counter-Memo
rial. I read from IV, page 213:258 SOUTH WEST AFRICA
"The Government wishes to state clearly once again that its
general attitude, ... inter alia,involves agreement with the Com
mission's finding that the objective of self-determination for the
Yarious population groups will, in the circumstances prevailing in
the Territory, not be promoted by the establishment of a single
multiracial central authority in which the whole population could
potentially be represented, but in which some groups would in
fact dominate others. [Omitting some words again] The Govern
ment also endorses the view that it should be the aim, as far as
practicable, to develop for each population group its own Home
land, in which it can attain self-determination and self-realization."
Mr. President, in our pleadings, the Counter-Memorial, at II, pages
424-482, and again in the Rejoinder, V, at pages 336-338, we discussed
the aims and the purposes of the policy of separate development and
we discussed also the advantages offered by this policy. It is significant,
Mr. President, that at no stage did the Applicants attempt to challenge
this exposition and vital aspects of these expositions must now be taken
to have been admitted by them by reason of their general admission
of factual averments. ·
Now, Mr. President, it may of course be a matter of opinion or pre
diction whether certain benefits or advantages will, or will not. in fact
accrue under any policy. That may be so as far as the future is concerned
but those that have already manifested themselves and have already
accrued, they are facts. Itis further, Mr. President, certainly a fact that
these future benefits and advantages, as envisaged, are indeed expected
to accrue. It is a fact that the policy has becn shaped and is implemented
because the Respondent desires and expects these advantages and bene
fits. These facts, at least, have been admitted by the Applicants. And
in so far as the actual realization of the benefits, as far as the future is
concerned, may be a matter of opinion, the Applicants have not made
any serious attempt to attack or to controvert the opinion which we have
expressed, on which we have relied and in support of which we have
called in expert testimony.
In any event. Mr. President, as Mr. Cillie emphasizcd so forcibly to
the Court, if, in particular respects, as we go into the future, it is observed
that certain expectations are not realized, then it would be necessary to
think again and adaptations would have to be made as we go along.
It is not a matter of being static, of having a blueprint which is to be
applied in each one of its details as a rule of thumb, as a law of the Medes
and the Persians, in respect of cvery aspect of future developmcnt. It
is a broad pattern. it is a broad ideal, but it has been taken out of the
sphere of mere idcalism and it is brought into the practical sphere of
actual implementation-to the stages of advancement as has been de
scribed in the pleadings.
Now thcn, let us look at the advantages, Mr. President, which the
Respondent sees in the policy. They are conveniently summarized in the
Rejoinder, V, at pages 244-246. The summary, l\fr.President, is a fairly
long one and, if I recall correctly, I think I read it out to the Court on
a previous occasion. I do not intend to do so again, now, but I should
like, with respect, to submit it to the Court for reading.
I should like to refer only to one or two aspects thereof and put before
the Court brief quotations in that respect. Throughout the exposition
here there is this weighing of the only two practicable alternatives- ADDRESS BY MR. DE VILLIERS 259
the approach of political, separate development or the approach of
attempted political integration and the relative advantages and dis
advantages are put the one against the other.
May I just read some portion of the initial aspects of the summary
and then corne to the final conclusion at the end?
At page 244 the summary commences as follows:
"(a) Separate development is not a policy of domination, but the
very antithesis thereof-it contemplates evolutionary termi
nation of guardianship in a manner calculated to lead to peace
ful co-existence. Attempted integration, on the other hand,
must, in the circumstances prevailing in South West Africa,
inevitably lead, at least, to domination of some groups by
others.
(b) The aim of separate development is justice for ail, not only
for some. It seeks to avoid a situation where the exercise of
self-determination by some of the inhabitants would involve
the denial of self-deterrnination to others." (V, pp. 244-245.)
And so it proceeds. It will sufficc for my purposes to read the very brief
description found at page 246, which says this:
"In short, separate development is intended and calculated,
negatively, to avoid the human tragedies which have occurred, and
are occurring, in African territories such as the Congo. the Sudan,
Rwanda, and others, as well as in the systems of ruthless dictator
ship found neccssary in so many other territories with a view to
maintaining even a semblance of order. Positively, separate devel
opment envisages the establishment of a system of peaceful and
friendly co-existence, based on mutual respect for one another's
Jdentity, culture, right to existence and human dignity, coupled
with fruitful co-operation inmatters of common concern. Attempted
integration, on the other hand. involvcs inevitable injustice to
minority groups-the highcst and the least developed ones~inevi
table retrogression in standards of economy and administration,
and a very high degree of probability of a repetition of the human
tragedies of other terri tories, or ruthless dictatorial rùle, or both."
One very important aspect to bear in mind, and this is of course a
fact, isthat the purpose of scparate development is to lead to the self
determination of the various groups in South West Africa as well as in
South Africa itself. It is consequcntly not possible at this stage, or any
other stage, to forecast what exactly the ultimate pattern in the political
or economic life of South West Africa or South Africa will be. This is
inevitably so, because that exact pattern will depend upon arrangements
or agreements which will have to be made by consent between entities
which are at present still in a stage of formation, or which are at present
still developing towards maturity. What is envisaged is that there is
not to be superimposed upon peoples which have not yet reached matu
rity, a system of which they will not be able to rid themselves when they
get to maturity-as Professor Manning expressed it, a kind of a child
marriage-that is to be avoided. They are to be given the opportunity
when they reach maturity of saying: "Now, we sec our future as follows,
and we shall try by agreement with the others to map out a course which
will satisfy our sense of self-determination and self-realization." Mr.
Cillie said in this respect in the verbatim record, at X, page 520:260 SOUTH WEST AFRICA
"... obviously the extended form of future CO·operation has to be
brought about through pre.consultation of the various groups
involved, and you are only now building up the other personalities
with whom you are going eventually to have a dialogue".
But it is always important to bcar in mind that the principle is acknow·
ledged, and it is stressed as a principle and as a purpose-that of self·
determination leading, if a particular group may so wish, to complete
independence for that group; leading, if it may so wish, to some form
of arrangement that may be entered into with a vicw to co.operation.
As far as CO·operation bctween groups is concerned, various models
and patterns have been tentatively suggested, but in the nature of things
these are only predictions as to what may be agreed upon in the future.
This point is mentioned here because there has been some cross.exami
nation and also some questioning by Members of the Court as to the
ultimate result of the policy of separate development. However, for the
reasons I have mentioned, this is nota matter which the policy envisages
as one which will be or will remain under the control of the Respondent
Government, except of course as one of the potential contracting parties
acting then on a basis of equality.
Moreover, it seems unlikely that the present boundaries of South
West Africa will retain their present significance for ever-even that
seems unlikely, and I can recall in this regard the evidence of Mr. Cillie,
again in the verbatim record at X, page 521:
" ... our theoretical thinking goes further than the gcographical
frontiers ofSouth \Nest Africa and South Africa ... \Ve are think·
ing 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 territories, the protectorates, who are
very dosely linked to South Africa economically; we include the
Portuguese Te1Titories, Southern Rhodesia and possibly Zambia and
Malawi ... 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 technolog
ical information, you would realize that this is already a very inter
dependent collection of terri tories."
These, however, are matters for the future. For the moment the Rcspon·
dent is engaged wit:h the assistance and with the support of the various
non.White population groups in the task of building up the self·govern
ing entities which could eventually play a role in the shaping of the
eventual pattern of relationships in southern Africa.
It may be noted in passing that there is another important aspect of
this. My learned friend, Mr. Gross, referred several times in cross·exami
nation to the fact of an expectation that there would still be a flowing
over the borders in regard to the matter of labour particularly. In that
respect there is a significance in this pattern of development which is
often not sufficiently appreciated, and that is that as soon as you have
built up an entity which can speak for itself, such as we already have to
an advanced extent in the Transkei, to take that as an example, then
a matter of that kind which is now, as it were, one of almost international
concern, becomes a Jegitimate matter to speak about in the various
forms of CO·operation that may be devised, and if the Government of, ADDRESS BY MR. DE VILLIERS :261
may we say, the Transkei, or a future Ovamboland, or what have you,
should be dissatisfied with the basis upon which labourcrs from that
territory are accepted in, shall we say, the White part of the country,
be it South Africa or South West Africa, surely that is a matter for
legitimate discussion, and a matter upon which arrangements could be
made in the same way as that in which civilized arrangements are made
between othcr countries of the world, particularly in Europe, on matters
of that kind, and in other parts of the world too that we know of? But
that in passing, Mr. President.
I may emphasize that when we speak of these patterns for the future
it has often been stressed from the South African point of view that the
idea of a federation imposed beforehand is not favoured, for the two
reasons: the one is that one does not want to determine a shape before
hand, before these various entities have risento maturity where they can
express themselves upon the matter; the other important factor is this:
that in a federation almost inevitably the majority principle operates,
even ifit is merely as between entities. There must be some way of com
ing together, of having some federal structure at the head of it ail or
as some part of it ail, and normally such a structure then operates on a
majority basis. And the very purpose of these arrangements of separate
development is to avoid the stresses and the strains which arise from
the application of a principle of majority in circumstances of inter-group
relationships such as we are dealing with. That is why, as Mr. Cillie also
explained, in this future thinking the pattern and the model are very
much favoured of a consultative basis, of a basis of consensus or agree
ment, taking as a basis, as I have said, models such as a commonwealth
or the Common Market, the form of co-operation existing as between
the countries of western Europe.
As I have said, the present is an important practical stage of building
up these various cntities, with the support of these groups. And the
methocls which are aclopted in that respect were sketched in our Counter
Memorial, II, at pages 477-483, and again in the Rejoinder, V, at pages
256-265, at pages 281-285 and 319-324. At one stage the factual allega
tions in this respect were disputed by the Applicants, but they have now
admitted them all; and in these passages the Court will see to what extent
the Rcspondent has already in South Africa granted powers to Bantu
Authorities, and to what an extent this has led to greater co-operation
and harmony between the races and the various population groups.
This process has developed furthest in the Transkei, where considerable
local autonomy is exercised by a Bantu parliament and cabinet based
on a constitution in which the elective element plays a major role.
[Public hearing of 3 November I965]
.i\Ir.President, honourable i\Iembers,I was dealing at the adjournment
with illustrative examples of what is being clone at this particular stage
of application of the policy of separate development-the stage which
I described to the Court as being one in which the Respondent Govern
ment, with the assistance and support of the indigenous groups of South
Africa and South West Africa, is building up these varions groups, these
various communities, to a stage of seif-realization. self-determination
and mutual cquality. I was dealing particularly, at the stage when wc262 SOUTH WEST AFRICA
came to the adjournment, with the development that had taken place in
the case of the Transkei as an illustrative example of what is being con
templated not only in South Africa. but also in South West Africa, and I
referred to the considerable amount of local autonomv now exercised bv
a Bantu parliament, a Bantu cabinet, on the basis of a constitution in
which the elective element plays a major role.
I should liketo refer very briefly to some very significant elements of
that development. First, there is this relationship between the elective
element in the parliament and what one might call the traditional elemcnt,
the element of aristocracy from the traditional systems operating in the
varions Bantu communities, in this particular case in the communities
of the Transkei. The relationship is in reality something like 64 chiefs,
I think, who corne there ex otficiointo the parliament and 45 elected
members of that parliament. We deal in our plcadings with certain facts
which led up to this development and those must now be takcn to be
admitted, and we pointed out that this Constitution came about on the
basis of the wishes of the Transkei population itself-the wishes conveyed
to the Rcspondent Government by what was called a Recess Committee
of the previous authority there-a committee which was composed of
leading members of the present Government party in the Transkei as
well as of the present Opposition party in the Transkei. This factor of
the elective element was one of the few on which the Respondent Govern
ment took a firm line, not by way of trying to force its will upon the
representatives of the Transkei, but by way of suggestion. The original
proposai from the side of the Rccess Committee-dealt with in the
Rejoinder, V, pages 321-322-was to have 64 chiefs and 30 elected
members, but the Prime Minister of South Africa suggested that the
elective element should be made stronger and as a result thereof, and as
a result of the acceptance of that suggestion, the Recess Committee came
back with a suggestion of 45 which was eventually agreed upon.
I mention that, Mr. President, because it is a1so very important as a
background to an understanding of the proposais of the Odendaal Com
mission in respect of the political development of the various Bantu
communities in South West Africa. They proposed also that initially the
ratio should be something like 60 to 40, 60 traditional and 40 elected,
but therc is no suggestion that that is to remain the position. There is no
specific indication, even from the side of the Respondent Government as
yet, that that is what is going to be decided upon in each case. The White
Paper, as the Court will know, in general and in principle accepted the
recommendations of the Odendaal Commission, but these are matters of
detail which were spccifically rescrved in the White Paper and, knowing
the Government's attitude as we do. it seems very likely that in each case
the exact wishes on that particular point of the group concerned would be
ascertained before an arrangement is arrived at.
This is an example of proceeding by evolution rather than revolution,
of not discarding the pos1tive values in the traditional system before they
have been complet ely rcplaced by other values which have been accepted
as values in. the community. Recognizing the need for bringing in the
democratic element in the particular form of suffrage and election, one
at the same time brings in that reform in, as I have said, an evolutionary
fashion and not a revolutionary fashion, so that one proceeds by gradu
alism and at a pace which the basic structure of the society can take.
Then, another interesting facet of the development in the Transkei, ADDRESS BY MR. DE VILLIERS
which I wish to refer to by way of illustration. is the forms of co-opera
tion which have emerged between White South Africans and the Bantu
population. In the case of the Transkei, as we have noted, the cabinet
consists of a Bantu prime minister, or Chief Minister as he is called, and
several other Bantu ministers. When we corne to the civil service we fmd
that as at this stage of deve1opment the permanent head of each depart
ment, the departmental secretary, is a White South African who has been
lent, ifI may call it that, seconded it is called in civil service jargon, to
the Transkei administration by the South African Government and
mostly one finds also that the more senior officiais immediately below
these departmental secretaries are still, at this stage of development,
White South Africans there on the same basis. Then when we corne to
the othcr positions further on, as high upas one can go at the moment,
there are Bantu officials working their way upwards in these civil service
departments. I emphasize that that is the situation at this particular
stage of development. It is again an example of proceeding by progression.
This is Africanization, too, of the civil service-a very sound principle of
Africanization-but it proceeds again by evolution and not by rcvolu
tion. The idea is that as the necessary number of qualified officiais are
trained and corne to the fore with the neccssary qualifications and with
the necessary experience to take over, they will take over from those
\Vhite officials.The process is already in operation and it has already
progressed up to a certain stage. And in due course there are to be no
White officiais left and all those situations are to be filled by the qualified
Bantu. Here again, therefore, is an example of achieving a common aim,
but achieving it along methods which are destined to be successful and
not to break clown because the pace is made too fast.
The form of co-operation I have mentionecl, exists not only in the
administrative sphere, it exists also in what I might call the technological
spheres. If one goes to the Transkei one finds a large number of South
African technological officiais, Mr. Pepler's men, assisting in the same
way as the administrative men in the processes of the development of the
Transkei. I could give a number of details: experimentation on agricul
tural projects, various other development projects and so forth, where
these people are assisting as long as necessary, but only as a phase of
transition until their services and their assistance should no longer be
required.
So also in the field of commerce and industry, encouraging Bantu
initiative in that respect, thern is the development of the Bantu lnvest
ment Corporation, also dealt with in the pleadings. The idea is to assist
those members of the Bantu community who came forward with the
necessary initiative, with the necessary basic requirements to set up some
inclustry or some form of trade-to assist them with technical advice in
the task of finding the necessary capital and so forth.
Then there is also the question of the financial relations, in which we
find that there is, as at this stage of development, a major contribution
being made by the South African Government, not only towards develop
ment projects, but also even to the ordinary processes of balancing the
budget-again, a course of development which is intended to be a
transitional one, but which certainly has its goal firmly in mind.
Now, Mr. President, that sets an example, and I have only mentioned
certain illustrative aspects of the example. lt is very interesting to sec
how the peoples of South West Africa thcmselves have reacted .to .that SOUTH WEST AFRICA
example. We recall that we pointed out in the Rejoinder, V, page 29r,
that during October r964:
"... the whole Ova.mbo nation through its tribal leaders submitted
a written petition to the Prime l\Iinister requesting, inter alia, the
implementation of the Commission's recommendations, and partic
ularly the recommendation rclating to the creation of a central
governing body for Ovamboland".
Mr. Dahlmann, the Court will rccall, testified in the verbatim, at
XI, page 470, as follows:
"A number of chiefs and headmen toured the Republic and the
Transkei at the beginning of this year and they came back very
enthusiastic about what they had seen."
In fact this touring group included not only Ovambos, it included leading
members of ail the other indigenous communities in South West Africa.
Mr. Dahlmann proceeded to testify about a request from 145 teachers,
ministers and nurses of the Kuanyama tribe, the largest tribe in Ovarnbo
land, that a similar tour should be arranged for them.
This represents one aspect of the reaction to the Odendaal Commission
proposais in South West Africa. In general we described that reaction in
the Rejoinder and that also is a statement of fact which one must take
now to be admitted because there was no denial placed on record. We
said:
"... excepting the meeting in the Kaokoveld [which was neutral],
and except for the majority of the Herero group in the Police Zone
(who refused to attend the consultations), the reaction of all the
Native leaders, i.e., the Chiefs and Headmen who were consulted,
and the majority of their followers, was overwhelmingly in favour
of the Commission's recommendations". (V, p. 290.)
If the Odcndaal Commission reports were implemented with or without
modifications in dctail, Mr. President, the opportunities for advance
towards full self-determination would have been created. How fast the
progress would be in the case of each individual community would have
to be seen: it would dcpend to a large measure upon the efforts, upon the
reactions, and upon the rate of progress shown by the particular com
munity itself. But the end result in principle must be that all groups
should be in a position to determine for themselves what their future role
in southern Africa would be, on a basis of mutual equality. \Ve, therefore,
if Imay use a phrase previously uscd in an article by Dr. Eiselen, have a
situation of harmonious multi-community development-it is a process
moving towa.rds an end product of constructive co-operation between
equaJs.
In this case, by way of cross-examination, anything else offered to the
Court of an evidential or factual nature from the sicleof the Respondents
has not advanced the least reason or the least probability why this ideal
should not be capable of achievement.
It is a policy which takes full cognizance of the sociological realities
of the situation, and, in that respect particularly, it stands, in our sub
mission, in very sharp contrast to the friction, the tension and the strife,
and to the almost inevitable tragedies which must result from an appli
cation of the normand the standards suggested by the Applicants in the
political sphere. ADDRESS BY MR. DE VILLIERS 265
That, Mr. President, concludes my consideration of the political
sphere, as such, but thcre is a related subjcct, also taken up in the
Applicants' catalogue, to which I should like to devate very brief atten
tion-very brief, because its importance has now, in the light of the
developments of the issues before the Court, corne to be of a subsidiary
nature entirely. That is the sphere of rights of residence and freedom of
movcment.
The Court will recall that, at I, pages 144-152, of the Memorials, the
Applicants set out a number of laws and regulations which, according to
them, detrimentally affected three things-the rights of residence, the
frecdom of movcment, and the security of the person of indigenous
inhabitants of the Territory. During the course of setting out their
catalogue of laws, and so forth, for purposes of illustrating the application
of their norm or standards, on 17 May the Applicants said, at IX, page 290
of that verbatim record:
"At pages 144 through 152 of the Memorials (I), the Applicants
have set out a serics of laws and regulations and official methods
and measures by which they are carried out with regard to the civil
lives of the inhabitants of the territory and which, the Applicants
respectfully submit, constitute perse violations of the international
legal norm of non-discriminat10n and of non-separation and the
international standards covering the same subject, having precisely
the same content."
The Apr.Iicants then proceeded to enumerate at page 290 what they
termed "dlustrative examples of the laws, regulations and official
measures and methods in question", pertaining to this sphere.
Now, the first important feature to note from that enumeration is that
it did not any longer include any laws. or aspects of laws, on which the
Applicants had previously relied in their Memorials, relative to the
question of security of the person. That subject seems to have fallen out
of the picture, and it was almost necessarily so in view of the change of
the Applicants' case, Mr. President, because the attack which was made
in the Memorials upon the Iaws and regulations in question, i.e., with
reference to the subject of security of the persan, was an attack alleging
complete arbitrariness in the legal provisions in question. In other words,
it invited a factual investigation into the question whether those provi
sions were indced arbitrary or whether they were not, and the Court will
recall how wc set out very copiously and fully in our pleadings the reasons
why those rules and regulations and laws were there, painting out that they
were anything but arbitrary.
So that, Mr. President, in the light of the issue as now before the Court,
dcaling with the question whether thcre is to be official ethnie differentia
tion or official ethnie non-differentiation, it is quite evident that this
aspect relating to security of the persan perse would have fallen out of
the picture. It concerns mostly, as the Court will recaU, questions such
as powers of arrest-in some cases without warrant-and cases of that
nature, forming subsidiary parts of regulatory statutes dealing with
general subjects in the interests of the community as a whole.
Now, we are left, therefore, with the enumerative catalogue with
respect to the other two subjects-freedom of movement and rights of
residence. And wc fmd that the catalogue included pass laws, statutory
machinery dcsigned to control the influx of Natives to urban and con-266 SOUTH WEST AFRICA
trolled areas in the Police Zone, regulations pertaining to idle and unde
sirable persons in certain Reserves, laws regulating the residence and
movement of northern Natives into the Police Zone, and also measures
controlling egress from the Terri tory. I mention these as examples; I do
not think I have given each one of them, but I think these examples will
suffice for the purposcs of what it is necessary for us to say about this
aspect of the matter, because itis not our purpose to deal with each and
every one of these laws and measures, for reasons which I have explained
before. We do not have to test each and every one of them with reference
to some criterion. The only criterion before the Court is the one of
officialethnie differentiation or non-differentiation, and if we were to
apply that thcn evcry one would, of course, be regarded as being in con
flict with the norm and standards.
What wc are concerned with here, as a proposition of fact and in
regard to the other aspects, is what would be the consequences in this
particular sphere of the application of the suggested norm and the sug
gested standards.
Again, we shaU test these consequences on undisputed fact and with
illustrative reference to some of the laws, measures, and so forth, taken
up in the catalogue.
Now, Mr. President, let us first understand clearly what the Appli
cants' case would logically amount to on the application of the normand
the standards in this particular sphere. The Applicants say here, as
elsewhere, that the laws and measures in question are per S6 violations of
their normand standards. Now again, as I pointed out before, although
the Applicants did not rcly upon restrictions imposed upon White or
Coloured residents of the Territory in this sphere, and,as in other spheres,
it must follow as a matter of logic from an application of the suggested
norm and standards that these measures, restricting rights of White
persons and Coloured persons, would also violate the suggestcd norm
and the suggested standards.
\Ve set out in our Counter-Memorial, III, at pages 308-310, and again
at pages 3u-312, a number of examples of these laws and of this aspect
of the laws pertaining to freedom of movement and rights of residence,
and the Court will recall that their effect is that no White or Coloured
person may obtain permanent residential rights in a Native Reserve or
an urban residential area, or enter such a Reserve or area without a
permit, affecting therefore both the residence aspect and the movement
aspect. It follows, therefore, Mr. President, that on application of the
Applicants' suggested norm and standards to South West Africa ait
these restrictions which protect the residential rights of specific groups
in specific areas would have to be abolished. And so, Ovamboland would
have to be thrown open to members of other groups, including the
Hereros and the White group, notwithstanding the very compelling
reasons which we advanced in the Counter-Memorial, III, at pages 240-
246, for protecting the residential rights of Native groups, including the
Ovambo, against such encroachmcnt.
The Court will recall that this was a subject which came up con
tinually also in the evidence and particularly in the cross-examination
of various witnesses who, when referred to limitations placed upon indi
vidual persans in the Police Zone in the White area, referred to those as
being only part of a total system which, as its counterpart or as another
part thereof, had also this feature, this very important feature. The ADDHESS BY 11R, DE VILLIERS
Court might recall the vivid description given by Professor Logan of a
White farmer on a drought-stricken farm who would yearn for the oppor
tunity of havini;;-a farm ready for irrigation in the Okavango, but that is
not for him; it 1sfor the Okavango people.
So, Mr. President, in the final analysis, the application of the Appli
cants' norm or standards would învolve that the Terrîtorv should be
treated as a single, integrated unit, also for the purposes of this partic
ular sphere which we are talking about-rights of rcsidence and freedom
of movement.
\Ve have already demonstrated that to treat the Territory as such, in
the present and projected political arrangements of the Territory, would
be to invite chaos; that in order to provide a general political system
which may have the least chances of success it is necessary to differen
tiate-it is necessary to separate.
:Now,?!Ir.President, once one has corne to that conclusion, then surely
what is at issue in the sphere now under discussion must follow as a
matter of course. If one decides on a policy of attempting to integrate
the various people, the various members of the population of South
West Africa, into one integrated unit, then one makes one's laws and
regulations with that end result in view. If,however, one envisages
de\·elopment along the lines where you would have various autonomous,
or semi-autonomous communities, each in its own area, then, Mr. Presi
dent, one makes one's laws and regulations with that end product in
mind. If it is permissible intcrnationally, and quite natural internation
ally, for States living in close proximity to one another to make provision
for matters such as visas, passports, pcrmits, restrictions upon certain
things that aliens may or may not do when coming into a territory
and so forth, then it is perfectly natural to do it, if there is sufficient
reason for it, in the circumstances of South West Africa, where there
is an evolutionary development towards that end product and where,
in fact, one cornes from an historical background which involves that
separation-which involves that differentiation. Therefore, Mr. President,
it is perfectly natural that one should have these ancillary regulations
as soon as one decides upon that basic structure of the future society.
So let us now then, on that basis, have a look, a closer look, at the
concrete consequences of applying the Applicants' suggested norm and
standards in particular aspects of the sphere now under discussion.
In the Counter-Memorial, Ill, at page 279, and the following pages,
we set out the basic considerations which underlie Respondent's policy
of influx control into urban areas. Vve dealt, !lfr.President, with that
situation in respect of South Africa itself, with what experience had
learnt and had dictated in South Africa. We dealt with it also with
reference to developing situations in South West Africa itself and we
dealt with it with reference to the situation in a number of other countries,
particularly in Africa, whcre similar or the samc problems arose and
whcre the need for regulation became apparent and resulted in fact in
regulation of the situation.
?ilr, President, those again form part of the undisputed facts of record
as thev stand now.
\Ve·did not specifically call an expert on this subject for the specific
reason that thesc facts are so completely admitted and are so clearly
set out in the record that we did not think it necessary to deal with
it further by way of expert testimony, but we could ha"e called many268 SOUTH WEST AFRICA
men of standing with the practical experience of this situation in southern
Africa, who could have told the Court exactly what we say in our
pleadings in that respect, that is, that, failing regulation of this very
serious problem, you get the most impossible social, hygienic and atten
dant consequences, such as no proper provision for housing or for
sanitation, capable of coping with the large and very often uncontrolled
crowds swarming through the cities because of the allurement-because
of the lure-of what one might cal! the bright lights of the cities, due
to some view-some vision-of finding here employment, of finding
riches, or of finding something beyond the horizon. Experience has
taught so often that that has happened. It has, in fact, happened in
South Africa; it has caused the most tremendous problems which
required clearing up at a later stage and those situations, again, have
created their new problems, but they are being tackled, and they have
been tackled, energetically.
But, Mr. President, in order to prevent situations of that kind from
continually arising, it is necessary, and it has been demonstrated to be
necessary, in these various ways, to have this form of control.
Now, Mr. President, if we were to apply the Applicants' suggested
norm and standards in this respect, what would the consequences be?
One could apply them in one of two ways. One could say, fi.rst, that
there ought to be no such influx control. Then these consequences, to
which I have just referred, would follow as a matter of course-that
seems to be undisputed as fact. The alternative would be that these
provisions in regard to influx control ought not to apply to the Native
population as a whole but should also be made applicable to White
and to Coloured inhabitants of the Territory of South West Africa.
But, Mr. President, we say in the Counter-Memorial, III, at page 287,
that there has never been any problem in this respect in regard to
White or Coloured inhabitants of South West Africa. That fact, too,
is undisputed. It would have been the easiest thing in the world to
bring evidence on that situation if it were necessary and if that were
a disputed fact. So, if we were to apply the norm or the standards in
this particular instancein the form of making some laws also restricting
the movement of White persans or Coloured persans towards cities,
then we would be fighting windmills. The South African Government
would be required to make laws in respect of a non-existent problem.
So, Mr. President, on either of these bases, I submit that the suggested
application of the norm or standards just does not make sense.
Itake only one further examplc, Mr. President: the reference by the
Applicants to the measures controlling the residence of northern Natives
in the Police Zone and the movcment of those northem natives into
the Police Zone. \Ve dealt with that subjcct in the Counter-Memorial,
III, at pages 276-277, and again in the Rejoinder, VI, at pages 325-326,
and we pointed out there that these measures were cnacted at the
request of the tribal leaders of Ovamboland, who had in that respect
consulted thcir councils and their peoples, and that those requests were
fully representative of the views and the wishes of those groups, for
very understandable social reasons. The man goes and works in the
Police Zone; he leaves behind a family, a wife and children, who till
the land and \vho reserve for him those rights which he has in regard
to occupation of certain portions of the land. If he stays away and does
not corne back, it creates vast social problems, not only in the place ADDRESS BY MR. DE VILLIERS 269
where he stays but also in this community where he has left his wifc
and his children. If he were to take wife and children with him, one
gets other kinds of problems-problems of inadequacy of housing, and
also problems of what happens to his rights in this community where
he would like to retain them and to which he would like to corne back
to till the soil again, as applies in almost every case known to us.
So, Mr. President, that is the basic situation. That is why we have
for these northern Natives from Ovamboland and from the Okavango
-bccause the same position applies in the Okavango-the situation that
they may corne and work in the Police Zone, but for a Iimited time only;
then it is expected of them-by their own communities-that they are
to corne back before going again.
So in this respect, therefore, the application of the Applicants' norm
or standards would involve the ignoring of the wishes of these com
munities themselves. 1t would also lead, Mr. President, to the abolition
of all the measures protecting the residential rights of the various groups
in their own areas, because that is what lies at the basis of all this.
If the northern Natives were allowed to move into the Police Zone
indiscriminately, freely to obtain residential rights there, then it would
follow that the opposite would have to apply also and I have already
dealt with the absolute horror which some witnesses expressed at the
idea, looking at it from the point of view of the interests of the indigcnous
population, that that should happen.
We gave in Book VI of our Counter-;\Iemorial, l\lr. President, at III,
pages 257, and the following, examples of a number of States which
have considcred it necessary to protect the residential rights of specific
groups in specific areas by excluding members of other groups from
obtaining rcsidential rights in such areas. The Court will recall that the
number which we gave, was considcrably added to by Professor Possony
in his evidence. Professor Possony tendered that evidence and we referred
to those earlier in our addre5S as illustrative of the practice of States
with reference to the suggested norm and standards. For my present
purposes, I emphasize it for another reason and that is because it em
phasizes the common experiencc of mankind in this respect-that it
has been necessary, in the interests of the peoples themselves. to have
regulatory measures of this kind, regulatory measures that would be
donc away with, also in South West Africa, to the detriment of the
peoples concerned, on an application of this suggested norm and these
suggested standards.
That concludes this portion of the address, Mr. President. With your
!cave, my learned friend, Dr. Rabie, will now proceed with the next
phase, concerning education.270
31. ADDRESS BY l'IIR.RABIE
COUNSEL FOR THE GOVER:-!MENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 3 AND 4 NOVEMBER 1965
:\lr. President, Members of the Court, in the course of my address,
I shall refer to the cvidence of Dr. Eiselen, Dr. Van Zyl, Profcssor van
den Haag and Professor Rautenbach.
Dr. Eiselen and Dr. Van Zyl, as the Court will remember, gave evidence
on ;\"ative education in South Africa and in South \Vest Africa. Professor
van den Haag expressed, on the basis of information contained in
Respondent's pleadings, certain views in regard to the subject of separate
education in South West Africa. Professor Rautenbach dealt with higher,
that is university, education in South Africa. The Court will know from
the pleadings and from Professor Rautenbach's evidence that there are
no facilities for hîgher education in South West Africa, but that students
of all groups in the Tcrritory can and do go to university institutions
in South Africa. I shall revert to this when I corne to deal with the
evidence of Professor Rautenbach.
i\ir. President, I shall first deal with the evidence of Dr. Eiselen and
Dr. Van Zyl. Their evidence can, to a large extcnt, be considered together.
Thereafter, I shall deal with the evidence of Professor van den Haag,
and finallv, with that of Professor Rautenbach.
I now p·roceedto deal with the evidence of Dr. Eiselcn and Dr. Van ZyL
Dr. Eiselen's evi<lence,which deals specifically with education is recorded
in the verbatim report, X, at pages 114-122, and then there are two
short passages on pages 125 and 129. Dr. Van Zyl's cvidence is recorded
in XI, from page 252 onwards, up to page 325. As I have said, i\Ir. Presi
dent, I shall as far as possible deal with their evidence at the same
time. I shall first referto their expertise, then I shalJ deal with their
cvidencc on the advantages of the present system of scparate cducation,
then with their opinions as to what the results would be if it were at
tempted to introduce a system of joint schooling in the territory, and
finally, I shall refer to their cross-examination.
I turn now to Dr. Eiselen'ta;expertise. This matter has alrcady been
referred to in general terms, and I am not going to repeat all that has
been said. I refer the Court to page 201, supra. Dr. Eiselen is, in our
submission, eminently qualified to speak as an expert on the subject of
education. As he told the Court, his special fields of study in working
for his l\LA.and Ph.D. Degrees wcre African life and languages. linguistics
and social and physical anthropology. Professer Eiselen has an intimate
knowledge of the life and culture of the Bantu people, and at the Uni
versity of Stellenbosch, South Africa, he established a Department of
African Life and Studies. This appears in X, at page 89. He was a
professor at the University of Stcllenbosch, but so great was his interest
in the education of the Bantu people that he left his Chair to become
an Inspector of Native Education in the Transvaal, which is a province
of the Republic of South Africa. He did so, he told the Court, particularly
because he thought that Native cducation was in need of specialization,
and becausc he thought that he could rnake a useful contribution in ADDRESS BY MR. RABIE 271
that regard. This appears at X, page 90, of the record to which I have
just referred.
Dr. Eiselen's reputation as an educationist was also recognized beyond
the borders of South Africa when he was, in 1945, invited by the British
Govemment to be a member of a three-man education commission for
Basutoland. This also appears in the same record, X, at page 92. In
1949 he was Chairman of the Native Education Commission in South
Africa, a commission which was appointcd to investigate the Native
education system then in existence in South Africa and to make recom
mendations to make such education more effective. This commission is
often referredto in the pleadings; I may, just by way of examplc, refer
the Court to our Counter-Memorial, III, at pages 357, 364 and 369, and
to the Rejoinder, VI, at pages 38, 39, 42, 46, 47, 50, 93 and rrr.
To revert to Dr. Eiselen, he has on several occasions visitcd South
West Africa and the various population groups living there. As the Court
will know, Dr. Eiselen was not cross-examined. Objection was taken to
his evidence on the ground that it was irrelevant, but there was never
any suggestion on the part of Applicants that he did not have an expert
knowledge of the matters on which he testified and expressed opinions.
~ow, as to the expertise of Dr. Van Zyl: in this regard I should like
to draw the Court's attention to the following points.
Dr. Van Zyl holds a B.A. Degree in Bantu Languages and Anthro
pology, an M.A. Degree in Anthropology and also a Ph.D. Degree in
the same subject. This appears in XI, at page 252. Dr. Van Zyl speaks
several Bantu languages. His whole life and work, he told the Court,
have in one way or another been linked with education, and primarily
Bantu education. Thus he has taught at a Native teacher training
institution; he has been a principal of a Bantu high school; and he has
been an Inspector of Bantu Education. Since 1957, he told the Court,
he has been at the hcad office of the South African Department of Bantu
Education in Pretoria, and at present he is the Deputy Secretary of that
Department; this appears at the same page of the same record. Dr. Van
Zyl is Chairman of the Ccimmittee for Bantu Languages of the Joint
)latriculation Board, and moderator of matriculation examination papers
in three Bantu Ianguages of South Africa; this appears at page 254 of the
record I have citecl. On the same page the witness tokl the Court what
the Joint Matriculation Board was. He told the Court that it was a body
which exercised control over the standards at the matriculation level
in the Republic, which is the highest school standard we know. A mod
erator, he also toldthe Court, was the man who saw to it that a proper
and uniform standard was maintained at the matriculation level.
Dr. Van Zyl has also written A Practical Guide for Bantu Teachers;
he has written also in two Bantu languages a series of graded language
manuals for use in both primary and secondary schools; and he has
written also several Afrikaans readers for use in Bantu schools; this
appears at XI, pages 254 and 255. These are only some illustrations of
Dr. Van Zyl's interest in the education of the Bantu people.
In 1958 he was Chairman of the education commission which inquired
into Native and Coloured education in South West Africa; this appears
at XI, page 265. This commission is frequently mentioned in the plead
ings; it first appears in the Memorials, 1, at page 152, then frequently
in the Counter-Memorial and in Rcspondent's Rejoinder. As a mtmber
and Chairman of that commission Dr. Van Zyl made a study of the272 SOUTH WEST AFRICA
different population groups in South West Africa, and he spent somc
months in the country; and during that time he also consulted with
representatives of ail sections of the Native population. For the last
two statcments I refer to XI, pages 253 and 266.
Dr. Van Zyl was cross-examined, but no attempt was made to challenge
his expert knowledge of the types of education on which he was called
to testify. Those were primary and secondary education, and technical
and vocational training. Furthermore, no attempt was made to challenge
his knowledge of the different population groups in South West Africa,
and Applicants in no way challenged his competence to express the
opinions which he did on what the results would be if attempts were
made to have an integrated school system in South West Africa.
Mr. President, I now turn to the evidence of Dr. Eiselen and Dr. Van
Zyl on the advantages of the present system of education. The evidence
of Dr. Van Zyl and Dr. Eiselen on this issue was briefly to the effect
that, firstly, the present system of separate education had decided
advantages for the Bantu or N'ative groups, and secondly, that any
attempt to introduce a system of joint education would have harmful
results.As far as particulars are concerned I shall refer mainly to the
evidence of Dr. Van Zyl. Dr. Eiselen's evidence on education was, as
the Court will remember, not as full as that of Dr. Van Zvl, and I shall
accordingly refer to Dr. Eiselen's evidence as confirmatory of that of
Dr. Van Zvl.
The adv.antages of the present system, as dealt with by Dr. Van Zyl,
may be summarized as follows. Firstly, the system allows for and con~
tributes to the building up of an educational organization which the
Native people can call their own. An important feature in this connection,
as testified to by him, is the institution of conununity schools, which
were introcluced in South West Africa upon recommendations made by
the 1958 Comrrùssion which I have mentioned, and of which Dr. Van Zyl
was the Chairman.
These schools, he told the Court, give Native parent communities
the opportunity to play an active part in the education of their children.
They are managed by Native school committees and school boards.
This appears in the verbatim record at XI, page 259. In this connection,
Dr. Van Zyl told the Court that in South Africa, at the present time,
about 50,000 Bantu parents were serving on such committees and boards.
In the Counter-Memorial, III, at page 371, he set out what developments
there have been in this regard in South West Africa. \Ve say there
that the scheme started to operate in the northern territories of South
West Africa in 1961 and that such committees and boards have also
been instituted there.
Secondly, to continue with my summary of Dr. Van Zyl's evidence,
in South Africa, he told the Court, this scheme has led to increased
interest in eclucationon the part of Native parents. More so than previ
ously, Dr. Van Zyl said, parents now encourage, or even compel, their
children to go to school and to remain there for longer periods than
previously. This appears at XI, pages 259-260, and at page 323.
ln South Africa, Dr. Van Zyl said, the scheme has resulted in a
phenomenal increase in enrolments during the past ten years, and also in
a great increase in the number of schools. This appears at XI, page
260. In this connection, Dr. Van Zyl said that the number of pupils
in South Africa had doubled during the period 1953 to 1963, and that ADDRESS BY MR. RABIE 273
the annual growth rate was 100,000 pupils. Of al! children in the age
group 7-14, about 80 pcr cent. were at school, and in 1964 the enrolment
figure was nearing the 2 million mark. The number of schools, he said,
had, during that same ten-year period, grown by about 3,000. The
witness expressed the belief that the system of community schools
would have similar beneficial results in South West Africa, and that
it would result in children staying at school longer than previously.
This appears at XI, page 307. In this regard, Mr. President, I should
also refer you to the evidence of Dr. Eiselen, X, pages n7-n8.
Thirdly, to continue with Dr. Van Zyl's evidence, the system, he
said, creates extensive opportunities for employment of Natives as
teachers and in telated posts. This appears at XI, pages 260-261. Dr.
Van Zyl pointed out in this regard that in South Africa the number
of teachers had grown from about 21,000 in 1953 to about 32,000 in
1964, and that the more or less 500 White teachers who were still em
ployed in Bantu schools, chiefly in secondary school posts, comprised
only r.2 per cent. of the total teaching staff. He also pointed out that
there wcre, at present, 55 Bantu inspectors, and 170 assistant Bantu
inspectors. In an integrated system, he said, progress by the Natives
would be hampered by competition from members of the more experi
enced and more advanced groups. This appears at the same pages of the
same verbatim record.
Fourthly, Mr. President, separate schools, the witness said, and Tquote
from his evidence from page z6r of the same verbatim record:
"... stimula te the development of the Bantu languages concerned,
and the production of school books in these languages. They also
provide the stimulus in other respects of culture, such as literature,
folk-songs, etc."
Fifthly, the witness said, also at page 261:
"... the separate school system makes it possible to adapt cduca
tional facilities to the background, nced, and circumstances of a
particular group".
In this connection, l\fr. President, the witness referred to three factors.
First, he said, the system makes it possible to apply or to give effect
in practice to certain educational principles, such as the use of a child's
home language or mother-tongue as medium of instruction, the produc
tion of specialized class books, the application of the principle of pro
ceeding from what is known to a child to that \Yhich is unknown, the
preservation of particular cultural institutions, and the adaptation of
syllabuscs to suit particular nceds.
The second factor mentioned by the witncss in this regard was that
technical and vocational training could be offered to meet particular
needs, and the third factor was concerned with the provision of teachers
and facilities, and expenditure connected therewith. This also appears
at XI, page 26L
Mr. President, I should like to deal specially with one of the advantages
mentioned by Dr. Van Zyl, and that is the use of a child's home language
as medium of instruction. I do that because of the importance of that
language from an educational point of view, and, secondly, because a
good deal of Dr. Van Zyl's cross-examination was directed to this issue.
I shall referto this cross-examination a little Iater, but at this point
I wish to say that there was very little cross-cxamination on any of the274 SOUTH WEST AFRIÇA
othcr advantages dealt with by Dr. Van Zyl, and that on some of them
there was no cross-examination at all.
Now, Dr. Van Zyl described mother-tongue instruction as of vital
importance. This is at XI, page 261. Dr. Eiselen, at X, page n8. dcscribed
mother-tongue education as basic. Dr. Van Zyl, in dealing with the
advantages of mother-tongue instruction, rcferred firstly to his own
expcrience in Bantu schools in South Africa, as teacher, principal and
inspector of Bantu schools, and he stated that this had convinced him
that mother-tongue instruction was the best method of teaching, espe
cially in the primary school. This appears at XI, pages 261-262.
He pointed out, furthermore, that it was a generally accepted educa
tional principlc that the mother tangue was the best medium of teaching,
and that he knew of no educationist of standing who denied that prin
ciple. That also appears at page 261 of that record.
He referred in this regard to the views of Unesco experts which sup
ported him, and also to a recent view exprcssed by an African professor
at the University of Ghana. This appears at the samc page, and, ::i.Ir.Presi
dent, in this regard I should also Iike to refcr the Court to quotations
which appear, firstly, in our Counter-Memorial, in III, at page 377, and
in the Rejoinder, VI,at pages 84 and 85. And then also to page 165 of the
Rejoinder, Vl-to a passage which occurs in footnote No. 2 on that page.
Dr. Van Zyl stated that experience in South Africa was that the use of
the vernacular was of the utmost importance in bridging the gap between
the home and the school, and that it led to parents displaying a greater
interest in the education of their children. He said also that the use of the
mother tangue was the best way to ensure that pupils understood what
was being taught them, and that it promoted original thinking.
South African cxperience, Dr. Van Zyl also said, was that pupils who
are taught through the medium of their own language perform better
at school than pupils who are taught through a foreign medium, and he
referred to experiments carried out by Unesco experts in the Philippines
which confirmed South Africa's experience.
Mr. President, I should like to quote in this regard a passage from
Dr. Van Zyl's evidence which occurs, at XI, page 262. Dr. Van Zyl said:
"These experiments also showed, and it has also been our expe
rience in South Africa, that vernacular-medium pupils are emotion
ally more stable and develop more confidence than others, and,
furthermore, that they show a greater ability to organize and to
express their thoughts. that their social education is better, and
that they attend school more regularly."
Finally, Dr. Van Zyl stated that the mother-tongue medium had the
added advantage that it stimulated the development of the language,
literature and culture of the population group concerned. Language, he
said. adopting the words of the Ghanaian professor previously referred
to, was the foundation of society and the root of culture, and e\·ery
society should preserve its Ianguage if it did not want its foundations to
be destroyed. This appears at XI, page 262.
Dr. Eiselen gave evidence on mother-tongue instruction and on the
advantages thereof, which confirms that of Dr. Van Zyl. His evidence,
as I have said, was not challenged in any way, and it is recorded, on
pages II8-n9, X.
Now, Mr. President, before I procced to deal with the opinions ex- ADDRESS BY MR. RABIE 275
pressed by Dr. Van Zyl and Dr. Eisclen on what the results wouJd be jf
an attempt wcre made to introducc a system of joint schooling in South
West Africa. I should like to refer the Court to some relevant material
which is containcd in our pleadings. and which concerns the wishes of
the different population groups in the Terri tory in regard to the question
of mixecl schooling.
In the Counter-Memorial, Book VII, III, Respondent stated that the
system of separate education in South West Africa was in accordance
with the wishes of the vast majority of the people, and, furthermore,
that an attempt to introduce a system of joint schooling would lead to
dissatisfaction and group friction, which v.-ould result in the neglect of
the nccds of all the groups and in irreparable harm to the Territory as a
who]e. Jir. President. I refor to paragraph 62, which appears on page 382,
III, of the Counter-MemoriaL
In their Reply, the Applicants did not dispute the truth of these state
ments. They said that they accepted those assertions but that they
regarded them as an "indictment of the passivity and negligence of
Resyondent's cor.iduct of the Mandate" (Iv_,p. 388). . , .
:Now.Jlr. President, Respondent dealt w1th the Apphcants allegat10n
concerning passivity and ncgligence in its Rejoinder, VI, at pages 124 to
128, and no more need be said about it now. What is important in the
present context is the Applicants not disputing the truth of the following
statements in the Counter-Memorial, as quoted by the Applicants them
selves at pages 388 and 389, IV, of their Reply.
Firstly, the Applicants quote, on page 388, IV, of the Reply, the fol
lowing statement from the Counter-Memorial, III, page 367, which refers
to the time when Respondent assumed the :Mandate. The passage reads
as follows:
"The introduction of a mixed school system would have run
directly counter to the prevailing social orcler, and would, for that
Ycry reason, have failed."
Then, :Vir.President, there is also the following statement, which is
quoted on page 389, IV, of the Reply, and which is found on page 368,
III. of the Counter-Memorial. It refers to the wishes of the differcnt
indigenous groups and reads as follows:
"The attitude of the respective groups is, as far as possible,
respected by providing separatc facilities for them."
Then, Mr. President, there is also the following statement which forms,
in the (ounter-l\1emorial, III, at page 376, part of a paragraph in which
Respondent statcs why it retains the present system of separate educa
tion in the Territory. It reads like this:
"The policy of separatc education as applied in the past is also in
accordance with the wishes of the vast majority of the population
of the Territory."
And finally, there is also this statement, which also forms part of a
paragraph in which Respondcnt statcs why it rctains the present system
of separate schooling. It appears on page 389, IV, of the Reply, and on
page 513, III, of the Counter-Memorial. It reads, in somewhat adapted
form:
"[T]he system of separate schooling [is] in accordance with the
wishes of the vast majority of the population of the Territory ... " 276 SOUTH WEST AFRICA
Mr. President, before the adjournment I quoted certain passages to the
Court. The point I wish to make in that connection is that it stands
undisputed on the pleadings that the system of separate schooling is in
accordance with the wishes of the vast majority of the people.
This takes me now to the opinions expressed by Dr. Van Zyl and
Dr. Eisden as to what the resuJts wou1d be if attempts were made to
introduce an integrated or joint system of schooling. At the end of his
examination-in-chief Dr. Van Zyl was asked the following question; it
appears at XI, page 267= "[\N]hat, in your opinion, would be the results
ifan attempt wcre made to institute a system of joint schooling in the
Territory of South West Africa?" Because of its importance with regard
to the issue with which we are here now concerned, Mr. President, I shall
firstquote only the first part of Dr. Van Zyl's reply, at XI, pages 267-268:
"Mr. President, I do not think that thcre is any hope of success.
The differences among the population groups in background, lan
guage, tradition and culture are so big that the people do not mix
socially, with the result that integrated schools are almost incon
ceivable. From what Iknow of the people, there cannot be peaceful
integration in the field of education and any attempt to enforce
integration will cause the collapse of the educational services.
Further, integration will bring friction and enmity among the pupils.
In other countries with heterogeneous populations, attempts at
integration have brought about serious clashes between the racial
groups and jn some fostances have even 1ed to violence and this,
Mr. President, is, in my opinion, exactly what will happen in South
West Africa."
Applicants, Mr. President, in no way questioned or challenged this
view. They did not even cross-examine Dr. Van Zyl on it.
Dr. Van Zyl also said the following in this connection (this also appears
at p. 268}:
''As far as I know, nobody in South West Africa has ever requested
or propagated integrated schools and I make bold to say that every
body realizes that such a policy would be impossible."
This statement also was not questioned in any way by the Applicants.
ln the circumstances, Mr. President, in our submission, therc can be
no reason why Dr. Van Zyl's opinion should not be unreservedly accepted
by the Court. And, according to that opinion, it is obvious the Respon
dent's duty to promote the education of the inhabitants of the Territory
.would be made impossible by the application of the norm or standards
for which the Applicants contend.
Dr. Van Zyl, having expressed the view to which I have just referred,
went on to say what, in bis opinion, the position would be from an educa
tional point of view if one supposed that a system of joint schooling
could be introduced in the Territory. He said-and this also appears at
XI, page 268:
"From an educational point of view, a system of joint education
would, if it could be introduced, mean the end of some of the advan
tages I have previously mentioned. It would be impossible to apply
sound educational principles which can be applied under the present
circumstances. So, for instance, instruction through medium of the
mother tongue would be out of the question for at least one group ADDRESS BY MR. RABIE 277
and it would be impossible to do full justice to the traditions and
culture of aU the groups. If the official languages, English and
Afrikaans, were to be the sole media the Bantu groups will suffer as
a result."
In this regard, i\Ir. President, I should also like to refer briefly to the
evidence of Dr. Eiselen. His OJ)Înion,which was of course not challenged
in any way, was that to do away with diffcrentiation in the schooling of
children in South West Africa would lead to "enormous diffi.culties".
That appears at X, page 121. Dr. Eiselen said (this also appears at p.121)
that a system of joint education would be unfair and unrealistic and that
it would do violence to sound educational principles. He referred, in this
regard, to the use of the child's home language as medium of instruction
and also pointed out that it would be diffi.cult to decide "whose back
ground was to be taken as a starting point for educational development".
(Ibid.)
We respectfully submit, Mr. President, that the evidence of Dr. Van
Zyl and Dr. Eiselen will have convinced the Court that the present system
has substantial advantages for the Native people of South West Africa,
and, conversely, that a system of joint schooling would mean the Ioss of
such advantages, This result, in our submission, is also unavoidable
unless one assumes that in a system of joint schooling the Coloured and
White children-Afrikaans and English-speaking-must be taught
through the medium of a Bantu language, and that a culture other than
their own be made the basis of their educational development. But this,
Mr. President, is something which the Applicants have never suggested.
Their approach seems to be that it is the children of the Native groups
who must forego the advantages of mother-tongue instruction and of
having their own culture serve as the basis for educational development.
I now turn to the cross-examination of Dr. Van Zyl. As I have stated
before, there was little cross-examination on what Dr. Van Zyl described
as the advantages of the present system and on somc aspects there was
no cross-examination at all. Indeed, it seems tous that the cross-examina
tion was not intended to cast doubt on what Dr. Van Zyl had testified
in his examination-in-chief, but to serve some other purpose, not directly
relevant to the witncss's evidence, and not directly relevant to the issue
of the applicability of the Applicants' norm or standards.
In the circumstances, I shall not deal with the cross-examination in
detail. I shall merely indicate, in a general way, the different topics that
were dealt with in cross-examination and then deal somewhat more fullv
with the cross-examination in regard to two matters, and they are
mother-tongue instruction and compulsory education.
First there was a whole series of questions about the relationship
between the South West Afriea Administration and the South African
Govemment and about the organization and internai workings of the
South West Africa Education Dcpartment. I refer the Court in this regard
to XI, at pages 268 to 279, and, in the same volume, pages 298 and 314.
Many questions seemed to be directed to showing that the real objective
of Rcspondent's educational policy was, and I quotc the question putto
the witncss: "... to prepare and educate the Bantu for life and work
in ... Black areas?" This appears at XI, page 301. And furthermore they
were directed to showing that in the courses prescribed for Native school
children insuffi.cientattention was given to the needs of those living in
urban areas. In this regard I should like to refer the Court to the following SOUTH WEST AFRICA
pages in the record, XI, pages 280-282, 283-284, 293, 296-300 and page
301, and then page 316. Those are answers given to questions by a
i\lember of the Court.
Perhaps I may quote in this regard one answer given by Dr. Van Zyl
in reply to one of the questions put to him in this connection, and the
passage occurs at XI, page 300:
"... For ail practical purposes, the Bantu in South West Africa can
get exactly the same education as Whites, with necessary modifica
tions along the lines we have discusscd this morning".
May I say that those modifications related to questions of method and
approach. I continue the quotation:
"As I pointed out in my main evidence yesterday also, the general
education given to Bantu pupils and White pupils culminates in the
same standards, the same examination requirements, at the end of
the full school career when they ail have to write the same matricula
tion examination."
Next therc was a series of questions concerning vocational and teacher
training. It was suggested to the witness that a Jack of economic oppor
tunities accounted for the low enrolment in the industrial courses at the
Augustineum and also that low salaries discouraged students from em
barking on teacher training courses. The reference to the Augustineum
is at XI, pages 302-303, and the reference to teacher training is at page
3rr. Both the suggestions were denied and, we submit, convincingly
refuted by the w:itness.
ln this regard I should also like to refer the Court in passing to the
problem of teacher shortages, which was referred to by the Applicants,
in Africa, as dealt with by us in our pleadings. \Ve submit that it is a
problem which exists every,..vhere in Africa. I refer the Court to the
Counter-Memorial, III, pages 421-424, and there is also a relevant passage
on page 405. ·
Our submission is then, l\lr. President, that the cross-examination of
Dr. Van Zyl on the topics which I have mentioned detracts nothing from
his cvidence regarding the advantages of the present system.
I now turn to the cross-examination of Dr. Van Zyl on the issue of
mother-tongue instruction. I point out, first of ail, and stress the fact,
that although Dr. Van Zyl was cross-examined on certain aspects con
nected with mother-tonguc instruction, his evidence in regard to the
particular advantages described by him was not challenged or called
into question in any way. \Ve submit that this is an important matter
for, as Dr. Van Zyl said in his evidence, in a system of joint education it
would be impossible to apply sound educational principles which can be
applied under the present circumstances. So, for instance, he said "in
struction through medium of the mother tongue would be out of the
question for at least one group". This passage occurs in a quotation I have
already quoted to the Court.
Itis clear, in our submission, that non-differentiation in regard to the
question of medium of instruction v.rould deprive Native children of
important advantages, that is, if Afrikaans or English should be made
the medium for ail. Now, cross-examination of Dr. Van Zyl on the ques
tion of mother-tongue instruction was a!ong the following lines, and I
shall mention four points.
First,the witness was asked his opinion about giving priority to the ADDRESS BY MR. RABlE 279
vernacular as medium of instruction also in urban areas whcre Natives
are employed, and I use the Applicants' phrase, in "the modern sector of
the economy". This appears at XI, page 282. ·
Mr. President, the suggestion seemed to be that it was more important
for a Native child to be taught through the medium of-and again I
quote phrases used by the Applicants-"the Janguage of the economy in
which he works" or "the language ... spokcn by the persans for whom
he works", or "the language of the comrnunity in which he works and
is destined to work". These phrases, l\1rPresident, occur at XI, pages 282
and 283.
And then I also refer to XI, page 295, where it was suggested that the
medium of instruction should be determined by "economic or social
consequences''.
l\frPresident, Dr. Van Zyl's replies were to the effect that, from an
educational point of view, the mother tangue was the best medium of
instruction, no matter where a child lived; that a future employer's lan
guage was not important to a child whilc at school, particulady not while
he was in primary school; and, also, that the fact that Natives were
employed by White persans did not mean that such Native employees
adopted the language of their employers as their own. And then, Mr. Pre
sident, I should like to pointout also that the witness made it clear that
a Native child in South West Africa begins to study Afrikaans and
English as subjccts from as early as his second year at school{XI, p. 294);
he studies them as subjects in the same way as an Afrikaans-speaking
boy takes English as a subject, and vice versa. As far as the last statement
is concemed, I rcfer the Court to XI, at page 294.
Also in regard to Dr. Van Zyl's replies, mentioned by me a little
earlier, I refer toXI, at pages 282 and 283.
l\1rPresident, as to the second 1ine of crnss-examination, questions
were putto Dr. Van Zyl in regard to practical diffi.culties encountered in
using the vemacular as medium in those areas where ail the children did
not have the Sf.1.mmeother tangue. ln this regard, I refer to pages 285-287,
XI.
In our submission, Mr. President, it was in no way shown that the
system of home-language instruction is impracticable, and we submit
that such practical diffi.culties as there are can best be left to local offi
ciaisto salve.
It almost seems, Mr. President, as if the Applicants arc suggesting
that, even if only a small percentagc of Native children cannot be given
the benefit of mother-tongue instruction, ail children should be deprived
of that benefit and be taught through the medium of Afrikaans or
English. This is an approach which Respondent rejects, as will appear
from what we say in the Rejoinder, VI, at page roo.
Mr. President, in regard to the question of practical difficulties and
ways of solving them, not only in South West Africa but also elsewhere,
we should like to refer the Court to what is stated in the Respondent's
Counter-Memorial, Ill, at pages 362 and 363, and at page 4r5, also the
Rejoinder, VI, at pages 99 to ror.
Now, thirdly, Mr. President (that is, the next line of cross-examina
tion),the witness was asked as to the fitnes of the Bantu languages for
describing or dealing with economic and political phcnomena. This
appears at page 287, XI, of the verbatim record.
Dr. Van Zyl pointed out that, at the present time~and this appears SOUTH WEST AFRICA
at pages 287 and 288 of the record which I have mentioned-the vernac
ular was used as medium only during the first four, or in the northern
territories five, years at·school,and that politics and economics formed
no part of primary school study. He stated, furthermore, that his ex
perience in South Africa was that about 90 percent. of the terms needed
for school use already existed in the Bantu languages, and that the other
ro per cent. could be successfully coined. He also said, ofr. President,
at XI, page 321, that such words had been successfully coined in South
Africa up to the standard VI lcvel, which is the last year of the primary
school course. So that there are, in South Africa, Bantu terms which can
be used in, for example, arithmetic problems of the kind referred to by
an honourable Member of the Court.
Mr. President, in this regard I should also like to referthe Court to a
passage which we quote in the Rejoinder, VI, at page 86, a passage which
appears in a Unesco publication, and where Unesco experts are quoted
as saying-"there is nothing in the structure of any language which
precludes it from becoming a vehicle of modern civilization". And then,
Mr. President, may I also refer the honourable Court to a short passage
in a document, which was referred to in evidence a little while ago by
Professor Possony: it is the Seminar on the Mufti-National Society-!
believe that is before the Court. It is United Nations document ST/TAO/
HR/23. The seminar was held as recently as June of this year, and it
appears that the people who took part in that seminar discussed, inter
alia, "[m}easures which should betaken to ensure the realization, by ethnie,
religious, linguisticor national groups, of the special rights necessary to
enable them to preserve their traditions, characteristics or national con
sciousness"-th1s appears on page 13 of the report. In the course of the
debates on that problem, it was said, amongst other things-this appears
at page 14, paragraph 49:
"It was not considered desirable to impose the use of an alien
language on an isolated and culturally Jess developed group; a more
equitable solution would be to develop the language of the less
advanced groups so that it could help the groups to adjust to modern
life."
And then, 1Ir. President, there is this further sentence, on page 16,
which deals with the difficultyof language problems in various countries:
"Several participants indicated that commissions or institutes of
vernacular languages had been established to give further considera
tion to various aspects of the problem."
This indicates, Mr. President, the interest in preserving and develop·
ing vernaculars.
As to the fourth Une of cross.examination, I indicate that Dr. Van
Zyl was asked whether a Native pupil would be allowed to take his les
sons through the medium of English or Afrikaans when he felt that he
would like to do sa. The answer was "No", just as in the case of a \Vhite
child. who wanted ta be taught through the medium of a language not
his o,vn, the reply would be no. This appears at XI, pages 293-294.
And then, M.r.President, as l have already said to the Court, Dr. Van
Zyl explained that a Native child in South West Africa begins to study
Afrikaans and English from his second year at school.
Our submission then, in regard to the cross-examination on the ques- ADDRESS BY MR. RABIE 281
tion of mother-tongue instruction, is that it leaves Dr. Van Zyl's evi
dence about its advantages comp1eteJy untouched.
Now, Mr. President, I turn to Dr. Van Zyl's cross-examination on
the question of compulsory cducation.
I refer the Court, first of ail, to certain passages in the record regard
ing the fall-off between standards and the number of pupils attending
school-that is at XI, pages 288-292 and 300-301. And as to compulsory
education more particularly, I refer the Court to XI, at pages 292-293,
and pages 307-3rr.
Now, first of ail, as to the facts, Mr. President, it is common cause that
there is compulsory education for the White children in South West
Africa and not for the Native children. In the case of Coloured children,
the position is this (and this appears from the Counter-Memorial, Ill,
at p. 392), the Administrator bas the right, under the Education Ordi
nance of 1962, to introduce, on the recommendation of the Education
Department, compulsory education at any Govemment school for Col
oured children.
1t is pointed out also, Mr. President, on page 391, III,of the Counter
Memorial, that more than 80 per cent. of the Coloured children of the
Territory attend school.
In the case of Native children, according to Dr. Van Zyl's testimony,
there is in some areas a scheme of what may perhaps be called com
pulsory education on a voluntary basis, that is, it is not enforced by law.
Dr. Van Zyl said, and I quotc from XI, page 308:
"lt is nota system of compulsory education in the ordinary sense
of the word ... the administration has made it possible for school
boards in a particular centre to introduce compulsory education
within its area, but it is not enforced through legislation."
Those, briefly, .l\fPresident, are the facts.
As to the nature of Dr. Van Zyl's cross-examination, he was asked
in cross-examination why there was no compulsory education for Native
children in the Territory. His reply was this, and I quote from XI, page
292:
". . . I think mainly because the Bantu communities have not
reached that stage of development where it would be feasible to
make education cornpulsory. \Ve should not Jose sight of the fact
that the introduction of compulsory education in any country or
in any community implies legislation by which the parents are com
pelled by law to send their children to school and should they fail
to do so, they are liable to be prosecuted ... we have consulted the
Bantu communities in South West Africa as well as in the Republic
of South Africa, whether they would like such legislation by which
they would be compelled to send their children to school every day
and consistently up to a particular age or up to a particular stan
dard. All the communitics and leaders whom we have consulted
on this matter have indicated that they are not ready for such a
thing."
Dr. Van Zyl also said, in reply to a similar question, which appears
at XI, page 308:
"... I do not think that it would be feasible for the simple reason
that the administration will not have the co-operation of the Bantu
people. They have not reached that stage where you can cxpect282 SOUTH VŒST AFRICA
of them to accepta drastic system Iike that. At the present moment,
they still need their children for domestic purposes; they need them
sometimes to look after the cattle or to help in the home, to look
after the children and so on and they will not be satisfied with a
scheme whereby they would be punished by law should they not
observe the requirements of the law."
Mr. President, in the course of the cross-examination it appeared that
the Odendaal Commission also thought that the Native population
generally was not yet ready for compulsory education. This appears
from paragraph 1097 of the Commission's report, and from XI, pages
309 and 3n of the verbatim record.
In the Counter-Memorial, III, at page 392, refcrence is made also to
the views of the missionaries in the northern territories of South West
Africa with regard to compulsory education, and it isshown there that they
believe that compulsory education cannot yet be introduced. The Oden
daal Commission heard similar evidence from the missions, as appears
from the paragraph of the report to which I have just referred-i.e., 1097.
Mr. President, in the course of Dr. Van Zyl's cross-examination on
this issue, Applicants' Agent was asked the following question by you,
Mr. President. which appears at XI, page 315:
"Do I understand that if there is no compulsory education im
posed upon the peoples, take for example of the north, irrespective
of the difficulty of policing it, irrespective of the question whether
it is acceptable to the people, irrespective of any other circumstances.
that it is inherentlv inconsistent with Article2 of the Mandate and
per se a breach of the Mandate?"
Mr. Gross's answer was this, which appears on the same page: "No,
Sir, that would not be the Applicants' contention." From this it is clear,
in our submission, Mr. President. that Applicants do not now say that
the absence of compulsory education in the case of Native children is
inherently inconsistent with Respondent's duties under the Mandate,
and per se a breach of the Mandate. One would have thought that to be
consistent with their case, Applicants' reply should have been to the
effect that the absence of compulsory education in the case of Native
children constituted a breach of the norm or standards, and for that
reason that is ipso facto also a breach of the Mandate, but that was not
the reply. The reply was this, and I quote from the same page. Mr. Gross
said:
"The Applicants' contention in respect of the difference, standard
or requirement of compulsory cducation on a strictly racial basis
would be that that standing alone, unsupported and unexplained,
would violate the duty to allot rights and burdens, privileges
and so forth on the basis of promotion of welfare and progress of
ail the inhabitants to the fullest practicablc extent, and that it
would seem to the Applicants that a system in which no compulsory
education in any part of the Territory, irrespective of its economic
development, is a practice or a policy, that this would be a factor
relevant for the Court's consideration in connection with the sig
nificance of the educational aspect of apartheid seen in relation to
all other aspects of the apartheid policy of which this forms a part."
Now, Mr. President, we do not pretend that we understand every- ADDRESS BY MR. RABIE
thing that is said in this passage, but one thing seems to be fairly clear,
and it is this: the reply contemplates that deviations from the norm or
standards can be explained, and that non-conformity therewith does not
by itself constitute a breach of the 1Iandate. This, in our submission,
is clearly inconsistent withthe Applicants' case as previously formulated
when it was said, and I refer to only one instance which appears at IX,
page 45:
"It is the Applicants' case, rightly or wrongly, that the rolicy
and practices complained of, as a matter of the internationa legal
norm, and the universally accepted standards upon which that legal
norm is based and which it reflects, that such a policy cannot
inherently promote the welfare of [the] ... inhabitants of the
Territory. Any contention to the contrary is an attack upon the
norm itself."
Mr. President, according to this passage, the Applicants' present conten
tion in regard to compulsory education would be nothing Jess than an
attack on their own norm or standards.
Itis significant in this regard to note that in the Reply the Applicants'
contention was that the absence of compulsory education in the case
of the Native population was the result of an alleged attitude of laissez
/aire on Respondent's part, an allegcd negligent failure to remove such
difficulties as stood in the way of a successful introduction of a system
of compulsory education. There was no question then of the absence of
compulsory education being a per se breach of the Mandate. I refer in
this regard to the Applicants' Rcply, IV, at pages 388, 389 and 390 to 393.
At that time, Mr. President, Applicants dcalt with the question of
compulsory education in a Chapter headed "Extent of Education in the
Terrîtory" (this appears at p. 386, IV,of the Reply), and they then said:
"Applicants now show that the extent of education in the Terri tory
is a violation by Respondent of its obligation to promote to the
utmost the well-being and progress of the inhabitants." (IV,pp. 386-
387.)
This shows, Mr. President, that Applicants were at that time in no sense
trying to make a case of a per se breach of the Mandate in respect of
compulsory education. They were trying to make out a quantitative
case, and this was part of their general charge of oppression. And Respon
dent accordingly regardcd and treated it also as being alternative to
their case on the norm.
In the Oral Proceedings in this Court, of course, it has been expressly
stated by Applicants that no quantitative case is being made, and that
reliance is placed solely on the norm or standards for which they contend.
The Court will recal!, if I may refer to only one passage, at IX, page
363, that on one occasion the Applicants' Agent expressly stated that
their case was not brought on the theorv that the Mandatory had built
too few schools or hospitals in the Territory. Now, this being so, the
Applicants must, in our submission, if they want to be consistent, contend
that the absence of compulsory education in the case of the Native
population is per se a breach of the Mandate, but now that they have
mdicated that they do not contend for such a per se breach on the issue
of compulsory education, they would appear to have fallen between two
stools.
Further, on this issue of compulsory education, we should likc to SOUTH WEST AFRICA
point out that we have shown in our pleadings that it would be wholly
unrealistic and artificial to regard the existence, or otherwise, of a
compulsory education Jaw as necessarily determinative of the question
whether progress has been made or can be made.
Mr. President, I propose to deal briefly with some of the relevant
facts in this regard,and shall in doing so refer, inter alia, to the position
in one of the Applicant States. 1 do this because this State's own ex
perience should, in our submission, also help to make it clear that a
compulsory eclucation law can only be successfully introduced when ail
relevant circumstances are favourable.
i\1r. President, in the Counter-1\lemorial, III, at page 405, we make
the following statement. We say:
"The difficulty of translating principle into practice is probably
nowhere more graphically illustrated than in the case of Liberia.
A law providing for compulsory education was passed as far back
as 1912, but it has never been possible to implement the provisions
of the Iaw."
That statement was not clenied.
In the Rejoinder, VI, at page 132, we show that this compulsory
education starts for ail children at the age of 6 and ends at r6. We quote,
for that statement, i\fr. President, a Unesco publication of 1958. The
quotation is at page 133, VI, of the Rejoinder. In the Counter-Mcmorial,
at III, page 445, we show, on the basis of official Liberian figures, that
about 22 per cent. of the school-age population of Liberia attended
school in 1961-1962. We make this calculation, i\Ir. President, on the
assumption that the school-age population constitutes 23 per cent. of
the total population. This is also the basis on which we make calculations
in regard to the school-age population of South West Africa. This appears
in the Counter-Memorial, at III, page 443. Now, at Ill, page 382 of the
Counter-Memorial, we quote from a book on Liberia called TheFirestone
Operations in Liberia, written by one Taylor and published in 1959.
From that it appears that the average age of children in the first grade
at school is 14 years. This is despite the fact that the education law
requires attendance from a pupil's sixth ycar. I shall quote the passage,
Mr. President, because it is also rcvcaling as to what have bcen considered
good grounds for providing separate schools for Liberian children, on
the one band, and American and European children, on the other hand.
The passage reads:
"Teaching of Amcrican and European children in the same schools
and classes as the Liberian children is impracticable, owing to the
Ianguage ~arrier and to the very large differenccs in the children's
ages, curncula, and cultural backgrounds. For example, the average
age in the first grade of the Liberian schools is 14, as compared
with 6 in the American and European school. For this reason alone,
the classes could not be integrated."
l\Ir. President, in addition to what I have just said about the position
in Liberia, I should like to refer the Court also to the position in regard
to compulsory education in Africa generally. Here, again, I do so merely
to draw the honourablc Court's attention to factors which should, in
our submission, always be borne in mind when the question of compulsory
education in Africa is discussed.
First, therc is this point. In 1961, we point out in the Countcr-Memo· ADDRESS BY MIL RABIE 285
rial, at III,page 446: "... for the African States as a whole, only r6
per cent. of the chiJdren of school age are [enrollcdJ in school." This
appears from a Unesco publication, which we cite at the page to which
I have referrcd the Court .
.Next, Mr. President, at pages 445-447 of our Counter-Memorial, III,
we give details of school attendance figures in various African countries.
I am not going to deal with them in any way, ;,\lr. President, but we
respectfully draw the Court's attention to what appears from those
pages.
Next, in the Rejoinder, V, at page r32, we refcr to a Unesco publka
tion of 1961 which says that at the end of the 1950s only g of some 40
African countries listed had a system of compuisory education pcrtain
ing to their indigenous inhabitants. As stated on the page refcrred to,
Mr. President, we did not attempt to establish what percentage of school
age children attended school in those nine countries. We looked at the
position in only two of them-one high up on the list, Chad, and one
which was referred to by the Applicants, Togo, and we showed on that
page, Mr. President, that in the case of one country, one of the two we
mentioned, the attendance rate was oniy about 5.6 percent., and in the
other case it was about 28.6 per cent., calculated on the same basis as
the South West Africa figures are calculated in the Counter-Memorial.
Then, Mr. President, we should iike to refer the Court aiso to the
Counter-Memorial, III, pages 396-406, where we give a general exposi
tion in regard to compulsory education in various African States. The
Court will observe that we set out, first, passages from two or three
works which deal generally with the difficulties which are encountered
in African and other States in extending education, and then we go over
to set out what the position is as reportcd in various official documents
in various countries. They are set out under the headings "Central
African Territories", "East African Terri tories" and "West African
Tcrritories" and then separate paragraphs are dcvoted to Tanganyika,
Ethiopia and Liberia.
Finally, Mr. President, before I turn to the question of school atten
dancc in South \\'est Africa, I should like to draw the Court's attention
to certain material contained in our Counter-.Memorial, which shows
what difficulties educational authorities have generally to contend with
in African countries. This. material is contained in the Counter-i\lemorial,
III, on the pages Ihave refcrred to-396-399, and also pages 421-424. It
shows, !\Ir. President, what factors have hitherto affectcd the develop
ment of education in South West Africa and also in other African countries..
As regards South West Africa, Mr. President, Ishould also like to refer
the Court to what is said on pages 407-42r, III, of the Counter-Memorial.
I am not going to go into any detail, Mr. President; I merely make the
submission that we show on these pages, first, that there are, in many
parts of Africa, even at the present time, parental attitudes which do
not conduce to any rapicl extension of education and, secondly, that
teacher shortages hamper development everywherc.
Now, coming to the position in South West Africa, particulars of
school attendance are givcn first in the Counter-i\femorial, III, at pages
444 and 445, and also on 447, and I aiso refer to the Rejoinder, VI, at
page r36, paragraph 2I on that page. From these pages, it appears, Mr.
President, that in rg6o the attendance percentage was 39.8, in 1961 it
was 44 and, in r964, it was estimated to be 52.286 SOUTH WEST AFR!CA
On the pages of the Counter-Memorial referred to, :i\fPresident, that
is pages 444 and 445, III, we also set out what progrcss has been made
in South West Africa since 195r. Between 1951 and 1960, as is shown on
page 444, there was an increase of 54 percent. in the number of children
enrolled. This was more than three tirnes the rate at which the total
population increased over the same period, which was 17-4 per cent.
In the Rejoinder, VI, at page 136, we show that in 1964 enrolments in
the Police Zone wcrc 6 percent. higher then in 1963, and in the northcm
areas no less than 15 per cent.
Mr. President, in the light of what has been said, we make the sub
mission that the only realistic and the only fair approach to adopt at
the prcsent time is to aim at the ideal of compulsory education but to
show, at the samc time, due appreciation of those practical difficulties
which e~ist in so many African countries in regard to their indigenous
populat10ns.
Mr. President, I now tum to the evidence of Professor van den Haag.
The Court will recall that Profcssor van den Haag's testimony has al
ready been discussed in relation to our general contention that the appli
cation of a norm or standards as contendcd for by the Applicants would,
in the circumstances of many countries, including South \Vcst Africa,
lead to results inconsistent with the promotion of the well-being and
progress of the peoples concemed. I refcr in this regard to the verbatim
record, at pages 188-191, supra, and 200, supra.
ln the course of his address, Mr. Muller dealt briefly with Professor
van den Haag's qualifications and his special fields of study and teach
ing. In addition, it was mentioned that Profcssor van den Haag was
engaged on a research project on the effects of segregated and integrated
schooling in the United States of America. This appears at pages 188-189,
supra.
'rhc Court's attention was also drawn to the fact that although the
Agent for the Applicants at one stage indicated that he would cross
examine Professor van den Haag as to his qualifications as an expert,
there was in fact no such cross-examination. This appears at page 188,
supra. .
In the course of his address Mr. Muller also stated that Professor
van den Haag had dealt specifically with the question of education,
but that his evidence would be referred to at a later stage of our argu
ment. I now propose to deal with Professor van den Haag's evidence.
Professor van den Haag was asked whether segregation or differen
tiation must necessarily lead to discrimination in the unfavourable sense,
and he replied as follows-this appears in X, page 160-
"... as I tried to indicate yesterday, I think, depending on the
intention of the user of these dcvices and on the wishes of those
concemed and on the circumstances, segregation must be regarded
like a knife, or any other instrument. as neutral; it can be used
for surgery, it can be used for murder; it can be used for beneficial
purposes, it can be used for malevolent ones".
And when Professer van den Haag was asked whether he believed
in the proposition that psychological damage inevitably resulted from
separation, or segregation, or differentiation, his answer was this-it
appears at the same page-
"I certainly believe that this condusion has in no way been ADDRESS BY MR. RABIE
proved and, on the face of it, I would say in many cases, though
by no means all, desegregation is probably far more harmful."
Mr. President, these conclusions were stated with reference to the
United States. Even there, in the United States, Professor van den Haag
said, there is no acceptable evidence that segregation perse causes
psychological injury. This appcars at X, page 158.
The United States Federal Court decision in the Brown case, Professor
van den Haag said, was·, in his opinion. highly questionable, even in
the American context. I refer in this regard to the evidence recorded
at X, pages 154 to 158.
Inthe Brown case, Professor van den Haag said, evidence was produced
by only one of the parties. This appears at page 427, X. According to
Professor van den Haag, the only experimentation on which this evidence
rested was of dubious scientificvalue~that was the so-called "Coloured
dolls preference test", of which he told the Court.
l\lr. President, in cross-examination, Professor van den Haag was asked
whether he agreed or disagreed with certain views which had been
expressed by others in the United States, and which appeared to be
to the effect that segregation was per seharmful. Professor van den
Haag said that hc did not agree with those views. I refer the Court in
this regard to the evidence recorded on pages 459 to 462, X.
l\lr. President, we submit that views so putto Professor van den Haag
and not agreed to by him are, of course, not evidence in this case, and
for that reason I do not propose to deal with them. We point out also
in this regard, that is in connection with the Brown case, that at an
earlier stage of the proceedings the learned Agent for the Applicants
stated that:
"The Applicants are aware, and do not suggest otherwise, that
decisions of domestic tribunats are peculiarly suited to, and reflect,
conditions and traditions particular to their own societies."
This appears at VIII, page rr9. And then I wish to quote the following
passage, which appears at VIII, page 120:
"... the Applicants do not suggest that the considerations which
motivated the decision in the Brown case govern these proceedings".
A statement to the same effect, Mr. President, appears at IX, page 308.
The Respondent deals with the differing conditions in the United
States and South West Africa. à propos the Brown case, in the Rejoinder,
VI, at pages 71 to 74- I am not going to deal with that in any way,
Mr. President; I merely refer the Court to the pages where we deal
with the position.
ln regard to education in South West Africa, I believe it has already
been mentioned in this Court that Professor van den Haag has not
Yisited the Territory, but assuming the correctness of what is said in
Book III of Respondent's Counter-Memorial, II, as to the different
population groups in the Territory, and accepting also the aims of
Respondent's education policv. as stated in Book VII of the Counter
:Memorial, III, Professor van den Haag stated that he would not in any
way expect that the mere fact of separate schooling in South \Vest
Africa must inevitably inflict psychological harm. Mr. President, I refer
in this connection to X, pages 161, 162 and, particularly, 163 and 164-
0n the contrary, Professor van den Haag said-and I quote from X,
page 164-288 SOUTH WEST AFRICA
I would in fact think that non-separation would be harmful
to both of the groups that are congregated; as long as the levels
of learning,the backgrounds, the customs, the morals are as different
as you describe them to be, an attempted homogenization would
certainly be harmful to both, as well as unsuccessful".
Professor van den Haag statcd that the position in South West Africa
was different from that in the United States, and he said, amongst
other things, and I quote from the same page:
"... in the United States there is certainlv a much better case
for de~egregation because, as I mentioned in my testimony ycsterday,
there 1sno separate cultural source for the Negroes who are really,
generally, participants in American culture".
May I in this regard, Mr. President, also refer to the evidence recorded
on X, pages 151-152.
Now, ail this means, in our submission, Mr. President, that solutions
which are proposed in the United States of America are not necessarily
appropriate and might, in fact, be quite inappropriate in a situation
such as obtains in South West Africa.
[Public hearing of 4 November I965}
Mr. President, yesterday I dealt with the evidence of Dr. Van Zyl,
Dr. Eiselen and Profcssor van den Haag, and I now turn to the evidence
of Professor Rautenbach, who testified on university education in South
Africa and, more particularly, university education for the Bantu.
The Court will recall that we explained in our pleadings that there
were no facilities in South West Africa itself for higher education, that
is, education at the universitv level.
Mr. President, in the Counter-Memorial, III, at page 474, it is stated,
amongst other things:
"The number of students who qualify for a university education
is not sufficientto warrant the establishment at this stage of any
institution for such education in the Territory."
Students of South West Africa-European. Coloured and Native-who
desire a university education, can proceed to institutions for higher
cducation in South Africa.
In the Counter-Memorial, III, at page 476, and a.gain at pages 485
and 486, we set out what .those institutions are: they are, firstly, institu
tions for European students; three university colleges for Native stu
dents; a similar institution for the Coloured people; and another one
for Indian students. In addition to those, there is a mcdical school for
non-European students at the University of Natal. Furthermore, Mr.
President, students of any of these groups can enrol at the University
of South Africa, as it is called, which is not a residential university,
but conducts its teaching by means of correspondence-this appears in
the Counter-Memorial, III, at page 476. And then, Mr. President, as
willalso have appeared from the evidence, and we point also in this regard
to the Counter-Memorial, III, page 476, Native students may also, subject
to certain conditions and with the consent of the Minister of Bantu
Education, enrol at the European or \Vhite universities in South Africa.
lt was furthcr explained in the Counter-Memorial that students from ADDRESS BY MR. RAB1E
South \Vest Africa-students of all groups-are given financial assistance,
in the way of loans or bursaries, to enable them to attend university
institutions in South Africa. In this regard, I refer the Court to the
Counter-}Iemorial, III, at page 477, and also to the Rejoinder, VI, at
page II8.
Now, l\fr.President, as the Court wili recall, Professor Rautenbach
gave evidence on the establishment in South Africa of separate univer
sities for the different population groups and, more particularly, the
Bantu groups, and the reasons therefor. Professor Rautenbach's expertise
is set out in the verbatim record at XI, pages 326 and 327, and also on
a few other pages, to which I shall refer. As will appear from what is
stated in that record, Mr. President, Professor Rautenbach has wide
experîence of university Jifc and administration in South Africa. He has
been associated with the University of Pretoria since 1923, when he
became a lecturer there; and he became the Principal and Vice-Chancellor
of that University in 1948. This appears on page 327, XI.
Professor Rautenbach was, for many years, also a member of the
Council of the University of Sonth Africa, to which I have referred,
and he is, at present, the Chairman of the Council of the University
College of the North, which is one of the three Hantu university colleges
which were established a fcw years aga, after the passing of the University
Act of 1959, which was frequently refcrred to in the course of his evidence.
This appears on the same page.
Professor Rautenbach, as will appear from his evidencc. also serves
on a numbcr of scientific and advisory bodies, such as the National
Advisory Education Council of South Africa, of which he is the Chairrnan,
and at one time he served, for a perîod of five years, as a rnernber of
the Executive Committee of the Association of Universities of the
British Commonwealth. This appears at pages 327-328 of the record to
which I have refcrred.
Mr. President, Professor Rautenbach supported the Respondent's con
tention that it would not be practicable, at this stage, to establish a
university institution in South West Africa. This appears at XI, page
329.
Then, Mr. President, I wish to point out that there was no suggestion
at all that Professor Rautenbach's experience of university administra
tion and his knowledge of South West Africa did not entitle him to
express this view. And his view was in no way challenged by the Appli
cants.
Now, with regard to university education in South Africa, Professor
Rautenbach expressed the opinion that the present system of having
separate university institutions for the different population groups held
decided advantages over the former-that is the pre-1959---system of
so-called open universitics.
In regard to university education for the Bantu in South Africa,
Professor Rautenbach drew a comparison between the position which
obtained up to 1959, and the position since then. ln 1959, as appears
from his evidence, three university colleges ,vere established especially
for the Bantu. Prior to 1959, the governing bodies of the so-called open
or White universities had the right to decide whether they would admit
Bantu students. This appears at XI, pages 329-330 and 445.
Now it appears frorn the evidence, l\fr. President, that sorne of these
so-called open universities did not admit Bantu students at all; others,290 SOUTH WEST AFRICA
again, did, but at the same time placed certain limitations on admissions.
This appears from XI, pages 330 and 331. At present, as I have stated,
Bantu students may still enrol at White universities, if givcn the neces
sary permission by the responsible i\linister. This appears at XI, page
329.
Now, in regard to the pre-1959 period, Professor Rautenbach drew
attention to the fo!lowing features, which I shall now briefly mention:
firstly, he pointcd out, those White universities which were prepared to
admit Bantu students Iimited the number of admissions. In the case of
one university, he told the Court, some faculties, again, were completely
closed to Bantu students. This appears at XI, page 331. And, J\Ir.
President, in this connection, I also refer to our Counter-Memorial,
III, page 482, where we refer to a speech by the l\Iinister of Bantu
Administration and Development, in which he said that certain White
universities allowed only a certain quota of non-White students.
Now, the second feature mentioned by Professor Rautenbach: the
Bantu students, he said, who were admitted to the White universities,
never led a full university lifc:they attended lectures with White
studcnts, but al! extra-curricular activities were separate-for example,
sport, social gatherings, and all university activities-nor did they ever
share university Jodgings with other students. Mr. President, this appears
at XI, pages 331 and 332, and also on pages 337-338. Now, in such
circumstances, and because of the small numbers of Bantu students at
the White universities, Profcssor Rautenbach said that the Bantu student
at a White university was a lonely individual. This appears at XI,
page 411.
The third feature mentioned by Professor Rautenbach: fees, he said,
at the White universities, were high, and this factor served to limit
Bantu admissions. This appears at XI, pages 332 and 336.
Fourthly, he said Bantu students attending White universities tended
to create a gap between themselves and their communities; they were
brought into a sphere which was foreign to their own people. This
appears at XI, page 332.
Now, Mr. President, I corne to the post-1959 period, as dealt with
by Professor Rautenbach ..The advantages of the present, that is, the
post-1959, system, as described by him. may be summarized as follows.
First, he said that universities have been established for the Bantu
people themselves. These institutions, he said, play. and will play, an
important role in the development of the various Bantu communities.
They are already, he said, receiving the support of these communities,
financially and othenvise, and enrolments are steadily increasing. The
establishment of these university colleges especially for the Ban tu,
Profcssor Rautenbach also pointed out, is in line with developments
elsewhere in Africa where it has been felt that university education
should be attuned to African society. This appears at XI, pages 339-343
of the verbatim record.
Mr. President, in this same connection, we should also like to refer
the Court to what is stated at pages 486-489, III, of the Counter-Memo
rial. There, are set out views which have been expressed in regard to
university education for the Bantu in Africa, and then, in this regard
also, we refer to pages 378-382 of the same volume of the Counter
Memorial where are set out trends in various States in Africa to "afri
canize" education for the African. ADDRESS BY MR. IUBIE
Now the second feature mentioned bv Professor Rautenbach: at the
Bantu universities at present, he said~ Bantu students lead a fuller
life than would be possible at a White university. They are now, he
said, in the same position as White students at White universities.
enjoying a full life,oth acadernically and in the extra-curricular sphere.
This appears at XI, page 337.
Thirdly, he pointed out, fees at these Bantu universities are appre
ciably lower than at the White universities. Particulars are given at
XI, page 336.
The fourth point mentionecl by him: teaching methods, he said. at
the Bantu institutions, can be properly adjusted to the background and
culture of the Bantu students and this takes place, he pointed out,
without any loss in standard of work, since Bantu students at these
institutions take the same examinations as White students at the Uni
versity ofSouth Africa. This is set out at XI, page 336.
Then the final point mentioned by him: the establishment of these
Bantu university colleges, he said, has created more opportunities for
Bantu intellectuals to be appointed to teaching posts on university
staffs. This appears at pages 335-336 of the same record.
Now, Mr. President, I corne to Professor Rautenbach's opinion as
to what the results would be if the prescnt svstem were to be done
away with. He said that to go back to the pre-1959 position "\Ve would
not only be back where we were in 1958, but we would be saddled with
a numbcr of new problems". This appears at page 344 of the same record.
Now, l do not intend to go into any detail. We have already referred
to the advantages of the prcsent system as described by Professor
Rautcnbach and it would obviously, in his view, mean a loss for the
Ban tu people if the present system were to be done away with. Mr. Presi
dent, he also expressed the view that it would have unfortunate results
for these Bantu colleges if the prcsent system were retained but students
were given an unrcstricted right to go to other universities. The loss
of students would be harmful, especiaUy at the post-graduate level, and
would make it difficult, at the same time, to retain the best staff. Ali
this, he said, would make it impossible to build up these institutions
to become the equal in every respect of university institutions elsewhere.
This appears at XI, pages 344 and 345.
In addition to what I have just said, Mr. President, I also draw the
Court's attention to a particular instance mentioned by Professor Rau
tenbach, where it has been essential to adopt differential measures in
the case of Bantu university students. This concerns the training of
Bantu medical studcnts at the University of Natal, to which I have
already referred, and where it has been found necessary to devote an
extra year to the course of Bantu studcnts in order to wipe out what
Professor Rautenbach termed a cultural lag, which was temporary, he
said, but nevertheless there at the present time.
Mr. President, in this connection, I refer to pages 330-332 of the same
record. XI.
To do away with this differentiation in the training of Bantu medical
students, Professor Rautenbach said, would obviously be to the detri
meut of such students. This appears at page 344 of the same record.
Mr. President, I now turn bnefly to the cross-examination of Professor
Rautenbach. First, Professor Rautenbach was cross-examined on a large
variety of subjects, but very littlc of that was directed to the advantages292 SOUTH WEST AFRICA
of the existing system in South Africa as testified to by him. He was
questioned widely on matters (I am not going to mention ail of them),
which did not relate to university education at all-for cxample, he
was asked many questions on the fonctions of the National Advisory
Corrunittce on Education in South Africa. He was questioncd on com
pulsory education for school-children in South Africa and also on such
education in South West Africa. I need not give the Court ail the refer
cnccs, but some of them may be found in XI, at pages 347 to 364. In
regard to university education, more particularly, Professor Rautenbach
was cross-examined on such questions as government policy in regard
to students wishing to study overseas, on the internai organization of
the Bantu university colleges and the measure of their control by the
State, on the question of why there was not a so-called conscience
clause in ail universitystatutes and whether regulations concerning the
rights of White and Bantu students to leave the precincts of their
university were the same in ail cases, and so forth. Mr. President, some
of these references are in XI, at pages 366-369, 429-430, 389-395 and
385-389.
Finally, Mr. President, certain views contrary to those of Professor
Rautenbach were put to·him concerning such questions as to whether
universities should be completely autonomous or not and as to whether
mixed universities in the pre-1959 period did or did not contribute to
inter-racial harmony and understanding. The references on these two
tapies are in XI, at pages 400-403, 405-408 and 44r-442.
Now, Professor Rautenbach did not agree with these views which
were putto him and, as has been stated before in the course of argument,
our submission is that views and opinions of othcr persons which are
put to a witness, and with which he does not agree, do not become
evidence. In our submission, it is thercfore unnccessary to deal with
these views and it is also unneccssary to state Professor Rautenbach's
replies to the questions that were putto him. Our submission, 1\lr. Presi
dent, is that on Professor Rautenbach's evidence, the present system
of separate institutions for the different population groups has substan
tial advantages for the Bantu people of South Africa and that the Bantu
universities will, in future, play an important part in the building up
of the Bantu peoples of South Africa. It is hardly necessary to say,
1\Ir. President, that in our submission nothing has been advanced by
the Applicants to suggest that the system of separatc university education
is incompatible with the promotion of progress.
\Ve appreciate, of course, that some of the advantages of the present
system as tcstified to by Professor Rautenbach do not directly concern
the Native peoples of South West Africain the same way as they do the
people of South Africa. So, for example, the building up of their own
universities for the Bantu people of South Africa does not dircctly con
cern, for example, the Ovambo people of South West Africa. As far as
South West Africa Native students are concerned, the relevant question
in regard to university education relates to facilities available for them
in South Africa, and to the qualitative cffect on thcir moral wcll-being
and social progress of the fact that facilities are separate from those of
European students. The purpose of our evidence has been to show that
qualitative well-being is served by the existence of separate facilities, and
that it would be injured by non-separation.
I should like to point out that in the Memorials, Applicants alleged ADDRESS BY MR. RABIE 293
that the university institution for the Bantu in South Africa were of an
inferior type. This appears from what is said on pages 157 and 158, I, of
the iremorials. This allcgation was dcnied in Rcspondent's Counter
Mcmorial, whcre the subject was fully dealt with. I refer to III, page 527.
Of course, this aspect of the case is no longer relevant to Applicants'
case as formulated at present. I should like to point out, however, that
it was never putto Professor Rautenbach that the facilities for the Bantu
were in any way inferior. In his evidence-in-chief Professor Rautenbach
testified that the material facilities at the Bantu university collcges of
which he kncw, were very good, and that the teaching staff was of excel
lent quality; this appears at XI, pages 334 and 335. These statements
werc not challenged in any way in cross-examination. The Applicants'
1earned Agent at one point asked Professor Rautenbach whether there
were South West African students studying overseas, but it was not
suggested that that fact proved a lack of proper facilities in South Africa.
In fact, when there was an attempt tore-examine Professor Rautenbach
on this issue, any such suggestion seems to have been expresslydisclaimed.
I refer to XI, pages 454 and 455. But, as I have said, adequacy of facilities
is not the issue as the Applicants' case is formulated at present.
I conclude, l\IrPresident, by repeating our submission that the evi
dence bas shown that the present system has decided advantages for the
Bantu people, and that revcrsion to the earlier system would be injurious
to the qualitative well-being, particularly of those persans about whom
Applicants are specially concerned.
l\Ir. President, that concludes my address, and with your permission
my colleague, Mr. Grosskopf, will now addrcss the Court on the economic
aspect of the case.294
32. ADDRESS BY MR. GROSSKOPF
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 4 AND 5 NOVEMBER 1965
If it please the Court, ;\Ir. President, as my learned friend has said,
I shall deal with the economic aspects of Respondent's policy. The
purpose of this argument is in line with what has been said by other
speakers on our side to show that Applicants' norm or standards as
defined at page 493, of the Reply,IV, will, if applied to South West Africa,
in many respects not promote well-being and progress also in the economic
life ofthe people. As in our argument generally, so also in this aspect,
we shall refer to the facts stated in our pleadings, which are now of
course admitted by the Applicants, as well as to the evidence given by
various witnesses.
The main witnesses who testified in particular on the economic aspects
were, firstly, Professor R. F. Logan, whose evidence may be found in
X, at pages 336-429 and 479-505. Then, the Court will recall, therc was
Professor D. C. Krogh, whose evidence may be found in XI,pages 67-206.
Finally of the witnesses mainly on the economic aspects there was
Mr. Pepler, whose evidence is found in XI, pages 202-251.
In our submission these witnesses were clearly competent to express
opinions on the economic aspects of Respondcnt's policies. I do not want
to go into their qualifications in detail, but perhaps it might be con
venient to give a brief summary. Professor Logan, the first one-his
qualifications are foundin X, at pages 337-346. He explained to the Court
that his major field of study was geography, of which he was a professer.
It is not necessary to give his academic qualifications in detail, but in
view of the attitude adopted by the Applicants, to which I shall advert
at a later stage, it may be convenient to quote the definition which
Professor Logan gave of his discipline, and that one finds in X, at page
337, where he said the following:
"Perhaps I had better explain first the contrast between geog
raphy and geology with which it is quite frequently confused.
Geology is the study of the crust of the earth and its land forms.
However, in geography we start with this base and we go on into a
study of the relationship between man and the land."
Professor Logan then added that geographers were consequently inter
ested not only in all clements of the physical environment, that is, the
climates, the natural resources and things of that sort, but that they
werc also interested in the manner in which the elements in question are
utilizcd by man. Professor Logan then continued, still at the same page:
''Soit is necessary for us to know about man, that is, the different
groups of men. both racially and ethnically, that occupy a given
arca, and we also need to know about the stage of technology, the
stage of material development of these people, because different
societies use land in different ways and so we are interested in this
aspect. \Ve are also interested in the economic phases because the
whole basis of economy is an integral part of the study of the geog- ADDRESS BY MR. GROSSKOPF
raphy of an area. Consequently we are interested in man and in the
land on which he lives, not simply in the land."
It is therefore, in our submission, clear that Professor Logan's field of
expert knowledge impinges also on economic and sociological spheres, in
respect of which he said in the same verbatim record, at page 344:
''... there on at least â number of facets I think I can testifv with
a fair degree of certainty and with a fair degree of technical ·know
ledge".
Professor Logan has published somewhere around 70 publications on
his subjcct, of which details are given in the verbatim record, X, at
page 338, and he has been a delegate to a number of international
conferences on geographical topics; that is in the same verbatim record,
at the same page. He has given special attention to arid regions, to desert
lands, and he has done a great deal of work in that sphere in varions parts
of the world. And he told the Court that it was pursuant to this interest
of his that he became interested also in South West Africa, where he has
done a considerable amount of field research work; that is in the same
verbatim record, at pages 338-339.
I have gone into Professor Logan's qualifications in perhaps more
detail than I otherwise would have because Applicants' Agent launched
an attack on his qualifications as an expert in the same verbatim record,
at pages 340-346. However, at the end, when asked whether he chal
lenged the competency of the witness as an expert, he said at page 346:
"Not as an expert with respect to his discipline as a geographer-no, Sir."
In the result there can be no doubt, in our submission, that Professor
Logan was eminently qualified to testify as an expert on the topics on
which he did testify.
\Ve then corne to Professor Krogh, whose qualifications are set out
in XI, at pages 67-68. The Court will recall that Professor Krogh was
bom and grew up in South \Vest Africa, with which Territory he has
still retained persona! and professional bonds and has, inter alia, per
formed economic research there. He holds the degrees of B.Comm., M.A.
and a doctorate in economics at Amsterdam, as well as a doctorate in
philosophy at Pretoria. He is Professor of Economies and Head of the
Department of Economies and Economie History in the University of
South Africa. He also serves on a number of committees concemed with
economic affairs, and participates in the work of several economic
institutions and societies. His special field of study concerns the use of
economic accounting in development planning, with particular reference
to Africa, and in this connection he has done rescarch in various countries
and territories in Africa as well as the United States of America. He has
also published several publications on economic affairs.
Then there is Mr. Pepler, whosc qualifications may be found in XI,
at pages 207-208; hc holds a B.Sc. Degree in Agriculture, and has had a
long and distinguished career in the civil service in the field of agricultural
technical services. At present be is Director of Bantu Development, and
as such he is responsible for development schemes of the indigenous
population groups both in South Africa and in South West Africa, and
particularly as far as the various homelands are concemed. He also
serves on a number of govemmcnt bodies, and has represented his
country at international conferences relating to agricultura\ matters. In
the course of his official duties he has also paid a number of visits to the
Territory, details of which may be found in XI, at page 219.296 SOUTH WEST AFRICA
Now, Mr. President, save for the case of Professor Logan, to which
I have already referred, Applicants have not sought to impeach the
expert qualifications of any of these witnesses, and in our submission,
their competency has bcen clearly cstablished. Before dealing specifically
with Applicants' case, and the application, or possible application of the
norm or standards to South West Africa, it may be convenient to give a
general outline of the background of the economic situation in South
West Africa. This background derives from the historical, geographic
and social factors in the Territory. Itappears from the admitted facts on
the pleadings, as well as the evidence of the witnesses to whom I have
just referred, that these factors have given rise to a number of basic
problems regarding economic developmcnt. Thcse may be sumrnarized
as follows.
The first factor is the size of the Territory. Now South West Africa
has an area of 824,269 sq. kilometrcs, which includes the area of Walvis
Bay, which, although part of the Republic of South Africa, is for con
venicnce administered as part of South West Africa. That is in the Coun
ter-Memorial. Il, at page 29r.
The Court willrecall that in the Counter-~lemorial, Il, page 291, map 2
shows graphically how one could take South West Africa, and how the
Nethcrlands, England and Liberia could be placed within its borders with
lots of room to spare, soit is a very large territory indeed. The relevance
of this factor to economic development was explained by Professor Krogh
in XI, at page 72, where he said:
". . . the implications for economic development are rather self
evident-to establish in any short period of time effective ad
ministrative control, means of communication, transportation and
so forth over an area 20 times that of the Netherlands, is technically
and financially simply an impossible task. lt would take a very long
time to cxtend the nccessarv public utility services for the encourage
ment of economic development over so vast a territory."
As the second factor, I should like to refer to the nature and distribu
tion of the natural resources of the Territory. A brief survey of the natural
resources of the South West is providcd in the Counter-i\Iemorial, II,
at pages 3or-3ro, under the headings: "Water Rcsources", "Land
Resourccs", "i\1ineral Rcsources" and "Marine Resources". There it was
stated in general, at page 289:
"... the natural environment of South West Africa is to a large
extent unfavourable for man's purposes and that it displays great
diversity, resulting in special problems of administration and devcl
opment. The adverse physical environment places a premium on the
role of man in realizing the Iimited and diverse natural potential
of the Territory."
Dealing spccifically with water resources, it was shown that rainfall
varies between less than 50 mm. (i.e., 2in.) in the south-western part of
the Territory to rnore than 400 mm. (r6 in.) in the north-eastern part of
the Terrîtory (on p. 295, Il). Indeed, i\lr. President, we said in the
Counter-i1Iemorial that the north-eastern part of the Territory, and I
quote from page 298, II:
"... has the combined advantages of a higher amount of rainfall,
a longer rainy season and a smaller variability of rainfall". ADDRESS BY MR. GROSSKOPF 297
In addition, by reason of the availability of water in the perennial
rivers along the northern boundary of the Territory, and I quote from
pages 303-304, Il, of the Counter-Memorial:
"... the only considcrable water potential is confined to the areas
in the north and north-east of the Territory. The scarcity of water
resources in the remainder of the Territory is a serions impediment
to substantial industrial development, and tends to restrict agri
cultural activity in the major part of the Territory to livestock
farming."
And as regards mineral resources, we said, at II, page 307:
"South West Africa has a great variety of minerai deposits but
only a few have proved of real economic importance. There are
concentratcd occurrences of diamonds, Iead/zinc, copper and salt
deposits; for the rest the Territory's minerai resources arc char
acterized by rich samples from small quantities widely dispersed
over the country."
And the final item in the list of natural resources. :\fr. President,
relates to fishing v.rithregard to which we said, at li, page 308:
"In the period aftcr \Vorld \Var II South West Africa has emerged
as a considerable fish-producing Tcrritory, due to the prescnce and
exploitation of a teeming marine life along the otherwise barren and
inhospitable coast."
These then, i\frPresident, are the main features of the natural endow
ment of the Territory. \Vithin the extremes of rainfall and climate to
which I have rcferred, there are found a number of different regions, each
with its own particular problems. I do not want to go into any of these as
they are set out and classified in the Counter-Memorial, Il, pages 298-301;
by Professor Logan in X, at pages 340-355; Professor Krogh in XI, at
pages 72-73, and l\Ir. Pepler in XI, at pages 208-211.
In general, Mr. President, Professor Krogh summed up his cvidence
on this aspect as follows, in X, at page 73:
"... speaking generally, I think South West Africa can be described,
from the viewpoint of economic development and looking at its
natural resources-as a poor territory. It is not only poor, but also
displays great variety or differences in the location or quality of its
resources.''
Now, Mr. President, the most striking difference bctween various areas
as regards natural endowment was summarized by Professor Logan in
his evidence in the following words, and 1 quote from X, at pages 367-368:
"\Ve can <livide the Territory of South West Africa ... into two
contrasting regions ...
We have in the south an area that is poorly endowed as far as all
aspects of agricultural and pastoral activity are concerned. Its
natural resources are quite limitcd. The sole big resource is that of
the diamonds along the extreme southern coast. The area, otherwise,
is lacking in most minerai resources. It is lacking in good, reliable
precipitation. It has a relatively poor vegetation. That anything has
been donc with it, I think, is most remarkable. Vast portions of it,
were they under many other economic systems, would have been
lefttotally unused and yet they are today producing a modest income SOUTH WEST AFRICA
and in some cases, a fairly good income, to the people who have
developed them in the last 70 years or so.
. . . . . . . . . . ~ .
Now in contrast to this, there is the northern portion of the Terri
tory. The northern portion of the Territory has by far the best soil.
It is the only area of relatively reliable precipitation and it is the
only arca of enough precipitation to allow field crops to be grown
successfully in almost every year, perhaps 9 years out of ro ... It
is also the area of the greatest population concentration. a rather
stable economy at the subsistence level with the beginnings of cash
economy beginning to come into it."
l\'ow, Mr. President, the facts to which I have referred are, of course,
admitted explicitly in the case of the passages from the Counter-Memorial
and, we submit, implicitly in the case of the evidence given by the wit
nesses, by reason of the failure to cross-examine. In passing, however, it
may be instructive to note the following comment which appeared in the
Memorials, I, at page 109:
"The Police Zone embraces generally the southern and central
sections of the Territory, being the richer and better developed
portion ... The smaller segment, lying to the north, is the poorer
and Jess well developed portion ... "
And in the Reply, IV, at page 464, the Applicants stated that '"non
White' inhabitants are confined to the poorest areas of the Territory".
Mr. President, on the admitted facts it is clear that the adjectives
"richer" and "poorer" certainly cannot relate to natural resources, but
at most to a comparison of development brought about by the population
groups occupying the areas concerned. lt is also obvious that these facts
give the lie to many statements made before the United Nations by
petitioners and others to the effect that the Reserves are ail situated in
desert areas, that the non-White inhabitants are relegated to the worst
portions of the Territory from an agricultural point of view, that the best
lands have been taken away from them, and so on.
Reference was made to some of these statements by my learned
friends, 11r. Van Rooyen and Dr. Van Heerden, last week, and I would
refer the Court to pages 120-123, 146 and 151, supra, just by way of
example of the type of statements that are made.
I corne now to a further factor tending to retard the economic develop
ment of the Territory-the size of the population. With a population of
approximately half a million, South West Africa has a population density
of just over half a persan per square kilometre. With the exception of
Bechuanaland, which adjoins the Territory, it has the lowest population
density in Africa south of the Sahara. That one fi.nds in the Counter
Memorial, Il, page 292. In this regard Professor Krogh said in XI, at
page 74:
"Africa as a whole has the lowest population density of all
continents in the world. So South West Africa is in fact an exception
in Africa, which again is an exception in the world."
The detrimental effect of this feature was summed up by him as
follows, at the same page:
"Low population densities, apart from indicating the necessity
for exporting because of a Iimited local market, also add weight to ADDRESS BY MR. GROSSKOPF 2 99
the difficulties ...with regard to the vastness of the Territory in
supplying modern means of communication and administration."
That then is as far as that feature is concerned, Mr. President. I turn
now to another factor and that is the nature of the population. Under
this heading, Professor Krogh's evidence referred to the "dearth or the
lack of entrepreneurîal elements, enterprising elements" (XI, p. 74),
found in the tmdition-bound societies of the Territory, which Professor
Krogh contrasted with the modern, dynamic, economic society of the
European inhabitants. The references may be found in XI, at pages
74-75 and 77-78.
Under cross-examination, in XI, pages 90-96, he explained further
that this difference results from a basic cultural difference between the
two groups, which is generally recognized by experts on the problems of
developing countries. The implications, as far as the tradition-bound
society was concemed, were summed up by him as follows in the same
verbatim record, at page 94:
"This simply means that the problem of economic development
lies in graduai cultural change, and is not simply a matter of
supp1y:ing foreign aid and technkal assistance to them. It is not a
pure economic-technical problem, it is basically a social cultural
problem that it takes a long time to produce these enterprising
people. Nevertheless, the fact is that they are in due course pro
duced ... "
Now, Mr. President, Professor Logan, in our submission, graphically
illustrated this, more specifically with reference to the Namib region,
in a passage part of which has been previously quoted by my learned
senior, Mr. de Villiers, and this passage is found in X, at page 348, where
the witness said:
"... since the European group is the one that today keeps the water
supply going, keeps the food supply coming in, keeps the railway
operating, that it is the managerial ability, that it is the initiative
and drive of this group that has kept the place in operation, the
removal of this group without its direction and initiative, would, I
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 each morning at the given
hour that is necessary to turn on the plant or oil the machinery, and
since there is no such initiative, from the local Native group, I am
afraid that things would fall apart very quickly."
The same point was made in the pleadings-in the Counter-Memorial,
Il, pages 408 and 4I0-4II and III, pages 44 to 46, page 68 and page ror
and as such, of course, now admitted.
The next feature, M:r.President, to which I would advert, is the social
environment of the population. This feature has been discussed before.
It relates to the heterogencity of the population and my learned friend,
Mr. Muller, referred to it at page 194, supra; and it w:ill be recalled
that in this regard Professor Logan said, in X, at page 368, "I do not
believe there is anywhere in the world a more diverse" population.
For present purposes, that is as far as economic policy is concerned,
this feature is to be taken into account when applying policies which in
a homogeneous society would have been eminently sound from an300 SOUTH WEST AFRICA
economic point of view. Professor Krogh said in this connection, when
he referred to members of such a heterogeneous population, that-
"... their loyalty is first and foremost, and their interests are seen
to be those of their particular group rather than of the population
considered as a whole. I make this point ... because it is very
difficult, under such a set of circumstanccs, to devise a policy of
administration and developmcnt that could in fact satisfy every
group ... [and] everywhere in the Territory. To deny that this
exists is, withoutdoubt, inviting disaster and strife in the Territory."
(XI, p. 75.)
Those, then, Mr. President, are the features which witncsses and the
pleadings told the Court tend to retard economic development of the
Territory, or at any rate, those are the features which present problems
for any adrrùnistration which sets about such cconomic development.
It also appears, in our submission, from the record, that is, from the
pleadings and oral evidencc, that thesc features neccssitate policies which
involve a differential allotment of rights on a group basis among the
various population groups. Of course, the political aspects, to which my
learned senior, l\Ir.de Villiers, referrcd on Tuesday, are basic also, from
that point of view, to the economy, in the sensc that no economic activity
is possible in a state of political chaos, or, if one puts it at a lower level,
that any political tension, or any political uncertainty, necessarily under
mines also the confidence, matters of investment, and the smooth func
tioning of the economy in general.
In the course of his prescntation on the political aspects,l\Irde Villiers
dealt also with the position of the Europeans in South West Africa,
and their important role in the economic life of the Territory, and in
that regard 1 would rcfcr the Court to pages 240 to 244, supra. As he
pointed out-and I do not wish to repeat it in detail-policies which
would lead to the expulsion or immigration of this population group
would necessarily have a detrimcntal effect on the cconomy of the
Territory. However. I do not want to traverse that field again, but I
shall confine myself as far as possible to matters which are more purely
of an economic nature.
In this regard, Mr. President, the first, and, in our submission, one
of the most important rcasons for adopting a differentia1 approach arises
from the necessity in South West Africa of protecting the land rights
-the rights to the possession and use of land-of the various groups.
The Court will recall that in Book li I, Chapter IIl, of the Counter-1\Ie
morial, Il, wc set out brieflv the history of the various conflicts that
had occurred in the Territory, caused largely by disputes regarding land
and grazing rights. The Court will recall that therc were always disputes,
for instance, between the Hereros and the Namas, about who was entitled
to graze their stock on a particular piece of territory, or to whom that
land really bclongcd. And the Court will recall that disputes about land
also formed one of the major causes of the war between the Hereros
and the Germans in the years 1904 to 1906, in regard to which we said,
in the Counter-l\Iemorial, Il, at page 373:
" ... economic conceptions differcd widely between the Hereros and
the Germans. This manifested itself, inter alia, in conflicting daims
to land. Thus the Germans bought land from the chiefs, intending
thereby to obtain sole rights of property; but this concept was not ADDRESS BY !IIR.GROSSKOPF 301
understood by the Hcrero, who resentcd being prevented from
grazing their cattle on land which they hacl sold."
Furthermorc, i\Ir. President, in Book VI of the Counter-:.\Iemorial,
III, we cxplainccl how, at the inception of the i\[andate, it was found
necessary to allocate land to the various indigcnous groups. \Ve also
explained how these allocations were in due course increased and ex
tended; that is at III, pages 246 to 253. And, of course, the Court will
be aware that the Odendaal Commission has now recommcnded certain
further extensions, and that some of the lands concerned have already
becn purchascd in anticipation of thcsc extensions.
Wc also demonstrated, Mr. President, in my submission, in Book VI
of the Counter-i\lemorial, that there was always a strong tendency on
the part of members of the indigenous groups to dispose of their land
at excessively low prices, and certain cxamples were given at III,page
245.
l\Ir. President. of course, thcse things are matters of historical know
ledgc and wc do not suggest that the Native population of South West
Africa is today as unsophisticated, or as economically unaware, as it
was 40 years ago.
Howcvcr, Mr. President, this tendcnci-the tendency to selJ land at
uncconomic prices~\vill always persist. in our submission, as long as
there is a substantial differcnce in the productivity as among the varions
groups, because, i\Ir. President, when one speaks of an economic or an
uneconomic price it depends on one's point of view. A price may be
extremely economic from the point of view of the seller inasmuch as
the seller may be deriving much more from the sale of the lands than
he could evcr derive from cultivation of the lands, but it may be, by
any objective standard, a very low price. It is from that point of view
that in the case of a capital asset such as land, its price must always
depend on the rcturn which can be derived therefrom.
Now, in the case of the Native pcoples in South West Africa, the
return which thev derivc from the land is vcrv much smaller than the
return which a progressive and modern European farmer would, or
could, derive. That, Mr. President, in our submission, appears clearly
from the record herein.
The Court mav recall that we made reference to the Rehoboth Basters
which is one o( the most advanced population groups in South West
Africa. In 1926 there was a Commission of Enquiry into their affairs
and the Chairman of the Rehoboth Commission of that year stated in
his report that, in his opinion which he based on tacts disclosed in the
report:
"... there [was] no doubt whatever that liberty to alienate land
to Europeans would inevitably rcsult in the Burghers [of Rehoboth.
that is] losing the greater portion, if not the wholc, of their land
within a comparatively short period of time." (III,p. 245.)
In regard specifically to Rehoboth, i\Ir. President, the policy was
thereafter pursued of encouraging the Rasters to farm their land them
selvcs and to encourage them to improve their agricultural methods,
rather than to sel! ior to !case it toEuropean farmers.
But as late as 1957 this policy drew the following stricture from the
Committee on South West Africa:
"The application of apartheid to the Gebiet [that is the Rehoboth302 SOUTH WEST AFRICA
Gebiet] and the consequent forced removal of 'European' leasing
farms from Rehoboth landowners automatically deprives the Reho
both landowners of a major source of income." (III, p. 33.)
In other words, Mr. President, the complaint is made that if they
are not allowed to lease their land then they are deprived of incarne
from the land, which, as we pointed out in the Counter-Memorial,
suggests that:
"Thus the Committee appears to have accepted that the Rehoboth
Basters could best utilise their land by letting it to Europeans,
rather than by practising agriculture themselves. and that European
farmers would be able to make a profit over and above the amount
of the rent, whereas Baster farmers would not even be able to
raise a sum equivalent to such rent." (Ibid.)
In this regard I may also refer to the evidence of Professor Logan
in X, page 355, where he also dealt with agriculture in the Rehoboth
area, so that, Mr. President, the picture emerges of even the most
advanced, or one of the most advanced non-European groups not being
able to farm progressively enough to raise as much money as they could
raise by leasing the farm to European agriculturalists.
Now, a similar picture appears from a study made by Professor Logan,
as to which he testified in X, at pages 350-352. As part of his scientific
studies, he compared the utilization of the land on the Nama Reserves
Tses and Berseba and the European farms immediately adjacent to
these Reserves. He found that the Reserves and the European areas
carried the same population both of stock and of people, but that the
European farms were in a much better condition and provided a higher
standard of living for ail their occupiers than the Reserves did. His in
vestigations also showed that this contrast did not result from any
difference in the nature or quality of the land or in the natureorquality
of the services and encouragement provided by that administration,
but purely, as he testified, from the traditional approach and attitude
of the various groups. In the verbatim, X, at page 359, he testified
regarding a sirnilar experiment with certain Herero Reserves where his
findings were exactly the same-that on equal lands (equal in quality,
size, population both of cattle and of people) the European farms
provided a much higher incarne and a much higher productivity than
the adjacent Native Reserves.
As regards the northern areas, Mr. President, which Professor Logan
described as the best agricultural areas in the Tcrritory, he gave the
following account of the agricultural activities of the inhabitants:
"This agriculture is dependent entirely upon rainfall and the rain
is usually good enough to produce a good crop. ln some years it
is not. ln the years in which it is not, there is no reliance whatever
upon irrigation anywhere in the area. Even in the Okavango area
in which the ükavango River flows even in drought years, a large
river on the surface flowing very frequently right alongside of the
fields which are dying of drought, there is no carrying of water at
ail from the one to the other. This is in marked contrast to other
parts of the world in similar situations where one finds equally
primitive groups carrying on irrigation.
This is entirely a subsistence type of agriculture, these people
producc for their own needs, they do not produce for the market. ADDRESS BY .MR. GROSSKOPF 303
Nor do they buy anything on the market. It is not a cash economy
basically. There are beginnings of a cash economy starting to develop
within the area, but this is only beginning and traditionally this is
a purely subsistcnce type of agriculture or economy." (X, pp. 363-
364-)
Now, Mr. President, to avoid any misunderstanding as a result of
the use of the words "subsistence economy". it must be emphasized
that such rcferences do not suggest that the persons involved suffer any
lack, or that they were not producing enough to satisfy their needs.
as indeed Professor Logan showcd at X, page 409 and at page 503.
The expression "subsistence economy" is a term which he used to convey
"that the people produce everything that they need and furthermore
thcy need everything that they produce so that they do not produce
a surplus for sale nor do they purchase from outside". (X, .P·503.)
Similarly, Mr. President, it must be emphasized that th1s subsistence
type of economy and the approach which it shows are not expected
to remain unaltered. Indeed, all the witnesses on the economic aspect,
and in particular Mr. Pepler, explained to the Court what efforts are,
in fact, being made to lead the Natives to a higher level of productivity
and to a more progressive approach, what success they have been having
and what problems they have encountered. I may refer the Court to
Mr. Pepler's cvidence in XI, at pages 2II·2I7, and this is a tapie to
which I shall corne back at a later stage.
Furthermore, as noted by my leamed friend, Mr. de Villiers when
dealing with the political aspect, Mr. Pepler also emphasized that the
present Rcserves-the present areas for the indigenous înhabitants
could accommodate the whole Native population on an agricultural
basis. This was dealt with by my learned senior at pages 243-244, si1pra.
Mr. President, before the adjoumment I was dealing with the need to
protect the land rights of the different population groups in South West
Africa. I had just fmished refcrring the Court to the various sources
of the general proposition that the Native groups do not make as pro
ductive use of their land as do the European farmers, and the point
which is sought to be made is that the productive capacity of the Native
agriculturalist is so low that a price for his land, which from the point
of view of a European purchaser would be a low one, would appear
uneconomically high and consequently extremely attractive to the Native
owner and, as I have shown, this has in fact becn the practice in the
past. Land has been sold for prices which appear extreme]y low to us.
The inevitable result of this situation would be, in our submission, that
unless there is some measure of protection, many of most Natives would
be induced to sell their land. This view was expressed by all the witnesses
who gave evidence on this topic. Thus, Professor Logan was asked,
at X, page 373: "Do you consider that measures of differentiation to
protect the varions groups are necessary?" The first part of his reply
reads as fo!Jows at pages 373-374:
"Yes, I think there arc protective measures in existence today
that have to be continued. The first of these. I think, are protective
measures to reserve the lands of the Natives-this is to reserve the
lands of the Natives against the Whites. Ihave just painted a quite
nice picture before the tea recess of the northern part of the Terri
tory. SOUTH WEST AFRICA
There are a great many \Vhite farmers on rather drought-stricken
farms in the South who would be delighted to move into the Oka
vango and push a group of Okavango Natives out of the area.
They would do much better with the area than is being done today
... and they would produce very high productivity in the area.
This is being encouraged today by the administration, but not for
Whites, being encouraged instead for the Natives to carry on irriga
tion agriculture."
Thereafter Professor Logan gave some examples of experimental irriga
tion projects for Natives in the Okavango, which arc at present being
pursued. He thcn continued, and I quote again from the same pages:
"Were controls to be pullcd off, we would find that, instead, we
would have some European irrigationists in the area very quickly.
The same is true of Ovamboland, much of Ovamboland is very
fine agricultural land. If it werc not undcr control, certainly many
Whites would move into the area and take it over."
Replying to a similar question, Mr. Pepler said, in XI, at pages 218-219:
"It is rny personal opinion that if a nonn of this nature has to
apply, if I interpret it correctly, it will be a very tragic day for the
Native peoples ... Mr. President, I think that other groups [that
is groups other than the Natives], more highly deve1oped, with
better financial resources will buy up the lands of the less highly
developed people. They will develop the natural resources for their
own benefit and these people undoubtedly, the less developed people,
will be the sufferers for it."
Professor Krogh said, in XI, at page 82:
"... it follows from what I have said previously in reply to other
questions that it would be necessary to protect the economically
weaker or less productive or Jess viable groups against the econom
ically stronger and more resourceful with regard to land owncrship.
Thus, for example. it would be necessary to ensurc that the economi
cally more resourceful and stronger group would not transgress
onto the land owned by the economically weaker and less produc
tive, for if this protection was not given I have no doubt that
in a rclatively short period of tirne the economically weaker groups
holding land would in fact not have an opportunity to earn a living
on the land; they would, in fact, become a landless people if no
protection was afforded in this respect."
Thcsc opinions, which were expressed by the experts I have mentioned
which we called, were not contradicted in any way and they were not
attacked in cross-examination. ln addition, wesubmit that these opinions
are solidly based on undisputed and undisputable facts.
Now, the question may well be asked, what is the bearing of ail this
on the norm or standard? My submission is that it is clearly impossible
to protect the land rights of the Natives without allotting status, rights,
burdens. privileges, disabilitiesr whatever. on the basis of membership
in a group, class or race, rather than on the basis of individual merit,
capacity or other qualities. One may well have the situation whcre one
has a particular European farmer who has ail the qualities necessary
for successful farming along the Okavango, he may have experience,
ability, energy, capital, everything one needs, but nevcrtheless fortran
scending or more important reasons he is prevented from farming there. :\DDRESS BY MR. GROSSKOPF
Similarly, one may have a situation where one has a member or chief
of a tribe in the Okavango who might be in need of money, who might
want money, who might evcn be able to ncgotiate a favourable or
suitable price, and might cven possibiy have sufficient sophistication
to know what to do with the money once he has it. Howcver, in the
interests of the group as a whole, it is necessary to prevent him from
selling the land. Furthermore, in this situation it is clearly also a case
when an individual should not be allowed to leave his group or to contract
out of his obligations or rights as a member of the group. You will
recall, 11fr.President, that at one stage my learned friend suggested
that that possibly might be a feature which would render an allotment
of rights in order if a particular member of a group were to be entitled
to leave that group or to abandon his rights and privileges or obligations
as a member of that group.
Now, if one were toprotcct the land rights of the Natives then clearly
it must follow that no individual Native could practically have the
right to leave that group or to say to himself or to the authoritics:
,vell, if I am not allowed to sel\ my land because I am a Native, then
I would rather not be a Native. If that were to be the case then the
whole idea of protecting land rights wouléibe rendered nugatory. The
wholc purpose wouid corne to nothing. Similarly, ifa prospective Europcan
farmer were able, in law, to say that he would rather be an Okavangan
than a European, he would rather have the right to go and farm along
the Okavango, than the right to buy land, say, in the Police Zone,
becausc he finds the farming along the Okavango more attractive, or
for rcasons of his own, then that again would rcnder entirely nugatory
all these provisions which are there for a sound purpose. One would
then soon have the position, it is submitted, that a number of Europeans
would avail themselves of this opportunity. They would go there, they
would buy up the land and they would farm there and the result would
be that in the end all the land would be in European hands. Itwould
probably have a much higher productive capacity than formerly, but,
on the other hand, on the debit sicle, one would have the Okavango
Natives dispossessed of their lands and dispersed from their environ
ment.
So ·that, ;.\lr. President, my submission is that on any basis this is a
sound principle. Nevertheless, on the other hand, on any possible basis,
these provisions for protecting land rights offend against the norm or
standard which my learned friend suggested. One can hardly seriously
say that that is not a case where rights or privileges, or viewing it from
the other sicle,disabilities, are granted purely on the basis of membership
in a group, or a class, or a race and not on individual merit at all.
However, one finds that this is one aspect of differential allotment
which my leamcd friends apparently do not abject to. They have not
attacked it in cross-examination at all and thcv have indccd not even
included it in their illustrative catalogue of measures to which they
abject. The catalogue, as the Court will recall, appears in IX, and as
far as the econornic aspect is conccrned, on pages 284-287.
Now, Mr. President, itis submittcd that even this one example of a
case where one could clearly not apply the norm or standard without
serious detriment to well-being and progress, that even this one example,
which is an important one, shows how untenable their argument is.
Up to now I have dcalt particularly with the protection of land rights306 SOUTH WEST AFRICA
of weaker groups, economically speaking, against stronger groups from
an economic point of view. Howevcr, quite apart from the problems
which arise where there exists a disparity of economic power or pro
ductivity, such protection may well be and, in our submission, is also
required for the maintenance of matters such as social peace and tradi
tional political institutions. The Court will recall that the extent to
which ownership and possession of land are associated with the tradi
tional values of particular indigenous groups, was discussed in the
pleadings and must now be taken to be admitted. I would refer in this
regard to the Counter-Memorial, II, pages 316, 319. 325, 339 and 346-347.
ln these passages we showed what an important aspect of the life of
these various groups is the ownership of land and how it has ramifications
or implications extending beyond purely economic use and aJso irnpinging
on the social and the religious fields. I would also refer the Court to the
evidence of Professor Bruwer in X, at page 257. This land in the tra
ditional systems is held in communal ownership and it has all these
\vider implications to which I have referred.
These various factors. in my submission, Mr. President, support the
opinion expressed by Professor Krogh in XI, at page 82, to the cffect
that:
" ... even in the case where population groups are at the same level
of economic developrnent ... it could very well lead to social strife
and upset the delicate social balance in the Territory if members of
one group insisted on obtaining, or in fact obtained land occupied
by another group, if this other group felt that this would Iead to the
alienation of their land ... This is a fact that you cannot ignore,
and you will ignore it at the expense of social peace and therefore,
indirectly, at the expense of economic co-operation and developrnent
in the Territory."
This is, of course, illustrated by the events which in fact occurred
prior to the advent of the European population, when there were all
these quarrels between the various groups, largely about land,
Bath the aspects of land protection to which l have referred, that is,
the aspect of protection of the economically weaker against the econom
ically stronger, and also the social implications involved in land rights,
are, it is submitted, illustrated by the circumstances relating to the
purchase of agricultural land in the Police Zone of the Territory. In the
Memorials, at I, page II4,Applicants said:
"ln sum, on the basis of available information, it may be inferred
that no individual 'Natives' own land or can own land anywhere
within the Territory of South West Africa."
That was the allegation in the )Iemorials but, as we pointed out in the
Counter-Memorial and is now admitted in the pleadings, there, in fact,
exists no Iegal provision prcventing non-Whites from purchasing agri
cultural land in the Police Zone. That appears, inter aliain the Counter
Memorial, III, pages 319 and 324. That is in the Police Zone, as such.
Of course the Court will recall that in the Reserves land is utilized on
a communal basis, which is the traditional system obtaining, and which
Respondent has not, as yet, changed because the groups appear to
prefer it to remain as such.
However, coming back to the Police Zone outside the Reserves, the ADDRESS BY MR. GROSSKOPl' 307
fact that no Native has, as yet, purchased any farm or agricultural
land there, in Professor Krogh's.view, illustrates the following:
", .. that thev are eîther not able to afford this Jand-because
the market value is determined by the productive use made thereof
by White farmers and they cannot afford this and cannot use that
land productively-or evcn if they can afford it, that they probably
will not wish to stay thcre among these White farmers". (XI, p. 84-)
Thus, in my submission, Mr. President, showing both the economic and
the social aspects involved.
Now, Mr. President, that, then, as far as the protection of land rights,
which is a very important thing in an agricultural country or territory
such as South West Africa, as I have said in our submission, by itself
shows the untenability of App1icants' case on the norm and the tact
that, ifit were to be applied, it would be detrimental to progress of all
the groups.
A further aspect in which differentiation is, in our submission, essential
-and in the views of the experts called by us-is as regards commercial
and employrnent opportunities. As regards commerce, there are certain
facts which are undisputed on the record, to which I should like to refer
brietly. Firstly, :.\IPresident, it appears that between 1952 and 1960
Ovambo traders in Ovamboland were permitted by law to open small
businesses without paymcnt of the prescribed licence fee, and without
complying with specifications laid down for shop buildings. Since 1960,
licence fees are charged for the bencfit of the Tribal Fund, but the
method of obtaining licences is simpler and less expensive than in the
rest of the Territory. That appears in the Counter-i\lemorial, III, at page
IOI.
Now, if the Court will recall, Europeans are not allowed into that
area at all, except in certain cases, so the Native tradesmen there have
a virtual monopoly or, at any rate, these preferential provisions in their
favour. Secondly, in the Police Zone, in order to encourage trading by
Natives it is the Administration's policy to refuse ail applications by
European traders to trade in the Reserves, unless no Native is prepared
to open a business in an area where there is a need for such a business,
or unless the residents of a Reserve request that a particular European
be allowed to open a business, which occurred years ago in the Waterberg
East Reserve. These facts are set out, ~Ir. President, in the Counter
Memorial, III, at page 102.
In urban areas, business and trading rights in Native townships have,
since 1951, been reserved by law exclusively for Natives. To promote
trade in the townships, Native dealers in several urban areas are ex
empted from observing the ordinary shop hours. Those facts, Mr. Presi
dent, may be found in the Counter-Memorial, III, at page 102.
Now, Mr. President, the reason for this preferential treatment of the
various groups is, in my submission, quite clear. ln the words of Professor
Logan:
"... if this was thrown open to equal opportunity, ail sorts of
avaricious entrepreneurs would move into the area, and in a short
time the existing system would be a shambles, and the Native
traders, who are today able to compete quite wcll with the pcrmitted
White traders in the area, would be totally out of business". (X,
p. 373.) SOUTH \\TEST AFRICA
The extcnt to which the protective measures implemented by the
Administration have in fact led to an increased participation by the
Native population in commerce, is, in my submission, shown by the
facts we have set out in the Counter-Memorial, III, pages ro1-ro3, and
which facts are, of course, now admitted. So that, in sum, Mr. President,
it would appear again to be a case where it is necessary, in the general
interests of the people concerned, to give a certain section certain pref
erential rights, purely on the basis of group or race, or class or something
of that sort. Once again, 1Ir. President, if one were permitted to leave
a group, or if one were entitled to the privileges of another group, the
whole system would be rendered nugatory, So, ifthe test were purely
economic ability, as such, then one would never have the opportunity
of encouraging the :N"ativebusinessman, who has risen above the general
level, by giving him a chance to rise even higher and to help others up
with him.
Now, allied to this topic, i\Ir. President, is the subject of holding jobs,
in which regard Professor Krogh illustrated the general policy in the
Territory as follows:
".,, there is preference given to the employment of Ovambos in,
for instance, jobs available and created in Ovamboland. I have in
fact been there quite recently and I have seen that in the field of
public administration, jobs are being held and preference is being
given to the Ovambo to the extent that these people are available,
They are encouraged to hold jobs in the field of public administration.
I have also seen them doing skilled jobs connected with development
projccts that are in progress there on a large scale. I have seen
Ovambo contractors making bricks, driving tractors and employed
in ail sorts of other occupations. I saw a factory there quite recently,
at Oshikati, not far from Ondangua, where on the factory floor there
were Ovambo skilled and unskillcd workers. , . I should put it, very
roughly, at let us say something like 25 or 30 of thcm working there,
and there were oniy at that time two Whites serving there to
demonstrate to them and to manage this particular factory, but
on the express understanding by the authorities that as soon
as a qualified member of the Ovambo group was able to do this
job this would be given to him, evcn if he were, economically
speaking, less qualified than the White manager to do this." (XI,
p. 85.)
Again this is a case, in our submission, where it is necessary, in the
general weli-being, to allot rights on a differential basis as amongst the
different groups-in this case in order to uplift the one group which,
at present, is still less dcveloped than the other.
Professor Krogh adverted also to the restrictions on job opportunities
for non-Whitcs in the White areas, In this regard, he said:
"I know of this and I can understand why these restrictions
operate, but at the same time it is very important to remember
that a much ,vider range of restrictions operates with regard to job
opportunities in the non-White areas compared with these few posts
in the mining industry and in the suppl y of public transport." (Ibid.)
The justification for these limitations was seen by Professor Krogh
in features which he summed upas follows, in the same verbatim: ADDRESS BY MR. GROSSKOPF
"I can understand the reason for these restrictions-yes. They
are in the interests of protccting those who would otherwisc have
to face unfair competition from the economically stronger. I can
also understand that where this is not the case, even if thev were
at the same level of economic devclopment, that it is sin1ply a
matter of the group insisting upon and wanting these job oppor
tunities not to be occupicd by members of the other group~that
is wanting preference to be givcn to the members of its particular
group. Such restrictions are therefore for the sake of social peace
without which, I cannot over-emphasize, there is little prospect of
economic development in the Territory any,\·ay." (Ibid.)
So that, in this regard, Professor Krogh emphasized that social peace
might require certain measures which, from a purely economic point
of view, might otherwise not be justified in the same way.
Although, Mr. President, Applicants did not in their pleadings or
cross-examination dispute the necessity or the aclvisability of special
measures to protect and promote the economic advancement of the
various Native groups, evcn if they entailed limitations or cleprivations
for individuals of European descent, or of the Coloured group or of
other Native groups, aithough 1.heydid not appear todispute the necessity
of these measurcs, nevertheless, they devoted a considerable part of
their cross-examination to the job disabilities of Natives in the White
arcas.
Now, l\Ir. President, my learned senior, Mr. de Villiers, has dealt
with the apparent purpose and effect of Applicants' cross-examination,
both generaJly and also with some rcference to the economic aspect.
I shall, also, at a later stage, make brief reference thereto. However,
at present it will suffice to point out that the Applicants' norm or
standards are cither applicable or non-applicable. In the way in which
they have formulated them, they cannot be appliecl to some allotments,
to the exclusion of others. They are either applicable to any allotment
of rights, burdens, privileges, etc., on the basis of class, group or race,
rather than on individual qualities, or they are not applicable to any.
They have not suggested that thcre are only some or a certain class
or a particular type of allotmcnt-cliffcrential allotment-of rights to
which they object. So, ?.IrPresident, if the norm were to be applied in
South West Africa, for instance, it would not only strike, in the economic
sphcre, at job limitations of Natives in White areas, it would equally,
in my submisslon, and necessarily, strike also at beneftts or privilcges
which non-Europeans h.ave, as against Europeans. It \voukl equally
strike, for instance, at the protection of cmployment opportunities or
commercial opportunities of the non-European population. 1t would
equally strike at the protection of the land rights of the non-European
population. So, Mr. President, one cannot, at any rate as my learned
friend formulatcd his case, <livide up these various allotments into those
that are good and those that are bad, becausc, as he formulated his
case, the norm and standards would strike at ail of them, whether good
or b3:d, whether they affectcd Europcans or non-Europeans, and irre
spect1ve of how they affected Europeans or non-Europeans.
Mr. President, the final rcason, in the cconomic sphere, for the necessity
of a policy which differentiates betwecn varions population groups, is
the consideration that there are certain speciaJ methods of promotion
and improvemcnt, which are necessary as betwecn the various groups.3ro SOUTH WEST AFRICA
For example, it would be impossible to secure any improvement in
agricultural methods employed by the Natives without regard to their
particular backgrounds and needs, and their existing methods, their
social and cultural patterns, and so on. The whole process of development
proceeds from a different point of dcparture, and it must therefore
follow a different method.
These differentmethods were described, amongst others, by Mr. Pepler,
in XI, at pages 2II-218, 248-250 and by Professor Logan in X, at pages
351-352 and 366-367. I do not want to go into any of these details,
Mr. President. The Court will recall how Mr. Pepler described the different
methods and problems that they have in encouraging a promotion or an
improvement of Native agriculture, as against that of Europeans, and
even the different methods that are sometimes required and the know
ledge that is necessary for the promotion of the agriculture of various
Native groups individually, as distinct from other Native groups. In
sum, Profcssor Krogh said:
"... because your problems are different you will have to have
differcnt approaches and you will have to use differcnt measures.
You will have to have different policies with regard to the economic
development of these particular groups and the areas which they
occupy ... ". (XI, p. 80.)
The problems are different and therefore the methods must be different.
In conclusion, l\fr. President, it must again be emphasized that all
these measures, to which I have refcrred, necessarily involve the allot
ment of status, rights, obligations and privileges, on the basis of member
ship in a group, class or race, rather than on the ha.sis of individual
quality, potential, etc. For the reasons I have also given, it would be
impractical in any of these cases to permit an individual to abandon or
to give up bis rights or his privileges or his disabilities as a member of
a particular group. That would render the whole purpose of the differ
entiation and of the measure nugatory.
Now, in culmination, .Mr. President, the question was asked of the
various witnesses in the economic sphere what, in their opinion, the
effect would be of abolishing these various differential measures. The
replies wcre the following. First, Professor Logan said:
"\Vell, I think probably what I have said during the past few
minutes bas somewhat led up to this: that to remove the contrais
would result in the domination of many by a few, would perhaps
result in the subjugation or almost the obliteration, of some of the
existing tribal groups, it would result, I think in many cases, in a
reversion to an old way of life and that was a way of violent antag
onism and frequently of warfare.
The economy, as it bas been developed, both on the European
basis, and on the Native ha.sis, would, to a large extent, fall apart.
ln other words, what I would visualize myself, if all contrais were
to be abolisheù in the area and all differentiation between groups
ignored, I am afraid a rather chaotic situation would develop."
(X, P· 375.)
That is the end of that quotation. I have already referred the Court to
Mr. Pepler's view-I have already quoted it and I shall not do so again
that the land rights would inevitably suffer. Professor Krogh said: ADDRESS BY MR. GROSSKOPF
"... under the circumstances I have sketched to you, and bearing
in mind these diverse social and economic conditions in South West
Africa, I have little doubt in saying that it would lead to the rapid
deterioration of the material and economic welfare of the majority
of the population, and by this I particularly refer to the non-White
population groups. I can also see that they would not tolerate this
and that this might very well lead to social strife, that would in
fact arrest the economic development of South West Africa. The
economic development of this Territory is exceptional in Africa,
even having grown from a lower base than that of the Republic of
South Africa, it has advanced at a rate faster than that of the
Republic of South Africa, during the last 40 years during which the
latter experienced a phenomenal industrial rcvolution. Confidence
would be lost, economic development and bettennent would be
arrested as a result of encouraging, as it were, social strife in the
Territory. And, I cannot see how the long tenn basic problems of
economic clevelopmcnt in South West Africa would thereby be made
any casier. In fact, I believe that more problems would be added
toits economic development." (XI, p. 86.) ·
That is the end of that quotation, Mr. President.
Those then are the witnesses who gave evidence specifically on the
economic field. I should like also to rcfer to one opinion of a person who
isnot an economist, and that is Dr. Eiselen.
Reference has alreadv been made to his evidcnce bv my leamed Senior,
:Mr. Muller, at pages 2Ô1-203, si,pra, and, although Ùr. Eiselen is not an
economist, he possesses, in my submission, such an intimate knowledge
of the people and the circumstances in South West Africa that he is
clearly competent to express a view on this particular question. It will
be recalled, Mr. President, that he was asked for an opinion as to the
effect of applying the Applicants' norm and standards in the economic
sphere also. His reply was:
"Mr. President, in the case of the economic sphere, it is very
difficult to think that anything could result from this except chaos.
1 have tried to put before the Court information in regard to the
state of civilization-the state of advancement-of the varions pop
ulation groups in South West Africa, and to explain that they have
not so far responded very well, and that applies particularly to the
field of economics where, on the one band, 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 deveioping commerce and industry in
their own areas, but have relied in all these matters upon the
initiative of the White people." (X, p. 114.)
That is the end of the quotation. The point to be emphasized is that the
witness considered that nothing could result from this except chaos.
~Ir.President, turning now to the reaction of Applicants to this
evidence-their reaction in the cconomic sphere followed much the same
pattern as that sketched by my learned Senior, Mr. de Villiers, on Monday,
which appears, at pages 218-219, supra, and Tuesday, which appears, at
pages 254-256, supra-it followed much the same pattern in that the
Applicants, in my submission, did not attempt to break down the wit
nesses' testimony nor to establish positively that a differential allotment
of rights, burdens, etc., indeed necessarily gave rise to undesirable con·3r2 SOUTH WEST AFRICA
sequences or, on the other hand, that the abolition of such differential
al!otmcnt would necessarily, as a fact, promote well-being. Instead, as
in the political aspect to which my learned Senior referred on Tuesday,
Applicants limited themselves to criticizing certain restricted aspects
of Respondent's policy, frequently without any apparent relationship to
the content of the norm or standard. Their emphasis fell, as in other
aspects, on the detriment which could conceivably be suffered by a
particular individual in particular circumstances. I do not want to give
a list of them ail; I may give somc examples-for instance, Professor
Logan was cross-examined on the question whether the Territory as a
whole is economically interdependent and the probable effccts jf the
various parts of the Tcrritory, or the various groups, wcrc so to speak
eut off into watcrtight compartments.
Now, if I may just comment, }Ir.President, assuming that it would be
indced impossible to do that, how does it assist my learned friend in his
case? That stil! does not show that any allotment must be wrong, any
differential allotment on the basis of group, race, etc. It merely shows
that a particular division, taking it to a particular extreme, which is in
any event not contemplated, might, or could be, a bad thing, but that
docs not show in any way that the norm could operate fully in South
West Africa, or that any allotment on a differential basis must neces
sarily be a bad thing.
Similarly, ilfr. President, there was a cross-examination of Professor
Logan on the future political rights of Natives in the White areas. That
is in X, at pages 392-396, on the question whethcr there is population
pressure on the land in Ovamboland-pages 406-4ro, and so on. There
again, of course, if population pressure exists, or if it does not exist, I do
not sec, with respect, what bearing that has on the existence of the norm.
Professor Krogh was cross-examined on methods of communication
between the various groups-that is in XI, at pages 87-90; the reason
why there is a Iack of enterprise in a commercial sense, or economic
sense, amongst the Natives and how that could be remcdicd-XI, at
pages 91-96; job reservation policies-a lot of emphasis was placed on
that-at pages rn7-r39, and so on. I do not want to go into ail the details,
Mr. President.
For reasons which my learned Senior, i\frde Villiers, dealt with, I
shall not go into the details of this cross-examination which might well
be clarified in due course when Applicants comment on the evidcnce.
However, ;\IrPresident, I would again emphasize and repeat that the
question whether or not particular mcasures can, or cannot, be justified
on the basis of economic or moral or other unformulated critcria, was not
canvassed by us and cannot, it is submitted ,vith respect, be passed upon
by the Court. There was never any attempt on our part to discuss the
economic or the social or the moral merits of each and every detailed
provision which has been referred to in this Court. It would indeed, in my ,
submission, as my learned friend, Ilfr. de Villiers, pointed out, have been
an emphatically long task to attempt to do that. One would never
reach the end of it and, in my submission, that applies a fortiori to the
issue whether and to what extent individuals are, or may be, harmed by
these particular measures-an issue which falls within an even smaller
compass. There are two issues there, Mr. President, first whether the
provision as a whole, as it stands, may be justified on the basis of some
economic or other criterion, and then there is the further question of how ADDRESS BY J'>1R.GROSSKOPF 313
an individual is affected. That is an even smaller issue, which of course
would form a part of the wider issue of the justifiability of the provision
itself,ut in itself it forms an even smaller cnquiry-a more limitcd
enquiry.
Jf I may i)]ustrate these submissions we have put before the Court,
with an example, I refer to the provisions of the Mining Proclamation,
to which a great deal of attention has been devoted in these procecdings
and which, as the Court will recall, provides certain restrictions as to
jobs which may be held by Natives in mines owned by Europeans. Now,
Mr. President, if one were to test this measure on the basis suggested by
my learned friend, on the basis of the norm as defined at page 493, of
the Reply, IV, then the problem is not a difficult one because then one
would merely look and see if there is an allotment of rights, burdens,
privileges, and if the basis of such allotment is membership in a group
irrespective of individual quality? However, i\1r. President, if one ,verc
to go beyond that and if one were to test ·it on the basis of other criteria
such as, for instance, economic advisability or social advisability, thcn
the problem becomes rnuch more difficult and, in my submission, virtually
insuperable. First, ifone werc to look purelyt economic criteria with which
wc are, at this stage of the argument, concerned, then one may look, in the
first instance, at the immediate economic implications of such a pro
vision and one may ask oneself if the effect of this measure is to keep
wagcs higher? Is the effect of this measure to keep more efficient workcrs
out of jobs which are at present bcing fi.lled by less efficient workers?
Thesc would be economic factors which might bear on the economic
justifiability ofthe measure and if one were to go into this, then, of
course, one would have to have evidence about this. One would have to
canvass thesc various things. One would, for instance, fi.ndout whethcr,
as a fact, wages are being increascd by such a measure. One would look
and see how wages are determined in these various occupations. Pos
sibly one could have evidence of pcrsons in the mining industry itself, or
persons associatcd with the mining industry, to tell the Court how wages
are determincd in the industry and they could possibly express an
opinion as to what extent, and in what manncr, these wagcs would be
affected if these provisions were not there.
One would also have to have evidcnce as to how many other persons,
that is persons who are at present debarred or not permitted, would, in
fact, be available.What practical effect \voulcl it have on wages? Would
it have any economic cffcct or not?
One would also have to see whethcr these pcrsons are better qualified:
would they, if they were appointed, make the industry a more efficient
one from an cconomic point of view, or would they not? These arc ail
matters to which one would have to give attention, and if they are not
at present better qualified, couicl one make them better qualified, could
one train them? If so, how much would it cost to train them? What
would be the pros and cons; would it be cheaper, or more efficient, to
employ an existing trained European: would it be more efficient econom
icallyto dismiss the trained European and to train a non-European who
might be prepared to work at a lower wage? Thcse things would have to
be investigated, and such evidence might, in my subrnission, show that
the measure bas no undesirable economic consequences, or it might show
that it has undesirable economic consequences, and if so, it would show
what the extent of the undesirable economic consequenccs is. SOUTH WEST AFRICA
Ifone takes it a step further, and one has regard also to wider economic
or socio-economic or social considerations, one would have to investigate
whether it would not, from this wider point of view, be necessary to have
these measures, whether they do not balance or outweigh the immediate
economic disadvantage which the previous enquiry to which I have
referred might have shown to exist. So, for instance, one could conceiv
ably lead evidence from persons in the mining industry, or persons with
knowledge of the mining industry or in contact therewith as to the
probable effect of lifting these restrictions-what would happen to the
present incumbents, would they Jose their occupations, would they be
forced to take a lower wage; if they were to Jose their occupations, are
there other occupations available for them; would they require training,
to what cxtent would this create social problems, or would it not create
social problems; how many of them are they, and so on? One would also
have to look at the industry as a whole. Would a lifting of this sort be
conducive to labour peace, or: to labour unrest? If it were to lead to
labour unrest, what would be the implications socially, economically?
One may have a purely economic disadvantage in the sense of a strike or
destruction of property, things of that sort, which would mean a loss
economically, apart from the social implications thereof. What would be
the probable effect of that, if any? These things would have, in my sub
mission, to be investigated. The latter aspect was briefly touched upon by
Professer Krogh, the Court will recall, in XI, at pages tog-no, where
he referred, amongst other things, to a 1922 labour unrcst on the Wit
watersrand which Jed to considerable destruction of property and even,
I think, bloodshed. Also one would have to invcstigate the availability
of necessary skillerl European operators if such a provision were not
there. In other words, if there were no such provision, would one get the
workers; would the Europeans make themselves available? If not, would
there be sufficient non-Europeans to do the job?
These things would have arisen had one had regard to economic
criteria or social criteria or socio-economic criteria in assessinge merits
of any particular measure such as that, and, in addition, one would also
have had to investigate the credit side, if I may put it that wav; in other
words, what benefit would actually have accrued if one had lifted these
measures? One would have had to see whether there is, in fact, at present
an uneconomic utilization of Native labour in the sense that qualified
people are unemployed, or in the sense that qualified people are employed
at a lower level than their qualifications would permit-that would have
had to be investigated~in other words, to see whether there is, in fact,
a real problem, or a real defect.
Indeed, Mr. President, you will recall that there has been considcrable
evidence that there is, in fact, an unsatisfied demand for educated or
trained Natives as it is; that there is, as a fact, not a surplus of trained
Natives or an underemployment of trained Natives; but If the question
had to be argued on a purely economic or social basis, then one would have
had to go into that more deeply. One could possibly call officiais of the
Department of Labour, or people of that sort, and one would have had
to see what the position was in other b~anches of industry-for instance,
in the fishing industry, where these restrictions do not apply. Are thcre
adequate opportunities, and so on? What would be the remedy if there
were persons underemployed or unemployed; are there enough openings,
where should one create them, and so on? AODRESS BY ~rn.GROSSKOPF 315
If one were to take the argument a step further, assuming that after
the enquiry I have postulated it appeared that from a financial or
economic point of view these measures were undoubtedly detrimental,
that they had a detrimental effect on the economy of the country seen in
isolation,then the further question would arise whether this dctrimental
effect is not part of the price which bas to be paid for a peaceful pattern
of race relations in a terri tory wherc ail progress depends on racial pcace.
This issue would then have required an assessment of the measure in
question in the whole context of the policies applied in the Territory as a
whole, because even from an economic point of view, of course, one can
have no progress in the absence of a relative state of peace anyway.
So that, then, in broad outline is the type of enquiry on which one
would have had to embark if this Court would have been required to
decide whether a particular measure is or is not a sound one from an
economic point of view or from a social point of view, and if one were to
embark on such an enquiry, one would, I take it, or one could in theory,
in man y cases reach the situation where a particular measure has certain
pros and certain cons; therc are certain things to be said in favour of it,
and there are certain things to be said against it. How would the Court,
in the ultimate result, measure the over-all effect? \Vhat criterion would
the Court apply in deciding that a particular measure is on the whole a
good one or a bad one? In my submission, no criterion for that sort of
enquiry has becn suggested, certainly not by my learned friends' case as
it now stands, and consequently no such enquiry was essayed by us.
As my learned Senior, i\frde Villiers, also indicated in another con
text, I may add that the same type of investigation ,vould have been
necessary if the Applicants had kept to their original case based on
oppression; thcn one might very wcll have had to go into this sort of
thing, but then only as a method, of course, in testing the Mandatory's
state of mind. Then the question would not have been whcther the
measure is sound or is not sound as measured against some standard of
economics or social science; then the question wou1d have been whether
the measure is such that an inferencc as to state of mind may be drawn
from it. A final purpose for which the investigation would have been
conducted would have been a different one, but the type of investigation
would have been much the same.
However, this of course we have not met now, Applicants have not
made this case any more, and the sole issue ,vith which we dealt, was
whether there exists this absolute rule which per seprohibits any allot
ment of status, rights, etc., on the basis of membership in a group rather
than on individual qualities. And the imrnediate question with which
I dealt specifically, is whether the application of such a rule would or
would not, in fact, promote well-being and progress in the economic field,
including the field, of course, of employment opportunities, and to this
question, it is submitted, the Applicants did not advert in their cross
examination at all. In the result my submission is that the vicws of our
experts, fully supportcd by the admitted facts of record, stand com
pletely unchallenged.
Therefore, in conclusion, I submit that, for the reasons I have dealt
with, the Court will hold that the application of a norm or standards as
defined at page 493, IV, of the Reply to the economic life of the Territory
wou1d be incompatible with the well-being and progress of ail the inhab
itants, including, in particular, the Native inhabitants, and since this is SOUTH WEST AFRICA
the final aspect under Article 2 (2) I may recall to the Court that this
was also the conclusion which was reached in respect of the situation in
other fields of the Territory's life~that is, in the general lifc of the
Territory and also in respect of each of the various aspects, such as the
political aspects and the educational aspect and so on.
Mr. President, this thcn also virtually completes our argument on
Article 2, paragraph z, of the Mandate. Sorne concluding reinarks will
still be made on the whole of the case, including Article z,paragraph z,
but this will, with the Court's leave, follow after wc have also dealt with
the remaining submissions of the Applicants, that is, those submissions
relating to militarization and to unilateral incorporation, with which we
shall deal very briefly. Howcver, as far as the merits are concerned, this
then concludes our treatment of Article z and we have, it is submitted,
shown firstly that the United Nations organs on which my learned friend
relied have not purported to and have not, 1n fact, created any norm or
standards of the content on which he relied. \Ve have also, in mv sub
mission, shown that no such norm is generally appliecl in the practice of
States, and we have also demonstrated, in my submission, that the appli
cation of such a norm to South West Africa would be incompatible with
well-being and progress. In the process of this last demonstration we
provided further ev1dence, it is submitted, of the unreliability of the
petitioners on whose testimony the norm or standards on which my
learned friend relies, to such a large extent ultimately depend.
Ifthe Court will permit me, Mr. President, I shall then pass over to the
question of militarization, which is the next topic with which we shall
deal briefly, and in respect of which complaints were made against us.
The PRESIDENT: Please do.
Mr. GROSSKOPF: Now, Mr. President, the Court will recall that the
military clause in the Mandate is Article 4, which reads as follows:
"The military training of the natives, otherwise than for purposes
of internai police and the local defcnce of the territory, shall be
prohibited. Furthermore, no military or naval bases shall be estab
lished or fortifications erccted in the territory.''
In the Oral Procecdings the Applicants did not devote any grcat atten
tion to their charges under militarization, and it will accordingly also not
be necessary for us to deal with the matter in any great detail. However,
in view of the fact that the Applicants have at various stages in these
procccdings made serious allegations of violations of Article 4 of the
l\Iandate, and in view ·of the fact that similar and even more serious
accusations are still persistently levelled against Respondent clsewhere,
we cannot ignore this topic completely. \Ve shall therefore deal with it
fairly briefly.
To see the matter in its whole perspective it is, in my submission,
necessary to trace in broad outline the dispute as it emerged in the
pleadings. In the ~Iemorials, the Court will recall, the Applicants' case
was summarized as follows, and I quote from the i\lemorials, I, page 181:
"The Applicant has not been able to make an independent veri
fication ofthe existence or nonexistence of 'bases' or 'fortifications'
in the Territory, but on the basis of statements contained in the
'Report of the Committee on South West Africa' for the years 1959
and 1960, it alleges upon information and belief that the Union
maintains three 'military bases' within the Territory." ADDRESS BY :>IR. GROSSKOPF 317
Now these three military bases werc allegcd to be the following:
Firstly,the supply and maintenance facilities of Regiment Windhoek,
together with the vehicles and matcrial of the Regimcnt itself. That ap
pears in the same volume of the Memorials, I, at pages 181-182 and pages
182-183. Secondly, an alleged military landing field at Swakopmund.
That appcars at pages 182-183. And thirdly, a military camp and/or
military airfield at Ohopoho in the Kaokoveld. That appcars on the same
pages.
Thesc were the three military bases which, in the Memorials, Appli
cants alleged had been established in the Terri tory. The basis upon which
these installations,or allegcd installations, were contendecl to constitute
military bases, was defined as follows, at page 181, I:
"Armcd installations not related to police protection or internai
security fall withinthe class of 'military bases' or 'fortifications' and
are thercfore prohibited by Article 4 of the Mandat..-;."
That was the criterion which was suggcstcd-"armed installations" which
do not relate to "police protection or interna! security"~that was the
test. ln accordance with this statement the thrce alleged military bases
were said to be such because (and I quote from p. 182): "its purpose is
not police protection or internai security." Now, as I submit we demon
strated, Mr. President, this, of course, is not a tenable basis for dcciding
whether a particular installation is a military base or not. The fact that
an installation is, or is not. re1ated to police protection or internai sccur
ity certainly, in our submission, cannot ordinarily be a reason for decid
ing whethcr it is a military base or not-the two enquiries seem to be
cntirelv diffcrent oncs. As, in our submission, we showcd in the Counter
:l'lfemorial,this whole test was devised because of an artificial and fal
lacious interpretation of the miHtary clause itself in so far as it dealt with
the trainfog of persons. The criterion used for training of persons was
applied to the othcr question, namely whether a facility was a military
base or not. And we dealt with these arguments in the Counter-Memorial,
IV, at pages 47-63.
Firstly, 11Ir. President, we considercd what was to be regarded as
understood by the expression "military bases" as used in Article 4 of
the :Mandate. For this purpose wc provided an analysis of the wording
of the i\llandate and of Article 22 of the Covenant, a survey of the drafting
history of these provisions, and we furthcr referred to standard dic
tionaries and to practice during the League period. After these various
things had been considered, we concluded, at page 50, IV:
"Consequently, failing the purpose of ittilization for operations or
a campaign, actteal or prospective, by a force or an army, a place
cannot be said to be maintained as a military or naval base."
That was the criterion which we suggested, namely the purpose of
utilization for operations or a campaign, actual or prospective, and it
may be noted in passing that Gencral Marshall who was called as a
witness by us, said in cross-examination that this formula constitutes:
"an acceptable definition". That was in XI, at page 589, and later at
page 596 he called it "a fair definition". At this stage. Mr. President,
I may just say that General Marshall's expertise is set out in XI, at
pages 574-576, and it is submitted that he is cminently qualified to
express opinions on military matters. In fact, Applicants conceded that318 SOUTH WEST AFRICA
he is "indeed a recognized military authority and widely read as such
in our native country". This appears in XI, at page 587.
Now, Mr. President, Applicants' reaction to our Counter-Memoria1
and our submissions as to what constitutes a military base, and the
application thereof to the facts, can, in my submission, best be dealt
with in relation to each of the three alleged military bases separately,
since different considerations arise in respect of each. Conscquently,
I shall first deal with Regiment Windhoek.
This was dealt with in the Counter-Memorial, IV, pages 54-57. There
we set out the two facts showing that the only purpose of the Regiment
is to provide training facilities for European civilians in the Territory
who are required to undergo a few weeks' military training per year for
a period of three years for the purpose of defence of the Territory, and,
in our submission, this could not possibly constitute a military base.
Evidence to the same effect was given by General Marshall in XI, at
pages 580-582 and 593-597, where he also confirmed that that particular
institution was no military base. .
Faced with these facts, l\1r.President, the Applicants would not concede
that the information and belief on which they had relied in the Memorials
for thcir charges, had been incorrect. That they would not concede,
but they sought to justify their previous attitude, which, in view of
the change which had occurred in the facts, or in view of the true facts,
in our submission, was no longer tenable, with a number of what we
submit to be expostfacto rationalizations.It is, with respect, not necessary
to analyse all the arguments used in the Reply, it is sufficient to note
that they raised rather extreme and unlikely suggestions. One was,
for instance, that only Natives could legitimately be trained "for purposes
of internai police and the local defence of the terri tory". That they
tried to justify on an interpretation of Article 4, at page 567, IV, of the
Reply.
Another contention of theirs was that Article 4 would be contravened
unless Respondent could say "that there [is] not in the entire territory
a single soldier or sailor on the active list". This is from the Reply,
IV, at page 559.
There were also similar arguments, 1\Ir. President, which we dealt
with in our pleadings, in the Rejoinder, and I shall not analyse them
in detail here, but if the Court wishes it can have regard to our written
pleadings on this point.
Specifically, as regards Regiment Windhoek, the Applicants said in
the Reply, IV, at page 558:
"... the growth of Regiment Windhoek in its several forms sincc
1946, its incorporation as 'an integral part of the South African
Defence Forces', its establishment as part of the South West Africa
Command of the defence establishment of the Republic of South
Africa, and its corresponding place in the Republic's administrative
hierarchy and chain of command, constitute a violation of Article 4
of the Mandate".
These points were dealt with in the Rejoinder, VI, pages 369-376.
I do not wish to repeat our arguments here, Mr. President. In our
submission, the Applicants' contentions were so far-fetched and fallacious
that they hardly needed refutation. Howevcr, the Court may, with
respect, have regard or may refer to our pleadings for our more specific ADDRESS BY MR. GROSSKOPF 319
answers to these various contentions. \\!bat I do want to sav now is
that it will,of course, also be evident that the reasons given in the
Reply as to why this Regiment Windhoek was allegedly a military base
were entirely different from those which had appeared originally in the
Memorials. No longer \vas it the test, as in the Memorials; now entirely
different criteria are suggested.
I now turn to the alleged military landing ground in Swakopmund.
In the Counter-Memorial we showed that the landing ground in question
was not situated in Swakopmuncl at ail, but in Walvis Bay, which is
not a part of the Territory of South \Vest Africa, but is a part of the
Cape Province of the Republic of South Africa. That was in the Counter
i\lemorial, IV, pages 57-58. So that the whole basis on which the charge
had been brought, fell away. There was no landing ground in South
West Africa at ail; the landing ground was on territory of the Republic
of South Africa itself. However, instead of leaving it there and admitting
that the information and belief on which the charge had been brought
had turned out to be erroneous, Applicants contended in the RepJy,
IV, at page 560:
"... [that] Walvis Bay must. in a military sense, be considered to
be 'in' South West Africa, inasmuch as it is complctely surrounded
by territory subjcct to the :tlfandate and necessarily depends thereon
for essential services,transport, communications and supplies, in
cluding water".
So that no longer is it, in fact, in South West Africa, ü is only in a
military sense in South \Vest Africa. Thcse contentions, Mr. President,
we dealt with in the Rejoinder, VI, pages 374-376, where we demonstrated,
it is submitted, that they wcre neither factually correct nor legally
tenable, so that, in fact, Walvis Bay is, for instance, not completely
surrounded by territory subject to the Mandate, and in any evcnt, we
submitted that legally this argument is untenable.
Now, the only further reference to this line of argument came during
the cross-examination of General Marshall. when he was asked whether
planes on military missions from Walvis Bay ever overflew South West
Africa. The General said that he had no knowledge thereof. That was
in XI, at pages 595-596. My lcarned friend thcn asked, at page 596 of the
same record:
"As a military analyst could you say whether, on the basis of
your own visit to Walvis Bay, planes taking off from the airfield
there would have to either flv over the water or over South \Vest
Africa?" .
With respect, l\fr. President, the answer to this question becomes clear
even to a non-military analyst who had only seen a map of the Territory,
but in my submission the relevance of the question is not as rcadily
apparent as the answer to the question.
[Public hearing of 5 November I965]
Mr. President, at the conclusion I was dealing with the tapie of
militarization, and as I pointed out yesterday the Applicants' original
case in this regard was based on the alleged existence of three military
bases-that is, the Regiment Windhoek, an alleged airfield at Swakop
mund and a military camp and/or a military airfield at Ohopoho. Their320 SOUTH WEST AFRICA
reason in the :Memorials for saying that thesc installations were military
bases was that their purpose was not police protection a,nd interna!
security. \Ve dealt with the facts and with the law in our Counter
Memorial, and thercafter Applicants changcd the basis of their case.
In regard to the Regiment Windhoek they now advanced cntirely
different criteria for sayingthat the facilities constituted a military base,
criteria which we submit to be entirely irrelcvant to the issue. In regard
to the alleged air-field at Swakopmund, the Court will recall, this turned
out to be in fact in Walvis Bay, and Applicants thereafter changed their
attitude to say that although this airfield was in a gcographical sense
not within the Territory, nevertheless in a military sense it was so
within the Territory. This contention also we submittcd to be entirely
untenable. ln both cases, however, which was the point we really sought
to make, Applicants still insisted that the facilities were in fact military
bases, although for different reasons from those which they had advanced
in the Memorials. The same applies to the alleged military camp and/or
military airficld at Ohopoho, to which I shall now turn.
The nature of thesc facilities was described in the Counter-Mcmorial,
IV, at pages 59-61, and was again described by Gencral Marshall in his
cvidence, which is recorded at XI, pages 577-580. The Court will recall
that he said at XI, page 579: "... in my judgment, any plane that can
land in that field could also put clown safely in the Bush". He was
asked at the same page: "\Vere there any indications that there had
ever been a military base at Ohopoho?", and his reply was: "No,
l\Ir.President. There were no indications whatever." This statement was
not challenged in any way in cross-examination.
ln their Reply, IV, at pages 561-562, the Applicants were reduced to
arguing that the strip at Ohopoho, in common with similar strips in
other parts of the Territory, were military bases because, so they said,
they were used at intermittent intervals for the training of air force
personnel for purposes of defence, for purposes of internai security and
rescue opcrations, and because they could in future be used for military
purposes; that \\ras an aspect on which they also relied, and which indeed
they emphasized-that these installations, although possibly not at the.
moment usecl for military purposcs except in a very unnatural, strained
sense, could be so used in the future, and this latter argument was
taken to what we submit to be its ultimate absurdity during the cross
examination of General Marshall. He was asked:
"Would you dcscribe, Sir, on the basis of your military expertise,
in a very general way, to the Court, as briefly as possible, the nature
of the current military technology with respect to helicopters or
other methods of vertical envelopment." (XI, p. 592.)
His reply was:
"In the simplest terms, Mr. President, if you have a piece of flat
ground anywhere on earth, this can be made a military base if you
want to strain the meaning of the term, because you can put a
helicoptcr down on a pad of that size and it can fight from that
ground, so therc would be scarcely a bit of South West Africa that
could not be thought of as a military base if one wants to argue
that point of view. Almost any piece of ground there will accom
modatc a helicopter." (Ibid.) ADDRESS BY MR. GROSSKOPF 321
Apparently the suggestion that because one can put a helicopter down
on a particular airfield, whatever the nature of the airfield, in some way
bears on the question whether it is a military base or not.
In the Reply Applicants also contended that lack of supervision over
the Territory in some way affected the nature of these various installa
tions-that was at page 562, IV. However, since this is the only argument
which is still relied upon by Applicants, or at any rate the only one
which they advanced during the Oral Proceedings, I shall corne to
that at a somewhat later stage. In the Reply also, possibly because
Applicants realized the weakness of their case on military bases, they
introduced a new omnibus charge relating to military activity in general
-that was at pages 562-563, IV. ln this they referred to "Respondent's
ever-increasing military activity in the Territory" (p. 562). In passing
it may be notcd that this charge was in the Reply based entircly on
certain resolutions of the General Assembly of the United Nations which
in turn were based on information derived from petitioners-that appears
in the Reply, IV, pages 562-563. lt is, in my submission, not necessary
to refer to these detailed allegations which were, in our submission,
as untenable as, or more so than, the original comp!aints in the Memorials
which had also, as the Court wiH recal1, been based on what was said
to be information and belief, and we dealt with this whole topic in the
Rejoinder, VI, pages 379-381, where, in my submission, we showed the
untenability thereof. On this general aspect General Marshall also gave
evidence, and he said, at XI, page 587; "... the Territory is less mili
tarized and more under-armed than any territory of its size I have ever
seen in the world." Also this statement was not contested in cross
examination. lndeed, my learned friend, Mr. Gross, referred in general
at XI, page 590 to the "first-hand, authentic and undoubtedly correct
factual statement" of what the witness had seen as a result of his inspec
tion, sothat there was no attack upon the correctness or the authenticity
of the statements which General .Marshall made.
That is where the matter ends, but 1 should like to point out that
this again underlines the complete unreliability of the petitioners, and
also the extent to which they have misled not only certain organs of
the United Nations but also apparcntly Applicants themselves. This
process, as we have shown, still continues. The Court will recall that
Mr. Van Rooyen, my learned friend, dealt with this last Wednesd~y
at pages 124-127, supra, where he gave some examples of the w1ld
allegations that were made, inter alia, with reference to allegations
regarding a certain alleged atomic testing centre, which turned out to
be completely untrue.
Those, then, were the complaints in the pleadings, and I shall now
advert to what was said in the Oral Proceedings. In the opening argument,
that is in the verbatim record of 18 March, at VIII, page 135, Applicants'
Agent said:
"Now I turn very briefly, Mr. President, with your permissfon,
to the asserted violations of Article 4 ... of the Mandate. The
Applicants will deal at the later, if I may call it, fact stage of these
proceedings, with the issues presented by Respondent's asserted
violations of Article 4 ofthe Mandate, the so-called 'military clause'
... It does appear pertinent, however, at this legal stage of these
proceedings to note that the controversy placed before the Court
with respect to factual issues involved in the so-called 'military322 SOUTH WEST AFRICA
clause' of Article 4, are before the Court as a result of the lack,
or default, of administrative supervisory authority, which would be
in a position to ascertain the true state of affairs ...
The facts asserted by the Applicants with respect to this matter
must, under the circumstances, be asserted on what would be called,
in jurisdictions with which I am familiar, information and belief."
It appears from that at that stage the Applicants still asserted certain
facts on the basis of information and behef, which facts had been con
troverted by Respondent in the pleadings. and that they intended to
deal with this controversy at the so-called "fact stage" of the proceedings;
there then was, in the way in which they saw the matter, still a factual
dispute which had to be dealt with at some later stage.
During Applicants' oral reply on the legal aspects they once more
came to deal with this question of militarization. However, that was
after they had already generally adrnitted all averments of fact in our
pleadings, so then, when they dealt with it at that stage, they had
already previously generally admitted al! the facts which were in dispute,
and al! the facts in Respondent's pleadings. This was specifically repeated
by Applicants in direct relation to the question of militarization in the
verbatim record of 12 May, at IX, page 235, when they referred to-
". . . the facts with respect . . . to militarization ... , as disputed
by the Respondent, and as subsequently accepted by the Applicants
for purposes of these proceedings ... ".
It is consequently clear, in our submission, that whereas the Applicants
originally indicated that they were going to deal with the issues regarding
militarization "at the later fact stage of these proceedings", there ulti
mately did not remain any issue of fact to be dealt with, and apparently
for this reason Applicants disposed of the whole issue in their oral
reply to Respondent's legal argument in a short passage which the Court
may find in the verbatim record at IX, pages 234-237-that was on
12 May. Since this is now the point which they defended before this
Court it does, in my submission, call for close scrutiny.
They do not at those pages deal with complaints regarding militariza
tion as a substantive submission standing on its own any more. They
couple it with the argument that administrative supervision is a necessity
if the Mandate is to survive at ail. In other words, they couple it to
the argument regarding Article 6 of the Mandate. They deal with it
with the context o( the necessity which they claim to exist for a con
tinued existence of supervision, and they do so after referring to certain
aspects of necessity which they said existed. which we have already
dealt with in our legal argument, and thereafter they then said, at IX,
page 235 of that same record:
"... identical considerations with respect to the scope and impor
tance of administrative supervision underlie the Applicants' 5th
and 6th Submissions which relate, respectively, to the Respondent's
asserted violation of the international status of the Territory and
to the establishment of military bases therein. I refer the Court to
the submissions set forth in the Memorials, I, at page 198.
It is regarded ... by the Applicants, as appropriate to consider
and dispose of these submissions at this stage in the context of the
requirement of administrative supervision which the Applicants
contend as a matter of l<!,Wmust exist so long as the Mandate itself ADDRESS BY MR. GROSSKOPF 323
endures, because ... the necessity for continuing administrative
supervision is highlighted by considerations which relate to these
Submissions 5 and 6."
In this context then, they wish to dispose of the submissions. On the
next page they stated that:
''... the failure of administrative supervision, the absence of effec
tive consultation and information ... transcend, although they
include, the Applicants' request for a favourable determination on
their 6th Submission ... ". (IX, p. 236.)
Finally, on the same page of that record they refer to:
"... the Applicants' contention to the effect that the absence of
administrative supervision in the case of doubt concerning the,
nature of an installation resolves such doubt against the mandatory".
I would emphasize, l\Ir. President, that their contention is that the
absence of administrative supervision in the case of doubt concerning
the nature of an installation resolves such doubt against the Mandatory.
Now, from ail this, in my submission, it becomes clear that Applicants
in the Oral Proceedings advanced only one central theme regarding
Submission 6. Their theme is that the Court should :find in favour of
Applicants, and against Respondent, because Respondent has not sub
mitted to administrative supervision by the General Assembly of the
United Nations. This seems to be the only case which they presented to
the Court during the Oral Proceedings. The facts which they admitted
to be true are apparently ail relegated to the background and are not
even referred to. As a matter of tact, thcy refer to Regiment Windhoek
and to Respondent's statement in the Rejoinder, VI, page 370 that:
"The issue turns on the question whether the complex of what
has been established and what is being done at the establishment
constitutes a military base." (IX, p. 237.)
Now, Applicants refer to this statement which we made, but in regard
thereto all that they say is the following, and I quote from the same
verbatim record at the same page:
"Mr. President, His not the purpose of thcse refcrences to enquire
into the accuracy of the information, to weigh and evaluate îts
significance, to consider its merits in any respect ... "
And, Mr. President, I may add that this is the sole specific reference
in the whole of the Oral Proceedings to any of the carlier alleged military
bases.
Now, if one were to apply this test which is now propounded by the
Applicants, namcly that Jack of supervision resolves any doubt as to
the nature of an installation against the Mandatory, the question im
mediately arises, what possible doubt could there be concerning the
nature of any installation after Applicants had admitted as true all
Respondent's statements of fact? Once they admit all our facts, what
doubt could there be? In our submission, }Ir. President, there could
not be any doubt whatevcr. What then must one understand of this
contention? What do the Applicants intend to convey? What effect
could the lack of supervision have on the question whether or not a
particular installation is a military base? Let us analyse this question
with reference to the three alleged military bases: for instance, first,
if one has regard to Regiment Windhoek-would these facilities which324 SOUTH WEST AFRICA
have been described in the pleadings and are admitted, which have been
described by General Marshall and not contested, and in fact also ad
mitted, constitute a military base while there is no supervision. and
cease being a military base once supervision is established?
Secondly, Mr. President, if one has regard to the airfield at Walvis
Bay-would that airfield become a part of the Territory, would it be
included within the Territory when there is no supervision, and move
out of the Territory again when supervision is established?
Thirdly, if one has regard to the rudimentary, primitive landing
strips at Ohopoho and other places, to which we referred in the pleadings
and which General Marshall described so graphically to the Court, would
they change their essential character merely by reason of the existence
or non-existence of supervision? The answer to these questions, Mr. Presi
dent, must clearly be in the negative. in our submission.
However, Mr. President, this argument may be taken a step further.
In the Memorials, Applicants' Submission 6 as it was then formulatcd
read as follows:
"the Union, by virtuc of the acts described in Chapter VII herein,
has established military bases within the Territory in violation of
its obligationsas stated in Article 4 of the Mandate and Article 22
of the Covenant; that the Union has the duty forthwith to remove
ail such military bases from within the Terri tory; and that the
Union has the dutv to refrain from the establishment of militarv
bases within the Térritory ;" (I, p. r98). ·
In the Reply, the submission was, without any amendment, reaffirmed
and incorporated by referencc, and that one frnds at page 588, IV, of the
Reply.
At the conclusion of the AppJicants' case this submission was refor
mulated (this was the position, of course, with certain others) and it
now reads:
"Respondent has established military bases within the Territory
in violation of its obligations as stated in Article 4 of the Mandate
and Article 22 of the Covenant; that Respondent has the duty
forthwith to remove ail such military bases from within the Terri
tory; and that Respondent has the dut y to refrain from the establish
ment of military bases within the Territory;" (IX, p. 375).
The Court wiU see that the reference to the acts described in Chapter VII
of the Memorials has fallen away. Now, this amendment was probably
regarded as necessary because the Applicants' case had meanwhile been
widened beyond what it had been in the Memorials by including this
omnibus allegation of military activities in general. However, Mr. Presi
dent, be that as it may, that is not the point which I want to make really.
The point which I do want to make is that the Applicants still ask for an
order decJaring "... that Respondent forthwith has the duty to remove
ail suchmilitary bases from within the Territory".
Now, Mr. President, what is Respondent to remove? Should Respon
dent now remove these admitted facilities which are either non-military
or are outside the Territorv? In our submission, no answer at ail is pro
vided to these questions, and indeed the matter goes further than that.
In the Oral Proceedings Applicants also said:
"The techniques and !ogistics of military science in r965 are such ADDRESS BY MR. GR0SSKOPF
that the Territory could effectively be militarized in two or three
days, or a shorter time than that." (IX, p. 235.}
This line was also pursued in the cross-examination of General ~1arshall
at XI, page 592 and the following pages.
Now, if we understand that correctly, the implication would appear to
be that Rcspondent must be deemed to be guilty of a violation of Arti
cle 4 by rcason of a combination between Jack of supervision on the one
hand and the technical ability to militarize the Territory within a short
time. ln other words, because there is no supervision, and because it is
technically possible to militarize the Territory in a very short space of
time, therefore Respondent must be guilty of a contravention of the
military clause. That, as we understand it, seems to be the argument.
Now, !lfr. President, this may or may not be an argument in favour of the
necessity of supervision; that is another matter with which I am not
dealing at present. It may be said that supervision would be neccssary,
or desirable, because there is this technical ability to militarizc the
Territory, but this feature could hardly show that there is any reason for
holding that Respondent (and I quote from the submission) "has cstab
lished military bases". And, furthermore, it can hardly show that Re
spondent has the duty "to remove all such bases". How, ~Ir. President,
does one remove a base which ex hypothesi is going to be establishcd, if
at all, only in the future? The Court will recall that I dealt with a similar
argument regarding airstrips where the suggestion was also made that
these airstrips, whatever their purpose and nature might be at present,
might in the future be converted for military use. That is a similar argu
ment relating specifically to airstrips, and that I have already dealt with,
and I gave references in the Rejoinder.
Now, for all these reasons, Mr. President, we submit that Applicants'
Submission No. 6 has very plainly been shown to be without any sub
stance whatsoever, and we ask the Court that it should be dismissed.
Thank you, Mr. President. With the Court's leave my learned senior,
Mr. de Villiers, will now continue Respondent's address.326
33. ADDRESS BY ~1R. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEAHING OF 5 NOVEMBER 1965
Mr. President, honourable Members of the Court, I should like to
begin by correcting a statement of fact which I made to the Court on
Tuesday. I referred to the Van Zyl Commission of 1936, also known as
the Constitution Commission, and said that it had consisted of three
judges. That was unfortunately wrong-the actual composition was two
judges and an economist. The rcference is to page 242, supra, of the
record of Tuesday, 2 November. I apo1ogize for the slip in my memory.
I propose to deal now, Mr. President, with the Applicants' Subrnission
No. 5 very briefly,and thereafter their Submission No. 9-No. S relating
to incorporation and No. 9 to unilateral amendment of the mandate
instrument.
The course of events in regard to these two submissions of the Appli
cants, Mr. President, was very rnuch similar to that in regard to militariza
tion, which has just been dealt with by my learned friend, Mr. Grosskopf.
In both instances we find also that there was, during the pleadings stage,
a graduai amendment or change of the grounds upon which the Appli
cants relied in support of their submissions, until eventually, when we
came to the Oral Proceedings stage and to the close of the Applicants'
case in that respect, nothing remained of the original grounds of the
pleadings and therc was substituted a completely new ground in each
case. And the rneasure of agreement does not stop there, because this
new ground relied upon in the Oral Proceedings was indeed exactly the
same in both these cases as it was in the case of militarization. It was
reliance upon the proposition that failure, on the Respondent's part, to
submit to international supervision or to the supervision of the General
Assembly of the United Nations, constituted not only a violation of the
Respondent's obligations under Article 6 of the Mandate, but also a
violation of the Respondent's obligations in these particular respects.
In these circumstances, Mr. President, it is unnecessary for me to take
up the time of the Court with a detailed examination of what went in the
pleadings. I shall deal with that briefly, in order to indicate that the
Applicants were forced into this new ground-into this shift of ground
which brought them to this rather desperate contention at the Oral
:rroceedings stage; and then I shall deal very briefly with their contention
m each case.
Starting, then, with Submission No. 5, incorporation: the change in the
Applicants' case to which I have referred, is marked immediately by a
comparison of the formai submission, as originally contained in the
Memorials, with the submission in its final and amended form, as putto
the Court on 19 May. In the Memorials the submission read as follows:
"the Union, by word and by action, in the respects set forth in
Chapter VIII of this Memorial. has treated the Terri tory in a manner
inconsistent with the international status of the Territory, and has
thereby impeded opportunities for self-determination by the inhabi
tants of the Terri tory; that such treatment is in violation of the ADDRESS BY MR. DE VILLIERS 327
Union's obligations as stated in the first paragraph of Article 2 of
the i11andate and Article 22 of the Covenant; that the Union has the
duty forthwith to cease the actions summarized in Section C of
Chapter VIII herein, and to refrain from similar actions in the
future; and that the Union has the duty to accord full faith and
respect to the international status of the Territory;" (1, p. 198).
Mr. President, a feature of this submission is that the word and the
action complained of are identified; it is identified "in the respects set
forth in Chapter VIII of this Memorial'' ;and again, when there is reference
to a duty to cease particular actions, the actions are identified as those
"summarized in Section C of Chapter VIII" therein. Reference to Sec
tion C of that chapter in the :.\1emorials, Mr. President, will reveal that
the actions fell under four headings, as there summarized. One related to
a matter of citizenship; another related to a matter of representation in
the Union Parliament, as it then was, now the Republican Parliament;
another related to the case of separate administration of the Eastern
Caprivi, and the fourth related to certain matters pertaining to adminis
tration in regard to the Native Trust and to Native affairs generally.
Those were the four actions listed, which had been dealt with earlier in
that chapter in purported support of this submission. I may say that the
submission was re.affirmed, or incorporated by reference, in the Reply,
IV, at page 588, without any change.
Then at the conclusion of the Applicants' case on rg :Maythe reformula
tian read as follows:
"Respondent, by word and by action, has treated the Territory
in a manner inconsistent with the international status of the Terri
tory, and has thereby impeded opportunities for self-determination
by the inhabitants of the Territory; that such treatment is in viola
tion of Respondent's obligations as stated in the fi.rst paragraph of
Article 2 of the Mandate and Article 22 of the Covenant; that Re
spondent has the duty forthwith to cease such actions, and ta refrain
from similar actions in the future; and that Respondent has the duty
to accord fuH faith and respect to the international status of the
Terri tory;''.
That is at IX, pages 374-375 of the verbatim record of 19 May, Mr. Presi
dent.
lmmecliately it will be apparent that the two features of the first sub
mission, to which I referred before, have fallen away. There is now no
longer any identification of the word or the action complained of, and
there is no identification of the actions from which Respondent has the
duty to refrain in future.
Now, Mr. President, let us look briefly into what happened in the
pleadings. The Applicants started off in the Memorials by construing a
legal prohibition against "unilateral annexation or other unilateral pro
cesses of incorporation": we find that in the Memorials, at 1, page 184.
They then stated that "incorporation or annexation can take place
through ... graduai and erosive processes": that is at page 185. And it
then became apparent that under this Submission No. 5 the Applicants
were bringing a charge, a charge of fact. against the Respondent, namely
one of piece-meal incorporation of the Territory. And in this respect they
made this submission of law, at page 186 of the Memorials:
"Piece-meal incorporation ... is bath insidious and elusive. Mo- SOUTH WEST AFRICA
tive is an important indicator since it sheds light upon the signifi
cance of individual actions, whichmightotherwiseseemambiguous."
This was the conclusion of their statement on the law in the )iemorials
and they proceeded on that basis with their exposition of the facts.
In accordance with their appreciation of the importance of the rote to
be played by motive or intent, they then proceeded with an attempt to
show that the Respondent had an intent or purpose to incorporate the
Territory, and they alleged that that intent or purpose was manifest
from certain official statements, which they proceeded to cite.
Clearly, Mr. President, they were dealing here, then, with allegations
of fact, asto what the intent or the purpose of the Respondent Govern
ment was in this respect, and an attempt was made to substantiate the
allegations of fact with direct evidence-direct evidence coming from
persons who had spoken about the matter. Having set out these state
ments on which they relied in the Memorials, the Applicants then drew
this eventual conclusion. I quote from the Memorials, I, at page 189:
"A1though the Union has not chosen, at least up to the present,
to announce de fure annexation, its purpose is incorporation. The
Union, in furtherance of this purpose, avowedly treats as null and
void the obligations stated in Article 22 of the Covenant and the
Mandate, which prohibit unilateral annexation and contemplate
progress toward self-determination."
So, Mr. President, having then purported to establish by direct evi
dence this intent to incorporate, they sought to build further upon this
foundation, and they alleged that this so-called intent "has been given
practical effect by, and explains" (1,p. 189) Respondent's actions. The
individual actions complained of were then dealt with-the four I
mentioned before-and they were stigmatized as "part of a plan to
incorporate the Terri tory". That we find in the Memorials, at I, page 193.
And, fi.nally, intheir legal conclusions, the Applicants stated as follows
in the Memorials:
"By the foregoing actions, read in the light of the Union's avowed
intent, the Union has violated, and is violating, its international
obligations stated in Article 22." (1,p. 195.)
So, Mr. President, it was clear that this "avowed intent" was of the
essence of the case presented against the Respondent as at that stage.
It formed the basis; bccause of this alleged "plan to incorporate the
Territory", ail these acts were also invalidated as forming part and parcel
of that plan. Basically, then, it was a case of fact made against us in that
respect.
It was also clear that the Applicants then accepted the necessity of
proving this intention to incorporate on the Respondent's part, as they
attempted to do. We deal with that matter especially in our Counter-
1\Iemorial, IV, at pages 74-75.
We dealt fully with the law and the facts in the Counter-Memorial, IV,
over the pages 67 to r33. Analysing the legal position, we emphasized
the feature that the Respondent has, in terms of the Mandate, "full
power of administration and Iegislation [over the Territory] . .. as an
integral portion of the Union of South Africa". (IV, p. 67.) Because of
that feature, any facts within the purview of that form of administration
would be permissib!e, save only if they were tainted by an improper or
an ulterior purpose. And, therefore, Mr. President, where we were met ADDRESS BY MR. DE VILLIERS 329
with an allegation of a contravention of the provisions of the Mandate in
this particular respect, we pointed out that motive or intent on the
Respondent's part would not only be an important element in such a
charge, but it would-
"... be the very criterion, and the only criterion, for determinîng
whether a particular action is in violation o( Respondent's obliga
tions under the Mandate;".
That was from the Counter-I\Icmorial, IV, page 75, and I can also refer to
pages 68 to 70 on that point.
Then, as far as the facts wcre concerned, we denied that the Respon
dent had an intent to incorporate the Territory, and we substantiated
the denial with a factual exposition of what the Respondent's attitude
to the Territory was, quite apart from the statements relied upon by the
Applicants-a staternent of fact and an exposition of fact as to what the
attitude really was. That we find in the Counter-Memorial, IV, at pages
76 to 92.
\Ve analysed the statements by political leaders and officiais relied
upon by the Applicants, and Iooked at them in their proper context and
setting, and we demonstrated that they were entirely consistent with
this exposition of the Respondent's attitude and in no way supported the
contention to the contrary by the Applicants.
Next, Mr. President, the acts that were complained of by the Appli
cants-the list of four that I mentioned earlier-were closely analysed
and discussed and we showed that thosc acts were permissible in tenus
of the Rcspondent's authority under. the Mandate, that they did not
affect the separate international status of the Territory, that they were
intended to promote the well-being of the inhabitants of the Territory
and that they, in fact, operated to that effect. That we dealt with in the
Counter-Memorial, IV, at pages 93-131.
Now, Mr. Presîdent, when we corne' to the Rcply, the Applicants
significantly showed an appreciation of the fact that their effort to prove
an intent to incorporate was doomed to failure. They now introduced a
new argument which was to the effect that Respondent's-
"... policies and acts ... constitute ipso facto, and without regard
to Rcspondent's motive or purpose. a violation of Respondent's obli
gation to respect the separate international status of the Territory."
(IV, 576.)
The Applicants retained thc:ir allegation that the Respondent had an
intent to incorporate the Tcrritory but that allegation was toned down
in importance. Therc was not this, what appeared to be, alternative con
tention to the effect that those acts were inconsistent without any regard
to motive or purpose.
These selfsame four acts, which I mentioned before and which the
Applicants had described in the Memorials as acts which could be re
garded as ambiguous and of which they had said that they wcre to be
read in the light of the Respondent's avowed intent in order to be pro
perly understood, were now represented as being unambiguous and as
constituting per se violations of the :Mandate and of the Covenant.
Mr. President, in those circumstances, it was not difficult for us to show
that this argument in the Reply was without any substance, as we did in
our submission in the Rejoinder, VI, at pages 391-421, and I need not
enter into the details of that demonstration again, not at this stage. SOUTH WEST AFRlCA
330
Then came the Oral Proceedings. The Applicants started off in the
Oral Proceedings by saying, as in the case of militarization, that they
would deal with the charges levelled under Subrnission 5 "at the later ...
fact stage of the proceedings". That was in VIII, at page 135.
There were, as the matter then stood, clearly very important issues of
fact involved, because, as the Court will recall, the Applicants had
maintained, without further attempt at supporting, their allegation of
an intent to incorporate still at the Reply stage of the pleadings.
So,;\Ir. President, the factual allegations in that respect still remained
in issue-over-all, and also with reference to the four acts complained of,
the allegations that they were all elements in a plan of incorporation.
Those matters were specifically and directly at issue between the Parties
as matters of fact. So, it would have becn necessary to canvass and
examine thcsc facts at the oral hearings in order to test the validity of
the Applicants' allegations as they stood.
But, as my lèarned friend, Mr. Grosskopf, pointcd out in the case of
militarization, so also here the Applicants ncver reached the discussion
of "the later ... fact stageof the proceedings". At the end of their initial
argument on 24 March, in the record of that date at VIII, page 268, we
find that the Applicants stated certain submissions which they felt they
could already state at that stage, reserving some others until the facts
had been dealt with, and we find that they, at this stage also, asked for
an order on Submission 5, without having dealt with any of the facts in
support of that submission.
In the record of 26 April, at VIII, pages 707-7n-we expressed our
surprise at this treatment of the matter and we asked for clarification,
reserving our further comments until we had received such clarification.
We also commented at the same time on a new feature which had
emerged in the Applicants' argumcnt-in-chief regarding this alleged
intent to incorporate. Wc found that the requirement of intent, initially
so clearly acknowledged as being a basic requirement of a factual pro
position in the Applicants' case, now became a completely artificial one.
ln the verbatim record of 23 March, at VIII, page 220, the Applicants
argued that "Respondent has taken action reflecting a purpose, objec
tively detcrmined, to incorporate and annex the Territory into the
Republic of South Africa".
And, then, on the next page, î\fr. President, page 221, the Applicants
made it clear that they were now asking the Court to infer this intent
"legally", as they said. by means of a presumption-the presumption that
a person or a body is prcsumed to intend the natural and probable con
sequences of his or its actions.
The Court will recall that we dealt very extensively with the law
pertaining to this suggested presumption because it was relied upon also
by the Applicants in regard to other aspects of thcir case. \Ve dealt with
it mainly m the record from page 639 to page 653, VIII, and we pointed
out, Mr. President, that this manner of approaching the matter really
avoided the necessary enquirv into the factual aspects of the dispute
regarding intent. "
In the record of 26 April we indicated that this argument, which we
had presented earlier on other aspects of the case, was specifically appli
cable also on this aspect of the Applicants' submissions. That the Court
will find at VIII, pages 709-7rr of the record of 26 April.
In this particular aspect of the Applicants' case, Mr. President, the ADDRESS BY MR. DE VILLIERS 331
artificiality really becomes extreme. ln the Memorials, as I pointed out,
the Applicants relied on direct proof of an "intent to incorporate"
suggested direct proof. They then used this as a basis "to shed light upon
the significance of individual actions which might otherwise seem ambi
guous"-those were their words.
Now, at the Oral Proceedings stage, they relied upon these self-same
actions in order to argue that from those "an intent to incorporate"
could be inferred. 1t is not surprising, Mr. President, that the Applicants
avoided an enquiry into the facts in order to justify the validity of such
an inference. 1t should be suflicient for me to say that you cannot infer
an intent from ambiguous acts and you cannot, having purported to do
that, then use this inferred intent in order to prove that those same acts
are not ambiguous. That is really what the Applicants' argument
amounted to. ·
So, at this stage, the "intent to incorporate" argument was dead.
The Applicants thereafter, in proffering the explanation for which we
have asked, on 12 May, at IX, page 235, explicitly said that ail the
Respondent's versions of the facts were accepted also in respect of this
particular submission. They said it explicitly at that page. So, inasmuch
as the existence or otherwise of an intention to incorporate is a fact and
was initially treated very specifically by the Applicants as being a fact,
the Applicants' admission of the facts constitute an acceptance of, inter
alia, that fact which we stated in our pleadings, that the Respondent has
no intention to incorporate the Territory. Once the Applicants had
admitted all the other facts, it was indeed, Mr. President, quite impos
sible for them to contest the validityofthat statement of the Respondent.
So it is not surprising that they then went over to suggest that Respon
dent had a somewhat inconsistent intent, that is, an intent to partition
the Territory without the consent of the supervisory organs. That we
find in the record of 12 May at IX, page 239. The central theme of the
Memorials, therefore, that Respondent had a plan to annex the Terri tory
and was putting it into effect by piece-meal acts, simply petered out into
nothingness.
It would, ;\'lPresident, in my submission, have been entirely unreal
istic forthe Applicants to have attempted to demonstrate anything else.
From a practical point of view, what earthly reason could they suggest
why Respondent should today wish formally to incorporate the Territory
into the Republic of South Africa? One could understand in the days of
the formation of the United Nations, at the stage when General Smuts
put his incorporation proposai to the United Nations and in the years
shortly afterwards, that there may, with or without justification, have
been suspicions on the part of parties inclined to be suspicious, as to
whether South Africa perhaps did not have an idea of incorporating this
Territory without the concurrence and the assistance and the acknow
ledgment of the United Nations or other international recognition. One
could understand it at that stage, l\lr. President, although even then the
South African Government made it perfectly clear that it had no such
intention. But, when we have corne to this stage of deveiopment, when
the Respondent's policy has crystallized absolutely clearly into one which
involves self-determination for each one of the various population groups
of South \Vest Africa, where each one of those could, if it so wished,
decidé upon complete independence, where it is known to the South
African Government that the White group of South West Africa has SOUTH WEST AFRICA
332
always indicated that it would prefer to seek its future in conjunction
with the Republic of South Africa but whereas the principle is that every
one of the groups can decide for themselves, surely, ;\Ir. President, what
purpose could there be, while one is in the process of getting on with that
policy, of unilaterally incorporating the Territory?
So the next question we ask is: what happened in the Oral Proceedings
in regard to this apparently alternative line taken in the Reply, namely
that the acts complained of-the four of them-were perse, and irrespec
tive of the Respondent's purpose or motive, a violation of the separate
international status of the Territory? The simple answer is that this con
tention did not feature in the Oral Proceedings at ail. \Ve never heard of
it again.
For the reasons which I have mentioned and especially after the
acknowledgment in the Memorials that these acts, seen by themselves,
could appear ambiguous, this argument was really without merit right
from the outset, and it is quite clear that it was introduced into the Reply
merely to meet the exigencies of the moment, namely the collapse of the
basic contention that Respondent had an intent to incorporate the
Territory.
As I have said, we dealt with the total unsoundness of this per se
argument in the Rejoinder and, after that and after the subsequent ad
mission of ail the facts relied upon by the Respondent, it was inevitable
that this argument could no longer be presscd. Indeed, it does not seem
to be represented any more in the amended submission because, as I have
pointed out, the amended submission does not any longer identify these
acts, or any acts of the Respondent, as being particular oncs relied upon.
It is therefore really unnecessary for us, as we see the situation, to
enter into any discussion of these separate elements with a view to sceing
whether they are indeed, or whethcr they can indeed be said to be, per se
in conflict with the separate international status of the Territory. Never
theless, I shall very briefly indicatewhat the effect of what we stated in
that respect was on the pleadings and what seems now to be admitted as
a matter of fact by the Applicants.
In regard to the question of nationality. the complaint there related
to the conferment of South African citizenship upon the non-White
inhabitants-the indigenous inhabitants-of South West Africa, by an
Act of the Union Parliament of r949. The matter was dealt with in the
Memorials, 1,at pages 190-192, in the Counter-Memorial, IV,pages 93-100,
in the Reply, IV, at pages 576-579, and in the Rejoinder. VI, pages 403-405.
Originally, it will be recalled, the Applicants alleged that this too was
part of a plan to incorporatc the Territory, but this, as we have shown,
has fallen away. The alternative basis, as we demonstrated with respect,
was a highly technical approach and, in our submission, entirely unsound.
It relied, not uponan analysis of the principles involved and of reasoning
to a conclusion that there was per se an infringement of the separate
international status of the Territory, but purely upon suggested conflict
with a resolution of the League Council adopted in 1923. Now, we admit
ted that there was in one respect a conflict \vith the provisions of that
resolution of the League Council, although in completely different circum
stances in 1949 from those which had obtained at the time when the
League Council resolution was adopted. The Council resolution was
adopted at a stage when the mandates system was in full operation as
a system. The Act came in 1949 when the system had corne to an end- ADDRESS BY MR. DE VILLIERS 333
when there was total uncertainty in the international world as to what
exactly the status of South West Africa was-as to whether it could still
be rcgarded as a mandated territory at all. If the Court will recall, this
was before the 1950 Opinion of this Court, and the attitude adopted by
the South African Government at the time was indeed that in its view
the Mandate had fapsed and t:here was a need for regularizing the posi
tion of the inhabitants.
We pointed out, Mr. President, that the League Council resolution
showed that it did not contemplate that therc was any incompatibility
with mandate principles, etc., in the inhabitants of a mandated territory
taking the citizenship of the mandatory country. That was not regarded
as incompatible at all if it happened by a voluntary process on the part
of the inhabitants of the mandated territory. Soif, along these processes,
a situation should have arisen whereby ail the inhabitants of a mandated
territory had taken on the citizenship of the mandatory, that still would
not have been, according to the contemplation of this resolution, a
situation in confüct with mandate princip1esor with the principles or
requirements of the mandate system. The objection was to a general act
bringing about that result and we have no clear distinction between what
was regarded as good mandate policy in that respect, or what was regarded
as clear mandate law in that respect.
If it was suggested, Mr. President, that in circumstances as they
existed in 1949, and as I have briefly tried to sketch them, it would have
been in conflict with mandate law to bring about such a result, then we
must, with respect, differ with the conclusion arrived at by the Council
of the League on that particular point, but there is, as far as we can see,
no such suggestion. The matter would appear to have been treated as a
rnatter of policy and the League Council certainly did not express itself
on what its conclusion would have been in altered circumstances, such
as applied in 1949.
A particularly important feature which we stressed is that this con
ferment of South African nationality upon the inhabitants generally of
the mandated territory took nothing away from them; it did not impair
any rights which they may or may not have had as citizens of the
mandated territory, or inhabitants of the mandated territory, and any
status that may have flowed therefrom. What was given to them was
given as something additional which might be of assistance and of help
to them in this stage of uncertainty ;ind stage of transition. That this 1s
so becornes evident again from the very proposals of the Odendaal Com
mission on the matter of citizenship-a matter referred to several times
in the course of the cross-examination of various witnesses. I read as an
example to the Court the paragraph 306 of the Odendaal report at page 83,
regarding Ovamboland:
"That, as soon as is practicable, the Legislative Council by legisla
tion institute for the homeland a citizenship of its own and that
every Ovambo born in or outside Ovamboland but within South
West Africa, as well as anv Ovambo born outside South West Africa
but now permanently resident in Ovamboland and not declared a
prohibited immigrant in South West Africa, shall be entitled to such
citizenship: Provided that such a person shall forfeit his citizenship
if he assumes the citizenship of another homeland."
ln other words, citizenship particularly pertaining to e;ich homeland SOUTH WEST AFRICA
334
is contemplated here. As I have said, nothing has been taken away; this
iswhat the policy leads to in its ultimate consequences. There are similar
provisions in respect of ailthe other homelands:
paragraph 319, page 85, about the Okavango;
paragraph 332, page 87, about the Kaokoveld;
paragraph 344, page 93, about Damaraland;
paragraph 362, page 97, about Hereroland;
paragraph 375, page 99, about the Eastern Caprivi;
paragraph 404, page 107, regarding Namaland.
The Rehoboth Basters, as the Court might recall, already have their own
citizenship in terms of their own patriarchal laws.
The next matter, Mr. President, was the question of representation in
the South African Parliament, and this aspect was dealt .with in the
Memorials, I, at pages 192-193, in the Countcr-Mcmorial, IV, at pages
101-104, in the Reply, IV, at pages 579-581, and in the Rejoinder, VI,
at pages 405-409. Here also the Applicants stigmatized initially the
present arrangements as "part of a plan to incorporate the Territory
politically",but that also was dropped and we are dealing only with the
later contention of a per se violat10n of the Mandate and the Covenant.
Mr. President, on the facts which we set out in our pleadings and
which are now accepted as fact, it is manifest that such an arrangement
can only benefit the Territory, that similar arrangements were made in
other territories, including trust territories which had formerly been
under mandate, and that that had been permitted under practices of
international supervision without anybody thinking that there was any
incompatibility in such an arrangement-incompatibility with the sepa
rate status of the mandated or trust territory. It is also a iact that the
1949 Act, under which these arrangements were made about representa
tion in the South African Parliament, was fully and openly explained
and discussed in the United Nations. There were proposed condemnatory
resolutions in the United Nations, but these were rejected. And that is
where the matter stands as a matter of fact. The reference is to the
Counter-Memorial, IV, at pages 82-84-
We pointed out further, Mr. President, that the Committee on South
West Africa could not suggest that this type of arrangement constituted
aper se violation of the Mandate or the Covenant. In general we submit
that each and every one of the arguments submitted by the Applicants
was shown to be without substance.
:Next, there is the administrative separation of the Eastern Caprivi
Zipfel,and that is dealt with in the Memorials, I, at pages 193-194, in the
Counter-;\iemorial, IV, at pages rn5-n8, in the Reply, IV, at pages 581-
582, and in the Rejoinder, VI, at pages 409-414. Again, initially a sug
gestion that this formed part of a plan of incorporation was eventually
dropped as part and parce] of the dropping of that contention.
Now here again, Mr. President, wc indicated-and I may say very
briefly-in the Counter-Memorial that the area was inaccessible from the
rest of South \:Vest Africa, that serions problems of administration were
created and that the separation was effccted for this reason; and when
upon the urging of the Permanent Mandates Commission to the con
trary, an experiment was made over the years 1929-1939 to administer
the Eastern Caprivi Zipfel from Windhoek, as part and parce! of the
ordinary administration, that attempt proved to be a failure. ADDRESS BY MR. DE VILLIERS 335
We also pointcd out that those were the practical reasons why we had
to revcrt to this form of administration from Pretoria; that it all hap
pened in terms of the charge under the Mandate, that there was nothing
inconsistent with the separate international status of the Tenitory, and
that the Permanent i\fandates Commission had, indeed, no objection to
the arrangement, provided ail the provisions of the i\fandate were prop
erly applied in the area. So again, Mr. President, it is quite clear that
the Applicants' charges under this heading were without any mcrit, on
a perse basis or on any other basis. On the admitted facts, this adminis
tration takes place in this particular form because that is the most practi
cable one and it is the one most conducive to the well-being and progress
of the inhabitants.
Finally, the very same follows in regard to the other matter of com
plaint-the transfer of administration of Native affairs to the Minister
of Bantu Affairs and Devclopment, and the vesting of South West
African Native Reserve land in the South African·Native Trust. This
was dealt with in the Memorials, 1, at pages 194-195, the Counter
Memorial, IV, at pages u9-131, in the Reply, IV, at pages 583-586 and
the Rejoinder, VI, at pages 414-418.
We submit, Mr. President, that we showed without doubt that these
meàsures are purely administrative measures, fullywithin the Respondent's
powers under the Mandate, that they were designed to operate for the
benefit of the inhabitants of the Territory, for the protection of their land,
and for the intensification of the development of thosc lands and their
homelands, and that they do, in fact, so operate. These facts are admitted,
and we submit that the conclusion follows that the actions cannot, perse
or on any other basis, be regarded as violative of the ;'lfandatc or the
Covcnant. It is therefore clear, i\fr. President, that this perse argument
.of the Applicants stood no earthly chance of success, and that is obvi
ously the reason why we did not hear of it again in these Oral Proceedings.
That brings us thcn to this 1:otaHynew line adopted by the Applicants
in the Oral Proceedings-the same sort of argument to which they were
driven, as Ihave pointed out, in respect of militarization.
To our request for clarification of their attitude, to which I referred
before, they reacted on 12 l\Iay, at IX, pages 235-239. In conjunction
with militarization, there is a passage, at page 235 of this verbatim,
wherc the Applicants said:
"It is regarded ... by the Applicants. as appropriate to consider
and dispose of these submissions at this stage in the context of the
requirement of administrative supervision ... "
The next paragraph made it clear that the Applicants admitted ail the
facts advanced by Respondent in connection w1th the charges originally
levellcd under Submission 5-and that is in a passage at page 235, to
which we have refcrred before.
And then, having dealt on this basis with militarization, the Appli
cants said, at page 237:
"On the same basis of analysis and consideration, turning to the
question of annexation, administrative supervision is here again
seen to be of the essence. Respondent's refusai to submit to admin
istrative supervision, indeed, is the underlying element of the Appli
cants' complaint in this regard ... "
And on the same page: SOUTH WEST AFRICA
"Denial of submission-the duty to submit-to international
accountability is a denial of the separate international status of the
Territory."
On page 238:
"'In the absence of such accountability, Respondent's function
of administration would cease to be international.' That is the
essence of our contention in this regard."
Finally, a quote from the same page:
"The absence, the denial. of the rejection of international super
vision, altersthe international status of the Territory, it deprives it
of that character ... [That] is the basis of our submission in this
regard."
.Mr. President, I had read those passages from the record of I2 i\Iay
to indicate the Applicants' own cxplanations of their amended Submis
sion No. 5 and we find in these explanations, indeed, a conclusion which
concurs entirely with that which we drew already upon a mere com
parison at the beginning between the original submission and the amended
submission, and, that is, that there is now a totally new case. Submis
sion No. 5, is now completely dependent upon the Applicants' case as
regards supervision, and the excision of the previous factual basis upon
which this charge had rested was no mistake, it was done deliberately.
There is now no longer an identification of those four original listed acts
or any other acts as forming the basis of this charge; it has now become
generalized, as in the case of militarization.
In the Reply already the Applicants had raised a non-supervision
argument of this kind, and we then said the following about it in our
Rejoinder, VI, at pages 415-416:
"Respondent does not appreciate how its contention that the
United Nations has no supervisory powers over its administration
of South West Africa-a contention which Respondent submits is
sound-can have any bearing on the propriety or otherwise of its
acts of administration in the Territorv. If such acts of administration
are in thcmselves unquestionable, the fact that thcre is no super
vision cannot render them questionable. On the othcr hand, if such
acts of administration constitute violations of Respondent's obli
gations, then again the existence or non-existence of supervision
cannot alter the situation."
How did the Applicants react to this? They rcact with a play on the
words "questionablc" and "unquestionable", and as I shall show, it leads
them into worse trouble than before. \Ve fi.ndthat in the verbatim record
of I2 May at IX, page 237:
" ... Respondent's analysis presupposes the possibility of a judg
ment of this honourable Court to the effect that such acts of admin
istration are 'unquestionable', and, as I have said and as the Appli
cants respectfully submit, ail acts of administration, in the absence
of supervision, must be 'questionable'. That does not reflect upon
their merits, they are questionable because they are open to question
because there is no information available upon which their merits,
or otherwise, can be supervised and examined."
So we find that the Applicants refuse to discuss whether the acts origi
nally complained of are questionable on their merits, or any other acts; ADDRESS BY MR. DE VILLIERS 337
as a matter of fact, they make it plain now that that is no longer relevant
to their contention. lnstead the original acts are no longer isolated, as
being specifically relied upon; they are equated with all other acts of
administration, and the sweeping statement is then made that in Appli
cants' submission all acts of administration, irrespective of their merits,
are questionable in the absence of supervision.
And soit becomes pcrfectly clear that Chapter VIII of the Memorials
and the original Submission No. 5 have now been turned into a complaint
relating solely to the denial on Respondent's part of a duty to submit to
supervision by the General Assembly of the United Nations, which corn
plaint is idcntical with their purely legal complaints with regard to
supervision. And that is the reason why, as I emphasized before, it is now
really unnecessary to give attention to each one of thosc specific acts of
which the Applicants originally complained.
Once this becomes clear, it also becomes evident that the amended
Submission No. 5 has now virtually become mcaningless. Let us illustrate
it by reacling the submission in the light of the Applicants' new conten
tions. They submit that this treatment of the Territory by Respondent
that is, the denial of supervision and the refusai to submit thereto-"has
thereby impeded opportunities for self-determination by the inhabitants
of the Territory" (IX, p. 374). This allegation is now a complete non
sequitur. They continue: ''that such treatment is in violation of Respon
dent's obligations as stated in the first paragraph of Article z of the
:Mandate and Article 22 of the Convenant."
It will be remembered that the obligations reliecl upon by the Appli
cants in thcir Memorials for the purposes of this submission werc firstly,
the allegcd duty to refrain frorn unilateral anncxation, and, secondly, the
alleged duty to advance the political maturitv of the Tcrritory's inhab
itants so that they may ultimately exercise self-determination. The new
factual complaint under amended Submission No. 5-that is, the Re
spondcnt's denial of supervision to the United Nations and the refusal to
subrnit to such superv1sion-has nothing to do with thcsc alleged obliga
tions-with these obligations of refraining from uni!ateral annexation
and advancing political maturity. On the contrary, the complaint is
exactly the same as that made by the Applicants under their submission
relating to Article 6 ofthe Mandate. And so it goes further also when the
amended Submission No. 5 continues: "that Respondent has the duty
forthwith to cease such actions, and to refrain from similar actions in the
future; and that Respondent has the duty to accord full faith and respect
to the international status of the Territory" (IX, p. 375).Those are the
words from the new, amended submission.
The Applicants are now merely asking for an ordcr that Respondent
must stop denying the existence of rights of supervision on the part of
the United Nations, and that the Respondcnt is legally bound to subrnit
to such supervision in future. In other words, they are asking ail over
again for the same things as in their Submissions 2, 7 and 8. There is
no distinction. The only distinction now has become a verbal one, and
the description in these later submissions, for instance No. 5, of that
contention is really a very strangely worded one. lt arose from one
circumstance, and one circumstance only, Mr. President, and that is
that the Applicants refrain from taking the logical course which they
ought to have adopted at the Reply stage when they saw that these
facts on which they were originally rclying could not support them, and338 SOUTH WEST AFRICA
that therefore these original charges they made were, as a whole, com
pletely insupportable.
The Applicants ought to have heeded the warning of Mr. Carpio of
the Philippines, which was quoted to the Court earlier, in a discussion
in one of theseconunittees dealing with the question of possible litigation
against South Africa. I quote from the General Assembly, Official Records,
A/AC73/SRr20 of 9 September 1959, page 3, where Mr. Carpio said:
''To choose questions dealing with the administration of South
West Africa as an integral portion of the Union of South Africa,
when the Union Government was authorized by the Mandate to do
so, was to choose the wcakest argument."
My leamed friend, ;\frGrosskopf. has indicated to the Court why
this argument cannot succeed in the case of militarization. Itwould be
supererogation on rny part to repeat that argument to the Court. I sub
mit, very clearly, that also Submission No. 5 should be dismissed.
Then we corne to Submission No. 9, unilateral amendment of the
:'lfandate, where we have much the same story. And I am quite sure
the Court would not like to listen in detail to ail the various courses
which the dispute in this form took. I shall deal with it very briefly.
In the Memorials the Applicants alleged:
"... that the actions of the Union, as set forth in Chapters V, VI,
VII and VIII of this Memorial, read in the light of the intent of
the Union, ... constitute a unilateral attempt by the Union sub
stantiallyto modify the terms of the Mandate". (1,p. 196.)
Now of these chapters as identifi.ed here, .Mr. President, V to VIII of
the Memorials, Chapter V dealt respectively with alleged violations of
Article 2, paragraph 2, of the Mandate, which, as the Court will recall
at that stage, were alleged to be intentional violations of the Mandate.
Then Chapter VI related to allegations of petitioners, Chapter VII related
to militarization, and Chapter VIII related to unilateral incorporation.
It was bn the basis of all those allegations made that the Court will
recall the factual basis of the Applicants' case in each of these instances,
that there was said to be a unilateral attempt by the Union substantially
to modify the terms of the Mandate.
Now, Mr. President, in our Counter-.Memorial we denied that Respon
dent had any "intent to modify the Mandate". We emphasized then,
as I should like to emphasize now, that it is very difficult to see how
there could ever be an amendment, or an attempt at amendment, of
a mandate instrument or an agreement of any kind, unless there should
be an intent to bring about an amendment. One can think under particular
circumstances of an unintentional violation of obligations under an agree~
ment where there is a difference of intcrpretation or a basis for an
unintentional action which, nevertheless, transgresses provisions of an
instrument. But one could as a matter of notion, in my submission,
never conceive of an unintentional attempt at modifying the provisions
of an instrument. Sure1y that Js sornething that can be brought about
only by an intent, or on the basis of an intent, to bring about a modifica
tion. The very concept of an attempt to do something of that kind
already carries a notion of intent with it. But apart from that, the
actual process of amendment is one that could only be brought about
by exercising the mind about it and by having an intent. ADDRESS BY MR. DE VILLIERS 339
So, Mr. President, we emphasized as being fondamental to our answer,
in the Counter-Memorial, IV, at page r36, that-
"... the record shows a complete absence of intent on Respondent's
part to perform any actions in regard to the Territory which would
not have been permissible under the Mandate if it had still been
in force".
And we also denied that any acts by the Respondent modified the terms
ofthe Mandate.
Now the Applicants' reaction in the Reply, IV, at page 587, was dealt
with in the Rejoinder, VI, at pages 423-428. Of special importance was
the fact that the Applicants had, in the Reply, introduced this alleged
norm, and we pointed out that the contention was apparently that this
norm had corne into existence despite objection or opposition thereto
by the Respondcnt, the Respondent never having agreed to it at ail.
And it was, according to the Applicants' contention, to be read as
forming part of, or as being determinative of, obligations under the
Mandate. In that way, therefore, according to the Applicants' contention,
there had corne about a unilateral amendment of the provisions of the
Mandate.
We pointed out, therefore, that if anybody wished to moclify the
terms of the Mandate unilaterally, it was certainly not the Respondent.
That was in the Rejoinder, VI, at pages 424-425.
A further point of importance, Mr. President, was one l have already
referred to, and that is, that in each of these chapters of complaints-
1 am leaving a.siclethe petitioners now for the moment-those relating
to Article 2,paragraph 2, of the Mandate, those relating to militarization
and those relating to unilateral co-operation, the Applicants in each
case, as at that stage, rclied on a factual allegation in regard to intent,
and that, as we have traced out in these proceedings, has fallen away
in every respect, including this intent to incorporate the Territory in
relation to Submission No. 5.
Now, when we came to the Oral Proceedings, in the argument-in-chief,
my learned friend coupled Submissions 5 and 9. and then made it clear
that the nature of the intent relied upon by them ,vas the same in bath
of the submissions, so they said:
"An attempt ... direct or indirect unilaterally to incorporate or
annex the Territory would constitute a modification of the terms
of the Mandate without the consent of the supervisory organ, to wit,
the United Nations.
The correlation of Article 2. paragraph r, with Article 7, paragraph
I, underlies the Applicants' Submissions Nos. 5 and 9 respectively."
That was the record of 23 March, at VIII, page 220, and this was still
their evidence-in-chief bcfore the changes in regard to the element of
intent became so absolutelv manifest.
The Applicants then proceeded to state that this intent to incorporate
had to be objectively determined by legal inference from conduct and
they continued, at page 221:
"Accordingly, conduct from which may be objectively inferred
an intent to evade the requirements of Article 7, paragraph r, by
means of unilateral action, takes on significance in the absence of
a showing by, Respondent of any plan or purpose to seek consent
of the supervisory organ."340 SOUTH WEST AFRICA
So, Mr. President, it is apparent that the Applicants not only relied
on the same alleged intent to substantiate the charges of unilateral
incorporation under Submission 5 and unilateral amendment of the terms
of the i\fandate, Submission 9, but also that both of these submissions
wcre dependent on their arguments regarding supervision. That appears
from their statement at page 221 of the same verbatim record:
"If the honourable Court were to accept Respondent's contention
concerning lapse of provisions for international su_pervision,including
Article 7, paragraph 1,the Applicants' Submiss10ns numbers 5 and
9 would. thereby, and for that reason alone become unavailing."
Herc, too, we found this strange phenomenon that already at this
early stage, on 23 March, they wcre asking for an Ortler in terms of
Submission No. 9. at page 231 of the same record, and the submission
was formally stated on the next day, 24 March, at VIII, page 269 of the
record, when the Applicants closed their legal argument-in-chief. At that
stage the submission was still worded as in the Memorials and it still
referred to and relied on "the acts dcscribed in Chapters V, VI, VII and
VIII ... [in] the Memorial".
Now, in the light of the explanations that had been offered, there
was clearly something wrong with this formulation. These chapters, as
I have pointed out, certainly as at that stage still held within themselves
various aJJegations of intent and disputes of fact. So how could the
Applicants then ask for this Ortler before dealing with these disputes of
fact as they suggested they would do at a later stage of the proceedings?
Here, also, we commented in a like way, as in the case of Submission
No. 5, on the artificiality of this suggested reliance on the presumption
which I mentioncd beforc in regard to the question of intent, and we
finished off on 26 April, at VIII, page 712:
"The fact is, in our submission, that the Applicants are hcre also
running away from the task of embarking upon that full enquiry,
of establishing by ordinary. evidential means an intent which they
have to prove, and which they admit that they have to prove, in
order to establish their case in law. I have never hcard of a proposi
tion that an unintentional violation of an obligation can be seen
as an attempt at a unilateral modification thereof.' ·
And so we got the Applicants' reaction on 12 l\lay in conjunction with
these two previous matters I have just mentioned. militarization and
unilateral incorporation, and here the pattern was exactly the same. No
longer relying upon these prcvious factual allegations in regard tointent,
they continued simply with a new argument, and they no longer relied
on an intent to incorpora te the Terri tory; they now placed reliance upon
another intent and that is: "... an avowed and declared design of
Respondent to partition the Territory ... " This is found in the record
of 12 l\fay, at IX, page 239. At the same page, they said-
"In respect of Submission No. 9, Respondent has explicitly avowed
an intent to partition the Territory without the consent of the
supervisory organs."
And again, on page 240:
''.TheApplicants accordingly have requested the Court to adjudge
and declare that consent on the part of the United Nations is a ADDRESS BY MR. DE VILLIERS 341
condition precedent to the effectuation of such an avowed intention
orplan."
Thenon page 239, they said:
"lt was on this basis and for this reason, in the light of these
avowals, that Submission No. 9 is the only submission which in
incorporatcs or is intended to incorpora te reference to or relies upon
Respondent's intent."
1IL President, this was rather surprising because the only intent we
had heard of up to that stage was the "intent to annex the Territory".
That had petered out in the way I had described before. \Ve hear now
forthe first time about this intent unilaterally to partition the Territory
as being the factor relied upon, and that is offered as an explanation
for this reference to intent that had been in the submission right from
the days of the Memorials. Anyway, this is also the very last that we
hear of Submission No. 9 from the Applicants. It must be noted that
they never specifically met the queries which we raised on 26 April
the queries in regard to the question of what it is now that is said to
be part and parce! of the Respondent's intent to bring about a modifica
tion of the provisions of the 111andate.\Ve are left with this suggestion
of an intent to partition the Territory unilaterally and it is very evident
that the Applicants are grasping at straws.
None of their characterizations of the Respondent's alleged intent is
correct. We dealt with this mattcr very clearly in the Rejoinder, VI,
at pages 416-418. The Odendaal Commission's recommendations are
aimed at the best methods of administration and developmcnt regarding
the specific circumstances of South West Africa. The approach of the
Commission and the Responclent's attitude thcrcto concern prospective
measures entirely wîthin the provisions of the Mandate and directecl
solely at the well-bcing of the inhabitants. The Applicants overlook
entirely the Respondent's power under the ;\landate-"the full powcrs
of and administration and legislation over the Tcrritory ... as an integral
portion of the Union of South Africa" and they overlook that the
organization of the administration of the Territory is a matter vested
in the Respondent's discretion.
The so-callcd partition problcm is one which will only be met when
that particular stage is arrived at. The policy as at this stage envisages
nothing more than that certain communities dcvelop up to a stage of
self-determination whcre they are ripe for the purpose and where they,
in fact, express their wishes as to what their future is to be and is to
involve. lt may involve something that docs not mean partition, it may
involve something that does mean partition. If so, that position will
have to be met as at that particular stage, but to talk at this stage of
an intent on the part of the Rcspondent to partition the Territory
unilaterally makes complete nonsense in my submission. If one reaches
that stage eventually and there is no question of a partition, then the
question falls away. If there is a question of partition, then questions
of international recognition may arise.
There was. as I have pointed out before, provision for amendment
of the provisions of the Manclate-special provision-in Article7, para
graph I, of the Mandate, uncler which it could be achieved by the useful
procedure of the consent of the Council of the League. That is certainly
not the only way in which it could have been achievecl and it is certainly342 SOUTH WEST AFRlCA
not the only way in which a change with international recognition could
be achieved under circumstances as at present obtaining.
If we are correct in saying that the United Nations has no supervisory
authority in respect of the Mandate, then the whole basis of this con
tention on the Applicants' part in any case falls away. But even if the
United Nations should have supervisory fonctions then the Mandate
never said and never meant that the organ exercising the supervisory
functions must nccessarily give its consent to a modification of the
Mandate, if such a modification is to be a valid one. That the Mandate
never said, as I have pointed out before, and I need not go into those
arguments again.
So, 11r. President, there is again no factual and no legal basis for
this line ofattack on the part of the Applicants. It becomes a completely
artificial one.
Perhaps the Applicants have appreciated their difficulties after ail.
When we look at their final subrnissions of 19 May, in the record of that
date at IX, page 375, we notice that they no longer refer to the actions
of the Union as set forth in Chapters V, VI, VII and VIII of the Memorials
and, even, that they no longer refer to the Respondent's alleged intent,
which previously had featured so promincntly in the submissions. Their
final submission now reads;
"Respondent has attempted to modify substantially the terrns
of the Mandate, without the consent of the United Nations; that
such attempt is in violation of its duties as stated in Article 7 of
the Mandate and Article 22 of the Covenant; and that the consent
of the United Nations is a necessary prerequisite and condition
precedent to attempts on the part of Respondent directly or indirectly
to modify the terms of the Mandate."
It could hardly be more vague than this, Mr. President. Ali reference
to the manner in which they allege that the Respondent has attempted
to modify the terms of the Mandate has simply been excised. Apparently,
as we find from the explanations, the denial of supervision-the denial
by the Respondent of supervisory powers on the part of the United
Nations-is now the sole ground relied upon. It wolÙd appear that
here also ail the rcliance previously placed upon specific facts and par
ticularly on specific alleged forms of intent has now been abandoned.
Here a.gain, our answer to this contention in regard to the Respondent's
denial of supervisory powers on the part of the United Nations, is the
same as we gave before. If we are correct in saying that there are no
supervisory powers, the whole question falls away. If we are wrong in
saying that, and if the Court holds that we are wrong in saying that,
then it means that the Applicants must succeed in respect of those
particular submissions which dcal with that question and which allege
that the Respondent violated its obligations in the respects of failing to
submit to the supervision of the United Nations, but to suggest that the
Respondent, in addition, must be held to have failed in respect of every
one of its substantive obligations under the Mandate, in our submission,
is clearly without any substance and we submit that in the premises
also the Applicants' Submission No. 9 should be disrnissed.
Mr. President, it remains for me, then. only to offer some very brief
remarks in conclusion; the Court will probably hear that with relief!
In regard to the App/icants' Submissions Nos. r, 2, 7 and 8, these have ADDRESS BY MR. DE VILLIERS 343
been disposed of and the different conclusions which, we submit, may
be reached by the Court in this respect have been dealt with by us.
Merely for handy reference, I point out that that was in the verbatim
record at VIII, pages 583-584, and again at IX, page 481.
Now, in regard to Submissions Nos. 3, 4, 5, 6 and g. on the basis of
the contentions which we have putto the Court there are general grounds
upon which all these submissions may be dismissed. One of them would
be that the Mandate as a whole has lapsed. That would, of course,
dispose of ail the submissions. Another may be that the Court has no
jurisdiction generally, on the basis that was argued in the Preliminary
Objections.
Now, specifically in regardto Submissions Nos. 3 and 4, to summarize
the various possible findings in our favour, for which we have contended
in the course of our presentation to the Court, the issue turns on the
existence or otherwise of the norm and/or standards as defined at page
493, of the Reply, IV, and it may be convenient to deal with the matter
separately as regards the norm and the standards.
In regard to the norm, firstly, we pointed out that the Court would
not possess jurisdiction in terms of Article 7, paragraph 2, to decide on
alleged contraventions ofany newly created norm, such as that relied
upon by the Applicants. But we did not abide, of course, by submissions
about jurisdiction, we proceeded to deal with the merits of the contention
in regard to the norm. And we contended, secondly, that there is no
legislativeor other power on the part of the, or an, organized interna
tional community to create legally binding norms in the manner, or
through such processes, as contended for by the Applicants.
Thirdly, we contended, Mr. President, that no norm of the content
contended for by the Applicants was, in fact, created, or purported to
be created, by collective actions on the part of the organized inter
national community, nor was·such a norm created by the practice of
States. We pointed out further-we contended-that the real purpose
of the majorities in the United Nations who voted for the resolutions
concerned, was to prosecute a political campaign and not to create legal
norms.
Then in regard to standards: firstly, we contended that no implication
can be read into the Mandate to the effect that the Mandatory would
comply with standards laid clown by the competent supervisory organ.
Secondly, that there is no longer any competent supervisory organ since
the dissolution of the League. Thirdly, Mr. President, we contcnded that
the United Nations did not attempt or purport, to lay down standards
of any kind, or of the content relied upon by the Applicants, that no
such standard is generally applied in the practice of States, and that
no agreement has been reached in any other international body about
standards, intended to be binding, of a content as relied upon by the
Applicants.
As far as United Nations activities are concerned in regardto standards,
we demonstrated, in our submission, that the judgments relied upon were
based upon erroneous facts, and were inspired by improper motives,
which would by itself render any purported standard invalid.
On the subject of the well-being and the progress of the inhabitants
of the Territory of South West Africa, Mr. President, we have demon
strated, in our submission, that a norm or a standard, as defined, would,
in its application, be detrimental to such well-being and progress. \Ve344 SOUTH WEST AFRICA
submit that this is relevant and material because of the foilowing con
clusions that flow from it:
Firstly, that no norm as defined could exist or could be applied by the
Court by virtue of Article 7, paragraph 2,of the .Mandate, inasmuch as
a nonn which is inconsistent with the purposes of the Mandate could not
fall under "the provisions of the Mandate".
Secondly, Mr. President, in our submission, this incompatibility would
by itself show that no standard of this description could have been
created. And alternatively we contend that this feature, in any event,
underlines and strengthens our contention that the erroneous factual
premises and the political motivation in the United Nations would render
invalid any purported crcation of standards. In other words, bringing
those two togcther-our demonstration of what rcally happened in the
processes of the United Nations, and what are the real facts about weU
being and progress-emphasizes and gives cumulative weight to the
conclusions which flow from each of those.
And then, in regard to Submissions 5, 6 and 9, our contention is that
they should be dismissed for the reasons with which wc dealt yesterday
and today.
I wish to offer only a very few concluding remarks about what has
been described as the heart of the case, the case concerning Article 2,
paragraph 2, of the ;'\fandate. Representatives of both sides, Mr. Presi
dent, at the outset, referred the Court to the vital influence and implica
tions which these proceedings might have upon the well-being of a
multitude of hurnan beings. From the Rcspondent's side, we hope that
the presentation of our case, which we could make to the Court by way of
expositions of true facts, by legal argument, by the assistance afforded
by the evidence of the experts, will be regarded by the Court as being of
assistance to it in the determination of its task with these very serious,
and these very far-reaching implications.
We trust also, Mr. President, that we may have thrown further light
on a statement which I had occasion to rnake at the beginning of these
proceedings, and that is, that there is, as far as the Respondent Govern
rnent is concerned, no real argument about basic objectives, questions
of humanity, basic norrns and standards which require to be applied in
a matter of this kind; that differences which have arisen, have been
differences in regard to method of achieving common ideals. We haYe
directed our evidence to the question of those methods, and to the reasons
why we submit that those methods that are being adopted, the broad
approach that has been adopted by the Respondent Government in that
respect,is the only one which could really be conducive to the well-being
and the progress of ail the peoplcs concerned in the application of its
policies.
\Ve have endeavoured to demonstrate also that the approach of the
South African Governmcnt in this respect is not one of the spirit of
infallibilityI had occasion to say, in my opening statement on the
question of the inspection, on 30 March, at VIII, page 278, "the South
African Govcrnment does not lay any daim to perfection" .. I w~sh to
refer the Court also to the statement by the Reverend Mr. Gencke m the
record of 21 September r965, at XI, page 62, made under cross-ex
amination:
"\Ve are not defying the wor!d-we are fo!lowing the road, which
· we consider as being the right road. We are not walking on that road ADDRESS BY MR. DE VILLIERS 345
as people who are cocksure of themselves. On the 'road of progress",
the cocksure man is a very dangerous bed-fellow, but we are fol
Iowing this road because it is our conviction ... \Ve are seeing this
road as the only road to the solution, that is <l;ll."
So, Mr. President, I trust that we have been able to demonstrate to
this Court what the South African Government sees as, and submits to
be, the basic real norms and standards to be applied toits task, and what
would appear to be, as a matter of general approach. the best mcthod of
setting about that task. Now what are those real nonns? They have
clearly been shown to be basic, generally accepted, norms and standards:
justice for everybody, faith, hope and charity. Charity in this context,
Mr. President, charity or love, must very clearly include also the con
cepts of pa6ence and hunùlity. There has been much show of impatience,
but we trust, and according to our analysis, it has merely been that of
individuals. If we look at large masses of the African people on the
African Continent, our Black African fellow-countrymen on the African
Continent, they have set to us a very grand example in this respect-an
example which we, of European and other origins, could do well to follow
in regard to this question of pabence and humility.
Experience has vcry often shown in Africa that the best intentioned
schemcs are bound to fail unless they take suffi.dent cognizance of
African reality: imported or preconceived notions which do not take
sufficient cognizance of that factor, and are not prepared to learn from
the local circumstances, are very often doomed to failure, whether it be
a groundnut scheme or a polltical constitution.
Mr. Pepler in his evidence mentioned to the Court some of his dis
appointments which he has struck in the course of his constructive
endeavours. He has stressed the need for patience, for learning by
experience, and for starting all over again when it may be necessary.
That, then, Mr. President, is what the Respondent's Govemment
wishes tostress tothe Court as the way in which Jtsecs its task in regard
to these principles, these norms. these standards, to be adopted-sub
mitted to this Court as the way in which its duty is to be construed.
In particular, it submits that it is to have regard to those basic norrns
especially commended toit by leaders of the Dutch Reformed Church in
a time of stress in 1960. It was a reference to a very well-known text in
the 01d Testament in the Book of Micah, Chapter VI, verse 8:
"He hath shewed thee, 0 man, what is good; and what doth the
Lord require of thee but to do justly, and to love mercy, and to
walk humbly with thy God?"
Mr. President, that concludes the presentation of the Respondent's
case on the facts, subject of course to what ,ve may find necessary by
way of oral rejoinder at a later stage. Again, I wish to convey to you,
Mr. President, and to every Member of the Court, our very sincere
appreciation of the patience, the kindness, the courtesy and the co
operation with which you have listened to and reacted to the presenta
t10n of our case.With your !cave, one of the Agents for the Respondent,
ML Botha, will present our formai submissions to the Court. 34. ADDRESS BY MR. BOTHA
AGENT FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARING OF 5 NOVEMBER 1965
Mr. President, we repeat and re-affirm our submissions, as set forth
at page 6, of the Counter-Memorial, Il, and confi.rmedat page 429, of the
Rejoinder, VI. These submissions, Mr. President, can be brought up-to
da.te without any amendments of substance and then they read as fol
lows:
Upon the basis of the statements of fact and law as set forth in Res
pondent's pleadings and the Oral Procecdings, may it please the Court
to adjudge and declare that the submissions of the Governments of
Ethiopia and Liberia, as recorded at IX, pages 374-376 of the verbatim
record of 19 May 1965, are unfounded and that no declaration be made
as claimed by them. In particular, Respondent submits-
1. That the whole Mandate for South West Africa lapsed on the dis
solution of the League of Nations and that Respondent is, in consequence
thereof, no longer subject to any Iegal obligations thereunder.
2. In the alternative to r above, and in the event of it being held that
the Mandate as such continued in existence despite the dissolution of the
League of Nations:
(a) Relative to Applicants' Submissions numbers 2, 7 and 8, that
the Respondent's former obligations under the ~dandate to report
and account to, and to submit to the supervision, of the Council
of the League of Nations, lapsed upon the dissolution of the
League, and have not been replaced by any similar obligations
relative to supervisionby any organ of the United Nations or any
other organization or body. Respondent is therefore under no
obligation to submit reports concerning its administration of
South West Africa, or to transmit petitions from the inhabitants
of that Territory, to the United Nations or any other body;
{b) Relative to Applicants' Submissions numbers 3, 4, 5, 6 and 9,
that the Respondent has not, in any of the respects alleged,
violated its obligations as stated in the Mandate or in Article 22
of the Covenant of the League of Nations.
Mr. President and honourable Members of the Court, I thank you. 347
35. OBSERVATIONS OF ~IR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARINGS OF 9-rz NOVEMBER 1965
:Mr. President and honourable iiiembers of the Court, it may be con
venient for the Applicants to preface comments upon the evidence with
a brief statement concerning the posture of the litigation upon the con
clusion by Applicants of their argument on both law and fact, subject
to the reservations made by the Applicants in the Oral Proceedings on
19 May in the verbatim record at IX, page 373. The Applicants at that
time, as the Court will recall, reserved the right, pursuant to Article 50
of the Rules of Court, to comment upon evidence given, as well as to
exercise any other right to which they may be entitled by virtue of the
Statute or Rules of Court, or the practice of the Court. The rights then
reserved included, inter alia, the right of amendment of submissions.
The Applicants take the occasion to reaffirm their response to the
question addresscd to them by the honourable President on 5 November,
in the Minutes, VIII, page 92. The Applicants rest upon the final sub
missions presented to the Court on 19 May, as set out in full in the ver
batim record of that date, IX, pages 374-375. The Applicants perceive
no reason, on the basis of any arguments made by Respondent since that
date or of any evidence produced, to arnend their submissions.
If it please the honourable President, I now proceed, on behalf of the
Applicants, to comment upon the evidence of the witnesses and experts.
Diligent effort bas been made in the time provided, and will be main
tained, to cornply with the terms of the staternent made by the honourable
President on behalf of the Court on 24 May, in the Minutes, VIII,page 46,
and to that end, subject of course to the disposition of the Court, the
Applicants will not detain the Court beyond the session of tomorrow.
Comment will be first addressed to the objections fully and timely
made by the Applicants with regard to the question or issue of relevance,
weight and credibility to be attached to the evidence, in the light of the
rnanner or guise in which Respondent fonnulated the points to which the
evidence was directed, and the issues to which such evidcnce was said
by Respondent to be relevant.
The Applicants' objections in this regard were fi.rst lodged by letter
dated 20 June 1965, confirmed and read into the record in open Court on
2I June 1.In the same verbatim record, pages ro3 and following, the
Applicants elaborated the grounds upon which such objections were
based. As the Court will no doubt recall, the Applicants' objections were
consistently and repeatedly maintained thereafter. In the interest of
expedition, it will suffice perhaps to draw to the Court's attention the
reservation of such objections in the verbatim records, inter alia,22 June,
at X, pages 130-133; 7 July, at X, pages 335-336; 14 October, at XI,
pages 600-601, and 18 October, at XI, pages 644-645.
The Respondent's formulation of the issues to which its evidence was
directed, or said to be directed, made its fonnal début in a letter dated
16 June 1965, adclressed to the Court by Respondent's Agent1. Para-
1 See XII,Part IV. SOUTH WEST AFRICA
graph (b) of the Respondent's letter of 16 June stated, arnong other
things, as follows:
"The testimony of all the witnesses to be called will be directed
solely to the question whether a norm and/or standards such as
contended for by Applicants exist and are applicable to South West
Africa."
Consideration of the grounds of the Applicants' objections to such a
formulation of the issue to which the Respondent's evidence was said to
be directed-which was described as the sole question in the letter-con
sideration of the grounds upon which the Applicants' objections to such
a formulation were lodged is germane to, and a relevant aspectof, com
ment upon the evidence itself, in the Applicants' submission. :Morethan
this, however, consideration of the grounds of the Applicants' objections
furnishes a key to evaluation by the Court of the relevance, the weight
and the significancc properly to be attached to the evidence led by
Respondent and produced in response to this formulation, by the Re
spondent, of the issue to which the evidence was said to be directed. This
is allthe more apparent from the practice, adopted consistently there
after by Respondent, of putting to virtually every witness a so-called
"culminating question", or series of questions, in which expert opinion
was solicited asto the effect upon the inhabitants of the Territory, in the
standard form, of a "norm and/or standards such as contended for by
Applicants". Sometimes, as a variation of the same theme, perhaps to
reheve monotony, the phrase "of the nature contended for by the Appli
cants" was substituted for the phrase "such as contended for by the
Applicants"-the distinction, of course, is insignificant.
ln the case of Professor Manning, the Respondent injected a new
variant, according to which the testimony of the witness was to be
directed to a consideration "of the application of a suggested rule of
non-differentiation in South West Africa". This is from the verbatim
record of 14 October, at XI, page 600.
The Applicants, as they had before and as they did thereafter, duly
and promptly reaffirmed their objections on the grounds set out in the
same verbatim record at the same page. The attention of the Court is
·respectfully drawn to the citations to the record given by the Applicants
in the course of their objection at that page. The Applicants objected
to Respondent's newly coined, though no less counterfeit, formulation
ofthe point to which Professor Manning's evidence was said to be directed.
In the Applicants' submission, the new formulation mcrely served to
compound the confusion and ambiguity inherent and implicit in the
earlier ones.
This became increasingly manifest during the course of Professor
Manning's testimony. The witness was led by Respondent, for example,
to express views concerning "group pcrsonality", in a context which
implied that, on the basis of the Applicants' theory of the case, or any
thing contended for by the Applicants, recognition or protection of
so-called"group personality" as such was questionable or impermissible.
The Court's attention is drawn to the verbatim record of 14 October,
at XI, pages 605 and following.
The Applicants have raised, as they raise again now, the question of
relevance of such testimony, on the ground of their uncertainty as to the
real point to which the evidence was being directed. The attention of the OBSERVATIONS OF MR. GROSS 349
Court is drawn to the objection stated at XI, pages 606 to 607. The
Applicants stated that they also were firm believers in "group personal
ity", but did not perceive what rclevance that fact bore to the issues in
this case. The Applicants statcd, in explanation of their objection, and
I quote from page 607 of the same verbatim record:
"If the witness is atternpting by his testimony to support official
discrimination on a basis of race, the Applicants would like to know
that with clarity, Sir, if it is possible."
The Respondent never answercd the question.
A concise statement of the grounds of the Applicants' objections to
any and ail such formulations of the issue to which the evidence was said
to be directed, may be found in the verbatim record of 22 June, at X,
pages 131-132, and the Court's attention, respectfulJy, is drawn thcreto:
it will not be cited again, in the interests of expedition; no quotations
will be made.
The essence of the objection, Mr. President and honourable Members,
can be put into a nutshell. Evidence directed to a false issue is irrelcvant
to the real issue. The ambiguity of Respondent's formulation was bound
to, and in the event did, sow confusion concerning the relevance,
weight or significance of the questions and of the testimony addressed
to it.
The formulation in ail its variations imports a false rendering of the
true nature of the standards for which the Applicants in fact contend, as
well as of the international legal norm of the same content which the
Applicants have put forward as an alternative legal theory; it is of
e<~urseunclerstood by the Applicants that a recanvass of the arguments,
w1th respect to the content or other aspects of the standards and the
legal norm, would be out of place in the context of this comment upon
the eviclence.
Respondent's formulation of the issue to which its evidence was
directed would in any event, unclcr any othcr circumstances, justify an
objection on the grounds of ambiguity pursuant to normal and logical
principles of evidentiary procedurc. But more than this, it is, in fact, in
its very formulation, an implied legal argument, meaningless in itself
without reference to the conflicting interpretations of the Parties con
cerning the legal nature of the standards or of the international legal
norm, or both, as described in the written pleadings, including partic
u1arly of course the Reply.
In the course of rcpeated objections to the formulation of the issues
to which the Respondent's evidence was said to be relevant, the Appli
cants pointed out that the Respondent's obstinate use of the tcrm
"differentiation" was a tactical, rather than a merely semantic exercise.
In directing evidence to issues formulated in an unintelligible manner,
however, the Respondent took the risk that, even apart from the question
of relevance as such, the evidence itself would be diffi.cult,at best, for the
Court to credit or to evaluate. This is precisely what happened in the
event. Thus, Professor Logan was asked by Respondent, as a culminating
question: "Do you consider that measures of differentiation to protect
the various groups are necessary?" (X, p. 373.)
Is it the intended sense of such a question-is it to be inferred there
from-that measures of racial discrimination may be necessary to protect
groups against which such measures are practisecl?350 SOUTH WEST AFRICA
The question in its very form is inherently misleading because of its
ambiguity. It would be like asking a witness whether "measures of
differentiation" to protect minors or incompetents or war widows or
blind persons are "necessary". The question has nothing to do with the
Applicants' case. The consequence of the formulation of the question
made itself apparent immediately in the evidence, in the testimony in
response thereto.
In his response, Professor Logan confi.ned himself to measures to
reserve the lands of the Natives, to control the population movements in
certain circumstances, particularly into urban areas, and the protection
and development of what was called the "traditional institutions of the
people". (X, pp. 373-375.)
Professor Logan made no mention at ail of laws and regulations or of
Respondent's official methods and measurcs for effectuating such laws,
which impose limitations upon economic advancement on a racial basis,
or totally deny franchise on a racial basis, or place obstacles on a purely
racial basis inthe way of achievement of engineering, scientific or profes
sional skills, or preclude on a racial basis rights of association or col
lective bargaining.
Professor Logan, in his response, made no reference to these dis
criminatory Jaws whlch comprise the pohcy of apartheid. In other words,
Professor Logan was not expected to, by the terms of the formulation of
the issues to which his testimony was said to be directed and the ques
tions putto him in pursuance thereof, and did not address himself to the
facts which, on the Applicants' theory, are decisively relevant to their
case.
Arguments relative to this matter have been thoroughly canvassed
during the course of the proceedings, and have been stated. The Appli
cants, of course, appreciate that it is not appropriate to re-open such
arguments in the context of comment upon the evidence. They would
not, however, in any event, consider it necessary to do so. It is surely
supercrogatory to assure the honourable Court that no aspect of impli
cation of the Applicants' objections to Respondent's formulation of
the issue, to which its evidence was said to be directed, reflects the slight
est doubt that, as the Applicants put in the Oral Proceedings of 2r June,
"the Court indeed is able to appreciate the contentions of the respective
Parties". (X, p. 106.)
The evidentiary confusion (which is the subject of this portion of the
Applicants' comment) which the Applicants had forecast in their ob
jections as the inevitable toll of the formula by which Respondent had
chosen to lead its evidence and mislead its witnesses, nowhere was more
apparent than in the course of the testimony of Professor Possony.
As the Applicants sought to bring out on cross-examination of this
witness, the reJevance, weight and credibility of ail opinions e\icited by
the Respondent from Professor Possony as an expert ail hinged upon an
understanding of the witness conccrning the true nature, content and
scope of the Applicants' legal theory of its case. Accordingly, the witness
found it necessary to seek to validate and make relevant his testimony
by means of a legal argument of his own concerning the legal basis of
the Applicants' case. His legal argument, which is to be found in the
verbatim record of zr October. at pages 36-38, supra, in support of
what he understood to be the Respondent's interpretation of the stan
dards o·rthe norm, or both, as dcfined and described at page 493, of the OBSERVATIONS OF MR. GROSS 351
Reply, IV, was studded with references to the sources set out at other
pages in the Reply from which the standards are derived, and the sources
described in the Reply which, as is also stated in the Reply at page 493,
"severally and in their totality comprise the generally accepted norm".
The witness, for cxample, referred to the Draft Convention on the Elimi
nation of ail forms of Racial Discrimination, one of the sources cîted by
the Applicants, which embodies a definition of racial discrimination,
which is quoted in the Rcply, IV, at page 507, footnote 2. The purport
of Professor Possony's testimony in this regard appeared to be that the
Draft Convention, or its underlying premises, were, in his words, "out
of line with the spirit of the Charter". (Supra, p. 38.) Such a view-if
lt is indeed a fair rendering of bis testimony, as it seems to be-would,
in the Applicants' submission, go far to diminish or dismiss the credibil
ity and weight of his ~estimony as an expert in regard to international
standards relating to racial discrimination, as well as in regard to the
sources from which those standards are derived and of which thev are
comprised. "
However, the point the Applicants seek to make is that his response
was difficult-if not impossible-to evaluate, cxcept in the light of his
understanding of the legal nature and content of the international stan
dards for which the Applicants contend, and as they are described in
their Reply, IV, at page 493.
I tum now to another aspect of the consequcnces of Respondent's
formulation of the issues to which Professor Possony's tcstimony was
said to be directed, that is, "the absence of a general practice of a sug
gested norm and/or standards of non-discrimination and non-separation
as relied upon by the Applicants". (XI, p. 643.)
The Applicants' objections were made and noted in the same verbatim
record and are set forth at pages 644 and following. The phraseology
of the formulation, as pointed out by the Applicants, was, of course, a
variation on the familiar theme first played in the Respondent's letter
of 16 June, to which I have referred.
Following his argument in support of his construction of the legal
nature of the Applicants' contention-an argument, incidentally, which
was triggered by a question addressed to him on cross-examination but
which was not responsive toit, as the Court will observe in pages 35-36, •
supra-Professar Possony was questioned further in an effort to elicit
as clearly as possible his own understanding of the point or issue to which
his evidence was said by Respondent to be relevant. The inhercnt ambi
guity and unintelligibility of Respondent's formulation took its inexor
able toll.
The Applicants read to the witness a passage from the Rejoinder,
V, page 131. In this passage, as the Court may recall, the Rcspondent,
among other things, characterized the Applicants' contention or argu
ment as meaning that "a Member of the United Nations would not be
entitled to provide special protection or special public conveniences
for women". (Supra, p. 41.)
Professor Possony, after a prefatory comment, responded: "I think
page 131, V, of the Rejoinder, which Mr. Gross just read, is a correct
description of page 493." (Ibid.) He meant, of course, page 493 of the
Reply, IV.
The witness thus found it necessary, by reason of the formulation
by Respondent of the issue to which its evidence is said to be directed352 SOUTH WEST AFRICA
and relevant, to travel the road of confusion toits destination, which in
this case was absurdity.
In response to a question addressed to the Applicants by the honour
able President at X, page 132, the Applicants indicated that it was their
position that evidence relevant to international custom could be adduced
in terms of Article 38 (1) (b) of the Statute of the Court. Respondent's
Counsel earlier had advised the Court that Respondent intcnded to
show by its evidence "firstly, that there is no evidence of a general prac
tice accepted as law, in accordance with the norm and standards con
tended for, but that, in truth, there is a very substantial amount of
practice to the contrary". (X, p. 83.)
As the Applicants pointed out in rcpcated objections, such a formu
lation linking, and hyphenating, "norm" and "standards" in this con
text could produce nothing but confusion in the evidence. The existence
or otherwise of international custom in the sense of Article 38 (1) (b)
of the Statute of the Court, has a legal connotation and signification
quite different from a so-called "practice" of international standards
in the sense employed in these proceedings.
ln respect of the Applicants contention with regard to the asserted
international legal norm, or rule of international law, the issue is whether
the rule of international law contended for exists as such, as a matter
of law, and whether the Court could properly find and apply it to this
case in terms of Article 38 of the Statute. That is the issue to which
evidence pertaining to such an alleged international lcgal norrn would be
relevant and would be properly directed.
ln respect of the international standards, however, quite a different
issue is presented. No evidence is relevant, in the Applicants' submis
sion, concerning the extent to which international standards pertaining
to racial discrimination-ta discrimination on the grounds of race or
colour-are applied in practice. If the Court should find that such stan
dards exist and that they are comprised of the sources cited and properly
reflect them-the existence of which sources is undisputed and indispu
table-then the extent to which such standards are perhaps violated in
practice is irrelevant; just as in the case of standards of negligence, or
reasonable care, or due process of law, failure to observe such standards
in practice makes them more, not less, necessary.
ln the event, the evidence actually led by Respondent, as distinguished
from that indicated in Counsel's initial proffer, to which I have referred,
largely was concerned with sociological data and hypotheses, rather
than general practice. Such evidence as was produced which did relate
to practice of States proved the obvious fact, the inescapably obvious
fact, that it is frequently necessary to protect individuals from racial
discrimination or otherwise to assure that the individual will not suffer
adverse consequences by reason of bis membership in a racial group or
by reason of his colour. None of this evidence had anything to do with
the Applicants' contention, except to confirm the true nature of the
standards and the norm, or either of them, in respect of the inherent
consequences of racial discrimination.
The testimony of Professor van den Haag, for example, did not con
cern State practice at ail. I would say parenthetically, if I may, Mr. Presi
dent, that Respondent neither through Professor van den Haag, nor
through any other witness, offered evidence-nor is there any such evidence
to be found-tending to show that racial discrimination could promote OBSERVATIONS OF MR. GROSS 353
moral well-being or social progress in any human context. As was brought
out during the examination of Professor Possony-1 wiff came back to
Profcssor van den Haag in a moment-Rcspondent itself in its pleadings,
and Respondent's witnesses in their testimony, employed the term "dis
crimination" in its customary and prevalent sense connoting adverse
and unfair denial of equal rights or opportunities to an individual as
such, on the grounds of his race and colour. Examples of the use of the
term "discrimination" in this sense by Respondent may be found, inter
alia, at pages 5, 6-7 and I2,si,pra, and the Court's attention is drawn
also to the testimony of Professer van den Haag at X, page r50, and to
that of Professor Brm..,·erat X, page 299.
As I have said, Mr. President, the testimony of Professer van den Haag
did not concern State practice a.tal!. It appeared at ftrst that his proffered
testimony might be directed to the practice of States-see X, page r30,
and the question propounded by the honourable President at page 132
in the same record.
In the event, Professor van den Haag's testimony, however, proved
to be wide of this mark. In the AppJicants' submission this was brought
out in Profcssor van den Haag's response to the question putto him by
Judge Koretsky at X, pages 471 and 472. Professor van den Haag's tes
timony, likewise, is devoid of reference to the pertinent practice of
States.
Turning to Prof essor Possony's examination: during the course of
his testimony hc described, for example, social or po1itica! mores in the
United States, conceding, as the Applicants understood him, that con
stitutional practice in the United States, as in most other civilized coun
tries, interdicted official racial discrimination.The Applicants refer to
the intervention by the honourable President, in respect of certain as
pects of Professor Possony's testimony in regard to this matter, at XI,
pages 693-694.
With regard to Professor Manning's testimony, the Applicants re
spectfully draw the Court's attention to Professor i\fanning s statements
at XI, pages 620 and 623-624. Likewise, at page 637 of the same record,
Professor Manning conceded that he would have to make what he called
a "special study" before he could answer a question as to whether the
States he had enumerated in the course of his testimony had, or pursued,
policies of establishîng the rights, status, duties. privileges or burdens
of individuals on the basis of their group or race, rather than on the
basis of their individual mcrit and capacity.
Whatever the testimony of Professors van den Haag and Manning
was intended to show, it had nothing, so far as the Applicants perceive,
to do with international custom evîdencing the practice of States, in
this sense or in the terms of Article 38 (1) (b) of the Statute of the Court.
Profcssor Possony expressed opinions with regard to practices and he
gave evidence concerning certain laws and constitutions of States. None
of this, however, was relevant to issues presented and raised in respect
of the international standards or the international Iegal norm, or bath,
for which the Applîcants contend, as contrasted with the unintelligible
and arnbiguous reformulation, used as the basis upon which Respondent
led its witnesses, and asserted to be the sole question to which their
evidence was directed or relevant.
When Respondent led its witnesses to testify concerning the practice
of States with regard to the norm of non-discrinùnation, or of non-sepa-354 SOUTH WEST AFRICA
ration as it is alternatively called, what the Court heard, in our submis
sion, was either testimony concerning the unofficial practice of groups
or individuals within States, usually not sanctioned by official action
to say nothing of not being fostered and encouraged or required by of
ficialaction-or testimony related to the practice of States concerning
some standard or some international norm, but not the one for which
the Applicants contend.
In connection with the range of issues relevant to this matter under
comment, the Applicants were asked by the honourable President, at
XI, page 690, whether or not evidence designed to establish that the
application of a standard, claimed to exist by Applicants, to the Terri
tory would be contrary to the social progress or welfare and development
of the inhabitants of the Territory, would or would not be relevant?
At the time of the questioning, after an initial attempt at response and
in order to make certain that the Applicants understood and did justice
to the true import of the honourable President's question, the Applicants
requested and received permission to answer at a later date, in order to
give a considered response. With the President's leave, a very brief
comment in response thereto will now be made.
ln the Applicants' respectful submission, no evidence could establish
that the application of the standard claimed to exist by the Appli
cants-of the nature and content claimed to exist by the Applicants
would be contrary to the social progress or welfare or development of
the inhabitants of the Territory of South West Africa (or indeed the
inhabitants of any other terri tory, but the latter is not in question here).
The Applicants' contention is that official racial discrimination is in
herently incompatible with social progress and human welfare. The
standard for which they contend reflects and embodies, in their submis
sion, a virtually universal judgment that racial discrimination under ail
circumstances is an impermissible governmental policy, and is a fortiori so
in respect of a mandate obligation to promote moral well-being and social
progress to the utmost.
The Applicants, with respect, cannot conceive of any evidence rele
vant to show that it would be contrary to social progress to apply a stan
dard according to which racial discrimination is incompatible with social
progress. Any such evidence would be based upon a self-contradicting
proposition, and this was the intended sense of the brief, and only par
tially considered, reply made by the Applicants to the President's ques
tion as first understood at XI, page 690.
Furthermore, in the Applicants' submission, the testimony of Profes
sor Possony proves that, within the ambit of State practice and under
the general rubric of Article 38 (r) (b), of the Statu te of the Court, of
ficial racial discrimination is universally condemned and proscribed in
the constitutional and legislative practices of ail civilized States, with
virtually the sole exception of Respondent, as well as in the judgrnents
and in the basic ordinances of international organizations, and the Appli
cants respectfully draw the Court's attention in this regard to the ver
batim record of 19 October in general, in which the relevant arguments
are made and which, of course, may not now be re-canvassed.
If it pleases the Court, I turn now to comment upon another aspect
of the evidence which likewise relates both to Respondent's formulation
of the issues to which the evidence was directed, and to the relevance,
or weight, properly to be attached to the evidence produced. I refer OBSERVATIONS OF MR. GROSS 355
to the misunderstanding, or the apparent nùsunderstanding, of the
Respondent with respect to the actual significance of the Applicants'
contention which was made in the Reply, IV, at page 260, and ever since
maintaincd, that-" ... the decisively relevant facts concerning Appli
cants' Submissions 3 and 4 are undisputed". In the context of the present
comment, emphasis is on the word "relevant". One by-product of Re
spondent's persistent misconception of the meaning of the Applicants'
contention in this respect isthe heavyhanded play, made by Respondent,
of the Applicants' so-called "admissions". Before disposing of the Re
spondent's argument in this regard, which can be done quickly, it would
seem appropriate to comment upon a deeper dimension of the Respon
dent's apparent misunderstanding of the contention which relates to
relevance of the evidence.
A climax of absurdity seems to have been reached on 28 October,
whcn Respondent's counsel attributed to the Applicants the attitude
"that no evidence may be weighed by this Court, that a11evidence is
irrelevant ... " This is from page 163, supra. The comment, however,
stands as an exceptionally candid version of Respondent's more custom
ary contention that the Applicants have rested their case upon some
so-called mcchanical or automa tic "normand/or standards", as to which
no evid_enceor facts are relevant, but which-by means of some process
of legal alchemy-establish a violation of the Mandate without reference
to any evidence. And the "norm and/or standards", moreover, are said
to make impermissible "special public conveniences for women". This
isthe parody of the case to which Respondent elected to lead its evidence
-the sole question to which it saw fit to direct the testimony of its
witnesses.
The truc significance of the Applicants' contention that all decisively
relevant facts are undisputed is readily apparent on the basis of a simple
syllogism. It can, in our view, be stated in three declarative sentences
which furnish a key to the interpretation and application of the Mandate,
and which demonstrate the actual basis upon which the Applicants'
contention-that "ail dedsively relevant facts are undisputed"-rests.
The syllogism is as follows:
r. The major premise: international standards are accepted according
to which racial discrimination is inherently and always incompatible
with moral well-being and social progress.
2.As a minor premise: apartheid is an extreme form of racial discrim
ination.
3. The conclusion: apartheid is inherently and per se incompatible
with the mandate obligation to promote moral well-being and social
progress, interpreted, as the obligation is to be interpreted, in the light
of th~ applicable international standards which are set out in the major
prem1se.
To the conclusion may be added a footnote sentence that, inasmuch
as the mandate obligation is-and I quote from the Mandate, Article 2
(2): "to promote to the utmost", apartheid is a fortiori a violation of the
obligation.
This is the Applicants' case, and it always has been, from the Appli
cations to the final submissions.
The Applicants' contention that the decisively relevant facts are
undisputed is, of course, pertinent to the second or minor premise of the356 SOUTH WEST AFRICA
syllogism which I have just vcntured to place beforc the Court-that
is. that "apartheid is an extreme form of racial discrimination". The
laws and regulations, and the official methods and measures by which
they are effectuated, the existence of which is conceded by Rcspondent
and is on record as evidence, constitute a polie:,,'and practice of racial
discrimination of an extreme and virulent nature, which jsuniversalJy
condemned as such. Such a policy. establishcd by such evidence, is in
herently and per seincompatible with moral well-being and social pro
gress, not only in the mandated territory but, in the Applicants' sub
mission and as has often been said, anywhere, at any time, and under
any circumstances.
Itis on this basis and for this reason that the Applicants have main
tained that no evidence, additional to that alreadv in the record in the
written pleadings, is necessary or relevant to their case, whether such
further evidence is in the form of testimony or inspection. There is no
issue of fact, releva.nt tohe existence of the international standards for
which the Applicants contend. The sources of which such standards are
comprised are, as is explicitly stated in the Reply, IV, at page 493, set
out in the Applicants' pleadings. The sole issue which, of course., is not
appropriate for argument at this phase of the proceedings, is their legal
quality and applicability to the Mandate-a purely lcgal issue for the
Court, which has been thoroughly canvassed.
In regard to the Applicants' alternative contention that, by reason
of their universal acceptance, the standards have obtained the legal
quality of international law in the sense of Article 38 of the Statute of
the Court: the only fact, or evidentiary, issue relevant to this contention
would be, as I have aireadv indicated, the existence or otherwise of rele
vant international conventions, relevant international custom, relevant
general principles of law, relevant judicial decisions or teachings of
qualified publicists-all in the tcrms of Article 38 (r) of the Statute of
the Court. And as the Applicants indicated during the course of the
proceedings, they perceivc no objection, subject to the Court's pleasure,
if materials relevant to Article 38 of the Statute are brought in by the
Respondent as evidence rather than as argument.
The Respondent's argument or contention with respect to the asserted
legal consequences of the Applicants' so-called "admissions", to which
I now turn our attention, is premised upon the sa.me misconception of
the Applicants' case as that which forms the basis for Respondent's
formulation of the issue to which the evidence itself was said to be
directed. The Applicants at all times, as the record makes clcar, have
reserved the issue of relevance. This appears, inter alia, in the very
portions of the record cited by Respondent's Counsel. :llfr. Muller, in
support of the sweeping contention regarding the asserted legal effect
of the Applicants' so-called "admissions". Thus, in the verbatim record
of 27 April, from which an excerpt was quoted by 1\Ir.Muller, the
Appbcants state, at IX, page 21:
"AH facts set forth in this record, which upon the Applicants'
theory of the case are relevant to its contentions of law, are undis
puted."
Similarly, Mr. Muller cited the verbatim record of 26 October, IX, pages
43-44, at page 43-one of the very pages cited by Mr. .l\luller-the
Applicants stated: OBSERVATIO:N"S OF MR. GROSS 357
"Theré is no relevant factual issue in dispute between the Parties
conccrning the measures and the practices by which the Respondent
givcs cffect to the admitted policy of apartheid."
Mr. President, the Applicants' rescrvation in this regard and on this
basis was explicitly made on the very first day of the oral proceedings
in these cases, as the Court will observe in the verbatim record, of 18
March 1965, VIII, pages n5-n6. The reservations expressly included
infcrences to be drawn from avcrments of fact, as well as averments not
relevant to the Applicants' theory of the case. Thereaftcr Respondent,
and appropriately so, on several occasions expressed doubt conccrning
the significance and the scope of the Applicants' reservation. Ultimately,
on 3 :\Iay, in the verbatim record at IX, page 95, Respondent's Counsel
asked: "What do the Applicants mean by the expression 'averments of
fact'?". It was a fair question and it received a fair answer.
In the verbatim record of 17 :\Iay, the Applicants have set out what
was described as an "illustrative enumeration" of laws and regulations,
official methods and measures, the existence of which is conceded by
Respondent and upon which the Applicants rely, and ,vhich, of course,
stand undisputecl in the record. In describing the legal significance of
the "illustrative enumeration" of these facts, the Applicants stated:
"These [the illustrative enumerated facts or, as the Respondcnt
calls them, the catalogue of facts], and similarly conceded existent
legislation and administrative measures, and effectuating policies
and practiccs, form the corpus of factual material or describe the
pattern of Respondent's conduct, which is known and characterized
widely as 'apartheid' ...
ln the Applicants' further subrrùssion, no evidence or testimony
in purported explanation or extenuation thereof is legally relevant
to the issues joined in these proceedings." (IX, pp. 298-299.}
And the Applicants sought to clarify the matter still further, if possible,
in their response to the second question addressed to them by Judge
Sir Gerald Fitzmaurice, in the verbatim record of 19 May at IX, page 361.
A so-called "admission of irrelevantfacts" is a contradiction in tenns.
If averments of fact are contended by a party ta be irrelevant, the
question of adrrùssion or denial does not arise as a legal proposition.
For the purposes of litigation such averments of fact simply are ignorcd,
and I would also again draw to the Court's attention, with respect,
the persistent-if l may so dcscribe it-confusion exîstîng which one
finds in the Respondent's repeated treatment of averments of fact,
inferences to be drawn therefrom, arguments with respect thereto, com
ments made thereon-the Rcspondent's trcatment of ail of these entirely
different elements as being legally synonymous, and examples have been
cited at more than one place in the record of these proceed.ings. The
Respondent's contention concerning the alleged legal effect of the Ap
plicants' so•called "admissions" is, in the Applicants' submission, without
merit and should be rejected.
Before turning to comment of a more specific nature in regard to
the rclevance, weight and significance of the testimony of particular
witnesses, it may be convenient first to dispose of a preliminary legal
question raised by Rcspondent regarding certain procedures followed on
cross-exarrùnation. I refer in particular to the question raised by Respon
dent in the verbatim record of I November, at page 220, supra. As the358 SOUTH WEST AFRICA
Applicants understand the argument there made, with respect to the
procedures and the rules of evidence or practice which should be applied
thereto, the Respondent urges the Court to disregard "as a possible
source of evidence'' the views of recognized authorities read by the
Applicants to Respondent's experts, for expression of their concurrence
or non-concurrence therewith, accompanied by any elaboration of their
views which they deemed pertinent to explain their agreement or dis
agreement, as the case might be. As is clear, in the Applicants' respectful
submission, from the vcry nature of contentious proceedings before this
tribunal, as well as fromthe character of the parties to such proceedings,
latitude of a considerable degree, both on direct and cross-examination,
properly may be accorded which, of course, always subject to axiomatic
considerations of fairness, may not strictly be in accord with rules of
evidence generally observed in municipal jurisdictions in the field of
procedure. The self-evident character of this proposition is manifest
from the breadth of Article 49 of the Statute of the Court and Article 53,
paragraph 1,of the Rules of Court. Reference is also respectfully made
to a specific application of the foregoing principle by the honourable
President regarding an objection made by the Applicants to evidence
proffered by the Respondent during the course of witness Dahlmann's
testimony-the reference is to the verbatim record of 8 October, at XI,
pages 460-461.
Respondent's experts have expressed far-ranging views concerning
broad aspects of social, political, economic, and moral policy. Also, in
the course of their direct examination, these experts supported their
opinions by reading into the record newspaper cuttings, extracts from
publications in the social and behavioural sciences, scholarly works on
general economic development, general studies on education, and many
other like sources. AUthe foregoing evidence was led, in the words later
employed by Respondent's counsel Mr. de Villiers at page 220, supra:
"purely for the purposes of the conclusions upon the question of the
general well-being ... ". Respondent's argument with respect to the
procedures followed on cross-examination seems to boil down to the
proposition that in deliberating the credibility or weight properly to
be assigned by the Court to the views or opinions of experts, or in
assessing their possible bias or prejudice, the Court should not take
into account their expressions of agreement or disagreement with views
of recognized scholarly ·authority with which they may be confronted
upon cross-examination in the broad fields covered by their testimony;
or, what cornes to the same thing, the Respondent's contention seems
to be that such evidence, submitted in that form and for that purpose,
must be inadmissible unless it is presented by persona] testimony of aU
the scholarly authorities whose views are to be placed before the witness
for his concurrence or non-concurrence.
Respondent's very reference to the testimony of Professer van den
Haag in this context brings the unreasonableness of the contention into
sharp focus. This witness. a professor of social philosophy, cited and
quoted in support ofhis own views numerous opinions of other authorities.
The Court's attention is drawn, inter alia,to the verbatim record of
22 June, at X, pages 145,146, 147 and to the verbatim record of 23 June,
at X, pages 166-171, 172-175 and 176-177. It was accordingly, peculiarly
relevant and appropriate, in order to assist the Court in evaluating the
weight and credibility of Professor van den Haag's testimony, as well OBSERVATIONS OF MR. GROSS
359
as his possible bias, was, accordingly, the solicitation by the Applicants,
upon cross-examination, of his agreement or disagreement with views
expressed by other scholarly authority in the fields of his expertise and
to which fields bis evidence was directed. Indecd, in the case of this very
witness, referred to by learned Counsel for Respondent as an example
in support of its contention, the Applicants not only demonstrated that
his views conflicted with a significant weight of authority in the social
and behavioural sciences, but also that the witness went so far as to
question the motives and even the honesty of some of his most highly
respected contemporaries in the same fields. I refer the Court to the
verbatim record of 12 July at X, pages 458-460 and 466, and in respect of
the last-cited point-Professor van den Haag's exhibition of bias-at X,
pages 461-462.
Finally in this regard the Applicants would draw to the Court's atten
tion recent municipal cases in some jurisdictions which are cited, for
example, in Wigmore on Evidence (a work rcferred to by Respondent as
an authority), Volume VI, the 1964 Pocket Supplement. pages 9-ro;
from this the Court will observe that the cases there cited reveal an
increasing tendency on the part of some municipal courts, in any event,
to enlarge or to expand previous practice, so as to permit the proccdures
followed by the Applicants in cross-examination of the experts presented
in these proceedings, and that such increasing tendency to enlarge upon
previous practice in these jurisdictions is viewed as an appropriate means
of testing the knowledge, the credibility and the weight properly to be
accorded to expert opinion. The Applicants, on the basis of ail these
considerations which I have mentioned in this regard, respectfully submit
that the Respondent's contention, in respect of the use made by the
Applicants of the works of scholarlv authorities, lacks merit and should
be rejected. •
Mr. President, the Respondent has thought fit to make enquiry as to
the rcason why the Applicants embarked upon a course of extensive cross
examination, but there is no need for speculation. The Applicants did
so because they thought it would pay dividends to their case. For
reasons which will be made clear by way of specific comment on the
evidence, the Applicants by no means have been disappointed in the
results.
The witnesses, both by admission and evasion, strikingly confirmed
the correctness of the Applicants' basic contention and legal premise
that apartheid by its very nature is an extreme, and fortunately unique,
form of racial discrimination, which is inherently incompatible with the
moral well-being and social progress of the persons whom it affects and
whose lives it touches. The witnesses brought to life in the Court room
the impact upon individual human beings of an official policyof racial
discrimination in which, and according to which, inhabitants are clas
sified by inexorable fiat as either "non-European" or "European", as
either "White", or "Native", or "Coloured", or "Asiatic".
The Applicants, from the beginning, have maintained that (and I quote
from the Memorials, 1, p. 161, paragraph 188):
"Taken as a whole, the weight of the factual record cannot be
materially diminished by attempts at extenuation."
And it is accordingly paradoxical but true that the testimony, in direct
as well as upon cross-examination, confirmed over and over again how360 SOUTH WEST AFRICA
unnecessary the evidence really was. The testimony revcaled the impact
and the effect of Respondent's policies upon the so-called "non-White"
inhabitants of the Territory in a manner which would in any event,
in our submission, have been inescapably, and inevitably, drawn from
the evidence of record in the exceptionally voluminous written plead
ings.
Respondent disparages the weight and significance of testimony elicited
in response to what Counsel for Rcspondent descrîbes, or characterizes,
as (and I quote from the verbatim record of r November, at p. 219,
supra): "... hypothetical questions about the effect of particular mea
sures upon particular individuals in particular circumstances", as if this
were a cause to demcan the evidence brought out in this respect, upon
cross-examination and also upon direct. The asserted distinction drawn
by Counsel: between what he referred to as "the general well-being",
of the population as a whole, as distinguished from "the effect of partic
ular measures uron particular indi viduals in particular circumstances"'
in our respectfu view, begs the central question.
The impact of Respondent's racially discriminatory policy upon indi
viduals "in particular circumstances", and through "particular measures",
is precisely what the Applicants are talking about. The distinction
purported to be drawn by Respondent between "the general well-being"
and the well-being of the individual, if that is indeed what is sought
to be drawn-it is not clear entirely what is meant by the distinction
and the emphasis, but such a distinction, ifsought to be drawn-would
illuminate with Iightning clarity, as the evidencc has done, the essentially
racist perspective which uniquely marks apartheid in the official order
ing of the relationship between the individual and a group and the
society as a whole, where the individual person is classified and his rights
and burdens are irrevocably established on the basis of his race or colour.
The testimony of Respondent's witnesses confirms and corroborates the
truth and the soundness of the Applicants' observations which were
deferentially placed before the Court on 3 May in the verbatim record
at IX, pages 87-89. The heart of the matter, as the evidence brings out
time and time again. was summarized on that date in a sentence on the
credo, or in the ideology, or doctrine (call it what you will) of apart
heid (and I quote from this record at p. 89): "the individual is essen
tially looked upon as aNative; the Native is not looked upon as an indivi
dual."
Mr. President and honourable ;Iembers of the Court, I turn now to
comment upon the relevance, weight, credibility and significance of
evidence of individual witnesses. I refer first to Dr. Bruwer, the only
member of the Odendaal Commission to be called as a witness by Re
spondent, who testified, among other things (as the Court will recall)
concerning the relationship, if any, between his testimony and a state
ment by Respondent's Prime Minister, Dr. Verwoerd, in which the
latter referred to "domination by the White in his own areas". This is
in the verbatim record of 5 July, at X, page 278.
In response to this question, posed on cross-examination, Dr. Bruwer
conceded, at the page just cited, that the establishment of rights and
privileges in the Territory was "by reason of bcing \Vhite and non-White".
He further testifi.ed, at page 280 of the same verbatim record, that
"the position of the non-Whites, using that term, is different from that
of the Whites"~and then, refcrring to the so-called White economy- OBSERVATIONS OF MR. GROSS
"[in the White economy] ... in the sense that the Whites in that area
have certain rights and privileges which the non-Whites have not in
that area".
With regard to job reservation laws and practices, Dr. Bruwer conceded
on cross-examination, that the policy did not relate to what he had
earlier termed "cultural configuration" as an explanation of the differ
ential policies pursued on a racial basis or ethnie basis, but that the
restriction precluding a Native from becoming a mine overseer, in
European-owned mines, for example, had "nothing to do with any other
factor" except that of classification by law as a "Native". This is in
the verbatim record at X, page 284.
At page 286 of the same verbatim record, Dr. Bruwer stated that
ail people falling under the category of non-White are excluded "in
regard to rights and privileges" in the White area. And he further stated,
at X, page 313, his agreement with the proposition put to him, that
rights are allocated and freedoms limited, in the White sector, on the
basis of whethcr an individual is a, Native or a White persan by legal
c1assification.
Professor Logan also, like Professor Bruwer, commenced by laying
stress upon a "cultural <lifference between different groups" (to use his
language in the verbatim record at X, p. 400). While he started with
the emphasis that these cultural differences were the basis upon which
rights and privileges were accorded, he did concede, at page 402 of the
same verbatim record, that the fact that a Bantu (that is to say a
"Native" or "Ban tu", sincc the terms are used interchangeably in this
record) happened to be a Hcrero, or a Nama, or a child of mixed marriage,
had nothing to do with the level which he could achieve above certain
forms of labour in the European community-in other words, that
cultural configuration, or "cultural clifference", had nothing to do with
this fact, as it was based on a "White" versus "non-White" categoriza
tion.
Again, at X, page400 of the verbatim record, Professor Logan expressed
the opinion that the rights and privileges in the southern sector, the
modern or exchange economy of the Territory, are not, in his words,
"based on the ccnsus classifications, they are based on the tribal affilia
tions''. That was his testimony at page 400. But at pages 4r9-420 of the
same verbatim record he conceded that job reservation policies bear no
relation to the individual's innate capacity. or personal potential or
ability, but were based entirely on his classification under the census.
It is relevant to note, in this connection, Professor Logan's earlier
concession, at page 403 of the same record, that he did not regard colour
to be a valid basis for allotment of rights and burdens.
li.Ir. Cillie, in his testimony, was not sure about the existence of any
legislation in South or South West Africa establishing rights or imposing
limitations upon freedoms on the sole basis of ethnie origin or colour
X, page 544. Earlier in the cross-examination, however, l\fr. Cillic had
conceded that ceilings were placed upon non-Whites in the southern
sector-and I quote from X, page 538-"bccausc they do not belong
to the White group".
The irrevocability of racial categorization by law was demonstrated
by the testimony of Dr. Krogh, who stated in the verbatim record at
XI, page 171, that he would look at the colour of a person's skin to tell
what group he was in and whether he was a "member" of the "developed SOUTH WEST AFRICA
sector" of the Territory. At page 172 of the same verbatim record,
Dr. Krogh admitted that the fact that the members of one society are
of a different colour than those of another is a "rule" which is applied
(as he called it), because"it is only human to do so" in determining the
economic "absorptive capacity" of a group; he conceded the colour basis
which governed or prevailed, at least in his view of the matter.
The evidence of the witnesses over and over again confirmed the
rigid inflexibility with which the individual inhabitant is categorized by
race or colour, without reference to individual potential or preference.
Dr. Van Zyl, describing his enquiry into Native education in the
Territory in 1958, stated in the verbatim record at XI, page 3ro, as
follows:
"We took these people who had settled in urban areas at the
time still to be part and parcel of their respective national groups
pertaining to different homelands. We were informed ... that the
Hereros staying in urban centres have all retained their connections
with their homelands and their national groups in the Reserves. So
we took all the others still to have the affiliation with their home
lands and their national groups, irrespective of the fact that they
were living in these urban areas."
And, as the Court will recall, the fact of residence, no matter for how
long a period, no matter through what number of generations, does not
affect the premise upon which this evidence was based.
Among more spccific opinions reflecting the same rigidity of classifi
cation and irrevocability was that of Reverend Gericke, who in the
verbatim record, at XI, page 54, stated "I have never met a de-tribalized
Bantu in South Africa. They all belong to a tribe.''
Dr. Rautenbach, in the verbatim record, at XI, page 356, expressed
the view that an urbanized Bantu or Native in Pretoria, for cxample,
and I quote from his testimony, "still has his roots in the rural areas
in his own community". At page 357 of the same verbatim record,
Dr. Rautenbach stated the view that education and economic inter
dependence within an area does not change what he described as "the
essential 'Africanness' of any individual".
The meaning of that is not clear except for its connotation with respect
to the impossibility, in the witness's view, of educational, economic, and,
presumably, social factors affecting the relationship between an individual
and the society except upon racial considerations, or ethnie considera
tions.
Conceptually, the evidence uniformly followed a line that the individ
ual and the group are interchangeable concepts for the present purposes.
This was shown in the testimony of Dr. Bruwer, for example, who stated,
at X, page 271, that "it was to the Odendaal Commission and also tome,
in the type of analysis that I made, a question of exercising one's rights
and one's privileges within an area assigned to you ... In the area looked
upon as belonging to you.''
Then, Dr. Bruwer, in response to questioning, commented that he did
not distinguish between the individual and the group, on the ground
that, if a group exercises rights, it means that every individual of that
group exercises those rights. (X, p. 271.)This is true, but not sufficiently
comprehensive to sfate the whole truth. It was no part of Dr. Bruwer's
thinking, on the basis of his evidence, that the individual, as such, might OBSERVATIONS OF MR. GROSS
be entitled to rights which did not necessarily pertain to the group, as
such.
The concept of interchangeability of individual and group likewise
was revealed in the testimony of Dr. Logan in the verbatim at X,
pages 416-417. The essence of his approach is found in his response to
questions designed to elicit his opinion when, if ever, an individual may
be regarded as having attained a persona! status of his own, by which he
should be, in the terms of the question, "judged as an individua1 and not
as a member of a group in terms of bis rights and duties and freedoms".
This was the question.
Dr. Logan responded at X, page 416: "He will be judgcd as a member
of the group who has achieved these things and will achieve this status
within his group."
Dr. Logan then gave an affirmative response to the question whether
he believed "that limitations imposed upon individual freedoms will
always be regulated or measured by reference to the fact that he is
classified in a certain group". Ibid.)
In more specific terms, which the honourable Court may well recall,
this witness viewed any Herero, as such, as one of what he called "the
cattle people", irrevocably imbued, in Dr. Logan's phrase, with "the
cattle philosophy". This is from the verbatim, X, pages 424 and 425.
Proceeding from this premise, Dr. Logan expressed the view that this
consideration, that every Herero was imbued irrevocably with "the
cattle philosophy", was relevant to the imposition of limitations upon
the freedoms of individual Hereros.
According to Dr. Krogh, it is what he ca!led "characteristic" and
"inherent" in the Whitcs to seek out modern economic opportunities
for developmcnt in the Territory, white, as he said, in bis view the only
"product" the Natives "could contribute at this stage to their economic
development" was their "labour employment". These were his words
at XI, page 77.
At XI, page 292, according to Dr. Van Zyl, no Native comrnunities
have "reached that stage of development where itwould be feasible to
make education compulsory". This was a blanket racial judgment.
Dr. Pepler was of the opinion that Natives should not be given "pri
vate, individual land ownership unless it is their wish, the wish of the
people themselves, as a group, and notas individuals". (XI, p. 224.)
Likewise, in the verbatim at XI, page 142, Dr. Krogh refcrred to-
"... membcrs of non-White population groups that are, according
to my mind as an economist, at a much lower stage of economic
development . . . and face quite different problems of economic
development, and, therefore, require quite a different policy ap
proach to those of the members of the White groups".
The emphasis, the preoccupation--of an obsessive quality in the
Applicants' submission-on the rights, duties, freedoms, status, achieve
ments, and so forth, of "groups" is also marked in the testimony of
Dr. Bruwer, a member of the Odendaal Commission, who, in the ver
batim at X, page 255, was Jed by Respondent to express his opinion
concerning what counsel described as "vast differences between the
groups".
No aspect of Dr. Bmwer's analysis or opinion, in respect to this
question which was addressed to him at X, page 255 of the record I have SOUTH WEST AFRICA
cited, and which he answered at pages 256-258 of the same record,
touched problems or relationships arising or existing in the modem
economic sector, such as factors incident to social change, which the
Odendaal Commission report itself indicates an awareness, or indeed
rapid social change, or to neccssary adjustments to meet the conditions
of the modern world in the modem economic sector of the Territory.
Dr. Bruwer's attention was exclusively confined to the familiar dis
tinction of matrilineal descent, and the differences between the tradi
tions of the tribes, particularly-almost exclusively-in the subsistence
areas, inthe northern areas and the like. I refer the Court to his testimony
in X, pages 256-258. On cross-examination, Dr. Bruwer generalized ail
problems pertinent to the economic heart of the Terri tory in its economic
life,with the sweeping statement "... the White economy, the money
economy, is alien to the basic economic systems of these people". (X,
p. 278.) He ignored the fact that many of "these people", that is the
non-\Vhites, were part and parce! of the money economy, which, he
conceded at another point of his testimony, could not thrive or perhaps
even survive without their services. (X, p. 303.)
In the same vein and to the same effect, Mr. Cillie characterized
non-Whites as "people on a lower level of civilization". (X, p. 544.)
Earlier, at page 541, in response to a question if therc would be, as a
matter of policy, limitations imposed by reason of their colour upon
non-Whites remaining for any reason in the White economy, i\Ir.Cillie
remarked:
"It is not mainly a question of colour, it is a question of different
peoples. These people arc Jesser deveJoped, they are different from
us and they have not attained the Western standard of living. I do
not know why you are concentrating on colour."
(This statement was addressed to Counsel on cross-examination.)
The evidence of the witnesses similarly demonstrated that the policy
is self-perpetuating; it leads to restrictions upon certain higher levels of
activities for persons classified as non-White, and then such restrictions
necessarily require, and are cxpected to require, a search elsewhere for
opportunity by the non-Whites affected by such restrictions. It is a
classic vicious circularity of cause and effect. Applicants will shortly
comment upon evidcnce relating to this aspect of apartheid, that is, the
"search elsewhere".
Dr. Bruwer, although a member of the Odendaal Commission, testified
that he did not know whether or not there was any Iaw or regulation
which fi.xed individual rights or burdcns on the basis of individual
capacity, apart from membership in a group. I rcfer to X, page 292.
In the result, as Dr. Bruwer conceded, the only solution for the
individual deprived of equality of opportunity, or subject to limitations
upon his freedom, is to "escape" from the local situation. I refer to the
verbatim at X, page 317. The word "escape" was used by Counsel upon
cross-examination, and Dr. Brmver, at the cited page, accepted that
characterization of the situation.
In the words of Professor Logan, in response to Judge Sir Gerald
Fitzmaurice's question in X, pages 501-502 (Judge Fitzmaurice's ques
tion, if I may remind the honourable Court, was "whether ... it does
not begin to look a little as if these laws are aimed precisely at preventing
the man who would be able to do the job from doing it?"): "Yes, I think OBSERVATIONS OF MR. GROSS
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 com
munity ... and that would be my explanation of it." (Ibid., p. 502.)
The policy was referred to subsequently by i\fr. Cillie at X, page 542.
1'.fr.Cillie referred to this poJicy as "an encouragement for non-White
groups and non-White peoples who are qualified to serve their people in
the areas where they cstablish their homelancls".
Dr. Krogh gave diffcrent expression to the same thought-the same
concept-when he used the following metaphor in describing job reserva
tion laws and other officially-imposed limitations upon economic ad
vancement:
" ... a signpost indicating before you enter the street that this is a
cul-de-sac, instead of arriving at the end and then discovering that
you have not been warned or clearly indicated that there are other
ways of arriving at your particular destination". (XI, p. rr9.)
Much testimony confirmed the evidence-replete in the written plead
ings and leading therein to the same inescapablc conclusion-that non
\Vhites, as such, are regarded and treated as mere sojoi,rners in so-called
White areas; the word is used in this context numerous times by Re
spondent in its written pleadings, and is reflected in the testimonyaswell.
These persans. these inclividuals who are classified by law as "non
Whitc", with rights irrevocably established on that basis, are "sojourn
ers" in the so-called "White areas", irrespective of the length of time
that they, thcir ancestors, or their descendants, may live and work
there. (This, of course, is what the Applicants have had in mind in
cmphasizing, and in using, the phrase-which they have done on more
than one occasion in these proceedings-of the treatment of persons who
"live, work and die" in the so-called White sector as "sojourners"-and
the Respondent's Counsel has rather ridiculed this in his comment upon
the evidence.)
As a "sojourner'', the non-\Vhite is denied equality of opportunity or
equal protection of the laws, on the basis of his "non-Whiteness", as
compared to the Whites in the samc area and working in a common and
shared economy.
Dr. Logan, at X, page 493, conceded: "There is a ceiling if [referring
to non-Whites] they wish to remain in the White Territory."
Dr. Rautenbach expressed the view that Natives in the southern
sector arc rcgarded as living in an alien territory. In the verbatim at XI,
page 379, he stated that he would regard a Native: "... as being a man
who is sojourning there and they sojourn there perhaps for three genera
tions or four generations".
This appears at XI, page 379 in this stark form. These are the inhabi
tants of the Tcrritory imder Mandate!
Similarly,Dr. Pepler agreed that the non-White in the so-called White
sector of the Territory is there as a temporary sojourner or as a guest.
This is at XI, page 247.
Dr. Logan, at X, page 498, admitted, in response to a question about
the individual N"ativc who is "absorbed in the White economy"-these
words being used in the Odendaal Commission report, as the Court will
recall-that:
"... there are programmes for attempting to give him a bctter
education, to do better things for himself within the area, subject,366 SOUTH WEST AFRICA
of course, to the fact that there is a ceiling placed upon his economic
attainment".
Dr. Bruwer likewise conceded that unless the non-White physically
moves to bis own so-caHed territory or "home1and", which he may never
have seen but where he can "dominate", however-that unless he moves
away from where he is, there is no safeguard to protect him against
present limitations upon his freedom so long as he works or lives in the
White area. I refer the Court to X, pages 3ro-311. According to Dr.
Bruwer (and his testimony in this regard is at X, page 308, "the best
possible approach", in his words, which commended itself to the Oden
daal Commission (of which he was a member) was the physical removal
of the non-White to his own "territory". Likewise, he acknowledged
as correct the statement that was posed to him on the same page of
the record I have cited:
"... the non-White, who might spend his entire working life or
longer-beyond his retirement-in the White area, would be subject
to imposed limitations on his freedom so long as he was physically
present in the White area".
In order to avoid confusion, Iet me repeat, if I may, Mr. President, that
the words I have just quoted were put to the witness by Counsel, but
that he expressed agreement with them as a characterization.
Likewise, at X, page 543, Mr. Cillie agreed with Dr. Bruwer's affir
mative response (X, p. 3r7) to the question whether the alternative
posed by the Odendaal Commission for the individual Native was
the option of remaining in the White sector so long as he pays the price
of limitation upon his freedom, or taking himself and his family and
removing outside the area.
Much evidence was directed toward explaining or extenuating the
adverse effects of apartheid upon the individual victim of discrimination.
on the ground that apartheid, in the words of Dr. Rautenbach. is con
ceived as "a means towards an end-it is not an end in itself". These
words were used by the witness at XI, page 378. The same witness
described the end envisaged for the policy in terms of what he called
"a vision of the future", with what he described as "nations or com
munities politically independent and economically interdependent".
This was on the same page of the record I have just cited.
Witnesses expressed the view that a necessary prerequisite for the
attainment of this vision was what was frequently described as "social
peace". "Social peace", it appeared from the testimony, is not adequately
assured by normal conditions of equality of opportunity and equal pro
tection of the laws. Different standards of "social peace" prevail here.
As Dr. Krogh testified on page 79, XI, in order to ensure "social" peace
it is necessary:
"... to recognize the diverse and heterogeneous nature of the
population that is organized in different groups, primarily seeing
their economic. interests from the group rather than the national
view-point".
Seen 1nthis light, according to the opinion of Dr. Krogh, "social peace"
must, if necessary, be bought at the price of limitations upon individual
advancement, such as the job reservation laws. This is on page 109, XI.
Similarly, Mr. Dahlmann, when asked to explain why it is necessary
to impose job restrictions upon non-Whites if there are too few apph- OBSEl{VATIONS OF MR. GROSS
cants to fill the demand, replied, at XI, page 5og: "That might be to
avoid social friction, for example."
The simplest level whcre dangerous "social friction", as it wa.scalled,
might arise, was described by Dr. Logan in his capacity as an expert on
the relationship between man and the land, in the following terms, at X,
page 488. First, Dr. Logan said:
"If you were to put side by sidc within a housing area of an urban
comrnunity, a Damara, a Nama, a Herero, Ovambo, mixing them
thoroughly, house by house down the street, then I am afraid there
would be considerable difficulty between them."
Then he went on to say:
"The same thing would be true if you mixed in a collective
gathering of individuals standing together in an open space. Therc
might be some difficulty between them."
Dr. Rautenbach, justifying the Iegislative imposition of apartheid on
the so-called "open universities", over their protests (as the evidence
shows) statcd at XI, page 406: "... bringing people together from various
backgrounds may lead to conflict." He explained that educational
apartheid at university level would "lead to more hannony because
nobody will have a right to be disgruntled or make comparisons". It is
not explained why this degree of disgruntlement arising from making
"comparisons" does not cxist in respect of those universities where, by
special exception granted by the Government, there are persons of dif
ferent backgrounds who are in common educational pursuits, even if
they may live in separate houses, or attend separate theatres, or stand in
separate lines at post offices.
The Reverend Gericke, furthermore, indicated that his church had in
fact urged Respondent Government to pursue its policy of apartheid,
although he conceded that churches other than his own had contrary
views. But among the principal reasons relevant to this portion of my
comment upon the evidence-among the principal reasons for his own
views on the matter of church apartheid was his opinion that such separa
tion, in his own words, "removed possible occasions of friction".In more,
shall one say, theological or moral tenns (XI, pages 9 and IO and 15-17
respectively) the Reverend Gericke said:
"Where you have independent self-goveming churches and com
munitics, the requirement that one must love one's ncighbour as
oneself becomes easier of fulfi!ment than might othcrwise be the
case."
And as the opinions of others cited for his expression of agreement or
disagreement demonstrated, the principle is just precisely the opposite
from that implicit in his statement: the requirement of "loving one's
neighbour" is decisively important in the case of bringingtogetherpersons
of different backgrounds. ·
The evidence showed in considerable detail the sacrifice exacted from
individual non-White inhabitants on the altar of "social peace", as it is
repeatedly called in the evidence.
Dr. Krogh testified that non-Whites are excluded from positions as
firemen, conductors and guards for the sake of "social peace". This is
in the verbatim record at XI, page 139. At XI, page 182, he explained the
policy in the mining industry against placing Natives in positions of SOUTH WEST AFRICA
authority over Whites, or against permitting them to achieve positions
above a certain low level, in these words:
"... but I respect ... the wishes of the members of different groups.
If they do not in fact want to employ members of another group or
do not want their members to work under members of another group,
I can very well appreciate that if you forced them to do this, you
would be inviting social strife ... "
Dr. Krogh appeared to assume without question, for the purpose of his
testimony, that the preferences of the employing group must always
govem, automatically, unquestionably. This emerged somewhat more
candidly in his further testimony concerning the framework for the
imposition of prospecting and mining restrictions on non-Whites. In the
verbatim record. at XI, page 84, Dr. Krogh stated:
"This [that is to say, these limitations and restrictions] isnot on
the grounds of protecting the economically weaker against the eco
nomically stronger. Itmakes no sense. But I can very well appreciate
that this is for the sake of social peace and in the interests of the
White population group layingl down these particular restrictive
measures, through feeling that the members of the other population
groups have equal opportunities for owning, of prospecting and of
obtaining mining rights in their [own] arcas."
It appeared, as the Court may recall from other admissions and testimony,
that there was no equality of this sort at ail. There are no mines in the
northern territories, or in the Reserves, comparable to those which
supply sinews to the modern economy in the Territory.
Dr. Krogh's testimony is consistent with Dr. Bruwer's acknowledge
ment that "integration", in his sense of the word. cannot be achieved in
the modern economy of the Territory because of the requirements
perceived by Dr. Bruwcr as necessary to protect the White group. I refer
to X, page 297. At page 315 of the same verbatim record, Dr. Bruwer
agreed that a cited section of the Odendaal Commission report could
fair!y be interpreted to mean that non-White persons are admitted to the
activities of the White group "only in so far as they are supplementary
to the White group and not competitive". I wish to point out to the
Court that I have quoted the words of the question. rather than the
words of Dr. Bruwer's response, but Dr. Bruwer agreed to this charac
terization at page 315 of the verbatim record I have cited. And further,
at page 316, Dr. Bruwer agreed (again in the words of the question put
to him) that this was "just another way of describing the admission of
non-Whites physically into the White area for the purpose of labour".
i\lr. Cillie, when asked to define unfair economic competition in the
context of industrial situations in South West Africa, replicd (and I quote
from his testimony in the verbatim record at X, p. 544):
"... people on a lower level of civilization are sometimes willing to
work at lower rates and you have to protect the civîJize<lstandards".
Dr. Krogh readily agreed that the approach, implicit in this type of
testimony which I have just cited, entails what Dr. Krogh, as an econo
mist, tenned a "social cost", at XI, page 187. At page 188 of that same
record, Dr. Krogh conceded that:
"... looking at a particular individual [ can very well understand OBSERVATIONS OF MR. GROSS
that this would in fact mean an economic sacrifice for this particular
indlvidua]",
Although Dr. Logan confessed disagreement with the policy of job
reservation in the so-called "European area" of the Territory, he con
doned it, at the same time, on the ground that systematic development
of the apartheid policy as a whole could not tolerate exceptions in favour
of individuals. At X, page 494. in which he commented upon this matter
of the job reservation system, Dr. Logan said:
"Because there are exceptional cases, the individual that you
want to bring out, from time to time, who perhaps would be able to
conform and be able to work to the best of his ability within the
Europcan area. The moment, however, a door is opened to a situa
tion of thissort, then the entire attempt at a development, a paralJel
elevation of groups, a whole concept, begins to break down."
Dr. Logan appeared to find consolation in a feeling which he expressed
at the samc page of the dted record:
"... feeling that in some cases it is necessary to jeopardise the
absolute happJness, perhaps, of a certain very small proportion ...
in order that the set of circumstances, the set of conditions and the
set of plans be allowed to opera te".
Parenthetically, and with respect, this would seem to be the undcrlying
thought; philosophy or perspective of Respondent, as voiced by Respon
dent's Counsel in strcssmg, in the verbatim record of r November, that
the sole purpose to which the evidence was Ied was "the general well
being"; it was apparently intended to be a reflection of this concept.
Reverend Gericke likewise fclt that the group was so much more
important than the individual, that "... sacrifices as a persan in favour
of the group ... " might be necessary. That is at XI, page 46, and is
presumably based on moral or theologicalgrounds-one isnot sure which.
He testificd also that "... there are certain hardships which have got to
be endured en route to the goal". That is at page 47 of the same ver
batim record.
As Dr. Logan put it, in the verbatim record at X, page 396, perhaps
more unkindly than he may have intended:
"There is, of course, aiways the renegade, always the persan who
is the non-conformist. Even in Native groups, I am sure there are
these individuals but they are the rare ones, and to try to steer an
entire programme to fit the one individual or the small number of
individuals who do not want to conform to the over-all pattern is,
I think, quite impractical." (ltalics added.)
In another colloquy in the same record, Dr. Logan conceded, at page 405:
"In the case of the exceptional individual, sometimes the regula
tions bear heavily upon him-1 think there is no question of this.
There are in every one of the communities, everv one of the Native
groups, I am sure. in South West Africa an, or some, or sometimes
a reasonable number of people who have the ability to have privi
leges at a higher level than is accorded to the group."
Dr. Logan, howevcr (as was true of other witnesses), felt that such
sacrifices were not too much to ask in the light of the objective of raising
the "level of the greater part of the group". Neither he. nor any witness,
so far as we have observed. attempted to explain-what clearly is in370 SOUTH WEST AFRICA
any event inexplicable-why the precise contrary is not true: why and
how would the level of the group not be raised precisely by permitting
and promoting and encouraging the raising of the level of qualified
individual members thereof, instead of remitting them to the alternative
of escape.
Sorne evidence sought to support the Respondent's view, as expressed
again by Respondent's Counsel, our friend Mr. de Villiers, at page 219,
supra, that the sacrifices and burdens are, as he said, mere "isolated
aspects" which do not affect the "general well-being".
!\Ir. Cillie, for example, in response to the question addressed to him
by Judge Sir Louis Mbanefo at X, page 555, said:
" ... I don't think that this matter of discrimination in the southern
sector is asimportant as has been made out in the cross-examination.
I think this has been blown up. These arc ... trivial, piffling points
which do not affect the real case."
Dr. Krogh described the individual impact of racial discrimination in
the Territory in different words, but to the same effect, and I quote from
his testimony at XI, page r88:
"I can very well understancl that there are certain individuals
who may, in fact, be affected detrimentally, economically speaking
by such restrictions as you arc referring to in the mining industry,
and the supply of public transportation, and the other examples
that you mentioned, but I can assure you as an economist that this
is of marginal significance considering the economy as a whole."
ln further regard to the effect of racial restrictions in the mining
industry upon the economic welfare of individuals, Dr. Krogh testified
at XI, page rro:
"... I must admît however, that, for that particular individual, it
may affect his living standard at that stage of development of the
territory where not sufficient conditions, and mining opportunities
exist in other areas ... But I think that ît is marginal from the
viewpoint of the economic advancement of that particular group and
I think it is even Jess important viewed from the national economy
as a whole. I think it is marginal."
In what respect permitting an individual to achieve economic advance
ment or promotion above a certain ]evel in an existent mining industry
is incompatible with raising the level of the so-caHed group to which
he belongs, when the industry does not exist elsewhere; if that is a
relevant factor, this was never made clear.
Dr. Rautenbach stressed the inherent capacity of a talented individual
to overcome the adverse personal impact of d1scriminatory restrictions
laid upon him by Government action. A non-White individual, otherwise
qualified, denied entrance to the university of his choice where the
faculty or facilities might correspond to his requirements, should keep in
minci, Dr. Rautenbach implied:
"... there are occasions when the individual must sacrifice something
for the greatest happiness of the greatest number, but I doubt
whether that would be such a ... serious sacrifice because the verv
gifted individual finds his own way wherever he is ... despite the
obstacles". (XI, p. 443.)
It would appear from the opinion of this and other witnesses that the OBSERVATIONS OF MR. GROSS 371
quality of the individual as such is more relevant to his capacity to
surmount official discriminatory restrictions placed upon him than it is
to avoiding or eliminating such restrictions in the first place.
The concept of avoiding the impact of discriminatory measures by
escaping the situation in which they occur, or are visited, has been
referrcd to already in comment upon evidence of Dr. Bruwer.
Dr. Logan was somewhat more explicit. He cxpressed the view that
S per cent. of the population would not be an unreasonably high pro
portion to suffer in the service of the ultimate vision. (X, p. 421.) Such
persans would, he explained, "be the ones who are at least in conformance
with the pattern of the group"-1 refer to X, same page. When he was
asked in cross-examination whether his answer would be affccted if such
individuals "happen to be ... of a highly superior innate capability",
Dr. Logan answered:
"Yes, jt would affect it. I think that the people who were of a
higher development would fi.ndtheir own way of handling the situa
tion,that they would not insist on remaining in the arca which was
antagonistic to them, but would find their means of development
within the area in which they fitted, in which they wished to develop
their own group." (X, pp. 421-422.)
The ''wish" being an imposed or implied wish in many cases, no doubt.
As in the case of Dr. Bruwer, this witness, Dr. Logan, conceded that
it would be a fair rendering of his testimony as well to say that the so
lution for such persons, in such an event, would be "... to escape from
that situation". I refer to the verbatim at X, page 422.
The Court will recall that Dr. Bruwcr also conceded that the basis upon
which the Odendaal Commission rccommendations rested was that theonly
assurance envisaged by the Commission against continued and perpetual
domination of the non-Whites by the Whites, in the so-called ''White
areas", was that the non-Whites could, and it was hoped would, leave
the White area. (1refer to X, at p. 314.) But if a non-White could not
escape from his condition, by reason of economic compulsion or perhaps
health or sentiment or other circumstances of a human character, he
would then be irrevocably subject to limitations upon his freedoms in
the White area, under the concept and approach of apartheid. Dr. Bru
wer conceded that this would be true, so long as the non-White was
there, present physically and alive. I refer to X, page 322.
Acceptance of the inevitability and propriety, of the necessity of
sacrifice, as the evidence confirms and as is clear from the evidence of
record, is positcd upon the concept that the policy and doctrine of apart
heid must be served at all costs. This was explicitly brought out in the
response of Dr. I~ogan to a question propounded to him by Judge Sir
Gerald Fitzmaurice in the verbatim record. The Iearnecl Judge asked
Dr. Logan, with respect to job restriction, whether he-
"... would agree then that these laws are not made exclusively
because the great mass of the non-Whites are not up to doing cer
tain jobs, they are made a.t least partly in the interests of the policy
of separate development". (X, p. 502.)
And Dr. Logan answered: "I think it is made largely in the interest
of the policy of separate development."
Dr. Logan had earlier stated, in the verbatim record that he-
"... differed with the Government policy [that is to say, on job372 SOUTH WEST AFRICA
reservations] because it does prevent certain individuals from reach
ing higher than they might do otherwise, but ... I still felt that it
was necessary and while r don't necessarily approve wholeheartedly
of such measures, it is necessary in order to carry out the full devel
opment of the programme as envisioned." (Ibid., p. 498.)
He then agreed that it was necessary to impose limitations upon the
economic advancement of an individual Native in the so-called "White
area ", and 1 refer now to the same page:
"ln order to prevent the breaking-down of the entire programme
that is being developed because then if one exception was made,
in the case of this particularindividual we have in mind, then there
would immediately be another one of less validity, and thcn another
one, and eventually the system would break down because of a
tremendous numbcr of exceptions being made cndlessly."
The clearest implication being that the possibility of this happening
had to be avoided at ail costs, irrespective of the wish of the individuals
composing the groups who are, presumably, so desperately anxious to
have these results brought about; there is a basic inconsistency in the
concept reflected in Dr. Logan's testimony.
The Reverend Gerickc contended:
"... if you had to open the gates and give political rights, then it will
ncver be possible to work out this policy of separate development".
(XI, p. 54.)
The full impact of apartheid in human terms upon the individual
inhabitants. is confirmed and manifest from the undisputed evidence
concerning, for examp!e, the numbcrs of non-Whites who are "domiciled"
in the southern sector, outside of any Reserves, in the so~callecl'0.'hite
rural or urban areas. Dr. Logan, in his testimony on 13 July, at X, pages
479-480, responded to a request by the honourable Court for informa
tion with regard to the number of the non-Whites in the southcrn sector.
Dr. Logan's testimony included his exposition of the meaning the Re
spondent attributed to the word "domiciled" in this context-to wit:
"... a reference to whether or not their permanent place of residence
is within one zone or the other; the place where the family is located.
where the place of recognized residence is". (X, p. 480.)
These were the categories, of course, of persons to whom reference was
intended to be made by Applicants' refercnces to the area wherc an
individual may be barn, live, work and die.
The foregoing evidence, that is of Dr. Logan. which I have just cited,
illuminates Dr. Bruwer's description of the premises upon which the
Odendaal recommendations are based. I refer to the verbatim record,
at X, page 322, where Dr. Bruwer testified:
"... the [Odendaal] Commission very definitely came to the con
clusion that the one people cannot be dominated by another people
in an area. and it was on that basis that the Commission said. wcll,
under these circumstances, having now a \\'hite group-and let us
then, for the moment, Mr. President, say that thcy dominate the
non-Whites in regard to the fact that there are measures that they
have applied-the Commission could not subscribe to such a posi
tion and, on the othcr hand again, the Commission had to subscribe
to existing rights in that White area and on that basis ... it was OBSERVATIO);S OF MR. GROSS 373
the conviction of the Commission [Dr. Bruwer continued] that if you
agree, or if you accept the rights and privileges of people, and there
are other people in that society not having those rights and priv
ileges, then it is your duty, if you cannot change-and the Conunis
sion could not change a factual position-then you have at least
got to provide for the other man, so that hc also can rnake use of
the same liberties, the same rights and the same privileges ... "
And on the basis of this rather elaborate premise, which boils down to
a formulation that has been described, I believe, as "reciprocity" or the
concept of reciprocity, to which I shall refer later, Dr. Bruwer testified
in the verbatim record:
" ... the recommendations made by the Odendaal 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 only say in regard
to certain matters, such as land rights and these things, and in which
the other group would not be able to exercise such rights. The Oden
daal Commission conceived that in that way then the interests of
the one group would be safeguarded and protected against domina
tion by any one of the other groups." (X, p. 314.)
It was in this context that Dr. Bruwer, as has been noted, testified that
the protcctivc measure recommended by the Odendaal Commission to
assure against domination of the non-Whites by the Whites was that the
non-White could, and it was hoped would, leave the White area. And it
should be observed in this counection that even on the assumption,
arguendo, that this reasoning corresponds to justice and common sense
-assuming its practicability,which stretchcs the imagination-it would
have no application whatever to that segment of the inhabitants of the
Territory classified as "Coloureds". These individuals have no homelands
either reserved or contemplatccl for them, even as part of a "vision".
This is clear from the Odendaal Conunission report, paragraphs 420-424,
at page rog.
The prcmise underlying the "escape" theory, in the case of the Natives,
thus has no relevance to the Coloureds, who are left without either an
escape route or the hopc of equal rights and equal protection of the laws.
In the words of Mr. Dahlmann, the Coloureds "do not fit in" to the scheme
-I quote from the verbatim record, XI, page 559.
[Public hearing of IO November I965}
711r. resident and honourablc 7\lembcrs of the Court, special problems
and difficulties, raised by the unhappy fact that the Coloureds "do not
fit in", in the language of witncss Dahlmann, to the plan or concept of
territorial apartheid, were canvassed during the cross-examination of
this witness-XI, pages 559 and following. Mr. Dahlmann agreed with
the finding of the Odendaal Commission that the individuals categorized
under the heading "Coloured", and I quote from the Odendaal report:
"... have a strong Caucasian strain and for the most part maintain
a Western culture and way of life." This is at XI, page 560. Ali of
these persans categorized as "Coloureds"-including those who, in the
Ianguage of the census "although in appearance are obviously white,
are generally accepted as Coloured persons"-pay the inexorable price374 SOUTH WEST AFRICA
of their classification. Among other discriminatory restrictions, based
upon their colour alone, they are denied the franchise in the central organs
of government, including the Legislative Assembly-XI, pages 559-560.
The Odendaal Commission recommends that Coloureds who are
resident in urban areas should be persuaded "in their own interests and to
enable them to have a say in their own affairs, to move to their respective
urban residential areas"-that is in the Odendaal report, page II9, para
graph 452. This refers to the three so-called Coloured townships which,
in the words of the report, are to be "properly planned and proclaimed"
and where the Coloureds "shall enjoy the right to own property". That
is in the Odendaal report on page I09, paragraph 420.
Mr. Dahlmann testified that he did not know whether or not Coloureds
who presently reside in urban arcas have "a say" in their own affairs,
in the language of the Odendaal Commission report, whatever that locu
tion means. His testimony on this point is at XI, page 560. The
witness also left the record obscure as to whether the Coloureds who
might not be persuaded to move to the Coloured townships, to be "plan
ned and proclaimed", would have "a say" in affairs where they resided,
and he left obscure equally the question of whether the Coloureds who
were persuaded to move to the three Coloured townships, as and when
they were planned and proclaimed, would have a "say" in their affairs,
to use the language of the report, in respect of those affairs pertaining
to that portion of their lives which would be spent in and at work for
the so-called White economy, including, of course, their working con
ditions. The testimony of the witness on this point is at XI, page 56r.
Professor Manning manifested similar ignorance, even unconcern, in
regard to the statU3 of individuals classified in the "Coloured" category.
The witness was asked on cross-examination-XI, page 639-whether
the problems presented by the Coloureds in the society of South
West Africa could be defined in the same terms as his analysis of the
relationship between Natives and Whites. Professor Manning's response,
in our view, was revealing. He said, with reference to the question posed
-at XI, page 639:
"It may be that if I knew more aboutit, I could give an adequate
explanation for everything that has been done ['it'means the prob
lem, if any, presented by the Coloureds as distinguished from the
Natives], but it would be quite wrong for me to stand here and
purport to be a source of enlightenment for this Court on the
reasons for which particular things are done on the fulfilment of a
policy which seems to me to be the wise policy in its basic philoso
phy".
The witness's response, in the Applicants' view, reflects a perspective
similar to that which inheres in the distinction which Respondent's
Counsel, Mr. de Villiers, apparently sought to draw in his comments
at page 219, supra. The Court may recall learned Counsel's critique that
cross-examination by the Applicants, as he said, left virtually uncan
vassed "the over-all conclusions regarding the well-being of the popula
tion as a whole". lnstead, as the learned Counsel admonished the Court,
the Applicants concentrated on what he described as "isolated aspects
of a policy flowing from particular individual measures in that policy".
So, too, Professor Manning appeared to regard as a merely isolated
aspect of the policy of apartheid the effect upon the well-being and prog- OBSERVATION'S OF MR. GROSS 375
ress of more than 12,000 inhabitants, whose rights and freedoms are
regulated and determined and limited on the basis of colour alone. The
"basic philosophy" of apartheid is "wise", in Professor Manning's view,
and that is that.
Such a perspective seems to be called for by the premises of apartheid
itself. Application of a rule of reason would judge the character of a policy
in the light of the laws and the regulations and the practices by which
it is carried out. Professor i\fanning's approach, like that of Respondent
itself, seeks to explain and to extenuate the laws, the regulations and
the practices, in the light of the policy. The same mirror-reading approach
characterizes the evidence seeking to justify the discriminatory denial
of rightsto Natives in one area on the basis that Whites will be discrim
inated against in other areas.
Mention already has been made of Professor Bruwer's testimony
conceming the premise and hope of the OdendaaJ Commission that
Natives would, and should, in their own interests, leave the 'White areas.
The witness, Professor Bruwer, was asked to explain the significance of
the word "integration" in the fi.ndingof the Odendaal Commission report
at page 429, paragraph 1437. There the Odendaal Commission declared
that the advantages of what it called "special protection" could not be:
."... brought about in an integrated community without openly
subscribing to discrimination, which is not feasible, and is in any
case undesirable under the circumstances on moral and ethnie
grounds".
Parenthetically, Mr. President, it might be noted that the word "discrim
ination", unqualifi.edly used by the Commission in this paragraph, is
obviously employed in its prevalent and customary, or pejorative, sense,
precisely as it is in the constitutions of governments throughout the
world, in United Nations judgments and other sources comprising the
standards defi.ned at page 493, IV, of the Applicants' Reply.
The Odendaal Commission report. in the same paragraph which I
have cited, concludes that the aims of separate development, or apart
heid:
". . . cannot be achieved in a framework of integration, and the
traditional non-White groups must therefore be given separate geo
graphical areas in which the aim of specia1 advancement can be
carried into practice".
And then in the immediately following paragraph, 1438, the Commis
sion recommends that such areas be converted and expanded into what
are called "homelands".
Now, Professor Bruwer's definition of the word "integration", as used
in the report of the Commission of which he was a member, was reflected
again in the mirror language of apartheid, at X, page 296, in the follow
ing terms:
". . . I would say that integration would be where you create a
society by giving rights and privileges to members of other groups,
who have already got their rights and privileges in another area,
in that specific society of another group".
This imported into the testimony the concept of what has been referred
to, if I am not mistaken, by the learned Judgc Sir Gerald Fitzmaurice
(although I may be mistaken there) as "reciprocity" which, as the evi-376 SOUTH WEST AFRICA
dence likewise confüms, is based upon a premise of wholly false equiv
alence. This, moreover, became a major and recurrent theme of the
evidence.
Dr. Bruwer had earlier explained, and I quote from X, at page 264:
". . . you have alread y given the rights to those people in their
specific area of abode, and what is excluded for them here in this
one area ... 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".
Dr. Logan likewise explained a policy which accords no place to a
non-White in the \Vhite area above the level of certain forms of labour
on the ground that "... he is permitted this development in the other
area". This is quoted from X, page 495.
Dr. Logan also stressed that the policy of limitation upon economic
freedoms on racial grounds "... must be viewed in the whole context of
the country, because it works in both directions". This is from X, at
page 417.
How the policy is in practice, and in its impact upon the lives of the
inhabitants, designed to work "in both directions" (as Professor Logan
said} was elaborated by Mr. Cillie, who testifi.ed-
"... there is no equality of Whites and non-Whites in the White
sector, just as there is eventually going to be no equality between
Whites and Ovambos in Ovamboland". (X, p. 548.}
This concept, which characterized other evidence as well, paid no heed
to the temporal or time factor, which is a basic factor in a human life.
There was no heed taken of time factors in establishing these false equiv
alents underlying reciprocity-even of the most indefinite sort. î\Ir. Cillie
effected a smooth transition in one sentence from the use of the present
tense, in respect of the discrimination against or the limitations upon
the freedoms of non-\Vhites in White areas, to the future indefi.nite, in
the same sentence, with respect to the ultimate "eventual" deprivation
of rights of Whites inther areas. Present White domination in the modern,
economic sector is "balanced" against "eventual" Black domination in
the subsistence or traditional areas. It was noticeable throughout the
evidence, as it is in the Odendaal Commission report itself, that the
living present is set off against a hypothetical and indeterminate future.
In application of the doctrine of reciprocity, Dr. Krogh testifi.ed, at
XI, pages 108-109, in regard to the mining regulations that-
"... these restrictions operate with regard to mining being carried
on in White areas. Similar restrictions would, in fact, operate in the
non-\Vhite areas where mining operations exist or will in due course
be developed."
Likewise, the Reverend Gericke said, at XI, page 46:
"... if a man bas a ceiling in Johannesburg, [he was talking about
South Africa wherc a situation cognate, to the Territory had arisen,
according to the Respondent's contention] and that man has no
ceiling inUmtata, then it is not an infringement on bis rights".
Wbether he bas ever visited or ever may visit, or ever works in or ever
may work in, Umtata, seems to be beside the point.
Reference is also made to Dr. Krogh's testimony at XI, page 114, to OBSERVATIONS OF MR. GROSS 377
Dr. Pepler's evidence at XI, pages 225, 226 and 227-228, and to the
comments of Dr. Rautenbach at XI, page 442. From this testimony, the
Court will note the progression of the doctrine of reciprocity from the
economic field, to the political field, and to the educational fi.eld-from
Krogh to Pepler to Rautenbach.
Dr. Logan expressed, with singular clarity, the persona! impact of the
doctrine of reciprocity upon the lives and wc\fare of the individual
inhabitants of the Terrîtory. At X, page 418, Dr. Logan observed as
follows:
"The Native cannot work above a particular level in the European
portion of the Police Zone.
Within his own Reserve ... he can go to any level; within the
Native township within the European area of the Police Zone he can
go to any level; in Katatura in \Vindhoek hc can operate any kind
of machinery, he can be a doctor, he can go to any level desired, but
not within the White Area.
But he is only deprived ... because he likcs to live in Windhoek,
or to work in that mine, or work in that farm or factory, and if he
does not wish to live in Windhoek, then he can go to his Reserve
area and live there and enjoy those freedoms."
The testimony likcwise confi.rms and corroborates what is, in any
event, inescapably clear from the undisputed facts of record, namely
that discrimination is inherent and implicit in the premises and policies
of apartheid.
Professer van den Haag defined "discrimination" as involving a
situation where-and I quote from X, page 450-
"... if there is a limitation imposed, be it economic, be it on freedom,
and so on, and that limitation is imposed unilaterally on one group
without being imposed in a manner that is more or less symmetrical
on the other group, I would regard this as discrimination ... that
is, discrimination involves a unilateral imposition of a disadvantagc
not compensated for by any aclvantage to be achieved elsewhere."
Of course, unless this is but verbiage, the "symmetry" must be sub
stantive and not merely formai, and the "compensation" must be the
substance, and not the shadow, of a balance; otherwise the premise is
totally a false equivalence.
The witness elaborated by stating that-" ... the key to my answcr is
that bilaterality, that is that the limitations, be imposed equally on both
groups". (X, p. 450.) "Equally"-this again, in the reverse twist whïch
apartheid gives to more normal concepts, equality of protection of the
laws, is, in this case and in the context of his testimony, satisfieif there
is an equality of denial of equa.l protection of the laws. This is the under
lying significance. But the key word is equality, even on the premise
asserted by the Respondent, there must at lcast be an equality of clenial,
if that is really a sensible basis on which to apply a standard.
Professor van den Haag likewise responded to questions put to him
by Judge Forster, at X, pages 474 and 475, respectivcly, as follows:
"... if people, because of thcir race, are prevented from holding
the jobs you have just listed, and are not offered elsewhcre similar
opportunitics to hold jobs of similar status, so that the whole
purpose is to deprive them of a higher status they may otherwise
have achieved, then I would call it discrimination ... SOUTI! WEST AFRICA
If ...people are dcprived of advantageous locations without being
offered other locations equally advantageous or similar in advan
tages, then I would cail it discrimination because they would be
deprived irrelevantly of opportunities to which, in my opinion, they
are entitlcd. 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 1 would say this
falls within the rubric of segregation."
The witness was seeking to draw the distinction here between what he
referred to as the possible inconsistent uses of segregation, which he
compared to a knife which could be used for either surgery or for murder.
It was implicit in Professor van den Haag's testimony, as it was implicit
in Professor Logan's, that the opportunities must be in substance, and
not merely in shadow, similar, and this refers to that heavily temporal
factor, which ail human beings share in common, and that is that
advantages accrue to them during their own lifetime.
In response to further questions asked by Judge Forster, Professor
van den Haag stated, at X, page 476, with regard to a hypothetical
Native engineer who is offered an equivalence of practising engineering
in a place where there are no engineering works:
"I should certainly say that if he is pennitted to carry out bis
profession in an area where there are no material possibilities to
carry out his profession then in effect he is not pcrmitted to carry it
out, and I would then call it discrimination and not segregation.
However, I would say that if thcre is a reasonable chance that he can
carry out his profession, although perhaps not immediately, but if
arrangements are being made along those lines, I would have to
mitigate my statement accordingly."
The testimony confirmed and corroboratcd the undisputed evidence
of record showing how false the asserted equivalence really is.
With respect to population figures, Dr. Bruwer, at X, pages 287-288,
testified that there are "around 300" Whites in Ovamboland, as against
about 240,000 non-Whites in the same area. At page 288 of the same
verbatim, Dr. Bruwer gave the total number of Whites "in other areas
outside the Police Zone or southern scctor, other than Ovamboland" as
being "not more than between 300 and 400 altogether".
Dr. Logan generally described the north, by which of course he meant
the area of the Territory north of the Police Zone, or the "Red Line" as
it is sometimes called in the record; the north was, he said-
"entirely an area of Native occupants. There are no \Vllites in the
area at ail other than a few administrators, health officers, mission
people, traders and so on. The area is a strictly Native area carrying
on strictly Native agriculture ... ". (X, p. 363.)
By way of contrast, Dr. Logan proceeded, at page 382 of the same ver
batim record, to draw the picture of an average White farm in the
southern sector as having a population of five Europeans and some 50-odd
Natives, the Natives being employees and their dependants.
Dr. Krogh, at XI, page 194, agreed that approximately 250 to 300
Natives are employed in skills in industry or non-public enterprises in
the. north. He also stated, at XI, page 165, that the economic po1icy
pursued in the Territory rests heavily upon the distinction drawn OBSERVATIONS OF MR. GROSS 379
between the modern economy of the Southern sector and the traditional
or subsistence economy of the north, and he said: "In fact it is more
striking in the case of South West Africa than it is in many other
African territories." Dr. Krogh stated that there are no job opportunities
in the northern areas for electrical and mechanical engineers, as he said,
"at the moment" (XI, p. n8). Similarly, in the same verbatim record at
page 124, Dr. Krogh indicatecl that~and again in his words-"at this
particular stage"-there are no or very few available employment
opportunities for non-Whites in motor service or repair stations, for
example, in the northern territories. At page III of the same verbatim
record he had earlier stated that employment opportunities, again saying
"at the present time"-for mine workers, outside the sait mines in the
north, are non-existent. Dr. Krogh likewise conceded at XI, page uo,
that, although he thought that the impact of mining regulations upon
the economic welfarc of a qualified non-White individual would be, as he
said, "marginal, viewed from the economy as a whole, or from the group
from which that member derives":
"... I must admit however, that, for that particular individual, it
may affect his living standard at that stage of development of the
Territory where not suffi.dent conditions, and mining opportunities
exist in other areas. I can appreciate that point and I admit that
that is so."
The evidence confirms also what is in any event inescapably self-evi
dent from the facts of record-there is no meaningful option to escape
from the environment in which official racial discrimination is practised.
As Dr. Logan conceded at X, page 393:
"... today, with the economic development of the homeland areas
still in an einbryonic stage, it is quite likely that many people are
qui te forced, economica11y,to stay in an area in which they are able
to obtain a higher standard of living than they would if they
returned to the Reserves".
The use of the word "returned" is, if the Court will recall, a locution
which applies to persans whether or not they have ever been in the
Reserves, on Dr. Logan's premise that they belong there; therefore when
they go there, cven for the first time, they "return" there.
Dr. Krogh answered, when asked the following question upon cross
examination-I shall read the question, if I may, first-at XI, page 120:
"Would you say as an economist or as a witness or both that a
non-White who ... has been born and lives and works in the eco
nomic sector in the urban area has a practical option as to whether
to stay where he is or go to, let us say, Ovamboland or some other
northern territorv to finish out his life-does he have a practical
economic option 1"
That question was asked on cross-examination, and Dr. Krogh answered,
at the same page ..as follows:
"... not at the same level of living-that is after all why he is there
and is working there because it is in his economic interest to be
there and it is in the economic interest of the White employers to
have him there. It is in the economic interest of both these parties
participating in this exchange relationship".
The Applicants found peculiar significance to be attached to the words380 SOUTH WEST AFRICA
"exchange relationship", because it may go far to indicate what the
Odendaal Commission report perhaps had in mind in references to the
"absorption" of non-Whites in the White economy; the phrase is not
otherwise defined or explained in the report itself.
In the light of the foregoing admissions, there is an unreality bordering
on evasion in Dr.Logan's response to the question posed to him by Judge
Sir Gerald Fitzmaurice when Dr. Logan expressed the view-
"... that the basic aim [that is, of the limiting legislation] is to try
to force this man to do that job elsewhere than in the \Vhite com
munity, to force him to doit in his homecommunity ... ". (X,p.502.)
The concept of reciprocity and its underlying fallacy of false equivalence
also is exposed by evidence that non-White labour wiH in fact, for all
the foreseeable future, be essential to the so-called White economy.
Witnesses who testifi.ed to the point conceded this to be truc, although
with varying degrees of candour. Dr. Bruwer admitted at X, page 277
that he would~
"very definitely say that the fact that the ... non-Whites are
working in the White area is a very important contribution towards
the economy of that area".
He testified that neither the Odendaal Commission as a whole, nor he as
a member of the Commission, foresaw the practical possibility of the
White economy surviving or thriving without the continued use of non
White labour (X, p. 304). At page 305 of the same verbatim record
Dr. Bruwer stated as follows:
"... it was not in the mind of the Odendaal Commission that the
economy in tl1e White sector would operate without the so-calJed
non-White labour ... within the foreseeable future ... ".
He agreed, on the same page, that this could possibly be truc for 300
years.
Dr. Logan gave his opinion at X, page 384. He said-
"that all of the plans that have ever becn envisaged have envisaged
a continuing use of Native labour on the European farms and in
other ways within the White area of the Police Zone".
The Native labour supply, according to Dr. Krogh (XI, p. 177), is
necessary to enable the economy of the Southern Sector "to operate at
the level at which it is operating at the moment. It is, in fact, an economic
part of it."
Dr. Rautenbach, referring to the prospects in regard. to the Republic
itself,tated at XI, page 381, that "we will always have people coming
from over the border to work in the White area, as far as human vision
stretches"; and likewise he indicated that (in his response to a question
by Judge Sir Gerald Fitzmaurice at XI, p. 477) "by the middle of the
following century" there will be many non-Whites working in the White
areas of South Africa. This testimony, as the Court will observe, was not
directly related to South West Africa, but there is no evidence which
questions in any respect the applicability of the same evidence to South
West Africa.
With regard to the political aspect of any homelands proposais, such
as those reflected in the Odcndaal Commission report, Mr. Dahlmann
said that he could not say or judge how long that would take to be imple
mented (XI, p. 512). At XI, page 537, the same witness testified that the
nature of the political independence envisaged for these so-called "home- OBSERVATIONS OF MR. GROSS
lands" was, as he said, "in the far'future". Mr. DahJmann was "unab]e
to give any figure" (XI, p. 544) in terms of years, decades or even cen
turies as to the accomplishment of the politicaJ independence envisaged
in the Odendaal Commission report.
In response to a question by Judge Sir Louis Mbanefo concerning the
number of States reconunended by the Odendaal Commission to be
created in the Terri tory, Dr. Eiselen stated:
"That ... would be very diffi.cuJt to say, some of the units are
very small ... the policy in regard to the further development of
South West Africa with a number of these small units has not been
so fully worked out yet by the Govemment that I am in a position
to give a definite answer to this question. My own persona! view is,
of course, ... that you would hardly be able to think of Bushmen
or the Dama or even of such people as the Herero as being indepen
dent states." (X,pp. 127-128.)
Likewise :111Cr.illie rcsponded ta question by J udge Sir Louis Mbanefo,
at X, page 533, concerning the ultimate indepcndent status foreseen for
the proposed homelands by saying: "Sorne of these units could obviously
not be independent states in any accepted sense", and that:
"Sorne of them arc so srnall and the numbers are so low [meaning
population] that obviously you cannot speak of all those smaJler
areas as viable states. You cannot envisage that, nor for the fore
seeable future ... "
At XI, page 561, the honourable President put a question to the
Applicants with regard to paragraphs 356 and 357 of the Odendaal
Commission report, which had formed the basis for certain questions put
to witness Dahlmann on cross-examination at page 552 and following of
the same verbatim record. The Applicants' questions in cross-examina
tion (it was, as I understood, Sir,permitted at that time that the answer,
which is a very brie[one, might be given in the course of comment, and
with the leave of the President I would propose to do so now) were not
intended to be directed toward eliciting the witness's opinion as to the
transitional quality, or otherwise, of the Odendaal recommendations in
question.
With regard to paragraph 222 of the Odendaal Commission report, to
which the honourablc President drew the Applicants' attention and to
which he suggested that we give our consideration, the Applicants'
questioning of l\Ir.Dahlmann in regard to paragraphs 356 and 357 (to
which the President also referred) was not designed in any manner to
engage the witncss, or to elicit opinions, concerning the possible intend
ment of the Odendaal Commission with respect to the relationship
between paragraph 222 of the report and the recommendations set forth
in paragraphs 356 and 357.
However, as the Applicants understand the language employed in
paragraph 222, which in any event they do find ambiguous, the contem
plation of eventual transfer of certain fonctions to legislative bodies in
the so-called homelands, when as and if established, appears not to
include the functions enumerated in paragraph 357; nor does it appear
to contemplate repealing the requirement at any stage that all legislation
would be subject to approval of the State President of the Republic.
This, however, is necessarily pure speculation on the Applicants' part,
particularly having in mind the hypothetical and wholly contingent and382 SOUTH WEST AFRICA
unofficial quality of these ambiguous recommendations-ambiguous in
this respect inany event. But that was the sole purport and intendment
of the Applicants' line of questioning addressed to the witness in this
regard.
Reverting to the comments to which the Applicants have been addres
sing themselves. The evidence-and this is relevant to the general ap
proach of the Odendaal Conunission report with respect to the unilateral
deternùnation by the White minority, without effective voiceorparticipa
tion of those composing the large majority who would be affected by the
recommendations, if carried out-confi.rms the facts of record. These
show indisputably that the non-White inhabitants of the Territory are,
as I have said, denied a vote in decisions affecting the development, the
direction, the timing, the structure or the form of the political institu
tions under which they live and under which they would be governed and
regulated if the recommendations of the Odendaal Commission report
were to be carried out in this or some other form. As Dominic Gericke
put it at XI, page 54:
" ... if you had to open the gates, give political rights. then it will
never be possible to work out this policy of separate development".
When asked on cross-examination whether there were any methods or
means-other than the right of petition-by which non-\\'bites could
make their views or wishes known to the South African legislature,
Mr. Cillie responded at X, page 535 :
" ... I do not know whether they have Iittle councils, perhaps they
have spontaneous councils which make representations to the
Govemment-I do not know".
l\Ir. Cillie appeared to think it sufficient assurance that the governing
authority (and I quote his words at X, p. 533):
"... would soon know if we made a really ghastly mess, you know
that would be apparent ,'ery soon, because they do have their ways
of expressing themselves ... By making representations to author
ities; by sending deputations; by giving interviews to newspapers."
Mr. Dahlmann appeared reluctant to respond to questions put on
cross-examination, aimed at eliciting his view whether only Whites have
a vote in determining the future of the Territory (XI, at pp. 543-544)
he appeared to be evading this fundamentally simple and clear proposi
tion. So did Mr. Cillie at X, pages 530 through 532.
Dr. Rautenbach admitted that Native taxpayers, in regard to the
field of education, have no right to vote for the members of Parliament,
which, for examplc, decreed the university apartheid system. This was
at XI, page 418. Just as Dr. Bruwer admitted at X, page 266, that
there were no non-White members of the Odendaal Commission or on the
staff of the Commission which made the recommendations to which
reference has been made, including the timing and the structure of the
Legislative Council and the homelands to be established (if at ail), so
Dr. Van Zyl conceded that educational policy in the Territory was
determined by the Legislative Council and Executive Committee. all of
the members of which are White, and ail of whom are elected by Whites
atone. That is at XI, page 274. He also admitted that the inspectors in
the Education Department were ail Whites-XI, page 275. Dr. Rauten- OBSERVATIONS OF MR. GROSS
bach conceded that all the members of the National Advisory Council
on Education were White-XI, page 347.
This may be a convenient context, Mr. President, in which to turn to
another question addressed to the Applicants by the honourable Presi
dent at XI, page 315, relating to the matter of compulsory education in
the Territory. With the leave of the honourable President, the response
is made pursuant to the grant, at that time, of the Applicants' requcst
to be permitted to take the mattcr up, after consideration, during the
course of comment.
l\k President, as was stated at pages 391 and 392, IV, of their Reply,
the Applicants have not insisted that education be made compulsory for
ail Native children in the Territory-that is explicitly set forth in the
Reply. Nor do thcy insist that education be compulsory for ail the
children in the Territory. Compulsory education, Iike universal adult
suffrage, is an aim, a target for achievement. It is not a rule of inter
national law. If compulsory education is applied in the case of ail White
children, irrespective of wish or circumstance. and is not applied in the
case of any Native children, a question fairly arises concerning the reason.
And if such a striking contrast exists in a society governed by a policy
of extreme racial discrimination and separation, the reasonab1e inference
may very well become a compelling one. Respondent's failure, after 45
years of administration of the Mandate. to have instituted evcn an
experimental or provisional compulsory education system for any Native,
even in urban areas where Natives have for generations, as the evidcnce
shows, been "domiciled" and where they are "absorbed" in the economic
life (whatever that term may mean exactly)-such a failure, in the
Applicants' view, must reasonably be ascribed to, and is obviously based
upon, racial considerations.
If so, and to that extent, such a failure is inhercntly incompatible
with the obligation to promote the well-being and the social progress of
the inhabitants of the Territory. That is the Applicants' contention.
Reverting to the question of limitation or denial of participation in
decision-making processes pertaining to their own welfare, in the eco
nomic field, for example, Dr. Krogh, at XI, pages 143-145, conceded, as
the record made clear in any event, that Natives were represented in
labour disputes and collective bargaining situations exclusively by
Government officiais, ail of whom were White. He conceded also that
non-White labourers (and I quote from p. 144, XI):
"... have no participation in the government of the White area
where the modern economy operates. In other words, they are in
that respect not represented politically in the administration of the
White sector of the southern part of South West Africa."
Dr. Pepler, at XI, page 238, stated that no "Ban tu" (synonyrnous with
"Natives" in this record) were members of the Board of Directors of
the Bantu Investment Corporation. At that page of this record he said:
"That is a policy."
Dr. Dahlmann informed the Court about the present circumstances
of political life in the Territory with respect to the Natives and their
political organizations. At XI, page 512, he indicated it to be his opinion
that-
"... the outside world takes these organizations a little bit too
seriously ... they have very limited support and people-as we say, SOUTH WEST AFRICA
the man on the street-are not much interested in these political
parties and organizations".
Mr. President, the Applicants would not :findthis surprising, even ifit
were true. \Vhat elsecould be expected when the normal and natural end
of political activity-which is participation of a meaningful nature in
decision-making processes-is denied on the basis of race or colour?
Such a denial is by inexorable classification, even though, as Mr. Dahl
mann conceded, thcre are non-Whites in the Territory who would be
capable and qualified to serve in govemmental bodies and participate in
the decision-making. And, of course, this refers throughout to participa
tion in decision-making of the central authorities, which actually deter
mine the well-being and the social progress and welfare of the individuals
concemed, presently and in the living future.
\Vith regard to perhaps the most important attribute of political life
-that is to say nationality and citizenship-Mr. Dahlmann was unable
to say whether it is open to a South West African Native to become a
citizen of the Republic of South Africa, as may-and do-White South
West Africans. At XI, page 496, he appeared to dismiss the subject,
or else to consider it responsive to the explicit question posed to him
on cross-examination, by saying:
"He [that lis the Native] is part and parce! of his own nation,
in the first instance, and there are these ... tribal and national
links, howevcr one wants to call them, within this community and
he cannot regard himsclf as anything else than he is."
In the Applicants' respectful view, this is pure doubletalk. The same
ambiguity marks Respondent's pleadings as well. The question posed is
clear and simple: are the non-White inhabitants of the Territory, or
are they not, eligible for citizenship in the Republic of South Africa on
the same basis. terms and conditions as are the White inhabitants of
the Territory? And the Applicants would respectfully urge clarification,
for the first time, of this point, for the benefit of the Court's clearer
understanding of the matter.
The evidence confirmed the full implications and consequences of
Respondent's concept that a dominant White minority could justly and
objectively make decisions affecting the wcll-being and social progress
of the non-White inhabitants who happen to compose the majority.
But ignoring the latter fact for the moment, the point is whether the
Respondent could, under such circumstances, justly and objectively make
such decisions without, on the one hand, permitting the non-Whites to
share effectively in the decision-making process, or, on the other hand,
accepting international supervision, or both. On cross-examination i\fr.
Cillie was asked if he considered the official position of Respondent's
governing party to be a statement made by the Prime :i\linister, Dr.
Venvocrd, in the House of Assemblv of the Republic on the Odendaal
Commission report. As is set forth at X, page 530, the Prime Minister
had said, inter alia:
"Our policy is based on our belief that whatcver others may say,
the only way in which we can test our policy and our actions is
by asking ourselves whether we are honestly and sincerely doing
what a Christian guardian can be expected to do for the peoples
entrusted to his care." OBSERVATIONS OF MR. GROSS
"Asking ourselves". And who is it who asks themselves? It is a govern
ment elected by and composed exclusively of members assigned to, or
catcgorized in, one racial grouping alone, that is, the Whites, even
excluding those "who, although in appearance are obviously white, are
generally accepted as" something clse.
Mr. Cillie responded to this question, "Yes, definitely" at X, page 530.
He likewise conceded, in a statement made upon dîrect examination,
that he had used the word "trusteeship" in the same sense as he under
stood the Prime Minister had, and that he could not see, in his apprecia
tion of the word "trusteeship", that there was any connotation of
responsibility to account or report to any body or agency outsidc the
South African Government itsclf.
He cxpressed the view, and I quote from the same page of the same
verbatim record, with regard to "trusteeship" in his and Respondent's
use of the term, "in this technical, political sense it is accountability
to yourself and to your conscience". The witness conceded, as in any
event is obvious from the record, at X, page 531, that "the predominant
power", in his words, "the ruling power resides at the moment in South
West Africa and in South Africa in the hands of the White group" and
that the legislative and governmental organs are elected exclusively by
\Vhite persans; and reference has already been made, Mr. President,
to his testimony concerning the means, the only means available, to
non-Whites for the expression of their views or grievances.
Again, in response to questioning by Judge Sir Louis Mbanefo, at X,
page 554, !\frCillie testified "Certainly, if, in the process, we find points
of friction and if their objections are valid, we will make the necessary
accommodations", and further stated that bv the words "we'' he intended
"the administration ... the ruling White people".
In regard to the impact upon the economic life of the non-White
inhabitants of the unsupervised and unshared control of the Territory
by the dominant White ruling group, as so-called "trustee". Dr. Krogh
readily admitted that this group determined the degree and the condition
of individual sacrifice or hardship which is to be visited upon individual
non-White inhabitants of the Territory-this isat XI, page 189. Dr. Krogh
likewise conceded that the objectivity of the trustee, under such circum
stanccs, could become clouded by self-interest. At XI, page 82, he stated:
".. .'I can very well understand that the members of one population
group would give preference to job opportunitics created by them
or, in fact, created in their area or available in their area. They
may prefer that these jobs should be occupied by members of their
group ... "
And the same witness has said:
"The problem în South West Africa is that the Whites may very
weli look too wel! after themsclves individuaIIy-too weH that is
at the expense of other groups." (XI, p. 187.)
\Vell, Mr. President, if I may insert parenthetically, this, of course,
happens to be truc of people evcrywhere. This is a universal human
truth, and the "White trustee" is no exception to the general human rule.
Professor Manning expressed the same thought differently. He said:
"... detachment ... is as difficult for defenders of apartheid as
it is for critics of apartheid. Defenders of apartheid are quite com
monly members of the privilcged society into which I was barn,386 SOUTH WEST AFRICA
and it is notorious amongst sociologists that privileged people find
it difficult to be detached in thinking about their own situation."
(XI,p. 628.)
Soit is true that privileged trustees may find it difficult to be "detachcd"
with respect to decisions made without accountability or supervision.
Evidence was led by Respondent which sought to explain or extenuate
apartheid and this in many ways, Mr. President and honourable Members
of the Court, the Applicants found to be the most remarkable contention
of all---evidence was led by Respondent which sought to explain or
extenuate apartheid on the ground that the trustee's objectivity would
be clouded, or his conscience impaired, if non-Whites were to be accorded
equal opportunities and equal protection of the laws. Mr. Cillie formulated
the conception in very stark terms indeed. The Court will note his
testimony in the following tcrms:
"The successful implementation of this prornising but very diffi
cult policy in Southern Africa is utterly dependent upon the sus
tained will and the capacity of the present Ieading people, the
White people of South Africa, to carry it through ... Ali wisdom
in statesmanship is to some extent a fonction of a sense of sccurity.
Threats to that security, of course, could arise from various sources,
in South Africa and South West Africa. I would like to distinguish
between two kinds of threats. The one sort of threat cornes through
encroachments. If a group encroaches on the preserves of anothcr
you get a feeling of fear and you engender bitterness and hostility
which make ail sorts of positive and constructive action very
difficult. That is the one sort of threat that could upset, what Icall
orderly evolution. You really cannot expect the \Vhite 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 friendliness you get tension and hostility." (X, pp. 521-522.)
The witness went on to explain that avoidancc of tension and hostility
and of being "threatened", was, in his words, "the real justification
for some of the legislation that has becn under attack in the Court and
in other forums". (X, p. 522.) In Mr. Cillie's words, "you cannot risk
sabotaging this whole constructive outlook on the part of the Whites
by allowing a process of encroachment to put economic and social fears
into the hearts of the White people".
At page 537 of the same verbatim, Mr. Cillie warned that "you have
to protect the sense of security of the Whitcs in order to make them
behave wisely. If they are racked with fears, hostilities and bitterness
they cannot behave as real trustees should."
The testimony likewise confirrned, as the evidence on record made
inescapably dear, that Respondent's insistent pursuit of a unilateral
course under such circumstances breeds extremism, which, in turn,
generates a sense of isolation and persecution. Mr. Cillie strongly rejected
what were described as (and I quote from X, p. 5r6) "so-called middle
of the road policies-policies of moderation, moderating somewhere
between an extreme of differentiation and integration".
This witness, editor-in-chief of the newspaper which, according to
his testimony, has the closest relations with what he called the thinking OBSERVATIO:-,s OF MR. GROSS
element of the National Party, stated his grnunds candidly as follows:
"The reason, I think, is fairly simple, bccause every so-called
middle of the road policy. every policy that suggests giving limited
rights to these varions groups inside one political structure, does
raise fears immediately that the end of this policy is a position of
one man, one vote, and that once you start, there is no logical,
and indeed no practical stopping place short of universal suffrage."
(X, p. 516.)
The emphasis on "fears" was repeated by Mr. cmie, in response to
a question putto him on direct examination, with respect to a reference
the witness had made earlier to what he described as "pressure from
the outside". After voicing concern that what he called "one man, one
vote thinking" might lcad to domination or exploitation by one non
White group over another, Mr. Cillie reverted to his principal theme,
as follows:
"... it does raise fears among the ruling Whites as totheir position
[that is, these "outside pressures"] and their safety, and it does make
them behave in more negative ways than is appropriate in the
circumstances, than they should behave. The Whites certainly are
not going to surrender themselves to so-called majority rulc based
on the numerical preponderance of the Black peoplès in South
Africa or South West Africa. They would resist it as meaning the
end of their world and they will deal with it as such." (Ibid., p. 525.)
And, Mr. President and Members of the honourable Court, the witness,
as does the Respondent. looked upon the United Nations as the embodi
ment of the source of their fears. The Respondent's intemperate and
baseless assaults upon the Organization are to be evaluated in this light.
In the verbatim record at X, page 84. Respondent's Counscl advised
the Court as to the jssues to whkh the testimonv of Mr. Dahlmann and
witnesses generally were to be directed. Mr. de Villiers advised the Court
as follows:
"... by the means which I have already indicated plus other
evidence and demonstration from available records, we want to
show in what light the activities in the international bodies, as
relied upon by the Applicants, are really to be seen."
Respondent's course and objective in this regard, and one of the
purposes for which its testimony was said to be directed and said to
be relevant, had been forecast by the Respondent as early as the verbatim
of 30 March, at VIII, page 272, where Respondent's Counsel referred
to these proceedings as~
"... the culmination of a vehement campaign which has been waged
against the South African Government for a long period and per
sistently in the international political ·arena, particularlyin the
United Nations".
In offering the testimony of Mr. Dahlmann at XI, page 456, Res
pondent there indicated, as one of the issues to which his testimony
would be relevant, what ReEpondent dcscribed as the "connection"
between certain political parties in the Territory and "certain persons
at the United Nations". Such evidence, Respondent's Counsel said,
would be "relevant when we corne to deal later on in argument ,vith
the so-called law-creating processes or norm-creating processes referred388 SOUTH WEST AFRICA
to by the Applicants, that is, resolutions and reports of organs and
agents in the United Nations".
From this statement of the issues to which the evidence was said
to be relevant in whole or in part. it would appear that the sole issue
to which it was said to be relevant was that issue raised by the Appli
cants' contention with respect to the international legal norm, of the
content described at page 493, IV, of the Reply, that is to say, in terms
of Article 38 of the Statute of the Court.
The Applicants had, it is true, referred to "law-creating processes"
in the course of their arguments addressed to this point but made
explicitly clear that they were not, of course, contcnding that United
Nations resolutions themselves had force of law, for example, at IX,
pages 347-348. The arguments will not be recanvassed hcre.
The actual relationship envisaged as between evidence and argument
in this regard never became quite wholly clear to the Appiicants, as
the Respondent put forward the points to which the evidence was to
be directed, particularly Mr. Dahlmann's testimony.
l\fr. Dahlmann's testimony, for example, at XI, page 564, appeared
to involve an attempt to discredit certain unspecified United Nations
resolutions. On the other hand, Mr. Muller, Respondent's Counsel, in a
colloquy which ensued in the same verbatim at pages 563-564. advised
the Court that Respondent did not envisage any evidence from the
witness as to the basis of or influence upon United Nations resolutions,
but was reserving this for argument. That is at XI, page 563.
Following the conclusion of the testimony, Respondent in the course
ofthe two weeks of comment and of resumed argument, introducccl into
the record a considerable volume of material for use as ammunition in
a broadside, the target of which was obscure to the Applicants. 1'fr.Dahl
mann's testimony regarding the activities of certain petitioners-some
of whom had left the Terri tory to scek opportunities abroad, educational
or other-and the implications to be drawn by the Court from his
testimony in this regard. were equally obscure to the Applicants.
Ilfr. President, in the light of this treatment, the Court may apprcciate
that a difficulty confronts the Applicants in an effort to limit and confine
comment upon evidence which is adduccd by the Respondent in the
form of argument-and argument which is produced by the Respondent
in the form of evidence.
Mr. Dahlmann's testimony concerning petitions seemed to assume,
among other things-or to reflect a view-that petitioning, in itself,
was not far removed from subversion (although he did not use the
latter expression, that is truc). Thus, in testifying at XI, page 471, as
to political activities of the Hereros, the witness said:
"They [that is. the Hereros] are mainly responsible for the internal
campaign against the Government. They have transmitted a large
number of petitions to the United Nations."
And then the witness proceeded to name several pe1sons whom, he said,
had "appeared before the United Nations as petitioners for the Chiefs
Council of Hosea Kutako.''
Mr. President and honourable Members of the Court. In any event
I would respectfully advise the Court that there is not much more to
follow-in time, as distinguished from substance.
ln regard to the material introduced by Respondent pertaining to OBSERVATIONS OF MR. GROSS
United Nations resolutions, or debates in the United Nations, or delibera
tions of United Nations committees and agencies dealing with the
mandated Tcrritory, little nced be said and it can be said in a few
sentences of comment, without argument.
I should like, with the honourable President's permission to state
five undisputed facts.
r. Conclusions conccrning Respondent's racial policies in the Terri tory,
expressed by the Gcneral Aèsembly and its relevant and competcnt
cornmittees and agencies, as weH as by the Trusteeship Council and the
Specialized Agencics, including the International Labour Organisation
-conclusions in this field, and in respect of the Territory, are based
upon evidence which has poured in ovcr the years. Much the most
important evidence consists in Respondent's laws and regulations and
the practices and rnethods by which they arc cffectuatecl, the existence
of which has never been and is not now clcnied by Respondent. The
Court's attention, by way of cxample, can be drawn to one Committee
Report: the report of the South West Africa Committee of r958 at page
29, paragraph 170.
2. The United Nations bodies which have passed on titis matter are,
without exception so far as the Applicants arc aware of a multi-partisan
nature. The structure and composition of such bodies represent and
incorporate the most diverse perspectives, interests and icleologiesexist
ent in the organizcd international community.
3. The virtually unanimous support of rcsolutions condemning apart
heid and calling for climination of racial discrimination in ail its forms,
and human rights resolutions and declarations, is ail the more significant
in the light of the varicty and cliversity of the membership composing
the bodies and committees ancl agencies concemed.
4. The resolutions, by their very terms, dcmonstratc the opprobrium
with which the mernbers of the Organization, of all shades of ideology,
perspective and point of view, view racial discrimination in general,
and apartheid in particular, as an extreme form therof. This is manifest
from the resolutions themselves in their own terms which, in this respect,
do no more than reflect the same degree of revulsion and opprobrium
with respect to these policies, as are reflected in the views of representative
Governments set forth in the Rcply brief.
5. Just as the bodies are multifarious and multi-partisan in composi
tion, so the bodies which have dealt with problems of racial discrimination
in general, and apartheid in particular, have been characterized by,
and have approached the matter from, the perspective of varying respon
sibilities and arcas of compctence-political, economic, labour, cduca
tional and the like. And in each case their judgments have been con
sistentJy the same; they have been overwhelmingly support,.rl. and they
have bccn emphatically worded.
No testimony adduced by Profcssors Manning, Possony, van den Haag,
or Mr. Dahlmann, or anv of the other witnesses, and no evidence which
Respondent itself has irÏtroduced in any other form or manner, refutes
the accuracy of the five propositions of fact I have just enumerated.
When the Applicants asked the Court, as they have and respectfully
do, to attribute to the resolutions and actions of international bodies,
taken on this basis, and ovcr these years, and donc in this manner-390 SOUTH WEST AFRICA
to attribute authoritative weight to such decisions, they do not of
course suggcst that the Court actas a ''rubber stamp", in the infelicitous
phrase used by the Respondent, and there is no argument necessary
on this point. The argument has been made to the best of our ability.
If the Court considers that these resolutions and these actions embody
reasonable and just interpretations of the Charter of the United Nations,
then it is submitted that the Court should give them the authoritative
weight to which, in our view, they are entitled. The Applicants do not
believe that Professor Possony's interpretation of the Charter-in regard,
for example, to the draft Convention on the Elimination of All Forms
of Racial Discrimination as being incompatible with the principlcs of
the Charter-is persuasive.
It is, of course, for the Court, as the principal judicial organ of the
United Nations, to determine whether or not the international standards
reflected in the acts of United Nations organs and bodies arc in conformity
with, or do interpret correctly, the Charter of the United Nations.
Even more sois it for the Court to determine whether the sources from
which international Jaw is derived, in the sense of Article 38 of the
Statute, have generated an international Iegal norm of non-discrimination
according to the Applicants' alternative contention in that respect.
The Applicants have always believed and contended, as the Court
will be aware, that the evidence already of record in these voluminous
written pleadings, as arnplified, explained, and elaborated during the
lengthy Oral Proceedings, established the inherent and per se incom
patibility of apartheid with individual moral well-being and social
progress, and that such a policy if applied anywhere would inherently
be incompatible with the moral well-being and social progress of any
individual, inside or outside this court-room.
The Applicants did not think that additional evidence, in the forrn
of testimony or taken by other means, could add to or detract from,
or explain or extenuate, racially cliscriminatory policies established in
the undisputed laws and regulations and practices of the Respondent
-<:ould show in any manner that they were indeed beneficial to the
moral well-being and social progress of individuals. The effects of apart
heid, in the Applicants' consistent submission, are established by the
facts of record as a matter of law. Whether apartheid is, in the words
ofthe Respondent, "good or bad", is nota question of fact,it is a question
of law in terms of the obligations of the Mandate.
The evidence produced by the Respondent made it crystal clear, as
it inevitably would have through these witncsses or any others, that
the Applicants' contention from the beginning is a correct and valid
contention. Out of their own mouths the witnesses showed the inherently
incompatible quality of apartheid with moral well-being and social
progress. It was this aspect which the Applicants had in mind when,
at the outset of thesc comments, I made refcrence to the paradoxical
but true fact that the evidence, by its very cascade and persuasiveness,
showed how unnecessary it was, because the impacts upon the individual,
which emerged so clearly from it. were inescapably to be drawn from
the written record before the Court. The evidence confirmed, in our
view-and this was the purpose, the essential purpose, of the cross
examination-out of the mouths of the Respondent's own witnesses and
experts, the inherent incompatibility of apartheid with moral well-being
and social progress of the individuals exposed to it. And, moreover, OBSERVATION'S OF )IR. GROSS 39t
it made this exposure in the vocabulary of apartheid, which has an
upside-down language peculiar to itself, consistently with the perspectives
towards race and colour which characterize apartheid and form itsmajor
premise. The testimony of witness after witness was consistent only
with the following propositions-! take three bricf ones just to enumerate
and illustra te:
r. Limitations are imposed upon the economic advancement of non
White persans in order to protcct them from the competition of the
more advanccd Whites.
This is proposition r, but it makes no sense.
2. Obstacles are placed in the way of the achievement by non-Whites
of professional, scientificor engineering skills, in order to protect them
from what is callcd the "inevitable frustration" they would otherwise
suffer, from the unwillingness of Whites to employ them in these capa
cities, or to be supervised by them.
This applies, if the Court please, to the Territory under Mandate,
where not even the Government agencies see fitto train and place these
persans for service in their own Territory.
3. Non-Whites are denied any effective participation in political deci
sions affecting their well-being and progress, on the asserted basis that
this denial, in some manner, promotes more effectively their political
advancement and their rights of self-determination.
Propositions such as these appear to be taken for granted, almost as
axiomatic, by the witnesses, as they are by Respondent's highest offi
ciais-as shown by their official statements which are of record in this
case and appear in the Respondent's own pleadings.
Mr. President, and Members of the honourable Court, it seems to
the Applicants that no further<;omment appears to be necessary. I shou1d
like in closing, Mr. President and honourable Members of the Court,
to thank, on behalf of my colleagues, the Deputy-Registrar and his
staff,and the many who have suffercd above and beyond the call of
duty and co-operated through these months in performing thcir arduous
services which have helped us immeasurably, as I am sure they have
helped my distinguished and learned colleagues from the other sicle,
and to thank the Court, the honourable President and the 1Uembers of
the Court, for the extraordinary degree of patience and tolerance with
which our lengthy, and sometimes over-lengthy, comments and argu
ments have been permitted. And with that, l\fr. President, I take my
Ieave of the Court, if that is the disposition of the Court.392
36. COMMENT BY JifR.DE VILLIERS
COUNSEL FOR THE GOVERNMENT 011 SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 12 AND 15 NOVEMBER 1965
Mr. President and honourable l\Iembers of the Court, it wiU have
struck the Court that the Applicants' comment to which we are about
to reply did not contain a word about militarization, which was their
Submission No. 6, nothing about incorporation, which was their Sub
nùssion No. 5, and nothing about modification of the ;\fandate, which
was their Submission No. 9. ln regard to these last two, incorporation
and modification, they may have thought that their right of comment
on the evidence did not extend to furthcr comment on these matters,
but that certainly did not apply in regard to militarization, in respect
of which thcre was evidence by General Marshall, and there was cross
examination of the witness. So at least in this respect it is clear that,
in boxing parlance, the Applicants just did not corne up for the last
round, and in our submission, in the light of the course which evcnts
took in regard to the issue of militarization and also in regard to the
other two matters, this is not surprising at all.
The Applicants' comment was confmed to the subject-matter of their
Submissions Nos. 3 and 4-the alleged violation of the sacred trust
obligation contained in Article 2, paragraph 2, of the Mandate-and
our comment will thereforc likewise be confined to that subject.
Mr. President, pcrhaps I may be allowed a few very broad, general
remarks at the start before I deal in more detail, on a more analytical
basis, with the Applicants' comment. Broaclly it can be said, in rny
submission, that the Applicants' comment represented a very remarkable
attempt to sail between Scylla and Charybdis. Scylla represented in
this context the abiding by the Applicants' submissions as reforrnulated
and arnended on 19 May, especially if those submissions are read in the
light of thcir explicit wording and in the light of the definitions and
explanations which were incorporated therein by reference. It was clear
that it would not be profitable for the Applicants to abide by those
submissions so worded, so defined and so explaincd because it had
clearly becn established in the Respondent's case that the norm and
standards as so defined and explained simply did not exist. The Charybdis
forthe Applicants would be openly to depart from their submissions
as so worded and so defi.ned and so explained, because if they were
openly to depart from those subrnissions, that would involve an amend
ment of their submissions, an amendment which, in ail the circumstances,
would almost inevitably have then brought them into a factual field
which would require investigation, and in respect of which they had
explicitly said at earlier stages that no such investigation was required
-no such investigation was invited-and the Respondent and the Court
were informcd that it was unnccessary for the Respondent to covcr
that factual field. Therefore the Applicants knew that at this stage an
amendment of their submissions to that effect could certainly not be
granted by this Court, and so they found themselves in this dilemma.
And how did they attempt to get out of it? The attempted solution COMMENT BY MR. DE VILLIERS 393
was broadly this: they maintained that their case still rested on the
norm and the standards as incorporated in the submissions, but, on
the other hand, they suggested that that norm and standards have a
different content from that previously defined and explained. And in
order to cover this up the formula was apparently to keep it ail rather
vague and to Joad it as heavily as possible with the emotional and
slogan-like talk which one usually finds at the United Nations when
South Africa's policies are discussed, but which one does not usually
associate with a discussion in a court of law.
Our contention is that these tactics on the Applicants' part cannot,
and will not, bear analysis. On the contrary, on proper analysis they
show very clear recognition on the Applicants' part that their case as
reflected in their submissions of rg J\1ayhas colbpsed entirely, and we
shall also show, with submission, that the attempted and somewhat
concealed substitution for that case is equally without merit or substance.
I may add at this stage, also by way of general comment, that the
Applicants' comment contained a rather pathetic attempt to slither out
of admissions of fact which had so clearly and so unequivocally been
made at an carlier stage. It was not only pathetic, it was also futile,
as we shall show, but I do not want to anticipate my argument-we
shall corne to that at a later stage.
Let us start by reverting very briefly to the basic question of the
content of the standards or the norm which constitutes the sole basis of
the Applicants' present case. \Ve have dealt with this several times,
and the final review was given in our opening address to the Court on
26 October after the completion of the oral evidence-the address by
my leamed friend, Mr. Muller. It is contained in the verbatim record,
at pages 70-82, supra, and I do not intend to cover that field in detail
again, but as a basis to my further comment I should like to recapitulate
very briefly some of the main points.
In the l\Iemorials, where we started off in this case, in Submissions
3 and 4 the Applicants objected to the Respondent's policies on the
ground that they were-
"determined and allotted arbitrarily ... in a pattern which ignores
the nceds 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". (I, p. ro8.)
That is the often-quoted passage from the Memorials, <lefining then
what is objected to in the Respondent's policies; defming also what
this concept of so-callcd apartheid was to which the Applicants objected,
and which they wanted the Court to rule as being a policy in conflict
with the Mandate. .
On rg May the Applicants, aftcr long and piecemeal adjustment and
long explanation, amended these submissions by the dcletion of these
very factua1 allegations which I have now read out to the Court.
Their grounds of objection are now, as regards Submission 3, that
Respondent "has distinguished as to race, colour, national or tribal
origin in establishing the rights and duties of the inhabitants of the
Territory". As regards Submission No. 4, the feature to which objection
is made is the alleged violation of the norm and standards of non
discrimination or non-separation as defmed at page 493, IV, of the Reply,
thus identifying Submission 4 entirely with Submission No. 3.394 SOUTH WEST AFRICA
Mr. President, we _pointed out repeatedly that this arnendment was
not inadvertent or ummportant. 1t represented a studied and a deliberate
decision on the Applicants' part not to ask for any decision of this
Court as to whether the Respondent's policies are ill-intentioned or
well-intentioned, or whether they have been beneficial results or detri
mental results for the inhabitants of South West Africa.
The purpose which emergcd so clearly from the circumstances in
which these changes came about, and which was expressly stated by the
Applicants, l\Ir. President, was to avoid the factual enquiry which would
be necessary if the original, factual allegations were persisted in-the
factual enquiry which the Respondent had declared itself to be willing
to undertake. in respect of which the Respondent had notified the
Court that it intended to call a large number of witnesses, and in respect
of which it invited this Court to go on an inspection of the Territory
of South West Africa, and also other terri tories in Africa. It was specific
ally with a view to demonstrating to the Court-to contending to the
Court-to assuring the Court and assuring the Respondent-that such
a factual enquiry was totally unnecessary that this change was made
studiedly and deliberately in the Applicants' case.
The case for the Applicants then was that any distinction on the
grounds of race, colour, national or tribal origin in establishing the
rights and duties of the inhabitants would be illegal, whatever the
purpose or the result of such distinction would be. I use the word dis
tinction here, Mr. President, because that is the word appearing in
Submission No. 3. There has, as the Court will recall, been objection
to our use of the word "differentiation". I am using here the Applicants'
own word contained in their formai submission.
Now, Mr. President, this was the Applicants' case, as I have just
stated it, which was apparent from a number of circumstances. It
appeared from the very wording of the submission. The key-words which
the Applicants used interchangeably in their Submissions 3 and 4 were
"distinguish", "discrimina te" and "separa te". We gave certain dictionary
definitions of these words which showed that they do not bear any
pejorative connotation, except in the case of the word "discriminate''
which may bear such a connotation in a secondary sense, and not in
its primary sense. The definition given by the Applicants at page 493,
IV, of the Reply confirmed that their case was as we have just stated
it. They said there that these words "non-discrimination" and "non
separation" were used in their prevalent and customary sensc, and then
followed the definition, which has so often been read to ·the Court,
and which amounted to nothing more than the objection to an allotment
by official governmcntal policies or actions of status, rights, duties and
privileges on the basis of membership in a group, class or race rather
than on the basis of individual merit, capacity or potential.
In other words, i\Ir. President, there was nothing to indicate that
anything pejorative was intended, and ail the indications of reconciling
the concepts of separation with discrimination-reconciling the second
part of the definition with the fi.rst-taking into the account the official
and the non-official explanations, al! confirmed that that was what
was intended.
Then, l\fr. President, this also appeared from an examination of the
Applicants' treatment of the sources upon which they relied for this
statement, and for this definition, and for this suggested norm and COMMENT BY MR. DE VILLIERS 395
standard which they could abstract from the sources. That we also
demonstrated. They did not interpret those sources-they did not purport
to rely on those sources to the effect that discrimination in a pejorative
sense was spoken of in them, in so far as that may have been the case
in regard ta certain sources. Every time they abstracted the meaning
which they assigned to them, referring to the ncutral concept of distinc
tion-of differentiation-confirming again that the word "discrimina
tion", where used by them, was used in that primary sense.
Then, Mr. President, the very nature of the amendments of 19 May
showed, in our submission, that the Applicants intended to foreswear
any allegations that the Respondent's policies wcre iU-intentioned, or
that they produced undesirable results; and, as I have said, this was
made further explicitly clear and confirmed by a number of informai
statements which we have rcad out to the Court before, and which I do
not intend to rcad·out again.
In this same opening statement in the verbatim record of 26 October
by my learned fricnd, Mr. Muller, to which I have referrcd, we also
showed that the Applicants had apparently realized more recently the
extreme implications of the attitude which they adopted as the basis
for thcir amended submissions on 19 May. They apparently also realized
the absurd consequences to whîch that contention would lead, such as, ,
for instance, the interdiction of separate public convcniences for men
and women. This would be a classic case of contravention of the norm
and the standards as defined at page 493, IV, of the Reply, because in
such a case the needs of a particular individual are not taken into
account at ail in determining whether he or she is entitled to take
advantage of a particular public facility rather than some other one
which may be more inconvenient or situatcd at a greater distance from
him or her than that particular one. The allotment is purcly, in such
a case, on the basis of membership in a group or class.
This, the Applicants say, is the caricature of their case, that it i,;
something which flows naturally from their case as defined at that
particular page, and as incorporatcd in their submission. And it was
apparently because some of these extreme and absurd consequences
were realized that the Applicants showed some signs of fretting, of
wishing to escape from their case on which they had so deliberately
decided. But, Mr. President. it was not so easy for them. They could
not escape that case. Their difliculty was, on the surface, one of formula
tion, but, of course, the formulation was only the symptom; it was
only symptomatic of their real substantive difficulties.
If their nonn and standards did not strike at all types of differential
allotments of rights, duties and so forth, on the basis of membership
in a race, class or group, then they would have to define the criterion
to be applied in determining the Hlegality of some such allotments to
the exclusion of others.
The only conceivable criteria by which they could do this, i.e., by
which they could say that some differential allotments of the kind
under discussion would be pennissible, and some would be impermissible,
wouid have to fall into one or other of the categories which my learned
friend, Mr. Muller, mentioned to the Court. They would have to fall,
firstly, in the category of an improper state of mind of the person who
allots the rights, duties,and so forth. Alternatively, they would have
to fall in the category of undesirable results which flow from such an396 SOUTH WEST AFRICA
allotment. Or, as a third alternative, they would have to fall in a category
which involves a combination of both of these that I have mentioned.
Of course, Mr. President, what I have just mentioned now as categories,
are broad classifications only. If the Applicants had decided in favour
of one or the other of these broad classifications, that would not have
bcen sufficient for them for the purposes of formulation of a case which
can be put forward for the Respondent to meet and to enable the Court
to understand what that case is. They would have to define with some
particularity what exactly it is that brings about this impropriety, and
they would have to define with reference to the facts the factual aspects
of the Respondent's conduct. They would have to define what are those
factual aspects which they allege and which they say are violative of
this norm and these standards upon which they rely.
Therefore, Mr. President, if I may give some examples of that, they
would have to say, with some clarity, in respect of the groups of which
they are speaking-if they are speaking of groups at all-whether they
are talking simply about a relationship or a differential allotment as
between White persans and non-White persons, whether they objcct
to that only, or whether they also object to a differential allotment
between non-White groups or peoples inter se, whether they object also
to a differentiation bctween Coloured people and the Bantu, whether
they object to a diffcrentiation bctween the Nama and the Bushmen,
and so forth. They would have to make their election and tell the Court
what exactly they object to in those various relationships and in those
various distinctions. Are some permissible and some impermissible, or
what is the position? That woulcl have to be clarified.
They would have to clarify further in what particular respects the
differential allotments as between whatever groups they choose, are
objected to; and when I say "respects" I really mean two things-1
mean in what spheres of lîfe, political, economic, educational, health
services and whatever there might be, they would have to select those.
They did at a certain stage make a certain selection of that kind, but
they would have to go further. They would also have to indicate within
those sphcrcs of lifc what it is thcy object to.
I may give the Court some examples. Within the political sphere,
the sphere of government and citizenship, they \\rould have to say, they
would have to clarifv their attitude as to whether it means that it is
permissible to have séparate political institutions for the various groups,
but that their complaint is rcally that the progrcss in the case of some
groups is too slow as compared with others-that would be a possible
kind of complaint; or they would have to say that the separation itself
is objcctionable and they would therefore have to contend for an inte
grated political system. They·would have to make clear what is it
they contend for as being wrong and objectionable in that particular
sphere.
ln another sphere, Mr. President-education-they would have to
say, in regard to compulsory education, whether they abject to the
principle of having compulsory education for some groups and not for
other groups, or they would have to indicate whether they object merely
that in the case of the groups which do not yet have compulsory educa
tion that the progress has been too slow. And so one can take it over
all these spheres,a11d all these various questions arise ato what exactly
it is that the Applicants abject to. cŒ,n,IENT BY MR. DE VILLIERS 397
I raise these things not by way of theoretical abstractions, )Ir. Presi
dent, or by way of something academic which has got nothing to do
with this case, but because as we go along we shall see that the Appli
cants' case, particularly as it was puttothe Court in this final comment,
involves extrcme vagueness and confusion exactly on aspects of this
kind.
However, Mr. President, it was not possible for the Applicants to
defineany case falling within any or ail threc of these broad classifica
tions which I have given to the Court, because they had explicitly
renounced any reliance upon an improper state of mind on the Respon
dent's part, and they had explicitly renounccd any reliance on dctri
mental consequences of the policy. And the reason becausc of which
they made these renunciations still remains: the reason was the need
to avoid a factual enquiry into these aspects as I have mentioned to
the Court. I may remind the Court that that factual cnquiry would,
i'nter ali'a, have involvcd a comparison with standards in other parts
of Africa-comparison of standards in South West Africa with standards
in other parts of Africa, including the Applicant States themselves.
So, ;\Ir. President, how did the Applicants then seek to overcome
this dilemma flowing from the untcnability of this wide formulation
ofthcir norm and their standards and the difficulty, on the other hand,
that they could not go back to catcgories of complaints which they
had explicitly foresworn? They tried to copc with it in a numbcr of
ways. When thcy were faced with problems such as the minority treatics,
which fell four-square within their definition,they sought to distinguish
those minority treaties by referring to features of them which are, on
the face of it, cntirely immaterial to their norm as defined, or to their
standards as dcfined. The criterion to which they referred, was the
purpose of protecting groups and members of groups, and also they
referred to the criterion of the possibility for an individual to !cave
his group. Why these features would have been relevant as distinguishing
between legitimate and illegitimate, on the basis of a normand standard
as defined by the Applicants, ,vas ncver explained by them.
Then, Mr. President, the Applicants often objected violently to our
description of thcirnormand standards as involving non-differentiation.
They objected to the use of that word but they did not explain the
difference in meaning between "distinction", "discrimination" and "sep
aration", on the one hand, and "differentiation", on the other hand.
In particular, they never said that by "discrimination" they meant
something pcjorative, for as soon as they had said that it would have
landed them into the difficuities I have just mentioned. It would have
brought them back into the field of necessity for a factual enquiry,
which they did not want.
Next, Mr. President, in the course of the leading of our evidence
and cross-examination in respect thereof, repeated allegations were made
by the Applicants that the Respondent had distorted their norm. But
they never told the Court how or in what respect this was done. When
a serious allegation of that kind is made, Mr. President, one would
expect the objector to say to the Court, even if very briefly; here we
have the clear content of our norm and standards as defined, and our
clear explanations as to what it means, and here, by way of contrast,
we have the Respondent's distortion thereof. But we never got that.
Nowhere under any of these Clrcumstances of violent objection to so-398 SOUTH WEST AFRICA
called distortion did we have any clear indication from the Applicants
what exactly it is that they say their norm and standards is-what
is this content which is so different from that which is now being repre
scnted by the Respondent.
On various occasions during the course of the evidence the Applicants
gave some ad hoc explanations in regard to the normand the standards.
They did so, for instance, in regard to universal adult suffrage; they
did so also, on occasion, in regard to compulsory education. As was
demonstrated by my Iearned friend Mr. Muller, in his address to which
I have referred, these explanations were inconsistent with the content
of the norm and standards as that content has been formulated at page
493, IV, of the Reply, and I necd not enter into those details again.
Even that definition, Mr. President, as at page 493, IV, was at one
stage represented by my learned friend, Mr. Gross, as not really repre
senting the Applicants' case. The Court will recall the occasion when
it was said that regard would have to be had to what follows by way
of the various instruments and sources upon which reliance was placed.
But when this came to a final combination, in the verbatim record
at pages 35-36 and 48, supra, when my learned friend was pressed to
put to a witness what he contends to be the real meaning and purport
of the normand the standard, what was then eventually put amounted
in substance to exactly the same as we find at page 493, IV, and there
was certainly then no indication whatsoever that the word "discrimina
tion" was intended to be used in a pejorative sense.
It was suggested, Mr. President, to somc of the witnesses very vaguely,
for instance, Professor Possony, that the use of the word "discrimina
tion" in the definition at page 493, IV, had some significance. However,
the nature of that significance was never explained. There was always
on the part of the Applicants a holding back from saying, specifically
and explicitly, that "discrimination" meant something bad.
It was suggested by the Applicants to some witnesses, and particularly
to Professor l\fanning,that there was, or might be, a difference between
the positive and the negative formulations of the norm at page 493, IV,
of the Reply, but also this suggestion was not pursucd subsequcntly:
it obviously was without substance.
So, l\Ir. President, we went through the list and we found that these
various hints and suggestions on the Applicants' part were, of course,
not intendcd by them to be a comprehensive explanation of what their
attitude really amounted to. Indeed, the Applicants said on some of
these occasions that they would elaborate on this question when they
gave their comments on the evidence. \Ve found that that was promised
to the Court, for instance, in the verbatim record at XI, page 315, and
again at page 647. But now we have reached that stage-the stage in
which the Applicants' comments on the evidence was given-and we
shall considcr to what extent further light on that question has been
shed by these commcnts.
The firstand important point to note. Mr. President, is that the Appli
cants still persist, in these comments to which I am now rcplying. with
accusations of distortion on our side,but they couple thosc accusations
with a complete failure to state wherein this distortion lies, or cven to
state the aHcged content of the norm and/or the standards. They ex
plained this attitude as follov,·sin the record of Tuesday, at page 349,
supra: COMMENT BY MR. DE VILLIERS 399
"The formulation in ail its variations imports a false rendering
of the true nature of the standards for which the Applicants in
factcontcncl, as well as of the international legal norm of the same
content which the Applicants have put forward as an alternative
legal theory; it is of course understood by the Applicants that
a recanvass of the arguments, with respect to the content or
other aspects of the standards and the legal norrn, would be out
of place in the context of this comment upon the evidence.'.'
So, Mr. President, we find this most amazing statement in lieu of
the elaboration which we had been promised at various stages during
objections to the evidence. It is most amazing. Mr. President, because
the Court wîll recaU that my learned friend spent the half of the frrst
session on Tuesday making the point that the Respondent's evidence
had not been directed at the real meaning and content of the Applicants'
normand standards. That was the main point which he made over that
first half of that first session. That was the form which his comment
on the evidence took, as far as that particular stage was concerned.
Now, surely, Mr. President, if there was any substance in it, of course
that would be a legitimate form of comment on the evidence. But,
then, surely one would expect that for the purposes of such comment
it would be equally legitimatc-it would indeed almost be indispensable
for purposes of clarity and for purposes of understanding on the part
of the Court and on the part of the Respondent-to say: here is the
content of our norm; we arc not arguing again as to whether it is a
justified content or not justified from its sources; we are not arguing
the legal merit a.gain of the contention that such a norm does or does
not exist, from the sources as we previously relied upon them; we are
saying that we have made clear before, and we are repeating, that the
content of this normand of these standards is so and so and so, and the
Respondent, by way of contrnst, ignores that and it directs its evidence
to a proposition which is vitally different in that it is so and so and so.
But we do not find that, Mr. President. The excuse is given that that
would not be appropriate by way of comment upon evidence, and that
in spite of the fact that you, Mr. President, said explicitly on 18 October
at XI, page 647: "... comment as to relevance of evidence falls within
the permission which has alrcady been accorded." And my learned
fricnd, l\Ir.Gross, there reserved his right to present such comment
on the relevance of evidence, and, as I have pointed out, hc had earlier
promised that there would be e\aboration.
So, on the basis of this rather transparent excuse, the Applicants
do not once tell us explicitly what it is that they allege to be prohibited
by their norm and their standards. Instead, they make use in this
comment of their suggestion by speaking of the sense in which other
people have used the word "discrimination". And so we find in Tuesday's
record, at page 353, supra, this illustrative passage, a rather significant
one:
"Respondent itself in its pleadings, and Respondent's witnesses
in their testimony, employed the term 'discrimination' in its
customary and prevalent sense connoting adverse and unfair denial
of equal rights or opportunities to an individual as such, on the
grounds of his race and colour."
There is a great deal of suggestion in this passage, Mr. President.400 SOUTH WEST AFRICA
Although literally it refers to what the Respondent said and what its
witnesses said, the passage speaks of a "customary and prevalent sense"
of the word "discrimination", and that "customary and prevalent sense"
is now said to be something unfavourable, something adverse, something
unfair. I shall analyse later to what this unfairness and this adversity
relate-! shall come to that later. But, by suggestion, one is apparently
intended to understand that this is how the Applicants intended to use
the word "discrimination" in the earlier formulations of their de/initions
of their norm and of their standards-of thcir de/initions and their
submissions. If that really is what was intended here, Mr. President,
then they have guarded that secret very, very well. Then we had to
await this very final comment before we first heard any suggestion of
any kind from the Applicants of the use of the word "discrimination"
in a pejorative sense as far as their case is concerned-their case as
formulated in the submissions of 19 May.
The simple question could be putto my learned friends as to whether
they can point to any portion of this long record of the Oral Proceedings
in which at any time, after they had started to make their turn towards
19 l\fay, they had in the least said or
their amended subrnissions of
suggested that their use of the concept of discrimination was intended
to be in a pejorative sensc. I know what the answer is to that, Mr. Presi
dent. There is no such instance.
Then we corne to Wednesday's record at page 375, supra, where we
have a sirnilar example. There reference is made to a statement by the
Odendaal Commission, and the Applicants say:
"Parenthetically, Mr. President, it might be noted that the word
'discrimination', unqualifiedly used by the Commission in this para
graph, is obviously employed in its prevalent and custornary, or
pejorative, seme, precisely as it is in the constitutions of govern
ments throughout the world, in United Nations judgments and
other sources cornprising the standards defined at page 493, IV,
of the Applicants' Reply."
Here the suggestion becomes almost stronger, although it still stops
short of saying explicitly that that is the way in which the Applicants
intended to use the word, or that there is even a link in the sense that
this is spoken of as the way in which the word is used in certain sources
on which the Applicants have relied for the formulation of their standards,
as defined at page 493, IV, of the Reply.
But, still, it will be noted that the Applicants do not say explicitly
that thev thernselves used, or intended to use, the word "discrimination"
in that "sense-they merely imply it-they merely suggest it-by as
cribing such use to Respondent, to some certain witncsses, to the Oden
daal Commission, to certain constitutions, and to certain international
instruments and resolutions, and so forth. And, indeed, l\ir. President,
itwiU be obvious that the Applicants cannot make such a staternent.
They cannot say that that was how they intended to use the word
"discrimination" in their case, as formulated on r9 May in their sub
rnissions, becausc such a statement would be patently untrue. That we
have demonstrated. And such a statement would, in addition, Mr. Presi
dent, only Iead them into further difficulties, as we _shallshow.
In passing, we may just note that where the Respondent or certain
witnesses used the word "discrimination" in a pejorative sense this COMMENT BY MR. DE VILLIERS 401
always appeared from the context. This was always made explicitly
clear by the author of the particular passage in the pieadings or by
the particular witness by explicitly using adjectives such as "unfair"
or prepositions such as "against"-discrimination "against" as distin
guished from a more neutral scnse of discrimination "between". Neither
the Respondent at any stage nor any of its witnesses ever stated that
such sense of the terni \vas its customary or its prevaient sense.
ln regard to the use of the word in rcsolutions and other proceedings
of the United Nations, I may refer the Court to the testimony of Professor
Possony at XI, pages 698-703, where he demonstrated how inconsistently
the term was used generally in the United Nations records-sometimes
as mcaning one thing, and sometimes as meaning another, and sometimes
it is impossible to make out in what particular sense it was intended
to be used.
Now, Mr. President, let us then analyse this suggested "customary
and prevalent sense" of the word "discrimination", which, by suggestion,
apparently should be read into the norm and/or the standards of non
discrimination and non-separation.
In the first Place, Mr. President, it conflicts with the customary and
the prevalent sense of the word which the Applicants explicitly told
us at page 493, IV, of the Reply is to be assigned to it. There they also,
as I pointed out cartier, used the term "customary and prevalent sense"
but there to the exactly opposite effect-exact1y with a view to explaining
to the Court that they arc not talking of something pejorative-that
they are talking of discrimination in the neutral sense of discriminating
between and not discriminating against.
Secondly, Mr. President, no new "customary and prevalent sense"
is provided for the other words which the Applicants used in their
definitions and explanations, and which words were used inter-changeably
with the word "discrimination", namely the word "separation" and the
word "distin~uishing". At page 493, IV, we are told that the terms
"non-discrimmation" or "non-separation" are used in their prevalent
and customary sense. I stress the word "or". This indicates clearly
that those two are used inter-changeably as meaning the same thing
for purposes of this norm; as my learned friend, Mr. Muller, demon
strated, there were not two norms, there was one norm. There were
not two contents to the standards, there was one content, and that
related to the two inter-changeable concepts of "discrimination" and
"separation", or "non-discrimination" and "non-séparation". And, cer
tainly, Mr. President, we have had no suggestion that one could speak
of "separation" in a pejorative sense. The same applies to the word
"distinguishing" or "distinguish", which is, as I have pointed out, the
word used and still used in Submission No. 3.
Now, when one examines the concept of discrimination itself, as used
by the Applicants in these quotcd portions of what thcy said on Tuesday
and \Vednesday, then it becomes even more apparent that this manŒuvre
cannot provide an avenue of escape for the Applicants. The phrase
which they used in these formulations which I read out to the Court,
was "adverse and unfair dcnial of equal rights or opportunities to an
individual". Those are their quoted words. Now, one fi.nds in that
expression the words "equal rights or opportunities". Those words of
course are in themselves unclear and they do not make matters more
explicit without explanation. SOUTH WEST AFRICA
Do they mean-are they intended to mean-that everybody should
have identical rightsand opportunities-in other words, rights and oppor
tunities which are defined in identical terms by law? Or, do they connote
that it would be permissible and sometimes even necessary to have an
allotment of different rights and opportunities in order to bring about
an equivalence in efficacy or utility, in fact?
If this latter should be the intended meaning, Mr. President, then
how would one set about measuring the efficacy or the utility of the
rights and the opportunities given on a differential basis? In particular,
1i1rPresident, how would one even attempt a task of such a kind without
the fullest and the most wide-range inquiry of fact into that precise
problem, which is something, of course, which has not taken place
deliberately not taken place because the Applicants have said that they
are not bringing a case which makes that necessary.
However, Mr. President, be that as it may, in regard to this phrase
"equal rights and opportunities", the Applicants are right back with
their old problem, also, with their employment of the adjectives "adverse"
and "unfair". What are the criteria to be applied in determining whether
a measure is adverse or unfair? Again, we submit-we have considered
this matter from all possible angles but it seems to us impossible to
conclude otherwise-that unfairness or adversity must ahvays bring
into issue either the state of mind of the person performing the act,
or the effect of the act upon the person affected thereby, or both these
things. Conscqucntly, Mr. President, it is impossible to determine whether
a measure is unfair without having regard to the person to whom and
the circumstances in which it applies-in other words, a factual inquiry.
And in a case like this such an inquiry would involve the fullest inves
tigation of the facts to see whether adversity or unfairness, whether
in intent or in effect or in both, is actually present.
Then, !\frPresident, a most important further question arises. Un
fairness or adversity to whom? If the answer is that the Applicants
rely upon alleged unfairness towards particular major groups of the
population-major collections of the population such as ail the Natives
-then, l\Ir. President, they would be right back at the case which they
originally made in the Memorials and which they have suhsequently
abandoned. This would then mean that they are now presenting a case
on a basis which they expressly told us was not their case and which
we, on the strength of that assurance, specifically refrained from meeting
in the Oral Proceedings. The untenability of such a situation will be
obvious to the Court and I need not labour it. ·
There are some indications that the Applicants may have intended
a reversion to this case. If we look, for instance, at page 383, supra,
where they said this:
"If compulsory education is applied in the case of all White
childrcn, irrespective of wish or circumstance, and is not applied
in the case of any Native children, a question fairly arises con
cerning the reason",
it looks, as I say, superficially as if there is again this suggestion of
unfairness towards the whole of the Native population. Then we find,
after rcferring to certain circurnstances in the Territory, the Applicants
continue to state that a failure to apply compulsory education to any
Native children "... must reasonably be ascribed to, and is obviously COMMENT BY MR. DE VILLIERS
based upon racial considerations". Here, in this passage, the Applicants
are apparently contrasting racial considerations with educational or
practical considerations. In other words, the suggestion appears to be
that the Respondent Jimits the opportunities given to Natives merely
because they are Natives. If this is so, then, of course, we are right
back at the original oppression case, as originally brought-the case
of arbitrary, deliberate, improper oppression, subordination ofthe Native
population to the interests of the White population. But, as I have
said, that case was abandoned and, as 1 understand it, it is unnecessary
now for us to say anything more about that case. If that was not aban
doned, are we to understand that the Applicants have deliberately
lulled us into a false sense of security? Are we to understand that they
had the deliberate object of prejudicing us in the presentation of facts
and opinions to this Court by way of testimony in order to rneet that
original oppression case? Certainly their assurances which they gave us,
had the necessary effect so that we did not bring the evidence we intended
to bring. And now, must we understand that they are in effect telling
us: "But you should not have believed us; you shouId have unders tood
that our case was still the same as at the beginning-that you still had
to meet all that and in spite of all we said it was for you to decide whether
or not to bring those witnesses. Now that you have not brought those
witnesses, we corne again with our original allegations and we say it
is good enough to take the record as it stands, even though we know
that you wanted to supplement that record-that you wanted to bring
much more detailed evidence about it. Now we take bits and pieces
from what we can extract from cross-cxamination and from evidence of
experts-whethcr in context or out of context, does not really matter
-we piece them together and we say, there, there is something on
which the Court can still find that our original case was substantiated"?
l\1r. President, if that is how the Applicants' attitude is to be under
stood, I have to say no more about it. I am quite sure that this Court
itself will make very short shrift of that kind of tactic.
On proper analysis of what it is that the Applicants told this Court
on Tuesday and Weclnesday, it seems to us that that is not the sense
in which the Applicants suggested that this expression "unfair" or
"adverse" was to be used or understood. It seems tous that they intended
something else thereby, not something that would bring them any
further, but nevertheless something differcnt from the possibility which
I have just discusscd, and a very useful key is afforded by a passage
which occurs in Tuesday's record, at page 360, supra. There they refer
to a statement which I think I had macle before and they said this:
"The asserted distinction drawn bv Counsel: between what he
referredto as 'the general well-being', of the population as a whole, as
distinguished from the 'effect of particular measures upon particular
individuals in particular circumstances', in our respectful view, begs
the central question.
The impact of Respondent's ... policy upon individuals 'inpartic
ular circumstances', and through 'particular measures', is precisely
what the Applicants are talking about."
Now, Mr. President, in this last sentence I have deliberately omitted
certain emotionally charged adjectives in order to go more directly, as it
seems to us, to the legal significance, if any, which may be at~ached to SOUTH WEST AFRICA
this passage. I shall corne back to these adjectives later-to the purple
prose in general-but for the moment I want to concentrate on what
appears to be the suggested legal significance of this passage.
The suggestion seems to us to be this: that unfairness cxists because
certain individuals may in certain circumstances be harmed by certain
particular measures-that, and no more. Certain individuals may be
harmed in certain circumstances by certain particular mcasures. Now,
if that is so, Mr. President, then that is surely a very strange concept of
unfairness. This is so particularly in the context of discussing policies
which are required to promote the well-being and the progress of the
inhabitants of the mandated Territory-alt the inhabitants of the
mandated Territory. In such a context surcly it is gencrally acceptcd
that the individual's happiness must often ncccssarily be abated for the
greater happiness of the group of which he is a member, and conse
quently, also, and this is most important. for his own future happiness.
That situation is not normally regarded as necessarily unfair; and even
ifit shoulcl or might be regarded in the light of being unfair, it is normally
seen as something inevitable. Indeed, Mr. President, it is hardly con
ceivable of any policy or any measure in the world which does not dis
criminate amongst individuals in its effect or in its terms, in the sense
that certain of them reccive less direct benefit or greater immediate
detriment therefrom than other individuals. One can take examples of
policies ail over the world, and one can hardly think of a policy which
does not have the effect of causing or ostensibly causing direct or imme
diate harm to individuals, as distinguished, of course, from over-all well
being and, therefore, also of the real well-being, now or prospective, of
that individual.
Let us take examples, merely by ,vay of illustration. which were dis
cussed in the evidence: let us take the examples of policies in the United
States, wherc we get an cxample of a polîcy of differentiation in regard to
the lndians-the land reservation policy, if I may call it that-and then
a policy of non-differentiation or integration, in so far as the American
Negroes are concerned. 1n the case of the differentiation regarding the
Indian Rescrvations, surelv, Mr. President, some individuals are hit
harder, more specifically and more directly by that than others, and are
affected in different ways. There isthe member of the Indian community
who has a spccial desire. special aptitude, special development which
now brings him to a point where he wants to set out in the world, hc
wants to take up some other occupation somewhere-hc wants to sell
his land at the best price he can get-and the price which would make it
economically worthwhile for him would be that from a European member
of the American community, but he is not allowed to do that. He is
affected more directly and more specifically than the other member of
his community who is content to stay on the Reservation and wishes to
stay there as far as he and his family and descendants are concerned.
That is an example of a differentiating policy.
The same examples occur in the case of a non-differentiating or an
integrating policy. There îs the policy of integration as far as the Negroes
are concerned-the Court will recall the evidence of Professor Possonv
to the effect that, as was demonstrated in a recent report on the subject__:_
there is a tremendous lag in the development stages of the Negro popula
tion as a whole, compared with the White population as a whole, and
there is a strong body of opinion to the effect that the only way in which COMME~T BY MR. DE VILLIERS
one could be fair to the Negro, now in these circumstances, would be to
discriminate in his favour, and to try, by that way, to eliminate that lag
first beforc expecting him to compete, without any assistance, with the
White members of the conununity. Again. l\fr. President, that demon
strates how particular individuals may be much more spccifically or
immediatcly or detrimentally affected by a policy than others. One can
immediatcly imagine some who would not require that special assistance;
one can immediately imagine others who would vcry definitely require it.
Then, Mr. President, one can think of policies which have nothing
whatevcr to do with questions of integration or differentiation, which
are just concerned with something else-a policy such as a declaration
of war. Under certain circumstances, a declarntion of war mav be
regardcd as being the only thing that can be bencficial to the welfare of a
community as a whole, and thereforc also to all the individuals com
prising that corumunity. But that policy may affect very harshly somc
individuals, and some, of course, more than othcrs-thosc who are going
to be in the fighting Jines, being in that particular age group, and thosc
who are going to stay at home.
Mr. President, if this, as I have said, isthe concept of unfairness with
which wc are dealing, it is a very strange one and, indeed, if that is so,
and ifthat is intendcd to be reprcsented as the content of the Appli
cants' norm and/or standards, then it is difficult to see how wc could
ever be said to have misrepresented the Applicants' norm or standards
because, i\Ir. President, if the essence of the discrimination is that some
individuals in certain circumstances are detrimentally affected by partic
ular measures, then I may recall that any measure which allots rights,
duties, and so forth, on the basis of group, class or race, must be inter
dicted bccause in all those cases some harm must necessarilv fall on
individual members. ln any case, where one has a differential policy,
somc individuals must be more specifically affected by it than others. In
ail these cases of which Professor Possony spoke, al! over the world in the
practicc ofStates that must inevitably be so, and he pointecl it out in his
evidcnce too. And that applies not only to these cases of racial dis
crimination, of which my learned friends now speak, it applies to ail
these cases of differentiation on the basis of group, class or race.
As I said, of course, when I am speaking here in terms of detriment to
some individuals, it is ostensible or immediate dcprivation-ostensible
I stress because vcry often the curtailment of liberty at this particular
stage is something which is looked upon in an immediate sensc as a
cletriment-but one must not look at that in isolation; one must see what
·the effect is going to be for this individual, not only in the future, but
110w,if this policy, of which this particular measure forms a par-t, did not
apply. If the answer is that this policy did not apply, and the only
alternative applied that the whole State-the whole community-would
be reduced to astate of misery, affecting also that individual, then it is
not true to sav that that individual suffers anv detriment at ail, even on
a short-term basis as compared with a long-tcrm basis. But, of course,
there are also circumstances in which one could say that the individual
may be said to suffer on a short-term basis, whereas the long-tcrm, ovcr
all basis is intended for the benefit of the community as a whole, as is
normallv the case, Mr. President, in the case of all the various kinds of
policies \vhich have been discussed.
1\fr. President, may I just make this point: if this is the sense in which SOUTH WEST AFRICA
the Applicants speak of detriment, then, of course, they have not,
despite ail appearances to the contrary, in that respect departed from
what their case was before in regard to the norm and the standards.
Mr. President, towards the conclusion of the Applicants' comment to
the Court on Weclnesday, at page 390, supra, the Applicants again
referred to-
"... the inherent and per se incompatibility of apartheid with
individual moral well-being and social progress, and that such a
policy if applied anywhere would inherently be incompatible with
the moral well-being and social progress of any individual, inside or
outside this court-room''.
I skip about six lines, and I read a further passage:
"The effects of apartheid, in the App]icants' consistent submis
sion, are established by the facts of record as a matter of law.
\Vhether apartheid is, in the words of the Respondent, 'good or bad',
is not a question of fact, it is a question of law in terms of the obliga
tions of the Mandate."
Bringing that in conjunction with the factors which I mentioned to the
Court just before the tea adjournment would make it appear, thercfore,
that the Applicants have not departed from the basic attitude which they
expressed in regard to their norm and/or standards contention at an
earlier stage. When they speak of harm or detriment to an individual,
when they speak in that sense of unfair or dctrimental consequences of
apartheid, apparently they speak of those things not as facts but as
legal fictions. Apparently the attitude is that, whatever powers have
decided upon the normand upon the standards and have brought them
into legally binding existence, those powers have decided that on the
basis that they consider such a policy as is prohibited by the norm and
standards to be detrimental, and therefore that is a legal consequence
which inheres in the whole concept and the whole contention of a norm
and a standard, and therefore it is not really a question of fact, because if
it were a question of fact, then it would of course be impossible to stop
just therc, and to say "well, let us merely look at these immediate, these
ostensible, these short-term effects upon certain individuals under certain
circumstances, let us look at the whole". But the Applicants say "no,
that is not necessary, that is indeed not permissible; it is legally irrel
evant". So, looking at the matter in that way, it seems that the Appli
cants still in that sense, wish to rely upon their norm and standards as
defined and as incorporated in their submissions on 19 May, and that
this talk of unfair, adverse effects is really just another way of stating
the same things that they had stated before.
However. the Applicants do not make it very easy for us to understand
what exactly it is that they mean, because if the inference which I have
just stated to the Courtis a correct one, then it is still difficult to under
stand when one mav differentiate and when not. In the verbatim record
on Tuesday, at page 350, supra, the Applicants spoke of-
"measures to reserve the lands of the Natives, to control the popula
tion movements in certain circumstances, particularly into urban
areas, and the protection and development of what was called the
'traditional institutions of the people'".
These were matters to which Professor Logan testified. The Applicants, COMMENT BY MR. DE VILLIERS
within the context as at that page of the record, appeared to approve of
these matters as being on a par with protecting minors, incompetents,
war widows or blind persans, and they certainly suggested that this "has
nothing to do with the Applicants' case" (p. 350). But can it be seriously
doubted that each of these provisions or sets of provisions necessarily
entails disadvantages to individuals of the immediate, ostensible type
that we have been discussing? As has been rcpeatedly pointed out, the
measurcs to reserve Native land impose a limitation on ail individuals
outside the Native group in question who may wish to purchase that
reserved land. It also imposes a limitation on all Natives who wish to
sell reserved land. If we take the next one, i.e., control of population
movements, particularly into urban areas, that affects individuals who
may wish to go to the urban areas. Jf we take maintenance of the tradi
tional institutions,that also may subject a paxticular individual to a type
of control which he does not desire. One gets the example of the individual
member of a particular people who has had educatîon, and who con
siders himself to be more advanced than the chief under whose jurisdic
tion he isnow to serve. Itis with a view to coping with situations of that
kind that there is provision in the Respondent's policies, of which wehave
spoken before, for introducing the democratic element, together with the
traditional elements, as a form of advance, but at particular stages of
development one may have thcsc individuals who are perhaps in advance
of the developments in the institutions provided for his group. So,
certainly, inthat respect, and in other respects also, maintenance of the
traditional institutions may have certain effects upon certain individual
persans. And yct, it seems tous that the Applicants say that these forms
of discrimination. differcntiation, separation or distinction are uot
prohibited-why we are not told. We are not told what is the criterion
separating thcse legitimate forms of discrimination, etc., from the others
which the Applicants wish to have interdicted.
Let us return, then, to this example referred to in our Rejoinder
the case of special protection or special public conveniences for women.
The Applicants referred to this passage when they dealt with Professor
Possony's cvidence, i.e., that a prohibition of such a discrimination would
indeed be a consequence of the Applicants' normand standards, and the
Applicants said in Tuesday's record, at pages 351-352, supra:
"The witncss thus found it necessary, by reason of the formulation
by Respondent of the issue to which its evidence is said to be
directed and relevant, to travel the road of confusion toits destina
tion, which in this case was absurdity."
Of course the absurdity was there with respect to this submission, but
that absurdity rcsults not from clistortion on our part, it results from the
Applicants' formulation of thcir norm and thcir standards; it does not
result from anything we said or did~we or Professor Possony.
The Applicants say that bccause we can point to absurd consequences,
therefore, we arc misrepresenting their case. We say that these absur
dities show the untenability of their case. They have drawn their lines
so wide as to include instances of this kind-instances which demonstrate
that that case which they make is an untenable one--and thcy cannot
draw a narrower line so as to exclude these absurd cases without coming
in to a sphcre of factual enquiry which they have sought to avoid. That
is, and remains, their difficulty.408 SOUTH WEST AFRlCA
So, by way of suggestions and insinuations the Applicants have at
tempted to create the impression that there was something more to
their case-something more to be taken into account-than mere dif
ferentiation, discrimination in the neutral sense, and so forth, within the
sphere of allotment of rights, obligations and so on, on the basis of
membership in a group, race or class. They suggested that there was an
additional element to be taken into account, but they never defined that
additional element, and they never told us what case it was we had to
meet in regard to that element which they now suggest must be regardcd
as decisive.
They did this, Mr. President, by playing around with the word "dis
crimination" without defining exactly what they meant thereby, as I have
demonstrated. It is a similar manŒuvre, Mr. President, to what we
referred to earlier in regard to the use of the word "apartheid". The
Court will remember that I dealt with this matter in reply to a question
by the Court as to the scope of the Applicants' submissions of 19 May,
and as to the possible scope of enquiry by the Court, particularly in the
verbatim record of r July, at X, pages 220-224, where I dealt with the
play which the Applicants made on the use of the word "apartheid"-on
the meaning of the word "apartheid"-how they started off with one
meaning-a definition giving it the meaning of an oppressive system
and how it ended up with an entirely different meaning for the purposes
of their submissions, referring merely to the element of differential allot
ment-of distinction-as being the word which thcy use in their sub
mission. And I pointed out at a later stage when answering this self-same
question of the Court, they wished to make those lines a bit vaguer
again so as toadd a bit of confusion as to whether they were now talking
about apartheid still in the original sense or in this more limited, spe
cialized sense in which they Jater ùefined the word. Wc have much the
same proccss, Mr. President, with this worcl "discrimination". I have
dealt with that and I need not enlarge upon it any further.
Not only the word "discrimination" came into this. I also promised
the Court that I would corne back to certain adjectives which I left out
of a particular passage earlier. We arc now brought to a conception that
in various ways of suggestion, and so forth, their normand standards did
not prohibit distinction or separation amongst ail groups or classes, but
only amongst racial groups. It will be recalled, of course, that at page 493,
IV, of the Reply the Applicants defined their norm by reference to
allotments on the basis of membership in "a group, class or race". They
could hardly avoid this general formulation for the simple reason that
the various sources upon which they relied-the various international
instruments and draft instruments and so forth-use a varietv of con-
cepts inthe particular provisions of those instruments. •
We say that the Applicants do not interpret those provisions cor
rectly when they say that they afford any support for the normand the
standards which the Applicants attemptecl to extract therefrom, but
that is not the point under discussion at the moment. The point is that
for whatever purpose those instruments spoke of groups and so forth,
they did use language including "race, sex, !anguage or religion". That
phraseology I have just referred to now, occurs in the United Nations
Charter as cited in the Reply, IV, at pages 497-498.
Next, Mr. President, in the Universal Declaration of Human Rights
cited in the Reply, IV, at page 501, we find that the instrument speaks COMMENT BY MR. DE VILLIERS
of "race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or othcr status".
The third example, the draft Declaration on Rights and Duties of
States which we find at the same page of the Reply-501-speaks of
"race, sex, language or religion".
The formulation in the Applicants' definition of "group, class or race"
was consequently necessary because of the wide terms of these other
instruments relied upon; whether the reliancc was a justified one or not
is not under discussion for the moment. The formulation-group, class
or race-was consistently employed by the Applicants throughout these
proceedings. As examples we may refer to the verbatim record of 30 April,
at IX, pages 64-6.5-to a passage there which was previously quoted to
the Court by us on ro June at IX, page 566. Herc there was an even more
simplified method of rendering their contention. The reference was to
group simpliciter,not even with refcrence to the question of race or class
in that particular formulation.
The Applicants were there acceding to a formulation by us in the
Reply, of what we conceivc to be the effect of their norm or contention
as it had already been stated in their Reply and dealt with by us in our
Rejoinder, and the Court will rccall that at IX, page 64 of that record of
30 April, the Applicants said:
"For the purpose of interpretation and application, the following
passage in the same volume of the Rejoinder removes any vestige
of doubt that Rcspondent clearly undcrstands the basis of the
Applicants' case."
And in this passage then, cited from the Rejoinder, there cornes this
sentence which I have previously quoted for another purpose, but which
I should like to read now for this purpose:
"If indeed Article 2 of the l\Iandate must be read as containing
an absolute prohibition on 'the allotment, by governmental policy
and action, of rights and burdens on the basis of membership in a
"group"', Applicants would sufficiently establish a violation of the
Article by proving such an allotment, irrespective of whether it was
intended to operate, or cloes in fact operate, for the benefit of the
inhabitants of the Territory." (IX, pp. 64-65.)
That is the end of the quotation which, the Applicants say, removes any
vestige of doubt that Respondent clearly understands the basis of the
Applicants' case.
On 22 June the Applicants themselves used similar language. This
was in the course of a discussion of objections raised with regard to
the evidence of the witness, Professor van den Haag, and here the Ap
plicants said this:
"If this or any other witncss is competent to testify with respect
to the practice of States, citing the official laws and regulations
which, m his vicw, do constitute discrimination or separation by
reason of group without regard to inclividual merit or capacity
(which is the contention of the Applicants as to the content and
nature of the norm and standards), I should think that it would be
perfectly easy for learned Counsel to explain ... " (X, p. 139.)
So, very clearly, l\Ir. President, if the evidence about practice of
States could relate to practicc of official laws and regulations which4ro SOUTH WEST AFRICA
constitute discrimination or separation by reason of a group, without
regard to individual mcrit or capacity, thcn that is said to be the con
tention of the Applicants as to the content and nature of the norm or
standards. One can have sympathy with the Applicants because they
said th~t before knowing exactly what the evidence of practice of States
was gomg to produce. By way of contrast we can refer to what they
now say aboutit in Tuesday's record, page 353, siipra:
"Professor Possony expressed opinions with regard to practices
and he gave evidence concerning certain laws and constitutions
of States. None of this, however, was relevant to issues presented
and raised in respect of the international standards or the inter
national legal norm, or both, for which the Applicants contend,
as contrasted with the unintelligible and ambiguous reformulation,
used as the basis upon which Respondent led its witnesses, and
asserted to be the sole question to which their evidence was directed
or relevant."
Mr. President, I can hardly imagine evidence more directly concerned
with, and I should say directly anchored to, the Applicants' own for
mulation, which I have read out to the Court, as to what evidence of
practice of States would really be meeting their case in regard to the
standards and the norm.
Now, 111r.President, to retum to this present attempt at narrowing
down the issue to racial discrimination. lt is quite obvious that the
absurdity of the whole approach of the Applicants, as contained in
their norm and standards theory, could be more easily demonstrated
while they kept it so wide-while they retained that vague formula of
group or class or race. Sorne of the extremc consequences would fall
away, I suppose, or would not be so easy to demonstratc-so readlly
demonstrable-whcn they eut out the others and they corne down to
race alone; for instance,what they spoke of as the parody of their case,
the separate conveniences for men and women.
In addition, of course, l\lr. President, very little emotional impact is
produced by such formula as group, class or race. If one wants real
bandwagon effects it is much more to the point to speak of racial dis
crimination. So it sccms to us that it was apparently for these reasons,
in an attempt to reduce absurdities and in attempts to compound
emotion, that the Applicants now have a formulation of what they
themselves call their major premise and which reads as follows in the
verbatim record at page 355, supra:
"... international standards are accepted according to which racial
discrimination is inherently and always incompatible with moral
well-being and social progress".
Their case is now no longer the one as defined at page 493, IV,of the
Reply. Itis now one against "racial discrimination". As I pointed out,
no attempt was made to define this concept-racial discrimination. No
attempt was made to link up any new or other definition which the
Court was asked to take into account-no attempt was made to link
that up with the case previously made. No attempt was made to amend
the Applicants' subm1ssions. No attempt was made even to show the
relationship of this concept of which they are now speaking-racial
discrimination-to show that relationship with the wide words used in .COMMENT BY MR. DE VILLIERS
the alleged documents relied upon as sources for the norm and/or stan
dards, some of which documents were quoted above, where these docu
ments speak of race, class, group, religionand so forth.
Nevertheless, Mr. President, despite their complete failure to attach
any legal meaning to this expression "racial discrimination", the Ap
plicants have now developed such a fondness for it that they used it
no fewer than 17 times before tea on Tuesday. Why is that? In our
submission the impression is unmistakable that the Applicants have
now abandoned ail attempts to define, in a legal and logical way, the
distinction between the allotment of rights and so forth which would
be legitimate and the allotment or allotments which would not be
legitimate. They have given up atl attempts at a clear legal, Iogical
definition ofthat criterion or distinction. Instead they have now resorted
to undefined expressions, more prevalent on political platforms than
before courts of law. \Ve submit, l\Ir. President, that this Court will
have no difficulty about recognizing this manŒuvre and about knowing
how to deal with it.
The reason for the Applicants' disenchantment with the content of
their norm and standards as prcviously explainecl and as previously
formulated, is of course obvious. It is obvions after the Respondent's
eviclence and the Respondent's demonstration of what happened in the
various international bodies, that no norm or standard of the content
relied upon by the Applicants could possibly exist. The only w:iy in
which the Applicants could meet the impact of the Respondent's case
as presented in the evidence and in argument was to deny its relevance
and in that way they have implicitly conceded, in our submission, in
the most effective way possible, that if our case was indeed relevant,
it would also be conclusive. However, the Applicants could not logically
demonstrate why our case was irrelevant-why it did not meet this
case which they previously presentcd and which they explained to us.
They could not go further and thev could not define what their case
really was. They were consequently lcft with only one weapon and
that was an appeal to the emotions.
In view of what I have said, it is hardly necessary to add that the
Respondent's witncsses did indecd advert to this case presented by the
Applicants and they assisted in demonstrating its complete untenability
-even this case as the Applicants are putting it to the Court now.
Since they are now apparently limiting themselves to differentiation
among racial groups, it may be apposite to remind the Court that
although no evidence of the Respondent was specifically directcd to
such a narrowly defined issue, the evidence and the argument which
was presented to the Court indeed covered this aspect. I could give
examples from the evidencc of Professor Possony which very clearly
show that his evidence about the practice of States, and also about
what is desirable and what may be desirable for well-being and so
forth in certain circumstances, is apposite whethcr one speaks of differ
entiation, discrimination, distinctions on the basis of group, race or
class in the wide way, or even when one merely narrows it down to
racial groups. Of course, one has difficulty when one deals with an
undefined concept especially this vague one about race. \Vhat exactly
is meant by race? There are so many classifications. Are we speaking
only of the so-called "grand" races-the three sometimes referred to:
the Caucasoid, the Mongoloid and the Negroid-or are we speaking412 SOUTH WEST AFRICA
more generally of other classifications that have corne about or of various
ethnie groups that exist all over the world. The Applicants have not
explained that tous.
Even if we take the various possibilities into account, even if we
look at the matter most conservatively as being distinctions only between
these "grand" races, there are various examples in Professor Possony's
evidence of a practice ofState showing such differentiation and necessarily
involving the fact that there must be this type of artificial or short-term
or immediate detriment to the individuals invoJved that the Applicants
spoke of.
There are particular provisions in India with regard to the Anglo
Indian community. We find that at XI, page 667. There is the differentia
tions between Negroes and Whites in Liberia which we find at XI,
page 68r. There is the position of the aboriginal races in Australia,
found in the same record, on page 684. There are the differential laws
regarding the ;i.Iaorisin New Zealand, also at XI, page 684. There are the
separate systems for lndians in Venezuela-same record, same page.
There are the special provisions for Indians in America, at XI, page 685.
There is the situation in 17 states of the United States of America which
still prohibit marriages between Negroes and Whites-XI, page 695.
If we do not confine oursclves strictly to these "grand" races, if we
take into account also ethnie differentiations and so forth, there is the
very well-known, often quoted, example of the differential measures in
Cyprus, as between Greeks and Turks. Professor Possony referred to
thisat XI, pages 667-668.
These are only examples. If this emphasis had corne earlier we could
also have placed more emphasis, in our searches for evidence, on practices
of States and on the proceeilings in the international bodies in concen
trating upon this aspect, which is now presented as being the gravamen
of the Applicants' case, but indeed, 1\Ir. President, what we have clone,
I submit, is really enough in that respect.
Also, Mr. President, our evidence in regard to South West Africa
itself stands uncontradicted, including the evidence that it is often
necessary to distinguish, on the basis of membership in an ethnie or
racial group, for the benefit of the whole community. lt is necessary
to distinguish between the various non-White groups inter se, for the
reasons that have been given. It is necessary also to distinguish bctween
the White group, particularly in its own homeland, and the various
non-W'hite groups; but not only in its own homeland, but also in the
homelands of the various non-White groups where the distinction oper
ates again in favour of these various non-\Vhite groups.
So, Mr. President, all this evidence clearly goes to show that even
if the Applicants' case is now narrowed down to emphasis on this aspect
of so-called racial discrimination, with the immediate short-term or
similar effects which it may have in the case of individuals, then that
case is still completely insupportable.
Now, before I leave this aspect of analysis of the content of the norm
and the standards, may we just test the matter in another way, by
way of illustration. It involves, perhaps, saying some things that I have
said already in another way, but I think it affords a rather graphie
illustration of what we are talking about. What would the Res.Pondent
be required to do if the Court were to grant an order simply m terms
of Submissions Nos. 3 and 4? Mr. President, as those submissions are COMME.-ST BY MR. DE VILLIERS 413
worded, with refcrence to the definitions incorporated in them by refer
cncc and the official explanations, then obviously an ordcr in terms
of those submissions would require the Respondent to repeal or abolish
all measures or practices which do not comply with the formulations
set out in chose submissions and in those definitions, particularly the
one at page 493, IV, of the Reply.
This would mean, in effect, that the Respondent would have to repeal
all measures which distinguish, on the basis of race, colour, national
or tribal origin, in establishing the rights and duties of the inhabitants
of the Territory. If the Court were to make such a declaration, which
is what the Applicants asked for in those submissions, it would mean
that the Respondent would have to repeal all its measures which have
as their abject the protection of the indigenous groups, including those
measures which, the Applicants apparently now say, are not objection
able-such as the measures to reserve the lands of the Natives, the
measures to contrai the movements of Natives in certain circumstances,
particularly into urban areas, and the measures directed at the protection
and development of the traditional institutions of the Native peoples.
I have referred bcfore to the passage in the record at page 350, SHpra,
where the Applic;1nts apparently indicated that these mcasures would
not be in conflict with their case.
And, Mr. President, ifthe Courtis not now asked to make a declaration
on the basis of the submissions as they stand and as thcy are worded,
what is the nature and the compass of the declaration which is sought
to be obtained? Is the Court now asked, despite the wording of the
submissions, to examine each and every measure separately in order
to decide whether each should be repealed or not? If that is what is
required of the Court, l'lfPresident, so that the Court must then in
the end compile its own list or catalogue, what criteria is the Court
to apply? Must the Court seek to dctermine whether a particular measure
brings about an actual or a potentîal disability for cert:iin individuals,
and if that should be the criterion, must the Court have regard only
to immcdiate effects. or should it have regard also to the fact. if that
is so. that in the long run, or ovcr-all, even the individual who suffers
this irnmediate or 03tensible hardship will be ~ubstantially benefited by
the measure. or by the whole system of wh1ch the measure forms a
necessary part? Must the Court entirely disregard the over-all advan
tages of a measure for the group as a whole, or must it weigh those
advantages against disadvantages suffered by a few individuals?
The question then further arises, Mr. President, as to how the Court
is to apply any of these criteria to certain types of mcasures which
have formed the subject of discussion in those proceedings, and in
regard to which we now really do not know where we stand at all as
far as the Applicants' case is concerned. Let us take the measures
which provide for separate educational facilities for the different groups,
having regard to the evidence, the uncontested evidence which the
Court has heard, about the basic importance of mother-tongue education,
about the gcneral differences in levels of development of the children
at the prc-school stage when they corne to school, and so forth. Where
does that stand? How does the Court determine now whether that is
to be interdicted or declared against, or whether it is to be declared a
permissible form of differentiation? Does the Court determine that on
any criteria, or does the Registrar write a letter to the Applicants and SOUTH WEST AFRICA
ask them-do you want this included or do you not want it included?
Mr. President, the same question arises about measures such as those
which protect opportunities of commercial development for indigenous
peoples in their own area. where they get the preferent opportunities
-where those are specially protected for thern. Are those to be declared
contrary to the Mandate, or are they to be declared permissible? How
about measures protecting administrative posts for Natives and other
indigenous peoples in their own area-positions such as teachers, police
men, school inspectors and so forth, agricultural officials, administrative
officiais, all these; howabout measures for separate residential facilities
for various groups, where the groups indicate that they want those
that that is the way in which they prefer to live and in which they wish
to live?
These are only examples, l\Ir. President, of the problems which would
necessarily arise in this regard. They are in fact so multiplex as to
render the task of the Court an impossible one, and this is the more
so when we take into account that in view of the form of the submissions,
and the Applicants' definitions and declarations regarding the nature
of their case, that because of that, an investigation of the problems
which would present themselves to the Court in this matter, and the
presentation of factual material which would be relevant and necessary
for the Court if it were to attempt to embark upon such a task, have
not taken place.
That. then, Mr. President, is the basis upon which we propose to
devote further discussion on the Applicants' comment on the evidence,
but before we turn directly to that, there are two other matters of a
general nature, dealt with by the Applicants in their comments, with
which I should first like to dcal.
The first is this subject of the admissions made by the Applicants.
On Tucsday, in the record, at page 357, supra, the Applicants said on
this subject:
·"The Respondent's contention concerning the alleged legal effect
of the Applicants' so-called 'admissions' is. in the Applicants' sub
mission, without merit and should be rejected."
î\frPresident, let us trace very briefly the course and the history
which was taken by what is now called by the Applicants "the Apph
cants' so-called admissions". The Court wiH recall that in our Counter
Memorial, Il, at page 5, we said the following:
"9. It will be noted that in many instances Respondent does
not quote any published work or authority in support of statements
made in the succeeding volumes. In such cases, apart from facts
which are so generally and well known as to require no citation,
the information is mostly derived from Respondent's own official
sources. If any doubt is cast on the accuracy of such information,
or if the Court wishes it to be amplified or explained, Respondent
would willingly make the necessary evidence available during the
oral proceedings."
Now, Mr. President, many of these statements of tact referred to
in this passage which I have just quoted, and many other statcments
of fact, were not specifically admitted or dcnied or otherwise dealt with
by the Applicants in the Reply.
And then came our Rejoinder, which was the last of the pleadings, COMMENT BY MR. DE VILLIERS
and in that Rcjoinder further facts wcre put on record by us which
the Applicants had had no opportunity to deal with, of course, when
it came to the commencement of the Oral Proceedings-the converse
had not occurrecL AU the factual allegations which had becn made by
the Applicants in the Memorials and the Reply had been specifi.cally
dealt with by the Respondent in its pleadings, each and every one of
those, systematically. But we were faced with the difficulty-and the
difficulty applicd to the Court as at that stage-------thahtere the Respondent
intended to call evidence, viva voce,to be directed ta what might be
issues between the Parties but, as yet, we did not know exactly what
the total scope or ambit of those issues would be, for these reasons.
And the question then arase when we had to compiy with the Ruies
of the Court regarding the list of witnesses, subjects to which they
would testify and so forth-a practical problem arosc in that regard.
It will be known to the Court-! shall not disclose any details about
discussions-but it will be known that because of this problem there
were certain pre-trial discussions between the President and the repre
sentatives of the Parties, and these led then to an understanding which
was expressed by the Applicants' representative, on the very second
day of thesc proceedings, at VIII, pages n5-n6, which reads as follows:
"Without conceding the relevance of facts contained in Respon
dent's pleadings, including the oral proceedings, the facts-as dis
tinct from infercnces which may be drawn therefrom-are not
contested by the Applicants except as otherwise indicated, specifi
cally or by implication, in the Applicants' written pleadings or
in the oral proceedings."
That, then, was the statement as made explicitly as of that date-in
other words, ail those facts "exccpt as othenvise indicated specifically
or by implication, [either] in the Applicants' ... pleadings or in the
Oral Proceedings''.
Those wcre then two methods by which the Applicants could indicate
that specifi.c facts would fall out of the generality of this admissfon.
Those wou]d be excluded then.
But, J\fr.President, when we came to the debate on the proposai
for an inspection the matter came to a new stage, and the Court will
recall that the Applicants then went further and further in order to
eliminatc any factual dispute between the Parties, whethcr by way of
oral testimony or by way of an inspection. And, so, they said in this
respect on 27 April, at IX, page 2r:
"The Applicants have adviscd Respondent as wcll as this honour
able Court that ail and any avcrments of fact in Responclent's
Written Pleadings will be and are accepted as true. unless specifi.
cally denied: And the Applicants have not found it necessary and
do not fi.nd1t necessary to controvert any such averments of fact.
Hence, for the purposes of these proceedings, such averments of
fact, although made by Respondent in a copious and unusually
voluminous record, may be treated as if incorporated by reference
into the Applicants' pleadings."
So, Mr. President, now we go a stage further. This previous qualifica
tion, which had existed about denials or indications to the contrary in
the Applicants' pleadings, has now fallen away. On the contrary, what
ever the Respondent had said in its pleadings is now taken, not only SOUTH WEST AFRICA
as being admitted as true, but "as if incorporated by reference into
the Applicants' plcadings", unless there should be an indication to the
contrary in the Oral Proceedings. And the Applicants stress here, in
this very passage, that they "have not found it necessary and do not
find it necessary to controvert any such avcrments of fact".
Similarly, Mr. President, in the next record, at IX, page 43, the Ap
plicants refer to their pleadings in which now all averments of fact in
Respondent's pleadings are incorporated by reference.
So nothing could really be clearer than what we had at that stage.
Then we came to the stage where the Applicants dealt later with
militarization and annexation, and they referred to "the facts ... as
disputcd by Respondent and as subsequently accepted by the Applicants
for purposes of these proceedings" (IX, p. 235)-a very clear, a very fair
description of exactly what it meanf bcfore.
This clear and common understanding between the Parties, Mr. Presi
dent, as to what had been admitted, remained unchanged even on
8 October. On that date, with the presentation of the evidence of Mr.
Dahlmann, mv learned friend, l\fr.Muller, referred to lettcrs bv peti
tioners quoted'in Book VIII of the Counter-l\femorial, IV, as "documents
which have been admitted by the Applicants". That is at XI, page 459.
He also referred to them as "letters which are before the Court and
have bcen admitted". That is at page 461 of the samc record.
Although my learned friend, I\fr.Gross, made frequent objections
about the evidence and aspects of the cvidcncc, he at no stage disputed
that he had indeed admittcd these lettcrs. lndeed, Mr. President, at
page 468 of that record there occurs a passage where my learned friend.
)fr. Gross, could not find the relevant passage in the Counter-Memorial.
and there was then a discussion betwcen the President, Mr. Muller and
Mr. Gross, which concluded as follows:
"l\fr.MuLLER: The witness is quoting from the letter itself.
Mr. GRoss: And that is in evidence, is it Mr. President?
Mr. l\luLLER: The whole letter has been handed in and the whole
lettcr has been admitted.
Mr. GRoss: Thank you, Sir."
So, even at that stage, Mr. President, the Applicants accepted com
pletely that they had aclmitted ail the facts in the Respondent's pleadings,
something which one could hardly imagine they would evcr deny, as
they apparently now appear to do.
Now, after the conclusion of our prescntation, the Applicants refer to
their "so-called admissions". And it is intcresting to note how they at
tempt, Mr. President, with the greatest respect, to slither out of this
situation which they now realize has very dangerous implications for
them. They start off by referring to a contention of theirs in the Reply,
IV, at page 260, that "the decisively relevant facts concerning Appli
cants' Submissions 3 and 4 arc undisputed". And, they say, this con
tention has been maintained ever sincc. The Applicants say, in thîs
record:
"I refer to the misunderstanding, or the apparent misunderstand
ing, ofthe Respondent with respect to the actual significance of the
Applicants' contention which was made in the Reply, IV, page 260,
and ever since maintained, that-' ... the decisively relevant facts COM'.\ŒNT BY '.\1R. DE VILLIERS 417
concerning Applicants' Submissions 3 and 4 are undisputed'."
(Supra, pp. 354-355.)
lllr. President, we never spoke about this passage in the Reply. \Ve
were ta1king about the later admissions in the Oral Proceedings which
I have just read out to the Court, against their background of context.
But, to that, the Applicants never rcfcr in their comment. They refer to
this passage in the Reply, a passage which was indeed concerned, not
with admissions made by the Applicants, but with admissions made by
the Respondent. This appears very clearly from that passage in the Reply
as a whole, at page 26o, IV, and even more clearly at the repetition in
somewhat different words, at page 262, IV, I think I might read hoth.
"Notwithstanding the voluminous detail with which the Counter-
1Iemorial is cncumbered, the decisively relevant facts concerning
Applicants' Submissions 3 and 4 are undisputed.
It is possible, nevertheless, that the central issue, viz., the charac
ter and consequences of the policy of apartheid, or 'separate develop
rnent' (in Rcspondent's prescntly preferred usage) may be lost to
sight in a haze of irrelevant particulars." (IV, p. 260.)
Proceeding to page 262, IV, Mr. President:
"The decisively relevant facts concerning Respondent's policies
and objectives, relied upon by Applicants in support of their Sub
missions with regard to Article 2, paragraph 2, of the Mandate, are
undisputed. The doctrine of apartheid or, in the phrase of Respon
dent's currently preferred usage, 'separate development' emerges
from Respondent's own formulations of that policy, as set out in
excerpts drawn below from the Counter-Memorial, passim, as wcll
as from public statements of Respondent's highest officiais." (/bid.,
pp. 262-263.)
llfr. President, they could hardly have made it clcarer that they were
speaking here of facts relied upon by the Applicants in support of their
submission, and thcy speak of those as being adrnitted and confirmcd by
Respondent in these various sources of which they speak.
It has always bcen the Applicants' contention that ail relevant facts
for the purposes of their theory of the case-or their case as now pre
sented-are aclmitted by the Responclent. That they have always said.
But that contention in no way bcars npon the completely clifferent ques
tion, namely what facts did the Applicants admit? And the answer to
that question is: they adrnitted explicitly all the facts in the Rcspon
dent's voluminous plcadings. They macle one exception only, the one
to which I refcrred some days aga concerning the representative capa
city in which they appear in this Court and political mqtivation of the
campaign of the group of States on whose behalf they appear. That was
the onlv one that I could recall and that we could find. That was isolated
for purposes of a clenial.
ln their comment on the eviclencc, Mr. President, the Applicants now
quote only their contentions rcgarding admission by Respondent of the
facts relevant to the Applicants' case, in purportcd substantiation of
a contention that the Applicants have only admitted such of the Re
spondent's averments as the Applicants regard as relevant. That is the
way in which they now put it.They now suggest a!J they have admitted
are those facts which they regard as relevant and nothing else. They
state that in this form at page 357, sitpra: SOUTH WEST AFRICA
"A so-cal!ed 'admission of irrelevant facts' is a contradiction in
terms. If averments of fact are contended by a party to be irrelevant,
the question of admission or denial does not arise as a Iegal propo
sition."
Mr. President, really, words almost fail one in having to reply to such
a contention. Of course, if a court were to hold that the particular fact
is irrelevant, then it would not matter in the result whether that fact
was admitted or clenied. But it is an entirely different thing to say that
a party cannot admit a fact which that party contencls to be irrelevant.
lndeed, Mr. President, that is the very form in which the first, more
limited, admission was made; without any admission or with reserva
tion of right as to the question of relevance, the facts are admitted.
Mr. President, a party is often much more reacly to admit facts which
it regards as irrelevant to the particular case than it would be to admit
facts which it regards as highly relevant to its particular view of the
case. Indeed there are stages of the record where the Applicants stated
specifically as the reason why they had admitted the Respondent's facts,
or denials of facts, that the Applicants regarded those statements or
denials as irrelevant. They gave that as the very reason why they admit
ted the facts. That appears in the record, at IX, page 2r:
"Ail facts set forth in this record, which upon the Appiicants'
theory of the case are relevant toits contentions of law,are undispu ted.
There have been certain immaterial, in our submission, allegations
of facts, data or other matcrials which have been contraverted
by the Respondent and such contraversion has been accepted by
the Applicants and those facts are not relied upon."
To conclude, then, Mr. President, on this aspect, the Applicants quote
passages dealing with what they contend was admitted by Respondent
and they pretend that these passages define what was admitted by the
Applicants. This, in our submission, with the greatest respect, was not
only dishonest, it was also absurd. It would mean that the Applicants
only admitted facts which the Respondent had admitted, or, in other
words, that the Applicants admitted only the facts which they them
selves had initially alleged as the facts on which they rely for their theory
of the case. The lengths to which the Applicants had to go in this respect,
Mr. President, illustrate, in our submission, the inescapable corner in
which they find themselves at this stage of the proceedings.
I proceed to deal with another general point which the Applicants
mentioned in their comment, and that was in regard to our contentfon
that the views of alleged authorities, read at some length into the record
by the Applicants to witnesses under cross-examination, did not per se
become evidence. The Court will remember that I dealt with that point
in the verbatim record of r November, at page 220, supra.
This is the way in which the Applicants referred to this argument on
9 November, at pages 357-359, supra-they deal with it over those pages
-and on page 358, supra, they say that our argument-
"... seems to boil clown to the proposition that in deliberating the
credibility or weight properly to be assigncd by the Court to the
views or opinions of experts, or in assessing their possible bias or
prejudice, the Court should not take into account their expressions
of agreement or disagreement with views of recognized scholarly
authority with which they may be confronted ... ". COMMENT BY MR. DE VILLIERS
Of course, l\Ir. President, that imputes to us a contention that we never
advanced. \Ve never suggested that it was not permissible for Applicants
or for anybody cross-examining a witness or an expert to put views of
others to the witness or the expert in order to test his credibility or pos
sible bias.That, of course, is always permissible, and we never suggested
anything to the contrary. \Ve merely said that those views, read at such
extraordinary length in this case to those witnesses, often not followed
up by a question that dealt with the whole of the passage, would not in
themselves become evidence in the true sense of the word-in other
words, evidence of the truth or the correctness of those views. Obviously
if an expert agrees with a view of somebody else which is put to him
in cross-examination, then that vicw does become evidence, not
because it has been expressed by somebody else, but because this
man who is now standing in the box makes it evidence by agreeing
with it and, therefore, indicatin~ that that is also his own v1ew. But if
the expert disagrees with the v1ew put to him, then such a view does
obviously not become evidcnce in the sense that there are now two con
flicting views on record which must be weighed by the Court-the other
one is not a view to be weighed at all; the only relevance of the opera
tion isto sec whether the expert agrees or not; if he does not agree, there
may be features in the way in which he answers, in his demeanour, or in
other circurnstances which may afford the Court sorne guidance as to
what weight is to be attached to his evidence, but that is all.
In passing, Mr. President, we may point out that in the context under
consideration the Applicants referred to " ... the views of recognized
authorities read by the Applicants to Respondent's experts ... "-we
find that in the verbatim record, of 9 Novernber 1965, at page 358, supra.
And in speaking of alleged bias on the part of Professor van den Haag the
Appllcants also said that he questioned the motives of "... some of his
most highly respected contemporaries in the same field". (Ibid.)
Now, Mr. President, the experts which we called had to qualify as
experts, but it seems that the authors and others to whom the Applicants
refer in cross-examination become experts or recognized authorities
merely by reason of the fact that the Applicants happen to cite their
views. or because the Applicants attribute that quality to them. Sorne
of them may well be experts or "highly respected conternporaries" in a
particular field, but, Mr. President, that is not something which we know
on the record as it stands. It suffices to say that the Respondent does not
concede that al! the persons whose views were put by the Applicants to
the Respondent's witnesses, are indeed experts or recognized authori
ties.
The Applicants in this respect also relied on cases which were cited
in the 1964 supplement to Wigmore on Evidence, Volume VI, pages
9-10. They relied on those for the proposition that there is an increasing
tendency on the part of some municipal courts "... to enlarge or to
expand previous practice, so as to permit the procedures followed by the
Applicants in cross-examination of the experts presented in these pro
ceedings ... "-that is in the same record, at page 359, supra.
Now, ~lr. President, wc have looked at these pages of the supplement.
They refer to pages 17-19 of the main work, Volume VI, where it is stated
that according to the general practice in the United States it is inadmis
sible for any purpose to read to an expert in cross-examination views
of other persons-a very rigid view of the general practice in the United420 SOUTH WEST AFRICA.
States in this respect-a rigid view, of course, which we never adopted
in this case. The cases in the supplement merely show that the present
trend in the United States, although by no means in all the states, is to
relax this rigid tendency by allowing such a procedure for the purpose
of attacking the witness· credibility or showing possible bias. But the
cases, it is intcresting to note, cited at pageII of the supplement make
it clear that, even for this limited purpose, the procedure is impermis
sible unlcss the authoritativeness of the view put to the expert is recog
nized by him or has been cstablished by other direct cvidence.
l\IrPresident, I may just in passing say that the attack which the
Applicants made on this basis and on other bases upon the credibility
or upon the weight to be attached to the evidence of some of our witnes
ses has been shown to be entirelv without substance. For instance, the
Applicants attacked Professor van den Haag as having shown bias
we submit that that was cntirely without merit. They quoted to Pro
fessor van den Haag views of others in his field, who had also partici
pated in some way in the earlier court proceedings in the United States,
to which reference was made and to which Professor van den Haag had,
indeed, previously referred in his evidence, but which, he had indicated,
were expressions of view, and that in no instances did they rest upon
practical expcrimentation or clinical work with one exception-that
being the case of Professor Clark. And in the case of Professor Clark,
Professor van den Haag, for the reasons which he gave to the Court,
considered that the Professor had failed in the professional standards
that would be cxpected of him, and his condemnation of him was some
what harsh, as one might perhaps undcrstand but it certainly did not
display any bias a~ far as the subject-matter before the Court was con
cerned.
Equally, in the case of Professor Possony-perhaps even more strongly
so-we find that a completely unfounded basis is suggested for attacking
his credibility. The Applicants say in the record, at page 350, supra, that
as they sought to bring out in cross-cxamination of this witncss-
"... the relevance, weight and credibility of all opinions clicited
by the Respondent from Professor Possony as an expert ail hinged
upon an understanding of the witness concerning the truc nature,
content and scope of the Applicants' legal theory of its case".
The Applicants then proceeded to attempt to make two points. The
first was, and I quote from the same page:
"... the witness found it necessarv to seek to validate and make
relevant [to] his testimony by means of a legal argument of his
own concerning the legal basis of the Applicants' case".
Mr. President, the Court will recall of course that that is not a correct
version ofwhat transpired in Court.
During the evidcnce-in-chief of Professor Possony he was questioned
by my learned friend, Mr. ~Iuller, as to whether a norm such as contendcd
for by the Applicants was observed in the usage and practice of States.
And then came your suggestion, Mr. President, that the definition of the
norm, as set out at page 493, IV, of the Reply, should be read to Profes
sor Possony, and that was done-that was the verbatim record, at XI,
page 662.
After that had been done, Professor Possony then answered that
"... there is no such norm". That is at the same page. COMMENT BY MR. DE VILLIERS 421
During cross-examination on 20 October, my leamed friend, ~Ir.Gross,
repeatcdly put questions regarding this witness's understanding of the
definition at page 493, IV-this you will find at pages 3-5, 7, 8 and II,
supra. And this was adverted to again on 21 October, still under cross
examination, and it was then that the witness repeatcd his under
standing of the definition at page 493, IV, and he gave reasons for that
understanding-that is in the verbatim record, at pages 36-38, supra.
There was no question of the witncss seeking to validate and to make
relevant his testimony by means of a legal argument of his own concern
ing the legal basis of the Applicants' case.
[Public hearing of I5 November 1965}
Mr. President, at the adjournment on Friday I was dealing with
certain criticism which had been offered in regard to the evidence of some
of our witnesses and experts by my learned friend, !\Ir. Gross, in his
comment on behalf of the Applicants. With regard to Professer Possony
the first suggestion was that his evidence as to the practice of States had
proceecled upon a wrong or improper interpretation of the norm or
standards relied upon by the Applicants. We have shown, with sub
mission, that that suggestion was without substance.
The other suggested point of criticism one found in the verbatim
record at page 351, supra. There the Applicants say that Professor
Possony referred to the Draft Convention on the Elimination of aJl forms
of Racial Discrimination, and they then procecd:
"The purport of Professor Possony's testimony in this regard
appeared to be that theDraft Convention, or its underlying premises,
were, in his words 'out of line with the spirit of the Charter' (supra,
p. 38). Such a view-if it is indeed a fair rendering of his testimony
as it seems to bc-would, in the Applicants' submission, go far to
diminish or dismiss the crcdibility and weight of his testimony as an
ex.Pert in regard to international standards relating to racial dis
crimination, as we!I as to the sources from which those standards
are derived and of which they are comprised."
Mr. President, this rendering of what Profcssor Possony said is in fact
exactly the opposite of what he said, and how this could possibly be
suggested as appearing to be a fair rendering of his testimony I do not,
with respect, understand. What Professor Possony said is to be found at
page 38, supra:
"But then when we go to the declaration or the convention against
racial discrimination, then specifically the allegation would be that
those fonns of-I am using the tenn here as used in the declaration
discrimination which are based on, or reflect, or aim at racial hatred,
racial superiority or generally speaking, involve oppression and
genocide, those forms of distinguishing-if that be the word-are
absolutely out of line with the spirit of the Charter. I do not think
there is any question about that."
So, what is said to be out of Iine with théspirit of the Charter is not this
Draft Convention, but those very things which are condemned in the
Convention, and itis really incredible, in my submission, how simple and
clear Ianguage could be so badly mjsrepresented, and then used as a422 SOUTH WEST AFRICA
basis for sug~ested discrediting of a witness. We submit that Professor
Possony in h1s evidence makes it clear that in his opinion the object of
the Draft Convention and the Draft Convention itself were entirely in
line with the Charter, and that this whole form of attack upon the
credibility of the witness falls to the ground. Professor Possony, in my
submission, was a most impressive witness and he showed on the basis of
the actual practice of States that there is no ground whatsoever for the
suggestion of the existence of a norm and/or standards as relied upon by
the Applicants.
We corne to dealing with the Applicants' comment on the contents of
the testimony of the various witnesses. \Ve have shown that the Appli
cants' complaint is now restricted to: "The impact of Respondent's
racially discriminatory policy upon individuals in particular circum
stances, and through particular measures ... " That we find at page 360,
supra. I have now brought in those words which I Jeft out before
racially discriminatory policy. Indeed one finds, Mr. President, in this
explanation which is a key one in the comment of the Applicants, that
there are apparently two elcments upon which the Applicants rely in
this new formulation.
They seem to rely either on one or on the other, or on both. The one is
the element of so-called racial discrimination, and the other is the element
of the impact of the policy upon individuals. Now, as a basis for analysing
or replying to the Applicants' comment upon the testimony of the wit
nesses, let us just have a brief furthcr look at both these elements,
starting for convenicnce with the second-the impact upon individuals
a matter with which I already largely dealt on Friday, and what I need
now say aboutit need not repeat the whole of that analysis; jtis merely
offered very briefly by way of recapitulation. As we have noted, this is a
very strange form of complaint. The Applicants are not concerned with
the over-all effect of the policy as a whole upon particular individuals,
nor are they concerned with the effect of particular measures upon the
over-all well-being of everybody. They are only, in their own words,
"concerned with the effect of the policy through particular measures upon
individuals in particular circumstances". Now, this form of complaint as
we have analysed it before is, in our submission, completely alien to the
Mandate. Article 22 of the Covenant refers to: "... the principle that the
well-being and development of ... peoples form a sacred trust of civiliza
tion ... " (1,p.200.) The word "pcoples" in this context clearly does not
mean, as the Applicants say in the Reply IV, at page 275, "the individual
inhabitants comprising the population". It clearly means national or
ethnie groups.
It could never have been the intention of the mandate system that a
mandatory would be required to jeopardize or to disregard the interests
of the preponderant number of the inhabitants merely for the sake of
preventing harm to a few individuals. This conclusion follows not only
from the wording of Article 22 of the Covenant, it follows also from the
crucfal provision in Article 2, paragraph 2,of the Mandate giving effect
to the sacred trust principle which requires the mandatory to promote
the well-being anct the progress of the inhabitants of the Territory,
without exception. In other words, the inhabitants as a whole were to be
Iooked upon as the persons to be benefited by this sacred trust, and again,
it would have been a strange concept to suggest that the manda tory was
to disregard the over-all benefit of the large majority-the preponderant COMMENT BY MR. DE VILLIERS
number-of the population, merely for the sake of preventing harm to a
few individua1s.
That, then, is as far as the intent of the mandate system is concerned.
But, ~Ir. President, in our submission, such a canon of government is
also entirely unknown in the practice of States as well as in the delibera
tions and decisions of international bodies and conferences relied upon
by the Applicants as alleged sources of their suggested norm and/or
standards. Even on the record, incomplete as it is, with a view to invcS·
tigabng a suggestion of thfa kind, it is clear as we have shown, that there
are in actual practice many recognized distinctions between groups,
racial or otherwise, which necessarily involve some detriment to indi
viduals. It is incleed unthinkable that there could be any rule which
would result in a measure being regarded as objectionable merely
because some individuals are harmed in some way. without having
regard to the over.all effect or purpose of the measure or of the policv
of which the measure forms a part. ,
\Ve have not found examples of anything of that kind anywhere in the
practice of States, and Professor Possony's evidence has clearly shown
such a large body of practice to the contrary. And as regards the alleged
sources of the norm or the standards, the Applicants have not been able
to refer to a single instance, to a single conference, to a single resolution
of an international body or assembly, where such an artificial concept
has been designated as a basis for regarding a measure as impermissible.
There is indeed none whatsoever anywhere in the deliberations of the
bodies relied upon.
That then is as far as the element of impact upon individuals is con
cerned. In discussing that impact I used the neutral word "distinctions"
between groups, racial and otherwise. And that brings us to the other
element, apparently now relied upon by the Applicants in the present
formulation of their complaint of racial discrimination. We have already
pointed out that if this were intended to mean un/air discrimination then
an enquiry into the accusation could not stop short at ostensible or
immediate or short.term effects of policies or measures upon individuals.
Unfair discrimination may be directed against individuals or it may be
directed against groups, and the unfaimess may lie in the motives of the
authority which discriminates, or it may lie in the results of the measure,
or it mav lie in a combination of these.
Save then for the rather unlikely case whcre there may be direct
evidence of improper motive, any such enquiry would, in our submission,
have to entai! a full examination of all the purposes and the effects of the
measure, before any reliable inferences could be drawn. In particular,
Mr. President, the enquiry would have to include actual, long·term and
over·all effects of the measure or the policy, as distinct merely from
illusory or short-term ones affecting particular individuals.
The Applicants, as we have demonstrated, have foresworn such an
enquiry into over·aII effect, and they speak on1y and exclusively of the
so.called perse effect of the measures upon individuals and not upon the
community as a whole or upon the population as a whole.
Itis therefore evident, i\frPresident, that they are not speaking of a
racial discrimination in the sense of something unfair-something alleged
to be unfair-in one or other of the senses to which I have referred
indeed in one or other of the only senses in which one could speak of
unfair discrimination, whether towards individuals or towards the whole424 SOUTH WEST AFRICA
of a particular population or a particular population group. They are not
speaking of that, quite apart from the fact that it would not be competent
for them to do so under the subrnissions as they stand. Consequently, we
find confirmation for the fact that racial discrimination, even as now
used by them, could at most mean distinction in the allotment of rights
and so forth, upon the basis of membership in a racial group. The group,
then, would have to be a racial group, because the concept is now racial
discrimination, but discrimination would still be the equivalent of dis
tinction in the sphcre of a1!9tment of rights and obligations.
And as we have shown, l\Ir. President, neithcr the practice of States,
nor the sources relicd upon by the Applicants, support their contention
as to the existence of a norm or standards prohibiting such distinctions
perse. But, Mr. President, when we look at the whole of the Applicants'
comment of 9 and IO November, we find that there is a strong suggestion
of a further element of artificiality which reduces this whole concept of
racial discrimination relied upon by the Applicants to an extrcme of
absurdity. I say that would appear to be the suggestion, because it is
nowhere stated explicitly, but there are very strong grounds why we say
that that seems to be the suggestion. The suggestion would appear to be
that, in the Applicants' usage, the concept of "racial discrimination"
applies only as betwccn White and non-White persans, and then, also,
only in one direction, namely when the distinguishing measure is sitch that
its immediate efject is to protect the interests of White persans vis-à-vis
non-White persans. That appears to be the sense-thc sole and exclusive
sense-in which the Applicants speak of racial discrimination. Apparen tly,
only when a measure cornes to fall in this category then it is impermis
sible racial discrimination, othenvise not.
When a distinguishing measure has an opposite immediate effect,
protecting the interests of non-White pcrsons vis-à-vis White persans, or
when it is concerned with members of non-\Vhite groups inter se, then,
apparently, it is not affected by this most recent version of the Appli
cants' norms or standards.
As I have said, the Applicants have nowhere said it explicitly, but I
could mention to the Court some of the factors which would appear to
indicate very strongly that this would seem to be what the Applicants
are suggesting. Th,~first factor is that the Applicants nowhere complain
of differcntiation ofthe last kinds that I have mentioned, in favour of
non-\Vhite persons vis-à-vis White persons, or as amongst non-White
persons inter se. They nowhere complain of that form of distinction, of
which there is plenty in South West Africa, as constituting racial dis
crimination. They specifically mention some forms of that kind of dif
ferentiation as being permissible, in their contemplation. I have rcferred
the Court to what they said in the record at page 350, supra, where they
referred to the reservation of Native land rights, to the control of move
ment, particular1y influx into cities, and to the protection and develop
ment of traditional institutions, whcre they refer to ail those apparently
as being permissible.
They seem to suggest, Mr. President, that measures of that kind are
to be seen in general as being in the nature of protection, and therefore as
being permissible. They speak in that vein not only in regard to. South
West Africa-we find that at page 350, supra-but they speak 111that
vein also, in general, of the practice of States, at pages 352-353, supra.And
then, in contrast to this, we find passages such as the following, which I COMMENT BY MR. DE VILLIERS
quote by way of example (this is in the same record, at page 350, supra):
"Professor Logan made no mention at all of laws and regulations
or of Respondent's official methods and measures for effectuating
such laws, which impose limitations upon economic advancement
on a racial basis, or totally deny franchise on a racial basis, or place
obstacles on a purely racial basis in the way of achievement of
engineering, scientific or professional skills, or preclude on a racial
basis rights of association or collective bargaining.
Professor Logan, in his response, made no reference to these dis
criminatory laws which comprise the policy of apartheid."
In other words, l\Ir. President, where there is an exclusion of measures
not regarded as discrimination, but regarded as protection, and where
there is now, by way of contrast, an enumeration or illustration of
measures which are to be regarded as racial discrimination, we find this
distinction, namelywhen the measure opera tes infavour ofanon-White it is
in order; wherc it operates in favour of \\'hites it is racial discrimination.
At pages 352-353, supra, by way of contrast to speaking of protective
measurcs in the practice of States, we find this passage:
". . . Respondent neither through Professor van den Haag, nor
through any other witness, offered evidence-nor is there any such
evidence to be found-tending to show that racial discrimination
could promote moral well-being or social progress in any human
context".
And again at page 353, supra, we find this passage:
"... constitutional practice in the United States, as in most other
civilized countries, interdicted official racial discrimination".
Now, Mr. President, in regard to bath of these passages, we did point
to a number of instances wherc distinctions were drawn between groups
which on any classification can be called "racial groups"; but apparently
those are ignored because thcy do not constitute this peculiar concept of
racial discrimination which operates only when the short-term or imme
diate effect would appear to be to favour Europeans or to protect the
European interests vis-à-vis non-White interests.
If we take the case of constitutional practice in the United States as a
ready example, we cited the example in evidence and in argument of the
protection of the rights of the Indians in their Rcservations, but ap
parently it is said that that constitutional practicc does not constitute
official racial discrimination.
In general, i\1.r.President, we find that, in discussing the evidence on
South West Africa, the Applicants concentrated entirely on aspects of
this White/non-White relat10nship, and then in one sector only, namely
the "'hite sector, to the exclusion of anything else. The Jaws and so
forth which were designed to protect interests of the \Vhite group in this
sector-those alone, came under fire as "racial discrimination" and as
"the essentially racist perspective which uniquely marks apartheid".
Those were the words used in the record at page 360, sitpra.
So can it rcally be, Mr. President, that the Applicants, although not
saying so explicitly, are by suggestion advancing this (suggested) norm or
(such suggested) standards to this Court? If that should be so, alJ I need
say is that there is no support whatsoever for such an artificial concept, SOUTH \VEST AFRICA
either from the sources relied upon by the Applicants for their norm or
standards, or from the practicc of States.
As regards the sources, the position is quite obvious: I need hardly
enlarge upon it. There may well have been political talk from time to
time which would appear to have suggested that it might be permissible
to discriminate or distinguish in favour of non-White groups but not in
favour of White groups, but nobody, Mr. President, has ever corne
forward at any international gathering, or on any occasion that I am
awarc of. to suggest or propose seriously that such a norm or a standard
is to be accepted by any international body or conference as one being,
or purporting to be, binding internationally and generally speaking.
There is no source whatsoever upon which the Applicants could possibly
rely for such an artificial concept.
And then in regard to the practice of States, there is no relevant
practice which can be referred to as constituting or indicating an ac
knowledgment of an obligation to conform to such a suggested norm or
a standard. Particularly, Mr. President, if we look at the situation of
States with populations which are either exclusively or overwhelmingly
European or \Vhite. one finds no relevant practice there upon which my
learned friends could rely, because, and for the simple reason, that the
problem of a \Vhite group which may need protection vis-à-vis non-White
groups or persons, does not arise in such countries. That is so in genera1
if we look at the situation all over Europe, in Northern America, the
United States, Canada, in the case of Australia, New Zealand and so
forth-the situation is as I have described it for one of two reasons:
either because non-White persons do not offer themselves in large
numbers as immigrants in such countries, or bccause the number of
potential non-\Vhite immigrants is limited in such countries, either by
immigration laws or by stringent requirements about standards of civ1-
lization before they are admitted as citizens or the like. That is the
situation in al! these cases, and therefore there is no relevant aspect of
State practice to which one coulcl point and say that even in circum
stances where, as a matter of fact, it is obvious that a \Vhite group may
be in need of protection as a group against possible genocide, upon
possible flooding of its standards by non-\Vhite groups in its vicinity.
it could be said that it must necessarily be impermissible racial dis
crimination if any measures of protection are offered to that \Vhite
group. There is no practice anywhere in the world to which one could
point as being relevant in this respect.
There is only one aspect which is in a sense relevant, but that does
not operate in the Applicants' favour; it opera tes strongly in favour of
the Respondent's contention, and that is, the whole international prac
tice and regime in regard to the minorities treaties. That practice and
regùne certainly showed, Mr. President, that protection is not necessarily
required only by an under-developed or a Jess developed group, but that
there are circumstances where the minority group in need of protection
may well be a group standing at an equally advanced stage of develop
ment as, or a more advanced stage of development than, the rest of the
population, against which the protection is needed. ·
On the admitted and undisputed facts before the Court with regard to
South West Africa, the situation in South West Africa is exactlv that
both the most advanced groups in the Territory and the least ad,;anced
groups in the Territory are minority groups in practical need of protec- COMMENT BY MR. DE VILLIERS 427
tion; the most advanced groups being the White, the Coloured and the
Baster groups, and the least advanced groups being the Bushmen, the
Himba and the Tjimba. Those facts are facts; they are dealt with
extensivcly in the record and in the plcadings. They have been dealt
with by each and every one of the expert witnesses who have shown
that they are incontrovertible facts.
It would, therefore, Mr. President, be a very strange norm, or very
strange standard, which ordained that such protection is to be regarded
per seas impermissible racial discrimination.
It is because of fondamental errors in perspective that one finds that
the Applicants' comment on detailed aspects of the evidence also Ieads
them to results which are absülutely far-fetched and, in our submission,
absurd and completely in conflict with what has been accepted and what
has been established asincontrovertible fact in this case. The fondamental
error of perspective in the Applicants' comment lies in their disregard of
the basic aspects of the circumstances of the Territory. We have been
over these several times and I need not go into any detail about them,
but for purposes of showing this warped perspective I must refer to them
very briefly again.
There arc a number of separate groups in South West Africa, largely
living in different regions of the Territory. The groups differ widely
from one another. They maintain different institutions; they are at
different stages of dcvelopmcnt; they regard ~hemsclves as being differ
ent from one another in important respects and thcy "'ish to retain
their separate identities. There are certain types of contact between
those groups which would leacl to friction and have done soin the past,
in history. In particular, it bas been establîshed and it forms part of
the incontrovertible record of fact in this case that any attempt to
force these groups into a single political entity would result in chaos-in
anarchy or in despotism. We dealt in respect to this particular problem,
specifically with the position of the White group, bccause of the con
centration on that aspect in the Applicants' attack and in the attack
which has been made upon Respondent's policies at the United Nations.
We demonstrated that they had a right to be there. \Ve demonstrated
what harm would result to the whole community if it were not made
possible for them to remain in South West Africa. We demonstrated
how attempted integration would prevent their remaining on in South
West Africa under circumstances where they feel that they could rcmain
on there and where they could still make the contribution which they
are making at this stage. We have demonstrated that such attempted
integration would have these consequences, whether that attempt were
of an immediate or graduai nature.
\Ve have demonstrated also, l\lr. President, that in the case of the
other groups, self-determination on a basis of integration of all these
into one community must necessarily mean the denial of self-determina
tion for others. Ifone applics a simple majority concept over the whole
of the Territory~if one ignores the facts of the different groups with
group identities existing within the Territory-then one arrives at a
result where the minority groups are denied the self-determination to
wlùch they are entitled. Therefore, in these circumstances, there is an
established need for a carefolly checked and balanced system of protected
rights and interests for each group. That has been the essence of the
Respondent's demonstrations on the pleadings, of which al! the facts SOUTH WEST AFRICA
are accepted. That has been the essence of the demonstration of each
and every one of the witnesses who have appeared before this Court.
The Applicants have made no attempt whatsoever to impugn or to
controvert this mass of material. It ail stands unchallenged. Therefore,
ifthey had now corne along and said: we wish to attack certain measures
in Respondent's policies because of the effect which they have upon
individual persons-then they should have taken these basic incontro
vertible facts as their prernise--as their point of departure. That is the
only permissible basis upon which it could happen at this stage of the
proceedings. Then, of course, all that would have been open to them,
would have been to say: the Respondent's policies in general, as regards
their general purport and their general direction, are perfectly permis
sible (that is on the established tacts the only course that one could
adopt in these circumstances). But we stiU say that individual measures
within that system should not be there for this, that or the other reason,
(whatever criterion in law they want to propose as to why individual
measures should be declared impermissible). That, as a question of fact,
quite apart now from the way in which the issues have bccn defined
-that would really have been the only course now open to them. But
that is not what they do. They offer comment which appears to proceed
from an assumption (which has never been established), that the con
trary premise is a good one, namely that integration in South West
Africa is both possible and desirable. In the course of this we find that
they pay lip service to the factor of the importance of group personality.
They do say, at pages 348-349, supra-repeating something they had said
in the course of Professor Manning's evidence-that they admit that
group personality is important-that it matters-but that the relevance
of that testimony to the circurnstances of this case is not apparent to
them.
Surely, Mr. President, in the light of the demonstration to which
I have just referred-in the light of the need to have this carefully
checked and balanced system-how can they possibly say that they
cannot see the importance or the relevance of group personality in the
whole situation in South West Africa and the impact which that has
upon the appropriate policies to be adopted?
They are not evcn consistent in apparently assuming that integration
is possible and desirable. They nowhere go the whole hog with this and
try to analyse what would be the consequences of it whcn applied ail
over South West Africa. They are concerned only with the aspect of
protection of the interests of the White cornmunity. This one aspect of
a whole total system of checks and balances is isolated from its context
and is now looked upon in isolation, and all the measures which are
directed to the end of protection of the interests of the White community
where regarded as necessary, are branded and condemned as racial dis
crimination. Their comment isdirected on!y at demonstrating the sup
posed plight of the non-White, particularly the Native who is not taken
up in the White society or the \Vhite economy. In this respect, therefore,
they appear to suggest that a policy of integration is to be enforced,
regardless of what the admitted and the established consequences would
be on the situation as a whole in the Territorv.
When one sees this background, then of course it becomes perfectly
plain and understandable that the Applicants would disregard circum
stances in the Territory as a whole and that they would concentrate CO~iMENT BY ~rn. DE VILLIERS
only on the position of individual non-White persans, particularly Na
tives within the Police Zone. This is indced what they did, although
they sometimes pretended to do more, as I shall point out. But this
process of concentrating within these narrow, isolated limits had of
course started during their cross-examination of witnesses, when wit
nesses were discouraged from wandering beyond the limits of that portion
of the Police Zone which was situated outside the Reserves and outside
Native townships. lt is in this context, I may say at once, that a witness
like Mr. Cillie spoke of certain piffiing suggcsted effects upon individuals
being blown up into something beyond thcir importance-when taken
into account in the total perspective of the issues reaJJy at stake here
in regard to the well-being and progress of all the peoplcs of South
West Africa. It is in that context that ~lr. Ciltie used that language.
It is in that context that I spoke-my leamed friend says disparagingly
-of lines of cross-examination which concentrated on the situation of
the Natives who live, work and will die in the Police Zone. I did not
speak disparagingly of the situation of the individual or of his interests
or of his aspirations, or of his circumstances of life. What I spokc about
was the Jack of perspective in the argument which concentratcd on that
aspect of the situation and blew it up into something quite beyond its
truc significance.
Against this background it will be understandable that the Applicants'
comment on the evidence will lack perspective. It must necessarily do
so, and it is hardly necessary, therefore, for us to go into much detail
about this. I propose merely ta illustrate this theme with refercnce to
certain aspects of the comment. I shall not try to make my answer
exhaustive; it is not neccssary for our purpose.
Let us begin with this aspect of the suggestion of the "essentially
racist perspective which uniquely marks apartheid". That one finds on
page 360, supra. In rnaking a suggestion of that kind the Applicants
did not attempt to weigh what evidence thcre is on record. which either
enablcs one to say this, or does not enable one to say this-what evidence
there is which bears upon the question whether apartheid has an essen
tially racist perspectiveor not. If they had tried to have regard to what
evidcnce there was, thcy must sureiy have noticed the evidencc of
Dr. Eiselen at X, page 96 where he emphasized that in Southern Africa
we are dealing with a "multi-community" problem, and I use-his words,
and "whilc these pcoples are also different in race, the race is not of
great concern to us". Dr. Eiselen was speaking specifically of South
Africa, but in the context it was clear that his remarks were of general
application also to the problems in South West Africa. He emphasized
that the factor of race was not of concern and he explained why that
was so-why race was not regarded as being of importance-the impor
tant emphasis fell all the time upon the multi-community problem-the
number of different groups, the number of different national entities
that were formed, and their relationship with one another.
I should like to refer the Court also to the Counter-Memorial, where,
in the vicinity of page 468, II, and the pages which follow. we cite quite
extensively from varions addresses by the Prime Minister of South Africa,
Dr. Verwoerd, where he expounds the basic essentials of the policy of
separate development. ;\frPresident, in evcry case one finds that the
emphasis falls on group, nationality-on the need for recognizing the
difterent national cntities, and on the difficulties which corne about430 SOUTH WEST AFRICA
when that is not done. There are these particular quotations at page
468, Il, to which I would refer the Court:
"Diffi.culties arise where the founders [that is of new States in
Africa] try to throw together in one State more than one national
community. \Vhenever account has been taken of national entities
when creating new States, contentment has been the result."
ln reverting to South Africa, the Prime Minister stated:
"It is as unlikely that it will be possible to hold together the
Whites and the Bantu in peace and free of strife in one multi-racial
unit as it is to do soin the case of Black nations in other parts of
Africa or as itis to throw together Xhosa, Basuto and Zulu without
confüct into one communal entity. They too are just as proud of
their own national identity as we as Whites are of our national
identity ...
Any attempt to force different communities into one national
entity will never succeed. Suppression will be possible but never
co-operation between separate groups who desire to remain sepa
rate.''
That, Mr. President, is what one might call the sociological aspect of
the matter, not the racial aspect of the matter. That is what one finds
to be the basic emphasis in the Respondent's policies.
The same emerges. 1\Ir. President, from a factor of which my learned
friend, Mr. Gross, made great play at varions stages of his address to
the Court, and that is what he called the Respondent's census classifica
tion. The Court will recall this comment of his, in the verbatim record
at page 360, supra: " ... the individual person is classified and his
rights and burdens are irrevocably established on the basis of his race
or colour". And then, in the verbatim record, at page 373, supra, he
said:
"All of these persons categorized as 'Colo~reds'-including those
who, in the language of the census 'although in appearance are
obviously white, are generally accepted as Coloured persons'-pay
the inexorable price of their classification.''
Now, Mr. President, pcrhaps it was an omission on our part not to
have spoken of this matter before, but in a case involving such a measure
of detail some are sometimes lost sightof. This definition, and particularly
this aspect of it, "although in appearance are obviously White are
generally accepted as Coloured persons", really demonstrates exactly
the opposite of what my learned friend is contending for. It is, l must
admit, in that particular formulation rather clumsy draftsmanship, but
if one knows the background, and if one looks at what it really says,
then it becomes perfectly clear what the basic objectives are.
In South Africa we have had legislation for a long time providing
for separate institutions forative persons, Coloured persans, Europeans,
and so forth-schools, and other institutions of that kind. In earlier
legislation it often happened that those particular concepts-the Native,
Coloured person or a White or European person-were not especially
defined for the purposes of the Statute, and it then became necessary
for the courts, in cases of dispute, to decide what exact criterion was
to be adopted. In the course of extensive case law upon this subject, COMMENT BY MR. DE VILLIERS 43:r
the courts pointed out that there were various criteria that one could
apply: there was the criterion of a man's appearance; there was the
criterion of his descent; there was also the criterion of what I might
call his sociological acceptance-where is he acceptcd in society; does
he live amongst Coloured persons? Does he live amongst White persons;
does he live amongst Native persons; and is he accepted generally by
that community; does he identify himself with the particular community;
and is he accepted in that community as being one of their members?
The courts came to the conclusion that, on the whole, in the absence
of special statutory definition, although these factors of association and
appearance may be taken into account, when it came to an ultimate
dispute the ultimate deciding factor would have to be the factor of
racial descent.That, of course, as one can see, could in certain instances
lead to anomalous consequences and particular hardship upon an individ
ual and upon a family-a family having been accepted in a particular
conununity and then, because of an instance of admission to a school,
or something, having to delve into the past of that family and to sec,
purely and strictly upon a descent basis, where that family is to be
classified.t could, of course, in certain cases lead to hardship. As a
result, therefore, of this definition on the part of the courts, the practice
was generally adopted in South African Statutes-and also, of course,
applied to South West Africa-of having a special statutory definition
and making it clear that, although the factor of appearance could afford
prima facie guidance, the ultimate deciding factor was not going to be
the factor of race or descent but the ultimate deciding factor was to
be the sociological one of where the man identifies himself and where
is he accepted. And that is the census classification which we rcad at
page rog of the l\lemorial, 1, and it is just an example, taken from one
of the Statutes, of this type of definition, and the purpose is quite
evident from it when one takes the background into account.
J,.et us look at the definition of White persons:
"(a) Whites-Persons who in appearance obviously are, or who
are generally accepted as white persans. but excluding persons who,
although in appearance are obviously white, are generally accepted
as Coloured persons."
One could have refined that by saying rather "but excluding persons
who, although in appearance would seem to be white, are generally
accepted as Co!oured persons". But the general purport of it and the
intention of it are clear. The criterion of appearancc, in other words, is
prima facie accepted as designating that a person may be regarded as
a \Vhite person. But there may be instances where appearance could
be deceptive and where, in actual fact, that person is not accepted as
a \Vhite person-where he is accepted and where he identifies himself
as a member of the Coloured community. And so it could be the other
way round-wherc a person, if one were to look at his appearance alone,
would be pcrhaps darker than other persons who are identified as members
of the Coloured community, but. nevertheless, by reason of this test
of acceptance of identification, is gencrally regarded as a member of the
White community. And that is all that it means.
Therefore, also one finds in the case of Natives the definition is:
"Persons who in fact are, or who are generally accepted as members
of any aboriginal race or tribe of Africa." (I, p. ro9.)432 SOUTH WEST AFRICA
In the case of Asiatics, I may point out, the definition is purely
"Natives of Asia and their descendants".
And then it goes on, in the case of Coloureds-"All persons not included
in any of the three groups mentioned above". (Ibid.)
Kow, the case of Asiatics, in this total context, is also easily explained.
The basic test there is the test of descent: for a man who wishes to be
regarded as an Asiatic, he need merely point to his descent as an Asiatic,
and then he is regarded as such and notas a member of any of the other
groups. But where there has been an admixture, and particular!y where
there has been identification of a particular persan as a member of,
say, the Coloured community, or as a member of the White community,
then the definitions given in the cases of those other groups would see
toit that that man is then regarded as a member of that group.
So, .Mr.President, the whole system is one which places the emphasis
on sociological acceptancc and identification, and not on the factor of
race. It is nota mattcr of delving into a man's past and finding whether
by statutory definition he has a quarter or one-eighth per cent., or
whatever it might be (perhaps I should have said 25 per cent. or 12.5
per cent.) of a particular kind of blood. That is not the criterion. The
criterion isthat of sociological acceptance.
And therefore, Mr. President, also, although the classification is a
rigid one, as my 1earned friend correctly says, for the large number of
persons, it is not absolutely rigid for thosc persons who are somewhere
on the borderline. Itis quite possible for a person, pureiy by reason of
this aspect of acceptance, to find a change in his classification-that he
may by moving from one part of the country to the other-cases occur
of that kind-where he may bccome entirely identified and accepted in a
particular community, that is the end of it-he is then entitled to be
classified as bcing a member of that community.
\Ve also had occasion to point out that this ccnsus classification relied
upon at page rog of the Memorials, I, refcrs only to somc aspects of
classification. It does not stop short at a classification of Kati ves as a
group, because even for the census purposes one finds that the census
statu te goes further, and it provides that the census is to be taken on the
basis of home language, and home language then provides for a counting
forthe census of the \·arions different Native groups in South \Nest Africa.
That is why those statistics can be provided in the way in which they
are provided in the Odendaal Commission report-but not only for
census purposes-after a11,a census Js on]y a count-but if we look at aH
the othcr laws and practices in regard to South West Africa, and also in
regard to South Africa, we find that there arc laws and practices which
distinguish most clearly on the sociological basis between the various
Native groups, identifying them as Herero, or Ovambo, or whatever the
particular group may be, and providing diffcrcntial rights and obliga
tions forthem on the basis of that classification.
Against this background wc find that the Applicants suggest that
certain witnesses-Professor Bruwer, Profcssor Logan, Mr. Cillie and
Professor Krogh-had acceded to the proposition that rights and privi
leges inthe Territory are established in accordance with the colour of the
inhabitants-that is,by reason of their being White and non-White.
The Applicants say, for example, in the case of Professor Bruwer, in the
verbatim record, at page 360, supra, referring to evidence which Professer
Bruwer, gave in the verbatim record, at X, page 279: COMMENT BY MR. DE VILLIERS 433
Dr. Bruwer conceded ... that the establishment of rights and
privileges in the Terri tory was 'byreason ofbeing White and non-Wlü te'".
Mr. President, with the greatest respect, this is a complete distortion of
what the witness said. The witness was not speaking of rights and privi
leges in the Territory. He was questioned in this verbatim record, at X,
page 278, regarding a passage in the Odendaal Commission report con
cerning non-Whites bcing absorbcd in the White or money economy of
the southern sector, and in this context my learned fricnd Mr. Gross,
referred to a sentence in the statement of the Prime Minister of South
Africa regarding "domination by the White in his own areas"; so that
was the context in which this discussion took place. Dr. Bruwer said that
that statement by the Prime Minister related to "certain rights that
people look upon to have in certain areas". He was then askcd "By
reason of being White and non-White?" His answer was "By reason of
belonging to different groups". Then my learned friend repeatcd the
question "by reason of being White and non-White?" and the witness
said "Yes", but in that context rclating of course to the situation within
the area uJJder discussion-the White area in the Police Zone. The wit
ness was not dealing with the Territory as a whole; the discussion did
not concern the Terri tory as a whole. The discussion did not stop there
it went on; this was at page 278. At the next page, 279, there was a long
colloquy about defining this exact area about which cross-examining
counsel and the witness were speaking-nearly the whole of that page
was devoted to that-and emerging from that, then, Dr. Bruwer said:
"I understand the question, Mr. President, and r would say that
it is based on the area-call it, then, in the southern sector
excluding those areas where other groups have got rights, and
excluding, to my opinion, also areas tlmt are looked upon as being
Crown Land or State Land."
And then, later, at page 280, following up then the particular question
being put about the non-Whites in that arca, Dr. Bruwer said:
"i'.\President, the position of the non-Whites, using that term,
is different from that of the Whites in that area as we have now
defined it in the sense that the 'Whites' in that area have certain
rights and priviieges which the 'non-Whites' have not in that arèa."
So nothing could have been clearer by way of emphasis and by way of
repetition inthe experts' account, that that is what they were talking
about, and that in that context atone one could speak of \Vhite versi,s
non-White.
In linc with this my learned frie"nd,Mr. Gross, alleged in the verbatim
record, at page 361, si,pra, that Dr. Bruwer had conceded-
"that the restriction precluding a .Native from becoming a mine
overseer, in European-owned mines, for example, had 'nothing to do
with any other factor' except that of classification by law as a
'Native'. This is in the verbatim record, at X, page 284."
I need to refer to only one question and answer to show how much out of
context this comment by the Applicants was. I refer to verbatim record
at X, page 284:
Question by Mr. Gross:
"And his rights to rise above a certain form of labour in the mine,434 SOUTH WEST AFRICA
therefore, depend upon the-shall we call it ethnie group-to which
he belongs? Is that correct?
Mr. BRUWER: That is correct, but only then in the area of the
other group, because [and then he is interrupted by cross-examining
Counsel, who says to him :]
I am talking, Sir, about the southern sector, I am talking about
one particular area. Let us confine ourselves, if you will, to that;
then, perhaps, we can discuss other areas if you wish."
So it becomes perfcctly plain what the witness was saying, and when he
is now confined by the questioner to this particular area, then it is in that
particular area a case of distinguishing between White and non-White,
but not because of following a racist approach or a racist perspectiYe, but
because that is the area in which the interests of this particular group,
the White group, is protected. The White group happens to be the group
which is protected in that area, and thcrefore aUother groups which are·
not \Vhite groups corne into that area subject to such limitations as may
be necessary with a Yiew to protecting the interests of the White group,
just as in the case of Ovamboland, evcrybody who is non-Ovambo has to
accept the limitations which are imposed with a view to protecting the
rights of the Ovambo; and just as one would not say that the distinction,
then, in Ovamboland between Ovambo and non-Ovambo is not imposed
on a racial basis, just as little justification is there for saying that in the
White area the distinction imposed between White and non-White is on
a racial basis.
And this is exactly what was explained by Mr. Cillie-very briefly and
concisely stated by him in the verbatim record at X, page 538.
A question was put to Mr. Cillie in the context with refercnce to the
southern sector, and the question read: "And the answcr is 'yes' to the
question that there are ceilings placed upon non-Whites, solely because
they are non-Whitcs? Is that correct?" And the answer came: "No, I
would say no. If you put it like that, I would say placed upon them
because they do not belong to the White group." And that puts it
exactly in perspective. My learned friend, Mr. Gross, says now in his
comments at page 361, supra, that this was something which was "con
ceded" by Mr. Cillie. It was anything but a concession . .Mr. cmie was
restoring the correct perspective directly contrary to the suggestion
which had been made by cross-examining Counsel-the suggestion that
the ceilings were placed upon non-Whites solely because they are non
Whites, and the suggestion which is now still being pressed upon the
Court irrespective of the answers which were, in fact, received from the
expert witnesses.
Mr. President, this process I can follow up also in regard to the Appli
cants' comment on the evidence of Professor Logan and with reference
to the actual evidence given by Professor Logan, and I could doit like
wisewith reference to the evidence of Professor Krogh and the comments
ofthe Applicants in that respect. I do not find it necessary to do it in
detail, but I shall give the Court the references. The same pattern
emerges as in the cases of Professor Bruwer and Mr. Cillie.
The Applicants speak of Professor Logan's case at page 36r, supra,
and the relevant part of his evidence is to be found at X, pages 400-405.
This evidence made two points clear. The witness said that in gencral
allotment of rights, duties and privileges took into account not only a
man's "classification as a Bantu", which was a phrase used by cross- COMMENT BY MR. DE VILLIERS 435
examining Counsel, at page 401, but that it actually extended also into
the exact groups of being an Herero or an Ovambo or whatever the case
might be. However, that was in general.
He acknowledged by contrast that such limitations as there were with
regard to employment of non-White persons within the White sector of
the Police Zone operated as against ail the Bantu groups-the discussion
then centred on the Bantu only. That we found at X, page 402. And that
again was not because of any colour criterion, but because of distinction
between the particular group, which happened to be the White group,
whose interests were being protected in that particular area and the
other groups. Professor Logan made this quite clear in a concluding
passage at page 404.
\Ve find the very same story in regard to Professor Krogh. The com
ment by my learned friend started at page 361, supra, and the Court wjJl
find Professor Krogh's relevant evidence at XI, pages 171-172. It will
be seen that this evidence does not bear out the comment at all for
similar reasons to those in the case of the other witnesses.
So, Mr. President, this suggestion to the Court of demonstrating on
the basis of the testimony of the experts that the establishment of the
rights and duti~s in the Territory was by reason of being White and
non-White, entirely fell to the ground, as one could expect, because one
knew from the start that it was in conflict with ail the basic facts, it
ignored all the basic facts which had been admitted and established. In
fact, as we have seen, it received no support whatsoever from the wit
nesses.
Let us take the next example, viz., the suggestion by the Applicants
that there is a rigid inflexibility with which the individual inhabitant is
categorized by race or coJour without reference to individual potential
or preference. The Applicants on this point sought to build something
from the evidence. I commented earlier this aftemoon on this old concept
of rigidity in sofar as it does apply. In so far as it applies it is, of course,
necessary in a situation such as operates in South \Vest Africa. Professor
Possony demonstrated in his evidence in regard to the practice of States
that rigidity is necessary in circumstances of this kind, is found necessary
in many such situations-multi-group or multi-national situations-ail
ovcr the world, and if there were no such rigidity the system as a whole
necessarily had to break down. Professor Possony's testimony in this
respect is to be found at page 178, sitpra.
Rigidity, to the extent that it applies, must necessarily, of course,
sometimes affect the interests or the position of a particular individual,
and that is a necessarv incident, therefore, of ail these instances of State
practice testified to by Professor Possony. But when asked about this
aspect, Professor Possony saie\, at page 65, supra, in answer to the
question of how a conflict between the rights of groups and those of
individuals were reconciled:
"The State practice, I would say, is that the rights of the com
munity predominate, and that this is done on the basis of gener
alized 1aws, and that as individual cases arise where on one or the
other ground a hardship has been created, there are usually, but not
always, ways by which hardship cases could be handled."
In other words, the classifications remain rigid, more or less, but some
method is sought to alleviate the hardships which are suffered by an SOUTH WEST AFRICA
individual, or which may be suffered by an individual, where it is practi
cablc to have such alleviation of hardship. And that, Mr. President, is
not only the practice of States as testified to by Professor Possony, it is
exactly the practice of the Respondent as appears from the 1:1ndi~puted
facts of record. \Ve can refer to several examples. One of those 1sth1s very
measure which the Applicants have playcd up so very heavily, the
mining regulations which reserve certain posts in European mines for
Europeans. There is provision in the regulations in question for exemp
tions in suitable cases, and as we point out in the Rejoinder, VI, at page
232, since 1962 five non-White mine employees have, in terms of this
provision, been granted exemption in particular circumstances to enable
them to occupy positions in European mines which otherwise would have
been closed to them.
There are other examples-the examples referred to by Professor
Rautenbach in regard to the Act dealing with Higher Education in
South Africa-Act 45 of 1959-which enablcs Native students in partic
ular circumstances to enrol at European universities in South Africa
with the permission of the Minister of Bantu Education. \Ve deal with
that in the Counter-Memorial, III, at page 476, and Professor Rautenbach
dealt with it at XI, pages 410, 415-416, 441 and 450. It emerged
that the permission is granted, for examplc, in the case of a Native
student who wishes to enrol for a course for which thcre is as yct no
provision in a Native university, or in the case of a Native studcnt who
attended a European university before the Act came into force and
wished to complete his studies at that university.
Then, Mr. President, it appears from the facts of record that various
exceptions and exemptions are also made under the pass laws to meet
the needs of certain individuals. Section 6 of the General Pass Law
operating in South West Africa, which is Proclamation II of r922,
specifically exempts, inter-alia, the following Natives from the require
ment of obtaining and carrying passes: any Native missionary or teacher;
any Native to whom a certificate of exemption has been granted; and as
emerges from the Counter-Memorial, III, at pages 315-3r6, such certif
icates are granted exactly on the basis of individual merit, capacity and
so forth. The number of exemptions granted, as appears there, during the
years 1951-1960 wa,; 676 out of a total of 9r8 applicants. Then in addition
to that, i\Ir. President, thcre are what are termed blanket exemptions
granted by the Mînister applying generally to headmen, to counsellors,
to members of Advisory Boards, to teachers. to police officers, to clergy
men and to messengers, and as the Countcr-Memorial discloses, there
were as at r963 about r,ooo of such blanket exemptions, and this, of
course, is onlv in the Police Zone.
Mr. President, I have given examples of measures of exemption and
so iorth whcreby the position of the individual is most certainly taken
into account. I could give more examples but I think I have quoted
sufficiently. The Applicants, on the other hand, say, by way of comment
on the evidence, and we find this at page 362, supra;
"ConceptuaJiy, the evidence uniformly followed a line that the
individual and the group are interchangeable concepts for the
present purposes."
:Mr. President, in our submission there is no justification whatsoever
for such a comment. The references were to brief extracts from the COMMENT BY MR. DE VILLIERS 437
evidence of certain witnesses. One was from that of Professor Krogh.
The extract was quoted at page 363, supra, and it conveys the impression
that even today ''the only 'product' the Natives 'could contribute at this
stage to their economic development' was their 'labour employment"'.
But that is completely incorrect, l\fr.President. Professor Krogh was
talking about conditions at the inception of the Mandate: that is per-
fectly clear from what he said, at XI, page 77: .
"This [labour employmentJ is the only by-the-way product that
they could contribute at this stage of their economic development
to the development of the Territory."
And it is not only clear from the context that he was speaking of 40 years
ago, but he went on at the same page, at the beginning of his answer to
the following question, to indicate that this was the position "generally
speaking"-those were his words. In other words, he did not even sug
gest that 40 years ago it was applicable to cvery individual Native
person.
Also on this subject of suggested rigidity of classification, i.e., not
taking the individuals sufficiently into account, the Applicants referred,
at pages 362 to 363, supra, to the evidence of witnesses such as the Rev
erend l\Jr.Gerickc, Dr. Rau tcnbach and Professor Logan, tothe effcct tha t
even urbanized Natives or Bantu still retained their contacts with their
tribes and their cultural attributes.
Mr. President, it is very difficult to see how this evidence could assist
the Applicants to establish this point which they seek to make-that the
Respondent docs not sufficiently take cognizance of the individual as
contrasted with a group. The witnesses did not tesbfy that it was by
some process of legal fiction that these individuals are still regarded as
belonging to a tribal group. They testified that as a /act these individuals
retained their tribal identification and regarded themselves as mcmbers
of their tribal or ethnie groups; and they told the Court that the process
of urbanization did not rcsult in a cultural assimilation with the Euro
peans, but that these persons rather retained a modified African or Bantu
culture, maintaining strong lines with the traditional. I could refer
particularly to Professor Rautenbach on this point, at XI, page 358,
under cross-examination, where he quoted, in support of what he was
saying, from the writings of an African intellectual.
So this comment, M.r. President, was also totally out of perspective,
having started from a warped premise.
The same applies to anothcr point sought to be made by the Appli
cants in their comments about a suggested false equivalence between
what they called "the limitations upon the freedoms of non-Whites in
White areas" and the dcprivation of rights of Whites in other areas.
They spoke of this at page 375, supra, and the following. And they spoke
of this suggested equivalence as being something offered by the Respon
dent in justification or in extenuation of the system of apartheid. I may
say, in passing, that I object to the word "cxtenuation". One extenuates
something which is wrong, which is acknowledged or shown to be wrong.
There has been no attempt on Respondent's part to extenuatc apartheid;
the Respondent's evidencc has cxplained apartheid.
The attempt to show a false equiva\encc, Mr. President, is warped
because the whole basis from which it proceeds is warped again. rtis not
a matter of saying that limitations are imposed here upon certain persons438 SOUTH WEST AFRICA
and to cornpensate for that other limitations are irnposed upon other
persons. This line of approach was suggested also to Professor Manning
in his evidence and he gave a very apt answer to it, at XI, page 641:
"With ail respect, I am afraid I find very great difficulty in
answering the question so worded. I do not think in terras of 'limi
tations' irnposed upon people because of their colour or race. I do not
think of it in these terras. I think of the l\landatory as having to have
an over-all policy for trying to advance the well-being of ail the
peoples, and then I would go and see what are the implications of
this policy and what opportunities can be given, in what places and
to whorn."
ln other words, Mr. President. the ernphasis is placed on the positive,
on the creation of opportunities for development of peoples in certain
areas, and not upon the negative aspects which rnerely flow frorn these
as incidentals, but if you want to protect certain people in certain places
and in respect of certain opportunities, then that must necessarily
involve sorne limitations for others.
Professor Manning proceeded to say, at page 642, when he was pressed
along this line of emphasis upon limitations:
"I should have thought that the regulations in any given area
were detennined by which community was seen as pararnount as
regards its intcrests in that area. But I would also have thought that
the over-alI scherne of what was best for the country as a whole rnight
affect the question of what opportunities particular categories of the
population had in particular places."
That, therefore, is the approach, ilfr. President, as has appeared so
amply from the evidence and from the body of admitted fact-the
approach of this policy which seeks to secure for each group its own, by
way of political development to self-determination; by way of econornic
opportunity, protecting it where necessary; by way of educational facil
ities specially adapted to the needs of each particular group of people.
The Applicants try to write all this off as some lunatic scheme, the
sole purpose of which is to impose restrictions purely for the sake of im
posing restrictions and then to balance thern by imposing more restric
tions upon other persons elsewhere. That, of course. is an absurd carica
ture of the whole system. If one is to examine whether one person or one
group is treated less favourably or more favourably than another, then
the question becomes a very complex one. That is so because the pur
poses which are to be served by the various provisions are so different.
The benefits accruing to the various groups and the individual and the
needs of the various individuals and the groups-all those are so differ
ent. Let us illustrate this by an example: an Ovambo is protected in his
possession of land in Ovamboland but he is prevcnted frorn occupying
certain positions in certain mines. Now, how does one weigh up the rela
tive advantage and disadvantage here? Does one look only to one partic
ular Ovambo, who may or may not have particular wishes in this respect,
or does one look to his whole group, or does one lookat all the inhabitants
of the Territory, and if it appears that a particular Ovambo would rather
be a mine overseer than a fanner, would that be a reason for abolishing
all these provisions on both sides, irrespective of the purposes sought
to be achieved thereby?
The Applicants, of course, do not adopt this approach, they do not COMMENT BY MR. DE VILLIERS 439
look at the ovcr-all picture at all, but they seern to suggest that each
individual may legitimately be required to make a sacrifice only if he
has an exact or mathematically accurate compensation somewhere else,
or if somebody else is required to make exactly the same sacrifice some
where else. So, for instance, followinghis line of approach-incidentally
I do not know how it is to be linked up with their normand standard-but
just following it up for the moment on its own merits, they point to the fact
that there are only approximately 300 White persons in Ovamboland,
whereas there are a substantial number of non-White persans in the
White area. They say this is now an example of this false equivalence
and the suggestion is, of course, that by drawing this equivalence the
non-Whites are badly treated. In fact, of course, there is a reason why
there are only 300 Europeans in Ovamboland. The reason is that Ovambo
land has been particularly effectively protected and those 300 are there
only to serve and to help the Ovambo to develop their own homeland
for themselves. On the other hand, large numbers of Ovambos do corne
into the European area-the White area-from time to time, inter alia,
for their own benefit.
Then the question arises, if we now weigh this up, of the European
farmer who would like to have a farm in Ovamboland, where he could
irrigateor could do something similar in Ovamboland or in the Okavango,
but is deprived of that opportunity-he cannot go into Ovamboland
or the Okavango at all-and one weighs up the position of the Ovambo
who may corne and earn a living in the White area if he wishes, but
subject to limitations which make it impossible for him to over-rule
and over-run the White population in respect of their rights and inter
ests and political future: who is in the worst position, and how does one
weigh the one against the other?
Itis nota question which can be answered mathematically. or exactly,
and it is not a question which a Court, with respect, could attempt to
answer without a much more comprehensive and extensive enquiry
and on the basis of some legal norm or criterion which one would have
to find in some legal source somewhere.
The real point which we have consistently attempted to make in this
regard, Mr. President, is found in the Rejoinder, V, at pages 246-247. I
read:
"Such contributions and sacrifices would, however, in the further
application of the policy of separate development in South West
Africa. not be demanded only of some groups, to the exclusion of
others. As will be demonstrated in the more detailed treatment
below, members of all groups would be affected by reciprocal re
strictions on politicaland economic opportunities and other facili
ties in the homelands of other groups. Transitional steps, e.g.,
moving to a new home, would affect at least some members of all
the groups. Specifically as regards the White group, alleged by
Applicants to be specially favoured, it will be noted, e.g., that not
only would a large number of them have to give up farms owned
and developed by them, but the groupas a whole would, through
the public revenues, have to rnake very substantial economic con
tributions to the accelerated and large-scale development of the
non-White homelands and the upliftment of the non-White peoples.
That some members of the non-White peoples would also be
adversely affected in some respects, or would have to make special440 SOUTH WEST AFRICA
contributions or sacrifices, cannot be denied. But in Respondent's
view the extent thereof is very minoras compared with the over-all
benefits involved for their respective peoples, and indeed for all
the inhabitants of the Territory, as a whole."
What we said here, Mr. President, was reaffirmed by the experts, each
in his own branch of life, to which he testified. The Court will remember
particularly the tenu "marginal" used in that respect by Professor
Krogh in the economic sphere.
In passing, anothcr point of comment, the Applicants, on page 384,
supra, took a rather challenging attitude and posed a question to us as
to whcther~
"... non-White inhabitants of the Territory ... [are or are not]
eligible for citizenshipin the Republic of South Africa on the same
basis, terms and conditions as are the White inhabitants of the
Terri tory?"
as if this were somcthing which we would find clifficulty in answering.
As a matter of fact, if we look back at the nfomorials we find that one
of the things the Applicants complained about was the fact that the
South African Government passed a law in 1949 which extended South
African citizenship to Natives of South West Africa. That is on page
190, I, of the Memorials and on page 192, they said that "by official
usage, 'Native' inhabitants of the Tcrritory arc considercd Union cit
izens". Wc acknowledged, in the Counter-Memorial, III, pages 98-99, that
all this was so. So it has been common cause for some ycars that the
inhabitants of South West Africa, White and non-White, have South
African citizenship. I do not know what is the ambiguity inour pleadings,
or the urge for clarification of this matter which is common cause. Per
haps the Applicants' left hands do not know what their right hands are
doing. Perhaps the Applicants meant something which they <lid not
say. Perhaps the question was intende<l to mean, whether citizenship
of the Republic means in its practical effect the same for non-White
inhabitants of South West Africa as for White inhabitants of South
\Vest Africa. Perhaps that is what they meant, but they never said so.
Well, if they meant that, then the answer is perfectly simple. The
answer is that if one looks at identity of effects, then obviously the an
swer is, no. If one looks at substantial equivalence of effects then the an
swer is, yes. For each citizen of South Africa, whether coming from South
West Africa or from South Africa, there is provided a future of self
realization and self-<letermination within the nation or group of which
he forms a part, and that is so for White citizcns and for non-White
citizens of South Africa alike.
Anothcr kind of test question thrown out was: when will the homelands
eventually be established? In the record at pages 381-382, supra, this
point was developed in connection with this "false equivalence" point.
The suggestion was that ail this is on a never-never basis and of course
it is ail a question of unfair discrimination against the Natives. because
at present they have no political rights where the \Vhites have political
rights and the political rights envisaged for them by way of self-govern
ment and so forth are so far in the future that they cannot be taken into
account. That was the line of argument.
Mr. President, again this type of suggestion runs away altogether from
the reality of what have been established and have been accepted as the C01[ME:--T BY MR. DE VILLIERS
basic facts of this case. Any uncertainty as to when and how homelands
will corne to fruitionand in what form they will corne to self-government,
independence or some other form of association on the basis of standing
on thcir own feet-any uncertainty that may be attached to that is
joined to one factor and one factor alonc, and that is inability to forecast
exactJy how fast these various peoples will avail themselves of the oppor
tunities grantcd to them to develop to the necessary stage; and uncer
tainty coupled with that as to what their dccision is going to be, if and
when they reach that stage. because it is their decision that wiH decide
what exactly is going to happen with a particular terri tory like Ovambo
land-will it become entirely independent, standing on its own? Will
it form some form of alliance? If so, what form? That is something which
will have to be decided when the appropriate stage is arrived at.
So again, Mr. President, there is nothing in this suggestion. Or must
we understand the Applicants to say that because there is uncertainty
as to the rate at which particular peoples can devdop, and because there
may be somc individuals in advance of the rate of development of that
particular people, therefore thosc individuals are to be accommodated
in some other group where they do not belong. in such a way then that
the self-dctermination of their own group may be held back, becausc the
cream is being taken away ail the timc, or a situation is created in this
other group which is undesirable-a situation of tension and friction
which may dcny self-determination for that group.
If that is the suggestion, Mr. President, again I need only point to the
admitted facts and to the clear evidence on record to show that that is
a suggestion without any substance when regard is had to the well-being
of the pcoplcs of South West Africa.
Applicants, in the verbatim record at pages 383-384, supra, commented
on the cvidence of Mr. Dahlmann regarding the present political situa
tion amongst the non-White inhabitants of the Territory. The Court will
recall that a very large field was covered by Mr. Dahlmann's tcstimony,
but out of ail this the Applicants chose only a part of one single sentence
on which to deliver comment-they said this:
"Dr. Dahlmann informed the Court about the present circum
stances of political lifein the Territory with respect to the Natives
and their political organizations ... [H]e indicated it to be his opin
ion that-
'... the outside world takcs these organizations a Jittle bit
too seriously ... they have very limited support and people
as wc say, the man on the street-are not much interested in
these political parties and organizations'."
And then the Applicants comment: "Mr. President, the Applicants
would not fi.ndthis surprising, evcn if it were true." (Supra, p. 384.) Why
the evidencc should not be true, of course we are not told, and that need
not detain us.
Asto the suggestion of not fi.nding this surprising, the Applicants go
on to say:
"What elsecould be expected ·whcn the normal and natural end
of politicalactivity-which is participation of a meaningful nature
in decision-making processes-is denied on the basis of race or colour?
Such a denial is by inexorable classification, even though, as :\Ir.
Dahlmann conceded, there are non-Whites in the Territory who SOUTH WEST AFRICA
would be capable and qualified to serve in governmental bodies and
participate in the decision-making." (Ibid.)
Once again, Mr. President, this is a completely warped presentation,
with the greatest respect. It is to be noted in the first place that the
Applicants did not, at any stage, suggest in cross-examination to Mr.
Dahlmann this proposition which they are now urging upon the Court
as their only argument. The question which they asked Mr. Dahlmann
was: whether these political parties and organizations "are influenced,
and even perhaps deeply affected, by the uncertainty conceming the
future of their place of residence and their status". To this Mr. Dahlmann
answered: "No, dcfinitely not. Mr. President, I think the outside world
takes these organizations a little bit too seriously ... " (XI, p. 512). In
other words, this suggested uncertainty certainly did not exist-that
was not a factor affecting these political organizations. \Vhat was affect
ing them was the fact that they just had no support to speak of, and
that was the effect of Mr. Dahlmann's evidence, which was entirely
ignored in this comment, although that factor of his evidence was never
attacked and never brought into any scrious question. The whole com
ment runs counter to and, in fact, ignores the basic situation which has
appeared in regard to the facts of the mattcr, viz., the attachrnent of
the vast rnajority of the non-White populations to their own groups, as
testified to by the experts and as appeared from the adrnitted facts
the support given by the large majority of the non-White population to
their traditional authorities and the fact that these traditional authori
ties do, in fact, exercise meaningful powers of decision-making, as we
point out in the Counter-Memorial, III, at pages 114-131, and in regard
to the Rehoboth Basters in IV, pages 19-22, and again generally in the
Rejoinder, VI, pages n-19. These are al! part of the admitted facts of
record.
The fact is ignored that the Odendaal Commission's proposais will
still further increase these basic powers and will produce a wider repre
sentation of the population into these authorities, as we point out in the
Rejoinder, VI, at pages r-4, and, as I pointed out in my argument a few
days ago, will incrcase the bargaining power of these authorities when
speaking as equals or as developing equals with the South African Govern
ment on matters of common concern.
The comment ignores the fact of record, which is undisputed and in
disputable, that these proposais of the Odendaal Commission were accept
able to and desired by the majority of the population, and that the major
ity of these political parties agitating against the recornrnendation were
brought into being by a few people only for ulterior purposes, with very
little support, that is, in order to provide a few petitioners at the United
Nations with a front and a semblance of power. Those are the real facts
that have been established.
Those are the real facts that have been established, and the simple
answcr is, therefore, that the parties need not be taken seriously because
they enjoy no real support. The real support of the non-White peoples
is forthe Government's policy regarding the development of their polit
ical institutions.
In regard to the Coloured population of South West Africa, Mr. Pres
ident, we got a very belated interest from the side of the Applicants.
In the Memorials the Coloured population did not forrn part of this
subject of complaint-the complaint of oppression of the Native popula- COMMENT BY MR. DE VILLIERS 443
tions-at aH. The complaint was confmed to the Native population; not
a word was said about the Coloured population, as we pointed out in
our Counter-Memorial, Il, at pages 382-383. \Ve went on to state there,
Mr. President, that we would from time to timc, in giving gcneral expo
sitions, have to refer to population groups other than the Natives, al
though the complaint centred on the Natives-that we would in the
course of expositions have to refer to the Coloured group or the Basters,
or both-but we added:
"Inasmuch, however, as these groups do not in any way feature
in the complaints or charges, a systematic or complete survey in
regard to them would be out of place, and is consequently not
attempted. Any reference to them will be only for the purpose of
explanation or example, or to answer some specific point or allega
tion raised in the Memorials." (Il, p. 383.)
Now we corne to the Reply, and there the Court will recall that the
Applicants introduced for the first time the suggested norm on which
they now rely. \Ve find at page 257, IV, and the following. in the Reply
the Applicants talk about "unwarranted misrepresentation" on our
part, and a "strained construction" of their Submissions 3 and 4 "as
excluding certain groups or individuals in the Territory designated
'Coloureds' or 'Basters' ".
We dealt with this matter in our Rejoinder, V, at pages roS-rrr, and
there we pointed out and demonstrated, Mr. President, that we had not
been guilty of any misrepresentation or strained construction at ail,
but that the Apphcants were now trying to broaden their case "appar
ently to bring it into conformity with their newly introduced legal norm
of non-discrimination or non-separation". It was only in this context
Imay point out, as we did in the Rejoinder, that the Coloured popula
tion was apparently then sought to be brought into the picture. Again
there was no complaint of conduct relative to the Coloured or Baster
population; there was no suggestion of discrimination against them, as
there had been an allegation of discrimination against the Native popu
lation, and therefore again we were not called upon to deal with any corn
plaint in that context relativeto the Coloured group or the Bastcr group.
When we came to my learned friend's catalogue of 17 May, we there
find special reference made to paragraphs in the Odendaal report, cited
by us in our Rejoinder, dealing with proposed local boards for Natives
in urban areas-that is, in that record of 17 May, at IX, page 289. Again
in this catalogue the Applicants' whole concem was with the interests of
the Natives; thcy also made specific reference to the policy relating to
homelands for the Native groups-that is at page 288 of that record
but no mention was made in the whole of this catalogue about the posi
tion of the Coloureds.
In conformity, therefore, with this situation and the attitude we had
adopted aH aiong, we led no evidence concerning the position of the
Coloured group-that would have simply not been relevant. The evidence
commenced on 18 June: Dr. Eiselen, as we pointed out, was not examined
at all; Dr. Bruwer, who was an early witness, had been a member of the
Odendaal Commission and a party, therefore, to these recommendations
about the Coloured population, which were later referred to by my learn
ed friend; but nota word of cross-examination was directed to Dr. Bruwer
about the question of the Coloured population, although, as the Court444 SOUTH WEST AFRICA
will recall, he was cross-examined at length over some days. So it wcnt
on with witness after witness. There followed a two-month break from
mid-July until 20 Septembcr, and then on 13 October, when wc came
vcry near to the end of the presentation of our evidence, questions con
cerning the Coloured group were suddenly put in cross-examination to
l\1r.Dahlmann in the verbatim record at XI, page 559. These questions
concerned, amongst others, the paragraph in the Odendaal Commission's
report concerning Coloured urban settlement, and the absence of a re
commendation to cstablish a homeland for the Coloured group. Mr. Dahl
mann, incidentally, in that record, at the same page, agreed with my
leamed friend, Mr. Gross, that the Coloured population did not fit into
the homelands plan, but he stated "that the Coloureds, or the majority
of the Coloureds, are supporting this plan in the Govemment policy".
The process was repeated in the case of Professor Manning, who tes
tified after Mr. Dahlmann. He was also asked about the absence of a
rccommendation for a Coloured homcland, and Professor Manning said,
as the Court wiU recaU, that he did not possess the necessary knowledge
to say why that was so; and he went on to say:
"It may be that if I knew more aboutit, I could give an adequate
explanation for evcrything that has been donc. but it would be
quite wrong for me to stand here and purport to be a source of
enlightcnment for this Court on the reasons for which particular
things are donc in the fulfilment of a policy which seems tome to be
the wise policy in its basic philosophy." (XI, p. 639.)
On the basis of this my Iearned friend, l\lr. Gross, says in the verbatim
record, at page 374, supra, that Professor Manning manifested uncon
cern about the Coloured population. I nced not labour the comment that
this suggestion was entirelv unwarranted.
The same unwarranted "suggestion was made about the evidence of
Mr. Dahhnann, and my learned friend went on to say, now quite un
fettered, that the Coloureds were treatcd separately on the basis of
colour alone. On the basis of what evidence he said that, of course, we
still donot know. )lr. Dahhnann in his evidence ccrtainlv did not lend
any support to this statement. 2\Ir. Dahlmann in his stateÏnent said that
the Coloured population regarded themselves as a group, and that there
was the question of community development. Wc find that at pages
373 and 374, supra, and again, at XI, page 560-this latter is the refer
ence to j\fr. Dahlmann, the former is the reference to the comment.
Mr. President, our attitude can be stated very shortly. \Ve have here
apparently a belated effort to introduce the question of the Coloured
population in order to affect in some undescribcd way the homcland
policy of the Respondent in regard to the Natives. Or perhaps the sug
gestion is that the Coloured population is going to receive less beneficial
treatment than the Native groups-I do not know, we are not told
exactly what this suggestion is. What is clear is that this whole effort
is an afterthought on the Applicants' part.
We did not dcal with the matter in our pleadings because we were not
required to do so, and I may expia.in that this is not a technical attitude;
there is, in fact, a very large policy in operation in regard to the develop
ment of the Coloured population in all spheres of their lives in order to
bring them to a fit and a proper stage of self-realization, although it
proceeds along somewhat different lines of detail than in the case of the C0;\11\ŒNT BY MR, DE VILLIERS 445
Native population. To set that out in detail could fi.Ila book-in ail its
varions aspects of political <lcvelopment, social development, economic
devclopment and so forth. \Ve couid have given those expositions if we
were called upon to give them, but not being called upon to give them we
did not traverse a field which would have becn cntirely irrclevant. So
that is the situation where we stand, and we know on the evidence of
l\Ir. Dahlmann as given in cross-examination that the Coloured people,
or the majority of them, are in favour of the Government's policy. This
confirms what we had stated earlier, in the Rejoinder, V, at page 290,
paragraph So, namely: "The Coloured group enthusiastically supported
the recommendations", meaning the recorrunendations of the Odendaal
Commission; we said that à propos of meetings which were held by the
Minister of Coloured Affairs in February of 1964. So what the Applicants'
purpose was with this late attempt to introducc new mattcr we do not
know. Perhaps it was just a drowning man grasping at a straw. It cer
tainly, in our submission, bas not brought the Applicants anywhere.
Anothcr element of comment by the Applicants concerncd the subject
of social pcace. \Ne find that at page 366, supra:
"\Vitnesses expressed the view that a necessary prerequisite for
the attainment of this vision [namely, the vision of separate home
lands] was what was frequently described as 'social peace'. 'Social
peace', it appeared from the testimony, is not adequately assured
by normal conditions of equality of opportunity and equal protec
tion of the laws."
And then at page 367 the Applicants procceded to scoff at the suggestion
that bringing people together from different backgrounds may lcad to
conflict. In view of the mass of evidencc to the contrarv-admitted facts
on the pleadings and the evidence of the experts-this 1sreally surprising
indeed. I may refcr to the Counter-iliemorial, II, pages 449-454, to the
Rejoinder. V, pages 185-241, a.gain pages 400-408 and pages 430-461. In
these passages not only did we speak in theory about group relations, we
spoke of policies in many parts of the world which recognized the basic
fact ofthe necessity of having regard to differences which exist and which
are perceivcd as existing betwcen groups, and to the conflict which may
result and the tragedics which may result when this factor isnot properly
or sufficientlytaken into account. Wc referred to immigration policies;
we referred to events in other parts of Africa-in other parts of the world;
and the Court wiUrccall the tcstimony given by Profcssors van den Haag,
Possony and Manning upon these aspects of the matter.
This is again ail ignored, and the Applicants simply mock at the under
lying principle. Thcn they proceed to refer (at 367, sitpra)"to the sac
rificeexacted from individual non-White inhabitants on the altar of
social peacc", and thcy go on to speak of what they call job reservation
measures. On analvsis we see thev relate to measures in the railwavs
and in the mining ·industry, and the Court wiIIrecall the uncontestcd
tcstimony that thesc are the only two sectors in the whole economy of
the White portion of South West Africa, of the whole of South West
Africa, in which there are mcasures which operate in favour of White
workers-only those two, none else-but they are blown up time after
time as if they wcrc sctting a ceiling-an economic ceiling-over the
whole of the White sector as regards evcry portion of the White economy,
and as regards every potential Native worker in that economy. But be SOUTH WEST AFRICA
that as it may, whether or not these particular measures, which do exist,
and which, as Mr. Cillie pointed out, are decided upon in regard to spe
cific matters as they arise from time to tune, and are revised from time
to time as may be necessary, are necessary for the purpose of protecting
social peace is a question of fact,nd we pointed out when we dealt with
the economic aspect that an enquiry into the social and economic justi
fiability of eachand every measure referred to in the proceedings would
be an enormous undertaking, which has not been essayed by reason of
the nature of the dispute here, which has not made it necessary for us
to embark on such an undertaking.
But what is clear, and this is what I want to say by way of comment
on the facts, Mr. President, is that the factor of social peace does exist
as a most important one. It is a most important requisite for well-being
and progress. Paying regard to social peacc can therefore never be said
to be an ulterior motivation on the part of the l\fandatory, nor can it
ever be said to be indicative of an essentially racist approach on the
Mandatory's part, whatever that might mean.
Details about this matter are, in the Iight of the real issue before the
Court, not important. but in view of the efforts at creating some impres
sion about the hardships that would be suffered by individuals-efforts
made by my learned friends in their comment-! may just refer to the
fact that even on the incomplete record as it is we have shown that the
number of persons who could be affected by these provisions I have
referred to,is very 5mall, that hardship is largely avoided by exemptions,
that ample opcnings and economic opportunities exist for all non-Euro
peans of ability and training in South West Africa in aU sectors of the
economy, and that indeed there is a large unsatisfied demand for them
all those are facts which have been established as facts.
ln the result, even if anybody should in fact find himself frustrated in
the mining industry-of course, there has been no evidence that this is
applied to any individual at all in fact-there has been no such evidence
-but even if that should be assumed to be the case in regard to a partic
ular individual, there is no reason whatsoever to think that his partic
ular competence will not enable him to make equivalent or better prog
ress in another industry or occupation in which no similar limitations
exist. The Applicants have not contested our demonstration of these
basic facts,and again therefore it will be perceived how warped and how
unrealistic their comment is also on this aspect of the matter.
In regard to education, the only factor of comment to which I need
refer is that regarding compulsory education. \Ve have pointed out
before that the attitude now apparently taken by the Applicants in re
gard to compulsory education would appear to be entirely alien to their
norm or standards. If one were to apply the norm or standards, then any
distinction made on a basis of membership in a group, i.e., having com
pulsory education for one and not for the other, would automatically
transgress the norm, but now they say "no". Be that as it may, we are
dealing with the factual aspects, and the Applicants say on that point,
at page 383, supra, "a question fairly arises concerning the reason"
the reason why there is compulsory education for White persons and none
for Native children. The Applicants then continue, without any reference
to the facts of record or to the evidence, to seek a factual reason-a
reason which they then seek by way of processes of inference and imagi
nation.In fact, of course, most compelling reasons were given in the plead- COMMENT BY MR. Dl~ VILLIERS 447
ings and in the oral evidence, including answers elicited by the Appli
cants' representatives themselves in cross-examination from the various
experts. My Jeamed friend, Dr. Rabie, dealt with this matter fully a few
days ago, at pages 281-286, siepra.
1 need not go into that again, but there is that whole body of most
compelling reasons; there is not a word of reference to that in the
Applicants' comment but they go on to make their inference, as they
call it, and their inference, at which thcy arrive eventually, is that
this difference "is obviously based upon racial considerations", and that
it is therefore "inherently incompatible with the obligation to promote
the well-being and the social progress of the inhabitants of the Terri tory".
Itwas not surprising, Mr. President, that the Applicants were careful,
in making this comment, not to refer to the facts or the record at all.
And that brings me to the Applicants' comment, or Jack or comment,
upon our demonstration of the real basis upon which proceed.ings at
the United Nations were to be scen, relative to a large group of resolutions
upon which the Applicants relied in support of their suggested norm
and standards. The Court will recall our demonstration-detailed, doc
umented, divided into portions, making each point clearly, giving refer
ences to the record and lists of further refcrences where further quotations
were not offered. Do the Applicants meet our case and our demonstration
in that respect? Mr. President, they simply say that the witnesses and
the Respondent-I quote from the record at page 387, supra-
"... looked upon the United Nations as the embodiment of the
source of their fears. The Respondent's intemperate and baseless
assaults upon the Organization are to be evaluated in this light."
Mr. President, they did not advance anything at ail to show that
any of the points made by us were incorrect. not even to speak of 'ïntem
perate and baseless". We heard no repetition of the Applicants' previous
indignant denials that they were acting in a representative capacity
as nominal parties in these proceed.ings. We heard not a word of denial
as regards the existence or the objectives of the political campaign
being waged against the Rcspondcnt. We heard not a single word of
refutation of the proof which we adduced that the allegations of large
scale oppression, made by the petitioners at the United Nations, have
been indefensibly false. \Ve have heard no denial that these false allega
tions have been echoed and accepted and acted upon by majorities
in committees and organs of the United Nations. \Ve have heard no
refutation of the fact that the resolutions adopted in those bodies were
based on acceptance of these allegations of oppression. We have heard
no attempt on the part of the Applicants to show that even a single
delegate-let alone the majorities-who voted for such resolutions, based
his vote on the existence of standards or a norrn as defined at page
493, IV, of the Reply. \Ve heard not a word, Mr. President, on any of
these basic, these relevant, these fondamental matters which we demon
strated.
The Applicants' failure to meet us here was obvious, and it was
obviously based upon a complete inability to meet any of those points,
because the points are all true and they have been substantiated beyond
any doubt. So let us sec what is the nature of the answer attempted
to be given by the Applicants. We can forget now about the so-called
assaults being "intemperate and baseless"; we can go on to the next SOUTH WEST AFRICA
element, the suggestion that these assaults were levelled by us "against
the [United Nations] Organization". This, of course, is equally baseless.
We did not attack the United Nations Organization. We attacked the
quality of the evidence accepted and echoed by certain delegations in
the deliberations of the United Nations organs. We attacked the motiva
tion and the attitudes displayed by some of those dclegations, and we
attacked the Applicants' contention that the resolutions of the bodies
have given rise to, or reflect the existence of, a norm or standards as
defined at page 493, IV, of the Reply. \Ve have atacked those things;
wc have not attacked the Organization.
Thirdly, Mr. President, the Applicants suggested that the target of
this so-called broadside was obscure. That we find in the record, at
page 388, supra. All I need say about that, Mr. President, is that we
are confident that it would not have bcen obscure to the Court.
Fourthly, the Applicants carne with so-called "five undisputed facts"
-just stated without any attempt at substantiation from evidential
or other sources-stated as being five undisputed facts. That is in the
record, at page 389, supra.
I am not going to read each one to the Court or to analyse cach one
in detail, because their essence in each case is, Mr. President, that they
simply ignore the Yery points which were so clearly made by our uncon
troverted demonstration. I shall mercly illustrate this, very briefiy, with
rcference to thesc so-called five undisputed facts.
The first one says that the conclusions of the bodies about Respon
dent's policies were "based upon evidence which had poured in over
the years", and that "[m]uch the most important cvidence consist[ed]
in the Respondent's Iaws and regulations and the practices and methods
bv which thev are effectuated, the existence of which has never been
and is not now denied by Respondent' '. That we find in the record,
at the same page.
Now, 1Ir. President, we made the very points which now stand
unanswered, that this so-called "evidcnce" which poured in over the
years emanated largely from a small group of biased professional peti
tioners actuated by ulterior motives. We demonstrated that this evidence
was faIse,and that great weight was given and isstill given to this evidence,
that the evidence led to a whoHy false perspective of the purposes or
effects of Rcspondent's Iaws, regulations and policies.
And, Mr. President, we demonstrated that this situation is now
substantiated by the Applicants' admission of ail the real basic facts
which we have set out in our pleadings, and which controvert cntirely
those facts upon which the United Nations organs and agencies have
acted. Yet wc are told now that the most important evidence is undis
puted; it had poured in over the years.
The second and the third and the fifth points made by the Applicants,
under their list of five, turn around the varietv involved in the member
ship, and the nature, of the United Nations and the other bodies which
adopted the varions. resolutions upon which they rely. This again,
Mr. President, in our submission, brings the Applicants nowherc. We
have always conceded that standards exist ail ovcr the world, not only
amongst people waging a certain campaign, but amongst aII right
thinking pcoples-standards which condemn oppression, whether it be
oppression of a group or whether it be oppression of individuais under
any circumstances and whcther by a differential policy or by an inte- COMMENT BY MR. DE VILLIERS 449
grating policy those standards exist. And if, therefore, Mr. President,
representations are made to bodies that the Respondent is applying
policies of oppression,nd those representations are believed and accepted,
what else can one expect but condemnation from those bodies with
this wide membership of which they are comprised?
But this takes the Applicants nowhere. Once it is established, as it
has been established in this case, that those charges of oppression were
false, once the Applicants, acting on behalf of that large body of States
which has been waging this campaign against the Respondent at the
United Nations, have been forced to drop and abandon their charges
of oppression and to accept ail the basic facts which show that those
charges were baseless, what weight can now be attached to these resolu
tions and to these factors mentioned in their second, their third and
their fifth points?
What is more, Mr. President, we made the point that the United
Nations and the other majorities which adopted the resolutions did
not adopt them on the basis of the standards or the norm as defined
at page 493, IV, of the Reply, on which the Applicants exclusively rely.
This was also a crucial point which the Apphcants had to meet, and
this point they have not met in any way.
That leaves only the fourth of these five points, Mr. President, and
that point, it will be found, adds nothing except certain purple patches
about "revulsion" and "opprobrium" shown by these various delegations
or these various countries represented at these conferences and bodies.
The remarks which I have just made about the second, the third and
the fifth points are sufficient also to dispose of these.
So, Mr. President, on the whole of this subject of what reaUy happened
in the international bodies, we have found distortion and evasion of
our case, we have found no answer.
It remains for me only to refer to two points which were made by
the Applicants in regard to their standards contention, as distinct from
their norm contention; and both these points, in my submission, show
very clearly their own realization that the writing was on the wall also
in this respect.
The Court will recall that the essence of the standards contention,
as it was advanced preparatory to the amended submissions of 19 May,
was that the standards were laid down by supervisory bodies which
were now to be binding upon the Respondent in law and binding upon
the Court in that the Court had to apply them, for good or for bad;
because they were binding upon the Respondent, thercfore in this
litigation the Court was bound to apply them and to give effect to them
in the Court's determination as to whether or not there has been a
violation of the Mandate.
Now, Mr. President, we are told, in the record, at page 390, supra,
that "authoritative weight" only is to be given to these standards,
and that there is to be no "rubber-stamping", which is the word we had
used prcviously in that regard. -
But then, Mr. President, if those resolutions, cven if they should have
been productive of standards, which of course we do not concede, if
they should have produced certain standards and the Applicants concede
that those standards are not binding, why should this Court apply
them. in the face of ail the uncontroverted demonstration of fact to
this Court that to apply them, in the circumstances of South West450 SOUTH WEST AFRICA
Africa, would lead to chaos and misery? What leg has the Applicants
left to stand on when they now tell the Court that it merely has to
give authoritative weight to those resolutions and not to regard them
as being binding, especially in the light of the demonstration to which
I have just referred-in the light of the demonstration that those resolu
tions were not intended to lay down these standards at ail, that in so
far as they condemned the Respondent's policies as being oppressive,
they were based upon false information, and that therefore they can
be of no assistance to this Court at all when this Court has had a real
enquiry into the actual basic facts.
· That is the one factor, Mr. President. The other factor is this. The
Applicants suggested as follows in the record, at page 352, supra:
"No evidcnce is relevant, in the Applicants' submission, con
ccrning the extent to which international standards ... arc applied
in practicc. If the Court should find that such standards exist and
that they are comprised of the sources cited and properly reflect
them-the existence of these sources is undisputed and indisputa
ble-then the cxtent to which such standards arc perhaps violated
in practice is irrelevant; just as in the case of standards of negligence,
or reasonable care, or due process of law, failure to observe such
standards in practice makes them more, not Jess, nccessary."
Mr. President, this is a curious argument. Itis true, of course, that
where abodyindisputably havingthe authoritytolaydown the law, has laid
down the law, where thcre isnodifficulty about interpreting what that body
has done and where one finds that here is this rule which was intended
to be binding and which has the binding effect of law-then that simply
has to be applied and there is nothing more to it. Then, of course, it
would be truc to say that if that law is being breached in practice by
this or that or the other persan, that does not affect the fact of the
existence of the law.
But here the verv issue is whether these bodies, of which the Applicants
speak, had the po,ver to bring about such binding standards, or whether
they thought they had the power to do it, or whether they thought
îndeed that they were purporting to bring about the existence of such
standards. If that is the issue-the issue between the Parties-then
surely it must be relevant to show to the Court that as large a number
as 40 of the States which took part in these deliberations, by their own
practices in their own States, show that they have no contemplation
of the existence of such a binding standard. If they do not comply
with such a suggested standard in their own practicc in thcir own
States, how can it possibly be said, in a record which is for the Applicants
at best ambiguous, but which in our submission is really quite clear
against them, how could the Applicants ever corne and suggest that
those States must have intended to bring into existence such standards
that are to be binding generally?
I submit, Mr. President. that that again shows that the Applicants
have begun to realize that, just as their norm contention cannot possibly
be justified,the same applies to their standards contention.
This brings me to the end of this comment. Again, Mr. President,
on behalf of mv colleagues and myself, I should like to express our
appreciation to the whole Court of the patience and courtesy with which
it has treated our presentation of our case throughout these proceedings. COMMENT BY MR. DE VILLIERS 451
I should like, also on behalf of my collcagues and myself, to express
our appreciation to you, Sir, of the way in which you have prcsided
over these proceedings. The task has not always been an easy one in
that respect and we have great appreciation of the way in which you
have accomplished it, with respect from our side.
I also wish to express our most sincerc appreciation of the ncver
failing courtesy, kindness and efficiency which we have experienced
from the Registrar and his personnel during all this period which must
have been a strained one for them at times.
That really brings us to the end, i\Ir. President, eight months after
we started here and at record number 99. We shall !cave number 100
at the disposai of the Court. Thank you.
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 - fin)