INTERNATIONALCOURT OF JUSTICE
PLEADINGS,ORAL ARGUMENTS,DOCUMENTS
SOUTH WEST AFRICACASES
(ETHIOPIAuSOUTH AFFUCA;
LIBERIAv.SOUTHAFRICA)
VOLUME XII
COUR INTERNATIONALDEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRESDU SUD-OUEST AFRICAIN
(~THIOPL EAFRIQUE DU SUD;
LJBÉlUAc.AFRIQUEDU SUD)
VOLUME XIIAl1 rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice Abbreviated reference :
I.C.J. Pleadings, SouthWest Ajriccz,
Vol. XII
KéfCrence abrégée:
C.1.J. Mémoires ,ud-Ouest africain,
vol. XII
Na de vente:
Sales number : GENERALCONTENTS OF VOLUMES1-XII
Page
Volume 1
A~~licationsinstituting proceedings . . . . . . . . . . . . . . 3
MernorialssubmittedbytheGovernmentsofEthiopia andLiberia. . . 32
Preliminary Objectionsfiled by the Governmentof Ue Republic af
Observationsof theGovernrnenfs ofEthiopia. and Liberia .. . . . . . . 4172
Volume II
CouAfricaern. .a. . . . . . . . . . . . . . . . . .iublic . .fS. . .
Book 1.General introduction and Submissions . . . . . . . .
Book II. The Mandate . . . . . . . . . . . . . . . . . .
Boof South West Africa fea. .e., . . . . . . . . . and . . . . - -
BoMandateAll(general aspects)y. . . . . . . . .icle . . . .2)o. . .
Volume III
Counler-Mernorialfiled by the Governmentof the Republz'c ofSouth
Africa (continued) . . . . . . . . . . . . . . . . . . . .
Book V. Allegedviolations by Respondent of Article 2 (2) of the
Mandate (particular aspects of Respondent's policies) . . . .
Section A. Introductory . . . . . . . , . . . . . . . -
Section B. Weil-being, social progress and development in
agriculture . . . . . . . . . . . . . . . . . . . . .
Section C.Well-being, social progress and development in
industry . . . . . . , . . . . . . . . . . . . . . .
Section E. Governmentunt andcitizenshipin c. . . . . . . . . .. .
Book VI. Security of the person, Rights of residence and Free-
dom of movement . . . . . . . . . . . . . . . . . . .
Book VII. Education . . . . . . . . . . . . . . . . . . .
Volume IV
Cozsnter-Mernoriaf liled by the Governmentof the Republic of Soufh
Ajrica (concluded) . . . , . , . . . . . . . . . . . . . . 1
BookVIII. . . . . , . . . . . . . . . . . . . . . . . . 1
Selation by Respondent of Article in2rof the Mandate al.e. . . .- r Page
Mr .Gross ....................... 3
Mr. de Villiers.....................
Mr .Gross ....................... :d
Mr .de Villiers..................... 66
Mr .de Villiers..................... 94
Mr.Gross ....................... 122
Mr .Gross ....................... 124
Mr .de Villiers..................... 377
Mr .de Villiers..................... 561
Volume X
OralArgumentsonth Merits (continued) ............
Annexesito the Minutes (15 June-14 JuIy 1965,).......
Dr verLoren van Themaat ...............
hlr.de Villiers.....................
Hearings of the Witnesses and Experts ..........
Hearings of the Witnesses and Experts (continued).....
Volume XI
Ord ArgumentsontheMerits (continued} ............
Annexes to the Minutes (20 September-19 October 1965) ...
Hearings of the Witnesseç and Experts (continued).....
VolumeXII
OralArgumerttsonth Merits (concluded) ...........
Annexes to the Minutes (20 October-15 November 1965) ...
Hearings of the Witnesses and Experts (concluded) ....
Mr .Muller ...................... ;
MAh*van Rooyens......................
Mr.van Meerdexi ...................
Mr. Muller.......................
Mr. de Villier.....................
Mr.RGrosskopf......................
Mr. de Villier.....................
Mr. Botha ......................
Mr. Gross .......................
Mr. de Villier.....................
Documents submitted fothe Court after the closzcreof the written
groceedings .......................
Corres$ondence ........................ SOUTH WEST AFRICA CASES
(ETHIOPIA v.SOUTH AFRICA;
LIBERIA v. SOUTH AFRICA)
AFFAIRES-DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c.AFRIQUE DU SUD) INTERNATlONALCOURT OF JUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICACASES
(ETHIOPIA vSOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)
VOLUME XII
COUR INTERNATIONALEDE JUSTICE
MEMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIECAFRIQUE DU SUD;
LIBÉRIA cAFRIQUE DU SUD)
VOLUME XIIPRINTED IN THE NETHERLANDS The present volume contairis the end of the evidence of witnesses and
experts and of the oralarguments on themerits (26 October-5 November
1g6j),as well as the documents submitted to the Court after the closure
of the written proceedings and the correspondence in the South West
Ajricacases. The beginning oEthe oral arguments on the merits and the
evidence of witnesses and expi:rt(15March to rgJune 1965)is published
in Volurne VIII, pages 105-712, Volume IX, pages 1-658, Volume X,
pages 1-558and Volume XI, pages 1-708 The proceedings in these cases,
which ivere entered on the Court's General List on 4 November 1960
under numbers 46 and 47, were joinedby an Order of the Court o20 May
1961 (SotttWed A fvica,OrderO/20 May 1961,I.C.J. Reports1961 p,.13).
Two Judgments have been ilelivered, the first on 21 December 1962
(South West Africa,Preliminajy Objectio.tJ,zedgwzent,.CJ. Reports1962,
p. 319) and the second on 18 ,July1966(SouthWestAfrica, Second Phase,
JudCross references corresponcl to the pagination of the present edition,
the volume being indicated by a roman figure in boldtype.
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 plaidoiriesurle fond etdes dépositions des témoinsetexperts
est publiée dans le volume VIII, pages 105 à 712,le volume IX, pages
x à 6j8, levolurne X, pages I à558, et le volume XI, pages I à 708.Ces
affaires ontétéinscritesau rÔLegénéralde la Cour sous lesnos46 et 47 le
4 novembre 1960 et les deux -instances ont étéjointes par ordonnance de
la Cour le 20 mai 1961 (Sud-Ouestafricain, ordo~tnancedzt 20 mai 1961,
G.I.J. Recueil1961, p.13). Elles ont fait l'objet deux arrêtsrendus le
21 décembre 1962 (Sud-Oztestafricain, excej5tionspréLimifiaires,carrit,
C.I.J. Recueil 1962, p. 319) et le 18 juillet1966 (Sud-Ouest africain,
deuxième phase, arrêtC,.IJ. Recueilr966, p.6).
Les renvois tiennent compte de la pagination de la présente édition,
un chiffre romain gras indiquant le numéro du volume auquel il est
renvoyé.
La Haye, 1966. CONTENTS-TABLE DES MATI~RES
PART II. ORAI" ARGUMENTS (concEuded)
DEUXIÈME PARTIE. PLAIDOIRIES (fin)
Page
24. Heanngs of the witnesses and experts (cond.) (20 x 65) . . . 3
EviCrosrexaminationor PobyoMr. Groïi. an. .xp.rt. . . . (. .d.) . . 3
Witness questioned by Judge Sir Louis Mbanefo . . . . .
Witness questioned by the President . . . . . . . . . .
25. Address by Mr. Muller (South Africa), 26 x 65 . . . . . . .
Introduction to further argument . . . . . . . . . . . .
Relevance of two memoranda filedby theParties in regard to
the functions propoçed for the temporary trusteeship
committee (Applicants' Submission No. 2) . . . . . . .
Applicants' formulation of their submissions and their
explanations with regard thereto . . . . . . . . . .
Apptheir norm or standardsts o. .he.al.e.ed. .i.te.c. o. . . -
Summary of Respondent's legal argument . . . . . . .
Analysis of the content of the norm or standard . . . .
"Discrimination" used by Applicants in its primary sense
Suggested distortion of the content of the norm or stan- . . .
dards . . . . . . . . . . . . . . . . ,.. . . . ,
Attempts at amplification of the content of the norm or
standards . . . . . . . . . . . . . . . . . . . .
Universal aduIt franchise . . . . . . . . . . . . .
Compulsory education . . . . . . . . . . . . . . .
Suin Applicants' definition bears some unfavourablen"
connotation . . . . . . . . . . . . . . . . . .
Affirmative and negative aspects of Applicants' defi-
nition . . . . . . . . . . . . . . . . . . . . .
Applicants' reformulation of the norm or standard . . .
Introduction of new element in the definition would be
The distinction between the norm and standards . . . . . .. .
Evidence led on the basis of Applicants' case as set out in
their reformuIated submissions . . . . . - . . . . -
Evidence fell into three main categories and remainder of
argument will fa11into the çame . . . . . . . . - .
26. Address by hlr. de Villiers (South Africa), 26 x 65 . . . . .
Resolutions on which Applicantsrely for the purpose oftheir
norm or standards contention . . . . . . - . . . - . SOUTH WEST AFRICA
Page
Most of thi: resolutions were concerned specificallp with
South and South West Africa ............
Purpose for which Applicants relied on thesc resolutions .
Grounds previously advanced by Respondent why these
reçolutio~iscould not support Applicants' case ....
Reolutions were based and the background theretores- ...
The political campaign that has bcen waged against
Respondent ...................
Campaigii related to present litigationai.............
No practical reason why Applicants instituted the
proceedings ..................
Applicants acted as representatives of the African
States .....................
References to pleadings .............
Further references to statements by Applicants'
representatives ................
Representatives of other African States ......
Petitioners ...................
The nature and objectives of the campaign .......
Calls for the complete liberation of Africa ......
Purposeicisithe establishment of Black rule over the whole
of South and South West Africa .........
Link between thiç purpose and the court action ....
Expreçsion of this purpose in resolutions adopted ...
At the conference of African States ........
In the United Nations ..............
Attin the campaignAfri................owards leaders
27 .Address by Mr .van Rooyen (South Afnca). 27 x 65 ....
Quality of criticisms levelled against Respondent aspart of
the carnpaign ....................
Campaign charactenzed by emotional outbursts .....
Applicant States .................
Other AIrican States ...............
OtherStates ...................
Allegations based on staternents by petitioners .....
Role played by petitioners ..............
Who are the petitioners ..............
Their objectives .................
Their methods ..................
Cornmon purpose between petitioners. and participants
in the carnpaign ................ III
AppIicants' reliance on the petitioners ......... III
Fabrications exposed in the Counter-Mernorial ..... 112 Page
Unreliability of statements of petitioners confirmed by
&Ir.Dahlinann . . . . . . , . . . . . . . . . . . 1x3
The rcliance placed or1the statements of petitioners in the
United Nations. . . . . . . . . . . . . . . . , . . 114
Allegations that Respondent pursues a policy of genocide 115
Statements by petitioners . . . . . . . . . . . . . 115
Statements in United Nations debates. . . . . . . . 115
AUegations that non-IVhites are herded into concentration
camps, etc. . . . . . . . . . . . . . . . . . . . 117
Statements bypetitioners . . . . . . . . - . . . . 117
Reports of the Comrnittee on South West Africa. . . . . .. . 118
Alhatred andthata doctrine of White supremacyoted i. .ac.a. . . 119
Statements bypetitioners . . . . . . . . . . . . . II9
Staterne~its in United Nations debates. . . . . . . . 119
Allegations that Natives are confined to the poorest areas
in the 'îerritory. . . . . . . . . . . . . . . . . . rzo
Sirnilar allegationç by Applicants . . . . . . . . . . 120
True facts set out in Respondent's pleadings and by
witnesses . . . . . , . . . . . . . . . . . . . rzo
Statements by petitioners . . . . . . . . . . . . . IZI
Reports of the Comrnittee on South West Africa . . . 121
Statements in United Xations debates. . . . . . . . 122
Allegations that the objective of Bantu education is to
insure that inferior education iç given to the Natives . 122
Statements in United Nations debates. . . . . . . . . . . 123
Allegations relative to militarization of the Territory . . 124
True facts stated:
UyCommittee.t's . . .re.re. .ta.i.e . .in.t.e . .o.rt. . 124
In the Counter-Dlemonal. . . . . . . . . . . . . 125
By Ceneral Marshall . . . . . . . . . . . - . . 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
petitioners' staternents.epor. .we.c.no. . .lu.nc.d.by. . . . 128
Conpetitioners inid1955report o P thv Ceomnmittee on South of
'l'l'eAfrica . . . . . . . . . . . . . . . . . - 129
InRuence of such statements on subsequent reports of
the Cornmittee . . . . . . . . . . . . . . . . . 131 SOUTH WEST AFRlCA
Page
Direct evidence that delegates of various States reiied
Suppression of information favourable to liespondent's . . . . 132
administration in the Territory . . . . . . . . . . . 113
Influence of thestaternents of petitioners on resolutions of
the General Assembly . . . . . . . . . . . . . . , 134
Participation of petitioners in discussions on draft
resolutions . . . . . . . . . . . . . . . . . . .
Aspopulation of the Territory. t. .y . .pr. .n. .at. . .
Refutation of this assurnption in evidence of Mr.Dahl-
mann . . . . . . . . . . . . . . . . . . . . .
References in resolutions to evidence of petitioners . .
Conclusion that evidence of petitioners has been false and
has playcd a major role in the adoption of United
Nations resolutions . . . . . . . . . . . . . . . .
28. Address by Mr. van Heerden (South Africa), 28 x 65 . . .
The resolutions on which Applicantsrely did not purport to
evolve or apply a norm or standards as defined by Appli-
cants . . . . . . . . . . . . . . . . . . . , , . .
The grounds on lvhich Applicants allege that the reso-
lutions wore concerned with the norm or standards . .
Resolutions condemned apartheid on the basis of a con-
ception that it was an oppressive policy . . . . . . .
The resolutions which pertain to South West Africa . . . .
Necessity to look at the debates in the Fourth Committee
RelAfrics . .th. r. .rt. . .of. . . . .tte. o. . .th. .st. . .
This Committee condemned Respondent's policies because
they were thought to be designed to oppress the in-
digenous population of the Territory . . . . . . . .
Reçolutions adopted at the 14th Session of the General
Debatesmhlin the Fourth Committee. . . .. . . .. . . .. . . .
Resolutions adopted at the 15th Session of the Gerkeral
Assembly . . . . . . . . . . . . . . . . . . . .
Debates in the Fourth Committee. . . . . . . . . . .
Resolutions adopted at the 16th Session of the General
Debates in the Fourth Cornmittee.. . . ... . . . .. . . . . .
Resolutions adopted at the 17th Session of the General
Assembly . . . . . . . . . . . . . . . . . . . .
Debates in t.hehucth Cornrnittee. . . . . . . . . . .
ResAssembly ado.te. . .the r. . .es.io. . . .e G. .r. . . . .
Debateç in t.heFourth 'Cornmittee. . . . . . . . . . .
Applicants' argument that the resolutions established the
incompatibility of Respondent's policies with the
provisions of the Charter. . . . . . . . . . . . . . COHTENTS XII1
Page
Resolutions and debates in the Fouth Cornmittee merely
established the view that the Charter prohibited oppres-
sive discrimination ................
The resolutions which pertain to South Africa itself ....
Necessity to look to debates in the Ad Hoc Political
Cornmittee and Spccial Political Cornmittee ......
Debates in the Special Political Comrnittee during the
14th Session of the General Assembly ........
15thSession ...................
16th Session ...................
17thSession ...................
18th Session ...................
Conotion that apartheid was a policywhich was designed to
and did in fact oppress the Bantu popuIation .....
The resolutions of the Security Council on whch Applicants
rely........................
Background to the resolutions ............
Participation by representatives of non-members in the
debates .....................
Views of representatives of members of the Security
Council .....................
The relevance of the studies undertaken with regard to the
question of legal action against Respondent ......
The history of the studies ..............
Grounds on which it was considered action might be in-
stitut:ed against Respondent ............
Extracts from the reports of the Cornmittee on South
Cornmittee's criticisrns based on the notion that Ke-
spondent's policies were designed to oppress the in-
digenous inhabitants of theTemtory ........
Reliance placed by Applicants on the views of the
Comrnittee ....................
Unnecessary to canvass the assertions and findings of the
Cornmittee ....................
Summary ......................
29. Address by Mr. Muller (South Africa), 29 X-I XI 65 ....
The norni or standards suggested by Applicants is not
universally observed in the practice of States......
Main evidence upon which Respondent relies is that of
Professors Possony . van den Waâg and Manning ...
Expertise of Professor Possony ............
Gist of his evidence: differentiation by law in various
countries ....................
Importance of differential treatrnent on the basis of
No cross-examination on the factual evidence as to the
practice of States ................. SOUTH WEST AFRICA
Page
Gcneral trend of cross-examination that Respondent's and
the witness's understanding of the Applicants' case is
wrong .......................
.Cross-examination as to the meaning of "discrimination"
Suggestion that "discrimination" connotes the denial of
equality of opportunity and equal protection of the law
Applicants' reformulation of the content of their norm or
standards ....................
This reforrnuIation does not materially differ from
definition in the Reply. ..............
The principle of equal protection merely means that the
laws shall be applied equally to al1perçons to whom they
relate ......................
Differential Iaws exist side by side in constitutions with
provisions of equality before the law ........
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 ...............
The examples of differential treatment mentioned by
Professor Possony cannot be explained awag on the
basis that permissible differentiation must aiiow an
individual to quit hiç group ............
A depatture by Applicants from their definition of the norm
or standards would constitute the making of a new case .
Profeçsor Possony's evidence concerning attempts in the
international sphere to formulate objectives with regard
to the treatment of individuals and ethnic groups ...
No convi:ntion on the subject of individual or group
rights other than the Genocide Conventions ....
Attempts at drafting other covenants ........
Views expressed at recent seminar held under the aus-
pices of the United Nations ...........
Professor Possony's conclusion that Applicants' norm is
not observed in the practice of States ........
General Assembly resolutions relied upon by Applicants
other tlian those pertaining to South and South West
. Africa.. ....................
Resolutions which were intended to have a general
application. ..................
Resolutions pertaining to non-self-governing territories.
Resolutions pertaining to education in non-self-govern-
ing territories..................
These resolutions do not provide proof of a norm or
standards asdefined by Applicants ........
The application of Applicants' norm or standards would in
the circumstances of many countries lead to results in-
consistent with progress and well-being ........
Evideiice directed to countries generally was given by
Professors van den Haag, Manning and Possony ... Page
Professor van den Haag's qualifications as an expert not
challenged by Applicants ............
Expertise of Professor van den Haag ........
Gist of hi- ev--ence:
Group consciousness and group conflicts ......
Partition and mass removals as remedies to avoid
conflicts ...................
Immigration Iaws to avoid introduction of possibly
unassimilable elements. ............
Attempt to achieve assimilation by force would not be
successful ..................
Cultural differences between groupsmight be so great
asto cal1 for legal measures to separate them. ..
Each case must be dealt with oii merits and not by a
preconceived forinula .............
Professor Manning's qualifications as an expert not
challenged by-Ap--icants ............
~rofessorMannin~'s expertise ..........-
The gist of his evidence:
Tlie collective self-hood of a group ........
Formulas to prevent conflict betweeii different groups
in a single country ..............
Professor Possony also stressed the importance of
recognizing group diffcrences in pluralistic societies .
Nothing in the cross-examiiiation of the three witrtesses
that detracts from their views that application of
Applicants' norm under al1 circumstances would in
rnany cases be to court disaster. .........
Evidence relative to the situation in general and in South
Wesl Africa itself.................
Certain witnesses expresscd views on the basis of
knowledge obtained from the pleadings ......
Facts in pleading admitted by Applicants ......
These admit ted facts include:
The existence of different population groups with
different traditions, cultures, etc. ........
In the history of the Territory there had been a
period of strifeand warfare between anumber of the
groups. ...................
Various groups find thernsclves at different levels of
development .................
The various groups to a vcry large extent occupy
separate regions in the Territory ........
The iiidigenous groups still recognize and apply their
traditional s~rstemsof government .......
Tlie groups are conscious of their separate identities.
professir 3ianning expreçsed the opinion, on the basis
of these facts, that application of Applicants' norm
or standards to South West Africa would:
InvoIve a non-I-eçognition of relevant differences . . SOUTH WEST AFRIC.4
Page
Be incompatible withthe idea of self-determination . rgg
Professor Manning was not cross-examined on this view zoo
View of Professor van den Haag based on the admitted
facts ..................... 200
Evidence of Ur Eiselen .............. 201
His expertise .................. 201
His description of the position in the Territory ... 201
Policy ofseparate development not based on any con-
cept of superiorit y .............. zor
This policy best suited to the circumstances of the
Territory .................. zoz
Disastrous effectsof appIying Applicants' nom 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
AboIition of differentlal measures would lead to
chaotic situation .............. 206
Cross-examination did not directly challenge lis
opinion ................... 207
Evidence of hlr Gericke .............. 207
His expertise .................. 207
Intereçts and activities of his church ....... 208
Establishment of separate churches for separate
groups ..................... 208
Advantages of this system ............ 209
His opinion not shaken in cross-examination .... 2x0
Evidence of Mr Cillie .............., 2x0
His expertise .................. 210
AppIication of Applicants' nom in South West
Africa would create innumerabletensions .... 211
30 Address by hfr rieVilliers (SouthAfrica), 1-3 XI 65 ..... 212
The legal effect of admissions .............. 212
In American and English systems ........... 212
Wigmore on evidence ............... 212
Gilbert on evidcnce ................ 2x2
Phipson on evidence ................ 2x3
Larson Co v. . Wvigley Co .............. 213
Court generally bound by admissions ........ 213
In Continental systems ................ 214 CONTENTS XVIl
Page
Effect of admissions in the present case ........ 214
Made in real dispute ................ 214
Carefully made .................. 2x5
Cogent guarantees for the probable correctness of the
admtted facts ..................
Effect of admissions on opposite psrty ........
The legal effect of lack of cross.examination.......
Phipson and evidence ................
Browne v .Dunn ..................
In Continental systems ................
Effect in the present case ..............
Dr .Eisekn not cross-examined ...........
This was consistent with attitude of Applicants ....
Change in policv frum second witness ........
Other witnesses not.cross-examined on vital portions of
evidencc .....................
Extracts from books, etc., put to witnesses did not become
evidence ......................
Evidence led purely for the purpose of demonstrating the
effect which the application of the norm and standards
would have on thc well-being of the population of the
Territory .....................
Applicants havenot brought acase to the effect that although
officia1differentiation may be permissible specificmeasures
must be regarded as impermissible ..........
Position may have been different on the basis of Appli-
cants' original case ................
In terms of Applicants' amended submissions. however.
the policy as a whole and specific measures are to be
judged by one and same criterion ..........
This criterion does not involve purpose. results. laimess or
reasonableness ..................
fl Applicants' catalogue nonetheiess included only measures
which seemed to favour the White group .......
Unnecessary to deal with each item in the catalogue ...
Xot possible for the Court to give a decision with regard
to a specific rneasure on the basis ofany other criterion
than the one involved in Applicants' submissions ...
Specific measures part and parce1 of nine dynarnic
situations ....................
The content of the norm or standards in their relation to the
political life in the Territory.............
In theory norm or standards would not be violated if no
politicalrights granted to any group ........
Applicants' case however that such rights should be granted
............
Reactionioinithe Counter-Mernorial ...........
In the Reply Appliçnnts introduced norm which involved
duty to institute universal adult suffrage.......XVlII SOUTH WEST AFRICA
Page
Respondent'~ answer in the Rejoinder . . . . . . . . 229
Applicants' case agrees with objectives expressed by the
General Assembly of the United Nations. . . . . . .
Report of the Special Cornmittee on South West Africa
Resolution No. 1760 of the General AssembIy. . . . .
Durtheir case regarding politica1carightstem. .d . . . . .o.al.e,
The meaning of "universal adult suffrage" . . . . . . . .
Resolutio~i No. 1760 of the General Assembly. . . . . .
Dictionary definitions . . . . . . . . . . . . . . . .
Restrictions and safeguards rnentioned by Applicants . .
Applicants' latest contention :no obligation togrant universal
adult suffrage in South West Africa . . . . . . . .
Respondent can only deal with subject of political rights on
the basis of the alleged existence of the norrn or standards
Appadult suffrage in South West Africa as lead oneunpolitical unit
Implications of such an application of the norm or standards
Admitted facts show the differences between the groups
Attempts ;itunification of the various indigenouspolitical
parties tfescribed by Mr. Dahlmann . . . . . . . . .
Such political parties not representative of more than one
group . . . . . . . . . . . . . . . . . . . . . .
No reason not to accept Mr. Dahlmann's evidence. . . .
Thdigenous inhabitantstween . . W. .e .ro.p. . . . . .the. .- .
Customary in certain circles to refer to members of
ilrhite group as settlers . . . . . . . . . . . . .
In rgzo already settled White community in South
West Africa . . . . . . . . . . . . . . . . . .
Necessity to retain and expand that population for the
purpose of:
Maintenance of thestatus quo . . . . . . . . . .
Development of the land. . . . . . . . . . . . .
Development of the fishing industry. . . . . . . ..
Further immigration of Europeans encouraged in order
to develop the economy . . . . . . . . . . . . .
Respondent consequently holds responsibiIity to the
White group . . . . . . . . . . . . . . . . . .
Delegation of measure of political power to White
group in course of tirne . . . . . . . . . . . . .
Only conclusion that application of the norm or stan-
dards in the political sphere wilI lead to disaster . .
Defects inherent in granting of quaIified franchise. . . .
Experiments in multi-racialism in Africa. . . .. .. . ..
0bjectivt:s of indigenous political leaders in South
West Africa: evidence of Mr. Dahlmann . . . . . .
Conclusion that any attempt at gradua1 creation of
muIti-raciaI political organization is doomed to
failure . . . . . . . . . . . . . . . . . . . . . CONTEWTS SIX
Page
Effect ofthe introduction of universal adult suffrage on the
well-being and progress of the inhabitantç of South
\Vest Africa ...................
248
Events elsewhere iri Africa............. 248
Creation of one-party States ............ 249
Evacuation ofone-party States ........... 249
Opinion of Profeççcir Bruwer ............ 250
Opinion ofMr .Cilli................ 251
Opinions of Dr . Eiselen and Professor Logan ..... 253
Al1 opinions point to disruption. bloodshed and chaos 253
Specific effectas regards Ovambos and people of the
Eaçt Caprivi .................. 253
Applicants' reaction to evidence of experts in the political
sphere ....................... 254
No attempt to establiçh that abolition of difierential
allotment of political rights would promote well-being 254
Examples of cross-examination of Profeçsor Bruwer and
Mr .Cillie .................... 254
At the most Applicants attempted to show that certain
çpecific measuresu7erenot justified ......... 255
No criterion advanced for testing such mcasures .... 255
Applicants also attempted to establish that Individuals
may be detrimentally affected ........... 256
Whole policy must. however. be weighed ........ 256
A policy involving a differential allotment of rjghts. etc., is
necessary ..................... 257
Notpolicy'..................... into Respondent's actual 257
Respondent Government'ç attitude expressed in ihite
Paper ...................... 2-57
Aimç and purposes of Respondent's policy discussed in
pleadings ................... 258
Advantages envisaged by Reçpondent ........ 258
Developments in the Transkei ........... 261
Political devclopment .............. 261
Administrative development ........... 263
Economic development ............. 263
Favourable reaction to development from Natives in
South West Africa .............. 263
The effect of application of Applicants' 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 persons ..... 266
Al1 restrictions which protect residential rights of
specific groupç woiild have to be abolished..... 266 CONTENTS XXI
Page
Questions on mother-tongue instruction ....... 7-78
Evidence in regard to particular advantages not
chaUenged .................. 278
Suggestion that itismore important for a Native child
to be taught in the medium of the language of the
economy in which he works ..........
Suggestion of practical difficulties in using the ver-
nacular as medium in certain areas .......
Suwith political and economic phenornenait f.....aling
Suggestion that Native child should be allowed to
clioose to take lessons throzrgh other medium ...
Questions on compulsory education .........
Recompulsory education for Native children in thes not
'Territory ..................
Views of missionanes in the territories.......
Applicants' attitude that absence of compulsory
educationisnot 9er se abreach of the Mandate . .
This attitude consistent with charges in written
pleadings ..................
Compulsory education in other countries ......
Liberia ...................
African States generally ............
Difficulties encountered ............
Relatively high school attendance in South West
Africa .............. ......
The evidence of Profcsçor van den Haag ........
Expertise of Professor van den Haag ........
No evidence that segregation per secausespsychological
injury .....................
The basis of the B~own case ............
Opposite views put to the witneçs in cross-examination
His views regardir~g system of separate education in
South West Africa ...............
The evidence of Professor Rautenbach .........
Background information in the pleadings ......
Expertise of Professor Rautenbach .........
Expertise not challenged in cross-examination ....
Disadvantages of former system of open universities in
South Africa ..................
Former open univerçities limited the number of
admissions of Bantu students ..........
Those who were admitted never led a full university
life .....................
Fees ai the open universities were high ......
Gacommunitiesetw.................s and their SOUTH WEST AFRICA
Page
Advantages of present system of separate university
institi~tions in South Africa ...........
Universities for Bantu will play important role in the
development of the Bantu communities .....
Bantu studeiits lead a fiitl university life......
Fees are low ..................
Teaching methods adopted ............
More opportunities for Bantu inte1Iectuals to be
appointed to academic posts ..........
Opinion that harmful resdts would ensue if present
systems abolished ................
.Cross-examination of Professor Rautenbach ......
.Nat directed at ndvantages described by him .....
Contrary views put to him .............
These did not hecorne evidence ...........
Not put to him that universities for Bantu are inferior
institutions...................
32 .Address by blr. Grosskopf (South Africa). 4-5 XI 65 .....
Evidence relating to the economic field .........
Purpose of the argument ...............
Main witnesses Profcssors Logan and Krogh and $Ir. Pepler
Their competencyf thhas been clearly established .....
The background of the economic situation in South West
Africa ......................
The size of the Territory ..............
. .The. size of the population...............
The nature of the population ............
The social environment of the population ......
Reasons why it is necessary to apply a policy which
involves a differential allotment of rights on a groiip
basis ......................
Reasons advanced with regard to political sphere also
important in the economic context ........
Necessity to protect land rights of groups ......
.. 'Former dispute about land ...,........
Tendency to sel1land rit uneconomic prices .....
Return derived by Natives from land smaller than
that ofEuropean farmer ............
Opinion of Professor Logan ...........
. Opinion of hlr. Pepler ..............
These opinions not challenged in cross-esamination .
Impossible to protect land rightç luithout offending
against Applicants' noi'm or standards ......
Protection of landrights also required for maintenance
of matters such as social peace and traditional
political institutions.............. CONTENTS XXlII
Page
Necessity to protect commercial and employrnent
opportunities ..................
Protection of indi1;enousenterprises against European
competition .................
In Ovamboland ................
ln the Police Zone generally ..........
In urban areas ................
Has led to increased participation of Natives in
commerce .................
. .eservation of employment in Native areas for
Natives ...................
Restrictions on employment opportunities for non-
W'hites in the White area ...........
Opinion of Professor Krogh ..........
Considerable part of cross-examination directed to
this topic .................
... Nom or standards would preclude ail protective
measures ..................
Special methods of promotion and development neces-
. . sary as between various groups .........
Opinions of Professors Logan and Krogh that the abolition
of differential measures would not promote well.being .
Similar opinion of Dr .Eiselen ............
Cross-cxamination of witnesses on the economic aspects .
No attempt to establish that differential treatment gives
rise to undesirable consequences .........
Emphasis on detrirnent which could be suffered by a
. particular individual ..............
Examples of topics touched in cross-examination ...
Respondent did not attempt to discuss the economic or
morai ments of each measure which has been referred to
the Court ....................
Would have been long task to attempt to do so ....
Illustration with reference to Mining Proclamation . .
Wider type of investigation would have been necessary
had Applicants kept to their original case .....
Such investigation iinnecessary in view of sole issue: the
existence of the Iiorrn or standards ........
Conclusion that application of norm or standards will be
incompatible with well-being and progress ......
Applicants' Submission No 6: hlilitarization.......
In oral proceedings Applicants did not devote much
attention to charges under militarization. .........
The dispute as it emerged in the pleadings
AZemorials ....................
Three bases alleged ...............
Criterion suggested ...............
Counter-hlemorial .................XXIV SOUTH WEST AFRICA
Page
Meaning of "military bases" ........... 317
Supporti:d by General hlarshall ........... 317
Factual position ................. 318
Reply ....................... 318
liegimcnt Windhoek ................ 318
Landing ground at Swakopmund .......... 3x9
New charge reIating to Walvis Bay ......... 319
Military camp andlor airfield at Ohopoho ...... 320
Omnibus charge relating to military activity in general 321
The charges as formulated in the oral proceedings ..... 321
Initial indication thatmilitarization would be dealt with
duriitg the "fact stage" of the proceedings ......
Militarization eventually dealt with only in the context of
Applicants' supervision argument ..........
Analysis of Applicants' contention ..........
33. Address by hlr .de VilIiers (South Africa). 5xr65 .....
Applicants' Submission No .5: Incorporation .......
Submission in the Mernorials .............
Reformulatjon of the snbmiçsion during the oral
The dispute as it emerged in..the.pleadings ......
Counter-Mernorial.................
Reply .....................
Rejo~nder ...................
The charges as stated in the Oral Proceedings .....
Initial indication that charges would be........4th dur-
Applicants' argument that Respondent's intent must be
inferred by means of a conclusive presumption ...
Applicants' argument that Respondent has an intent to
partition the Temtory without the consent of the
supervisory organs ...............
Contention that acts of Respondent are per se a vio-
lation of the separate status of the Terntory did not
feature inoral argument .............
The complaint regarding the question of nationality ...
The complaint regarding representation in the South
African Parliament ................
TheCaprivi Zipfelrd.................. separation of the
The complaint regarding the transfer of the adminis-
tration of Native affairs ..............
The linking of these cornplaints with the charge relating to
supervision....................
Applicants' Submission No .g: unilateral amendment of the
Mandate ...................... CONTENTS XXV
Page
History of the dispute in the pleadings ........ 338
The Mernorials .................. 338
The Counter.Memoria1 ............... 335
The Rejoinder..................... 339
339
Thestatements of the charges in the Oral Proceedings. . 339
Intent to incofporate 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 concerning Article 2. paragraph 2.of the
Mandate ..................... 344
34 .Address by Mr .Botha (Soutli Africa).5 XI65 ........ 346
Statement of Respondent's Final Submissions ...... 346
35. Observations of Rlr. Gross ................
347
lieaffirmation of Applicants' submissions of 19May .... 347
Comment on Applicants' objections with regard to the
relevance. weight and credibility of.evidence...... 347
Repattitudeduring cross-examinationpo...........plicants' 357
Comment on the evidence ............... 360
lioftnon-Whites "sojourning" in the White areas. solelydom
on the grounds of tlieir colour ........ .. 360
Spccial position of the Coloureds ........... 373
Unthe modern economic sector against "eventual" Blackin
domination elsewhere ............... 374
Unilateral adoption of the White minority of decisions
determining the future of the Territory ....... 382
Comment on material introduced by Respondent pertaining
toUnited Nations resolutions or debates or to the deliber-
ations of United Nations comrnittees and agencies..... 388
The evidence has shown the inherent and fier sincompati-
bility of apartheid with moral well-being and social
progress ...................... 390
36. Comment by Mr .de Villici-s...............
3g2
Applicants' failure to comment on evidence on militari-
zation. incorporationof the Territory and modification of
Alleged violation by Respondent of the obligation contained 392
inthe second paragraph of Article 2of the Mandate ... 392
General remarks on Applicants' tactics ........ 392
Simissionsc.....................endment of their sub- 393
Meaning of "distinguish". "discriminate" and "separate" . 394 XXVI SOUTH WEST AFRICA
Page
Whether racial differentiation in South West Africa unfair . 402
Changed attitude of Applicants towards the facts stated by
Views put to witnesses in cross-examination not evidence . . . 418
Cornments on Applicants' attacks on the relevance, weight
and credibility of the evidence of some witnesses . . . . 419
Applicants concerned chiefly with the 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 Territory 427
Recapitulation ofreasons justifying the policy of separate
. Applicants'suggestion of "the esçentially racist perspective. 427
which uniquely marks apartheid". . . . . . . . . . 429
Respondent's census classification-criteria adopted . . . 430
Kigidity of classification justified; exceptions allowed . . 435
Criticism of Applicants' comrnents about false equivalence;
positive aspects of the system of apartheid. . . . . . . 437
Why Resporident did not deal with the position of the
Criticism of Applicants' comments regarding social peace . . . 445
Cornpulsory education . . . . . . . . . . . . . . . . . 446
Applicants' comment on Respondent'scontentions regarding
the resolutions and deliberations of the United Nations . 447
PART III. DOCUXENTS SUBMITTED TO THE COURT AFTER
THE CLOSURE OF THE WRITTEN PROCEEDINGS
TROISICME PARTIE. DOCUMENTS PRÉSENT~S A LA COUR
APRÈS LA FIN DE LA PROCÉDURE ÉCRITE
1.Documents filed by the Agent for the Government of South
Africa . . . . . , . . . . . . . . . . . . . . , . . .
Preparatory Commission of the United Nations (PCITCII~) .
Preparatory Commission of the United Nations (PC/TC/3o) .
II. Documents fiIedby the Agent for theGovernments of Etliiopia
and Liberia . . . . . . . . . . . . . . . . . . . . . .
Memorandum regarding evidence introduced by sespondent
eda,! t. . .al. . .ee. . . . . 2. . . .965. .(. . .p..4.1.
Annex A: Preparatory Commission of the United Nations
Annex B: Chapter IV: the trusteeship system . . .. . .. . .. . .
Annex C: Supplement No. 4 (PC/TC/4) . . . . . . . . . .
Annex D: Supplement No. 4 (PC)TC/~I) . . . . . . . . .
Annex E: Conimittee 4: Trusteeship, surnmary record of
meetings No. IO. . . . . . . . . . . . . . . . . . . . CONTESTS XXVII
Page
Annex F: Cornmittee 4: Trusteeship. summary record of
meetings NO. 15 ................... 485
Annex G: Preparatory Commission of the United Xations
(PC/TC/41) ..................... 489
Document filed by the agent for the Government of South
Africa ........................ 491
Respondent's reply to Applicantsmemorandum ...... 491
PART IV. CORRESPONDENCE
QUATRIÈJIE PARTIE. CORRESPONDANCE PART 11 fconcl@sion)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held frorn5 March to14 July,20 Septernber
to15 ATovemberand 29November 1965,zxMarch and on
18 JztE1966, the President, Sir Percy Sibender,presiding
(concluded)
PARTIE II (suite Jin)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
bnztes du15mars azi14 jztillet,20septembre
azt15novembre,Le29 novembre1965, le21mars
etEe18 juillei r96souslaprésidence
de sir Percy Spender, Président
(suite et fin) ANNEX TO THE MINUTES(concluded)
ANNEXE AUX PROCÈS-VERBAUX (suite ct fin)
24. HEARINGS OF THE WlTNESSES AND EXPERTS (concEuded)
>Ir. GROSSM : r.Possony, in respect of your testimony directed to the
point that attempted application of international standards-1 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 significance or
meaning do you attribute to the word "discrimination"?
Mr. POSSOXY I: a line on page 493 of theReply, IV, it is said that
the terms are used in their prevalent and customary sense. According to
the Concis OexfordDictiosary the word "discriminate" means "be set up
or observe a difference between or distinguish from another, making a
distinction". Then there is a parenthesis which says "discriminate
against, distinguish unfavourably, of taxes for examplc" or "observe
distinctions carefully".Now the dictionary here says essentially, as1
understand it, that the word discriminate or non-discrimination is meant
simply to describe a difference of fact, that you have a situation of
differencesin reality and you take those into account. It does not have,
in the prevalent and customary sense, a meaning either of discrirninate
against, which is whût the dictionary refersto, or discriminate for, in
favour of, which would also be a meaning. That, Ithink, is the meaning
of page 493, that discrimination is essentially a neutral term.
&Ir. G~oss: So that your testimony with respect to the existence or
attempted application of international standards, as defined on IV, page
493, assurned, if1 understand you correctly, that the word "discrimlna-
tion" was used in a neutral sense, that is, equivalent to meaning any
distinction or difierentiation, whether benevolent or otherwise?
Mr. POSSOXY W:ell, in line with pa493, asI understand it, the word
"discrin~inatc" is used neutrally in the sense that no laws should be
paçsed or, as it says hcre: "Governmental policy and action should be
undertaken in ljne with a discrimination concept"; that is, as is also
stated in the paragraph, the laws should essentially refer to individuals
aç such. That is what 1understand this to mean.
Bow, in the argument supporting the norm, vnrious texts arc quoted
~vhich,most of the timc, use the word "distinction", but at other times
they do not use this word and 1think a good exarnple of this is here at
IV, page 505 of the Reply. Itis said, on the last line of the test:
"The Declaration makes it cIear that racial distinctions, be they
called racial discriminationsegregation, separate development, or
apartheid,are unacceptable."
In the Draft Convention on the Elimination of Al1 Forms of Racial
Discrimination in one paragraph discrimination, as 1pointed out yester-
day in my testimony, is 1inki:d to evil racial doctrines and practices of
Nazism in the pst.4 SOUTH WEST AFRICA
Mr. GROSS If I may interrupt you there, what document are you
referring to, Sir?
Mr. POSSONY':i'hat isEICNqj873.
Mr. CROSS : rhat is the title of the document?
hlr. POSSONY :tis the Uraft International Convention on the Elimi-
nation .. .
Mr. GROSS: I see, you had referred to a Convention. Please continue.
Mr. POSSONY N:ow, summarizing this whole area of semantics, it
would seem that ~vehave here a word, or a set of words, which can be
interpreted in an entireIy neutral, objective sense, as observing or taking
into account the factual differences, orwe have an extremely pejorative
sense like Nazism, which is essentially genocide. As betwecn tliese various
terms and these different meanings, I think this is one of the difficulties
here, itis not quite clear which is rneant at what particular time.
Mr. GROSS:Mr. Possony, we will endeavour to clear that up. Now,
with respect to the use of the terrn, pejorative or otherwise, the Appli-
cants believe that they know what they mean by the term. hlyquestion
directed to you was not one of semantics at aU. It was. if 1 may repeat,
and perhaps you feel you have answered it, in your testimony, directed
to the point 1 have mentioned, what meaning or definition did you
attribute ta the word "discrimination"?
Mr. POSSONY: Well, itdepended on the context. 1 think this varied,
because I had to quote many texts. If you would be kind enough to
specify the precise point,I willtry to answer it.
Blr. G~oss: Did you use the term "discrimination" in any context,
in which it had what you described as apejorative sense?
Mr. POSSOX YUndoubtedly.
Nr. G~oss: Xow, with regard to your understanding on the points
to which you have testified, as set forth in the letter, paragraphç('a)
and {b), did you understand the content of the standards, contended
for by the Applicaiits, to apply to any differentiation or distinction,
whether ornot such differentiation or distinction involved discrimination
in a pejorative sense, to use your term?
hlr. POSSONI~A : sf tried to clarify n moment ago, IV, page 493, and
1 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 India for esample, but ituses it neutrally in the
sense that governmental policies çhould not be made that are allotting
status, etc., to groups rather than individualç. That. 1 think, seems to
me to be the gist of the second paragraph on page 493.
Mr.GROSS S:Othat the answer to my question, is or is it not, that your
understanding of the phrases used and the context in which they are
used, whether for good or ill, is that they refer to a neutral concept of
any differentiation or any distinction irrcspective of itslity or charac-
ter? 1s that your understanding?
Mr. POSSONY:hfjr understanding is that the norm, or I should say
the alleged norm or the norm which iç under debate, as it was tried to
be defined says, in essence, that the governmental action, letus Say a
law, drawn in terrns of groups, classes or races i9s0factodiscriminatory
and would fa11outside the nom as it is argued and that the concern of
the law should be the individual perçon.
Mr. GROSS:Can you answer the question yes or no, &Ir. Possony, or
do you feel you have already answered it? In the latter case1 will not WITNESSES AXD 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
irrespectiveof its quality or consequence? Can pou answer that question,
yes or no?
Mr. POSSONYN : O,1 cannot, because 1 think the usage varies. I think
on page 493 that the answer would be yes. In other contexts 1 do not
think that would necessarily follow.
Mr. G~oss: 1 am tallcing about the standards defined and described
on page 493 and I thank you for your answer.
1 should like to ask you whether you have farniliarized yourself, in
the course of your preparation for these proceedings, generally speaking,
with the Respondent's ivritten pleadings and 1 refer specifically to those
discussions in the Kespondent's ~vritten pleadings concerning the exis-
tence and the content of international standards concerning officid or
governmentaldiscrimination? Have you had occasion, in preparing your-
self for these proceedings, to consult or read the written pleadings of
the Respondent in that respect?
>Ir. Possosu: If 1 may ask a question, hfr. Yresident, does this refer
to the pages following page 45)3?
Nr. GROSS:1 beg your pardon, Sir; 1 should have, in fairness, identi-
fied what 1rneant by the Kespondent's written pleadings: 1 am talking
about the Counter-Meiriorinl 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 subscribeç, of eradicating, avoiding or reducing ta a
minimum a11unclesirable 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, tliat the term
"discrimination", as used in this context which 1 have quoted, isused
in what may be called a prevalent and customary sense connoting detri-
ment or inequaljty of treatrni:nt or some other adverse effect upon the
object of the discrimination? \Vould you say, Sir, that the word "discrim-
ination" in this phrase "unfair discrimination" is uscd in a prevalent
and customary sense, in apejorative sense?
hlr. Possori~: It is used ina pejorative sense, there is no doubt about
it, but whether it is used in prevalent sense 1 bow to the OxfordDictio-
?toryon that.
hlr. GROSS:hIaj. 1just . ..1 thought you had finished,excuse me, Sir.
Mr. Possowu: \\'ell. 1 would like to Say that they obviously have full
freedom to use the word under the heading of unfairness, in which case
we wouId have specifically to analyse the particular cases of unfa~rness
that may be aimecl at by a particular declaration or convention. The
question, it seems to me, has to be handled in two steps: first of all,
you have to decide ~lhether. in line with your own argument, you can,
should,or must,or should never. ivrjte alaw that recognizes the existence
or non-existence of groups. nrid whether you can draft a law only for indi-
viduals, as in the senseof the 19th-century State concept of laisser-faire,6 SOUTH WEST AFRICA
let us Say for simplicity; or whether you recognize groups asa valid
object of legislation. Now, once this is decided-and this is broiight up
by your forrnulatiori on page 493-then, obviously-and 1quoted many
examples-there is always the question of .doing something for or
againsi, and the very facts, very powerfully, in my judgment, call for
positive, constructive action. So then the question comes down to
whether a particular discriminatory rneasure-discriminatory now in
the sense of distinguishing or differentiating between two groups-is
either fair or unfair, or is constructive or destructive.
hir. CROSS :ow, Sir, keeping Our attention focused on the point in
issue, to which1 ani 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 terrns discrimination,distinction, differentiation,
and other terms, 1 now ask you, Sir, whether in your studies of the
Respondent's writtcn pleadings you have corne across Book IV of the
Counter-Mernorial, II, page 47540 you have that before you, Sir? In
paragraph 33, 1call your attention to the following language:
"It [that refers in the context1 think you \vil1find, tthepolicy
of separate development or apartheid as it is used interchangeably
if these pleadings] avoids the possibiliofmembers of one popula-
tion group feeling themselves threatedby the ..."
Mr. POSSONY J:st a second, Mr. Presjdent, Ihaire not found that.
Mr. GROSS P:age 475, paragraph 33, about 21 lines from the bottorn,
approximately. Have you iound that?
Mr. Posso~u: Yes, thank you.
hlr. GROSS : OW,that "It", as you twillnotice,in the context referred
to the so-called policy of separate development or apartheid.
$Ir. POSSOX Yes.
Mr. G~oss: Now:
"It avoids tlie possibility of members of one population group
feeling themselves threatened by the educational and economic
developrnent 011 the part of others. [1 particularly call this next
sentence to your attention:]Itavoids, also, the processes of discrim-
inationin the private economic sector which appear to be virtually
unavoidable in al1 cases where attempts are made at enco~zraging
.. . integration between groups as divergent as African Natives
and Europeans." (II, p.475.)
Ii7ithout soliciting your opinion concerning the policy of separate
development or apartheid as such-I understand that your testimony
was not directcd to that point-do you consider, in the contextof your
testimony, that the Respondent'ç reference to "discrimination", unqual-
ifiedby the word "unfair" or otheradjective,in the context just quoted,
is consistent with the customary or prevalent use of the word in the
politicaland social sciences?
Mr. POSSOXY A:lr. Gross1 think in this particular instancethe term
refers to an entirely differcnt phenornenon than the one vie have been
discussing so far: iip to now, we have been discussing Government
policy, but now in this particular caseyou find that the term refersto
the factor of discrimination as between human beings, if I understand
it right-1 have not studied this particular text-but that seem to
be the meaning: that in a factory or in a business firm peopleare be-
having in a discriminatory fashion as a rnatter of social fact-that ls WITNEÇSES AND EXPERTS 7
the sort of thing 1 was diçcussing yesterday in terms of the United
States, and it \vas considered not to be relevant to the subject.
3Ir.G~oss: 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 wciuld have in another context, based upon
the tactthat it refers here to social discrimination of a private nature
rathcr than governmental discrimination; would you say that changes
the character or meaning of the word, as you use it in your testirnony?
Mr. POSSQNYB : ut it is an entirely different phenornenon.
hlr. GROSS: 1 see, Sir, so thst you consider that the allegation or the
contention made, in terms of your testimony, which is what we are
trying to analyse, not to deb:~teor have word garnes, it iç your under-
standing that the tem, as used in the Applicants' formulation of the
standards, relates to any distinction or differentiation, irrespectiveof
its character,as beneficent, benevolent, detrimentai, or what have you?
31r. POSSONYO : n IV, page 493?
Mr. G~oss: 1am talking, Sir, about the formulation of the standards.
Now, Sir, let me just clarify that point in tem of your comment:
page 493 js not a self-containecl page in these pleadingsas you know,
Sir, the sources and content are generally described on page 493, but
there is considerable discussion elçewhere concerning the nature and
content intended to be carried by those words-you understand that,
Sir, do you not?
Mr. POSÇONY: Yes.
&Ir. GROSS:1 am not, thereforc. talking about any particular set of
words, 1am talking about the nieaning underlying the words, and this
is what we are attempting to clarify in terms of your understanding.
Now, in those terms, Sir, did you odid you not understand the concept
or the standards, for which the Applicants contend in this case, to make
impermissible any distinction or differentiationon the basis of race,
sex, etc., irrespective of its character, quality or effectOr have you
answered that question already?
Mr. Possoxu: 1 think I answered it, and 1 have to go back to what 1
consider, and what has, apparently, corne up again and again in the
proceedings, the key paragraph or the key point, ~vhichis on page 493;
and in that text, irrespective of what iollows in other parts, it is a
matter of governmental policy in terms of group legislation.
hlr.GROSS :nd of any type of differentiation or distinction, is that
what you niean to say?
Mr. YOSSONY1 : re-read that the terrns refer to governmental policies
and actions, and then 1skip a few words because that is on the positive
part, saying this cssentially and refcrring to individual persons as such
-that is my understanding. Thnt the rest of the argument and that
perhapç the motivations of the whole question are beyond that, is
certainly true.
Mr. G~oss:So that if your understanding is clarified, Sir, with respect
to the actual intent, andif itwere the case that the Applicants contend
for standards bvhich do not make imperrnissible any distinction or any
differentiationas such, would that alter the basis upon which your
testirnony was given, Sir?
Mr. Possosu: 1 do not think so, for the simple reason that in that
case 1 ~ould have to have the text to know exactly what the criterion
is on which the permisçible4et us Say discrimination, the enabling8 SOUTH WEST AFRICA
discrimination, is being made. As I understand it, and leaving aside
the question of South Africa or putting it in only as an example, 1
have, as a political scientist, to decide when 1 look at this case whether
you have policies of the Nazi style, which are genocidal, and which
would obviously be cntirely imperrnissibleas far asI am concerned, or
whether you have policies which are of an enabling character-this
seems to me 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 integrit~ 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, 1 would have to
see esactIy what are the criteria of permissibility or non-permissibility.
Jir. GROSÇ : ow, Sir, without attempting, and I wi1lnot pursue this
iine too much further, to defend the language usedby the Applicants-
no doubt better wisdom would have suggested better language-~vithout
asking you to comment about that, Sir, wouId it be fair to say that you
were not really sure whathe definition meantinterms of your testirnony?
What the phrase "discrimination" as used therein meant? Would that
be a fair question to ask you to answer?
The PRESIDENT Now, Mr. Gross, what particular part of his testimony
are you referringto?
Mr. GROSSI: am talking of the use of the term "discrimination"and
1 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 PKESIDEXT W henever it is used at any tirne, no matter iwhat
context?
Mr. GROSS: 1 am talking, Sir,about IV, page 493,the description and
definitionof the standards to which this witness's evidence is directed,
as1understand it.
Mr. Possoxu: Mr. Gross, or %Ir.President,1 should Say, on page493
the language is very clear. 1 do not feel that I have any particular
doubt-1 can easily argue about the meanings of these things, but 1
think the meaning isquite clear.
Mr. GROSS The meaning, Sir, as quite clearisthat itisused to mean
any distinction or differeritiation. 1s that correct, Sir? 1s that your
understanding?
Mr. Posso~~: In terms of group legislationThe rneaning is, so faas
1 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 mernbership in a group, class or
race", but may be this is wrong?
Mr. CROSS: Sir,1 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
1 do not support thc language we use, nor am Inow trying to interpret
it, this is between the Applicants and the Court, no doubt, Sir. 1 am
trying to clarify, in fairness to your own testirnony and its understanding.
what rneaning you gave to the word "discrimination" as used, and 1
think perhaps you have answered that, Sir.
Mr. MULLER hlr. President, the witness has ans~vered that question. WITNESSES AND EXPERTS 9
1 had put to him my understanding of the Applicants' case, and that
is that the case was that qroushouId not distinguish on a basis of group,
cIass or race1 was then asked to read to the witness page493, IV,which
1 did, so my learned friend must adhere to page 493 when he asks the
witness qucstions like that, or he must abide by my interpretation of
the case, and that is the basis upon which the witneçs has answered the
question.
The PRESIDENT I think it is not as simple as that, Mr. Alullcr. That
isthe reason why I asked ïilrGross. when he referred tu the use of this
term, in what context did he use it, as it has been used at different
tirnes and in different documents, and mai not have the same meaning
in different documents. That iswhy 1 earlier said to you to put to the
witness, and you did, the actual words at page 493 of the Keply. As is
there indicated, appears a definition of the norm or standard relied
upon by the Applicants. Itis not a general description, it is a definition.
Mr. G~oss: Yes, thank yoii, Sir. Exactly, Sir. Now with respect to
your testimony with regard to vnrious United Nations actioi~s and
resolutions and so forth, I cal1to your attentionDr. Possony, Article 55
of the United Nations Charter, which reads in relevant part, as you
know :
". ..the United Nations shall prornote:
...............................
(c) universal respect for, and observance of. human rights and
fundamental freedoms for al1 without distinction as to race,
sex, langiiage, 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 R:Ir. President, in covering a large body of evidence, it
is always estrenieIy difficult to decide what you put in and what you
do not put in, and we had trouble in the testirnony on that very point,
and 1made the assurnption that the one thing I can cut out is the dis-
cussion of the provisions of the United Nations, because the United
Nations provisions, as quoted in the Applicants' test here are quite
farniliar. AstoArticle 55,1 rvould say that ...
Mr. GROSS : r. President, 1 asked the witness, if 1 rnay 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 tvishes,
that is al1right with me, but itiç . . .
The I'~~:SIDEKTT :hat was rhe 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 testirnony you clid not
refer to this particular matter because it was already before the Court,
and for that reason 1 understood you to Say that you did not refer to
it specifically in the course of the testimony.
Mr.POSSONY T:hat is correct.
The PRESIDENT Th:at is not the question which Mr. Gross put to you.
The question as 1 understand it is, did you consider thisin effect in
preparing the general trend ofyour testimony, or did you omit it from
consideration altogether?IO SOUTH WEST AFRICA
Mr. POSSONY 1 had considered it. 1 was just about to reply to it in
detail, but the. . .
Mr. GROSS : ow, 1 should liketo ask you, perhaps rvhat you nrere
about to comment upon, Sir, and that is: is it your understanding, or
is it the basis upon which your testirnony is given, inter alin, that
Article 55,paragraph (c), of the Charter envisages or is directed toward
the elimination of al1differentiation between races, or sexes, or language
groups, or religious denominations? 1s this your understanding of the
purport and effect of Article55 (c)?
Mr. Yosso~u: Not at all, Mr.Gross, the Article is under the heading
of "International Economic and SocialCo-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 pnnciple of equal
rights and self-determination, so this is the general import of the full
Article. The implementation of this general point callsfor ensuring
"higher living standards", "full emplovment", and so on, 1 will not
read it ail, to get into (this is under (b)) "health problems", "social
problerns", and under (cl it is said 'human rights and fundamental
freedonis" with "universal respect for, and observance of, hunian rights
and fundamental freedoms ...".
Now, it seexnsto me thatit is self-evident that implementation should
be done in this way, and 1would certainly agree that this has a general
meaning. It is, however, a repetition of a general principle applied to a
specific problem.
&Ir. GKOSS :ir, could you answer my question, yes or no, with such
qualificationsas you rnay 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., purportisd toor was directed toward the elimination of, or
to encourage the elimination of, al! differentiation, any governmental
differentiation, on the basis of race or seu, etDo you understand this
Article to mean that, Sir?
Mr. POSSONY N:o, Sir,1 do not think it lias anything to do with that
problem.
Mr. G~oss: You do not think the word "distinction" ... I am sorry,
Sir.hlay 1 focus your attention on the words "without distinction". DO
you regard the words "without distinction" asused in that contest to
mean that there should be no differentiation of any kind between men
and women, for esampie, or betweeii groups, minors and persons of
age, or between other groups?
&Ir.POSSOXY : Ir,PresidentI have difficulty ithat 1 think >Ir. Gross
tries to interpret this particular passage angeneral way and 1interpret
it ina specific way, and 1interpret the language of Articlej5 first ofal1
within the context of Article 55. NO^, to give an easy example, this
Article talks about health and related problems, and 1 would interpret
this to mean that in the application af what isdone 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 tliat
the medical curebe made available to everybody who needs it, regardless
of race, sex, language or religion. The same thing applies to Iiving stan-
dards; if living standards can bemade to improve, then obviously there
should be irnprovernent for everybody, and there should not be a policy WITXESSES AND EXPERTS XI
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
impermissjblc under this heading. So 1 cannot but read this language as
referring specifically to what the message of this Article is.
Mr. GROSS: 1 will endeavour to suggest methods hy which perhaps
shorter, more responsive ansivers might be givcn. It ismy fault,1 am
sure,inthe form of my questions, thal they are not otherwise. 1 think,
Sir, that the point1 am attempting to elucidate is whether or not you
consider, and it is part of thebais of your testirnony, that the words
used in Article 55 (c), the phrase "without distinction", whether that
istaken by you to set forth a standardor priiiciple which would prohibit
any differentiation on the baais of race, or sex,or creed?
>Ir.POSSONY :f course not. But 1 did not write page 493 (IV).
;\IrGROSS : hank 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
of the definition or description which appears on page493, and which is
as inherent a part of the definition or description as any other part?
Itreads :
"Stated affirmatively, the terms refer to governmental policies
and actions, the objective of which is to protect equalityof oppor-
tunity and equal protection of the laws to individual personç as
such."
My question to you, very simply, is-you can answer yes or no-did
you take into account that term or portion ofthe definition in terms of
any ofyour testirnony?
&Ir.POSSONYN : O,Sir.
Mr. Gnoss: Now, with respect to the question of equality of oppor-
tunity and equal protection of the laws, would it be within the normal
and prevalent customary ust: of the term "discrimination" to refer to
phenomena, political, social, i-.conomicphenomena, in which perçons are
denied equality of opportunity and equnl protection of the law; would
that be a prevalent and customary use of the term "discrimination" in
the political ancl social sciences?
Mr. POSSONY :n the political and social sciences we can cc9ainly
use it this way. but whether it is prevalent or not 1 am not going to
reply to thisbccause it depends on the author. It would be a perfectly
logical use.
3Ir.GROSS Y:es,Sir.Now, with respect to the issue as joined,in terrns
of the content and application of the standards for ivhich the Applicants
contend, 1 call to your attention the Rejoinder, V, page 131.in which
the Respondent discusses the Applicants' contentions regarding the nom
andjor the standards, and specifically with reference to Article 55 of
the United Nations Charter. 1 call to your attention, Sir, onpage 131.
Respondent's statement that, after quoting the relevant portion of Ar-
ticle55, that isto Say, sub-paragraph (c):
"Respontlcnt is as desirous asany other Nember of the United
Nations to achieve the sbove-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 differenliafion (as distinct from unfuir discrimination)12 SOUTH WEST AFRICA
between races, sexes, language groups or religious denorninations
would involve conflict or inconsistency with the said Article."
And then further down on the page, beginning at the Iast paragraph,
itis stated:
"It is subrnitted, therefore, that the Charter did notpurport to
establish anp obligation not to differentiate between membcrs of
various groups, but was concerned merely to prevent oppression
and unfair discrimiriation."
And then it goes on to refer again to the Applicants; the version given
in the written pleadings and lateitithe Oral Proceedings to the Respon-
dent's interpretationof the Applicants' meaning, as distinguislied 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 testirnony based
upon an assurnption that those werc synonymous concepts, or synony-
mously used terms, "diffcrentiation" and "discrimination"?
MI. POSSONY : r. President,1 think I have this difficulty, that we
have to decide whether 1 am supposed to interpret the United Nations
Charter, or the interpretation of the Charter by the Applicants. In
interpreting the United Nations Charter 1 am very certain-1 do not
think, at lest-that the word "differentiation" is notmeant, or let us
Say this particular paragraph 55 (c),is not meant to irnply that distinc-
tions between sexes, foresample, should be disregarded. It would not be
feasible and 1 do not think this ever occurred to the clrafters.
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-esamining you to ascertain your mental
processes: it is not to get your interpretationbecause Mr. Gross knows
that that is something he cannot get. He is seeking to get your mental
processes for the purpose of deterrnining the weight to be accorded to
your testimony.
Mr. POSSONY: In this case, of course,1 have interpreted Mr. Gross'
Submission on page 493, IV, and according to that, differentiation as
sucli would not be aIiowed.
Illr. G~oss: Would not be what, Sir?
Mr. POSSOSY W:ould not be allowed, wouid not be adrnitted.
The PKESIDENTT : hat means the definition at page493 of the Reply?
&Ir.POSSONYD : ifferentiation as to g-roupswould be ruled out.
Mr. GROSS:That is your unclerstanding, Sir?
Mr. I'OSSONYT :hat is rny understanding.
Mr. GROSS:And it was on tlie basis of that understancling that your
testimony was directed. I think you have already said that, Sir, is that
not correct?
Mr. Posso~~: If 1may follow it up for one second 1 think 1 can show
where the difficulty sometimes arises, and I cal1 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 sliall be taken in appropriate ciccum-
stances in order to secure adequate development or protectron of
individuals belonging to certainracialgroups." WITSESSES ASD EXPERTS I3
How the reference here is to the individuals;and we may have a third
category-it is individuals and groups, and then there are "individuab
belonging to groups", according to this test. But then we go to IV,
page 507, which prints the draft Convention, and sub-paragraph 2 of
ArticleI talks of-
". .. securing adequate development or protection of certain under-
developed racial groups or individuals belonging to them".
This is quoted in support of pag4931 cannot read this textonpage 493
disregarding the support to the argument, and 1 think it stands out
very clearly that this test makes the point that laws should be addressed
to individuals.
Air. GROSS :IT .resident,1 am desirous to conserve the Court's time
and yet in fairness to the witne1sthink perhaps it might be convznient,
ifthe Court permits, to make clear again, without attempttng to engage
ina colloquy or argument with the witnesç, which would be unseemly,
that my purpost: is not to establish whetherornot the Applicants use
good, or bad, or clear, or unclear language, SirItis simply to ask the
witness what his understanding was on the bnsis of his testirnony, the
point the honourable President made prevjously. 13ut 1 think that if
that is clearly understood,WC can obviate the necessity, if the witness
is agreeable, to juçtify his understanding or to refer to arguments made.
1 willassume that his understanding, whatever it isis justified in his
view, Sir,and not ask for his arguments in support of his views, because
1just have one or two quick questions on tliis same point.
ThePRESI~EXT I: is a matter entirely for you, Jlr. Gross. I'our
observations are noted, but fou are cross-examining and if you wish
to put questions to thewitness you have not beeri prevented from doing
s0.
&Ir.GROSÇ : ON, Sir ,ou have testified that in many instances the
applicationof standards which-in terrns of the definition on pag493,
to which your attention has repeatedly been directcd-as contended for
by the Applic:ints, include, afirmatively,governniental policies ancl
actions, the objective of which is to protect eclualityof opportunity
and equal protection of the laws to individual perçons as such. You
have testified. as 1 understand the point(b) of ttic 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 personç
concerned. 1s tliat a fair rendering of your testimony, Sir?
Mr. POSSONY :ntirely correct:yes, Sir.
Mr. GROSS: Would you indicate to the Court, if ?ou willplease, Sir,
one or more instances, if any,in which the application of a standard
envisaging equal protection of the laws and cquality of opportunity
wouId have a detrimenta1 effect upon the person or persons concerned.
hlr.~~ULLEH: Mr. Presidenr, with respect, it is not only egual oppor-
tunity and equal protection, but it is to the inclividual as such.
The PRESII)ENT:1 notice that, Mr, Muller, and 1 espect the witness
willtoo.
Mr. Yossor*'~:Yes. that was exactly the point. The question is again
the absence or the existence of legislation referring to a group or not
to a grouy, and T have given yeçterday, and X uras stopped short, on
this very point, testimony \i-ith respect to the Negro situation inthe
United States and with respect to the Asian-Indian situation in East14 SOUTH WEST AFRICA
Africa, xvhich shows that the legal notion that al1 you have to do is
to legislate in disregard of group differences and this will provide you
with equality of opportunity-this is fictional. I think we have clear
evidence, the 1ndia.n~in America are another case, to show that this
is fictional, an1 ...
Rlr. GROSS : OW,Sir, ...
The PRESIDENT:The witness ha been invited to state instances and
he should be entitlcd to state them at what length he desires to do so,
but with reasonable brevity. Continue, will pou, 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 hIr. Gross to give instances-have you finished
with them?
Mr. POSSONY :he instances of the Kegroes in America, the Indians
in East Africa, the I'ndims in theUnited States, and 1 think that should
be enough because 1testified on those.
hfr. GROSS :ow, Sir, is it then your testimony that with respect to
the persons or individuals comprising the groups you have mentioned,
that the application of governmental policies, the objective of which is
to protect equality ofopportunity and equal protection of the la~vs,has
had, or does have, a detrimental effect upon the individuals as such in
these cases? Isthat your testimony?
Rlr.POSÇOKY I:\'<!,t depends on hom you define the words "equality
of opportunity being protected by the laws". hly testimony wouid 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 legidation would have been needed to create this
equality of opportuliity.In the absence of such legislation enabling these
groups to acquire the particular capabilities needed to compete, there
was no equality of opportunity to protect-it did not euist.
hlr. G~oss: 1 am referring, Sir,as1 think my question might have
made clear, to the question whether or not it is your testimony that
the existence of Iaws which protect the equality of opportunity and
extend equal protection of the laws to the persons you have mentioned
are esamples of instances in which the governmental policies concerned
visita detriment, or have an adverse effect, upon the well-being and
progress of the individuals concerned in your examples-I may add-as
suMr. POSSOYY h:lr. President,1 am ai some pains to answer this, for
the simple reason that the purpose of my statemcnt is to make cIear
that the Negro situation in the United States ischaracterized by the
fact that there is no de facto equality of opportunity and that this is
due in large part to the absence of measures and legislation enabling the
Segroes to reach the level on ~vhichthey would have that equality of
opportunity.
Mr. GROSS: Sir, T would like now .. .Incidentally. Sir, would you
also refer te1 think you mentioned Indians in the United States and
1 think you mentioned certain persons inEast Africa, did you not, Sir?
Mr. Posso~u: Yes, I mentioned them.
Mr. GROSS :ow, 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, aç such, havea detrimental WITNESSES AND EXPERTS I5
effect upon the persons concerned, in tems of the point to which your
evidence \vas directed?
Mr. Possox~: Mr. President, my testimony on the Indians in America
was that up to 1933, or thereabouts, legislationin the United States
considered the Indian as a person as such and that this legislation was
estremely detrirnental to the Indians and that after 1933, legislation
was changed and that a new systern was instituted which, looked at in
detail, has many differences and many similarities with other systems
we are discussing, but which, in essence, protects tIndian as a group.
Of course,the American laws alço protect the Indiaii as an individual,
obviously, but the new feature, after many years of the Indians going
down inmany ways, was exactly that the Iesson had been learned, and
the new type of legislatiowaç instituted.
Sow, in the case of these Asians in East Africa, the Indianin East
Africa, the fact of the matter is that-1 testified not from persona1
knowledge but from literature-the Indians are leaving, are emigrating.
Therefore,obviously, their opportunity is not being protected.
Mr. G~oss: 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
governmental policies, the otijective of urhich is to protect equality of
opportunity, have a detrimental effect upon individual persons, as such?
Have you referred to nny such instances, Sir, in any of your testimony?
Mr. POSSONY:Yeç, we went over it a minute ago.
hlr.G~oss: And you think that your answer to me 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 groupj, is detrimental to their benefit? 1s that
your testirnony, Sir?
air.POSSOXI-: 3Iy testimony is that the laws of the United States
wjth respect to the Kegroes, for example, are inadequate.
&Ir.G~oss: Are detrimental to their benefit, Sir?
Nr. POSSONY : ell, if you takethe evidencewhich1quoted yesterday,
that the Negro situation 1sgoing 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 detrirncntal.
Mr. GROSS: The point to uihich your evidence was directed, which 1
quoted at the outsetof this series of questions, is that your testimony
might be directed towards establishing that the application of the
standards contended for by the Applicants would, in many instances,
have an adverse effect on the weil-being and progress of the persons
concerned. 1 quoted from the letter read into the record, and 1 have
asked you, Sir, and atternpted to eliastclearly as possible, your opinion
whether ornot, in the specific context we are now discussing, it is your
view that the Iegislation in the United States, the objective of which
is to protect equalityof op ortunity, letus Say for certain citizens, in
particular the Negroes to wRom your testirnony referred, and to extend
to them equal protection of the law-is it your testimony that this is
an instance of a governmental poiicy which has an adverse effect upon
the persons concerned-the individuals, assuch? 1s that your testimony
or is it not, Sir?
MT. Possolru: 1 \vil1repeat it again, Mr. Grass1have to use my own16 SOUTH WEST AFRICA
language. hlp 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 creathe
situation inwhich there would be srrcli equality of opportunity.
The PRESIDEST M:ay 1put a question to the witness, Mr. Gross, on
this matter? Let it be supposed in any territory that there are different
ethnic groups of the type that you have given evidence about and there
is government policy or action, the objective of which isto ignore the
groups but to protect equality of opportunity and give equal protection
under the law to the individuals. If the groups wexe igaored by laying
down çuch policy or action, would there be, in your view, in any instances
that you know of, orin principle,detriment to the individual?
hlr. POSSONY M:r. Presidet~t, this would be true in many instances.
It would not be true inal1instances. Itdependç exactly on the concrete
situation. There are ethnic differences where the ethnic differences,in
essence, can be disregarded. There are ethnic differences which cannot
be disregarded. In those instances. the oversight of legislating for the
group will Iead to detrimental effects.
hlr. GROSS: Now, Sir, one further question with respect to your
testimony regarding the legislation in the United States whichyou cite,
as 1 understand il, asan example of having a detrimental effect, or an
adverse effect,on the weI1-being and yrogress of the Negroes.1s ityour
testimony, Sir, is it intended by your testirnonyin 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 cnough in the
direction of assuring equality of opportunity? Is that what you really
mean, Sir?
JIr. POSSOSY K:o, Tdo not mean that. 1 mean it goes in the wvrong
direction. ,
Blr.GROSÇ : etl, Sir, the question of assuring equality of opportunity
-we are speaking, here, about standards, arewe not, Sir, a legislative
policy, governmental policy, is that not whatwe are talking about, Sir?
Mr. POSSONY I:think so.
Mr. Gitoss: And the policy of nffording 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 siibject?
Nr. POSSOXY S:imilarlyBlr.Gross. the point to which 1 address my-
self is that there is an intellectual difficulty in ivashington to understand
the significanceof the ethnicfactor. This has been part of the national
tradition inthe United States, for perfectlgoad historical reasons, and
that isthe point which 1 think should be fully understood. Ittook the
United States many, many years-over a century-to understand that
point witli respect to the Indians.
hlr. GROSS B:ut you do, Sir, agree or do you not agree with the va-
lidity, the soundness, thwisdom 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?
3lr.POSSONY In a sense absolutely, buteach 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. 1 take it, reallis,am 1 correct in
this, that you woultl re-write the laws, you would enact different types \VITNESSES AND EXPERTS I7
of legislation to further thpolicy-is that a correct version of your
testimony, Sir?
Mr. POÇSONY :hat is, with due respect, the impact. 1 am not the
legislator of the United Statebut I would add this observation to the
last part omy testimony yesterday. 1think that the United Nations,
on reflcction about thisvery type of problem, have finally corne to
realize that more research on these matters is necessarand that a lot
of the tevts which we have priblishcd immediately after World \VarII,
under the psychological impact of World [Var II and Nazism, failed
to take into account what the real factsof life are in multi-ethnic societies.
1 will not go beyond saying that in my judgment the legislation in the
United States at the present moment is not reçponsive to the realities
of multi-ethnic problems but 1 certainly am not going to propose any .
ameliorated IegisIation before the necessary researchmade. The ~veight
of the testimony is essentially that there are unsolved problems.
Mr. GROSS : OIIwould 1 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 willbe faced with
the necesçity of planning and analysing and indeed praying over the
problems? You would agree with that, Sir?
Mr. POSSONY Y:es, Sir1 agree with that but 1also 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 1 brought in some of the his-
torical evidence.
hlr.G~oss : ow in the course of the Oral Proceedings o19 October,
that is in the vcrbatim record,XI, page 696, Counsel for Respondent,
Mr. Muller, asked you and 1 quote: "Are tl~ereinternational agreements
on the rights of individuals?" You responded at the same page: "No
there are not." You then proceeded to discuss certain problems ri:lative
to the formulation of the Human Riglits Covenant and Beclaration;
that isa correct version ofyour testimony, is it not, as set forth there?
AdrPOSSONY T:he answer certainly is "yes".
Mr. GROSS :OW,Sir, in the course of your preparation fartestimony
at these proceedings, you have, 1 think, already testifiedthat you
esamined, correct me if1 am wrong, and studied the pleadings and that
you have, among other things, esamined the sources of international
standards, which were set out in the Reply,IV, pages 493 to510- Have
you incidentally also had occasion to read the Oral Proceedings, in
which these points were elaborated, particularly18 May, IX, pages 325
and following?
Mr. lJosso~~ : That is your speech,Mr. Gross?
Mr. GROSS :hat is part of the Oral Proceedings before the Court,
Sir, also relating to supplementing and elaborating the argument on the
content and existence of the international standards whichwe cqntend
should govern the interpretation of the Mandate-you have considered
that, Sir?
Mr. POSSONY 1:have read it.1 have not re-read it for the lsst tw~
months or so.
hlr. GROSS Vell, Sir, 1willnot tas your recollection about it but
in connection with your negritive response toMr. JIuller's question as
to whether international agreements exist "on the righof individuals",
to use his phrase, do you consider the United Nations Charter tobe an18 SOUTH WEST AFRIC.4
international agreement which, among things, embodies undertakings
to promote human rights and fundamental freedoms of individuals-
would you agree to that, Sir?
hlr.POSSONY Yt:s, among other things.
Mr. GROSS: And do you consider the mandatory, trust territories,
agreements to be international agreements "on the rightsofindividuals",
to use Mr. Muller's phrase? Specifically I would refer to typical pro-
visions cited in the Reply, IV, page502, pursuant to which the admin-
istering autharities undertake to guarantee to the inhabitants of the
territory certain enurnerated rights and freedoms-for example, illus-
trations are cited at page 502 of the Reply-"\vithout distinction as
torace", and so forth. Do you regard these to be international agreements
on the right osf individuals?
hfr. POÇSONY N:o, hlr.Gross. Those are international agreements on
trusteeships. Let me make myself clear, those are not international
agreements addresscd directly to the questionof human rights. After all,
we do have a major effort in the United Nations going on which aims at
writing such an agreement on human rights par se.
Mr. GROSS :y your answer then, by u7ay of clarificationI take it
that the short question and the short response in thisrespect, by that,
in fairnesstoyour testimony, you meant to refer to human rights conven-
tions and similar documents or instruments-is that what you liad in
mind in responding to Air. Muller's question, Sir?
The PRESIDENT That must be the rneaning of the question, hIr. Gross,
which was: "Are there international agreements on the rightsofindivid-
uals?" His reply was, I understood, "on the rights of individuals" no
agreements.
Mr. GROSS : n rights of individuals?
The PRESIDENTY : es,that was the subject-matter of the question.
hlr.GROSS : oes the President wish me to .. .?
The PRESIDENT :O, exceyt just to indicate that it isthe witness's
understanding of the question to which he replied when he çaid"no".
He said he was referring to international agreements on the subject of
rights of individuals.
Mr. GROSS1 : wanted to elicit that for the Court, in fairnessto the
witness, Sir,to clarify what miglit othenvise be an obscure rneaning that
could be attrihuted to his testirnony. With respect, however, to the
distinction which you intended to draw in your response to Alr.Muller,
do you conçider the International Labour Organisation Constitution and
Convention an international agreement onthe rights of indivjdualsrefer
particularly, for esample. 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 inyour sense of the term?
hIr. POSÇONY1 : CIO not know what the title of the convention is, 1
think it is the Constitution of the International Labour Organisatiand,
inter aliait,of course, deals with hurnan rights that arerelated to the
whole subject-matter of labour.1 would not consider thata human rights
convention. The point isthat human rights automatically will have to
come up in many ccinventions~but the convention is drawn for another
purpose.
Mr. GROSS X:ow specifically, Sir, with regarto the regional treatieç, WITNESSES AND EXPERTS = 9
which are referred to in the Reply1 refer, for esample, to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, would you, Sir, in terrns of your testimon7 regard that as
an internationalagreement on the rights of individuals.
3lr.POSSONY:The European Convention-yes. It is regional, this is
why 1 did not take it into corisideration in the aiiswer. Frankly, 1 have
not looked it over reccntly exactly to see whether it refers exclusively
to the rnatter but from the title, if this is the title which is given on
page zgo, "TheProtection of Human Kights and FundamcntalFreedoms",
then that would be a correct exception, in a regional sense. My answer
was responsive to the effort going on inthe United Nations to draft a
convention on human rights on the basis of the Universal Declaration.
Alr.G~oss: 1 do not want to comment on the form of the question
put to you by Jlr. Rluller but for the sake of clarity perhaps1 should
ask vou one final question, if the President permitç. May 1 continue,
Sir,just this one question?
The PRESIDEST :es, certainly.
Alr.GROSS: ihat is the purpose, in terms of your testimony, in
drawing a distinction between international agreements relating to
hurnan rights solely and internationalagreements which, inter dia,pro-
tect human rights? 1s there any distinction you wish the Court to
draw based upoii that characterization?
Mr. Posso~u: I certainly do. The difference is that es senti nl!^
most of these treaties-we will leave out the European convention-
human rights are mciitioned aç a matter of course. The meaning of these
stipulations is vague, sometimes obsciire. It is precisely in order to
remedy this difficulty tliat the United Nations has started othe effort
to straighten out the human rights problem by writing an international
convention of tvhich each Mernber of the United Nations could be a
signatory, laying down lanpage so clear that it could be introduced
intostatutory law and so that human rights in effect could be protected.
It is the differeiice1think, between a declaratory policy and positive
law .
Rlr. GROSS: May 1 ask one more question: to tax the President's
patience?
The PRBSIDENT :ertainly.
Mr. GROSÇ: IVas it the purpose and purport of your testimony in
response to Mr. Muller's question that you wishedto draw the distinction
between the Huma11Rights Declaration as such and the Human Rights
Covenant as an international agreement-was that the purpose of your
testimony in that regard?
Rlr. Possoxr: The purpose of the testimony waç to show that you
have a process ofdrafting goiiig on for many years now, close t20years.
I quoted Alr. 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 al1these things are so clear. Then,when the
experts of the various countries sat down and tried to worout the texts,
it turned out that there were manIr difficulties. Kow there are, as 1
pointed out, intellectual dificulties whjch have not, in my judgrnent,
been overcome even though there are drafts. The fact that the United
Nations itself now initiateç sesearch seminars on multi-ethnic societies
and so on would bear me out on this point. In addition tothe intellectual
difficulties of defining preciscly what these human rights are and how20 SOUTH 'WEST AFRICA
they could be applied, yoii have avery large area of political difficulties
to which 1 just refcrred briefly.
hIr. G~ioss:Dr. l'ossony, in your testi~nony you have made numerous
references to constitutional and other legislative enactments relative to
the general matter of equality of opportunity, equal protection of the
laws, allotment of rights and burdens on the basis of membership in
a group, etc.-that is correct,is it not? 1 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 1 shall refer to evidence a general or widespread
constitutional practiceof States envisaging equality before the law with-
out discrimination on the basis of race or other group classification.
Isliould like to refer,foresample (and my references will be to the .
work that you have cited as a source, wliich is Peaslee, Constitattions
of Nations w hich isthe second edition of 1956), to the Federal Consti-
tution of Austria, 1920, Article 7 (1): "Al1 Federal citizens are equal
before the law. Yrivileges based upon birth, ses, social position, class,
or creed are abolished." This is quoted in Volume 1, page roS. My
preference would be, if the President permits, to refer to these and then
ask the witness, wIien they have been cited, questions with respect to
them.
The PI:ESIDEXTI:t is a matter for yourself, Jlr. Gross, if it can be
convenientlp done that way.
Rlr. GROSS :hank you. Sir. Uelgium . . ,
Xlr. Posso,uy: blr. President, may 1 interrupt? 1 don't think it is
quite easy to remember al1 these Constitutions; 1 frankly would prefer
to be asked the specific question on each case.
The PRESIDENT 1:think that would be better, Mr. Gross. After all,
if you ask the uritness: "Having looked at these provisionsin the context
in which they are found, what is your conclusion in respect of them?",
it would pcobably mean that you will have to go back over them indivi-
dually.
hlr.GROSS W: ith respect, Sir, 1rather'thought no;in the introduction
to my question 1 had indicatcd to the witness the purpose to refer to
constitutional provisions in respect of numerous of the States which
he haç mentioned in his testimony and then, having called these to
witness's attention, toask whether, taken singly or collectively or both,
they do in his opinion evidence a constitutional practice relevant to
his testimony and in respect of the standards andior the international
legal norm for ~vhidi the Applicants contend.
The PRHSIDENT f the witness finally says "1 cannot give you an
answer except by examining ench one", then you would be back in the
position in which you started.
Jfr. GROSS: LVith respect to the Austrian constitutional provision,
Article 7 (I),do 'ou agree that this is an example of a constitutional
standard with respect to the equality of protection of individuals regard-
les of race?
Mr. Yossosu: Mr.Gross, in the first placedid not discuss the Austrian
Constitution; in the second place 1 agree that this is a protection, but
1 çhould add that Austria in 1920 was a uniforni 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 IVITNESSES AXD EXPERTS 21
you do not have in these two casesa racial distinction of any significance,
or let us at leastput it thiswny, of any visibility. The language was
essentially thesame, and everything else rvns the same. It \vas a sclf-
evident proviso after a very pairiful history, in the course of which the
ethnic groups were split up.
Rlr.GROSS:If y011are aware, is it or is it not a constitutional practice
of Austria that al1 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. YOSSONY: Correct. It isalso the constitutional fact of Austria
that it is a uniform national State.
Mr. Grioss: With respect to Belgium, I refer to tlie Constitution of
Uelgium of 1831, whicli is cited in Peaslee, Volume 1, page 153, and
read Article 6 which reads in relevant part as follows: "There sliall be
no distinction of classes in the State. Al1 Belgians are equal before the
law .. ." Do you accept this as constitutional practice which is relevant
to the question whcther or not international standards euist, or an
international norm exists, with respect to the equal protection of the
laws and the quality of opportunity?
Mr. POSSOXY 1woulcl think that this isa very good esample to show
that this norrn, or alleged norm, is very vague and general. Obviously
in 13elgium, al1 the Belgians are equal before the law. But 1 testified
-1 understand that othcr witriesses have testified to the fact too, and
Ithink we have here somcwhere the documentation-that even though
thcre is no question but that the differences between the Wallons and
the Flamands art: after al1slight-certainly, no racial differencebetween
thern would be visible-troubles have arisen on account of language.
'roday, because this trouble has been going on for many years and has
had weakening impact on Beigium in general, so far as I understand the
history of Belgium-at the present moment disc~issionsare 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
attcmpt was made to disregard the group factor, to legislate pure137in
terms of the individual, an a1:tempt which was very rnuch in line with
19th century, early part, thinking; and now we corne around to recog-
nizing that tliisiçnot a very workable solution, and other ways are
being looked for.
&Ir.GROSS:If y011are aware, does the constitutional practice of
UeIgium treat al1 citizens as equal before the law, irrespective of their
race or national origin?
Mr. POSSONY O:f course it (loes.
>Ir.G~oss: With respect to Burrna, 1 refer to the Constitution of
the Union of Burma of 1947 in particular Article 13 which is cited in
Peaslee, Volume 1, page 280:
"Al1 citizens irrespective of birth, religion, ses or race are equal
before the l;iwr;thrit is to Say, there shall not be any arbitrary dis-
crimination between one citizen or class of citizens and anotlier."
Would you Say that Article 13 from the Birrmese Constitution which
1 have just read is evidence of the existence of a constitutional practice
in Burma which supports thc. existence of an international legal norm
or international standards with respect to the protection of individuais
before the law, equality of protection?22 SOUTH WEST AFRICA
&Ir.POSSONY1 :thtnk we have a littIe difficulty here;1 do not think
this article has anything to do with the norm as laid down at IV, page
493. 1 have testified on the Biirmese Constitution in line witmy under-
standing of what the norm says, which, and I repeat, is that youshould
not differentiate according to group-l can read the exact paragraph.
Mr. G~oss: Would you be good enough, Sir, if 1 am not interrupting
you, to refer to the language you have in rnind when you use the word
"differentiate",as 1 bclieve you did?
hlr. POSSOSY :On the basis of membership in a group, class or race."
Mr. GROSS: Would you mind reading the whole thing, please, Sir?
air. POSSOSY :The whole paragraph?
hlr. GROSS: If you don't mind, Sir, if jrou attach importance to the
point you are making, 1 would appreciate it.
Mr.Possoxu:
".. . the terms refer to the absence of governmental policies or
actions which allot ststus, rights, duties, privileges or burdenson
the basis of mernbcrship in a group, class or race rather than on
the basis of individual merit, capacity or potentia. . .".
As 1stated, 1 interpret,'and1 can read on, the allegation tobe that you
do not distinguish on the bais of membership in agroup, race or clasç.
The Burmese Constitution does in certain features distinguish so othe
basis of ethnic affiliation, not in a discriminatory sensnot in the sense
of negative. In fact1 do not recaUwhether they havepositive provisions
in ther-they probably have-saying that thesc various groups should
be helped. But they certainIy do provide in the sense that here is one
group which ought to be given its own regulation politically, and hera
is another group which ought to be given ifs regulation. That was the
yurpose ofthe testimony on that point. For example, from what 1 read
in this Constitutioil,ifa Eurmese, be he a Shan or a Kasen, ifhe is
guilty of a crime, he willbe punished in the same way as any other
Burinese, except in those cases tvhere perhaps a different definition of
crime applieç (1 do not kno~ïrwhether this is the case in Burma or not).
There are cases of this sort which 1 quoted.
Mr. GROSS1 : will interject this parenthetically, becau1edo not think
that 1 have brought it out before-1 may be wrong-with respect to
the definition or description of the tems 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 tlian on the basis of individual merit, capacity or potentialH-do
you attach any significance to that clause in the context in respect of
your testimony?
Mr. POSSOSYY :eç,1 do.
Mr. GROSS:And do you understand that the intent m,eaning, descrip-
tion attnbuted to these standards or this content suggest or force a
choice on the part of a government lvith respect to protection of the
individual as an individual or protection of the individual asa member
of a group-did yoii understand these tv be different or unrelated con-
cepts?
Mr. POSSONY Z:n your thinking, Mr. Gross, or ..
Mr. G~oss: In your understanding of what we are trying to Say in
our pleadings, as diçtinguished from the way in which it has been put
forward by the Respondent in certain of its pleadings. WITNESSES AND EXPERTS 23
Mr. POSSONY M:y understanding of what you are trying to sayistliat
one should not, undcr any cil-cumstanccs, use the group, class or race
classification for legislation.
Mr. G~oss: So that your understanding, if I rnay pursue this once
more . ..
Mr. POSSOYY M:ay 1 add to this that1 had to read this in line with
the supporting data which you have given and 1 have shown that. for
example, in the Declaration on the Etimination of Al1Forms 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 develop~rient of the individuals.
Mr. GROSS :ow, with respect to the continuation of the constitu-
tional practice in respect of the States that you have mentionecl in your
testimony, 1 refer to the Constitution of Chile. 1 beg your pardon, you
did not cite Chile;1 misread my notes. 1 will confine myself to those
which you have cited and 1 may, with the Court's permission, refer to
others ivhichmay be relevant to the questionaswell. For the moment 1
will confine myself to those you have cited.
Czechoslovakia: the Constitution of the CzechoslovakRepublic of1948.
Volume 1 of Pençlee, page 693, Part 1,section 1, reads very simply:
"Ali citizens are equal before the law."
LVould you agree that this is evidence supporting a constitutional
practice with respect to the principle or standard of equalitjr of treat-
ment of al1individuals,irrespi:ctive of other consideratioiis such as race
or creed?
hfr.POSSONY A:gain, $Ir. Gross, the ans\i7er yes. Ifyou want to
elicit from me the staternent that many constitutions contain phrases
of this general wording, 1 think we can Save time bÿ stipulating that
this is true. Blany constitutions havthese phrases. AIy testirnony 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
1 have been trying to make.
Inthe first place there waa multi-ethriic State and there were various
attempts to set up or not to set up autonornous 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.
ActuaUy, in order to Save time, I cut out from the testirnony a passage
to the effectthat the Czech Governrnent of hlr. 31asarj-kand Mr. Uenes
mere accused by the Nazis of having practised national oppression. This
particular accusation was quite unfounded. 1 was often in Czechoslova-
kia at that time. Nevertheless, it impressed the Sudeten Germans and
out of this situation-there were at least çome elements there so that
Nazi agitators could make a point-arose the Munich crises.
With the President's permission, 1have given perhaps a longer answer
to indicate tliat in line with the United Nations Charter,certaiiily the
over-riding objective of the United Nations, inmy reading, isthe pres-
ervation of peace. In this particular iiistance the exprimentwith what
you rnight cal1 an integrationist ideology was one of the roots of \ilorld
War II. Today Czeclioslovakia is very much reduced. It is essentially
a national State consisting of the Czechs and the Slovaks. Rut, today,
the Slovaks, who are only siightly different from the Czechs, do have
some sort of autonomous status. It is to that part of the problem that
1 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 fiederal Kepublic of
Germany-this is cited in Volu~neII of Peaslee, pages 30 to31 :
Article 3, paragraph 1:"Al1 men shal ble equal before the law."
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 politicai opinion."
tVould 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?
3fr.POSÇONY :ow can it be evidence of a constitiitional practiceif,
with respect to the ethnic factor, thereis no such problem in Germany?
Mt. GROSS I:wiiat, Sir?
hlr.Possoxr: There is no such problem.
&Ir. G~oss: Of equal rights before the Iaw?
Mr. POSSOXY I: terms oi ethnic factor, theris no problem. Germany
is a uniform national State, consequentIy one can put a provision into
the Constitution and if you want me to confirm that this is in the Con-
stitution 1 willgladly do so, because it is there. I3ut it does not mean
much,
AIr.G~oss: Thank you, Sir.
Now, with respect to India-the Constitution of India of 1949 is
referred to,as 1 have cited. in Volume II ofPeaslee, pages 225 and 226.
The relevant parts are as folIona. You testified,did pu not, in the
record at XI, page 678 and following, at some Iength with respect to the
castesystem, the sclieduled castes and so forth? That is correctis inot?
Mr. Possox Y: Yes, Sir.
Mr. G~oss: Now, with respect to the Constitution of India, which 1
have just cited in PeasIee:
Article 14 states:
"The State rhall not deny to any person equality before the law
or the equal protection of the laws within the territory of India."
Article15 (1)says:
"The State shall not discriminate against citizens on grounds only
of religion, race, caste, sex, pIace of birth or any of them."
1 will not read the lengthier paragraph which follows, as it ian 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
xnse of any differentiation whatever, so far as you understand the Con-
stitution?
The PRESIDEXT 1:am sure that is a matter which the Court can work
out. It isnot for a witness to starttointerpret the Constitution of India
or any other constitution. You can ask him what his understanding isin
respect of it.
hfr.GHOSS : es Sir. That was the purpose of my question :if he has
a basis for an understanding of it as apolitical scientist or other behav-
ioural scientist. Do you wish to comment, or do you have a basis for an WITNESSES AND EXPERTS
opinion which you wish to express with regard to the use of the term
"discriminate" in this context?
hlr. Possori~: Mr. Gross, you read tliat it says "discriminate only"
and 1am not quite sure what that means.
Mr. GROSÇ: It says "not discriminate ngainst any citizen 011grounds
. only of religion, etc.".
hlr. POSSONS: That 1 would Say is a wording which 1 do not know
how to interpret.
>Ir. G~oss: 'l'hat ia fair answer.
Mr. POSSONY : owever, thi: Indian Constitution also has a number
of provisionswith respect to scheduled tribes and scheduled castes. 1 do
not assert that these provisions are necessarily contradictory. However,
1 would like to mention that they could be contradictory. In any event,
there isthe social reality in India of a caste system which is taken for
granted by the Constitution.
3ir. GROSS: NOW, Mth respect ta the Constitution of Italy, I~S, to
which you referred inthe record at XI, page678, and cited in Volume II
of Peaslee, page 482, Article 3 provides as follows:
"All citizens have equal social rank and are equal before the law
without distinction ofsex, race, language, religion, political opinion
or socialand persona1 conditions.
It is the task of the Republic to remove obstacles of an economic
or social nature which, by matenally restricting the freedoiii and
equality of citizens, impede the complete development of the human
personality and the effective participation of al1 workers in the
political, econornic, and social organization of the country."
Nom, with respect to that constitutional provision which 1 have just
cited, would you agree that this provision evidences a constitutional
practice which is relevant ta the standards andlor the norm of thenature
contended for by the Applicants, as you understand it?
The PRESIDENT :rofessor E'ossony,have you got a copy of the clause
before you?
Mr. POSSONY N:o.
The PRESIDENTI:f YOU are asked to understand it 1 think you had
better read it.
Mr. POSSONY : 1 ttiin1 can remember it, Mr. President.
Mr. G~oss: 1 will be glad to read it again, Sir.
The PRESIDENT:NO, 1 do iiot think itis necessary to read it again,
Mr. Gross. 1 simply asked whether he had a copy -- front of hirn, that
is all. 1 see the relevant volume is there.
Mr. GROSS: 1 do not want to taxthe memory of the witness, Sir.
Mr. MULLEII:May 1 just ask what is the page reference in thc ver-
batim that my learned friend referred to?
Mr. GROÇS: It isXI, pag- .678, in the verbatim record, according to
my notes.
The PRESIDENI- :here is a reference to Italy there, that is all.
Mr. G~oss: There is a reference to Italy there:
"There are various differentiai provisions for ecclesiastic persons
in terms of incornpatibility with the parliamentary mandate insuch
countries as Belgium, Israel, Luxembourg, Turkey, India, Italy,
Egypt, Netherlands and Great Rritnin. This particular type of
problem was worked up . . ."26 SOUTH WEST AFRICA
That is the reference for learned Counsel.
blr. MULLER :Thank you.
Mr. POSSONY:First of all, the reference to Italy is a very minor one
and deals with one specific point.
>Ir. GROSS: DO ~ 7 wish to withdraw it, Sir?
Mr. POSSONY K:o, it is a perfectlp correct reference. Rlr. Gross, you
read Article3 to me, is that correct?
Mr. G~oss: Yes, 1 read Article3.
Mr. POSSONY W:ell,1 would say that this Articl3 is an Article which
can be read in many ways and 1 certainly think it a very interesting
Article. It speaks of removing "obstaclofan economic or social nature".
Now, in a country like Italy, where there is not much of a national
probIem-and 1may add parentheticaliy that there is at least one ethnic
problem which is in the newç at this moment, namely the Southern
Tyrol question, whether or not thissituatiocalls for autonorny-leaving
that on one side, wliat is meanbyremoving obstacles of asocial nature?
Mr. G~oss: 1 do not know.
Rlr. POSSONY \!'eu,1 would certainly interpret this to mean that in
a case of a multi-ethnic society-Italydoes not have this prablem-the
removal of social obstacles is the thing one shoulddo with respect to
those ethnic 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? Notv, in respect of Lebanon: the Constitution of Lebanon
of 1926, citedin Volume IIof Yeaslee, at page573-1 refer to Articl7
-readç as follows:
"Al1 the Lebanese are equal before the law.They enjoy equally
civil and political rights and are equally bound by public burdens
and duties without any distinction."
Then, Sir, 1 refer, sincyou have it before you, to Articl12, which
ison the next page, page 574of Peslee:
"Al1 Lebanese citizens are equallp admissible to al1 public posts
on the basisof merit and conipctence,and according to the condi-
tions established by the law."
Noiv, Sir, with respect to the latter partyou have testified, as the
Court will beaware, 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, 1 invite your attention, first, Sir,
to Article7, which 1 have read: "Al1 the Lebanese are equal before the
law. They enjoy equally civiland political rights and so forth." Dyou
agree, Sir, that this furnishes evidence tending to support the existence
of internationalstandards of a content describedby the hpplicants and
defined in their pleadings, ço far you understand it?
Rlr. POSSOXYN : o,Rlr.Gross. 1 do not.
RlrMULLER T:hat has been defined in the pleadings orIV,page 493?
That would be . ..
Mr. GROSS:Mr. President, 1 would reçpectfuIly submit that the Coun-
sel's comment is irrelevant and the reason beingSir,that page 493, im-
portant as it is, does not enibodthe case of the Applicants and, Sir1
think the impression as sought to have been created previously in these
proceedings by Counsel that the language on pag493 must be interpreted WITNESSES AFD EXPERTS 27
asif it were disembodicd from the balance of the pleadings, not explained
by the sources to which reference iç made and elaborated and \\?hich
esplain the detailed content attributedby the Applicants to the stan-
dards and the norm contendcd for and, Sir, if the point in the implication
of Counsel's question, or interposition, is that the Applicants rnay not
refer to any provision or 1angua.gein these pleadings other than p493,
the Applicants wuuld very respectfuily disagree.
The PRESIDENT :hat is not the objection, though, Mr. Groçs.
Rlr.MULLER M: ay1 reply to that, Mr. President, please?
The PRESIDENTN : O,you may address the Court.
Mr. MULLER: Yes. I refer to the verbatim at IX, page 375, where,
having reformulated their sub~nissions, the Applicants made this state-
ment :
"The reference in Suhmission 4 to 'applicable international
standards or internationallegal norm, or both' isintended to refer
to such standards and legal norm, or both, in the scnse described
and defined in the Reply,IV,at page 493, and solely and exclusively
as there described and defined-reference ismade here to the sarne
verbatim record already cited, at page60, supra."
That isthe record, at IX, page GO, where reference is made also-that
is in an earlier stage .. .
The PRESIDENTM : r. Gross, 1:think you might resume your seat whilst
other Counsel is acldrcssing.
Mr. MULLER : n April 30, PiIr. President, in the verbatim,at 1X,
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 internationlegal norm."
Now, Nr. President, if my learned friend wantç to put to the ulitness
what the norm ofthe Applicants is, he has never,up to yet, put to any
one of the witnesses what his case is. He is very quick, hlr. President,
to Say that as we, the Respondent, interpret the case, we are wrong,
but he has, up ta now, not defined his case to any one of the witnesses;
he merely refers tu these cases set up in the pleadings. And 1 should
Iike to know what he means when he asks the witness a question like that.
The PRESIDENTA : t the present moment, the Court is asked to rule
on the question cifadmissibility of a question, being put to the witness.
Mr. Gross, it iç quite truc that there is a distinction between a statement
of tlie content of the norin and the statement of the content of astandard
as distinct from the sources which arereliedupon to establish theexistence
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 Mr. IIIuller but, morc than once, throughoutthe presentation
of the whole argument. from the transcripts, running from13 to24 May,
not once, but more than once, you stated that the norm andlor standard
upon which the Applicants relied were 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
seem to raise the question as to whether, having regard to the way in
which the case is being presented by you, this is changing your case.
Mr. GROSS:May 1 respond as briefly as possible to that, Sir? The
references which have bcen made and as to which an example is cited26 SOUTH WEST AFRICA
by ;\Ir.Nulier,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, 1 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 1may respectfully, in response to the honourable
President's comment or question-is that no single words on page 493
may be tüken as self-contained, fully explanatory of their intended
rneaning, Sir, and the one point that 1 should like to add, if1 may, Sir,
is the referencc on pagc 493, among other things, to the fact thai:
"The existence and virtually universal acceptance of the norm
of non-discrimination or non-separation, as more fully described
below, giveç aconcrete and objective content to Article z, paragraph
2, . . ."
Sir, it has never been the Applicants' understanding or intention that
the rcrordsset forth in thiç paragaph, to which so much attention has
been called, and properly so, can be read and understood and evaluated
without refcrence t.o the general context in which they appear and the
expianations which have been made of their intended content and
meaniiig. The very words used, as have been brought out by this witness
and others, arc concededly susceptible to comment and interpretation
by their verygenerality. Reference has been made to Article55, 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 triedto do in our pleadings and in our Oral l'roceedings, to
explain, to illuminate, to clarify the content aiid rneaning of thoçe broad
words. Sir, that is the only point ofmy comment.
The PRESIDEST hlr. Gross, it will ba matter for the Court to decide
as to rvhat was the case which the Applicants made out. It is not for me
to comment upn it at ail,but if you Say it is still the same case which
it was when you closed your case, it will be a matter for the Court to
determine what was the case ïvhich you made out,but rnay 1 point out
to you that itwas topage 493 that you frequently, yourself, referred as
indicating the basis of the norrn and the standard upon which the
Applicants relied. Now, if you look at the whole of 493, YOU will first find
that in paragrapli 2, it says:
"AS is shown below, there has evolved over the years, and now
exists, a generally accepted international human rights norm of non-
discrimination or non-separation, as defined in the prcceding para-
graph."
Then the nest paragraph; and which pou referred to, says:
"The esisteiice and virtuallp universal acceptaiice of the norm
of non-discrimjnaiian .. . amore fullydescribed belorv, ..."
That, so it would appear, leaves it open to construction that that is
a reference not to the content or the definition of the norrn but to the
sources, because, il you look at the last paragraph, you will find: "The
sources which. severally and in their totality, comprise tlic 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
paragrapli of 493 and that there was no other definition of the norm.
Mr. Gtross: hlr. President, the Applicants, far from changing their
case in any respect, re-affirm their reliance upoii the international stan- WITNESSES AKD EXPERTS 29
dards or alternatively, and ciimulatively, the norm with the content
contended for, and it is simply. Sir, the hpplicants' submission that the
rneaning 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 thcreon and the sources to uthich they rely
and which illuminate the significance of words and phrases used. It was
not then, and is not, the iiitent.ion 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 ofthe cxplanations made.
The PRESIDENT:1exprcssed no views on that at all, as you understand,
Mr. Gross, 1 simply indicated that we are debating a matter here on
the question of the permissibility of your cross-examination. 1 think,
having regard to the discussion which has taken place, it is better to
define precisely what grouare speaking about when you address a question
to a witness.
Mr. GROSS:Mr. President, 1 welcome the opportunity, 1 do indeed,
Sir.
Now, Sir, 1 would not wish l:oburden the Court . ..
The PRESIDENT Professor, jrou are being cross-exaniined.
hlr. G~oss: 1 would not wish to burden the Court with an indefinite
series of references to similnr constitutional provisions which are conceded
by the witness to exist, but 1 should like,if 1 may, simply in the same
way that he has made referenca in his testimony to numerous consti-
tutions, legislative enactments of various countries, in the context of his
testimony, refer, in addition to those already cited, to the Liberian Code
of Law of 1956, Volunie II,pages 481, 482; the Political Constitutionof
the United States of 3lesico of 1gr7, Article 3 in particularII Peaslee,
page 661; the Constitution of the Kingdom of the Fetherlands 1947,
II Peaslee, page 754, in particular Articl4 and Article 5; the Constitu-
tion of the Republic of Panama of 1946 ,ited in III Peaslee, pages 7~~73,
in particular Articl21, and to Article94 of the same Constitution, cited
at III Peaslee, pages81-82 ;furi.hermore, the Constitutioii of the Republic
of Peru of 1933, Article 23in particulsr, cited in III Yeaslee, page 137;
similarly, the Philippines, the Constitution of the Philippines of 1935,
Article 3, section 1, paragraph I, cited in III reaslee, page 1GG; the
Constitution of the U.S.S.lI.,in particular Article 123,citcd in III
Peaslee, pages 498-499; the Constitution of the Federal People's Kepublic
of Yugoslavia, particuIarIy Article zr, cited in III I'caslee, page760;
and, with respect to the United States, 1refer to the Fourteenth Amend-
ment, that is, to Articler4,section r,of the United States' Constitution
as cited by III Peaslee, page 593.
The witness has made nurnerous references in his testimony and has
referred to certain lcgislative or other provisions with respect to 3loslem
communities and hlosleni Stares, Tslamic States-these were cited by
the witness in the verbatini of 18 October; for esample, atXI,page 671.
1 refer to, uritli the Court's permission, the principlcsof the Intenm
Constitution of 1953 ,f Egypt, now the United Arab Republic.
The PRESIDENT :s this the question you propose to put to the witness,
IvIrGross?30 SOUTH WEST AFRICA
Mr. GROSS : es,Sir,to Save the tirne of going through each of these
seriafim and calling his attention to the existence of what I think he
conceded to be, if 1 am not mistaken, &Ir. President, constitutional
provisions, sirnilar to those which 1 have already read into the record
regarding the equd protection of the laws, 1am selecting those which
are sirnilar in content and which the witness, as 1understood him, has
conceded to exist. 1s that correct, Mr. Possony?
Mr. POSSONY This is correct, hfr. President, but 1 think the point
under dispute is whether these provisions stand by themselves or are
related to other provisions, and thereisno 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-ail regda-
tion of the ethnic problem in theparticular country-that is the matter
to which 1 address myself.
Rlr. GROSS : ow, Sir, 1 am addressing myself to the problem of the
contcnt of the standards, as distinguished, for the moment, from their
applicability. You are aware are you, Sir, that there are two separate
but related problenis involved in the consideration of this matter; would
you agree, Sir,thai: the question of the matter of content, and the ques-
tion of applicability orapplication, aretwo different but related aspects
of the problern?
Mr. POSSONY T:hat is correct.
Mr. GKOSÇ: NOW,Sir, with respect to the content, 1 refer again,
hastily, simpIy by citation rather than by reading, in addition to Egypt,
cited in Pcaslee, Volume 1, page8x3-these are Islamic States, to which
you referred-to the Constitutional Law of 1907 of Iran, Article 8,
Peaslee, Volume II, page 404; of Iraq, the Constitution of1925, particu-
larly Article 6, cited in Peaslee, Volume II, page 415; and of Syria,
the Constitution of Igjû,Article 7,cited in Peaslee, Volume III,page 362.
Sir, these constitutional provisions, to which1 have referred, are all,
on my representation as Counsel, sirnilar, in respect of the fact that they
embody provisions which are substantially of the type already read into
the record-that is constitutional provisions which state, in various forms
of phraseology, that "Al1 citizens shall be equal before the law in obliga-
tions, rights, dignity and social statusV-l have just referred to the
Syrian Constitution, Article 7, as an exarnpte-or the Iranian Consti-
tution, Article 8, "The people of Iran enjoy equality of rights before
the civillaw .. .".
Now, Sir, with respect to these constitutional provisions, would you
or ïvould you not agree that they severally and collectively evidence a
general constitutioilal practice, virtually universaintvhich 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 sarne subject-matter, and evi-
dencing international standards?
Mr. Possolr~: >Ir. President, 1 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 thatmost constitutionshave this phrase in them, but again,
when equality before the law is linked to equality of opportunity, 1
think we have an entirely differentproblem. The constitutions less quickly
analysed could produce much more diverse results.
But the main problem is: what do these constitutions state in addition WITSESSES AND EXPERTS 3I
to that ? This jsvery often a matter of mere phraseology. For example,
in the Lebanon case, which hlr. Gross was citing a minute ago, of Article
12, which consists of two sentences, he read the first: "Al1 Lebanese
citizens are equally admissible to al1 public posts . .." But then there
is the second sentence, which reads as follows: "A special statute shail
regulate the State officials according to the administrations to which
they belong." The meaning of this, 1 think, is in Iine with the general
arrangement in Lebanon, according to which jobs, positions in Parlia-
ment, and so on, are attributed on a group basis. 1 think the meaning
of equality in the Lebanese arrangem~nt is, above all, that each grou+
enjoys equal nghts-and then you have, undoubtedly, arguments about
precisely what that means. In addition, it also says that al1 Lebanese
citizens have equal rights-there is no question about that. The problem
arises that you do have contr:~dictory or, let us say, rnutually compli-
cating factors involved, which in each country are solved in a particular
t5'l.a)'.
Xow, in testifying yesterday, I made a particular point in sfreçsing
that there are, under any norm, assurning a norm to exist, in al1 inter-
national texts that 1 know of, always clauses to albw for special 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 hlr. Gross
said a few minutes ago,leads to the explanation on page 493, IV-there
is a phrase in there "... by m1:thods appropriate to national conditions
in practice ..."-1 could quote other examples, but 1 willnot waste
the Court's time.
The argument is,1 think. whether the national conditions or the
concrete circumstances call fur a specific interpretation of a norm,
assurning such a norm to exist-and this is the question which Mr. Gross
also brought out a minute ago, saying it was a question of applicability.
If the norm exists, which 1 do not believe it does, but assumiiig for
argument's sake that a norrn exists, then the question is: horv binding
is it in conditions where it is less applicable than it would scem? For
example, on page 493, if this whole argument were couched in terms of
a single or uniformIy national State, this xvould be one matter; and if,
like in Austria, this norm applied to States with one nationality, it could
even be argued that it appliesi+so facto andwithout change. But without
taking iiito consideration the various concrete circumstances prevailing
in countnes with different nationalities-then 1 would say that if this
were the interpretation, it would be self defeatingin terms of the norm
itself: thepurpose of the norni could not possibly be achievcd in the
way in which it is laid down that that norm be applied.
hfr. GROSS: Sir, imight perhaps help your understanding of the point
of my next question if 1 were to cal1to your attention page 519, IV,
of the Reply. At the top of the page, you will notice that reference is
made to ". .. 'international custorn' outlawing discrimination and sepa-
ration, as defined above . .." and the reference isto page 493-7 ivould
call that to your attention.
hlr.POSSOYY Y es, that is right.
>Ir. G~oss : 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 hlandate and of Article22 of the Covenant of the League of
Nations, is a violationof international law".
That, you may saj7,isthe "norm argument", Sir, just so that you rnay
follow my questioris. Then you corne to the next paragraph:
"Even in the absence of such a determination, however, it is sub-
mitted tliat the policy and practice of apartheid, or separate devcl-
opment, as defined and analysed in the Memorials and in this Reply,
violates Kespondent's obligations, as çtated in Article 22 of the
Covenant of the League of Nations and in Article2, paragraph 2,
of the Mandate, as measured by the relevant and generally accepted
legal norrns aiid standards described in the Memorials and in this
Keply." (IV,p. 519.)
Now, Sir, I have called this to your attention 50 that you may. as
responsively as you wish, if you wish, answer the following questions,
Sir:
In respect of Article22 of the Covenant of the League of Nations and
of Article 2,paragraph z, of the Mandate, has it been your intention,
Sir, in respect of any aspect of your testimony, to relate the standards
of the content described and defined to the Mandate-Article 2, of the
Mandate?
Mr. POSSONY N:o, Sir, the difference between the norms and the
standards, content-wise, 1 understand to be non-existent.
Jlr. GKOSS T llat is right, Sir.
&Ir. Possosu: 1 am not an international lawyer and therefore did not
addresç myself to the question of the applicability ofthe legal commit-
ment to the particiilat situation.
&Ir. GROSS: SOthat when, Sir, the letter, which ha been read into
the record, states that-and 1 quote paragraph (b),as one of the points
to wiiich your testimony is to be directed:
"'I'hatthe atternpted appiication of such a suggested norm and/or
standards urould in many instances have an adverse effect on the
wcI1-being and progress of the persons concerned." (XI, p. 643.)
Do you have that lanpage, Sir?
MT.POSSONY Y:es, Sir.
blr. 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 inciude 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 andlor standards would have an adverse effect on the well-being
of the people? Did pou understand my question. rather tortuous and 1
am afraid very unclear, but do you think you understand it, Sir?
&Zr. POSSONY 1:think my understancling of your question would be
that the purpose of my testimony has been to clarify the validity, or
usefulness, of given legislation in South West Africa.Ithas not been to
determine rvhether the Mandate isbeing faithfully or otherlvise fulfillcd
by South Africa in the case of South West Africa. In other words, my
testimony ha 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 hlandate. WITXESSES AND EXPERTS 33
MR. GROSS: NOW, Sir, we understand and agree, of course, that the
intcrpretation of the Mandate is obviously for the honourable Court,
but 1 was anxious to havc an understanding for the Courtofthe 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 interpretationof the Mandate; ivhether
this was within therange of your intended testimony.
The PRESIDENT Its a little difficult for a witness-ask what the
range of his intended testirnony is. The actual range of his testimony is
deterrnined by the questions put to him and the answers given. It js
not for him to interpret his evidence.
Mr. G~oss: Yes, Sir. 1 am making, 1 am afraid, a stumbling effort to
try to clarify and understand the significance the point in paragraph
(b),stated by the Respondent :iapoint to which thisevidence isdirected.
1 do not understand it, Sir.
The PRESIDENT W:ell, if you dnot, Nr. Gross, therc is nothing you
can do about it.
Mr. GROSS: Very well, Sir.1 am, however, diligent in my effort to
pursue the thread, if 1may. 1shall, however, turn to other aspects of the
witness's testimony, which 1 think are relevant to this general point.
Kevertheless, let me ask you, Sir, to refer to your testimony at XI,
page 702. You referred. did you not, to the United Nations draft
Ileclaration on Elirnination of Al1 Forms of Racial Discrimination?
hfr.POSSON :YThat is correct.
Mr. GROS: Particularly to Artic5, which you characterized atthat
pqe but did not quote. 1sthat correct, Sir?
Mr. YOSÇONY :hat is correr:t.
Mr. GROSS: It is true, itnot, that Articl5 of the Declaration reads
as follows:"Anend should beput without delay togovernmental policies
and" . ..
Mr. POSSOYY :beg your parclon, that is the. : .
&Ir. GROSS: That is ArticIe5 of the draft Declaration, to which you
referred.
Mr. YOSSONYO : fthe draft Declaration-1: have here the draft Con-
vention.
Mr. G~oss: Well, Sir, let us take the Declaration1am talking about
the Declaration to which you addressed your testimony, Sir. Do you
have it?
Mr. I)QSSON Yes, Sir; herc:it is.
hlr. GROSS:
"An end should be put without delay to governmental policies
of racial segregation, and especially policies of apartheas,well
as al1 forms of racial discriniinatand separation resultinfrom
such policies."
That is the textof Article5 which you referred to but did not quote.
That is correct, is it, Sir?
Rlr.POSSOKY T hat iscorrect.
Mr. GROSS: Incidentally, just for the clarity of the matteristrue,
is it not, that when the draft: Declaration was adopted, which itwas,
1 think, unanimously, by the GciieralAssembly, on 28 November 1963,
in the form of resolutio1904 .ighteenth Session, that the same words
(just quoted) were embodied in the final resolution, except taaphrase34 SOUTH WEST AFRICA
was inserted so that the final text reads, of Arti5,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. POSSONY 1:do not have this here,1 have only ...
&Ir. GROSS: Well, if you would be prepared to take my statement
for it,asCounçel, and reading it from the resolution1904.
Mr. Posso~u: 1 take your word for.it, certainly.
hfr. GROSÇ: Now, 1mention this insertion rnerely for the sake of accu-
racy, and not because Iwant to invite your attention to it particularly,
unless you ~vishto cornn~enton it.But referringtothe draft Ueclaration,
to which you testified, immediately following your referencc to Article
5, atXI, page 7 z, ofthe same verbatim record, you expressed an opinion
concerning the desirabilitp, as I understood your testimony, of clari-
fying the Article in certain respects. Do you findthat,Sir?
MT. POSSONY1: do remember il, yes. That iscorrect.
&Zr.GROSS: Was your testimony in this respect intendedby you to
reflect, one way or another, any judgment as to whether or notthe policy
of apartheid does, or does not, and 1 quote the language you use,"fall
under the rubric of objectionable policies"? Were 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
yourseIf to?
Mr. POSSONYO :f course, 1 was concerned with the fact that in the
definitions in this text which you uscd to support IV, page 493, Imay
read the exact text to you .. .
Rlr.GROSS :es, Sir, it IV, pages 505 to 506 of the Reply.
hlr.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-1 apologize that 1 use the Convention,
because 1 have it here and 1 have it marked-first of all, in one of the
preambular paragraphs-"any doctrine", itis alzydoctrine, "based on
raciaI differentiation or superiority"Now, we have a linkage with any
doctrine of racial difierentiation which would, inrny rcading, say that
there are racial difierences, or that there are differenraces, whatever
it may mean, but this iç linked ta doctrine of supeviwity; and both it
says, would be scientihcally false.
Then, in the next prearnbular paragraph, we have "evil racial doc-
trines" which are Iinked to the "practices of Nazism in the past".
Mr. GROSS : hat Article are you referring to, Sir?
Mr. POSSONY: Thiç is under "Considering. . .", "Convinced . ..",
"Reaffirining .. .".
Mr. G~oss:1 mean, what document are you referring to, Sir?
hlr.POSSONY D:raft International Convention on . . .
Mr. GROSS: Yes, you are talking about the Convention, Sir, but the
question was addressed on the Declaration .. .
Mr. POSSONY :res,1 apologize, but 1 could probably find it there,
too.
Mr. GROSS: NO,Sir, you will not find it there, unlesI am mistaken:
that is why I am inviting your attention to the thing we are talking
about.
Mr. POSSONY B:ut there is other language in it which is similar. WITSESSES AXD EXPERTS 35
Nr. GROSS: Well, would you please find that, Sir, so that we aretalking
about the same tliing.
Mr. POSSONYI:n the first "considering" paragraph we have a refer-
ence to the "doctriiie of racial differentiation or superiority" as being
"scientifically false" and "morally condcmnable" and so on. l'hen it
says, in the ninth prearnbular paragrsph:
"Convinced that al1 for-rnsof racial discriminatioand still more
so governmentai policies bascd on the prejudice of racial superiority
or racial hatred [weagain cnlarge the basis of the argument], besides
conçtituting a violation of fundamental human rights, tend to
jeopardise friendly relations . . ."
In Article5wehave the specificreference to "racial segregation", which
isthen identified under, or at lest linked under, "especially policies of
apartheid, açwell as al1forms of racial discrimination and separation".
Now, it seems to me that these things are al1 different. Specifically, as
1tried to point out, 1find it vt:ry difficult to understand why, in a decla-
ration on racial discrimination which deals with future matters, there
are two elements singled out, specifically, two State practices: one is
Nazism and the other is apartheid.
Mr. CROSS : here is Nazism refcrred to, Sir?
Mr. Possox~: Nazism-1 am sorry, again it is in the Convention.
Alr.GROSS 'es, Sir. Would you stick to the Declaration, if you please,
Sir?
Mr. Possoxs: il'ellthe Declaration and the Convention do belong
together, but 1 will gladly oblige in this sense, that apartheid is the only
specific policy which is identifiable in terms of a particular State ...
hlr.Gnoss: In the Declaration, that iç right, Sir.
Mr. POSSONY: And it, however, is linked to policies based on racial
superiority or hatred.1 just do not conceive that things can be al1 put
together under one heading. If there are no differences between those
variouç factors, then this is one thing. Then we have esçentially a policy
in South Africa which would be one of racial hati-ed, racial superiority
and, with due respect, though Mr. Gross wants to keep out the word
"Nazism" taken £rom the Convention. nevertheless, Nazism. WC have,
thus, anidcntification of Nazism with apartheid.I submit, hlr. President,
that this identification is one whichisin the public mind, and is one-
and perhaps the most important one-which isat the bottom of the
opposition or the difficulties in which South Africa finds itself.
[Public heavimg of21 October1965J
hlr. GROSS: Mr. President. Dr. Possony, in the Oral Proc<:edings
yesterday, verbatim record of 20 October, 1 should like to draw
attention and the honourable Court's attention to pages 22 anlg
szrpva.1 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 lawç 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, 1 refer specificauy to your reply
to rny question which i address~d to you on page 22, supra, as reflected
in the verbatim record at page 23, which 1 quote:36 SOUTH WEST AFRICA
"hIy understanding of what you are trying to say ['you' meaning
us, the Applicants] is that one should not, under any circumstances,
use the -.oup, clais or race classification for legislation."
1s this an accurate formulation of your intended response to my question?
Mr. POSSONYY : és,1 said this.
Mr. Gitoss: Would you, if1 may ask you this question, in any respect
wish to alter your testimony, modifp it or amend it in any way, if the
true 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 Iny 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
equai protection of the laws to individual perçons as such; in other
words, ifthis were the correct interpretationand understanding of what
the Applicants' contention is, would you in any way wish to alter or
amend your testimony in anp material respect?
Mr. PQSSONY I: 1 misinterpret the passages on page 493, and 1 can
be convinced of that, then obviouçly 1 would change the testimony;
however, 1 have, since this obviously is a crucial point, gone over this
text again very carefully last night, anI am sorry, but1 must Say tliat
my interpretation on further reflection and analysis seems to stand up,
and with your kind permission 1 would like to explain why 1 said this.
Forthe sake of convenience let me distinguish threethings: one 1would
cal1the no-allotment norm, as laid down on page 493; then, for the sake
of convenience, and again this is over-sirnplified,but juçt to keep the
argument manageable, 1 would talk about a no-unfairness doctrine or
norm reflected in many of the statements .. .
Mr. GROSS: Excuse me. hlr. President, 1 am sorry to interrupt the
witness, but ~ould the President be kind enough to allow me to sit
down while this answcr is being given?
The PRESIDENT:You are not very welt, Mr. Cross?
Mr. GIZOSI S:feel a little tired. Sir.
The PI~ESIDENT :y al1means-1 espect we al1are, but sit down for
a while.
hlr. Giioss:Thank you, Sir. This may be a lengthy answer.
The PRESIDENTX : tmay be. Ifyou wish to sit down, by al1 rneans do.
MT. POÇSOHY: I will try to keep it short. The second norm would be
the no-unfairness norm which one can, 1 think, distil out of many of
the documents that were published under United Nations aegiç; and
third, there isthe factual question whether actually fairness is applied
in South West Africa or not-these are three different things.
With respect to the no-allotment norm, 1would like to cal1your atten-
tion to the fact that the wording is non-discrimination or non-separation,
and it is quite clear that there is orze norm; and furthemore in the
paragraph before the last in this whole passage, before the chapter
break, it is justcalled the "nom of non-discrimination". So 1 would
deduce from this that the words non-discrimination and non-separation
mean the same thing, in this context. Non-separation is a very neutrai
term; unlike non-discrimination, about which one can at least argue,
according to the 0x/oyd Dictiona~y,that there is a secondary meaning
to it, which is positive or negative, non-separation isa purely neutral
term-it has no such connotation. WITNESSES AXD EXPERTS 37
This underçtaiiding is strengthened by going further to IV, page 498
-this is farther down on the page, and is in the words of the authors
of the Reply: "The legal obligation of Afember 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 "prohihiting Member States
from discriminating or distinguishing on the basis of race".
The PAESIIIENT: 1 wondel- whether you would just give me the
reference?
JIr.Possoxv: Page 500, second paragraph, the last line-five words
before the end is "diçtir~guishing".
Furthermore if, on page 493, the thrust had been to oppose unfair
treatmeiit, that is discrimination in the meaning of unfair treatment,
then 1do not see why only groups ureresingled out. Obviously thethrust
would have to bc againçt any sort of unfair treatment, whether derived
from a groupdistinctionor frorn 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 the11it would be clear that
any discrimination other than race also would bc illicit. any discrimina-
tion for exaiiiplc on an individual basis.
So much for niy 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. 1 would think that the sources do not support the
norm. The sources, if anything, disregarding for esample 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 lend support to a no-ailotment norm.
With your kind permission, let me follow this up in one specificcase
to show that perhaps my interpretation of this is not just my own.
On page 501 of the lieply,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 z. Article6
of the Declaration is quoted, and it does contain the words "without
distinction as to race, çex, language,orreligion" at the end. I will read
the whole parngrapli, if1 may:
"Every State has the duty to treat al1 persons under its junsdic-
tion with respect for human rightç and fundamental freedoms,
\vithout distinction asto 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 American representative was Judge
Hudson. who tvaç a Alember of this Court. I am quoting from "Report
of the International Law Commission Covering its First Session IZ April
-g June I94gW,General Assembly, O@cial Records, Fourth Session,
Siipplement No. IO (Algzg), page 7.1 will read the statement by Judge
Hudson :
"Mr. Hudson stated that lie voted against the draft Declaration
because the provisions of its article6 went beyond the Charter of
the United Nations, and beyond international law at its present
stage of development."
The other dissent was cast by tlie represeritativeof the Soviet Union,38 SOUTH WEST AFRICA
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 1will 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. 51that the draft decla-
ration ignored the most important duty of States-not to allow the
establishment ofany 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 fuiiquote in No. 5 but 1 think this gives the gist of it in
connection with this point.
Now, if Iunderstand Mr. Koretsky correctly, I think the point was
that Article 6, as drafted and as quoted in IV, page 501, does not say
enough and in particular, it does not enjoin upon States "not to aUow
the establishment of any direct or indirect restriction on the rights of
citizens", etc., "on account of their race". Sowhen we read this 1~vould
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 coritained 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 specificaliy the allegation ~voube that those
forms of-1 am using the term here asused in the declaration-discrirn-
ination which are baseci on, or reflect, or aim at racial hatred, racial
superiority or generally speaking, involve oppression and genocide, those
forrns of distinguishing-if that be the word-are absolutely out of line
with the spirit of the Charter. 1do not think there would be any question
about that.
Hence the question cornes down to the material issue, whether or not
of oppression, genocide, etc. If they do notandrif 1understand correctly
what Mr. Gross laid down on 18May, if 1 remernber it correctly, then
1 do not think this is even under debate. Therefore, the question is
whether or not the policy of apartheid, which 1 understand to be one of
constructive purpose enabling rather than diçabling in intent, is illicit,
simply because it is ùased on a doctrine of no allotment between groups.
Mr. G~oss: Mr. President, rnay 1resume cross-examination?
The PRESIDENT C:ertainly.
hlr. GROSS:1had hesitated, Sir, to interrupt the very interesting ar-
gument just made but 1 should like, if 1 may, Mr. President, to go back
to the question 1 asked and see if 1 can obtain an answer to it or if the
witness considers that he has answered it. I have it written down so
there is not my usual error or fault of rnisquoting myself after some inter-
val. My question to you was: would you in any respect wish to alter
your testirnony if thetrue nature and content of the standards for which
the Applicants contend, as defined at IV, page 493 and described there,
is not accurately refiected in your analysis and your understanding,
which you have now very interestingIy and very ably explained to the
Court, with appropriate reference to other ages in the Reply? JVould
you alter or amend Fur testirnony, Sir, if !& Applicants' true position WITNESSES AND EXPERTS 39
and contention were not as you understand it and as you have explained
why you understand it the way you appear to, if the Applicants' tme
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 rnerit or capacity but which allot rights, burdens and privileges on
the basis of membership in a group and which CIO not protect equality
of opportunity and extend equal protection of the laws to individual
persons as such? If that were, Sir, a correct interpretation and meaning
of the content of the standards for which we contend, would you in any
respect wish to alter or amend your testimong? That, Sir, was my ques-
tion-do you consider that you have already answered it?
The PRESIDENTA : ny part of his testimony over the last two-and-a-
half days?
Alr. GROSS:Any part of your testimony over the last two-and-a-half
dayhlr. POSSONY:Mr. President, this is hard to answer for the simple
reason that 1would have to seeexactly what the case is which Mr. Gross
is making in distinguishing the case from that on page 439.It is entirely
possible that if another case were made that, ofcourse, 1would respond
bfferently .
The PKEÇIIIENT:IlIr. Gross isputting to you that the interpretation
which he places upon it, as he states 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 Iasttwo-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 RIr. Gross will clarify what particular
part of your testimony he suggests your rnight alter.
Mr. GROSS:Thank you, hlr. President. May 1 clarify thenpoint and
purport of the question for the witness?
The PRESIDENT N:o,1 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 difficulties.
hlr. G~oss: Yes, Sir. Would you please mswer the question, 1 will
reserve my remarks.
Mr. POSSONYW : ell,1 think 1answered it just a minute ago, Xr. Gross.
BZr.GROSS:What was your answer, Sir, if you recall?
Mr. Possox~: The answer is that 1 would have to see exactly what
the amendment is to analyse it. 1 cannot, on ço many points which are
very technical, improvise an anslver; this requires logical analysis.
Mr. CROSS:1 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?
hlr. POSSONY T he most important one is whether it is a no-ailotment
doctrine or not, in my judgment.
AIr. G~oss: 1 am not atteinpting 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 defrned, it is on the basis
of the understanding which the Applicants attribute to their own lan-
guage, Sir. This is, if 1may say so, partially in responsethe statement4O SOUTH WEST AFRICA
made by hlr. Muller at page 27, supra, of the proceedings yesterday, in
which he says that the Appiicants 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 hiscase to any one of the witnesses;he
merely refers tu these cases set up in the pleadings. And 1 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. 1 would, therefore, Iike to askyou again-if you do not wish to
answer it or if it 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-hnlf days which you would amend or modify, if the
interpretation placed upon the content of the standards was the inter-
pretation suggested in terms of my question to you, Sir?
Mr. POSSOXY:Can 1 askperhaps, Mr. President, that Mr. Gross's
interpretation be read again and I will try and note it down?
The PRESIDENT >Ir. Grosç 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.Yerhaps the request can be put again but it can be put, 1 sup-
pose, in much more direct way now that the whole field has been covered
aç to the purpose of the question. Mr. Gross.
Mr. GKOSS:Yes, Sir. Would your testimony in any respect, major or
otherwise, so far as you recall ibe altered of modifiedifthe 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 rnerit or capacity, but which allot
rights and burdens on the basis of mernbership ina group and which do
not protect equality of opportunity or estend equal protection of the
laws to individual perçons, as such-on the assurnption that thatis the
interpretation? Rly question, if1 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?
&Ir.POSSONY MF: .President,1 fail to see that the formula differs irom
page 493 in any substantial aspect. It is a little hard to be accurate on
an evaiuation of this sort but on hearingt, 1think this is jusarestate-
ment, in sornewhnt different sequence, of what page 493 says, and on
that basis 1 would not change my testimony.
Mr. GROSS: Now 1 should like for further clarification ofthe matter
to refer to the Rejoinder,V, page 131, to which Ireferred yesterday and
from which 1 rcad certain extracts. The contest relates to .Article55
(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 yesterday, I should like to
complete the thought in the paragraph today. The Respondent says:
"In Respondent's submission it would be entirely anornalous
to suggest that any digerentiation (as distinct from acnfairdiscvim-
inalion)between races, sexes, language groups or religious denomi-
nations would irivolve conflict or inconsistency with the said Article
[that refers to Articlej (cl]." WITNBSSES AND EXPERTS
Then Respondent goes on to Say:
Thus, on Applicants' argument, a hlernber 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 holiclays for differcnt religious cornmunities on their respec-
tive religious daqa, 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
"It 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. lnsofar as Applicants attempt to establish
the proposition tl-iat any differentiation on the basis of membership
in a group (irrespective of when it says differentiation was intro-
duced for the benefit of the group concerned) is contrary to the
Mandate, the Charter, iherefore, cannot assist them."
Xow, having read this rather lengthy quotation, 1 draw your atten-
tion to the apparent characterization by the Reçpondent of 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
uyon sexes, etc., in the terms used.
Now, Sir, 1 cite this because 1 would wish to nsk you whether your
testimony regarding what iç described in paragrriph (a) of the pointsto
which your evidence is directed, or was intended to be directed, or does it
reflect an açsurnption on your part that the standards contended for by
the Applicant are accurately reflected in the passage 1 have just read
from the Respondent's Rejoinder?
JIr.Possos~: Blr. 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 oflifeand
necessarily iç acommon practjce in States if 1 may enlarge on this for
one sentence: 1did not even cnter into a discussion of the terms "group"
or "clnss", but restricted my testimony essentially to the matter of
"ethnic", interpreting the word "race" in a broad, pcrhaps not necessarily
correct way. So the burden of my testimony wns to establish that difier-
entiation as to groups is a fact of legislation. "According to group"
differentiationiscommon yractice and has to be common practice. 1think
page 131 of the Rejoinder, V, which >Ir. Gross jiist read, is a correct
description of page 493, IV.
&Ir. G~oss: Now, Sir, witli reference to your statement, if 1 under-
stood you correctly,and please correctme if I am wrong, your testimony
was not directed towards standards but towards a norrn,isthat correct?
Mr. POSSONY Y:es.
Mr. GROSS1 :refer,and 1 was referring, to paragraph (a) of the point
to which your evidence was çaid to be directed by the Respondent, as
read into the record of 18 October, at XI, page 643, ïvhich reads as
follows, as one of the points to which your evidence is said be directed
-1 willomit the prearnbular paragraph :
"(a) The absence of a general practice of a suggested norrn42 SOUTH WEST AFRICA
and/or standards of non-discrimination and non-çeparation 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 saidthat youwerenot addressing yourself to the
question of standards ofinterpretation forwhich the Applicants contend?
hlr. POSÇOXY:Mr. Preçident, as 1 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. 1 was
not testifying on the legal effects of the standard as applied to the
Mandate.
hlr.G~oss: So your testimony, then, if 1 understand you correctly,
was directed to the point of whether or not there exists, as a matter of
international law, a norm, an international Iegal rule, prohibiting dis-
crimination, as defmed on page 493. 1s this the point towards which
your testimony is directed?
Mr. GROSSA~~: : nd the sole point towards which your testimony is
directed?
Mr. POSSONYC : ertainly the main point, yes.
Mr. G~oss: Now, Sir, with respect to the question of the practice of
suggested nom andlor standards-the practice-you would concede,
would you not, Sir, that there are two separate, but related, questions
involved: the existence of standards-1 am now referring to standards
-the existence of standards or otherwiçe and their application in prac-
tice are two different aspects of the problem, are they not?
Mr. POSSONYY : es, Sir.
Mr. GROSSW : ith respect to the existence of standards, as distinguished
from their application in one or more instances, was your testimony,
or was it not, Sir, teiided be directed towards the question of whether
the standards existed?
Blr. POÇSONY: Yes. They do not exist. I should qualify, but for sim-
plicity and time-çaving purposes the purpose of the testimony was that
the norm or standard, as laid down, isnon-existent.
Mr. G~oss: Does not exist?
Air. POSSONYN : O.Other norms exist-and standards.
Rlr. G~oss: Would you Say, Sir, just to clarify this one notch further,
let me take as an illustration theequal protection clause of the United
States Constitution with which you and 1 are both generally farniliar,
Sir, arewe not, and of which the Court will no doubt be aurare. \Vould
you say, Sir-you would obviously agree, Sir, that that esists as a
describe it? That exists? whatever way you would wish generally to
hlr. POÇSONY :Certainly.
&Ir.GROSS:YOUhave testified with respect to certain of your views
with respect to its appIication, or non-applicationofparticular contest?
That is correct,is it not, Sir?
hlr. POSSONYT :hat is correct.
hlr. 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 Iaws, would you not, Sir?
Mr. POSÇONY:CertainIy, but, Air. President, that iç really not the
point. The "equal protection before the law" norm or standard has been WITNEÇSES AND EXPERTS 43
in existence for many years. 1 do not know whether it started several
centuries ago, but certainly as of rgzo, which is a relevant date in
these proceedings, that norm and standard was generdiy applied. Cer-
tainlywc 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 the1920 period, and notably in the United Nations period, a new
norm has been developed. Tliat is the question. That old norm, that it
has been in existence, theris no question about it. This norrn, 1 would
Say, rirasclearly recowed by al1 partieto the Mandate. I do not want
to go further than this because it becomes a strictly legal problem but,
speaking as an historian, 1 certainly would stand on the point that by
192-and, in fact, Mr. Gros, 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 aiiy further back inhistory, that wasan accepted principle.However,
the point here isthat a nelv norm has been developed, as defined on
page 493.
&Ir.G~oss: 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, st@va,you stated, Sir, among other things:
"Ive have, thus, an identification of Nazism with apartheid.
1 submit, Mr. President, that this identification is one which is in
the public mind, andis one-and perhaps the most important one
-which is at the bottom of the opposition or the difficulties in
which South Africa finds itself."
1s that correct?
hIr. POSSONYY :es, Sir.
Mr. GROSSN : ow, might 1 ask you, Sir, with respect to the possible
inferences whicli you might wish the honourable Court to draw from
your testimony which 1 have just quoted: does this testirnony 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 ~vhichyour evidence is
said to be directed? "1s 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 exists as a matter of law would have an adverse effect
on the progress and well-being of the persons concerned? 1s this one of
the instances which are in your mind, Sir, by implication or other-
wise ?
fiIr.POSSONY If:1understand it correctly, Mr. President, the question
is whetlier the policies pursued by South Africa have an adverse impact
on the populations concerned?
>Ir.GROSS : yquestion actually,Sir, iswhether you, in your testimony
which 1 have just read, had iiitended to convey the impression or sought
to have the Court infer that this is one of the instances to which point
(b) refers?
The PRESIDEKT D:Oyou recall your evidence at page 35, szrpra?
Mr. Yossos~: Yes, 1do.
The PRESIDEXT T:he question is did you intend the Court to infer,
or was it in the back of your mind, that any attempted application of44 SOUTH WEST AFRICA
the standard or norm stated at page 493 of the Keply would, in South
West Africa, have an adverse effect on the well-being and progress of
the people of that Territory? That isthe question, içit, Mr. Gross?
Mr. G~oss; Yes, Sir, and specifically referring to paragrap(b) of the
points to which your evidence is directed aXI, page 643, of the verbatim
of 18 October.
The PRESIDEKT:I think it is much better if you get the answer to
that question. It is as1 have already suggested, the addition of other
matter, Mr. Gross, rvhich freqüentty causes a difficulty.
Mc. G~oss: Sir, 1 hope 1 have not confused the witness by identifying
the matter, 1 certainly did not wish to. \Vould you wish me to restate
the question, hLr.Yossony?
3lr. POSSOSY:1 will trj. and answer, Air. President. My point here
was simply that theApplicants used the Declaration on the Elirnination
of alf Forms 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 1wanted
to make is that if Nazism and aparttieid were identical or if apartheid
were a modern form of Nazism-which is, inmy mind, genocide, by and
large-1 certainly woüld not be standiiig here testifying.
It is clear frommy reading that the draft Convention and the Decla-
ration try to outlaw practiceslikeNazisrn. This does not ipso jnclo mean
that they try to outlaw. ..
The PKESIDENT The Court must interrupt you. lt is important to
be responsive to the question;1 thirik the question hasnow been clearly
put to you-1 do nrit desire to put it again, but perhaps Mr. Gross will,
and then you should be responsive to it.
The question isone limited to wliether, having regard to that part
of your testimony which appears at page 35 of yesterday's transcript,
which you have read: did you intend to have the Court infer, or was it
in the back of your rnind ivhen you made that statement in your testi-
rnony, that the suggested norm or standards, stated by the Applicants
at page 493 of their Reply, IV, would, if applied to the Territory, have
adverse effects on tlie well-being and progress of the people concerned?
Now, tlzat admits of a fairly brief response-would you be responsive
to that question?
RIr. POSSONY:The answer is yes, AIr.Yresident.
blr.GROSS : hat itwould, Sir?
Alr. POSSONYT : hnt it ivould be detrimental if the norm ufere applied.
Mr. CROSS :ow, Sir, in respect of Sour reference-at the same page
and point, that is to Say, page35, supra-and comment that the iden-
tification of Nazism and apartheid has certain consequences or implica-
tions, 1 should like to ask you, Sir, whether you have had occasion to
examine the go-odd United Nations resolutions or any of them cited in
the Keply at IV, pages 502 and 503, inthe footnote, which specifically
condemn racial discrimination. including apartheid.and also in certain
non-self-governing territories. Are you familiar with those resolutions,
Sir, or anyof them?
Mr. Posso,uu: 1 ulould not be able to tell you,&Ir.President, 1 have
read many of these resolutions, but 1 do not know which specific ones.
Mr. GKOSS W: ell, Si...
hlr. POSSONY : know that they are listed here, b1tdo not remember.
Mr. GROSSO : n the basis of your reading of any of them, so far as WITNESSES .4KD EXPERTS 45
you recall, and obviously1 would not want to tax your recollection, but
on the basis of your recollection, Sir, of reading any of them or al1 of
them, could you tell the Court whether there isany reference to Nazism
in any ofthem, Sir?
Mr. Posso~~: 1 do not reme~nber. I have the Draft Conventioii here,
and it is...
Mr. GKOSS: I am talking to you about the resolutions cited at the
page, Sir, that does not happén to include.. .
Mr. Possoxy; This Ido not know.
&Ir.GROSS :. . the Draft Convention.1 see, Sir.
Now, Iiave you read, Sir,as part ofyour study of the casein prepara-
tion for your testimony, the expression of official views of certain govern-
ments, which are set forth illustratively in the Replq-, IV, at pages
296-302-have you had occasion to examine those, Sir?
Mr. POSSONY P:ages 296 to?
Mr. GROSS :ages 296 to 302 of the Reply, under the heading "Views
of Governments".
The PRESII)ENT It is pages 293to 295, is it not?
Mr. G~oss: Oh, 1 beg your pardon, Sir.
1 am sorry, ;\.Ir. Possony1 am afraid 1 have misled you. Sir. Pages
295 and following; page 293 is the introduction. 'l'heviews begin at page
295, the United States, and they continue for some pages thereafter;
1will not ask you to read thein, unless )+ouwish to, but have you had
occasion to examine them?
Alr.POSSONY N:O, 1have not examined them.
Mr. CROSS M:ay 1state, Sir, that, with the exception of the Norwegian
statement, which is at IV, pa.gczgg of the Reply, there is no reference
in any of them which identifiesNnzism with apartheid in any respect.
1take it, Sir, that, in respect of pour comment that this identification
is one which is in the public mind, and isperhaps the most important
one which is at the bottom of the opposition or the difiicultiein 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?
31r.POSSONY M: r. Presiderit, the culmination, so far, of the drafting
effort, has been the Draft International Convention on the Elimination
of al1Forms of Racial Discrimination. 1 do not know what happened in
the last few months atthe Ui-iitedNations, so Iwould not say that this
is the last effort under this over-al1 heâding of human rights, but this
is definitelythe last product before the resumption of United Nations
activities-and there it is, very clearly, Nazism.
hlr. CROSS: Sir,1 do not have my question written down, 1 will not
labour the point, but youIiave not responded to the intent rny question.
Was it or was it not, Sir, to be inferred in )-Our testimony. on pa35.
strprn,that the identification oKazism and apartheid has bcen made in
the resolutions, if you recall, which the Repiy cites on the views of
governments,other than the Nonvegian statement-now, mjrquestion is:
whether, in tems of your testimony, ou are referring to idcntification
of Nazisrn and apartheid in respect of anything other than the Draft
Convention, to which you have referred? Perhaps 1can put it that way.
Mr. POSSONY N:o, 1 think this is a good enough sourcefor the point.
Mr. Grioçs: 1 see, Sir.
Now, in your testimony in the verbatim record, rg October. at XI,4 SOUTH \TEST AFRICA
pages 703 to 707, you discussed, at somelength, the proceedings of the
Seminar on the Multi-National Society, heId 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?
Mr. POSSONY T:hat is correct.
Mr. GROSS: KOW,the report of the proccedings states, at page 8,
paragraph 23-1 want to be sureI am citing the.right page . . .
The PRESIDEPIT H:ave you the report in front of you, Professor?
Mr. Possoxu: I know the reference which will be made, 1 am sure.
Thank you very much.
Mr. GROÇS:The paragraph to which 1refer . . .
With the Court's permission, do you have a copy to foIlow me with?
Mr. POSSONY1:do not.
Mr. G~oss: 1 will read it, 1fmay, Mr. President, 1have it carefully
trinscribed.
The PKESIDENT Certainly.
Mr. G~oss: Itreads, on pages 8 and 9,paragraph 23:
"Several participants stressed that the question of minorityrights,
important as it was, seemed currently overshadowed by the wholly
abnorrnal situations prevailing in certain areas where a rninority
denied the most fundamental human rights to an overwhelming
rnajorit . SpecisI attention was drawn to the discriminatory policies
pursued by the Government ofSouth Africa [several other govern-
ments are nami:d, but focusing now on this], policies which, in the
opinion ofthose participants, demanded international measures in
that they violated the Charter of the United Nations, the Universal
Declaration of Hiiman Rights, and the instruments deriving from
them."
In the first place, Sir, with respect to the views here espresseby
"several participants"on the problem of "a minority denied" the enjoy-
ment of "the most fundamental human rights to an overwhelming
majority", wouId 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? FVouldyou Say that both are relevant to
a consideration of the problems towhich you have addressed yourself?
Mr. POSSONY :l-iat anybody is denied of rights.
hlr. CROSS: Incidentally,Sir, I would simply point out that, it is
correct,is it not, inthis excerptt here isno identificationof Naziçnr
with the policies of South Africa?
3lr.POSSONY NO overt identification, Mr. President. Thvery para-
graph is morded so that it is obviously ithe minds of those who made
the observation tliat apartheid is an oppressive policitmay not be as
bad, maybe, as Nazisrn, there rnay not be an allegation of genocide
involved here,but apartheid is, according to the people who made these
staternents,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 presentedas to ~vhythey 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 knewany of the facts.
Mr. GROSS : ow, Çir, with further referento the proceedings ofthe WITNESSES AND EXPERTS 47
seminar, and the views expressed with regard to the problem of minor-
ities,inÿour testimony in the verbatim record, 19 October at XI, pages
704-705-do you have that, Sir?
Blr. POSSOXYY : es, 1 have page 70j, but which passage?
Rir. G~oss: You pointed out, did you not, "that the point !vas made
repeatedly that group rights and individual rights do not necessarily
coincide" ?
Mr. POSSONYT : hat is correct.
Kr. Grioss: And that "both types of rights must be protected". You
çtated that on page 705, supra, isthat not correct, Sir?
Mr. Possolr~: Yes.
air. GKOSS:Noiv, you then cited and quoted from paragraph 36 of the
seminar in thiç connection, did you not, Sir?
Blr. Possos~: Yes.
Mr. G~oss: 1should now like to cal1to your attention paragraph 35,
of the same report, imrnediati:ly preceding the paragraph you cited, and
, ask you whether you would agree or disagee tvith the views there set
forth by the gox,ernmcntak repreçentatives concerned.
Do you have a copy of the document? May 1read it slowly? Paragraph
35 ison page rr:
"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. Some of these speakers con-
tended that al1 political and most social rights could be estended
only to an individual."
Pausing there, do you agree or disagree with that view?
air. POSSONYC : ould you read it again?I did not hear the last part.
>Ir. GROSS:Yes, of course, if the President permits.
"Some of these speakers contended that aii political and most
social rights could be extended only toan individual."
Mrould you agree with that view?
Mr. POSSONY1: do not know about "most" and "all". 1 would çay
that there are rights which can only be nttributed to individuals and
there are rightç which must be attributed to groups.
Mr. GROSS:It depends, does it, if 1 may interjecta 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. Possosu: Yes, but I do not want to get into an argument about
this because obviously that is one of the factual questions. 1 believe,
juçt to give an answer to it, thatmany rightç and obligations muçt be
legislated througli the group and the individual does ~iot show up.
I could explain thiç,for esample, in terms of taxation, but 1 do not
think that I should waste the Court's time with that. As Mr. Gross
stated it, it is a generality 1nwill answer it with a general ansiver.
hIr. GROSS: Sir, my question to you was, 1 thought, rather asiomatic.
Groups are, are they not, con~posedof individuals?
Mr. Possoi\.rr: 'l'es, theare obviously composed of individualç, 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 yciu.
Mt-.G~oss :To continue:48 SOUTH WEST AFRICA
"The right to vote, for exampie, should be enjoyed by every
citizen, but the recognition of special political rights ta group
could even carry an element of risk,asthe history of the inter-war
periodhas shown."
Now, 1 am calli~igyour attention here, in the context of this view
cxpressed in the report which you have cited, to the piirase "the right
to vote, for example, should be enjoyed by every citizen". Would y011
accept that as a principle?
Mr. POSSONY 1: accept it, except for the normal exclusion clauses,
but otherwise there isno question about it.
hlr. G~oss: In other words, as a principle or standard, you would
agree that, subject to disqualifications-inçanity, age and the normal
disqualifications and qualifications-you accept the principle that the
right tovote should be enjoyed by every citizen?
Mr. POSSOKY Y:es.
Mr. GROSS : Next.continuing reading :
"The creation of privileged groups, particularly witliin concen-
trated areas, might create a local situation in which a minority
discriminated against the majority."
Would you accept that as a fact and would you agree with that state-
ment 7
Mr. POSSQNY:Yes. 1 would also agree to exactly the opposite state-
ment. If 1may folloiv up the "right to vote" with one sentence, it is not
a question of the right to vote. 1 do not think there is any argument
abolit that. The question is: to vote in what context? Similarly, a
minority rnay opprt:ss and amajority rnay oppress.
Mr. G~oss: Then, continuing the views expreçsed:
"hloreover 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 ou accept that, if you understand it?am not certain that1 do.
1. hOSSONY: 1 lhink 1 understand it. There are two sides to this,
the group ïvhich niay wa~it to assimilate and the group that rnay or
may not want that group to assimilate. In other words, you have to
consider both elements of this equation. Assimilation nieans that one
group wants to merge with another group. The other group rnay not
want this. Whether this is oppression or not i1,think, a question which
is hard to decide. Ithas often been stated that it is"oppressive", but
I am not sure that this is correct anIdo not want to waste time here.
Mr. G~oss: 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, culturor religious fields while elsewhere the rights
of a group coulil not exceed tlie sum total of rights enjobydeach
individualthercin comprised."
h'ow, unless you wish me to readit again, what 1 wish to cal1 to your
attention is the recurrence to the theme here, a1 understand it, earlier
mentioned, that "tlie rights oa group could not exceed tlie sum total
of rightsenjoycd by each individual therein comprised'"As you under-
stand that, would you agreeor disagree with it? WITNESSES AND EXPERTS 49
Mr. POSSONY1: do not thirik that this statement is one which is too
responsive to the problem u7eare discussing.
The PHESIDENT: First, could you answer the question of do you
understand what Mr. Gross put to you? Do you understand the words
which he used?
>Ir.Poçsos~: 1 understand this particular quotation, JIr. Prcsident.
The PRESIDEST: Ihether it is concerned with the problem we are
discussing is not the point. Coi~nselis asking your view of this statement,
do you agree with it?
Mr. G~oss: As you understand it, do you agree or disagree?
Mr. POSSONY :hat is what 1 wnnted to express. 1 agree to itas an
exercise in logic. 1 do not agree with the particular statement as a
sociological analysis.
Mr. GROÇÇ: Would you care to elaborate that, if the Court wishes or
permits?
With regard to your testimony on the page 1 have cited, that is, the
verbatim of 19 October. XI, page 705, you ivill 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 ty"-s of rights must be protected".
That ~as"~our tt:stimony.
1would like t» ask you, Professor Possony, for your view, ifyou care
to express it,3s to whether or not the purpose of group protection. in
the sense in which you use tht: language, is or is not precisely to protect
the rights of the individuals composing the group so that they will not
be harnpered or adverselÿ affected by reason of their membership in
a group? 1sthat what you mean by the purpose of protecting the group?
hlr.POSSOXY The purpose of protecting the group, or group legislation,
is to enable the individual tciget hiç best chances. There isody one
additional point, that in addition to the question of the individual's
rights and hoyes and so on, thcrc 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 hurnan rights.
Nr. G~oss: Now, of course we agree without any qirestion or reserva-
tion that special problems arise by reason of membership in a group.
1 do not mean to imply anything else in rnyquestion to you. Proceeding
from your response to me, as1 understood you, that a fundamental
purpose of a group is precist:lj~ to protect the right of the individual
as a rnember of the group, woulcl you go further and Say that if it is
possible, by natural circumstance, that is to saj- other than by reason
of sex, or by reason of being blind or othenvise disabled, or a minor,
to change group affiliation fur any purpose sought by the individual,
~vould you Say that this isa right tobe protected?
Mr. Possosu: Ihen a man iç blind and he can regain his sight,
obviously the right for him to do so should be protected. Generally
speaking 1 agree with you that the right of an individual to select his
own life is one that should bi: protected. The question in practice is to
what extent the is a practical capability.
Mr. GROS: 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 permits you to go-but sirpposc, for example,
a person classifiedas Coloured, letus Say, wishes to enjoy certain rights
which are granted by law only to persons classified asWhite: let us take5O SOUTH WEST AFRICA
that as an exampIe. Would you regard it as desirable social policy, legal,
or economic, or political, ormoralolicy, or al1of thesto allow or permit
that individual (asan exampIe) to Say, "1 do not wish to be classified
or regarded as Coloured. I wish to have the nghts which pertain to
me as an individual and comparable to those enjoyed by a White per-
son". Would you state thatthat is a right on his part which should be pro-
tected?
Mr. Posso~u: hlr. President, there aretwo questions-the right not
to be classified and the question with respect to activities. Without
going into the details of this1 would Say this depends on the over-al1
situation.If you have a situation where it is necessar to divide people
by groups because they are in fact quite difierentana this is a political
issue in the political area, like in Cyprus, ththe interests of the com-
munjty as a whole, not just the individu or the sub-community, but
the over-al1 cornmunity, take precedence. So the desireof the individuai
person is of no grenter 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 persona1 rights in terms of his
career or ço, 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 notso disabled, then his
rights would not be cürtailed.
Mr. G~oss: Would disablement in the sense in which you use the
term include the iriabilityby law, to participate in the franchise, for
exampIe?
Mr. Possoii~: In any franchise?
Mr. Gross: Any franchise you wish, Sir, that pertsinç to rights of
citizenship. Let ussay to vote for representatives inthe central govern-
ment, for example.
hlr.Possor;~: That depends on the situation, lilr. President. Ko one
can participate in :iny franchise 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 :ntl this depends then, Sir, on how you define the gronp,
does it?
Mr. POSSONY It:depends, 1 think, if itisa valid definition, on what
the actual social situation iç.
Mr. GROSS :t depends on how thegroup is defined-would you answer
that yes or no? It seems rather axiomatic, in terms of your earlier
response.
Mr. Posso~u: If we understand that the definition would not be an
arbitrary one, then the anslver is yes.
Mr. GROSS :nd would it matter also who establishes the group clas-
sifications? Would that be relevant?
hIr. Posso~u: It would be relevant. It \vouId be more reIevant if the
poup classificationwere arbitrary as distinguished from group classifi-
cations that are juçt natural because there happen to be those groupç.
hlr.GROSS:And would it make a difference, Sir, who makes the
decision as to whetliera particular classification is arbitrary not?
Mr. POSSONYI:t would matter if the decision disregarded the facts of
history. I do not kilow, for example, whether in the establishment. let
us Say, of a systeni like in Cyprus or in Lebanon, people have gone
through this sort of elaborating precisely how to define this point. Those \VITSESSES AND EXPERTS 51
were givensituations and arrangements generally were made on the bais
of those given situations.
Mr. GROSS : ould you care to answer my question, or do you think
you have answered it? Does it make a differcnce who decides whether a
given classification is arbitrary or not?
The PRESI~IENTT : here are.twoquestions there, Mr. Gross: one, who
makeç a definition, and the other one, whether iis arbitrary.
Mr. GROSS:Sir, 1 intend, if1 may, to clarifyand re-formulate, to ask
one question. Does it make a difference who decides ~vhether or not a
giren classification is arbitrary?
Mr. POSÇONY:Frankly, 1 do not know how to answer this, Air.Presi-
dent. Logically,1 would Sayobviously it makes a difference; practically,
Iwould say that there is no mechanism in existence by which this could
be determined.
Mr. GROSÇ:Sir, you are not tcstifying with respect to the Mandate;
that is understood, isit not?
hfr. POSSONYN : o, no,1did not.
Mr. GROSS: Nciw, 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 . .
hlr. POSSONYD : o you have the page number, please?
Nr. GROSS : es,I do. Paragraph rzo ison page 29.
Mr. POSSONY : mean the reference in the transcript, in the verbatim
record.
Air. GROSS: No, this is not a reference in the verbatim record. This
is a reference to the reporofthe seminar. The references to the verbatim
record tvhich 1 have made are those in which you djscuçsed the report
of the seminar in other respect.^.
Page 29,paragraph 120, of the report of the seminar is a surnrnarization
of the debate, and the discussion leader suggested the following con-
clusions, interalia,the one to which 1 shall refer:
"Some 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 freedorn of the individual."
LVould you agrec 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?
Mr. POSSONYB : oth.
Mr. CROSS:You think that it pertains to both, Sir?
Dlr.POSSONY f you have a society where there are many different
groups, and where, for that matter the strength of the particular cultures
isquite different, one culture being stronger than the other, you have to
keep in mind that the culture as such of the group has to be protected.
In additioti, of courseitis an element of persona1 freedom to have yaur
own ciilture.
Jir. GROSS:i\fo~Id OU say, Sir,that as a matter of your belief or
approach to this lvhole problern, that the group which we agree,1 think,
comprises individuals, is only a group because of individuals which
comprise it? This is correct, is it noSir?9 SOUTH WEST AFRICA
Mr. PQSSONY 3:lr. President, this raises an argument which has been
dealt with in IOO years of sociological theory, so 1 just cannot answer
this in terms of yes or no. This question does not lend itself to this sort
of answer.
hlr. CROSS: 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. YOSSONY L:etme try a very fast answer with respect to language.
You do not Iiavelanguagc of an individual. Language presupposcs a
group. Witliout the group as such there is no language.
Mr. CROSS:Of course, Sir. Now, with regard to those who speak the
language, they are individuals or does a group spcak a language, Sir?
Jlr. Possosu: The group spcaks the language and al1the members of
the group speak the language.
Mr. GROSS:Now, Sir, 1 just wanted to get n little clearer, for the
possible benefitof the Court, your conception of the retationship hctwecn
the group and the individual, since obviously, is it not true,Sir, that
this isreally the hcart and sou1 of the purport ofyour testimony? You
would agree with that, would you, Sir?
hlr. POSSOS:Y Kot necessarily.
&Ir. CROSS:Xot necessarily. \Vith regard to the minorities treaties,
to which you referred, I refer specifically to the verbath of 18October,
XI, at pages 655 and following.
At page 656, 1 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 esercising sovereignty. The
treaties recognized the principleç ostrictequality between indivirl-
uals belonging to the minority element and those belonging to the
majority, notably equality of al1 persons before the law and etliial
trentment de f~cctoand de jztris."
1s this a correct version, an accurate version?
hfr. POSSONYE : xcept for the word ju~is, yes.
Mr. G~oss: Except for de jzcris. It should be djztre.
Kow, Sir, with respect to this paragraph, first the statement that
"minority treaties ~irovided toeach member of the minority the right to
the nationality of the State escrcising sovereignty". On the basis of
your study or analysis of the minority treaties to which you referred.
could you itidicate your vicw cot~cerningwhy that was regarded, if you
know, as an important element for protection in the treaties?
Mr. POSSONY:\Veil, 1 have not addressed myself to this problem
particularly, but 1 would venture to think that any person needs a
passport; he has tc, have a right to be somewhere, to be recognized,
and to corne home ifhe wants to, and so on, and that is inrolved here.
Mr. GROSS: DO you think, Sir, that this is a fair interpretation of
your answer; that it is essentiallya matter of convenience rather than,
for example, a matter of basic rights which normally go with citizenship?
Mr. POSSOXY1 : would think this is a basic right.
Mr. GROSS:And, therefore, now turning to the second sentence: "The
treaties recognized the principles of strict equality between individuals
belonging to the rninority element and those belonging to the majority",
etc. Kow, with respect to that phrase in your testirnony, would you WITNESSES AND EXPERTS 53
indicate to the Court your view concerning the importance,or otherwise,
with any qualifications you rnay have, of the right of strict eqiinlity
between members of groups, and what sense you attribute to that phrase
in your own testimony? Equality in wlint respect, Sir?
Mr. Possox~: Well, the treaties had this wording in them, this is
point number one. 'I'hespecifics varied not too much, but they did vary.
The fundamental purpose was, of course, that in a multi-national State
(most of those were European States wliere the ethnic differenccs arc
relatively minor) or where there are çome religiouç problems, that each
citizen of the State has equal rights in terms of voting, in ternis of
passparts, in terms of whatever other rights that would be necessary
ancl are possessedby any mernber of the otlier groups.
&Ir.GROSS:And the "equaiity of all persons beforethe lnrvand equal
treatment de /nc!oand de jure"; you would regard that, or accept that,
Sir,as a standard or principle of general application in respect of the
minonties treaties?
IIr.Posso?iu: Yes, they al1 contain this phrase, or virtually all.
hIr. GROSS:And further in your testimony in the same verbatim record,
but calling your attention to page 654, now you referred, did yoii not,
Sir, to several ways of implementing self-determination? And in the
course of your testimony you stated, and 1 quote from XI, page 654:
"In this contcut, 1 am using the term 'self-determination' as
denoting theidea ofnationaldistinctivcness in the sensc of Uluntschli,
one nation-one State or one State-one nation. 1am not disciissing
how and whether the wili of the populations concerned is bcing
determined."
Sow, would you indicate to the Court, if you wish to, whether, in your
view, the niethods by which the will of the population concerned is
ascertained and determined are factors relevant to the c]uestion of
implementatiori of the principle of self-determination to whicti you
referred?
Nr. Posso~u: Tlzc short ansu7erto thnt, Rlr. President, is yes.
Mr. GROSS.:4nd, Sir, is this what ypu meant in your comment (this
is for clarification), in the same verbatim record atXI, page 6j6, when
you said,among other things :
"A mere minority treaty cannot provide the ethnic group . . .
with the capability of participating as a more or less equal partner
in decisions affecting its existence."
Did you rnean, Sir, by that testimony "a mere minority treaty caniiot
provide the ethnic group", et,:., that the achievement of the status of,
what you so call, more or less equal partnership in decisions affecting
the existence of n group is an important, or even a vital element of the
problem of self-determination and equal rights?
Mr. Possox~: 1 do not think these two points are too closely
connected. Tlie point onXI, page 654, was sirnply a methodological one.
1 \vas not going to discusthiçproblem in the frarneworkof that particuiar
argument. I waç just talking about separations. partitions. and so on.
The point on page 656 essentially is that a minority treatv provides
some sort of protection to agroup 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 certain54 SOUTH M'ESTAFRICA
handicaps which the minority treaties can rnitigate, but the handicaps
attendant to the status of minority willremain.
Mr. GROSS : take it you would agree, would you not, Dr. Possony,
that it is, let us Say, a sound application of the principle of çelf-deter-
mination, in the context of your testimony, that what you have described
as more or less equal partnership in decisions affecting its existence
would be a desirable objective from the standpoint of effecting just and
sound decisions in respect ofself-deteminatW ioonuldyou agree with
that, Sir?
Mr.POSSONY Certainly.
Mr. GROSSD :Oyou agree that individuals composing an ethnic 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?
hIr. POSSONY H:o, 1 do not think this was discussed before, Mr. Pres-
ident. 1 do not have any argument with this contention, in fact 1 agree
with it wholeheartedly. Every group ought to have its own voice, its
basis, itsownrmdestiny, and only if it does thatcan it be considered an
equal partner. 1 think this is the fundamental 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 statu-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 runnin its own affairs or running aof its oxvnaffairs.
This ir recognized in the&nited Nations Charter, and so 1 do not think
I have to go into that.
Again, let me make this point, if 1 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
various ethnic groups-and the word "ethnic" incidentally covers a very
broad field of many sub-differentiations-ail ought to be strong, self-
reliant. progressive. In fact, every individuai in each ethnic group is
dependent upon the fate,the destiny and the strength of the group to
which he belongç.This being the objective to which, 1amsure, practically
everybody agrees,then the question becornes one of rnethodology of
hotv you wouId reach this objective. And 1 think this is the question
under debate.
Mr. G~oss: 1 think, Sir, perhapç I might invite your attention to the
question which was: do you agree that individuals cornposing an ethnic
group, no matter how defined, in the situations you have in mind, any
of them, should have an effective voicein decisionsaffecting the existence
of the group? Do pu agree that individuals composing the ethnic group
should have çome effective voice in decisions affecting the disposition
or the destiny of the grctup of which the individuals are concerned?
llr.Posson~: Certainly, each individual should have an effective voice
within his own group.
hlr. CROSSW : ithin hisown group, Sir. Thcn this takes us back again
to the question, doesit not, of who definesthe group?
Mr. POSSONY H:istory defincs it for you.
Illr. GROSS A:nd in the case, Sir, oa particular government, whether
bj'groups depend in certain cases-1hat awill)refer specifically to Southn WITSESSES AND EXPERTS 55
Africa and South West Africa-by government fiat and legislation? 1s
that not correct, Sir, so far as you know?
Mr. POSSONY: YOU can have, and undoubtedly there are historie
examples and 1 could quote afew, 1 think, arbitrary government fiats,
as you call theni. Those fiat decisions are not viable fora long time;
they break down somehow sooiler or laterA government classification
of the groups isviable only if the groups are realitiesBy contrast, if
the groups are realities and the government does not take that reality
into account-which is one of the main points 1 tried to makcthe
particular governmental policy based on the ignoring of these groups
also is not viable.
Mr. GROSS :peaking as a social behaviour scientistden you refer
to reality in thiscontext are you or are you not referring to any objective
criteria onthe basjsof which a government, let us say, determines what
is "reality" and wliat is "artificiality"?
Rlr.POSSONY This question of objective criteria can be pushed very
far. Generally speaking, a govcrnment riinning a particular areaknows
pretty well what the reality is, and I do not think they have to call
in the professors to tell them precisely what the critena are of one group
or the other. But there are sorne commonly accepted criteria, like lan-
page and like territory; 1fmay, 1 can give you a set of criteria which
1 think are self-evident.
Mr. GROSS: If 1 may intempt without blocking your thought, is the
answer to my question that there are criteria which you are now about
to enurnerate so 1can foliow,and the Court can follow, your testimony?
hlr. POSSONYO : f course there are such criteria. l'ou 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 1quoted to you are by Stalin,
from his book on nationalisni written in 1913. You can have othcr
criteria,1have written out many more, but al1of those are self-evident
criteria.
hlr. CROSS :Viienyou Say,as 1 bclieve you did, that the government
of the area knows what is the reality-1 believe substantiallythat is
what you said, is it not?
Mr. POSSOXY That is substnntially what1said.
Mr. CROSS: In respect of the government of an area knowing what
is the reality, would you agree that it is relevant. and perhaps decisively
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 othenvise?
Mr. POSSONY A:s ageneral statement, ofcoursethis is correct.
Mr. GROSS: ?'Oapproach the matter from still another point of vantage,
but on the same general lines, at least in my intention-you might
construe it differently-iyous testimony in this same verbatim record,
at XI, page 648,to n-hich 1 invite your attention, you stated in a broacl
context, and if 1 am quoting it out of context I am sure you ~cillbe
quick to point it out to the honourable Court, about the middle of the
page, that "TIie diversity of mankind rests upon ethnic differences".
Then you explained, 1 think, what you had in mind, ai least in part,
in that respect. Later on, towards the bottom of the same page, you
stated, and1 read just a sentence here: "hlulti-ethnic societies presuppose
the explicit recognition of ethnic differencc.1 should like if I may,56 SOUTH WEST AFRICA
first, to take the sentence have first quoted, "The diversity of mankind
rests upon ethnic differences". Would you agree that the diversity of
mankind likewise rests, aiid indeed in very important respects, also upon
difierences between individuals, irrespective of ethnic considerations?
Would you agree with that ?
hlr.POSSOXY C:ertainlyI agree with it, ;\Ir. Gross. The problem is
that individual differences, in terms ofhistory, are less important than
differences betrveen ethnic groups. Ifyou look at art, forexample, just
as one manifestation, you do have a morld civilization, but you also
have national cultures; and the two terrns are not entirely interchangc-
able. You have very great national cultures which are essentially by
thernselves and have no great interplay with the rest of world culture.
iihat we cal1 world culture, by and large, is based fundamentally on
the Greco-Roman-European tradition. It isbroadening out now, so in
future this may change, but as of nolv it has not changed.
1 certainly agree, and 1 hope this is not misunderstood, that the
individual plays an enormously great role. 1 would not perhaps go as
far as Carlyle in this, but he plays a great role. Therefore individual
differencesplay a great role. But the individual-and that is the finding
of the entire science of sociology for the last 125 years, since it was
born-in rnany hi-aysis a product of his society, and that means, his
ethnic society. 1 am not stating anything which is not essentially agreed
upon in the scientific area.
Mr. G~oss: 1 am sure that is right, but with respecttothe perspective
or approach or point of view with which a problem of the relationship
between the individual aiid the group and the social order is analysed
and esamined, 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 individual,
in terrns of similarities or diversities or otherwise, may tend towawliat
is sometimes referred to as racist doctrines or concepts? WouId you
agree witli that as a consequence lvhich, as is frequently observable,
flows from emphasis upon a group rather than upon the individual?
hlr. POSSONY :es, 1 grew up in a society where precisely this sort
of thing happened, but at the same time, because disease happens it
does not negate heiilth. \irhen yougo into the whole intellectual history
underlying theconcept of nationhood-take Herder, or Rousseau, if you
want to-pou talk about a subject different [rom when you read &Ir.
Hitler. That a diversity that exists and a diversity which haç never
been elimiiiated, a diversity which has great advantages, can be abused,
there is no question about that.
Mr. GROSS :O,if 1 understand you correctly, you would agree, would
you not, that emphasis on group differences or superiority or any
other aspect of group differences may lead and has often led to what is
comrnonly regarded as racisrn? 1s this a correct interpretationof your
testimony?
&Ir.POSSOXY :o, 1 do not think that is quitc correct. 1 think jiou
can Say that in the last, let us Say, 50 years this would be a correct
statement in some instances, but the ernphasis on differences does not
imply an argument as to soperiority or not.
Mr. Gitoss: 1 arn not trying to put words inyour mouth but, for
example, one has heard, lins 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 reflectç whatmay WITNESSES AND EXPERTS 57
fairly be called a racist concept of the relationship between the individual
and the group and the social oi-der?
hIr. POÇÇONY:That may be very bad language usage, and frorn the
scientific point oview it is a pretty unacceptable phrase, but whether
the phrase isa racist one or not depends on who the speaker is and what
the context of hisspeech is. 1cannot, XIr. Gros., give you a general
statement on a hypothetical question of this sort.
Mr. GROSS: 1 concede that it might be difficult, but1 am putting it
to you on the basis ofthe perspective and of the inferences which you
would wish, as an expert testifying hcre, the Court to draw as to the
distinctions,as you perceive them, with respect ta the ernphasis on the
individual, protectionof his diversity, his indiïriduality, 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 :ot as an abstraction.
Mr. GROSS: Al1right, Sir-as a group composed of individuals-would
you acccpt that?
Mr. POSSONYT : he difficulty again is that this is oof the problems
which the sociologists really have been fighting for roo years: precisely
how do you define it?-and I (10not think we can open this up. 1 must
demur against identifying a group just as a sum total of individuals-
jt ismore than that. \mat "more than that" means, 1do not think ive
can go iiito without really wasting time.
AIr. GROSS:Al1 right, Sir. Idet me refer to yeti.You CO-autliored a
book, did you not, with Mr. :Nathaniel Weyl called The Geography of
Intellect?
Mr. POSSONYY : es.
>Ir.G~oss: And this was published, \vas it not, bthe Regnery Press
in Chicago in 1963. is that correct?
JIr. POSSONYT : hat is correct-Iam looking for your reference.
>Ir.G~oss: Do you have the book, Sir?
3Ir. POÇSONY: I do not have the book, no.
Mr. G~oss: 1presume you are familiar with it?
Mr. POSSONYI: am, yes.
Mr. G~oss: 1should likc to read page284 in the context ofour presènt
discussion. where you state:
"A vast elite of European blood is being uprooted in tropical
Africa. It is uttcrly fanciful to suppose that this elitean be sup-
planted by transient acrobats and reformers from the Peace Corps.
The goal of the anti-colonialist crusade is to extrude from Xegro
Africa (since they obviously will not remain there as a downtrodden
minority under Negro rule) four million people who are virtually
the only perçons with skills and technology, administration and the
other disciplines of western civilizatio.. . There is nothing in the
slothful and insecure progress of the Negro that suggests that he
will be able to replace this elitein Africa from his own raiiks at
any time in the foreseeable future."
Pausing there, would you say thatthe reference in j-ourbook to expres-
sions such as "European blood", and reference to "the Negro" would
be examples or not of what rriight be regaidcd-1 do not mean to use
a term you will not accept, but might be reasonably regarded-as a point
of view, shall I Say, without characterizing it as racist or otherwise, WTNESSES AND EXPERTS 59
Mr.GROSSW : ould you be prepared to add to your comment that not
only is recognition of relevant ethnic difference important, but also that
protection is likewise important? As important as recognition?
Mr. POSSONY L:Vel1,really mean it in the sense of protection.
Mr. GROSSA : nd this, of course, also would be consistent with the
Applicants' view. This leads nie to ask the following 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 evercise the power to regulate and rnake the
determination, are relevant considerations? First, would you agree that
the methods by which such recognition and protection are reguiated is
an important aspect of the problem?
hlr. POSSONY C:ertainly.
group, or groupç, withiaosociety which rnake the decisionswith regard
to regulation and determination is also an important part of the problem?
Mr.POSSONY Y:ou mean the decision makers? Certainly.
Mr. GROSSA :nd the nature c~fthe composition of the decision-making
group-that is important, is it not?
Mr. POSSON :YCertainly.
Mr. GROSST :hen 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 ethnic differences, should be
the product of decision-making processes which are efEectively shared
by al1concerned? Would you agree to that?
Mr. POSSONY A:S ageneral proposition, yes. As a specificproposition,
the sharing of decision-making is an idcal. It is not alwaaspractical
reality. It dependç on the level attained by the different groups and the
methods of selecting theireprc:seiitatives aso on.
Mr. GROSS: SC) that if there were individuals within a particular
group asto 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 individualas such should not be
denied articipation in the decision-making process? Would you agree
to that.
hfr. POSSONY N o,because what this means, i1 read this correctly-
and if 1 misread it, hlr. Gross1 hope you will correct me-it would
mean, for example, in voting, that as soon as a person haç reached a
particular levelhe has the franchise and he can vote in an over-al1society
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 esçentially
leave his group. The question is, does he stay with his group and does
he contribute to his group?
Mr. GROSSS :uppose that he feels,"1 want to stay with my group;
I am desperately anxious to contribute to its benefit and 1 feel that
the best way 1 can do this is to claim a voice in the decision-making
which affects my group, of which I am proud". Now, if he iç, by the
hypothesis of my question, capable, qualified, sound and sane asan
individual person, isitiçit not part ofyour ideal, to tvhichyou referred,
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 AFRICA
is what we are talking about-official action. Could you answer my
question in thosc terms?
Mr. Possox~: No, 1 cannot. The man ought to participate in the
decision-making of his group. Then that group, in the ideal schematic
way, wjll set up certain facilities or governmental organsby which this
group handles its oivn 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 goup and participate in
the decision-niaking there,1 do not think thisis a very tenable proposi-
tion.
>Ir. GROSS:1 do not want to quarrel with you, but 1 do not think
you can possibly understand my question. 1 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 thewelfare and
destiny of al1of the groups. Do you follow me so far?
hfr.Possorru: Yes.
Mr. G~oss: 1 am talking about the participationby a qualified member
of any one of these groups, and you can pick any, in the decision-making
proceççwhich affects his group's welfare, along with other groupsDo you
understand my question? 1s that, or is it not, relevant to or paof the
ideal to which you referred a short while ago?
hlr.Possox~: Absolutely.
hlr. GROSS:And you think he should be given that right?
Mr. POSSONY: 1 think the way to do it isessentialty laid out in such
cases as for instance in the Cyprus Constitution. Again, 1 am not going
against history orthe experience of history1 am saying, on thecontrary,
let us look at the esperience of history and a case like Cyprus, which
has had a difficult ~)roblemfor many years, over nearlya hundred years,
and which has beeii the subject of rnuch international considerationand
they finaiiÿ came iipwith this solution. It is notyet an ideal solution
because they are still negotiating about re-defining the Statute that they
have today.
That is the way in which 1 would approach the problem and it is
1 think the only way in whicli it cribc approached.
Rir. G~oss: Are you then saying that the ideal of participation,
effective participation, is applicable in all circumstances as an objective,
a standard of eqiial protection of the laws? Would you agree to that
formulation of your testimony?
Mi-.POSSONY:Participation is necessary, yes. Participation is not
always practical when you have groups. 1may add that the bIulti-ethnie
Serninar has not corne to grips with the whole depth of the problem.
In addition to multi-ethnic problerns you do ha~~ediffcrences between
"distant" ethnic groups (1will skip that one), and yoalsohave enormous
differences in cultural lcvels. Theinternational legislatioii on these matters
and the very existence of the mandate system or the trusteeship system,
bear thisout. There are different situations where this sort of participation
is for the future.
Iilr. G~oss: When you used the expression, as according to my notes
you did, of the individual "not going beyond his groupu-dia you use
that phrase?
Rlr. POSSONY1: inay have.
Mr. GROSS:In respect of that phrase, or a synonymous phrase, did ~~'ITNESÇESAND EXPERTS 6I
you mean to irnply 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?1s that what you
meant by the phrase you used?
Mr. POSSOXY :O. First of all, this is a general interpretatioof a
problem which has to be handled in specifics. IVhatI 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 onIy his group.
Mr. GROSS: Now, lest we seem to be playing on words, and 1 am sure
neither of us wishes to, in the case of a multi-group society, which is
what 1 am talkirig about and to which 1 am inviting your attention,
whcn you Say that the individual otherwise qualified should exercise or
participate in effective "decision-making within his own group", 1 take
it that escludes hjm from decision-making participation in respect of
the societv asa whole. Do 1understand you correctly?
>Ir. POSSONY: NO, because in that case ?ou deal through indirect
Ievels. Again, speakiiig of the ultimate. not spcaking necessarily of the
present transitory situation, the various groups in a society al1 have
their representation. Let us take the example of Cyprus: you bave the
Greeks and you have the Turks, and these people form together a govern-
merit, in oneway or another, by which they decide, by joint agreement,
what the decisions have to be for the whole comrnunity. They do not
do this as individuals, they do it as reprcsentatives of the Tiirkish
cornmunity and of the Greek cornmunity. Itis essentially an interna-
tional set-up withina one-State arrangement. I think that this esplains
it the easiesway.
Mr. G~oss: \irould pou regard the participation of an individual in
a niulti-group society in governrnental decision-making, which affects
the destiny and welfare of his group (1 assume him to be qualified)
to be a justand important aspect of decision-making in the multi-racial
society? Can you answer that question or have you already done so?
&Ir.POSSONY:That a person participates in governmcnt?
3Ir. GROSS: In decision-making of the central government, decisions
which affect the welfare of al1 the groups in this society, inclucling his
own. Do you regard siich participation as relevant andlor important to
the exercise of the ideal twhich you referred?
&Ir. POSSONYO : fany indiviilual? No.
RIr. GROSS:Of any qualified individual, yes.
Jlr. POSSOXYC : ertainly, if a man is qualified he shouId participate.
&Ir. G~oss: III the procesç of the central government if that affects
the welfare ofhis group, is that correct?
Mr. Possoxu: In the processes that arc established; whether this is
central governrnent, ornot, is an open question.
Rlr. GROSS:Suppose the central government does take decisions
affecting the welfare of the groups within the society. This would not
be an unusual phenornenon, would it?
Mr. POSSONYN : o.
&Ir.GROSÇ: 1 am not trying to complicate the question but to simplify
it. With respect to the decisions of a central government in a inultl-
national society,a multi-grou~i society, which affect the welfareof 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 1will state It in my own terrns 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
thMr.iGKOSS1:have just one more question, Sir, unlesç footnotes occur
by reason of your response. Would you agree that the principle of
governmentalprotection of equality of opportunityand equalprotection
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 astatement?
The PRESIDEST1 : think there are about four questions in that,
hlr. Gross.
Mr. GROSST :he one question 1 have, Sir, is whether you wouId agree
that the principle of governmentalprotection of equality of opportunity
and equal protection of the laws-do you understand me so far, Sir?
Mr. POSSONY 1:am trying to put it down,
Mr. G~oss: . ..is a virtually universally proclaimed standard, en-
shrined in most constitutions and in the decisionç and declarations of
international organizations-havepou written it down, Sir? Do you wish
me to break it up if you regard as a compound question, Sir?
Mr. POSSOXY M:r. President, it is a compound question because there
is the question whether these points are in the constitutions and whether
they also proclaim...
Mr. G~oss: You do not have to persuade me, Sir, the President has
already indicated the fact of the matter, 1just wanted to clar...
The PRESIDENT1 : simply indicated, Mr. Gross, not that it was com-
pound but that it contained four questions and there is no doubt what-
in hisownitway.s contain four questions. Now the witness rnight answer
hlr.GROSS :OW,Sir, would you answer in your own way or, if you
would prefer me to break it down,1 would be glad to, Sir.
Mr. Possox~: 1 only tried to save time.1 think equal protectionof
the laws, there is no question about it, the question merely is, what it
means. So far as 1imderstand 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 iç a more difficult propo-
sition, but without going into the constitutional and normative parts of
it, 1 think you cannot protect what you do not have. The material
question is how you get this equaiiofopportunity and that is, I think,
one of the problems which has often been overlooked and forgotten.
Even if you had thisas a clause, it would not mean much and it would
have to be followed up by specificlegislation to achieve it. I tyouk
can easily follow this through andT wiIl not. Rut just as an example
-1eaving out entirely the ethnic problem-in labour legislationthe
problern was to achieve that equality of opportunity which, for one
reason orthe other, did not exist.
Finally, we have to assess whether there is a universally proclaimed U'ITNESSES AND EXPERTS 63
standard. 1 would Say al1 constitutions basically are recognizing the
equal protection of the laws, certainly; whether they recognize equality
of opportunity, 1 do not think you can Say this is a general situation.
In decisions and declarations of international organizations, again 1think
1 niust distinguish between how the Applicants interpret norms and
whether this is in line with the norm as stated at IV, page 493, or not.
1 think, as I reacl it, the United Nations declarations are by and large
against unfairness. Kow, you can probably go beyond this in analysing
because they have. after all, made provisions for econumic and social
improvements, and so on, and these factors could be considered. Gen-
erally speaking, in line with the discussion we have had, the rule is:
,no-unfairness".
Mr.GROÇS: Ihave no further questions, Mr. President.
.The PRESIDENT :hank you, Mr. Groçs. Uoes any Jfember of the
Court desire to put a question to the witness? Sir Louis.
Judge Sir Louis MBANEFO ?:Ir. Possony, when you ivere diçcussing
the question of self-determination and suffrage, you used the expression
"if a group is ready to exercise the right of suffrage" in the context in
which you were talking.
The PKESIDEKT :ir Louis, would you mind repeating it over again,
the witness did not catch what you said.
judge Sir Louis MBANEFOY : OUused the expression when discussing
suffrage and self-determination "ifa group is ready to exercise the right
to participate in a decision in matters affecting the group". 1 beiieve
pou used the expression "if a group isready"?
$Ir. YOSSONY T:hat is correct.
Judge Sir Louis MBANEFO: HOWdo you determine the readiness of
the group?
RIr. POSSON :Mr. President ,there are many ways in which this could
be dcterrnined. It isquite clear that in the application ofal1 standards
there will be s niatter of some arbitrary findings or judicial weighing
of factors. You cnnnot be entisely objective throughout but 1 think you
can lay down, and 1 believe there are criteria laid down in various
international agreements whicli would allow you to do this. 1would say
that the extent of literacy, whether it exists in a substantive way or
only in a forma1 way, would have a very great bearing. The particular
range of interests of thegroup, whether they are interested in the over-
al1 affairsof their society or just interested in their own close society,
also matters. 1 could go on, Mr. President, but 1 think the point is that
there are criteria and the criteria, in my judgment, are fairly good; they
could be certainly sharpened iip, and this could obviously be a matter
of agreement internationally.
Judge Sir Louis MBANEFO W:Touldthe criteriaapply to the group as
a whole or to iridividuals in that group?
Alr. POSSONY 1:believe, hfr. President, that when the criteria would
show that a substantial portion of the group liasgone beyontl this
criteria level, then obviously the group aç a whole woiild 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. inorder
to Say that the group is literate; you would consider a group literate
at some lower level. 1 believe that you would have to take into account
a fairly large number of factors. There isno implication 1 am making
here that the way to decide this should be verjr restrictive. You can64 SOUTH WEST AFRICA
under certain con(1itions certain1 take chances, whereas under other
conditions this might be more di 2 cult.
Judge Sir Louis MBANEFO NO: W,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 IfYOU have a federal structure which calls for federation-
wide elections, where everybody votes for the federal government, this
is onething. Ifyou 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.1 do not think that is connected with the abilityof 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 their federation.
Judge Sir Louis MBANEFO I: answer to my other question you said
"a substantial number of the group being literateW-what percentage
mould you considcr as substantial?
hlr. Possolry: 1 would say half is certainlya substantial number.
Judge Sir Louis ~IBASEFO: SO that unless you have 50 per cent.
Literacy then the group would not be ready to . ..
llr. POSSONY1 :would not, Rlr. Preçident, put it in these terms.
1 used literacy as one esample, there are many other factors you can
use: the ability to iise modern equipment, the awareness of modern facts
and so on-some of those are hard ta messure. 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 1 will use it-very
primitive groups, those are not ready forparticipation in a comples
government dealing with modern technology, for exarnpte. 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 fundamental that the constitution of Cyprus is based on
the consent of both the Greeks and the Turks?
Mr. POSSONY:Cienerally speaking, the answer to that is: yes, of
course. However, iiiorder to make a constitution of this sort work,it is
often necessary-1 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 concerned really like it.1 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 isconsent or not,
1 think the constitution has been put in operation.1can readily conceive
that this is not a long-range viable solution. but at least n trnnsitory
solution it might bt:.
The PRESIDENT: Does any other hlember of the Court desire to put
any questions to the witness? If not, there are one or two questions
1-would like to put to you. It relates to the last portion of the first
paragraph or1page 493 of the Reply-what is being referred to is the
definition of non-discrimination ornon-separation. If you will just keep
in mind the last portion of the definition, it is- WITNESÇES AND EXPERTS 65
"stated affirrnatively, thc terms refer to governmental policies and
actions the objective of wliich is to protect equality of opportunity
and equal protection of the laws to individual persons as such".
Kaving that in mind, Idirect your attention tr, that part of your testi-
mony which &Ir. Gross cross-esamined you upon this rnorning, 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 riot necessarily coincide, and that both types of rights
must bc protected-in fac:t, there was understanding that hurnan
rights and group rights are interrelated and cannot be considered
in isolation from one anotl~er."
It is to that part of your testimony which 1 desire to put thequestion
to you in relation to the final portion of the definition aIV, page 493,
My first question is-ifthe rights of the individual and the rights of
the group do not necessarily coincide,do they at times come into conflict?
Mr. POSSOKY Y es, Sir.
The PIIESIUENT A:nd if they come into conflict, how then is there
reconciled the rights of the individual, and rights of the group; or, to
put it another ir7ay,the interestsof the individual, and the interests of
the group?
Mr. POSSOXY:The State prnctice, 1 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. there are usually, but not
always, ways by which hardship cases could be handled.
The PIXESIDEXTB :ut you have given evidence to the effect that since
1920, or about that time, the timc when the Maritlate was entered into,
there was a norm or principle of equal justice before the law, for esa~nple;
and you have also given evidence, if rny recollectiori is correct, that in
different countries of the world, where there are different ethnic groups,
depending upon either religion, or upon the group. a different scheme of
laws is in certain circumstances applicable, or different courts, in quality,
administer the law. Is that correct?
hlr.YOSSONY T:hat is correct.
The Peesrv~x~: Weil, tticn, if theisa conAict bettveen theinterestç
of the group in a society which is composed of a number of ethnie
groups but at different stagesof cultural development, or with different
aspects of cultural development, can you throw aiiy more light upon
the problem as to how you siirve the interests of the group without,
in many cases, placing limitations upon individuals by allotment of
rights,or duties, or status, in accordance with their membership of the
groups and not as individuals as such?
Mr. YOSSONYT : he fundamental way in which this is done, 1 think,
is laid down in many of the i:onstitutions, which consists in allowing
to a backward group resource; which in the normal course of errents,
without such a provision, it would nat receive. 'Thenyou have to follow
through with practical prograninles in the various fields, such as capital
investment, education and so on. Then as the group progresses as the
result of these investrnents and so on, or sirnultaneously, you try to
organize the group as a group in the best way yoii can. The group, as
it acquircs its econornic and educational potentials. also acquires jts
political potential; it has to bi: organized, it has to run its own affairs66 SOUTH WEST AFRICA
onwhatever level itis operating, and as the level goes as,the achieve-
ments arehigher, cfcourse, it can branch out further.
1 think the fundamental requirement in al1 this is to create in each
group, or strengthen, an elite which can provide, leadership; while the
dissipation or dispersal of the available eliteto other groups would
basicallÿ speU the ruin of this particular poup. So the fundamental
point, in addition to the allocationof resources, is toensure that the
eIite group is therstaps there, and that the capacityof theelite g~oup
is enhanced.
The PRESIUENT That is al11wished to ask you.
3Tr. Muller.
Mr. MULLER: Tl~ank you, Afr. President.1 have no questions in re-
esamination.
The PRESIDENT : r. Gross,do you desire the Professor to remain in
attendance for any purpose?
Mr. GROSS : Othank you, Mr. President.
The PRESIDEXT : ell, Profesçoryou are released from further atten-
dance.
Mr. Muller, the next step is the continuation of the Respondent's
address.
Mr. MULLER: That isso, &Ir.President. 25, ADDRESS U1'MR. hIULLER
COUNSEL FOR THE GOVERShtEXT OF SOUTH AFRICA
AT THE PUBLIC HEARING OF 26 OCTOBER 1965
hlr. President, the oral testimony having been completed1 intend to
indicate to the Court how the further argument will proceed from here.
Before I do that, Mr. President, may 1 be permitted to advert to a
matter relative to a part of the argument that has already been com-
pleted. T refer to the Applicants' Subniission No.2,which raises, inter
alia, the question whether Article6 of the Mandate is still in force and
whether the United Nations has supervisory powers relative to South
West Africa.
The matter which 1 tvish to refer to, >Ir. Presidentisthe 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.
1do not wish tore-open the argument, Mr. President, but merely to
indicate the relevance ofthe subject-matter dealt with in these memo-
randa, if 1rnay be permitted to do so now.
The PRESIDENT V:ery well.
Nr. MULLER: >Ir. President,1think 1 should start by indicating that
in the course of Our argument on 24 May, relative to the Applicants'
Submission No. 2,we filed certain documents.The first was a document
marked P.C./T.CII, which contained a proposa1 by the United Statesof
America that the proposed te~nporary Trusteeship Committee, and later
the Trusteeship Council itself, should specifically be vested with super-
visory powers in respect of mandates not converted to trusteeship; a
second documeiit, P.C./T.C3o,being a verbatim record of a speech by
the representative of the United States of America at the Ninth Meeting
of Cornmittee Four of the Preparatory Commission, held on 8 December
1945 .hese documents were referred to in the verbatim record, IX, at
pages 401 and following.
Mr. Presidcnt, we submitted these documents asbeing relevant to an
argument previously advanced by the Applicants regarding the functions
proposed for the temporary Trusteeship Committee. In replying to
Applicants' argument, we referred to these documents and we drew
certain conclusions which are stated at IX, pages 403 and 404 of the
verbatim record to which 1 have just referred, that iof 24 May.
Briefly, the conclusions which we drew were that the United States
must deliberately have abandoned the proposa1 contained in document
P.C./T.CII, and in al1probability after having been informed of opposi-
tion thereto by other delegations.
Inasmuch as this came in our oral rejoinder, therewas no normal
opportunity for the Applicants to deal with the matter in argument.
Apparently for this reason, Mr. President, the Applicants have since
filed wjth the Registrar of the Courthe memorandum to which 1 have
just referred, as wells 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 fiIed the written memorandurn, that
is the second one. to which 1 have referred, and wl-iiclideals with the
statements of fact and submissions made by the Applicants in their
memorandurn.
Our mernorandum subinits, Blr. President. that Respondent's conclu-
sions, as stated in the argument inthe oral rejoinder, are fuIly justified,
and that Applicants' attempted demonstration to the contrarp is erro-
neous and without substance. Our contention with regard to this aspect
is fully dealt within the memorandum and we do not wish to repeat the
argument unless the Court requires us to do so, or ta give any explanation.
That is al1 1wish toSay on this aspect of the matter.
Now, proceeding to the development of tlie argument which is now
commencing. 1 must indicate that before going into the more detailed
aspects of our argument Ipropose 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 ta such elpidence and otiierwise.
1 propose first tomake reference to the issues raised by Applicants'
Submissions Nos. 3 and 4, to which nearly al1the evidence was directcd.
In view of the frequent cornplaints made by Applicants during the
course of the leading of evidence that their case is misrepresented by
Kespondent, it may, however, be convenient at this stage to sketch in
outline the Applicants' formulations of their submissions and the expla-
nations given by the Applicants with regard thereto.
The Applicants' Submissions Nos. 3 and 4, as arnended on 19 3Iay
1965, read as follows, and 1 refer in this regard, Mr. President, to the
verbatim record, IX, at page 374; Submission No. 3 reads:
"Rcspondent, by laws and regulations, and officia1methods and
measures, which are set out in the pleadings hereiti, has practised
apartheid, i.e., has distinguisheas to 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 itsobligations as
stated in Article 2 of the Mandate and Article 22 of the Covenant
of the League of Lu'ations;and that Respondent has the duty forth-
with to cease the practice of apartheid in the Territorp."
Submission No. 4, asnow reformulated, and also in the same verbatim
record, reads as follows:
"Kespondent, by virtuc of economic. political, social and educa-
tional policies applied within the Territory, by means of laws and
regulations, and officia1niethods and rneasures, which are set out
in the pleadings herein. lias, in the light of applicable international
standards or international legal norm, or both, failed to promote 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 as stated in Artic2eof the Mandate and
Article 22 of the Covenant; and that Rcspondent has the duty
forthwith to cease its violations as aforesaid and to take al1practi-
cable action to fulfil its duties under such Articles."
In the same verbatim record, Mr. President, at IX, page 375, the
Applicants preçented what they termed ''formal interpretations and ADDRESS BY MR. MULLER 69
explanatory comments" with respect to Submission No. 4. Now, the
forma1 interpretations and explanatory comments read as follows:
"The formulation of Submission 4 isnot intended in any nzanner
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 itsel. . . the distinction between Sub-
missions 3 and 4 being verbal only ..."
On that follows irnother paragraph reading as follows:
"The reference in Subniission 4 to 'applicable international stan-
dards or international legal norm, or both' is intended to refer to
such standards and Icgal norm, or bot}], in the sense describcci and
definedin the Reply. IV, ai page 493, and solely and exclusively as
there described and defint:d ..."
Mr. President, it is consequently clear that from the submissions, both
on their wording and as read in conjunction with the "forma1 interpre-
tations and esplanatory coments", Appljcrints' ivhole case rests on
the alleged existence of a norm andlor standards. The legal significance
of forma1 subniissions as defining the ambit of a party's case was raised
by questions addressed to the Parties on 22 June, and 1 refer to the
minutes, VZII,;~tpages 60 and 62. This topicwas 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 1 read from the verbatim record of 30 June, X,
at page 188:
". . . it is the right and duty of the Court to interpret the obligations
under the terms of the Mandate, as the organ vested with the
function 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 niunicipal 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 rnatters falling
outside such ambit. Similarly, the Court would not be entitled to corne
to any finding on rnatters falling outside the dispute as defined by the
submissions.
]Iredemonstrated also that this principle applied particularly to ques-
tions of fact. Parties to a case, we submit, are entitled to lead evidence
only on mattcrs falling within the definition of the dispute. It follows,
therefore, that if any finding of fact were to be made on an issue estra-
neous to the procccdings, such a finding would be in respect of a rilatter
on which the partics were not entitled to lead evidence, a course which
clearIy would prejudice the party against whom the finding was ninde.
Now, 1 do not wish to repeat our arguments, &Ir. Presiclcnt. They
appear in the verbatims, X, at pages 188-228.
Since we contend that the ivhole ambit of the case is defined by the
pleaciings and, in particular, the submissions, it follows, Mr. Yresident,
that al1 argument and evidence shoiild be related to the issues raised
in the pleadings. This, indeed, has heen thc governing consideration in
our presentation ofevidence and also in Ourargument. The legal argument
which has been concluded wa.s directed, firstlytowards showing thnt7O SOUTH WEST AFRICA
the processes relied upon by Applicants as creating binding standards
or norms are in lalv incapable of having such an effect.
It wiil be recalled that, according to the Applicants, the content of
the alleged norms and the standards is the same. The only distinction
between noms 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 al1States.
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 woiild not have been entitled
in law to lay down objective rules enforceable by law against the Man-
datory.
With regard to Applicants' nom, they suggested that it had been
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 noms, at any rate as agajnst a
State which has always and consistently maintained its opposit~on to
the imposition of ariy siich norm against itself.
Mr. President, it is submitted that we showed clearly that no legally
binding orenforceable rules 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 reliedupon by Applicants has been created by any legally
valid process in international law. Itwaç also asregards this issue that
evidence has been led.
Now, before consideration is given to the effect and purpose of the
evidence, it isnecessary to advert to a matter whichhas given continuous
troubIe, and that i; 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 ti, givesome attention thereto.
The authoritativi: definition of Applicants' case is, wc say, in the
submissions. Submission 3, as 1 have indicated, contains the allegation
that Respondent h:is 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" (EX,p. 374).
The allegation, then, is that the mere act of distinguiçhing in the
respects in question is illegai, 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 clearwe Say, inte ria, from the wording of
the submission, as it appeared originally in the hfernorials, and£romthe
change brought about inamending the submission to read asat present.
The Court will recall that in the Mernorials the conduct objected to
was defined as follows:
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitranly on
thebasisof race, color and tribe, in a pattern which ignores the needs ADDRESS BY MR. MULLER 7I
and capacities of the groups andindividuals 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 apparcnt tliat the amendment effected a
significant change in the meaning of the subrnission. Both the words
and tlie 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 arnended.
This subrnission ivas intended-we are so told by the Applicants-to
cover esactly the same grourid as their Submission -JO. 3, and, in the
former as in thelatter, al1references to purpose or results of Respondent's
policieshave been carefuily excised. Submission No. 4 reçts only on an
alle ed norm or standard defined at IV, page 493 of the Reply.
#ow, thiî definition, &Ir. President. at page 493 reads as follows. It
has been read a few times into the record but for purposes of analysis
1would, if the Court permits me, read the relevant part again.
". .. the terms 'non-discrimination' or 'non-separation' are used in
their prevalent and custrimary 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 Iaws to
individual perçons aç such".
Throughout the course of the oral presentation of their case, the
Applicants made itclear that itwas the norm and standards, as clefined
at page 493 of the Reply, and only as there defined, upon which they
rested their case.
1can quote many passages, Mr. 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, hIr. President, with your permission,
to an exposition of the evolution and the content, and the applica-
bility of the 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 içthe inter-
national standards and tlie legal norm, (thus defined by whatever
label one chooses to desciibe it) upon which the Applicants rely and
which represents the coir: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 forrnspart ofthe explanation given by the
Applicants as to the reformulütion of their Submission No. 4,and 1 shall
only cite a few lines:
"The reference in Subinission 4 to 'applicable international stan-
dards or international lead norm, or both' isintended to refer to
such standardsand legal norni, 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 varioiis formulations both
in the submission a.ndat page 493 of the Reply shows that the basic
act to which Applicants object has been 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. 4.
These three words are used interchangeably by the .%pplicants and
it is clear that their primary meanings are indeed closely related. The
word "distinguish", hlr. Presiclent, is defined in thConciseOxfordDie-
tionary as meaning in its primary sense to "Divide 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 "He, set up, or observe, a difference between . . . distinguish
from another; make a distinction . ..".
The primary definition of "separate" in the same work is "31ake
separate, sever, disunite,kcep ... from union or contact, part . . . secede
frorn, go different waps, disperse .. . divide . ..into constituent parts
or sizes".
Now, on a number of occasions, Applicants have objected to their
norm being describt:d Iiy us as a norm of non-diffcrentiation. For con-
venience, therefore, 1 shall nlso give the dictionary meaning of the word
"differentiate". It reads: "Constitute the difference between, of, or in;
develop . . . into unlikeness, specialize . . . discriminate, discriminate
betkveen."
Analysing these dictionary meanings of the words "distinguish" and
"discriniinate", both used interchangeably by thc Applicants, and the
worcl "differentiate", to tlie use of which they object, one finds that
these words are virtually defined in terms of one another. The word
"scparate" has a somewhat different meaning but not one of these words
has an unfavourable primary meaning, although "discriminate" has a
secondary meaning which is defined in the sarne dictionary as-"dis-
criminate against. distinguish unfavourably, of taxes, etc.".
In addition to these definitions in the dictionarp, there are a number
of indications, not onlyin thc test of Applicants' definitions of the norm
at IV, page 493 of the Reply, but also in their treat~nent 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 sense.
The following indications can be rnentioned:
First, although the Applicants, in the first sentence of their definition
at page 493 of the Reply, speak of an "analpsis 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 definition at page 493 of the
Rep !y. This paragraph rcads as foIlows:
"As is sho~vnbelow, there has evolvcd ovcr the years, and now
esists, n generally accepted international humnn rights norm of
non-discrimination or non-separation, as defined in the preceding
paragraph. "
Inasmuch, then, as the words "non-discrimination" or "non-separation"
are used interchangeably by the Applicants to describe one norrn, it ADDRESS BY &IR.MULLER 73
seems evident that discrimin;ition in the context was not intended to
be used in the pejorative scnse of discriminating against.
The second indication to rvhich 1wish to refer. isthnt the Applicants
state specificallythat they use these terms, that is, non-discrimination
and non-separatiori, in what t.hey term "their prcvalent and custornary
sense". This is also in the Reply, at IV, page 493.
A third indication, &Ir. President, is tliat Applicants' definition of
these terms as referring to:
". .. the absence of governmental policies or actions mhich allot
status, rights, duties, privileges or burderis on the basis of member-
ship in a group, class or race, rather than on the basis of individual
merit . . . [and their further definition]... governmental policies
and actions the objective of which is to protect equality of oppor-
tunity and equal proteci:ion of the laws to individual perçons 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 isstated at page 493 and the Court will remember
that from that page on they deal wjth the so-called sorirces. Now, in
some of these so-called sources, the word "distinction" is used;in others,
the words vdiscrimination", "separation" aiid so forth. These words
may, in some of these documents, have been used in a pejorative sense,
for euample, to connote unfair discrimination. This, however, is not
important. lihat is of importance is the meaning which Applicants
assign to these terms when tliey seek support for the existence of their
norm from the sources iiiquestion. Thus they Say of thc Charter of the
United Xations, and this is at IV,page 49s of the Reply:
"The legal obligation of Xember States not to discrimiiiate or
distinguish on the basis of rnembership ina group or race (whatever
specifichuman right or freedom map be involved) is set out in
Article 56 of the Charter."
1 emphasize the use there of the words "not to discriminate or dis-
tingtiish".
Applicants also Say, and 1 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 contajn legalljr binding
commitments prohibiting llember States from discriminating or
distinguishing on the basis of race."
Those are the Applicants' words and 1 again ernphasize "discriminating
or distinguishing".
With regard to the United Nations Declaration on the Elimination
of AI1Forms 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 meacures shall be taken in appropriate circum-
stances in order to secure adequate development or protection of
individuals belonging to certain racial groups with the object of
ensuring the full enjoyment by such individuals of human rights
and fundamental freedomç. These measures sliall in no circumstances
have as a consequence the maintenance of unequal or separate
rights for different racial groups."74 SOUTH J"E.STAFRICA
The Applicants Say, with reference to this clause that S.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,Ivhich
bans racial discrimination, segegation, separation and apartheid."
Mr. President, it is submitted that it is clear from the above, from
the quotatjons I have just girreriand also the analysisof 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 governmental policies or actions, there may be no differen-
tiation on the basis of membership in agroup, class or race. 1 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.
Subrnission 3, asI have indicated, charges Respondent with no more
than having :
"distinguished as to race, colour, national or tribal originin estab-
lishing the rights and duties of the inhabitants of the Territory"
(IX, P. 3741,
and the charge in Siibmission Ho. 4 is said to rest on the same baçis.
Likewise, the definition at IV, page 493 of the Reply is, as 1 have
indicated, quite neutral and seeks to prohibit differential allotment of
rights and duties irrespective of motive or result.
Indeed, Applicantshave repeatediy emphasized that invocation of the
norm does not require the allegation or proof of any improper iiitent
on the part of Respondent. Similariy, they have stressed that their case
does not depend on any il1results flowing from the differential ailotment
of rights, duties, etc. Indeed, 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.
1 refer in this regard to the verbatirn 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, Rlr. President, both motive and result are excluded as
irrelevant criteria. There crin be no question of a charge of unfair dis-
crimination or of discrimination againçt persons or groups. For discrim-
ination can only be unfair, or be said to be discrimination agailtst a
person or persons, if (a) the intent of discriminsting is to be unfair,
or (6) if, irrespective of intent, the results afpolicy of discrimination
prove in fact to be unfair, or (c)if both of these apply.
Frorn what I have stated, it iç clear that when Applicants reformulated
their submissions their norm was an absolute one, that is, that nny
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 mder to jrnpress 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 loco. J ADDRESS BY MR. MULLER 75
When faced with the difficiilties inherentin their proposition, partic-
ularly with examples such as the minorities treaties, Applicants distin-
guished them adhocand with reference to suggested points of distinction
that were entirely immaterial to the elements of their norm as defined.
I refer in this regard, ivithout readinMr. President, to the verbatim
record of g 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 norm and the nature and extent of any qualifi-
cations thereto, we intimated that we would proceed to test the suggeçted
norm and/or standards on a dual, alternative basis. We said in this
regard, and 1 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 saythat 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-
~vhereand anpvhere in the world. That they said, several times.That
is, after all, the signification of their submissions; in No. 3 this
signification appears froni the wording of the submission itself, and
in Submission No. 4 froni the wording of the submission read with
the forma1 r;xplanation; ;ind those definitions and thrit explanation
contain no qualification whatsoever; it is differentiationper se in
this defined sphere that is struck at by the suggcsted norm.
At the same time, Mr. President, and alternatively, we shall also
consider the matter with reference to the factors ~vhichhave been
mentioned by the Applicants, not as clearly defined qualifications,
but as possible factors which could distinguiçh permissible from
impermissible differentiation-factors mentioned by them in relation
particularly to their discussionof the case of the minorities treaties
.. . it seenis to us thatthe only fair way of doing this would be
to assume thatthe 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,
firstlyto çerve the purpose of protecting the individual rather than
the group, and, secondly, if it coulbesaid to avoid the conçequence
that the individual may suffer by reason of membership of his
group, inter dia, by having regard to his facility, or othenrise, to
quit the group."
This, then, Mr. ~residént, was the basis upon which we proceeded to
lead evidence. However, frorn time to time, we have been faced with
cornplaints 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 cornplaint, or objectionwas frequentlyrepeated thereafter. IshaJ1
give the Court a few references only, without reading what was stated.
In X, at pages 132, 138-139 348, 523-j24X ;I, at pages 314-315 ,00,
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, sucfi 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 between standardsand the norm was being76 SOUTH WEST AFRICA
jgnored. Now, since Applicantç have rendered it clear that there isno
distinction as faras 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 about it later on.
As far as the suggested distortion of the content of the norm and
standards is concerned, 1 wish to refer to some pertinent passages.
In stating tileir objection to the evidcnce of Professor van den Haag,
on 22 June, iny learned friend, Mr. Gross, said in the verbatim record,
X, at page 139:
". ..ifthis orany other witness is competent to testify with respect
to the practice of States, citing the officia1 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 13July, in X, atpage 524, the topic under discussion was universal
adult franchise. Kow, whether and to what estent 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, 1 am more concerneci with the
bearing wliich the discussion in the verbatini has on the general issue as
to the content ofthe norm and standards.
In the said verbatim record, at page 524, n~ylearned friend, >Ir. Gross,
is recorded as having said :
"Eut, without venturing to go into an elaborate argument, there
are of course al1sorts of qualifications upon the phrases used, 'the
institution ofuniversal adult suffrage' and the 'participation on th?
part of ail quaIified individuals'. Tliere is no absolute or meci-ianical
standard which is applicable or not, without reference to the issue
in tliis case, which is thaapartheid,which denies al1effective rights
ofparticipation-denies suffrage totally-isaviolationIf the Mandate.
That has been, and remains, our case."
hlr. President, the question immediately arises: what do these mords
mean? And 1 shall rcpeat them; ". .. wliich is that apartheid, which
denies al1 effective rights of participation, denies suffrage totally, isa
violation of the Mandate." 1s the Court, Mr. President, asked to de-
termine wliether the provisions, present or contemplated, for political
participation of the various population groups, are,and 1 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,finallp.is this
suggested test of effectiveness to be a suhstitute for the all-embracing
norm on which Applicants rely in their forinal submissions? To put the
matter concretely, if political opportunities are "effective", would it
matter if tliey wert: allotted on the basis of membership in a group,
class or race, rather than on the basis of individual qualities? I'erhaps,
>Ir. President, the explanation is that this was an ex tempore statement
by my learned friencl, Nr. Gross, and did iiot express what the Applicants
really intendcd to convey. 1 only wish to say that, to us, ithas no
uilderstandable coniiection with the Applicarits' norm andlor 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 com~iulsory ediication. Mr. President,
the Court will rt:call that, with regard to that aspect of the case, you,
Mr. President, asked my learned friend, Mr. Gross, the following clut:stion:
". . .thcre is compulsory ediication of the White people in what we
cal1the White sector or the southcrn zone? . ..
There is no compulsory cducation elsewhere. Do 1 understand
that if there is no compulsory cducation imposed upon the peoples,
take for example of the north, irrespectiveof the difficulty of policiiig
it, irrespective of the question whethcr it is acceptable to the
people, irrespective of ariy other circurnstances, that is inlicrently
inconsistent with Article zof the Mandate and per se a breach of the
Mandate?" (XI,p. 315.)
The reply to this question, which was put by you, Mr. President, was
the following, aiid 1 read from the same verbatim record, nt the sarne
page, wliere my learned frientl rcplied:
"No, Sir, that would not be the Applicants' contention. 'l'hc
Applicants' contention in respect of the difference, standard or
requirement of compulsory education on a strictly racial basis
would be that that, standing alone, unsupported and unesplained.
would violate the duty to allot rights and burdens, privileges and
so forth on the baçis of promotion oi welfare and progress of al1the
inhabitants to thc fullest practic;ible estent, and that it would seeni
to the Applicants that a system in which no compulsory education
in any part of the Territory, irrespective of its economic develop-
ment, is a practice or a policy, that this woiild be a factor relevant
for the Court's consideration in connection with the significance of
the educational aspect of apartlieid çeen in relation to al1 other
aspects of the apartheid policy, of which this forms a part."
Ifone studies this explanation, Mr. President, one finds that there are
several keyconcepts in the passage: the first is that differential allotment
of an obligation of compulsory education on a group basis would violate
Article z (2)only when "standing alone, unsupported and unesplained",
and that il 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.
It is difficult to imagine,Mr. President, a policy which ismore clearly
covered hy Applicants' norrn than the policy regarding compiilsory
education. 'Flicc)bligation or, looking nt it £rom another view, the bcnefit
of compulsory cducation is allotted to sorne of the inhabitants of the
Territory piireiy on a group basiç, and without regard to the indiviciual
qualities ofthe persons involved. In those circumstances, on Applicants'
case as formulated heretofore, the policy is inherently and fersa contrary
to Article 2 of the Mandate. No esplanation would be relevant or
permissible, and the Court woiild not be entitled to accept any es-
planation-it could not, in the Applicants' own words, and Iquote from
IX, at page 246:
". .. undertake the task of second-guessing the competcnt inter-
national organs responsible for the development of the norm".7s SOUTH WEST AFIllC-4
Applicants now appear to suggest that it rnight bepossible for Respon-
dent to explain or support a differential policy of the sort that 1 have
just referred 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? What, in the Applicants' words, should be, and 1 quote a portion
of the passage which 1 read previouslÿ-". . .the significance of the
educational aspect of apartheid seen in relation to al! other aspects of
the apartheid policy of which this foms a part" (XI, p. 315).Alr. Presi-
dent, no answer is given to this question, nor isitclear what the Appli-
cants intend to convey by the words also contained in the passage that
1 read-". ..would violate the duty to allot rights and burdens, privileges
and so forth on the basis of promotion of welfare aiid progressof al1the
inhabitants to the fullest practicable extent .. .". Mr. President, we
do not understand what is intended to be conveyed by the words 1 have
quoted.
The same comment applies, Rlr. 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. Irefer in
this regard to pages 5-8, su va, where, the Court will remember,
Professor Possony was asked w Rat interpretation he placcd on the word
discriminate. This witness, after some cross-examination as to his
understanding of thi: word discriminate, said:
".. . once pou 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-permissihility"(suQra, p. 8).
With respect, Bfr. President, this rather ohvious observation içone
xvhich we have been pressing for months. Applicants, however, have not
explained their position tous, or to the Court, nor did they at the time,
to Professor Possony.
As regards the suggestion that esplanations for differential allotment
of rights malr be given by Respondent and accepted by the Court, on
the basis of unspecified criteria, it may here be apposite, Blr. President,
to refer back to previous statements made by Applicants, and, out of
many, 1 wish toquote only a few.in the verbatim record, IX, at page 298,
my learned friend, Air.Gross, isrecorded to have said the following:
". .. the Respondent allots status, rights, duties, privileges or
burdens on the basis of membership in a group, cIass or race rather
than on the basis of individual merit, capacity or quality. In the
Applicants' submission, such a policy and practices are inherently
incornpatihle with Respondent's obligations under Article 2 of the
Mandate and &ticle 22 of the Covenant and constitute fier se and
ipsofczcloviolations of Articlz, the interpretation and the applica-
tion of which Article are governedby international standards and/or
by an international legal norrn,as described in the Reply, IV, at
Page 493.
In the Applicants' further submissions, no evidence or testirnony
in purported esplanation or extenuation thereof is legally relevant
to the issues joined in these proceedings."
Mr. President,1 wish to underscore the words of the 1st sentence that
1 have read: that no explanation or estenuation would be permissible. ADDRESS BY MR. MULLER 79
And, in a still earlier part of the Oral Proceedings, my learned friend,
&Ir. Gross, stated in the verbatim, IX, at pages 4j-46:
". ..any conception that would lead to a doubt or an inference or
an assumption that prornotion 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 mernbership in a group
rather than upon his quality, merits and potential as an individual
person is impermissible, inconsistentand such a policy is replignant
to the legal norm which we assert covers the situation.
The condition of the individual's health, his happiqess, ostensible
happiness, or other factors which are frequently referred to. donot,
in these circumstances, have a relevance to the validity and content
of the norm ifit exjsts, as the Applicants respectfully submit that
it does."
In the same verbatim, at page 46, we find this statement, Jlr.Presi-
dent :
". . . in view of the inherent incomyatibility of the practice and
policy of apartheid, as defined in the written pleadings, as they
appear from undisputed facts of record, there would be no basis
[and 1 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. It
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 whickithe Applicants contend, and upon which
their submissions rest."
Then 1 shall read onIy one more ofthe statements made by my learned
friend,Mr. Gross, with regard to this aspect of the case, and 1qiiote at
IX, page 57:
"But [said Mr. GrossJ on the basis of the subrnissions, as the
.4yplicants 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 thatthe acceptance of those propositions would make irrelel,ant,
unnecessary. for al1 the reasons the Applicants have endeavoured
to explain, the introduction of further evidence."
Mr. President, this very doginatic attitude stands in sharp contrast
not only to the above-quoted replies by the Applicants to questions
put by you, Rfr.President, relative to compulsory education, but also
to a further incident when thi: following question was put, againhy OU,
Mr. President, to Mr. Gross, iluring 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:
"1s it your contention that if it is established that to apply the
norrn which you allege exists, would be contrary to the welfare,
social progress and development of the people of South West Africa,
that iswholly irrelevant to the Court?"
The answer given, recorded atthat page, was "No, Sir."
Kow, after tliis question was repeated, the replv, given the second80 SOUTH WEST AFRICA
time by my learned friend, Mr. Gross, was amended toread as follows:
"Lliell, Sir, 1 do not thin1 can answer yes or no."
1just quoted from XI, at page 691.
Rlr. President, as regards the alleged content of the norm or standards,
one further point calls for comment. Since the filing of the Reply, the
content of the norm, with which the content of the standards waç
assimilaîed in the course of Applicants' oral reply, was stated to be aç
defined at IV, page 493 of the Reply. ETow.this definition, which 1 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 tlie 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 formülations
at page 493. In thisregard, reference may be made to the formulation
on the first day of the oral argument, VIII, at pages 117 and 116, when
rny learned friend referred to the norm as defined atIV, page 493.
There are a number of examples. I do not wish to read them, 1 shall
just give the Court an indication where thcy cari be found-that is
where the norm was referred to only in its negative definition. Those
are VIII, at pages 246, 253, 262, 263 and 267; IX, at pages 45, 46,48,
60, 245, 247, 248,261, 282-283, 284, 298 and 306-307. Alr. Presidenî, 1
have noted quite a longer list bu1think that is suffrcient.
Towards the end of the oral evidence ..\pplicants, however, attempted
to escape the definition. It startedwhile Professor Manning was giving
evidence on 14 October-1 refer in this regard toXI, at pages 607-Gog,
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,PllrGross, whether in addition to having
read the definition at page 493 of the Reply. he had also read al1 the
verbatim records in which esplnnations were given. I would in this regard
also refer to XI, pages 621-625 A.nd, Mr. President, in the course of
cross-esamination of Professor Possony, $Ir.Gross pertinently stated as
folloi~~at page 7, supra: ". . . page493 is not a self-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, 1 think the impression has sought ta have been
created previously in these proceedings by Counsel thatthe language
on page 493 must be interpreted as ifitwere disembodied from the
balance of the pleadings, not explained by the sources to which
reference is made and elaborated and wliich explain the detailed
content attributed by the Applicants to the standards and the norm
contended for and. Sir, ifthe 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 respcctfully disagree."
After some debate on the very same day, during which referencc was
made to the terms of Submissions 3 and 4 and thecontent of the definition
at page 493 of the Reply,rny learned friend, >Ir. Gross stated: ADDRESS BY MR. MULLEII 81
"Mr. President, the Applicants, far from changing thcir 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 arc to be derived from the explanations made by
the Applic:ints, 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 before the Court with respect to tlie esistence of international
standards or objective criteria, on the basis of which the Mandate
shoiild be interpreted. These are of the content described and
defined oii IV, page 493, themmeaning of which is to he, in Our
çubmission, understood, eiucidated and arrived al by thc honourable
Court on the basis of the esplanations made." (Sz~pra,pp. 26-29).
On the very next day the: Applicants refornlulated their norm or
standard to prohibit (and 1 quote from the verbatim, p. 36, supra;
the definition was repeated on the same day at p.39 and again at p. 40):
". ..goi~ernmental policies which do itot give weight to individual
rnerit or capacity, but which allot rights and burdcns on the hasis
of membership in a group which do not protect equality of opportu-
nity atid extend equal protection of the laws to individual perçons
as such".
Mr. President. \ve çubniit that this reformulation does not differ in any
material respect from the dcfiiiitionof the norm given at page 493 of the
Reply. The only difference would appear to be (a) a change of secluence
in the negative formulation whereby the position of the incliviclual is
dealt with before that of thc group, and (b} the substitution of the
words "which do not give wcight to individual merit or capacity" for
the w-ords "rather than on the basis of individual merit, capacity or
potential" in the definition at page 493. It is submitted, hlr. President,
the Professor Possony was quite correct when he said at page 40, supra:
"Mr. President, 1fail tosee that the formuln differs frompage 493 in any
substantinl aspect."
In the snme rccord, on an:tlysis of the terms of the Reply, arid the
various sources relied upon for the creation of the norm or standards,
Professor Possony demonstrated that the norm as interpreted bÿ him
and also by Respondent indeeclrepresents the only possible interpretation
of page 493 of the Reply. The Court will also recall that he demonstrated
tliat a norm or standards of such content is not supported by the sources
reIied upon by the Applicants-this is fourid at pages 35-38, supra.
Further reference will be niade later in the argument to this aspect,
Mr. President, ivhen Professor Possony's evidence wjll be dealt with in
more detail.
Applicants' present embarrassrnent with the definition of the norm
as set out at page 493 of the Reply, &Ir.President, stands in sharp con-
trast to tlieir prt:vious fondness for the phrases appearing on that page.
This does not only appear froni the refercnces which 1have already given
and read but it rtlso appears indeed from the very terms of Submissions
3 and 4. In this regard,I may also refer the Court to VIII, pages 117-118
and page 267, where the reference to norm is wholly as to the negative82 SOUTH WEST AFRICA
part of the definition; IX, page245, wherc the definition as is contained
in the Reply at IV, page 493 is quoted;IX, pages 306-307 w hich 1 have
already read to the Court this afternoon and where the Applicants stated
that the label does not matter but that the norm isdefined at page 493
of the Reply and that that is the coreand the heart of their case.
Air. President, from what Applicants have indicated in the course of
oral testirnonÿ, and that is both by statements made and by questions
put to 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
object to the norm being described 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 definitionof a norrn 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 enquiri
which Applicants repeatedly and explicitly said was not necessary and
(b) that incontending 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. In these
submissions, the Respondent is charged with a violation of the norm
andior standards merely and solely because Respondent has-
"distingiiished as torace, colour, nationalor tribal originin estab-
lishing the riglits and duties of the inhabitants of the Territorf"'
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 AppIicants
have not charged Respondent with having breached such a norm
or standards. Indeed, they have not produced any evidence to show
violation of such a norm or standards containing an additional ele-
ment. They have, on the contrarp, 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-
dence to show non-violation ofsuch a norm or standards.
Mr. President, 1had been dealing with what 1coiitend can be described
as attempts on the part of the Applicants to reformulate their nom.
I now wish to deal with n related matter, and that is the distinction
between Applicants' norrn and standards, which was also a matter raised
in tlie various objections put forward by Applicants in the course of the
oraltestimony.
When the norm of non-discrimination or non-separation first reared
its head in the Reply itwas clearly a norni, or norms in the plural, but
not a standard, or standards in the plural.1 refer in this respect to the
Reply, IV, at page 492 and the following pages. Although reference \iras
made to standards in the Reply, they remained nebulous as regards
both content and effect. Thus Applicants said: "The standards referred
to in the RepIy are of course of a political, mord and scientific charac-
ter" (VIII,p. 247). ADDRESS BY MR. MULLER 83
During the coiirse, however, of the oral reply Applicants developed
and espounded the concept of a binding standard. Now their argument
was that Respondent had ageed in 1920 to apply standards laid doivn by
the competent supervisory authority in respect of mandates, and that
such a standard, with the same content as the norrn defined at IV, page
493, had been created. In this regard 1 draw the Court's attention to
what was stated by the Applicantç in the verbatim record of 18 May,
IX, at ages 315-320, ancl243-244. At the same time Applicants sought
to estaKlish that the rule in question had attained the status of a norrn
or a legal rule binding on al1 States and not only on the Mandatory.
However, Applicants' enthusiasm for their norm seems to have waned
with the passage of time. \lie find on 30 June, and I quote from X, at
page 187, that Applicants then say :
"The Applicants, moreover, haire contended thaf the condemna-
tion of official discrimination is so firmly and universally enunciated
as to be regarded as a rule of international law within the mcaning
of Article38 of the Statute of the Court. . ..this, as the Court will
be aware, has been asserted as an additional, cumulative argument
ivhich does not in any way affect or limit the principal argument
with respect to the standards which the cornpetent organs have
applied to the practice of apartheid,and to lvhose views this Court
is respectfuliy 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 Keply to meet the exigencies of the moment,
and, in particular, the collapçe of the original casemade by Applicants
based on oppression, has in turn been superseded 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. Tt 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 2of the Mandate should be inter-
, preted in the light of standards ivhich concededly and undisputably
esist, in the formofUnited Nations Charter, resolutions, other inter-
national instruments and so forth". (XI, p. 644.)
And iiithe same verbatim record, at page 647, they Say:
". . . Applicants' main argument with 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:
"ive believe that the United Xations standards, as elaborated in
the Reply, rnay be consitlered and should, with all respect, be con-
sidered by this honourable Court in interpreting the Mandate. . ."
(X,P. 524.)
&Ir.Yreçident. 1 do not propose re-arguing the legal issues of the case,
but 1would ernphasize that these formulations of the Applicants' con-
tention regarding standards iliffer entirely from their earlicr version,
according to which standards were (a) laid down by the administrative 84 SOUTH WEST AFRICA
supervisory organs, and were (6)binding upon the Mandatory and upon
, the Court. There \vas tl-icn no suggestion of standards which (to quote
the words from rny 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 formulations and re-formulations by the Appli-
cants are consistent with their case as set out in the submissions. The
submissions, we Say, contain the authoritative definition of Appticants'
case, and in the result we can do no more than repeat what was said on
IJuly, and 1 quott: from a statement by my learned friend, hlr. dc Vil-
liers:
"\.liedo noi understand that there is any case being made against
us, outside of the ambit of the case esplained so repeatedly by
my learned friend to this Court, and which seems to be clearly
incorporated in the submissions now before the Court. 1 have said
rcpeatedly that Ive are prepared to meet any case that may be prc-
sentedagainst us, provided that it is presented fairly-thatis through
the front door, not through a back door-so thntwe know what tltat
case is, and that kve are given timeous notice in order to adapt
ourselves to that case.
hlylearned friend had his choice, and he csercised it ~vith delib-
eratioii, 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 lirnited scope of his case.On the basis of that iiotice
we have made arrangements totally different from what they were
initially. We are calling our evidence now on this very much more
limited basis of presentation of the case-very much more limited
than it was before. \.17made new arrangements in regard to wit-
nesses, dispositig of some whoni we had in niind and not negotiating
- nny fiirther with otliess wliom we had in miiid to cal1 in regard
to thc issue a.s we initially understood it to be presented. We
have limited ourse1vcs in these various respects; we have added
certain other witnesses. in order to meet this case and the sole case
which the Ap~ilicants said they were making against us.
Jlr. President, there must, in circumstances of that kind, surely
be alimit to the estent to which a party can chop and change and
then indicate a new attitude to the Court. 'Theremust corne a time
when thc Court should Say to a party: you have made your election
and you rnust abide by it, because the case has been shaped on the
basis of the electionou made and you cannot now, at this laie stage,
alter it again."(X, p.227.)
Applicants have not since the re-formulation of their submissions indi-
cated any intent to alter their case and their subrnissionç again. On the
contrary, when asked about it by j70u, fiIr. President, on zo October
they indicated that they did not contemplate any aIteration. 1 refer
in this regard to the verbatim record, at pages 28-29, supra.
Our evidence was led on the basis ofApplicants' case as set out in the
submissions as re-formulated. It fell into thremain categories, in accord-
ance with the scheine esplnined to the Court on 17 June (X, at pp. 76-
77) and on 18 June (X,at pp. 77-78 and 82-87), the scheme beirtg the
following :
The first category: evidence which served as a basis for explaining ADDRESS BY MR. MULLER 85
or illustrating the ~nethods aiid proceeùings in international organiza-
tions, which evidence is intended to be amplified in the further argument
with reference to tlie rcadily available sources. The purpose of this evi-
dence, and of the further demonstration to be added thcreto, is to show
that such methods and proceedings caiiiiot be regarded as creating or
applying standards or norms of a legal nature, or of the content relied
upon by the Applicants.
The second caregory: evidence shoming that no norm or standard as
defined by Applicants at IV,page 493 oftheirReply, is uriiversally applied
in the practice of States.
The third category: evidence showing that the application of the
norm or standards in the circumstances of Inany countries, including
South Africa and South IVest 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 "il1 fa11into the samc threc categories tliat
1 have just now mcntioned, and it wili foliow the same sequence. In the
course of argument we shall refer to the cvidence given by the witnesses
and the facts in the written pleadingç ~vhichhave all bcen admitted by
the Applicants. In this regard 1 cal1the Court's attention toIX, at pages
20-21 and 43-44. The Applicants there indicated to the Court as follows,
and 1quote in particular a short passage inIX, at page 21:
"The Applicants have adviscd Reçpondent as wetlas this honour-
able Court tliat al1 and any avcrments of fact in Respondent's
written pleridings will be and are accepted as true, u~ilessspecifi-
cally denied."
\Ire shall at an appropriate stage in the Iater course of Our argument
deal with the significance and legal cffect of the admission by aparty of
pleaded facts, and with a related subjcct, namtly the significance and
effcct offailure hya party to cross-examine witnesses on material aspects
of their testimony.
In addition to the adrnitted facts, as we have indicated in the verbatim
record, X, pages 77-78, 53-84, and later in XI, at page 456, tve shall
also refer to some United Nations documents in the first part of Our
argument that is, that part of the argument which \vil1deal nith an
appraisal of the procedures and activities in international organiza-
tions, and, in particular, the United Sntions.
The argument which 1 have sketched will conclude our contentions
regarding Applicants' Çuhmis~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 r, 2,7 and 8 have already been disposed of. That
ivill then leave us witlr only Submission No. 5. which dcals with uni-
lateral incorporation, No. 6 (inilitarization) and Ko.g (unilateral modi-
fication of the terms of the alandate). These Submissions Nos. 5, 6 and
g were, 1 submit,but faintly pressed by the Applicants intlieir oralargu-
ment, and will be dealt with by us afterwe have concluded our argu-
ment regarding Submissions 3 and 4.
Mr. President, witli the permission of the Court my leariied friend, Mr:
de Villiers, urill riow start to deal with the first portion of the first cate-
gory of the argument that I have indicated. 26.ADDRESS BY &IR.DE VILLIERS
COUKSEL FOR THE COVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEAKINGS 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 faII, andit is
unnecessary for me, Mr. President, to repeat that.
1should like to beginby 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 will recdl
that they referred in their pleadings and in their oraladdresseç to the
Court to a large number of such resolutions. Thelarge majority of these,
Mr. President, were resolutionsof organs of the United Nations, and of
thatcategory again, the ovenvhelming majority were concerned specif-
ically with South ilTest Africa and South Africa, and it is this last-men-
tioned category wliich 1 want to isolate for the moment-that is the
grou ofresolutions with which we wish to deal first.
d shall dealat a later stage of our addreswith the other resoIutions
falling outside this category, some still being United Nations resoiu-
tions, but not specifically referring to South Africa or South West Africa,
and some not being United Nations resolutions at all.
The resolutions in question, with lvhich 1am going to deal now, are
identified in the Applicants' written Reply, aIV, pages 502 to 504,and
one will particularly find full references to the records in the UniNa-
tions in the relevant footnotes at thosepages. We find agâin, Mr. Presi-
dent, reference to tliese resolutions in the verbatim record18 May, IX,
at page 332, and 1 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, thissentence:
"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 resolutionswas
to demonstrate the judgment of the organized international corn-
munity with respect to separation or discrimination on the grounds
of race or menibership in a group, itis immaterial to the purposes
of the present discussion that the rcsolutions apply to apartheid
both as practised inthe Republic of South Africa and in the Tem-
tory of South West Africa, as the pleadings make crystal clear and
as 1s conceded by the Respondent. The fundamental policy and
practices in force itheTerritory and in the Republic are essentially
the same in al1respects relevant here."(IX,p. 332.)
Mr. President, let us attempt to attain clarity first as to the purposes ADDRESS BY MR. DE VILLIERS as
for which the Applicants relied upon these resolutions, this particular
group of which 1 am speaking.
The purpose was, in the first instance, to show that theçe resolutions
were part of the process of the creation of the norm as defined and
relied upon by them, andlor as proof of recognition that such a norm
exists. That was the first purpose as Ive understood it of the argument
as relying upon these resolutions. Secondly, Mr. President, thcy rclied
upon these resolutions with the same purpose in view as faras their
standards contention was concerned; in other words, aspart of theprocesç
of creation or formulation of those standards, or as an indication of
recognition that such standards exist and are intended by thesc organs
tobe applicable and binding upon the situation in South West Africa.
Thirdly, Mr.President, the purpose was, as woiild appear from the passage
~vhich1 have just cited to the Court, to show the judgment of the so-
called organized international community that policies of the Rcspondent
in the Territory offended against the norm andlor the standi~rds.
1 have stated the purposes in this order. No particular significance
is attached, for the purpose of rny argument, to the order. 1 have not
given attention atal1for purposes omy argument here to the Applicants'
distinctionas to what is their main contention and what is their alter-
native or subsidiary contention. It does not matter for my purposes
because this arg-timent will serve as a reply to ail of those contentions.
It is particularly in this last-mentioncd respect, Mr. President-in
respect of reIying upon these resolutions as constjtuting 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 other words, was bound by these decisions and simply had
to apply them. In the Applicants' nrords, urhich my learned friend,
hlr. Muller, also recalled earlier this afternoon, 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 sirnply
bound to accept and to apply these so-called "judgments". My learned
friend gave reference to the passages in that respect in the vcrbatirn
record of g June at IX, pages 543 to 545.
Now, in this last-mentioned respect also, it is clear thatAphe licants
eould rely only on resolutions pertaining spcificaliy to SoutE \\'est
Africa and to South Africa. It would not be possible for this purpose
to rely on other resolutions, and that ia factor which distinguishesthis
group of resolutions from the others relied upon by the Applicants.
Mr. President, that is not mymain reason for isolating this groiip and
for dealing with it first. Our main reason for thisthat there are certajn
special reriçons lvhic\ireshall advance to the Court-special reasons in
addition to the legal argument preseiited to the Court before-why these
particular resolutions could not possibly support the Applicants' conten-
tions as to their rrorm and/or standards. 'Thercare again special reasons,
also additional to those advanced before, which similarly apply to the
other group of resolutions, but they are different reasons and \i.c shall
corne to deal witii those at a Iatestage.
Xow the grounds which we have already advanced, why these particular
resolutions could not support the Applicants, have again been referred
to earlier thisafternoonby my learned friend, Mr. Muller, and 1 do not
intend to make any cletailed referenceto them at all-it is unneccssary.88 SOUTH WEST AFRICA
1 merely want to identify those very broaclly in order to contrast the
argument which is now to be presented with what has gone before.
Broadljl, we may say that, apart from jurisdictional aspects which we
mentioned, we have denionstrated in Our earlier argument that the
proceedings in these bodies could not possibty 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. Thnt is the broad
trend of the substantive portion of our argument as we clealt with it
in thc verbatini records of IO, II and 14-17 June (IX and X). Those
arguments, hlr. President, were advanced bu us quite independently of
what these resolutions were, in fact, intended or what they purported to
achieve.
Althougli that argument concentratecl on the processes and the legal
significance of the proccsses themselves-riltlioughthat argunient woufd
havc been entirely sufficient for our puryoscs-we promised that we
would in addition, at a later stage, deal with the rnatter with reference
to the content of tlie suggested norm and the suggested standards relied
upon by the Applicants. U'e prornised that we would then demonstrate
in what light the ;ictivities in these international bodies were, in fact,
to be seen, and in particular we promised to show, hlr. President, that
the organs and the agencies of the United Nations in passing these
judgrnents did not pnrport to have applied standards or s norrn with tlie
contents suggested by tlie Applicants, but, on the contrary, that they
condemned the Respondent's policieç on an entirely difierenl basis-
namely as being tainted with improper motives, or as being oppressive
of certain groups. And we added that, as we \vould show, the findings
were in any event to a large extent based on incorrect or distorted facts
or assurnptions or on deliberate misrepresentations.
Those indications the Court will find in the verbatim record o18 June
at X, page 84. And it is in this light, Mr. President, that we intendto
continuc the argument as from here.
It will be evident inmy submission that ifit can be shown that the
organs, in condemning the Kespondent's policies, did not apply standards
or a norm of non-separation or non-discrimination, as defined, this would
be an independent and an additional ground, quite apart from those
already advanced, why the Applicants' case under consideration must
necessnrily fail, at least, of courasfar as it depends on thesc particular
resolutions. It will, therefore, be highly reIcvant to examine very carefully
the considerations which gave rise to these resolutions.
In 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 iiot apply in al1cases, and even in cases where
the wording isenlightening one finds that it does not always tell the
whoIe story in its full impact.
We tiicrefore have toturn to what one might cal1the antecedents of
these resofutions in order to find as accurately and as fully as possible
the real motivations behind them-the rcal bases upon wkich they were
adopted. l'hese antecedents include views espressed by delegates who
voted for those resolutions; the' include the material and sources on
which those views were based and they include other relevant evidence
as to the motives with wliich that material and those sources were
placed before the United Nations and its organs. ADDRESS I3Y MR. DE VlLLlERS 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, stste very clearly what the purposes
of this inquiry are.It will be done vcry, very concisely and even ifit
involves a brief rneasure of repetilion, because we do not want to have
any misunderstanding about this.
Basically, we propose to show that the resolutions on which ttie
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
anj~thing 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 was not accorded to a norm or standards
of a content as relied upon by the Applicants.
Vlre submit. Mi-. President, that that nppears in two ways. Firstly,
because the resolutions were, to a very large extent, the outcomc of a
political campaign which aras ivaged stpinst the Respondent Govern-
ment by a large number of States-a campaign which was based on
politicaiand particularly on eniotional grounds, rather than upon ohjec-
tive grounds concerned with the well-being and progress of the peoples
concerned. l'he objectives of the campaign, in our submission, are to
procure the so-called "liberation of the people of South \Irest Africa",
to secure the independence of the Territory on the basis of Black African
rule and to securc the consequent ousting of the Illiite group from the
Government of tlie Territory or any part thereof. no niatter whnt 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 repi~ese~itativcsnf some of the leaders of that
campaign. 'i'hat isthe firstpart of the rcasons, in other ivords, of the
manner in wtiich it appears that the purport and the intent of thcse
resoli~tions were not what is clrrimedby the Applicants.
Secondly, we submit that the real purport appears from the grounds
upon whjch the Respondent w:iç attacked in the course of the campaign
and upon which the resolutions in question were eventually based. and
we find, on analpis, that these amounted to nothing else than alleged
deliberate oppression of the indigenouç population of the Territory. A
suggested norm and/or standards of the kind defined by the Applicants
and relied upon by them did not enter into the discussions at all.
In this last respect we shall indeed show that lvhile consideratioii was
given in special committees and othcr bodies of the United Nations to
the prospect of iitigation in tliis Court on the question of South West
Africa, tliat is contentious 1it.igation as was eventually institirted in
these proceedings, alno stage whatsoever in those deliberations and in
those reconimendations was ariy suggestion made ofbringing an action
on the basis of standards or a norm of the kind now under diçcussion.
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 viem to which \ve ernbark
upon this background inquiry, this inquiry into antecedents, and that
is that the resolutions were, in our submission, to a very large estent
based on completely erroneous and distorted information, moçtly clerived
from statements by petitioners from the Territory and derived from9O SOUTH WEST AFRICA
them under circurnstances in which their statements were not tested,
.but wcre indeed acceptcd and echoed without reservation.
Those, then, are the purposes for which we embark upon the inquiry.
1 propose to deal first with the carnpaign 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
dlegations 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 speakin general
.of an anti-colonialistic campaign, but we shall speak also in particular
.of leading participation, which has come to be taken in that campaign
over more recent years by the independent African States. When we
speak of that participation by the independent Afncan States, that
leading participation, it does nomean 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 StatIt.is common
knowledge and we al1know 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 parallel
with these proceedings, that the African States are standing alone and
that they have no allies. Certainly, we al1 know that they have allies
in that very carnpaign and that they are ver)? strongly süpported by
various States and groups of States for various motivafjons, but our
.conCern is not with what went before, with the motivations of other
States which, sornetimes enthusiastically and sometimes perhaps less
.enthusiastically, may act as allies andsupporters of the African States
in this particular respect.
Our purpose is, inparticular, concerned with the leading participation
taken by the African States over these later years, with a common
purpose which the representatives of the African States have made in
this respect with 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 come forward to
institute these proceedings. The Applicants did, of course, express in
their pleadings an attitude of being graveiy concerned about the well-
being of the indigeiious 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 inthe interests ofthe inhab-
itantsof the Territory. So we find, in the RIemorials, at 1, pag86, that
,each of the Applicants stated:
"The Applicant has repeatedy expressed grave concern concerning
the violations by the Union ofits duties with respecttothe Territory
and the well-being of its inhabitants."
Mr. President, there are, in the pleadings, some references, 1 might
,cal1 thern "legalese" referenccs, to a so-called legal interest, or legal
interests, on the part of the Applicants and on the part of other Members
af the United Nations. But othenvise ~vefind that the proceedings are ADDRESS BY MR. DE VILLIERS
9=
presented throughout asbeing duected to the benefit and the interests
of the inhabitants of the Territory, and nolvhere do the Applicants
offer the least practical reason why they particularly have come to be
the champions of the inhabitants of the Territory.
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.
We found that both theApplicant States were Memberçof the League
of Nations.The Respondent, as everybody knows,has, since the inception
of the Mandate, applied policies of ethnic 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 less favourable 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, emergeas the self-appointed protectors of the inhab-
itants. It must be manifest, hfr. President, that there must be some
practical reason or motive why this has come 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 Ourpleadings.
The Court will recall that inour Countet-Memorial, II, at pages 446-
449, dealt with what we described as-
".. . the increasing pressure exerted by the newly independent
African States to enforce the gant ofself-government or indepen-
dence to dependent territories and peoples in Africa".
The quotation is from page 4.46of that volumc. Then we went on to
Say this, at the same page:
"The present proceedings against Respondent are to be seen as
partof this political campai@ desigrred to bring South West Africa
(and eventually the Republic of South Africa itself) into line with
the new governmental systems eçtablished in other parts of Africa,
and to achieve for the Temtory majority ruie by the Native popula-
tion-~ an over-riding objective to which dl other aspects and
implications are to be subordinated."
Ive 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 s;ime volume, on pages 446-449.
Without going into detail, 1 should like at this stage, particularly
because of the reaction we had from the Applicants, to which 1 shall
refer in a moment, to refer to some of the material on which we relied
thete in the Counter-Biemorial.
FVepointed out by way of background that the Presidents of Liberia
and Guinea and the Prime Mitlister of Ghana made the following state-gIi SOUTH WEST AFRICA
ment in regard to South West Africa in a joint communiqué, dated
July 19591 .quote from II, page 446, paragrayh 31:
"We maintain that this Territory is in fact a Trust Territory of
the United Nations, and as such the United Nations canriot relin-
quish its legal and nioral responçibilities to the indigenous inhab-
itants ivho are entitled to the same treatmeiit 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 JuIy 1959, somewhat
more than a year hefore the institution of thcse proceedings.
In the nest year, in 1960. the Secretary of State for Liberia, Rlr. J.
Rudolph Grimes, spoke of the "determination" of Iiis Government (that
was the word he i~sed "determination") "on behalf of al1the African
States, to pursue further action to get this territory placed under the
Trusteeship provisions of tlie Charter". The quotation is from II, page
447 of the Counter-Iilemorial,Mr. President, and it proceeds as follows:
"WC are pleased to know tliat in this we have the support and CO-operation
of other African States. This matter will be discussecl at this conference
and it ishoped that filial decision for further actiowill be taken before
we ndjourn."
1 should like to make two comrnents: one is that, as we point out
in the Counter-lilemorial. this was 1960, and, as we have demonstrated
before, by 1960 trustceship \vas considered as being merely a brief
prelude to complete political independence. That is one coinment. The
other comment is that at this conference, as wns foreshadowed by
&Ir. Grimes, resolutions were indeed adopted-at tltnt conference and
at other conferences.
ive find tliat, as is also demonstrated in the Couriter-Memorial at the
pages in question, 448-449, nt this particular conference it was decidecl
"that the international obligations of the Union of South Africa con-
cerning the Territory of South-\i7est Africa should be submitted to the
International Court of Justice for adjudication".
Nest quotation t'rom the samc resolution. rit the same page in Our
Coiinter-blemorial: "that the Governments of Ethiopia and of Liberia
have signifiecltheir intention to institutz suchproceeding." The purport
of the quotation was that tlie resolution noted ttlis fact. Then, there
isthis further rathcr significnnt paragraph which L quote, still fromthe
samc page: "that a Steering Commitiee of four African States, including
the dcleçations of Ethiopia and of Liberia, should be established to
detcrniine the procedures and tactics incident to the conduct of the
juridical proceedings in this matter" (II, p.445).
$Ir. President, nredealt also, in tliat portion of Our Counter-31emoria1,
witli the reasons why we assigned those particular objectives to the
campaign. I shall 1t:avethose aside for the moment. 1 am coming back
to that at a later stage. 1 merely wish to refer now to our conclusion
which we stated at page 448, aiici which reads as follows:
"It will be apparent from the factç set out... ttiat the Apylicniits
in thc 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 çecure political
independence for the Territory." ADDRESS BY MA. DE VILLIERS 93
Now, Rlr. President, what was the reaction of the Applicants? M'eget
that in their Keply, at IV, page 295, and we find that it was sharp and
profcssedty indignant. They stigmatize Our conclusion, which 1 have just
cited to the Court, as "a sweepingly declaratory judgment". Then they
go on to declare the following: "Applicants do not consicler compatible
with the dignity of this honourable Court, or with the gravity of the
issues in dispute in these Proceedings, to reply to irresponsible and
unwarranted comrnents of such a nature."
But, significantly, Afr. I'resident, despite al1 this indignation, find
that the Applicants did not attcmpt to refute, or even to answer, any
of the supporting material upon which we relied in the relevant portion
of our Counter-Mernorial-that rireointed out in oui- Rejoinder, V, at
page 380. Nor, Mr. President, did the Applicants indicate any other
practical reason wlly they particularly were now chsmpioning the cause
of the inhabitants.
When we corne to these Oral Proceedings we find that this line of
indignation and disdain was maintained-again, Rlr. President, without
dealing in the least with the merits of what we had said. and. again,
without taking this Court into their confidence about the real reasons
for their concern about tlie well-beiiig of the inhabitants. We find that
they dealt with that in the verhatim record of 27 April, aIX, pages 8-11.
hIr. Preside~it1 need only point out that, on this question as to the
representative capacity of the Applicants, they said nothing at al1
except to suggest, as they hnd done before, that thcy might be repre-
scnting the United Nations, or the Members of tht: United Nations, and
so to divert the trail. MTefinrl, for instance, on page g of this record
they said: "In this very case, the United Nations General Assembly by
an overwhelrning majority has seen fitto refer to this pending litigation."
Then they refer to the resolution iii question. But, otherivise, we hear
nothing about this question of who is being represented and we find at
page II the following is çtated:
". .. Respondent levels against the Applicants accusations of im-
proper motive iii seeking jiiciicial recourse.
Mr. Prcsident, it is distasteful to deal irrith charges whicli cal1
more for disdain than for denial, but denini there must be of the
charge and denial must justly be recorded at this point."
Now, 1 point out that this, thereforeisone of tiie exceptional instances
in which the Applicants have qualified their admission in regard to facts.
They indicated that they accepted as true al1the facts in our pleadings
except ïvhere they would indicate other~vise, and this is an indication
to the contrary. Therefore, and also, Rlr. President, because \ve rather
resent the suggestion that we have drawn the dignity of this Court in
issue by irresponsible statemcnts, it is a matter which requires to be
pursired further. Rut, before cloing so, 1 should like to refer to this
wording that "Rcspondent levels against the Applicants accusations of
iniproper motive in sccking judicial recourse". Th:it, Rlr. President, was
not the point why we raiscd this matter. Itwas not a rnatter of suggesting
"improper motive in seeking judicial recourse". WC were concerned witli
pointing out that there was a campaign with certain political objectivcs,
and that this litigation was part and parcel ofthe inethods 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 irnplica-94 SOUTH WEST AFRICA
tion of this litigation. Thatwas the purpose why we referred to this.
LVhether one would describe that as an "improper motive in seeking
judicial recourse" is realIy immaterial. It is certainamotive; whether
it is improper or not would depend upon the extent to which it is truc
that, as we Say, the ilpplicants 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 invf:stigation.
Now, Mr. President, in pursiiing the matter furtlier, becausejvehave
been challenged on this, 1 should like to begin with the representative
role played by the Applicants in the proceedings. 1 may Say that we
rial, especially iviewsof the fact that what wechave tsubmitted has not
been countered at all.
But, Rlr. President, in addition there are very pertinent speeches
delivered by representatives of both the Applicant States themselves in
the United Nations General Assembly.
1 begin with Mr. Yifru of Ethiapia. The reference is to the Oficial
Refiortsof the Geneval Assembly, Plenary, 16th Session, 1020th Plenary
Meeting, page 177, 2 October 1961.q 1uote fromthe 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 ... We are happy to report that al1the African States have
participated in all decisions leading tthis action ...We feel that
this CO-operationaugurs concerted action in other areas of cornmon
interest."
Next we corne, Mr. President, to the same Mr. Rudolph Grimes of
Liberia. This is at the r964 Session, the ~gth, in plenary. Unfortunately,
al1 we have availabie, and 1 think al1 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 1st 1 had the occasion to addreçs the General Assembly,
the African States, through the Governments of Ethiopia and
Liberia have iiot 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 Africacasealmost through
the pleading stage ., .As you are well aware, this case rcpresents
the effortsof a united Africa to ensure that South Africa does not
further extend its racial polictosahelpless and defencelesspeople."
That is the end of the quotation, Mr.President. and the question
ariseç ~vhorn 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 findR ,ir. President, that the Applicants' representatives at the
United Nations were, on this point, very pertinently confirrned by a
Somalia. Weivefindathat in thecGeneraleAssembly, Plenary, 17th Session,
page 476.That was on 12 October 1962T .he quotationis from aparagraph
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 proceedcd as follows:
"We 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."
1 repeat : ". . the efforts of Liberia and Ethiopia on behalf of the African
countries . .."
That this is the: true position is further confirmed, if any confirmation
were nccessarp, by the fact,Mr. President, which was widely publicized
in the world press at just about: tlic tirne 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 1 Say, reports freely in the press
that the Council of the Organization for African Unity had required
each member State of that organization to contribute $13,37 owards
the cost of this case by15 April. 1 can refer the Court to acopy which
we have of a Sapa-Reuter message of March 1965 to that effect.I can
refer the Court also-1 have it: here-I shall hand it in to the Registrar
-1 have also a photostatic copy in duplicate-1 could hand one copy
to rny learned friends if they wish-oa publication calledAfricR aesearcb
Bulletirapublished in the United Kingdom. 1 have here the issue for
1-31 March 1965 . here isa photostatic copy of the title page and also
the relevant page, which is 254, at which the report appears. It has been
marked inthe margin. 1shall also hand these in.
Mr. President, in further support, again, if that were required, we
couid refer to numerous ~tatcrnents made by petitioners from South
West Africa. From what was said in the Counter-Memorial, and not
met at al1 in aily subsequcnt pleadings by the Applicants, and from
what was said in the evidencr: ofRlr.Dahlmann on the subject of the
petitioners,it\Yi11already be evident to the Court to what extent there
is common cause between these petitioners and the representatives of
other African States. We shall refer to this matter later in more detail
and we shall also point out that in rnany 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, arnongst
others, with regard to the naturc 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.
1 referto Mr. Kozonguizi in the Fourth Cornmittee, Fifteenth Session,
10joth Meeting, 14 November 1960. 1 think it is page 302. 1 quote:
"Liberia and Ethiopia, mith the support of the other African States
had started legal action against the Union of South Africa."
In this sarne report, hlr. President, we find that there was a statement
circulatedin accordance with a decision taken by the Fourth Cornmittee
at the next meeting. '1Vefound this at page 4. Iam not sure what the
page of the previous oneis.1could correct thatin therecord, if necessary.
"We appreciate very m~ich thatLiberia, with Ethiopia,has agreed
to shoulder the responsibilities of legal action entrusted them
by the African States."
Next, we find &Ir.Kerina, at one time dso known as Mr. Getson, at
the Fourth Cornmittee, ro51st 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 Cornmittee, 137znù Meeting, on j November r962, at page 277,
he spoke niore simply of: "the African States acting through the Inter.
national Court of Justice."
So, Mr. President, having shown that the Applicants are appearing,
in this case, as the mouthpiece of a United Africa. the way is now being
cleared for taking a closer look at the nature and the objectives of this
concerted action.
We have said already that the campaign is political in its nature.
Let us begin with that element in itselfand we shall see,MI-.President,
that that is very forcibly demonstrated by thc manner in which the
attncks on South Africa by the African States, and thcir associates, 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 ço-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 Governrnent in South Africa
and in South West Africa.
So we find, to mention just a few examples, hir. President, that the
policy of the South African Government is frecluently referred to as
"one of thc worst forms of colonjaljsm". 1 quote next: as "that hateful
form of colonialism" and, thirdly, as "the worst legacy left by colo-
nialism". The first quote is from Mr. Suleirnan of the Sudan, in the
Special Political 'Comrnittee of the General Assembly, 16th Session,
284th Meeting. page 121, g Novernber 1961; the second one is that of
3ir. Achkar of Guinea. Provisio?aalRecordof the Plercary Session of the
Generul Assensbly, 1308th Sieeting,21 December 1964, at pages 78-80;
and then the third one is that of &Ir.Dugersuren of hiongolia, the 19th
Session, Provisio?aalRecord of the Plenary Meeling, 1306th Meeting,
18 December 1964, at page 33.
hIr.President. tve can quote many extracts from speeches providing
typical examples of this ayproach. 1 do not intencl to burden the Court
unduly with these. 1shaIl give one or two outstanding esamples.
We have, again, represeiitritives of the Applicant States takina very
strong part in this aspect of the demonstration. So, Mr. Yifru, the same
one as before, of Ethiopiain thePlenary Session of the General Assembly,
7 Decentber 1964, rz93rd Meeting, at page 32 of the Provisional Record,
çtatcd:
"My Government earnestly hopes that the United Nations, true
to its declared objectives, will continue to appeal to the conscience
of nations in a position to exert influence in the abolition of colo-
niaIism and the policy of apartheid, a policy disgraceful both to
man and to God."
Then we find representativcs of other African States: 91r. Lozes of
Dahomey said again in the Provisio~ial Records 1964 Plenary, rzgoth
Xceting, 4December 1964, page 41 :
"We, the African peoples, today still call for the complete dccol-
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. hiurumbi of Kenya, who stated in Provisional ADDRESS BY MR. DE VILLIERS 97
Recordsof the 19th Session,12931-dMeeting, at page 12, and again at
pages r3-15 (thiç is also Plenary Session7 December 1964):
"Let me strike a note of reçtraib nyt saying that the tirne for
total rejoicing for Africa \vil1corne only when al1 the African terri-
tories now under colonial subjugation are finally liberated. There
are still millions of our African brothers in South Africa, Rhodesia,
Angola, bIozambique, French Somaliland and the Spanish Colonies
who are living under the worst forms of human oppression. They
are denied therjght of self-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 anci neo-colonialism, no
matter in what form it is diçguised or from what source it ema-
nates .. ."
[P~blic hearing of 27 Oclober196j]
1 was dealing at the adjournrnent yeçterday with certain statements
bu 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.
1 wiçh to read one more extract from a statement on this stibject
because it is somewI-iatillumiriating of the reasoning and the emotions
that go jnto this identification. It is a reference to Xlr. Botsio of Ghana's
statement in the Provisional Recordsof the GeaernlAssembly, Plenary,
19th Session, 1299th Meeting, at page 66-the date was 11 December
~964-which reads as follows:
"The situation in Africa is naturally the immediate concern of
Ghana and, indeed, of all Africa. \mile great strides have been
made in recent years inthe emancipation of the continent of Africa,
there are still residual pockets of colonialism and racial discrimination
which constitute an affrcint, not only to us Africans, but to al1
civilized humanity. The continued domination of the rest of Africa
... including South Africa, Southern Khodcsja, South-liest Africa,
Angola, Mozambique, Portuguese Guinca, French Somaliland.
Spanish Sahara, Spanish Equatorial Africa and other Spanish
enclaves . . . continues to pose a serious threat to peaceand racial
harmony on the continerit of Africa. For us in Africa. the issue
is quite clear. We would like the transition from colonial domination
to freedom and independence to be achieved peacefully and without
bitterness on either side. Hoivever, if the imperialists persist in
frustrating the rights of Africans to independence, then \Te will
accept the challenge and u7e will use every available means to
ensure the total liberatioii of Africa. [And, then, the speaker went
on, hlr. President, to refer to apartheid and racialism as being] the
handmaidens of imperiûlisrn and colonialism."
T think I have read enough on this çubject to the Court. 1 shall merely
give certain further refcrences to the records of instances of similar
statements.
The first isMr. 1\Ibazumutia of Burundi in the same Provisionalg8 SOUTH WEST AFRICA
Records of the 19th Session, Plenary, 130jth Plenary Meeting, pages 86
and $7. Then, from certain other States than African States we find
remarks to the satne cffect, for instance, from Mr. Muraywid of the
Syrian Arab Republic; during the sme Seçsjon, in the Provisional
Records, 1306th Plenary Meeting, at pages 3-j.And then, there are
three instances, al1 in the Special Political Committee during the15th
Session, 238th Neeting, the first wasMr. Loncar of Yugoslavia, at page
53 of the record A/SPC/SR 238, the next Mr. Krishna Menon of India,
zqrst Meeting at page 71 of that record, and the other one Mr. Galkin
of the Ryelorussian Soviet Socialist Republic, at pag71 of that record.
Nr. President, in al1 these cases the theme is the same. Apartheid or
separate deve1opmt:nt is seen as a form or as a manifestation of colo-
nialism al its worst. Different words are used to describe this situation
but every time that is the theme, and, therefore, this policy requires
liquidationas soon as possible in the courof the decolonization process.
Now,once one has attained clarityon that identification, which was made
in this campaign, then the real objectives of the campaign, asspecifically
applied to South West Africa, are not difficult to ascertain, nor the
role whichisvisualized for this Court action in the whole of this campaigri.
UTe 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. Some of those statements are most explicit also
on the question of the objectivesofthe campaign.
CVe fin n the stntemeiit of Mr. Grimes of Liberia, to whic1 referred
yesterday, in the 19th Session, Plenary, 1300th 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 rightIy theirs", he werit on and he said this:
"The irresistible surge of dependent people to freedom and in-
dependence is a movement which al1 freedom-loving and peace-
loving peoplernust support. ive hope it will not be long belorewe
see our brothers in Angola, -ilozambique and other parts of Africa
as well as the world take their rightful place in the international
cornmunity."
Mr. President, the context of this passage is of extreme importance
because it cornes directly in line as a part and parce1 of the staternent
by Mr. Grimes in regard to this action, which was being proçecuted by
the African States, he said, through Liberia and Ethiopia. It came
imrnediately after a passage which reads as follows, and which 1 shaU
quote to the Court:
"Consequently, we cal1 upon al1 Mernbers of the United Nations
to stand firrn in their determination to resist any attemptby the
South African Government to undermine whatever decision the
International Courtof 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 "al1 freedorn-Ioving and peace-
loving people".
1 can refer the Court also to Mr. Kerina in the Fourth Committee,
the 1051st Meeting, 15 Novernber 1960. In a circulated statement at
page I of that record he expresçed 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 iç a concrete expression of
rlfrican solidarity and also :i.clear demonstration of purpose in
ridding our continent of foreign domination and exploitation."
(Verbatim statement as circulated.)
Now, Mr. President, that this purpose amour& to no more and no
less than the establishment of bIack mle over the whole of Africa,
including the whole of South 'IVestAfrica, and the whole of South Africa
itself,ismade abundantly clear by numerous staternents by represen-
tatives of African States, of which Ishall quote some examples to the
Court.
First in the Specjal Political Committee we have hlr. Wachuku of Ni-
geria, nt the 15th Session, 236th Meeting, page 41, 30 hlarch 1961. Mr.
Wachuku there spoke of the "difficult position" in which "the rulersof
South Africa" were finding themselves. And he said this:
"The final victory of the Africans, who were ready if need be to
die rather than accept further humiliations, was certain. In five
years' time perhaps. or teii at tiie latest, not an inch of African
territory would remain under foreign domination."
Then we have Rlr.Quaison-Sackey of Ghanaat the 16th Session 2,9th
Meeting, still in the same Conimittee, at page 46, 25 October.rg61, in a
paragraph numbered 8, he "emphasized that Africa belonged to the
Africans and that the Boers could remain there [that is, in South Africa]
only on sufferance".
Then we corne to hlr. Kanc of Senegal, same Session, same Committee,
277th hleeting, at pagego, ina paragraph numbered 17, and 1 quote from
the body of it:
"The movement for inrlependence was sweeping over Africa like
a tidalwave 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 Alr. Akakpo of Togo, same Session s,me Committee,
z8znd Meeting, at page 115:
"It [the South African Covernment] must realize that the wind
of change ~vhichwas 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 hleeting, page 31 :
"The whole of South Africa like Tanganyika and the other former
colonial territories, belonged to the African. The imites there would
have to bow to democracjr and be satisfied with the status of citizen-
ship accorded to al1inhabitants of the country. Those who did not
wish to do so shouldleave 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 overthe whole of South Africa.
This was said explicitly by hfr. Eesaafi of Tunisia. That was on the veryIO0 SOUTH WEST AFRICA
next day in the same Cornmittee at the ~Sth Session, 384th Meeting,
page 37:
"The position of the African countries and of the African Ieaders
in South Africa uTasclear. What they were askirig for must neces-
sarily and logiçally take the form of transfer of powers to the African
population ..."
1 have only two more quotations on this matter before referring to a
general Iist. They are both addresses bu $Ir. Wachuku of Kigeria in the
General Assembly during the 16th and the r7th Sessions. First, the
16th Session, 1034th Plenary Meeting, page 400, paragraph 7: there Mr.
Wachuku spoke of the [+;hite inhabitants of South Africa and he said
that South Africa: ". . . has ohviously made it clear that this microscopic
minority which exists in South Africais not fit to live on that continent".
Then we have the iiext quotation in the 17th Session, 1153rd Plenary
Meeting, at page 513, where he appIied this philosophy to South West
Africa. 1 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 no question of legal-
ity or illegality about iOur law is clear. South West Africa is an
African temtory.
Just to illustrate how these delegates and the petitioners from South
West Africa speak as if with one voice, Imay rernind the Court af hfr.
Kerina's statement in his letter to his associate John hZuundjwa, dated
5 March 1959 and quoted hy Mr. Dahimann in his evidence in the ver-
batim record of 8 October. XI, at page 463. This is n quotation from the
letter:
"Let the stiipid Africnns and Coloured agitators such as Klop-
pers, etc.,etc.. ciicouraged by deceptive White settlers stop preach-.
ing rnulti-racial or partnership in SoutWest Africaat ihe expense
of the African people. We have had enough of these nonsense. Our
position should be made clear to the Whites. iire want South West
Africa back no more no less."
1 have further references to the petitioners but 1am not going to weary
the Court by reading them out. N1ehave, in this exposition dealing with
United Nations soiirces, 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 thc referenccs without any quotationsWe have thought
that it might be convenient in such instances, subjectto your approval,
Mr. President, to pi-epare a list on a loose sheet of paper. which \irehand
in, not asa document forming part of the documentation, but merely
for the conveniencc: of the Registrar, who will then hand it to whaever
types the transcnpt of the evidence, for typing at a particular spot. We
have an identification mark on each one of these lists and 1 propose at
this stage, iftmeets with your approval, to hand in list A, giving refer-
ences to certain statements by hlr. Kerina, ancl the Keverend Markus
Kaoper without quoting from the statements at all. 1 have a copy also
which can be handr:d to the Applicants. Would that be convenient?
The PRESIDENT:1 think you should first hand it to the Applicants
and then 1 shall ask hlr. Moore whether he has any objection to that
course being pursued.
hlr. MOORE M:r. President, Applicants find no objection to this. ADDRESS BY MR. DE VILLIERS IO1
The PRESIDENT:Idet it be donc.
Mr. de VILLIER SSO:this orle, then, is list No. AlThat list concerns
the need ancl the desire to apply a so-called decolonization process in
respect of South West Afrjca. Then wc have list No. B referring to state-
ments by the petitioners hIr. Nujoma, Nr. Kooper, hlr. Kozonguizi, Mr.
Kcrina and Alr. Garoeb. Thal is list No. W ivhich I hand in now.
The PRESIDENT W:ill OU hand a copy to the Applicants? Any objec-
tion, air. Moore?
Rlr. MOORE: LVe find no objection to this, Rlr. President.
$Ir.de 1'1~tiei{s: Now, to revert to the link between al1 this and the
Court action, wc fourid that in the Colonialism Committee, ai the Ggth
Meeting, 8 Augiist 1962, at pages 38-40-for the record I may Say that
the document is numbered AjAC.~ogll~.V. g&there, hlr. Obercmke
of the Soviet Union referred to these proceedings and to "the extra-
ordinary long tirne" taken bp tliem. As 1 have said, the date was
August 1962 . e asked Alr.Kerina:
"What use ïvill therebe in further consideration of this questjon
by the International Court of Justice?"
Mr. Kerina in his reply said, ilztaaliat,lie following:
"We do understand that the question of South West Africa is
not only legal, but political. We also understand that the procccd-
ings are now pending hefore the International 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 hnsto be
referred to the United Nations, where we have been petitioning
al1the tirne. ..[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 politicalaction, that both of thern complement
each other."
Wow, it will bt: obvious how well al1 this fits in with the staternents
by Mr. Grimes of Liberia, to which 1 have referred twice, to th~cffect
that the action represents the efforts of the African States through the
Governments of Ethiopia and Liberia to obtain for the people of South
West Africa that which is rightiy theirs.
&Ir. President, this cxpresçion "that which is rightly theirs", as con-
templated by what one might cal1the sponsors of this litigation, h;is now
been so clearly identified. It is Rlack African rule over the whole of
South If7est Africa, no more and no less.
MY. Kerina: Polirth Committee, G.A.,O.R., 16th Session, 1217th Meeting.
20 November I~GI, A/C. qlSR. 1217, p. 377,para. 32: p. 378, para. 41. Fourth
Committee, C.A., O.R., 16th Sessicin, rz4ist hleeting, 7 December 111.549.
Heu. hiarkzts KooprvColonialism Committec, r45tli MeetinA/AC. 10glP.V.145.
9 April 1g63,p.32.
* Air.Nujomn: Foiirth Cornmittee (~7tG.A.),137rst Meeting,?Xovetnbt:r1962,
p. 275.:Ifr. Kooper: Fourth Committee. 16tG.A. (1961).rx41st AIeeting1). 550;
Fourth Cominittcc (16th C.A.!, lzqrst AIeeti7gDecember 196r. p. 550.11,fKo-
aonguizi(SWAXU) :Pourth Committee, 16th Session. 1219th Neetin21Xovember
1961, p. 393, par44. Jlr.I<erilzCommittee on South West Africa (AlAc. 73/SR,
121) p.4: A/AC: 7313 (Seventh Seasion). g Septernberg60. p. Io (Committee on
1961; Fourth Cornrnittcc, 15th Session, 1098th hlccting, g March 1961. Mv. Garaeh:
Special Cornmittee for S.W.A.IithMeeting. 30 july 1962(.4/AC. rio/SliIr).IO2 SOUTH WEST AFRICA
1promised to revert on this subject to some of the material with ~Yhich
we dealt in the Counter-BIemoriat, in the passages to which I referred
yesterday. 1 think it was about II, page 446,
1 should like 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 Monrovia
Conference of Foreign Ministers of Independent African States held in
1959a ,t which both the Applicants were represented and we quote first
frorn an opening address at this conference by the President of Liberia.
There he said, amongst others:
"In our re1:~tionshipswith non-self-governing territories, what
is most important to us isthe 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 even in the Counter-
Memorial and 1 shall read only the third paragraph with the introduc-
tion, which says thii:
"The Conference of Independent African States,
Deeply concerned by the situation in the territory of South-
West Africa,
'
3. ~~ieals to thé~nited Nations to fi axdate for theindePen:
dence of the territory of South West Africa."
That is the second rnatter to which 1 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, tvhich again included
the two Applicants, at its meeting in Addis Ababa on 22 to 25 May 1963.
Extensive portions of the remlution, in so far as relevant, are quoted
al]t.should like to read some of it for purposes of the present argument.
The heading is Agenda item II: Decolonizationand it starts off by
reading :
"The Summit Conference of Independent African States.. .
Havilig consideredali aspects of the questions of decolonization.
Umnimously convinced of the imperious and urgent necessity
of CO-ordinating and intensifying their efîorts to accelerate the
unconditional attainment of national independence by au African
territories still under foreign domination;
Reafirming that it is the duty of al1African Independent States
and independencede;t peoples in Africa in their struggle for freedom
[1omit some of the next paragraphs]
Having agreed unanirnously to concert and CO-ordinatetheir ef-
forts and action in this field, and to this end have decided on the
foiiowing measirres:
[I propose to read to the Court the second and fifth of those measures]
2.Invites the colonial powers to take the necessary measures for
the irnrnediate application of the Ueclaration on the Granting of
Independence to Colonial Countries and Peoples; and insists that ADDRESÇ BY MR. DE VILLIERS I"3
their determination to rnaintain colonies or semi-colonies in Africa
constitutes a menace to the peace of the continent;
j. ~en&rnts furthér, that the territor; of South-West ~fiica iç
an African territory under international mandate and that any
attempt by the Republic of South Africa to annex it would bere-
garded as an act of aggression; Reafirms also its deterrnination to
render al1necessary support to the second phase of the South-West
Africa case before the International Court of Justice; Reafirms
[stiU] further, the inalienabie 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 considerecl by the Conference in al1 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 isdealt with-part and parce1 of the same question in the
very same resolution.
Secondly, blr. Yresident, wefind that support to be rendered in regard
to this court action is seen as one ofthe measures decided upon as con-
certed and CO-ordinatedmeasures in this field.
Thirdly, Mr. Piesident, the goal in respect of South West Afnca is
stated as being the inalienable right of the people ofSouth West Africa
to self-determination and independence. That by this is not meant the
same as the concept bvhich tlie South African Governmcnt has of self-
deterrnination and, if they so wish, independence for each one of the
various peoples of South Wt:st 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 \ve have seen from other
quotations before, but as is also clear fromthe context of this very reso-
lution because, Mr. President, there is no reference to the peoples of
South Iirest Africa; this is spokeof as the inalienable right of the people ,
of South West Africa; secondly, we find that the colonial Powers are
invited to take the necessary rneasures for the immediate application
of the declaration on the granting of independence to colonial countries
and peoples, andthis was the year 1963.Mr. President, that declaration,
ifthe Court would recall. was adopted in 1960 ,nd 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 1 refer the Court to the declaration itself; it has been referred
to before and is resolution 1514 of the 15th Session. 1 do not wish to
read any portioir of it except this,in paragraph 5 of the operative por-
tion, in which tlie General Assembly declares that-
"lmrnediate stepç shall be taken, in Trust and Non-Self-Govern-
ing Territories or al1 other territories which Iiave not yet attained
independence, to trançfer ail powers to the peoples of those terri-1°4 SOUTH WEST AFRICA
tories, without any conditions or reservations, in accordance with
their freely espressed will and desire, without an' distinction as
to race, creed or colour, in order to enable them to enjoy complete
independence and freedom." (C.A., O.R.,Fifteenth Sess., Sup. No.
16 (A/4684)- p. 67.1
Whatever arnbigiiity there might be in this formulation, hlr. President,
as to what esactly this concept of independence was, and self-determina-
tion as applied to the people of Soutli West Africa, is surely removed
altogether in the Iater 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. 1shall read only two brief portions of it: the introductory words
state that-
"The General Assembly, recalli~zgits resolution 1514 (XV) of 14
Ilecember 1960 entitled 'Declaratio~~on the granting of indepen-
dence to colonial countries and peoples' ... [and recalling various
other resolutions]"(G.A.,O.R., 16th Sess., Suppl. No. 17 (A/g~oo),
P. 39).
and then I skip the rest of the preamble, Mr. President, which we have
referred to several tirnes, and we corne to the operative portion, para-
graph 2:
"Decides to establish a United Nations Special Committee for
South West Africa ... whose task will be to achieve, in consulta-
tion with the >fandatory Power, the following objectives:"
and objective (e)ri:ads:
"Preparations for general elections to the Legislative Assembly,
based on universal adult suffrage, to be held as soon as possible
under the supcrvision and control of the United Nations;" (G.A.,
O.R., 16th Sess., Sup. Ko.17 (A/groo), p. 40).
So, hlr. President. that is where we stand, and that is the light which
is tlirown on this resolution during the next year at the Addis Ababa
Conference. 1may point out that this resolution 1702, of the 16th Ses-
sion, was known in the comrnittee stages as draft resolution AICqlL7rqj
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 staternent by >Ir. Diallo, of Mali, in the Fourth
Committee, 1245th Meeting, paragraph 4.
In the next year, ;\Ir. President, there was resolution 1805, of the Seven-
teenth Session, again specifically on the question of South West Africa,
and the only factor to which 1wish to refes in this resolution is that the
previous one, 1702, of the Sixteenth Session, was specifically recalled
and reaffirmed in the general tenor of the resolution-1 do not think 1
have to read further from that. Further concrete steps were proposcd
but this principle of demanding eiections on the basis of universal adult
suffrage in South \Vest Africa stood. It appears that the draft resolution
in this case was spcinsored by the African-Asian group, according to a
statement made by Mr. Purevjal of Mongolia, in the Fourth Committec,
1386th Meeting, paragraph I :
"Mr. Purevjirl (Alongolia), speaking as the chairman of the hfri- ADDRESS BY MR. DE VILLIERS I"5
can-Asian group, subrnitted draft resolution. .. [and the number
is quoted] ori behalf of th;it group. The hlongolian delegation entire-
ly endorsed the test, which espresçed the views of the members
of the African-Asian group on the question of South West Africa.. ."
And then, inparagraph z, we read:
"Mr. Arteh (Somalia), chairman of the drafting cornmittee of the
African-Asinn group, introduced the draft resolution. The text
was wholeheartedly supported by every member of the group. .."
So, Alr. President, no doubt can reniain about these objectives. This is
the situation whicli we find at the United Kations; 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.
May 1 Say, Mr. President, that when we speak of this campaign, in
which the group of African States is so particulnrly active, wedo not
do so with any pleasure at all; it is noa pleasant matter to refer to; we
do so because we have to. Despite everything that has happened in this
cainpaign, the attitude of the South African Governnient has always
been that it seeks friendship with other countries and, in particular,
with other countries on the llfrican continent.
The attitudeof our political leaders has been expressed several times,
and thatthat is the attitude of the Soutli African people also would have
becorne clear to the Court froin the evidence which has been given here
by witnesses frorn South Africa.
South Africa's attitude is not that it wants to dominate on the African
continent-that the Prime hIinistcr, Dr. Verwoerd, has said several
times. I-Iedoes not even Iike the phraseology of takingalead or a leading
role on the African continent because, he sa', why shoiild 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
common concern, mntters of cominon intcrest; there is certainly a feeling
that South Africa, in al1 humility, has a contribution to make in this
respect, and, after the Court has heard the evidence, and observed the
personalitiesof men like Dr. Eiselen, Dr. Bruwer, Mr. Pcpler, and Dr.
Van Zÿl, to mention only a few, it will become quite dear that South
Africa has people who should be able to make a contribution in that
respect.
On an earlier occasion, Mr. President, 1 spoke of Iarge quantities of
goodwill waiting to be applied over the colour lines under situations
where one group wjll not feel itself threatened or oppressedby another.
1 am quite sure, Mr. President, that from these witnesses the Court would
have found some indication of the existence of that goodwill, and not
only from them but also froin the other witnesscs from South Africa
who are not in any way in the service of the Governmcnt, men like hIr.
Cillie, thRev. BIr. Gcricke, Professor Krogh and Professor Rautenbach.
May 1,Mr. President, read to the Court just a brief estract from an
acldress on thisparticular sub,ject by the Prime Ministcr, Dr. Verwoerd,
on 16 May 1962: 1 am quoting from a. work publislied 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 voIurne because it isivrittcnin Afrikaans, and in referring to
the original sources, particularlin Nansurd, in Parliament, and so forth,106 SOUTH WEST AFRICA
we could find officia1English translations or sometimes the original test
\vas in English,ço 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 heid in
Johannesburg in May 1962, this particular quotation is at page LV of
the foreword, and it is jn English:
"1am quite convinccd in my own mind, that as time goes by and
present feelings subside, the services which South Africa can render
through itç specialized knocvledge of African conditions, and its
proximity to African States, wiil prove more attractive than al1
the bad feelings which exist at present.
For that reason 1 am firrnly convinced th& we should retain
proper self-control ... In the course of tirne, change must corne.
The change will corne but not through any words of ours .. It will
be the deed of progress here, the evcr-remaining willingness to aid
conditions of Africa with African States-such-howfactors, deeds-will
ultimately change the attitudes with which we are faced today."
That is the attitude of the South African Government, Mr. President,
and of the South African people. It wss referred to also at the United
Nations by hlr. Jooste, Head of the South African delegation, at the
Eighteenth Sessionof the UnitedNations, at the 1236th Ylenary Meeting,
during the general debate on IO October rg63. 1 do not wish to quote
dealt with there quite extensively and very ably by RIr.Jooste., which is
hir. President, it does not help, meanwhile, to close our eyes to reality
and if one is to have a proper appreciation of what haç happened at the
United Nations in regard to these resolutions relied upon by the Appli-
cants, if one hasto have a proper appreciation of the real objectives and
motivations involved in these proceedings, then one must look reality
inthe face.
At this point, 1 wish to hand over to a younger and abler man; with
yQUrleave, Mr. President, my learned friend, Jfr.van Rooyen, 1411take
over the further portion of this argument. 27. ADDRESS BY MR. VAN ROOYEN
COUNSELFOR THE GOVERNhiENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 27 AND 28 OCTOBER 196.5
AIr. President, my learned 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 cIear Tvecan
proceed to examine the quality of the criticism which is levelled against
Kespondent as a part of this carnpaign as well asthe factual sources on
which such criticism iç based.
As fas as the quality of criticism is concerned, it will become evident
during our treatment of this subject that the carnpaign is characterized
by emotional outbursts rather.than by any attempt at any objective
assessment of the factsand that the most fantastic assertions of fact are
utilized as a basis for violent attacks upon Respondent's policies and
actions. For example, Respoiident's policies are very often sumrnarily
stigmatized as being inhuman, oppressive, aimed at the domination of
the FVhitesover the non-Whites; the rnernbers of Respondent's Govern-
ment are referreclto asFascists or Nazis and there are repeated references
to supposed murders and massacres of Africanç in South West Africa.
We proceed to give some illustrative quotations. With the exception of
the first one,aiithe examples are taken from the 1964, 19th Session of
the General Açsembly.
As far as the Applicant States are concerned, first a quotation from
hlr. Yifru of Ethiopia, from the 16th Session, document A/PV.IOPO,
page 177 , f2 October 1961,in Plenary Sessions, paragraph 134:
"The Union Government, in violation of the mandate, has made
South West Africa in recent years a prison ce11by garrisoning armed
forceson al1the frontiers of the land so as ta continue its unhiiidered
massacre, imprisonment and, in short, wholesale suppression of the
innocent inhabitants of the internationalterritory."
The Court williind similar expressions used by the same speaker also
in the Provisional Record of the 19th Session, document A/PV.IZ~~,
page 31,on 7 December 1964 I do not propose to read that but to pass
on to Air.Grimes of Liberia.
In the Provisioaal Record,19th Session, document AIPv.1300, pages
83 and 84-Sj,of II December 1964,Mr. Grimes says the following:
"The abominable and iniquitous policy of apartheid practised by
the RepubIic of South Africa remains a cruel and stubborn problem
and a cancerous blight on the continent of Africa. African States
will not relent in theirforts to bring about the end of this repressive
systern. [1skia fewwords and continue] The injustice,pain, msery,
suffering and death inflicted on innocent Africans by a horrible
system which is indirect- supported and strengthened by the poli:
cies of some Members of this Organization are boiind tu have serious
repercussions,"
A fewesamples of the typical type ofstaternent made by other African
States follo\v:108 SOUTH WEST AFRICA
&Ir.Lozes of Ualiomey, in the P~ovtsio~ta lecord 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
situatioii prevails. Three million white racists keeIO million human
beings under the abject system ofapartheid. [He went on to refer to:]
this institutioiializedexpression 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 deliberateIy and coldly perpetrated by the police
Government of the Republic of South Africa . . . [to:] our horror at
the unspeaknble things ... [and, finally, to extensioby the Pretoria
Governrnent, ofl its oppressive apartheid regime 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 AlPV.1zg3, page Sr,of 7 December 1964 are cited:
"However. the biggest problem isposed by South Africa and itç
policy of apartheid. The Uraconian laws, the massacres, the trumped-
up charges, the trials and sentences ofinnocent people are unaccept-
able and are reminiscent of Nazi Germany. 13utthe indifference, nay
the tacit support, of the Western Powers for so atrocious a system
is perhaps the most heinous of crimes comrnitted against Africa
since the days of the slave trade."
TtlrAvaro of Gabon, same session, document A/PV. I301, pages 67-68,
of 14 December 1964 said:
"In South Africa, the apartheid policy of Dr. Verwoerd likewise
becomes more and more savage . . .
So long 'asrnillions of human beings continue to be oppressed,
despised and trcated as pariahs. Africa will know no peace and the
peace of the rvrirldwill remain imperilled."
He went on to describe the so-called Pretoria Government's policy as
"their insane and criminal policy".
This, Mr. President, isby no rnenns the full 1964 list for speakers from
African territories.I shall give rcferences toa number of others, without
quoting them, who speak in esactly the sarne vein; but first just two
brief estracts from statements by representatives of allies of the in-
dependent African States in this campaign.
hlr. Singh of India. same session, document AjPv.1301, pages 57-jS,
of 14 December 1964 said: "The Government of South Africa isblindly
stepping from one heinous act to another"; and hlr. Romani of Malaysia,
same session, docunient AJPv.1306, page 43, of 18December 1964. spoke
of the "sacred cause of ridding ïiumanity of the sharne of apartheid",
and went on to describe the policy as "this crime against hurnanity".
Kow, BIr.Yresident, I do not intend wearying the Court with further
examples, staternents in this vein but we have also prepared a list which
1 shall hand in as Iist Cl,containing statements of a similar nature.
General Assambly:
Mr. Tchicelie(Congo. Brazzaviil: G,A.,O.R., 16thSession,..Z(P.V1037. PP.99,
103-104.16 October I~GI (Plenary).
Mt. PtcpCampu(Ghana): (;.A., U.B.t7th Session, A/l'.I143, p.345, 5 October
1962 (Plenary). ADDRESS RY MR. VAN ROOYEN
1°9
THEPRESIDEXT F:irst hand it to Mr. Moore, the Agent for the -4ppli-
cants.
1s there any objection, Alr. Bioore?
hlr. &IOOREh :lr. President, the Applicants find no objection to that.
The PRESIDBNT:Thank yoii, IlIr. Moore.
Alr. VAN T~OOYEN FinaIly, Mr. President, an excellent example of
what are subnlit is certainl aybiascd and emotional approach towards
South Africa's policies is afforded by a speech delivered by Mr. Achkar,
the representative of Guinea. during the Plenary, Session of the General
Assembly in December 1964. JIr. Achkar spoke in reply to a speech by
Dr. Muller, the South Africaii Minister of Foreign Aflairs. Dr. Nuller
had given an esposition of the facts, the motives and the objectives of
Respondent's policies in the s;me vein as that in which staternents had
been delivercd and argued hefore this Court. The answer thcreto by
Mr. Achkar of Guinea is representative of the reaction of the African
States to that exposition. In the Provisional Record of the 19th Session,
document A/I'V.r3oS, pages 78-82 of 21 December 1964, he said the
following:
"We took note of the speech made this rnorning by a representa-
tive [that \vas Dr. ~Iullcr] who claims to be the representative of an
African country .. . a speech in which the orator endeavomed to
defend from this rostruni. with the audacity whirh characterizes
the spokesrnen of any fnscist regime, a policy which lias bcen con-
demned by the entire \vorltl. It is \t+ell-knownthat the General As-
sembly and the Security Council of the United Nations have con-
stantly requested those \vho govern the South African scttlers to
respect the obligations incumbent upon them under the Charter,
to renounce their policy of apartheid, aiid to put an end tothe system
of brutal repression yractised against the adversaries of that abject
and humiliating policy."
And so it went on and on, with references to: "the most hlachiavellian
tribalism"; to: "that hateful form of colonialism"; and to: "inhuman
measures of unprecedented gi-avity with a view to intensif>-ing racial
discrimi~iation and oppression . .."
Now, Mr. President, the question immediately arises, on which sources
are these rillcgaticinsbased? Surely, one can argile, these vehernent charges
iIlr. :lfnzi(1-ibya): P.R.,19thSession, A1P.V. 1-96,pp. IS-20, g Deccrnber 1964
(Plenary).
:?Ir.Ditaleh (Somalia): P.H.,iqtli SessionA1P.V. Ilgo. p. ?S. 4Dccember 1964
(Plenary).
AIv. Alnhnzoud Riad (1i.A.R.)P.H. ,9th Sessicin, A/I'.1298,pp. 28-30,9 Decem-
ber 1g6.(.
MY. Katnbourr ('fnr~zani:P.R., 19th Session,A/l'.\'i293,p. 76.ro Dccemher 1964
(Plenary).
MY. Rudabiui (Malawi): P.H., 19th Session, A1P.V.1297. p. .zG,;December 1964.
Nr. Chalinefs (Haiti): P.R., igth Session.A/I'.V. 1304,p. 7, 16 Ilecember 1964
(Plenary).
Special Political Corrr~nittee
MY.Alernayehoo (Ethiopia): (;.AO.R.,I th Session, A/SPC!SR. i 3, p. 57. rg Janu-
ary 1957.
MY. Thinrn (hlali): C.A., O.R., rgtti Session, A/SPC!Sl<. 235, p29351ard1i1961.
Mr. 1Carrrii.atilleke(Ceyl: G.A.,0.R.. 12th Session. AISPCISH. 56. 1171, 31 Oc-
tober 1957.II0 SOUTH WEST AFRICA
of brutal oppression cannot be maintained year after year without some
factual basis. \Veneed not seek far for an answer. The violent attacks on
Respondent's administration of South West Africa, in so far as they pur-
port to have any factual basis at all, are mere echoes of the allegations
made by the petitioners.
It is impossible, in our submission, to understnnd the true nature of the
proceedingç during the past IO to12 years in the United Nations organs
relative to conditions in South \Vest Africa without fully appreciating
the role which petitioners and petitions play and have played in the
deliberations of such organs. \\le haïe already showri the existence of a
campaign against &luth Africa as well asthe objectives of the campaign.
It has been vigorousIy conducted in the United Nations organs and we
shall, during the coiirse of this address, dernonstrate that the mcthod by
which it has been conducted has progressively centred more and niore
around the so-cnlled evidence of the petitioners. It will appear clearly
that they are intimately connected with this carnpaign and have played
and still play a pivota1 part in the propagation of the carnpaign in
United Kations bodies.
A few points must therefore be made regarding the petitioners, their
objectives, and especially the rnethods ernployed 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-
Mernorial, Book VIII, IV, and also frorn the evidence of Mr. Dlihlrnann.
Secondly, what are their objectives? This was also dealt with fully in
the Counter-hIernorja1,IV, pages 36-46, and in Mr. Uahlmann's evidence
before this Court. It was, with submission, clearly demonstrated that
their objective was to seize political power and achieve African rule
over the ~vholeof 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, ashas already been demonstrated and as will more fully appear in
the treatment as we continue. Respondent's exposition of fact in the
Counter-Mernorial was not controverted by the Applicants and today
stands adrnitted. The cross-examination of Mr. Uahlrnann on this
particular aspect, that is, as far as the objectivesthe petitioners were
concerned, was very faint and this faint cross-examination resulted, in
Our submission, only in air. Dahlmann 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 petitioncrs in the propagation of this campaign,
we find that this was alsdealt with in the Counter-AIemorial, TV, pages
38-46, and in Mr.Dahlmann's evidence which alsostands uncontroverted.
There are various methods by which the petitioners conduct theircam-
paign but the one basically relevant to our present enquiry is described
at IV, pages 45-46 cifthe Counter-3lernorial. as follows:
"In order to influence international opinion, the leaders of the
aforesaid campaign [that is referring to the pctitioners] adopted a
sustem of floocling the world in general, and the United Nations
Organization in particular, with continuous allegations of suppres-
sion and atrocities ailegedly co~nmitted by Respondent. This \vas
done mainly by the submission of written and oral petitions to the
United Nations Organization." ADDRESS BY MR. VAN ROOYEN III
Xow, &Ir.President, it is espccially in tliis field, this particular ~nethod
by which the carnpaign is being conducted, that the common purpose
and close association between the delegations of Stateand the petition-
ers, xvho are united in the carnpaign against Respondent, are strikingly
in evidence. It will apyear(a) that the petitioners are invited to give
evidence as to conditions in the Territory(6) that these petitioners are
free to Say whatever they want, cven the wildest possible allegations,
and that this evidence isthen accepted unquestioningly and echoed un-
reservedlp; (c) that any contradiction of this so-caIled evidence by the
petitioners which casts doubt on the veracity of the evidenceis silenced
or ignored. In short, the petitioners are evpected to suppiy and theydo
supply the ammunition, and the representatives ofthe States which take
the lead in the campaign agairist 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
purportedl are. We shall proceed shortly to deal with these propositions
more close Yy and we shall afford conclusive proof of the trüth of these
propositions, but before we proceed to this point the following question
automatically arises: ivhat measure of reliancecan be placed on the
evidence of this small group of petitioners? The answer, Mr. President,
is singularly clear, aftardue study of the Counter-Mernorial, IV, pages
1-46, and Mr. Dahlmann's evidence, in the verbatim record, XI,and wi1l
becorne even more impressive as we continue. No reliance can be placed
on their statements or their evidence.
Let USvery briefly review the unfortunate esperience of the Applicants
in this case. They started off in the Memorials, ChapterVI, 1, page 167
and further. by relying on a number of estracts from petitions. At that
stage they relied, as they stated it: on "the cumulativeffect arid thruçt
of the petitions, receivefrom so wide a variety ofindependent sources"
(1,p. 167) . t that stage they also advanced the proposition that the
extracts quotcd by them illustrated "The manner in which the daily
lives of the inhabitants are affecte(ibid.)Respondentdealt thoroughly
with this aspect in the Counter-Memorjal, 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 reIied upon was fully
dealt with, the true facts were set out and the gross distortions and pure
fabrications contained inthe estracts reljeupon were exposed. The Ap
plicants did not controvert this demonstration in their Reply. indeed,
the Reply was totally silent on this point.
Now, of course, at the presi:nt stage the Applicants have for purposes
of this case admitted as true al1Respondent's factual allegations in the
pleadings, unless specifically denied, and nothing with regard to this ex-
position in the Counter-Memorial, IV, has been denied by the Applicants.
Tt therefore stands admitted as true and common cause.
It follows, >Ir. President,by necessary implication, that Applicants
tacitly also admit forpurposes of this case that many of the allegations
of thepetitioners are indefeiisiblfalse. Therc can beno middle ground.
hlany of the allegations of the petitioners dealt with in BoVllI of the
Counter-Mernorial are so dianietricaliy opposed to the true facts set out
by Respondent that once the truth of Respondent's factual exposition
isadmitted, and therefore comrnon cause, the unreliability of the peti-
tioners' staternents is incontrovertible.II2 SOUTH WEST AFRlCA
1 am not going to weary the Court with an analysis of al1the distortions
and fabricationsesposed in Book VIII of the Counter-Mernorial. A mere
reading of the volume from IV, pages 3-37 will suffice to make the point
obvious. 1 wish to mention but one esample-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 173-17 of
the Memorials, 1, Applicants quoted and relied on a statement allegedly
corning 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 were exposed and corrected in
the Counter-Mernorial, IV, frorn pages23-31 ,ow looking at the petition,
it appeared that the petition in question Iiad been forwardeto the Com-
mittee on South ilTestAfrica by the Reverend afichael Scott, who stated
"1 am sending the statement to you direct as I am not sure whether you
have received the original". The Reverend &Ir. Scott's letter was dated
22 July 1958.The originiil did arrive. It was dat29 July 1958, that is,
it purported to have bcen written one wcek after the lieverend Michael
Scotthad forwarded 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 Michael Scott, but only up to a point. An entirely new tevt
had been substituted as far as the alIegcd township regulations werecon-
cerned, differing totally from the text of the copy whichhad been trans-
mitted by the Reverend Michael Scott, and not containing al1these pure
fabrications. Now what could be the explanation, Mr. President, ofthis
sort of occurrence? Perhaps Chief Hosea Kutako et al.had first drafted
the petition, had then senta copy of a first draft tothe Reverend 3Iichael
Scott, and had thereafter felt thatafter allthe portion dealing with the
regulations was dernonstrably untrue on its face, ancl had substituted it
with a new section when posting the original-that niight be one cx-
planation. 13ut thel-c could of course also be another explanation: thiç
could perhaps have been one of those petitions. to which hlr. 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 thatit woulclbe signed as drakvnup ovcrscas that a copy was
sent on in the meantime to the United Nations; but thst when this peti-
tion arrived in South West Africa for signature bp Chief Hosea Kutako
it was felt that these allegations about the location regulatiwere going
tao far, afid that a substitution had then taken place leading to thiun-
fortunate difference between the copy and the original, ~vhichwas dated
a week later. However, that might be, tlie fact is that the ïalse version
was transmitted, and it i~npressed not only the Cornmittee on South
West Africa; it imyiressed the Applicants to a sufficient extent to make
them quote it in their hlemorials and relp on it in their Memorials. This
whole rnatter was referred-to, if the Court lrishto read in greater detail
and refer to the documents concerned, in the Counter-JIernorial, IV, on
pages 30-31.
Ihave already mentioned that in the Reply the Applicants remained
entirely silent as to the Respondeiit's exposure in the Counter-hlemorial
of what ww going on in connection witii the petitioners and the type of
evidence they were transrnitting. 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 petitionç and said: ADDRESS BY MIZ. VAN ROOYEN 1I3
"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 daily lives of the inhabitants
are affected by the systematic irnplementation of the apartheid
policy. Esainples are set out in the ùlernorials, 1,page 167 and
following."
Then foilows this strange state~ncnt :
"The Applicants have riot relied upon the accuracy of statements
in such petitions; the Applicants have cited such petitions for the
bearing they may have as confirmatory of the reasonably predjctnble
consequences of the practices and policies which are undisputcd."
Mr. Preçident, it is indeed extren~ely difficult forus to understand how,
if the accuracy of the statements is not relied upon. as said in this
quotation-in other words, on thc hypothesis thst they are false-they
could conceivnbly be viewed as confirmatory of anything. However, in
view of the admission of al1facts in Kespondent's pleadings as triie, and
in view of the exposition in the Counter-kiemorial, and in view of
>Ir. Dahlrnann's evidence, 1 submit that it is quite clear that the Appli-
cants have very good reason for açserting that the- do not rely on the
accuracy of staternents in the petitions.
Mr. President, just before continuing, and revertiiig to these lists to
which we shrill refer from tiaie to time and whicli we wish to 1-i:indin
merely for the yurpose of typing into the record and to Save the time of
tedious repetition, we have, orFerthe adjournment, handed copies of ail
the lists to which we propose to refer, to the Applicaiits and also to the
Kegistrar, and tliere is no objection to this procediire being followed.
In future, therefore. 1 propose to refer merely to the list for purposes
of identification.
Now, hfr. Prcsidetit, we were dealing with the measure of relirrbility
of the resolutioris, or rather of the petitions, and the statements by
petitioners, before the adjournment, and we mride the point that an
exposition showing their unreliabiiity is clearly to be deduced from
Book VI11 of the Counter-Alernorial. Ifany further demonstration and
confirmation is necessary, Mr. President, 1 need refer only to the evidence
of Mr. Dahlmanri and specjfically to one passage in the verbatim record
of 8 October at XI, page 480, where Mr. Dahlmann said the following:
"To us in Soiith West Africa,it is sometimes very hard to uncler-
stand these petitions.Many of them, whether they corne frorn within
South \irest Africa or £rom abroad, contain false statements and
seriouç distortions and exaggerations of the real situation. Only to
name a few which are made very often, for esample, that there is
a large scale of militarization in South West Africa, there is a
missile trncking station, that the non-lt'hitcs within the territory
live in conditions of slavcry, that genocide is cornmitted against
the non-Lhites. that they are being exterminated or rnurdered, that
they have no schools, no hospitals."
It should be observed, ùIr. President, that the Applicants tlidnot
even attempt to attack this evidence in cross-examination. The Agent
for the Applica~its merely asked Mr. Dahlmann whether he sought to
have the Coiirt infer that petitioners were deliberately telling untrutlis, to
which Mr. Dahlrriann repIied at XI, pages 568-569, iithe verbatim record 'II4 SOUTH WEST AFRICA
"hlr. President, it is difficult to say which motive is behind this.
I can only compare the petition and the true facts. 'l'hatis the
only thing 1 can say. LTihat their motives are and whether they
do this deliberntelÿ, or as professionals, 1 think this is too persona1
a view."
Mr. Yresident, ii u7asperhaps Mr. Dahlmann's sense of propriety as
a witness luhich made him desist from expressing a view in this matter,
for, if regard is had to the natureof the statemcnts made by the peti-
tioners, such as that genocide is being comrnitted, 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 thatthe petitioners couldhave been innocently mistaken.
Now this. hlr. ELresident,then brings us to the next question, and
that is:Fowthat itha 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 isthe cruxof thi snquiry. The whole purpose of this treatment is
that we intend to show to the Court that the factual baçis 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 etridence
cannot be relied on for any purpose whatsoever, and also cannot be
relied onas establishing a nom andlor standards of the nature contended
for by the Applicaritsin this case.
So this then brings us to the crus: Ihat reliance was placed on the
untrue evidence of the petitionersin the United Nations? Aiid we shall
find,Mr. President, duririg our treatment of this matter, that the greatest
importance was attached tothe allegations of the titioners before United
Nations organs, that even the moçt fanciful a Ple"ations were unclues-
tioningly echoed as establishing true fact, and also that the heavy
reliance which was placed on their evidence played an estremel. im-
portant role 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 between the ideas
espresçed, and the manner of espressing them in the debates on South
IlTestAfrica in the various organs of the United Xations, that is,on the
one hand, between the views as espressed by the petitioners and. on
the other hand, the views expressed by the delegates within these United
Nations organs. Indeed, in many respects, the representatives of the
leaders of the campaign at the United Nations and the petitioners from
South West Africa speak aswith one voice. This, hlr. President, is,in
our submission. not surprising, in view of the cornmon purpose to which
we have referred earlier.
Now, what we propose to do now is to examine how this common
purpose functions in practice. We shall deal witli this aspeby showing
how certain fantastic statements readily occur in the evidence of the
petitioners, and how they are accepted and echoed and acted upon in
the United Nations organs, paving the way for acceptance ofa resolution
condemning Respondent's administration of the Territor!-. It is, of
course, Mr. President, impossible to give a full picture. That ivouId take
days and days. In the emotional and biased setting of the campaign ADDRESS BY MR. VAN ROOYEN II.5
against Respondent with \.hich both the petitioners and certain delega-
tions at the United Nations are associated, the attacks on Respondent
and its policies bristle mith factual inaccuracies, with distortionsand
with baseless accusations. \ire propose to deal shortly only with a few
categories of charges whichegr~larlydominate the discussions.We intend,
first, to cita few short statements of the petitioners as regards each
category, and then to show how these have been repeated and echoed
in the debatesin the United Kations organs.
The first category relates tohose attacks which characterize Respon-
dent's policiesas being a policy of genocide or equal to genocide.
\Ve find these allegations occurring with monotonous regularity
throughout the attacks on Respondent. Respondent's policies are charac-
terized as racial cxterminatiori, as having the objective of the pliysical
destruction of s nation, and that it is in fact plainly and sirnpaypolicy
of genocide. Thcse ailegationç. Mr. President, are so preposterous that
tliey require reaily no refutation, especially in the light of the indisput-
able facts which appear from the voluminous pleadings handed down to
this Coiirtby Respondent and the uncontroverted evidence which has
been delivered before this Court.
Xow, I propose first to give some random esamples of statements by
the petitioners. First, Rlr. Ngavirue ofSIVANU, quoted, and 1 might
state parentheticnlly, quoted apparently with approval, in the report of
the Comrnittee on South West Airica to the 16th Session of the General
Assembly in 1961-i.e., 16th Session, Supplement xzA, document A14926
at page 17, paragraph 120:
"IIr. Xgavirue stated that while it was obvious that there was
a great neeclfor welfare services, one cauld not expect philanthropy
from the ruthiess South African Government which was bent on
the task of doinganything possible that would directly or indirectly
esterminatethe indigenous population. Hence, there was absolutely
nothing done to promote 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 ofSWABU and is living at present in
London. In a vcrbatim statcment before the Fourth Comrnittee of the
United Bations.the 904th-906th Meetings, 14th Session, 1960 at page 19,
he said-
"IVlien South West Afi-icawill have reached a stage where tech-
nical rneans of production replaces hurnan labour, the present trend
indicates that the delibernte annihilation of the entire Africa~ipop-
ulation will not be out of consideration." (Verbatim statement as
circulated.)
JZr. Kerina, who waç at that tirne the President of the OvamboIand
Peoples' Organization, in October 1959, before the 4th Comrnittee, the
909th Meeting of the 14th Sesijiorisriid:
". ...@dificial conditions were created-with the drought as pretext
-in order to put hundreds of thousands of hurnan beings at the
rnercyof the Goïremment and to wjpe out a race . .".
And the same author, &Ir.Kerina, atthe 1051st Meeting of the Fourth
Cornmittee, 15th Session,1960,page 5, said this:
"The Soiith African Gcivernment has committed repeated crimesI16 SOUTH WEST AFK~CA
against our peopIe and humanity. There is no defence for their
actions in our country. They claim Christianity and civilization,
ÿet they have killed and are continuing with their systematic cam-
paign of estermination of Our people." (Verbatim staternent as
circulatcd.)
And finally, Mr. Mbaeva, of SWANU also, in a verbatim statement
before the Colonialism Conimittee-i.e., the Committee of Twenty-four-
at the 255th Meeting, on S May 1964 ,hilst referring tothe Odendaal
Commission report, stated :
"The Commission was appointed to devise means through which
a large number of Africans or non-Whites should be e'rtcrminated
througl-i starva.tion under the guise of bcing developed. . . . Unless
the United Nations takes immediate action to prevent Verwoerd and
his gang frorn carrying out their programme for racial genocide,
there willbe a serious danger that may be beyoynd the control of
this Organization." (A/AC/IO~/P.V. z j5, pp. 26,27.)
1 think, $Ir. President, that that is enough to illustrate the type of
refrain of tlie nllegntion of genocide runningthrough the allegations of
the petitioners. Now, how is this reacted to within the organs of the
United Nations?
First may 1 give a quotation from a representative of the Applicant
States, hlr. llasumu Johnson of Liberia, in General Assembly, OGcial
Records, 18th Session, document A/SPC/SR 385, pages 40 and 41, which
was in answer to a refutation by Mr. Jooste, the Chief Delcgate of South
Africa, on that occasion as flzr as the factual position was concerned.
hlr. Dasumu Johnson had thisto Say:
"Howcver. it would be a mistake to be lulled by RIT.Jooste's
sweet words, which perhapç represented a stratagem designed to
gain time to ensure the complete annihilation of the Africans in
that explosive area."
Turning tothe Gcneral Assenibly, Mr. Yifru of Ethiopia, in Provisional
Records, 19th Sesçion, A/I).V. 1293, at page 31, of 7 December 1964,
said this:
"Yet, oblivious to its obligations under the Charter, the nurnerous
decisions of the United Nations urging it 'to abolish apartheid, and
the condemnation of most of the rest of the world, theSouth Africa9t
Governmentcold-bloodedlypursues its policy leihich,itrztthis tanta-
mozcntto racialextermina2ion."
The following are a few esamples of statements from other African
States before theSpecial Political Committee: Mr. Baghdelleh of Tangan-
yika, now Tanzania, 17th Session, Document AISPClSR 326, IO October
rghz, paragraph 2,said-
"The Government ofTanganyika catcgorically rejected the polic-y
of apartheid and was ready to support any draft resolution designed
to expell South Africa from the Organization if it persisted in its
policy ofge~zucide.(Italics added.)
And Mr. Sahnoun of hlgeria, 17th Session, Document AISPCISR 339,
30 October 1962, page 69, stated-
"29. The Soiith African Government, blind to everything Save
racism and fascism, was now preparing for a war of extevminatim by ADDRESS BY MR. VAN ROOYEN
II7
building up its armaments with the aid of other countries ..."
(Italics added.)
Nr. Bocoum of Mali, before the General Assernbly, Document A1P.V.
1025, 4 October 1961, page 240, said-
"Ah. Verwoerd's Machiavellianism is now quite unambiguous:
genocide has been officially announced as the programme of the
South African Nationai Party."
And then just to make it absolutely clear. I add a quotation froni sorne
of the Allies in the campaign, llr. Peiris of Cejlon, Ijocument AIL.4/SK
1231, 30 November 1961 ,age 473, stated the folloiving:
"zo. There was also a genuine policy of genocide, because South
Africa had irnposed conditions of life calculated to bring about the
physical dcstruction of a nation. The intention behind South Africa's
gradua1 destruction of the indigcnous peoylcs was to inherit their
land.. ."
MT. Prcsident, 1 feel that 1 have mentioned enough quotations. In
'IDJ'1.spect many more are to he fotind, 1 would refer to the list marked
That brings us, Mr. President, to the next catcgory and that is that
accusations are ofteii made by the petitioners that Respondeilt herds
the non-White pcipulation into concentration camps, that the non-Whites
are treated like anirnals, that they have been retluced to a sub-human
status and that conditions of naked terror exist. A few random examples
of this type are given in the idlowing excerpts: hlr. Kozonguizi, in his
oral statement to the Committee on South West Africa, I 3Iay 1959,
quoted in the Coinmittee's report to the General Assernbly, 14th Session,
Supplernent *JO. 12,Document A/41gr, page 41, said:
"The South African Government ha5 transformed our country
into a huge concentration camp and Our people into slaves, in the
name of its t:xclusive policy of white suprernacy."
Mr. Kerina in the Verbatim Text of the j71st 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 rneans of livelihood. denying them
a voice in the governmt:nt, preventing their social and cultural
developmeni:, and applying brute force. Africanes xcept those ivork-
Forrrlh Corniniltee:
Mr. Gren (IJ.S.S.K.)C.A .O.R., I7 Sess.,AIC.+/SR 137.5,pp. 317-318g Sovember
1962.
Special PoiificaConarnifl:~
MY. Korache~iko IljkrsinianSovii:tSocialiîtKeaublic): G.A., O.R., 12th Scss..
AISPCISR j.+ , .0,29 Octolieri9.57.
AZr.Iiizya (Ukr;ini;~Soviet Socialist lieliublG.A., 0.H.. IithSess.,A!SI:'CISR
13,p.58, 15Jatluary 19j7.
A3r. rlfctldo(Giiatemala): C.A..O.H.,~7th Sess. AISL'CISR333, p. 33,18Cktober
~gGr.
My. Shaka lxepal) : C.A., O.R., 17th Sess., r\/Sf'33G. pp.50-51. October igGz.
ilIr. Shukair(Saudi Arabia) GA.. O.R.. I7th Sess..\/SI'C/SR 338,p. 60.211Octo-
ber 1962.
Jfr. Xaco (Albailia): G..4., O.R., iStSess.,A/SPC/SlI (I'rovisional394, p. 12,
30 October 1963,118 SOUTH WEST AFRICA
ing for Europeans, are herded into concentration camps known in
South African terminology as 'native reserves'."
Mr. President, 1do not wish to weary the Court with more quotations,
1 would refer to the list marked "E"', which contains references to
riurnerous other dlegations in the same vein.
Now once again, let me turn, hTr. President, to how this type of
statement is accepted or portrayed within the United Nations by the
delegations speakirig there. Before the Fourth Committee, Rlr. Gassou
of Togo, during the ~jth Session, 6 December 1960, AlC.41SR. 1076,
page 457, said-
"41. For fourteen years, while the representatives of the Union
Government in the United Nations had engaged in their well-knoxvn
manoeuvres, people in South West Africa hadbeen dying of hunger
or had beefi murdered i.n cowce~uationcantfis. Oppression became
heavier from year to pear and measures such asidifferent educa-
tional systems for IVhites and for non-Whites, with the objectof
destroying the Ajrican intellect,were being introduced." (Italics
added.)
&Ir. President, 1 have quoted one example, there are many that are
typical of that and references are to be found in the list marked "FJS2
Not only are these statements, of course, reflected, Mr. President, in
the speeches and staternents of delegates, they are also reflected in the
reports of the Cornmittee on South West Africa to the General Assembly.
For an example, 1 niake reference to the following extract from the 1961
report concerning the Implementation of General Assernbly resolutions
1568(XV) and 1596 (XV), Document A/4926, page 14. After referring
to the testimony by the petitioners, this report continues:
"roz. From such testimony, it isobvious that. under the opera-
tions of aparlkeid, the Native Afncan is a social outcast and a
prisoner in his own country, denied al1 basic human rights and
'Fourth Comiliitl:e
MY. Nujowa: 105znd Meeting, 15th G.A., 1960, ])p. 3, 5,and G; 1217th Meeting,
16th C.A., 20 Sovember 1961,p. 379, para. 53: 1333th Meeting. 17th G.A.,
iGSovember 1962.
Rev. LW.Kooper: 1050th Meeting. 15th G.A., rqXovember I&O, pp. 13and 303.
Jlr. Jaco6 Kuhangeda: rogznd Meeting, 15thC.A., pp. Iand 4; ~GthSession, 1219th
hleeting, Fourth Cornmittee,21 Xovember 1961,p. 390, para. 16.
2Fo~rihCornmiltee:
AIr. Pttrevja(Mongolin) G.A .O.H., 17th Sess., A/C. 4/SR 1379, 326,1.2November
1962.
Specia! Political Conrmift:e
Jlr. Udovichenho (UlirainianSoviet Socialist Republic): G.A.. O.R., 15th Sess.,
AlSPCiSR 241. p.69, 4 April 1961.
MY. Perera (Ceylon): G.A., O.R., 16th Sess., A/SPC/SR~~I, p53,27 October 1961.
?MY. Kozachenko (Ukrainias Soviet Socialist Repiiblic): G.A.. O.R., 12th Sess.,
AISPC~SR $4, p.60. 29 Octobcr 1957.
ilfrAldunale (Chile): C.A., O.K.13thSess., AISI'CISR 88,p. 16.14 October 1958.
MY.Haseganair (lioumania): C.A., O.R., 16th Sess., A/SPC/SR 274.p. 71. 31 Octo-
ber 1961.
nIr.Juarbe T. Juarbe (Cuba): G.A..O.R., 17th Çess.A/SPC/SR 337,p. 56.26 Oclo-
ber 1962.
hfr. AYCP (Solivia:C.A., O.R., 18th Sess., AjSPCISK 383, p.'9. 14 October 1963.
&Ir. Djerdja (Jugoslavia):G.A., O.K.,18th Sess., AjSPCISK 383. 1)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 onllr purpose and role in life is to serve the
White man. Thus he leads a bare, spare life with no incentive or-
sense of piirpose"
1 turn to the next category, Air. President; it isalso an accusation
which is levclled with monotonous regularity against Respondent, and.
that is that Rcspondent's policies are rooted in racial liatred and ani-
mosity and in a doctrine of White superiority and hfrican infcriority.
A similar charge was made by the Applicants in this case; but of course,
after Respondent had shown in its pleadingç that such accusations were-
devoid of substance (in this respect 1 refer especially to the Counter-
hlemorial, II,pp. 470-471 a,d the Rejoinder, V, pp. 409-412). this.
charge has now in effect beeii abandoned by the Applicants as part and
parce1 of their alsandonment (if 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
vie~vsof Respondent's policies appear to be based on "informati0n"an
"evidenceW-supplied by petitioners, as will appear frorn a referenceto
their statements, of which only one typical example need be quoted.
1 quote the stâtement of the Keverend Michael Scott, who has probably
been the nlost frequent petitioner of all, dating back for many years,
although he was present in the territory of South West Africa only for
a few weeks during the year 1946. Before the Committee on South West
Africa, 5th Session, 94th Meeting, Document A/AC.73/SR 94, 17 Sep-
tember 1958 (p.+),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 fieoplc hallbeen
tairghlthattheyhadbeenplacedthereby Cod foruleovereveryone etse.'*
(Italics added.)
And he also mentioned (pp. 4-5) that the "whole State structure and
system of legislation [was] bascd 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 preacherç and politicians.
aIike until they had cornefirmly to believeinthe concept ofsuperior
and inferior races. The legislation which was designed to keep a
~vholepeople servile \vas based on that philosophy."
There are many more quotations which quite clearly and plainly level
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 debateç bcfore the United Nations? Just a few quotations, first on.
the part of the Applicant States. Before the Specinl Political Committee,
Mr. Petros of Ethiopia, Document A/SPC/SR. 88, page 15, of 14 October
1958 said-
lCunaiiziliforSouthWest Africa:
MY.Garoeb: iith Meeting,AIAC. 1iojSR. 1I,30 Jiily 1962.
Fourth Cornmatle:
Reu. Alarttus K~operrjiznd Meeting, 17th GA.. Sovernhrï 1962
hfr. h'ozoitguiri: goq-906th ItIeet4thC.A.. 1959.120 SOUTH WEST AFRICA
". .. Ethiopia condemned not only the incidents which had taken
place but above all the theory of wlzife supyemacy upon which tlte
p0li~y ofdiscrimination was founded". (Italics added.)
Then Mr. Uarnes of Liberia, 16th Session, A/SPC/SK. 272, page 61,
30 October 1961 stated-
"5. What exactly was 'apartheid'? A doctrine of racial superiority,
which held that the Africanç were mentaLly inferior to the whites."
And sa, kir. President, it goes an and on and further examples will be
found in the list marked "H"l.
Then, hlr. President, coining to the next category, that is a charge that
is often levelled and is also reflected in the reports of the Cornmittee on
South West Africa, tliat Kespondent is depriving the non-White popula-
tion in South Africa and iii South li'est Africa of "the richest part of the
Territory" and coiifining thern to "desert-like" or "unhealthy" areas
ta make way for European settlers. The respective areas set apart for
White and non-White occupation are very often totally misrepresented.
In parentheses, we can point out that identical charges were aIso macle b
Applicants in their written pleadings. For example, in the Mernoriuls, {
page 118, the Applicants alleged that-
"(i) The Mandatory haç progressively reduced the proportion of
farm land available for cultivation or pastoral use by the 'Native'
population .. ."
And in the Keply, IV, page 464, Applicants stated that-"the'non-
White' inhabitants are confined to the poorest areas of the Territory . .."
It is hardly necejsary, hlr. President, to rernind 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 es-
tracts which we shall cite, are demonstrated by a reference to the true
facts as set out in Respondent's pleadings. 1 wish to refer to the I2e-
joinder, VI, pages 255-266, and references to the Counter-Mernorial given
Special Poli!zcnl Coinmilt:e
Mr. Pefyas (I<thiopia):G...l.. O.R.. 14th Sesp. 76.
iMr. Gnbre Sellassie (EthiopiaG.A., O.R., ~GthSess., pp. 117-119.
IWY.Collet(C;uinea):G.A .,O.If. 1,th Sess.AISPCISR. 274, p.74.31October 1961.
MY. Daddnh (Mauritania):C.A., O.R., 18thScss.,;i/SPC/SR. 388, p. Go,nr Octuber
IZIY.harii (lndonesia):G.A.,O.H., IrthSess., AISPCISR. 13, p. 56,15January 19.57.
Alr..4Uotini(Syria!:G.A., O.R., IIth Ses., A/SPCJSR. i4, 11.61, 16 January 1957.
Aïr. Sheldov (I3yeloru;sian S.S.R.):C.A.. O.H.. 11th Sess. A/SlC/SR. 14. p. 63,
i6Jantiary 1957.
&Ir.O'Brieu (Ireland):C.A., O.K.. 12thSess.,A/SPC/SR. 54. p.57, 29October 1957.
MY. Gnshka (IJ.S.S.R.): G.A., O.R.13th Sess., A(SPC/SR. Sg, l'p.20-21,15October
i9.53.
iIlr.Ge-firra (Jordan):C.A.. O.R.,15th Sess.. A/SPC/SH. 229,p. 13,23 Marçh ~gGi.
MY. Shnhi (I'akistan): G.A.. O.R., rjth Scss., AISPCISR.239, p.58, 3 April rgGi.
Mr. Benifes Vineuzlr (Ecorrdor): GA., O.H.. 15th Sess.. A/SPC(SR. 238,p. 53,
3 Api.il 19.51.
IlIr. Towns~nd (Peru): G.A., O.R., 16th Sess.,A/SPC/SR. 275, p. 82, I Xovember
1gur.
Mr. Lauiiting(Denmark): C.A.,O.R.. 17th Sess.. AISPCISR. 336, p. 49, 25Octoher
1961.
AIT.Pudlah (Czechosiovakia): G.A..O.R. ,StliSess.. AISPC/SR. 390, p.69, 23 Octo-
ber r9.53. ADDRESS KI'MR. t'AN ROOYEN 121
there, and also to the evidence of Professor Logan in the verbatim
record of8 July, X,on pages 367-368.
1 give first just one or two esamplesof the misrepresentations from
the mouth of the petitioners. First,>Ir.Kozonguizi, before the Fourth
Committee, the 1053rd Meeting on 16 Novemher 1960(p. 317) ~ays:
". .. tlie reservations in which the African population lived urere in
the most infertile part of the Territory, for example in the Kalahari
Desert. If anygood water were found in a reservation, the area was
handed oves to European farmers and the Africans were forced to
rnove away."
Mr. Nujoma stated before the Fourth Committee, the 1371st Meeting on
2 November 1962 (p. 275)-
"The Government also intended to eliminate al1 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 1962 (p. 292) he said:
"Under the Bantustan system the Africans had already been
forced to leave their homes for desert arca without suficient water
or pasturage for their cattle."
The Reverend Warkus Koopcr {the Court will recollect that, according
to Mr. Dahlmann's evidence, hcappeared oii behalf ofSWAUNIO which,
according to APr.Dahlmann, ivaspractically non-existent in the Territory
andhad no rexl support) stated before the Fourth Committee at the very
sarne meeting as the one just rnentioned(p. 291)-
"It was therefore clcar that,when Africans occupied good land,
the Government tried to drive them out and replace them by
Europeans."
This type of allegation was also takenup and portrayed by the Commit-
tee on South West Africa; 1 take but two examples: the Refiort ofthe
Co~nfltilleeoSorcthWest A friclfor rgj9,Supplement '50.12,Document
A14191, at page 21, paragraph 144 reads-
"The Committee recalls that the Territory has been divided by
the Union Government roughly into two sections. Tlie southern
section, which is the richer and better developed portionhas been
named the Police Zone. The northern section is the poorer and less
desirable portion, where the 'Natives' are being relegated to 'Native'
reserves. Its apparently the policy of the Administration graduallv
to remove the 'Native' rescrves still remaining in the Police Zone
to othcr sections of the Territory so as to make room for expansion
of 'Europcan' settlements in that zone."
And in the I~G I eporto/ theCommdtee onSouth WestAfrica Concerning
the lmplementation of Genernl Assernbly Resolutionç 1568(XV) and
1596 (XV), in Supplement No. rzil,Document A/4926, page 14,para-
graph 103,the Committee statcs as folloms:
"The general economic and social situation in the JIandated
Territory rnay perhaps be picturd hy quoting &Ir. Ngavjrue as
follows: [itwillbc rcrnembered that 1 have referred previously to
Mr. Ngavirue's allegations of genocidc and extermination whilst
speakirig on behalf ofS.W.A.N.U.]
'. .If you look at the map of South West Africa today you \vil1122 SOUTH \WEST AFRICA
realize that about 75 per cent. (93 million acres) of the land has
been cut up into White people's farms. These White people are
South African national5 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 per cent.
(about 25 miilion acres) of the total land, half ofwhich is desert
area. In fact, the reserves were not rneant to be of anji economic
value tothe Africans but to be labour reservoirs from which cheap
labour coulclbe drawn for distribution on the farms and mines of
the so-called mastcr race."'
That, Alr. President, then, içthe opinion of the Comrnittee on South
\Vest Africa.
There are many more examples of delegates speaking in the same vein;
.Ido not feel that it is necessary to refer to them; Icould just mention
that Mr. Diallo of Mali, for example, in the 4th Committee, Report
A/C4/SR. 1385, rg November 1962 ,age 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 exarnples of this
type of allegation referred to in list1 l.
The next category of regular allegations and regular attacks are in the
.fieldof education: itis regularly alleged that the abject of the Bantu
,education system was to ensure that the education given 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 thereisno form of free public education on the elementary
level, or any institution for higher learning in the Territory. and that
Native children are taught only a few rudimentary subjects. The com-
plete untruthfulness of theçe allegations appears clearly from the ad-
mitted information contained in Book VI1 of the Coiinter-hIemoria1,
and from the evidence ofIir. Eiselen and Dr. Van Zyl before this Court-
1 refer to the verbatim records, X, pages 114-122, and XI, pages 252-268.
Here are examples of these allegations by the petitioners. Mr. Getzen
(atthat stage, of course, known as Getzen, now known as Mr. hlburumba
Kerina) in 1956-that was on the first occasion of his oralpetitioning,
.during the 11th Session, in the Fourtli Committee at its 57151 M:eeting-
sai d:
"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 Afncans should be inferior to
that of Europeans. The subjects were few andinadequately 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 dl."
1SpecialPoliticaGomriaifl:e
.Mr. Shahi [Pakistan:G.A., O.!<.t,th Sess.A/SPC/SR. 239, 1). 58, 3 Apri1961.
.Mr. Sobolev(U.S.S.R.)G.-4.O.H., 15th Sess., A/SPC/SK. 240, 64, 4April rg61.
Mr. Kizia (Ukraiiiian S.S.R.): G.O.R. ,7th Sess., A/SPC/SR. 331. 24,16Octo-
MI. Verref(Haiti):G.A.,O.R., 17th Sess., AISPCISR. 337, p57.26 Octobe~ 1962.
-wv. Naco (4lbnnia): P.R., 18th Sess., h/SPC/S394,p. tr,30 October 1963. ADDRESS BY MR. VAN ROOYEN 123
Mr. Nujoma, who should aiso be well known to the Court by this time,
the President of SMTAPO b,eiore the Fourth Comrnittee, at the 1371st
Meeting, dunng the 17th Session of the United Nations, said:
"In education, South .4frica 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 waç alleged:
"The object of Bantu Educatjon is (a) to indoctrinate African
children from childhood that Africans are inferior to Europeans,
(b) that that inferior isayGod createdslatt wtsich no man has the
rightto change."
That was in a whole book of petitions which had been issued in 1961,
Document AIAC.7314(1g61p )age 34. And so it goes on and on.
Turning once more to their acceptance in the United Nations, we find
similar wording. It sufficesto quote only oneor two examples ofthe many
that are on record. Mr. Carpio of the Philippines in the Fourth Corn-
mittee, 1115th Meeting, page 94, said:
"In the educational field, the system of 'Bantu Education'
designed to enclose the indigenous inhabitants in their tribal cul-
ture, immune from outsidi: influences, and to prepare them to pro-
vide cheap labour for the whites. Consequently, the future facing
the indigenouç inhabitants was a Lifetimeof 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 indigenoiis inhabitants of the Territory] in a state 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 1 refer to onïy one summary in the Cornmittee's 1961Report con-
cerning the Implementation of General Assembly reçolutions 1568 (XV)
and 1596(XV), tlie document to which 1have already referrcd, A/4926,
paragraph 121. It states:
"According to the evidence of those who appeared before the
Cornmittee, the basic policy of the South African Governrnent in the
educational field is to restrict Xatives to a rudimentary. system of
schooling and training designed to confine them .tomen~aloccupa-
tions in order tokeep them in a state of subservience to the White
minority. The policy içalstito denythem access to higher education,
thus keeping them from profesçional activities, from participation
in the fruits of their native resources, and frorn contact with en-
lightened ideas which would cauçe them to aspire to better ways
of life than their present unbearable conditions. Bad as the paçt
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 waç described by BIr. Ngavirue as a system124 SOUTH WEST AFRICA
aimed at teaching the Africans from childhood that they were in-
ferior to the IVhites and that the good thingsinlife were meant for
Whites only."
That is the opinion of the Committee on South West hfrica as based on
the evidence of these petitioners.
Itwill be remembered that in 1961 the Committee on South West
Africa left or1 a so-called fact-finding mission to hear evidence from
petitioners in variims parts of Africa, and it was during that mission
when petitioners such as Mr. Kerina, Mr. Kozonguizi, hlr. Nujoma.
Mr. Kuhangua aiid various other representatives of SWAPO and
SWANU gave evidence, that al1these conclusions were arrived at.
1 corne, Mr. President, to the lasfield.As 1 said, we cannot deal with
everything-1 am justtaking s few broad categories by way of examyle,
alid the last fieliiiwhich we wish to illustrate the untruths emanating
from the petitioners and the effcct thereof in United Nations organs is
that of militarization.
No\v, 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 contest in which ive deal with it here. We are here
concerned with the nature of the charges by which it was sought to con-
demn Respondent's policies and actions in the United Nations in the very
resolutions on whicti Applicants now relÿ in substantiation of their allcged
norrns and/or stantlards.
At the present stage me are particularljr 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 petitioners in
this field, let us.. President, first consider the true facts. These can be
stated shortly and simply, especially in view of the Applicants' admis-
sion ofthe truth of al1the 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 representative. A reference to this will be found in the
Counter-3Iernoria1, IV,page Go.1 propose to continue (because it is ad-
mitted fact at thiç 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 dc Alva, respectively Chairman
and Vice-Chaiiman of the Special Committee for South West Africa,
visited the Territory during1962 T.hey were given full opportunities
of investigatioii, and were çpecifically rcquested to investigate allega-
tions of militarization in the Territory. 'l'heirvisit in fact includcd,
iltler alia, Windhoek, the Kaokoveld, Ovamboland and (in the case
of Dr. hlartinez de Alva) the Caprivi Zipfel-in other words, al1the
places mentioried by the Applicants in their allegations regarding
militarization,except Swakopmund. At the end of their visit, ia
Statement issued by Respondent's Prime hiinister and Minister of
Foreign Affairs and theChairman and Vice-Chairman of the Special
Committec, it rvas stated that :
'.. .inthe 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-Mernorial,
II, at pages3-4, and in the Rejoinder, V, at pages 5-12.
1 rnight just note, Alr. President, that despite a long history of con-
troversy as far as these facts are concerned, Applicants now, for the
purposes of this case, admit the truth of this rendering by Respondent
which 1have just read.
Furthermore, as faras militarization was concerned, the full facts were
set out in the Countcr-Mernorial, IV, from pages 54-61, and amplified
and reiterated itithe Rejoinder. Al1these facts are now admitted by the
Applicants as truth. In this conncction, we refer the Court to the ver-
batim of 27 April, IX, page 21, and, referring s~~ecificallÿto militari-
zation, the Respondent's factual esposition is adniittcd in the verbatim
of 12 May, at lx, page 235.
Now, during the hearing of witncsses, the Court had the benefit of
hearing Gencral Marshall testify that he did not seeanything in South
West Africa that he could regard as a military base and that the Territorj?
isleçsmilitarizcd and more under-armed than anjrterritory of jtssjzehe
had ever seen in the world. That will be found in the verbatim, o14Oc-
tober, XI, at page 587. .
So, 3Ir. President, these are the facts. This, now, is the truth. Let us
contrast it with the allegations made by the petitioners and the echo of
these allegations in the United Sations.
1 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. 1 mention but a few random examples.
In1960 Mr. Sam Nujoma testified that there were three South African
bases in the Territory of South \frest hfrica. That was before theCom-
rnittee on South West Africa, 7th Session, 1960, rjznd Neeting (A/AC
73Refore the Fourth Cornmittee the following was noted-that is,in1960,
the 10j4th Mcetirig on 16 Novcmber 1960, paragraph Ir:
"Mr. AEwalc (Iraq) noted that, according to >Ir. Fortune, the
South African Governrnent had set up military bases at IVindhoek
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."
hlr. Fortune. who was at that time described as the Secretary-General
of SiVAPO, replied that "there were five bases. 'Cheyhad been estab-
lished in flagrant contradiction with the provisions of article4 of the
Mandate."
In 1961 &Ir. Kgavirue was quoted by the Cornmittee on South West
Africa as illustrating the general picture in the Territor>Ir.Ngavirue
stated this:
"Military bases have been planted in the Mandated Territory,
one inOhopoho in the Kaokoveld [The Court will, no doubt, recall
General 31nrshall's evidence as to the facilities at Ohopoho] and on
the South LVest Africa AngoIa border, one at tvindhaek, one al
\.Valvis Bay, and the country is generally under martial law ..."
(Report of the Corn. on S.\tT.A.conceniing the Irnplementation of
General Assembly Resolutions 1568(XV) and 1596 (XV), 16th Sess.,
Supp. ISA (A/4926),p. ~r.)126 SOUTH WEST AFRICA
And, so, Mr. President, it goes on and on. In the same year (1961)
hlr. Nujoma stated at the 1217th Meeting of the Fourth Committee, on
20 November 1961,page 379 :
"ln the middle of 1961t, he 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 betureen
South West Africa and Angola, and at Windhoek."
And these charges were repeated in 1963by Garoeb, also on behalf of
SWAPO, at the 1455th Meeting of the Fourth Comrnittee, paragraph 36,
and by Mr. Kuhangua of SWAPO at the same meeting. 1shall not quote
thMay 1, then, furthersubmit 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 onby thern to prove their charges
relative to militarization, to see what results these untxuthful statements
of the petitioners 1edto. 1may also note that two of these resoIutions,
that is, 1702(XVI) of rg December 196r, and 1805 (XVII) of14Decernber
1962,are also contained in the list of resolutions on pages 502-503of the
Reply, IV, upon wliich Applicants reiy as establishing their norrns andlor
standards.
But, Mr.Presideiit, this isnot yet the end. The seIf-same allegations
are made, not only again and again, but they persist up to the present
day, even after Applicantshave before this Court admitted Respondent's
factual averments asbeing true.
Let us turn to the 1965 Draft Report of the SpecialCommittee onthe
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. 1og1L.241. We must now con-
trast this with the evidence of General hlarshall.
Mr. Nujoma of S\VAPOstated on page 27 of this document, para-
graph 77:
military bases. in Windhoek, Walvis Bay and at Katima Mulilo in
the Eastern Caprivi Zipfel."
Mr. Kuhangua, brivingevidence, stated on page 41 :
"Lt waçthe Cornmittee'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 militas. build-up in South Ie~t
Africa".
Mr. Kerina, on page 49, paragraph 152, found it fit to state: "In de-
fiance of the Mandate, South Africa had established numerous rnilitarv
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 allegationç, the
allegations of nuclear and missile activities in South West Africa. into
Mr. Make, of the Pan Africanist Congress, who has never set foot in
South West Africa, stated on page31 of this document, in paragraph 89: ADDRESS BY MR. VAN ROOYEN 127
"As part of its military activities, SoutAfrica was now building
nuclear reactors in its own country and in South 1irest Africa."
3Ir. Kerina, on page gr,paragraph 156,stated:
"After their experiences in the mar, the people of South West
Africa were not surprised to see.. .that a nuclear reactor had been
built in their country."
And Mi-. Kiiharigiia, onpage 34, paragraph 103, stated:
". .. that the greatest danger to South West Africa lay iii the
Federal Republic of Gerrnany's decision to establish a rocket station
in the Namib Desert. He appealed to the Special Committee to caU
upon the Federal Republic to dismantle its rocket station immedi-
ately."
All these allegationsMr. President, were intended to refer to the Max
Plankt Institutc for Oronomy at Tsurneb. The Court will, no tloubt,
recall General Marshall's evidence relative to this installation.
Now, what reaction did al1 these statements elicit in the Committee?
Acceptance, >Ir. President, nothing but acceptance of every word the
petitioners said.
1quote the representative for the United RepubIic of Tanzania. He
said on page 63 of this document:
"Turning to the military build-up in South iVest Africa, hisdele-
gation had bcen greatly disappointed by the role of West Germany
and the United Statesin nuclear development in South West 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."
Refore the Disarmament Comrnittee, in United Nations Document
DC/PV. 82 of 17 hlay 1965, atpage 48, the same representative of Tan-
zania said: "The South African Government ha established an atomic
testing centre at Tsurned, . . in South \Srest Africa."
>Ir. President, it is unfortunate that so many delegations are rnisled
by this type of statement.
The representative of Yugoslavia, on page 60 of the document, A/AC.
~og/L. 241, already referred to,stated:
". ..it was impossible to disregard the testimony of the petitioners
concerning South Africa's nditary 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
'Western Europe, particularly the Federal Republic of Germany,
were participating . . ."
The representative of the I~rory Coast, at page 64 of this document,
said-"The pctitioners had given the Committee clear proof that the
situation was cleteriorating from day to day."
And the reprcsentative of Ethiopia, on page 66, that is, after the
admissions of hiç government's agent in this Court, stated:
". . . bp establishing military bases in the l'erritory, it [meaning
South Africa] had committed a serious breach of Article 4 of the
Mandate".128 SOUTH WEST AFRICA
And so it went on and on, many of the representatives referring to the
clear and convincing statements of the petitioners.
\Vhat is the uprhot of al1 this, Mr. President? A draft resolution is
introduced by the representative of India, CO-sponsored by 12 of the
members of the Committee. In introducing it, the representative of
lndia states the position of the CO-sponsorsand says, intearlia on page
69, in paragraph 212:
"Certain representatives had claimed that the Special Comrnittee
had been too ready to accept the petitioners' statements at face
value. In the case of South West Africa, no discuçsion 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
for the Special Committee or the United Nations to give the Govern-
ment of South Africa the benefit of the doubt-its past and present
deeds were there for al1 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-h~iemorial and
in the Rejoinder and had been available for al! the world to rcad and,
after al1this detailed information, surely one of the instances of the most
detailed information of the administration of any territory ever supplied
by any governlnent in the history of the world, had been admitted by
the Applicants for the purpose of this case.
Neverthetess, wc find that these falsehoods of the petitioners are
accepted-they arc echoed-and they ultimately shape the judgment
ancl resolutiorr of the organ involved. \Ve have extracted, by way of
illustration, only the allegations relevant to militarization from t1965
document-August 1965, one might almost say the late harvest. It is
possible to do esactly the same in respect of each of themajor üntruths
wliich form the petitionerç' favourite themes, as also refuted by 91r.
Dahlman, for esaniple, that Respondent's policy amounts to genocide,
that it is slavery, that the best land isolen from the Natives, that they
are herded on to inferior land and into concentration camps, that educa-
tion is aimed at keeping them inferior, that they are denied medical
assistance, etc. These allegationç are al1in that document and they are
al1accepted. This is typical of what Applicants refer to as the judgments
of the United Nations, on which they rely as so-called law-creating pro-
cesses,which judgnients this Court, in their submission, may not second
guess.
Now, the unqualified acceptance of al1these wildest allegations by the
petitioners, and the direct influence thereof on the resolutions adopted,
are important in view of the Applicants' present attempts to minimize
the effect of such statements bp petitioners on the United Xations reso-
lutions.
During cross-esamination of 3lr. Dahlmann Applicants attempted to
illustrate that reportsof the Committee on South iliest Africa and cer-
tain General Assembly resolutions had not been influenced by pctitioners,
or in any event, not toany marked degree. We find that attempt, during
the cross-esamination of Alr, Dahlmann, in the verbatim record. XI,
pages 564-565 and pages 566-567, 13 October. I?i.tealia, anestract was
read from the Igj5 report of the Committee on South West Africa. page
8, paragraph 2, and the tenor of questions asked was to extract from ADDRESS 13Y MR. VrZNROOYEN
129
hlr. Dahlmann an admission that the petitioners had not really infiu-
enced the Committee and that the portion read to him was a typical
or illustrative reporin respect of the statementsof the Committee con-
cerning the sources of its information.
This stands in strange contrast indeed to the Applicants' attitudein
the Rlemorials, when they were still relying on statements of petitioners,
and ïvhen they prefaced their reference to such statements by stating
on page 167,1, of the Memorials:
".. . the Comrnittee on South West Africa and the AppIicant, as
well,are constrained to gathcr information from other sources, in-
cluding petitions".
But, we must take this a little further.
Ifwe look at this1955 report of the Comrnittee on South West Africa,
it becomes clear that considerablt: consideration waç given to the con-
tents of petitions by the Comrnittee on that occasion. Pages 4-6of the
re ort deal witha number of petitions relating to the Territory of South
\. est Africaand 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-
and the Revere~idg'Tz.,. Harntumbangela. The Court will remember that
in hir. Kerina's letter to Toivo Ja Toivo of February r959, whiappear-
ed in the evidence of hfr. Dahlmann, tlie ReverendMt- H.amturnbangela
had been proposecl by hlr.Kerina asa possible president for the Ovambo-
land Peoples Cong-css which fie wanted to be formed.
Now, on the basisof the contents of these petitions, already befthe
Comrnittee in 1955, the Committee proposed a number of draft resolu-
tions which are also contained in this 1955report, critical of Respondent's
administration. When we turn to the General AssernbIy 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),10th Session.Ta take but one esample, the last reso-
Iution, 939(X), dealing with Mr. Kozonguizi's petition, notesinteralia,
the petitioners' allegations that: "The indigenous people have suffered
under oppressive lcgislation ancl have not developed in any sphere."It
also notes the following alIegation of Mr. Kozonguizi: "The enforcement
of the Bantu Education Act ...would virtually eliminate African edu-
cation in the Territory . . ."
In resotution 943 (X) of the same year, 1955 the General Assembly
having granted an oral hearing to the Revesend Nichael Scott, who was
alleged to be speaking on behalf of the Native inhabitants of South \Vest
Africa transmitted the petitioner's statemento the Committee on South
West Africa for the Cornmittee's study and consideration.
Even Applicani:~, if we look at the Memorials, were influenceby the
contents of petitions annexed to this one particular1955 report of the
Cornmittee on South West Africa, to a sufficient estent to quote and
rely on an estract taken from one of them, narnely a petition signedhy
Chief Hosea Kutako, in the Memorials at 1,page 171.We find that an
extract is taken from this 1955 Committee report and this is quoted as
one of the alleged illustrations of the mannerin which the daily lives
of the inhabitants areaffected.I30 SOUTH WEST AFRICA
It is thus clear, hIr. President, in our submission, that the AppLicants'
present attempt to minimize the influence of the petitioners and their
petitions in the United Kations organs is without substance. It is true
that before 1955 no oral hearings of petitioners took place, but it must
be rernembered that written petitions had been transmitted long before
oral testimony of petitioners became the practice. In fact, the AppIi-
cantshave quoted in the Memorials at 1,page 178, a petition taken from
the 1954 report of the Committee on South West Africa.
iVe have already demonstrated that the suggestion on the part of
Appticants, dunng cross-examination of &Ir. Dahlmann, to the effect
that the statements of petitioners did not influence United Xations dis-
cussions and resolutions in955 is incorrectBut 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 typicaland illustrative of the Cornmittee'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 illustrativethe approach of the Committee on South
Iliest Africa.
[Public hearifzof 28 October19651
&Ir.President, we were dealing yesterday with the nature and quality
of the criticism levelled against Kespondent in United Nations organs
and the factual sources upon which such criticism was and is based. We
made the point thatthe criticism was mostly based on emotionalgrounds
and on the basis of incorrect factual assumptions.We aIso showed that
a small group of petitioners had been largely responsible for supplying
the incorrect factual informationon 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.
Tuming to the reaction within United Nations organs to the alle-
gations regularly made by the petitioners, we demonstrated that practi-
caUy everything that the petitioners said was accepted as true in such
bodies by majoritiesand 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 1 was dealing with the suggestion on the
part of Applicants during cross-examination of Mr. Dahlrnann that the
Committee on South West Africa had not been influenced by petitioners
to a great extent in the drafting of its reporAn.extract was read from
the 1955 report by Applicants' Agent, which couId have supported such
a view. 1 then proceeded to demonstrate that not only the Committee
on South West Africa, but aIso the General Assembly as well as the Appli-
cants themseIves, urere influenced by statements of petitioners contained
as annexes to the 1955 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 193. 5eport of the Committee was typical and
illustrativeof the Cornmittee's sources of information and that such
sources did not include the statements of petitionersasa major source,
1 stated atthe close of the proceedings yesterday that 1 would proceed
to investigate the validityf such a suggestion. ADDRESS BY MR. VAN ROOYEN I3I
Turning to the 1956 report of the Committee on South West Africa
to the General Assembly, that is the 11th Session, Supplernent No. 12,
document A/315i, we find that petitions are rnentioned on pages 3-4 of
that report. On page 5 in the report, the Committee States, referring to
the petitions received: "It [that is the Cornmittee] haç taken into account
a number of communications received conceming tlie Territory."
In 1957 the Comrnittee stati~dthat it had drawn up its report on the
basis of relevant information "including commuiiications from inhabi-
tants ofthe Territory". That was the report to the 12th Session of the
General Assembly, Supplement 12, document A/36z6,on page 5.
In its Igjg report, the Comiiiittee stated that it had drawn up its re-
port, interalin,on:
"Relevant information including, in particiiiar, petitions and
communications from inhabitants of South West Africa and other
sources."
That was the report to the 14th Session of the General Assembly, Supple-
ment 12, Document A/41gr, page 5, and on page 3 of this report the
Committee on South IVest Africa referred to a large number of petitions
it had taken into account during its examination of conditions in South
West Africa. The vast niajority ofthese petitions emanated from Chiefs
Kutako and Witbooi, the Reverend Markus Kooper and Mr. Toivo Ja
Toivo-the Court willno doubt remember this name asit was mentioned
by Mr. Dahlmann. This particular person was the recipient of numerous
Ietters from Rlr.Kerina in 1959and he is also, to thisday, a leading per-
sonality of SWAPO. Mr. J. Dausab, also mentioned in the Counter-
Mernorial, Book VlII, IV, and a supporter of SWANIO, and the Rever-
end Michael Scott were also petitioners.
By 1960, Mr. I'resident, the Committee on South West Africa stated:
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 1
quote:
"It drew up the present report to the General Assembly on the
basis ofthe documents miide availabIe to it by the Secretary-Gene-
ral, supplemented by oral slatements by petitioners, witten petj-
tions and communications from inhabitants of South West Africa
and other sources, and reports in the territorial Press."
Durjng 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,ChiefKutako, ChiefWitbooi, Mr.Kozonguizi, SWANU,
Mr.Nujoma, Mr.Kerina and the Reverend M.Kooper. It will also rtppear
that in 1960 a whole subsidiary book of some 248-odd pages containing
petitions had to be published as United Nations document A/AC. 7313.
During rg61 the Committee on South West Africa left on a fact-
finding tour of Africa and heard testimony of petitioners. These were
mainly Jlr. Kerina, Mr. Kozonguizi, Mr. Nujoma and other officebearers
of SWANU and SWAPO.On the basis of their evidence, described by
the Cornmittee in its 196r report as"informed views", one finds that
the whole report isbased on the allegations of these petitioners. The con-I32 SOUTH WEST AFRICA
cluçions of the Conimittee 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 rzA, document A/4926. On page 20 of this report, the
Committee said the following:
"Frorn an objective study of the situation in South West Afriw,
through a careful analysis of the evidence given by petitioners,
political leadersand refugees from the Territory, along with addi-
tional information frorn other available sources, including vieïvs of
informed leaders for African unity and liberation, the Cornmittee
on South West Africa reached the conclusions outlined below";
and when the report isstudied in detail it becomes clear that both the
contents of the report as well as the conclusions are based practically
exclusivelp on the evidence of these petitioners.
Mr. Prcsident, 1 feel 1 need not go further. One can illustrate itas
from year to year and 1 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 proffercd in written as well
as oral petitions by the petitioners,iswithout substance.
Quite apart from the foregoing, hlr. 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 statements that they rcly heavily on the evidence of
petitioners. as the following random extracts will show.
Mr. Norse of the United States of America said, before the Fourth
Committee of the 15th Session of the General Assembly, during the
1060th Meeting, page 350:
"The petitioners had spoken with clarity, dignity and remarkable
moderation.Their eloquent and straightfonvard statements deserved
the thoughtful consideration of the Cornmittee."
Mr. Neklessa of the U.S.S.R. said in the Fourth Cornmittee, during
the 16th Sessionof the General Assembly at the rz41st Meeting, page 551 :
". . . hwished 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."
&Ir.Purevjal of Mongolia said during the 1379th Meeting of the Fourth
Cornmittee, during the r7th Session of the General Assernbly, page 326:
"It was clear from the statements of the petitioners t'nat the
South African administration was deliberateIy holding back the
social development of the indigcnous inhabitants in order to keep
them in slavery."
Mr. Arteh of Somalia, during the 14j4th Meeting of the Fourth Com-
rnittee, 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 pr0b.m had
given rise and the clear and complete statements of the petitioners,
the \vorIdwas now fully aware of the situation in the Territory." ADDRESS BY MR. VAN ROOYEN I33
One of the clearest indications of the influence exerted by the state-
ments of petitioners in the deliberations and decisions of United Nations
organs, is afforded by an extract from the statement made by Mr.
Busniak of Czechoslovakia, during the 14th Session of the General
Assembly, before the Fourth Cornmittee. 914th Meeting, at page 161,
when he stated :
"The petitioners, in particular, contributed essential elements to
the debate, and it was oft.en on the basis of the direct information
they provided that delegations decided tvhat position to adopt."
hIany more esamples along the ssme lines can be provided, but 1
think, 3lr. President, that these arc enough to make the point which
1 am trying to makc.
Now, Mr. President, although Respondent's representatives never
attended the hearing of petitioners, because Respondent's contention
was that the corrimittees concerned were not conipetent to grant such
hearings, Responclent's represt:ntatives at times gave clear factual in-
formation concer~iingthe statements of petitioners. and corrected untrue
and erroneous evidence given by them. Unfortunately, the reaction of
delegates was often to dismiss the statements of Respondent's rcpresen-
tatives and to confirrn their implicit faith in the allegations of the
petitioners. In this regard, 1 think 1 need give only two esamples:
Mr. Achkar of Guinea, during the 16th Session of the General Asse~nbly,
in the Fourth Co~nmittee, 1247th Meeting, said at page 587:
"The representative of Australia had suggested that the report
of the Comrnittee on South West Afnca might not be fully in
accordance with the facts, since that Comrnittee had not visited
the Territory; the petitioners. however, were al1 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."
hIr. Carpio of the Philippines said, before the same Comrnittee, in the
same year, at page 444:
"He wondered whom the Comrnittee was expected to believe: the
petitioners, who came from the Territory and asserted that the
Native reserves were fenced, or the hlinister for Foreign Affairs,
who had probably never been to the Territory and who maintained
that that wss not the case."
BIr.President, perhaps the best example ofsuppression of information,
favourable to Respondent's administration of the Territory, came after
the visitby Mr. Carpio and Dr. Martinez de Alva in 1962to the Territory :
1 am not going to enlarge on the facts, the full facts were dealt with
in the Rejoinder, V,pages 5-12,and 1 might just state that these factual
allegations are now cornmon cause as they have been admitted by
Appticants as true. Now, it will quite clearly appear, on reading these
pages, that the chairman and the vice-chairman of the Cornmittee on
South West Africa visited the Tcrritory, that they had complete freedom
to visit whatever place they wrinted, and that they had requested
specifically to go into and inxfestigate the allegations which had been
made with consistent regularitp inthe United Nations-that the condi-
tions in South West Africa ci~nstitutcd a threat to peace, that there
was a large scale of militarizaiion, and certaiof the other allegationsI34 SOUTH WÇT AFRICA
which were regularly relied on in the United Nations organs to condemn
Respondent's policies. After their visit, a joint communiqué was issued,
which is ajso a United Nations document, and the result was, as quoted
on page 8 of the Rqoinder, V, paragraph 3:
"At the request of the Prime hIinister both the Chairman and
the Vice-Chairman gave their impressions gained during their ten
day visit to tlie 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 tliere were signs of militarisation in the territory; or
that the indigenous population was being exterminated."
This communiqué, hIr. President. caused consternation at the United
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 viewthat this com-
muniquécame asa disagreeable shock.
Furtherrnore, Mr. President, it is also clear from a reading of these
pages that the communiquédid not go far in the United Nations organs,
as far as its influence was concerned: the Committee on South West
Africa out-voted the suggestion that this communiqué shouldbe entered
into the documentation of the Cornmittee as an official document, and
the communiqué, vastly important asit was, was not included in the
documentation which was sent fonvard for consideration by the Corn-
rnittee 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 1085 of that year. 1 think 1 need say nothing further
in regard to this incident.
Now, Mr. President, the influence of the statements of petitioners
has obviously not been confined to the committees of the General
Assembly-the Committee on South West Africa or the Fourth Corn-
mittee. The General Assembly itself has consistently, for many years,
adopted, endorsed and acted upon reports made and draft resolutions
forwarded by the variouç committees which dealt with South West
Afrïca and the petitions and verbatim statements of petitioners. In
fact, Mr. President, its officiallypart of the General Assembly procedure
to act asfar aspossible on these reports and resolutions. In this respect,
1 wish to refer to resolution 844,during the 9th Session of the General
Assembly, Ir October 1954 .n this reçolution the procedure was adopted
which was to govern the examination of conditions in South Lest Afnca,
and in Special Rule B. as regards reports, the following appears:
"The GeneralAssembly shall, as arule, be guided bythe observa-
tions of the Cornmittee on South West Africa and shall base its
conclusions, as far aspossible, on the Comrnittee's observations."
In Special Rule D, relating to the procedure with regard to petitions,
the following appears:
"The General Açsembly shall, as a rule, be guided by the con-
clusions of theCornmittee on South West Africa and shall base its ADDREÇÇ HY MR. VAN ROOYEN I35
own conclusions, as far as possible, on the conclusions of the Com-
rnittee."
!Arehave already shown that these reports of the Committee on South
West Africa, and the draft resolutions adopted there, were, to a large
eutent, 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 cornmittees on draft
resolutions. Let us take as an example the discussions in the Fourth
Committee of the United Xations, which preceded the adoption of the
resolution which ultimately becarne General Assembly resolution 1702
of the 16th Session-that was the resolution referred toby my learned
fricnd, Mr. de Villiers, yesterday,as containing the broad outline of
what is now expected in future. During the 1241st Meeting ofthe Fourth
Comrnittee, some seven petitioners were present when the different draft
resolutions befort: the Fourth Cornmittee were discussed, and they freely
expressed their views as to which resoiutions suited their purposes best.
So,in paragraph 36 of that meeting's record, we find hlr.Kerina, on
behalf of SWAPO, saying that the petitioners had asked for a further
hearing in order to state their viewson the draft resolutio before the
Committee.
In paragraph 37, he stated:
"Two of the draft resolutions were diarnetrically opposed to the
desires and interests of those peoplIn their view they were clearly
designed to delay and sabotage the process of decolonization in
South IVest Africa."
1might state that the two draft resolutions opposed by Mr. Kerina
were introduced by the United Kingdom and by Sweden and that both
these draft resolutions were rejecteatthe final vote, after the petitioners
had had theirSay.
In paragraph 40, Mr. Kerina continued:
"The petitioners regard draftResoIution A/C. 4/L. 714, [that is
the one which was eventually adopted) as the only acceptable com-
promise with their own proposals."
Mr. Nujorna, 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 petitioners 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 wasa possibility of partition]. Although
the petitioners appreciatcdthe motives of the sponsors, they could
not ask the Committee Io support those proposals 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 itfollowed on. The1.ewere a number of otherpetitionerswho
expressed views In similar veiii.136 SOUTH WEST AFRICA
The list, hlr. President, is not isolated; ofinthe Fourth Committee,
when thedraft resolution is adopted which goes tothe General Assembly,
supplementary hearings of petitioners are granted and they express
their views. They were present during the deliberations of the Fourth
Comrnittee on the resolutions when resolution r805 of the Seventeenth
Session was adopted, as well as when resolution 1899 of the Eighteenth
Session was adopted. 1 need not give further examples dong that line.
Just returning to onc 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 find that before the petitioners had
exprcssed these views, to which 1 have referred, Mr. Salamanca of
Bolivia had stated he assumed that : "the petitioners had been consulied
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 Guinea provided the answer, when he said:
".. . The sponsors ofdraft resolutionA/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 staternents in the Fourth Committee will shoisl.hlr. Quaison-
Sackey ofGhana, during the Fifteenth Session of the Gencral Assembly,
before the Fourth Committee, its 1053rd Meeting, page 318, said itwas
clear tohis delegat'ion:
"that the petitioners definitely ~epresented the territory; thanks
to their heip and to that of the Reverend Michael Scott, his delega-
tion had obtained the information which it required."
hfr. 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
before the Conimittee by the genuinc representatives of the people
of South \Vest Africa furnished eloquent testimony of the violation
of the Mandat<:by the South African Govcrnrnent, etc."
The same assumption even appears from resolutions of the General
AssernbIy itself. Thus resolution 1056 of the Eleventh Session of 26
February 1957 explicitly rendsas follows:
"The GeneralAssembly,Havinggranled hcarings to Mr. Mbururnba
Kerina Getzen, a petitioner from South West Africa, and the
Reverend &TichaelScott, a petitioner on behalf of African inhabitants
of South West Africa,
r. Takss note of the ststements of the petitioners on behalf of
African inhabitants of the Territory of South West Africa under
the administration of the Union of South Africa;
2.Decides to transmit to the Comrnittee on South West Africa
the statements of the petitioners for study and consideration."
In Oursubmission. Mr. President, Mr. Dahlmann's evidence has clearly
shoivn that the notion that the views and wishes of the petitioners
represent those of the indigenous population of the Territory is without ADDRESS BY MR. VAN ROOYEN I37
substance. It wilbe recalled that Mr. Dahlmann testified that the first
non-Imite political parties in SouthIVest Africa were formed niainly
as a result of instigation by petitioners, notabRIr. Kerina, from uver-
seas. That was in the verbatim record o8 October 1965 , Iat page 459.
He also testified tliat apart from the Chief's Council, today represented
through the political front oNUDO, which is a purely Herero organi-
zation, the cstablished political parties enjoy very littlesupport amongst
the indigenous population. That was in the same vcrbatim, on pages 470,
81 seq.and especially on page 477. He also testified thalsome petitions
sent to the United Nations from the Temtory were actually drafted
by petitioners overseas (that is from pp464-465 of the same verhatim)
and that the petitioners overseas are actually continuing with their
campaign without much reference to their associates in South West
Africa. To quote hiç own words, on page 478 of the same verbatini:
"They [that is the petitioners overseas] are issuing ofteii policy
staternents which are unkriown in South West Africa. One example,
as 1 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 Kcipuuo, the part)? president in South ifTest
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 nncl he had not rt:ceived a copy."
The questioii then arises how did the petitioners overseas corne to
be regarded as rcpresentatives of the whole indigenous population of
South \ITestAfrica or at leasas representative of the majoritp of them.
It is not difficult to find the aiis\i*er.Be1959 he petitioners simply
said that they were representing the indigenouç population of South
West Africa and they were believed. After 1959 .ne will notice on a
reference to the records of the hearings that were granted to them and
the petitions trarismitted by them, that almost invariably they refcrred
to themselves and were referred to as representatives of political parties.
That, after all, 3Ir. President, was one of the main reasons why hlr. Lerina
in 1959 had written to associa te^in the Territory to create political
parties su that hc would be able to represent himselas a representative
of those parties at theUnited Nations, and he hacl said that that would
strengthen his hsnd and afford him power ai the United Nations.
Now, &Ir. Dahlmann has shown in his evidence that the number of
members claimeil by these organizations is unreliable and incorrect.
7'0 refer to but one example: the Secretary-General of UNIPI'-the
Court will recall thatIr, Dahlmann gave evidence that UXIPP esisted
only on paper and was totally unknown in South West Africa-this
Secretary-General, Tsilima Sokugoina, claimed in a petition to the United
Nations that his party represented 245,000 people. Reference to thisis
to be found at XI, page 500. And the petition concerned, which rnakes
interesting reacling also as asrthe political objectives of this particular
party is concerned, was referred to, which is document A/AC. rogjPet.
279, Add. 3, page z.
hloreover, AIr.President, when petitioners were asked, during hearings
of the various cornmittees, for information on the organizations repre-
sented by them, it often happened that a point of order was raiçed or
that the Chairman stated that such questions should not be nsked.
By way of illiistration, 1 quote just one excerpt from the records of138 SOUTH WEST AFRICA
the Committee on South IVest Africa at its 133rd aleeting, pages 4-5-
It states:
''Bir. Boeg of Denrnark asked for information of the variouç
organizations iriSouth West Africa, in particular onthe Ovamboland
People'sOrganization and the South WestAfrica National Congress."
(AlAc. 731SR 133.1
Mr. Kozonguizi started explaining and 1 am skipping that portion
where he started explaining the position and then the record continues
a!3follows:
"MY. Hail8~taïiunt (Ethiopia), speaking on a point of order, said
that in his ovinion re~resentatives shouId abstain from asking ~eti-
tioners to rkveal information which might be prejudicial to"them
or injurious to their political organizations.
tative. He recalled that he had several times issued the samen-
of it.". He hoped that the petitioners would take due account
In view of these facts, Mr. President, it is not surprising that the entirely
erroneous notion was established that the petitioners are trulp repreçen-
tative of the indigenous population of the Territory.
Finally, Mr. President, 1 am shortly reverting just to a few examples
of General Assembly resolutions themseIves. From the portion of resolu-
tion 1056of the 11th Session which 1 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, everyyear since 1955 the General Assembly has passed resolutions
taking note of the statements of petitioners. 1 might state in passing
that al1the resolutions pertaining to South West Africa relied upon by
Applicants for the substantiation of their alleged norm and/or standards
were adopted after tliis date. The extent to which the statements of
Assembly sornetimes even appears from the text of the resolution itself.
The foiiowing are just a few examples-the preamble of resolution 1360
ofthe 14th Session,which isone of the resolutions reIied 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 opiiiions
formed by the Cornmittee on South llrest Africa concerning political,
social. economic and educational conditions prevailing in the Terri-
tory,''
and then the resolution goes on from there. Resolution 1567 (SV) of
the 15th Session referred in the preamble to the following:
"Talzifiginto 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 1703of the 16th Session is alsoexplicit ; one of the paragraphs
of the preamble reads:
"Nalifig wiih hh grauest colacevn, 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 FlYMR. VAN ROOYEN I39
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 1805of the 17th Session, the preamble, once more referred
to certain previous resolutions including 1702, which 1 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 t~voreports and having heard the petitioners,
expressing its deep concern", etc.
Mr. President, this concludes Ourexposition 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. LVehave said
enough in our submission to justify the foilowing conclusions:
~irstl~, that the ailegations of petitioners to-the United Nations on
rnatters of fundamental importance regarding Respondent 'spolicies
and actions have been patently false.
Secondly, that such ailegations have nevertheless been repeated con-
sistently and systematically, and have been unfortunately accepted
by a large number of delegâtions and by committees and organs of
the United Nations.
Thirdly, thatthe 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 infiuenced 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
policies and actions are concerned.
~ourthl~, 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 ths 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 binding standards were
created or whereby binding judgments were pronounced regrtrding
violations oflegal obligations.
This, Nr. President, brings me to the end of rny address. There is stiIl
one aspect relating to the resolutionswhich must be dealt with and, with
the President's permission, rny colleague, Dr. van Heerden, will address
the Court on that aspect. 28. ADDRESS BY 31R. VAN HEEKIIEN
COUNSEL FOR THE GOVERNhlENT OF SOUTH AFRICX
AT THE PUBLIC HEARINGS OF 28 AKD 29 OCTOBER 196j
JIr. President, my cotleagues have already demonstrated that for
several reasons stated by them no wcight can be attached by this Court
to the resolutions iipon which Applicants rely, within the context of a
norm or standards contention.
1 turn now to yct another reason why, in Our respectful submission,
Applicants' contention, as based on the resolutions inquestion, cannot
possibly succeed. This reason can be stated very simply, namely that
the resoIutions did not even purport to attempt to evolve or apply a
norm and/or standards of non-separation as defined by Applicantç.
The resolutions of the General Asse~nbly relied upon by Applicants
have already been identified by my learned senior &Ir.de Villiers; they
are referred to in the Reply, IV, page 502, footnote 4, and were again
mentioned in the verbatim record of 18 May, TX. As already stated,
nine of these resolutions applied to South IVest Africaand 16 to South
Africa itsclf. These resolutions, Mr. President, wal1General 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. Thesi: grounds are to be found in the verbatim record of
16 May, lx, page 332, where Applicants said:
"The essential elernent linking al1 relevant reports, resolutions,
communicatio~is, 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 sarne page the Applicants asaid:
"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 ofSouth Africa and in the Terri-
tory of South West Africa, as the pleadings make crystal clear and
as is conceded by the Respondent. The fundamental policy and
practices in force in the Territory and in the Republic areentially
the same in al1respects relevant here."
MT. President, there are ubviouslp tnro key passages here: in this in-
stance, Applicants say that the resolutions "[stand]in repudiation and
condemnation of apartheid"; then, they say that they cite these resolu-
tions for the purpose of demonçtrating "the judgment of the organized
international cornmunity" 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 13Y MR. VAN HEERDEN 141
namely : the judgment of organized international comrnunities with
respect to the allotment of rights, duties, etc., on the bâsis of member-
ship in a group rather than on the basis of individual merit. It \vil1be
seen, Mr. President, that Applicants here equate apartheid with separa-
tion or discrimination on the Eiasisof membership in a group.
On analysis, the argument appears to amount ta this: if a norm andior
standards as suggested by Applicants were in existence, apartheid would
be in confiict therewith. The resolutions condemn apartheid, therefore,
the resolutionç must have been based on the notion of the existence and
application of a suggested norm and/or standard. AIr. President, it wil1
be obvious that such an argument involves a cornplete qaonsequitur.
Most of the resolutions indeed spoke advcrsely of, or even condernned,
apartheid by name or Respondent's policies in generril. 13ut surely the
important clucstion is, what ditthe authors and supporters of the resolu-
tionsconceive 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 bcing obnosious in itself and requiring their con-
demnafion, or did they think of apartheid as a policy which unfairly
discriminates agüinst n partit-ular group for the benefit of another?
It would be obvious that if the authors noclsupporters of the resoliitions
viewed apartheid, separate development, in this latter sense. that is, as
involving unfair discrimination, then these resolutionç cannot possibly
assist Applicants' case regardiiig the standards or norm, and, Mr. Presi-
dent,it isof course purely for the purposes of a norm or standards con-
tention that Applicants rely on these resolutions.
It is Our purpose in this review to demonstrate that apartheid rvas
condernned inthese resolutions esactly on the basis of a conception that
apartheid was an oppressive system, discriminating against some groups
for the benefit of otherç, and ilot on the basis of a conception that any
differential allotment of rjghts, duties, obligations, etc., on the bais of
membership in a group rather than on the basis of individual merit,
need, capacity, etc., must be regarded asa fieuse violation of international
laurand/or of standards intended to be laid down asbinding by the United
Kations.
We propose dealing first with the resolutions pertaining to South
\;l'estAfricn a,d thereafter with those pertainjng to South Africa itself.
The former nine resolutions were alladopted during the rqth, Ijth, 16th,
17th and 18th Sessions of the General Assembl~r-that was duriiig the
period 1959-1963-and thcy urere al1 based on reports of the Fourth
Committee. Sincc no or very iittle discussion took place in the General
Assembly prior to the adoption of these resolutions, and since the resolu-
tions were identical with the relevandraft resolutions which were adopted
in the Fourth Committee, it is to thedebates in the Fourth Committee
that one haç 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 influence of the annual reports of the Committee on South West
Africa on the debates in the Fourth Committee. My colleagues have al-
ready çhown that these reports were to a large estent influencecl by
written petitions and by oral statements ofpetitioners who were granted
hearings by the Committee oii South 'IVestAfrica. These reports were
annually submitted to the Fourth Committee, and, together ivith state-142 SOUTH WEST AFRICA
ments made by petitioners who mere 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 clebates in the I7ourth Committee was statements by petitioners and
the reports of the Committee on South West Africa.
In view of the influence ofthe reports on these debates, from which we
shall cite a number ofextracts, 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 purely because the Committee
viewed apartheid or separate development as a policy designed to oppress
and subjugate the indigenous inhabitants of the Territory. LVeshall at
a later stage, when dealing with the so-called question of legal action
agaiiist South Africa, illustrate this thesiby citing extracts from the
Cornmittee's reports during the period 1954-1gSg.The Court will probably
know that prior to the institution of the present action ainst Reçpon-
dent studies were undertaken by organs of the United ? ations relative
to possible legal action which could be instituted against Respondent;
itis when dealing with these studies that we shall cite extracts from the
reports for the pcriod 1gj4-1959.
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. 1 quote first from the 1960 report-the reference is General As-
sernbly,Oficial Records, 15th Session, Supplement No. 12 (A14464). In
this report, in its concluding remarks, the Committee stated:
"The Mandatory Power has continued to administcr the Territory
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 Wuman 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 adrninistra-
tion lvhich subordinates the well-being and paramount interests of
the 'Xative' 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 l'irhite supremacy, and then it is
said that the Administration subordinates the well-being and paramount
interests of the Native and CoIoured population to those of the Euro-
peans.
In the 1961 special report the Committee, \vith reference to the eco-
nomic life of the Territory, concluded that-
"the Xative peoples have no share in the profitof trade, commerce
and induçtry, or in the utilization or exploitation of their agricul-
tural, fishing or rich mineral resources, their onIy role being as a
cheap source of labour for the benefit of the M'hites, with no right
to own land, which has been alienated to the extent that onIy26 per
cent. of the total land area of the Territory has been reserved for ADDRESS BY MR. VAN HEERDEN
I43
the Non-European majority. Neither have the Natives the right to
practise the professions or to engage in general trade, commerce
and industry .. .". (GeneralAssembly, Oflcial Records, 16th Session,
Supplement No. 12.4(A/49z6), 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 menia1 occupations in order to keep
them in a state of subservience to the White minority." (P. 21.)
Here it is said that in the economicfield apartheid ensures that the Natives
have no share whatsoever in the resources of the Territory, theii- only
role being one of a.source of cheap labour, andthen it is said that in the
educational field apartheid ensures that this cconomic status quo is
perpetuated-clearly allegations of suppression and oppression of the
Native inhabitants of the Territory.
In the 1961 annual report the Cornmittee, with reference to the special
report, stated that two basic policies were consistently appiied to the
Territory; firstly, a policy of annexation, and secondly-
"the ruthless application of the policy of apartheid in al1aspects of
life of the Native inhabitants whereby tlieir interests and well-
being, which are paramount under the terms of the Mandate and
the International Trustecship System, have been completely sub-
ordinated to those of the White minority, thus depriving them of
basic human rights and fundamental freedoms .. .". (GenernlAs-
sembly,Oficial Records, 16th Session, Supplement Xo. 12 (A/4957),
P 30.1
There we have the same theme of subordination of the indigenous in-
habitants to the interests of tlie White inhabitants.
In view of the nature of these and other statements and conclusions
of the Committee on South West Africa, and of the evidence of petition-
ers, it was onlyto 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 1 shall now
proceed to show.
It willbe realized that it is, of course, not feasible to quote the views
of every delegate to the Fourth Cornmittee who voted for the draft
resoiutions in question, but the passages which we shall cite, in oiir sub-
mission, provide sufficient examples to dernonstrate that when speaking
of apartheid or of Respondent's policies in general, delegates thought of
the policy desigried to oppress, and in fact oppressing. the non-\Vhite
inhabitants of the Territory. and not of the policy involvjng mere differ-
entiation or separation or discrimination on the basis of group or race.
UTedo not sugest that this appears positively from each ancl every
statement to be found in thc relative debates. Some statements, Mr.
President, are colourless in the sense that they do not explicitly reveal
why the speakers concerned spoke ad\-ersely 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 iights,
duties, on the basis of membership in a group, rather than on the basis ofKM SOUTH WEST AFRICA
individual rnerit, etc. 1tTecan 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 ofsubstance 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 tci pursue the aspect of factval inaccuracy in respect of
each and everp one:of the statements made in the debates. Nor is it our
concern for purpose of argument now being advanced. Indeed, it suffices
to say that absence of further comment on the truth, or otherwise, of
the statements to be cited is iiot to be construed as a concession ofthe
correctness thereof.
Itmay also be pointed out that in the quotations to follow there may
be sorne overlappiilg with the substance of estracts already stated for
other purposes. This is regrettably uriavoidable and we have endeavoured
to reduce that to a minimum. It is a fact, Mr. President, that qiiotations
made for other pusposes have already, to a large cxtent, illustrated the
point with which 1 am concerned in this argument. Consequently T necd
not cite so many passages as otherwise might have been necessary.
Iturn now to the 14th Session of the General Assernbly. During this
session only one resolution pertaining to South West Africa was adopted :
that was resolution Xo. 1360, the reference being: General Assembly,
Opcial Records, 14th Session, Supplement No. 16 A14354. wilst the
operative 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 rnanner contrary to the Mandate,
the Charter of the United Nations, the Universal Declaration of
Human Rights .. .".
And as has already been pointed out by my colleague, Mr. van Rooyen,
the preamble also referred to-
". .. the stûtements of petitioners which further corroborate the
conclusions and opinions formed by the Cornmittee on South West
Africa concerning political, social, economic and educational con-
ditions prevailing in theTerritory".
Reference to the debates in the Fourth Committce immediately makes
it clear why it was thought that the administration of the Tcrritory was
conducted in a rnanner contrary to the Mandate, etc.
In the first place, Mr. President, 1 refer to a statement made in the
gzrst Meeting of the Fourth Cornmittee, by hlr. Samsuri of Albania.
This is a representative statement containing a number of elements
echoed by other delegates. This çpeaker-
". .. stated tliat the Union Governrnent, flagrantly violating the
principlesof tlie United Nations Charter, had virtually transformed
the Territory of South West Africa into a colony and reduced its
African population to a stateof slavery. The report of the Commit-
tee on South West Africa and the statements made by petitioners
shorved that the economic situation of the African inhabitants was
steadily detcriorating, that they were looked upon by the Adminis- ADDRESS BY MR. VAN HHERDEN
I45
tration as nothing more than a source of low-cost labour and that
they were given noopportunity to develop skills which would enable
them to rise above their present position. Whole communities of
Africanç were being forcibly rernoved from their traditional lands in
order to make way for European settlers. Educational and health
conditions among the African population were deplorable. 'l'hein-
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 Cornmittee on South West Africa had been
not onlv continued but intensified".
'In çuppo~t of this staternent, he echoed that-
". . .peopIe werc driven from their land and tlieir homes, and filmilies
wcre separated, in order rhat the best land rnight be taken from the
indigenous population and handed over to the Europeans . . . that
Natives could be compelïed to work for Europeans in conditions of
virtual serfdom. They were denied the most elementary human
rights."
Mr. President, thiswas from the rqth Session of theFourth Cornmittee,
at page 204.
The same theme was repeated by other delegates, but 1 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 espeiling then1 from
the lands to make place forEuropean settlers. The same theme recurred
with absolute inonotonous regularity, as reference to Our list niarked
"J"' wiil show.
hlr. President,1 may say here that 1 shall refer to a number of other
lists, al1of which have been harided in to the Registrar and a copy has
been lianded to the Agent for the Applicants. 1 should like, however, to
add two references to the list marked " J". 1 had intended to read these
quotations, but did not find it nccessary to do so. They are:
MY.Rodriguez Fabr~gat (Uruguay): gzznd Meeting (py. 211-212).
MY. Abikusno (Indonesia): 920th Meeting (p. 201).
hlr. President, bciore the adjournment 1 cited some estracts from de-
bates in the Fourth Cornmittee during the Fourteenth Session of the
General Assembly. 1 also referred to further references set out in our list
marked "J".
Rut many more speeches coiild have been referred to: throughout
' f:o:ozhornmiltee:
U Tin ~IIaung (Burma) : 916th Jïeetin(p.r75).
AIv.Kirn Khoan (Camhdia) : 918thMeeting (p. 186).
Afr. Shumada (Ukrajnian S.S.R.):918th Rleeting (p. 139)
IllrCaba (Guinea): 9z1stMeeting (p. 203).
Mr. Sidi Baba (3i<iroccn)916thMeeting (p. 177).
Mr. rldani (Ghana): gz3rd Meeting (p216).
Mu. Criizberg (Bulgariag3rstMeeting (p. 252).146 SOUTH WEST AFRlCA
these debates, as also in the debates of later sessions, çtatements made
by delegates who voted for the draft reçolutions left no doubt that they
perceived apartheid to be an arbitrary and even brutal poIicy, designed
to suppresç and oppress the Native population and to benefit the White
gryup.
corne, then, to the 15th Session of the General Assembly. During thiç
session, four resolutionspertaining to South \ifest Africa were adopted.
One of these. No. 1567. dealt with a specific occurrence, that is, the riot
in the Windhoek Native Area in December Igjg; whilst another, No.
1565 (p. 31), was concerned with-
"Legal action to ensure the fulfilment of the obligations assumed
by the Uiiion of South Africa in respect of the Territory of South
iVest Africa."
A third resolutioii, No.1596, related to Kespondent's refusal to ailow
the Committee on South West Africa to enter the l'erritory; 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". In the first paragraph
of the operative part of this resolution, reference was made to-
". ..a policy which infringes the fundarnental 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 willbe seen that the wording of these two resolutions already in-
dicates clearly that disapproval of Respondent's policies uras based on
the notion that they oppressed the indigenous inhabitants. After all,
Mr. President, the I-esolutions spoke explicitly of tyrannical policies, of
disabilities imposed upon theindigenous population, and of infringement
of the fundamental rights. At any rate, the debates in the Fourth Com-
mittee confirm this entirely. 1 shall cite only three passages to prove thiç
point.
At the 10j8th Meeting of the Fourth CommitteeMr. Kuchava, U.S.S.R.,
said :
"In flagrant violation ofthe principles of the Charter, the Geiieral
Asçembly resolutions and the international commitments entered
into by the Union of South Africa, the South African Government
had trançformed 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 \17est Africa. statements by
petitioners, ancl articles in the Press, al1 testified to the shameless
exploitation of an entire peopIe by n minority of European settlers
who were carrying out the 'apartheid' policy of the Union Govern-
ment."
The reference here is Fourth Comrnittee, I5th Session, page 339.
.4t the 106end Meeting of the Comrnittce, ;\Ir. Maghera (Romania) at
page 365, speaking of the policy of apartheid, said that- ADDRESS BY MR. VAPI HEERDEN I47
". .. under that policy thr: welfare and interests of the 'Native' and
'Coloured' populations were completely çubordinated to the policy
of 'white suprernacy'. The exarnples of the implementation of that
policy cited by the petitioners and in the report had filled the mem-
bers of the Fourth Committce with indignation. Not only were the
indigenous iiihabitantç confined to reserves deprived of al1political
rights and reduced to s condition of virtual slavery, not only were
unarmed Africans ai the mercy of armed 'Europenns', but the Ad-
ministration had introduced Bantu education, which consisted in
training Africans to resign themselves to tlie status of beasts of
burden."
At the same meeting IIr. Lamani, Albania, virtuaily repeated the
statement made bp his colleague during the previous year-that was
at page 367 of the relevant dcbatcs-and Rfr.El Amin (Sudan), repeated
portions of the statements miide bp Mr. Maghera of Romania, which 1
have just cited. As a matter of fact, Mr. President, the similarity in the
language used by the speakers is trulj? remarkable, for Mr. El Amin of
the Sudan also said that the Natives were prevented from resisting
"apartheid" "under which thcir status would be that of animais". This
is at page 369 of the relevant report.
Finally, hlr. Yrcsident, 1 cite from a speech by U Tin Alaung, Burma,
at the 1116th hleeting of the l'ourth Cornmittee, page Ior:
"What that policy (i.e., apartheid) amounted to was domination
by the 'LVhites'over the indigenous population in the eco~lomic,
social and political fields."
There are matiy other speeches, Mr. President, which repeated this
very same thing. We have made reference to some in Our list marked
I'--1.
There \vil1be found examples of similar 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 "Ku 1 should Liketo add a few
others, which 1 had first of al1intended to read out to the Court. First,
Ililr. Kzidryavlsev, Hyelorussian S.S.R., at the 1115th Meeting, page 91,
and Mr. Gassou, Togo, at the 1076th Meeting, pages 456-457.
Only one resolution pertaining to South West Africs was adopted at
FourthConwaiflee:
hlr.Kesiler (Guatemala): 1058th Aleetiiip. 340.
dlr. Thopa (Sepal): 1059th hleeting1)343.
Alr. li'izia (Ukrainian S.S.R.): 1059th Meeting344.
Ilfr. dlarcos (Philippines): 1060th JIeeting, p. 349
MY. Qunison-Sackey (Ghana): 1060th Meeting, p.343.
MY. Znliir(Malaya): 1060th Meeting, p. 352.
1Y1v.~d~~?intilbsriia)roGznd Meeting. p. 367.
hfr. Diano .+ilph(Guinea): 106rst TvIeeting,p. 358.
Mr. Wahnb (U.A.R.): robznd Meeting. pp. 361-362.
JWY..Saplzinni~(Indonesi:)1062nd Meeting, p.366.
Mr. Carpio (Philippines: 1050th Meeting, p. 301.
hlr. Loriirc (Hungary): 1o6nnd Meeting, p. 364.
nlr. Bouairi (Tunisia:1073rd Meeting, p. 436.
MY. Lapin (U.S.S.II.): ~roist Meeting, p. 16.
Mr. Cnrpio (Philippines: II15th Meeting. pp.93-34.14~ SOUTH WEST AFRICA
the 16th Session of the General Assembly. The preamble of the resolution,
that \vas No. 1702 (XVI), spoke of-
".. . the progressive deterioration of the situation in South IVest
Africa as a result of the ruthless intensification of the policy of
apartheid".
In its operative part itwas decided to establish a United Nations
Special Cornmittee for South West Africa whose task it would be to
achieve the repeal of laws and regulations which "establish and maintain
the intolerable system of apartheid". The rcference here is to Gelaeral
Assembly, O@cialKccords, 16th Session, Volume 1, Supplement No. 17,
A/groo. page 40. Reference to the debates in the Fourth Committee
shows that apartheid was still viewed asbefore. that is, as an oppressive
system.
IlIr. President, as the general tenor, £rom yearto year, ivas the same,
the only difîerence being an increase in intensity, 1 çhall from now on-
wards make the actual quotations shorter and leave more to references
in the record.
At the 1z3y-d Meeting of the Cornmittee, Mr. Hajro of Albania stated
at page 490:
"Under the apartheid system the Africans were prisoners in their
own country and were deprived of al1 human rights and of their
fundamental freedomç. Treated as inferiors and as slaves, their soIe
function was tci serve the Whites."
This is from the Fourth Committee records, 16th Session, page 490.
Mr. Khosla of Iiidia, at the ~njznd Meeting of the Committee, at
page 481.said:
"There was ample evidence to show that the Mandated Territory
had been treated asa domain reserved for exclusive and incrciless
exploitation by the Afrikaners. The indigenous inhabitants were
denied al1 basic human rights and fundamental freedoms, kept in
suhjection by force, made to live in poverty and denied education."
Finally, a refere~ice toMr. Carpio of the Philippines, at the 1225th
Meeting of the Committee, pages 428-429 follows:
"The situation was aggravated by the fact that South Africa had,
from the start ofits administration. practiseda policy of 'apartheid',
which was one of the vilest forms of racial segregationand resulted
in the interests of the indigenous population being entirely sub-
ordinated to those of the minority of settlers..."
There is stiil one cxcerpt which 1should like to quote and that is from
a speech by hlr.O'Sullivan of Ireland at the 1236th Meeting ofthe Com-
mittce, page 51s :
"Instead of preparing the Territory for independence, inçtead of
promoting to tlie utmost the material and moral well-being and the
socialprogress of the inhabitants as required by the terms of the
Mandate, the South African Government had enforced a series of
mcasures desigried to maintain the indigenous inhabitants in a rudi-
mentary state of civilization, to dispossess them oftheir land and
move them forcibly to Native reserves, to organize the cultivation
of @mer Native land by South African and other white settlers and
generally to establish a situation leading up tothe annexation of the
hlandated Territory ." ADDRESS BT MR. VAN HEERDEN I49
Here wefind, in the estracts which 1have quoted, the same basic theme
repeated over and over. Apartheid means the deliberate oppressioii of the
non-Whites for the benefit of the White group.
Further refereiices are given in the list marked "L"'.
Coming to tlie 17th Session of the General Açsembly-during this
Session the Assernbly adopted resolution 180j(XVII). Tlie reference to
this is Generali rlssembly, Ofiicial Records, 17th Session, Supplement
NO. 17,i\/5217.
This resolution did not in sa manv words condemn n~artheid. or lie-
sp&dent's policies generall , but referred back to preGouç resolutions,
and, in particu1;ir. to resofition 1702 (XVI), with which 1 have just
dealt, which was adopted during the ~GthSession. In its opcrative part
the resolution condemned-
"the continued refusal of the Government of South Africa to co-
operate with the United Nations in the implementation of resolution
17az (XVI) as well as cither resolutions concerning South West
Africa" ;
and since the latter resolution sequested Kcspondent tu assist in repealing
al1 laws which established the system of apartheid, the resolution under
discussion by iniplication condemned the application of a policy of
apartheid or separate development to the Territory.
In the prcrirnhle of this resolution concern was espressed "that the '
continuance of the critical situation in South West Africa constituteç
a serious threat to international peace and security". Itwill be recalled
that Ap- -cants placed somc obscure importance on what they termcd:
". .. the cliaracterization by the ~encral AssernbIy of the policy
practised in both South West Africn and in the Republic itself not
only as a breach of the Charter obligations but also as a threat to
international peace".
This is from the verbatim record of 18May, IX, pages 333-334. This,
çaid Applicants, was :
"Indicative of the seriousness with which member States, with a
consensus virtually appi-oaching uiianimity, have regarded the
developrncnt and continuation of the policy of apartheid. . ."
(lx, P. 333.)
As in the case of the other resolutions, the debates in the Fourth
Cornmittee clearly show why delegates who voted for the draft resolu-
tions, condemned what they termed apartheid and why they thought
that the continuation of Res],ondent1s policies constituted a threat to
* 6-0:ourColnmiilee :
Alr. r'v7eklessa(U.S.S.R.): ~zjznd hleetip. go+
Jlr.Cnrpio (Philippines):rziSth Meeting. pp. 3.55-386
:lfisI~itru(Ethioliia)1230th Meeting. p. 469.
111~P.tiris(Ceylon): 123znd Meeting, p.473.
~l.lr.Szilagyi (Hungary)1231st hketing, p.475.
filrKhosla (india):123znd Meeting, pp. 481-482.
fiIrBanzar (RIorigolia)tz33rd hIt:etinp. 487.
iZIr. Riilgham (U.S.A.): 1z33rd Meetingp. $92.
ilfr~Veklessa(1i.S.S.R.: 1234thMeeting, p. 504.
Air.Ibe (Sigeria):1236th hleeting, p. 517.
11frBrykin (U.S.S.K.): 1235th hleeting. p.509.
dlr. Sanliso Galve(Guatemala): r.234thAZeetiiig.p499.l5'3 SOUTH WEST AFRICA
international peace. We shall show that even to a greater extent than
before, the notion was expressed that apartheid was a policy of ruthlesç
suppression and even extermination of the indigenous inhabitants of the
Territory.
At the 1379th Meeting of the Comrnittee, Mr. Lang10of Nonvay was
reported to have said:
"Apartheid was the cause of al1 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, Illr. Ngando-Black of
Carneroon said, intcr dia, that the indigenous inhabitants-
".. .were not aiiowed to own land . . nor were they allowed to
enter the Iiberal professions, to carsy on trade or industry or to
establisfi tradt: unions ... Under the so-called Bantu education
system, the indigenous inhabitants u7eregiven only a rudimentary
education and training, so that they would remain in subjection to
the white rninority."
This is from the same source, at page 329.
1 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
iu'ativereserves which would furnish 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 referenccs are given in our list rnarked "My' 1.
Fourth Cornmilte:
MY. rltidépd (Togo): 1376th Meeting. pp. 300-301.
Air.Dvnyterko (Ukranian S.S.R.): 1377th Meeting, p. 310.
kir.Vale?tcia(Ecuador): 1377th Meeting, p. 3I.
.&Ir Khosla (India):r:)78th Meeting, p. 315.
MY. N'Garnbaye (Chatt):1375th Meeting, p. 3x7.
MY. Gren (U.S.S.R.): 1378th hleeting, pp. 317-318.
MY.Pureujnl (Rlongolia): 1379th hleeting, p. 326.
.dlr. Szilagyi (Hungary: r380th Meeting, p. 333.
Mr. Lamani (Albania): 13Srith Meeting. p.334.
MT. Shaba (Tanganyika): 1381st Meeting. p. 342.
MY. Boeouie (Yugoslavia):138znd Meeting, p. 353.
.MY. Delgado((Senegal):1385th hleeting, p. 371.
.Mr. El-Masri (Libya): 1386thMeeting. p. 380.
illr. Hamdani (Pakist;in)1386th Meeting, p. 381.
iMr. Issa(Xiger):1357th Meeting. pp. 388-389.
MY.Salo (Central African Republic): 1387th Meeting, p.389.
My. Ipulo (Congo. Lenpoldville): 1387th hleetinp. 392.
MY. Huidobro (Chile): 1376th Meeting, pp.299-300.
.iMrJlakkawi {Lebanon): 1383rd hleeting, p. 359.
ilfass amal (Iraq): 1383rd Meeting,p. 364.
JIr.El Awad (Sudan): 13S1st hIeeting, p.343. ADDRESS BY MR. VAN HEERDEN =gr
FinaUy, &Ir. President, we corne to the 18th Session of the General
Assembly. Uuring this Session, the General Assembly adopted two,
resolutions pertaining to South West Africa: resolution 1979 (XVIII)
was exclusively concerned with Respondent's so-called refusa1 to co-
operate with the United Nations in regard to the implementation of the,
Declaration on the granting of independence to colonial countries and.
peoplcs, and it is consequently not of any immediate interest; resolution
1899(XVIIIJ foilowed much the same lines as resolution180j(XVII),
adopted at the 17th Session of the General Assembly. In the preamble.
of this resolution. referencewas 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 serious threat to international peace and security".
Now, Mr. President, references to the debates in the Fourthcorn-
mittee show that the notion that Respondent's poIicies were designed
to suppress, subjugate, and even exterminate the indigenous inhabitants.
had, if anything. grown firrnt:r, and that the condemnation of these
policies on such false premises had become cven more hysterical. A few
examples, selected at randornfrom the debates of the Fourth Committee-
during the 18th Session, should suffice to prove this point.
First ofall1should liketo refer to a statement made by Rlr. Chernush-
chenko of the Byelorussian S.S.R.,at the 1462nd Meeting of the Fourth:
Committee, when he said, interdia:
"In South West Africa, 500,000 Blacks, representing go per cent.
of the Territory's total population, lived in slavery and were de-
prjved of their most elementary rights. The ovenvhelming majority
of the population had been herded into reserves that were corn-.
parable to the fascist concentration camps and were mainly to be
found in thedry and leastfertileegions in the north ofthe Territory."
At the 1460th Meeting of the Committee, Mr. Kooli of Tunisia said:.
"The ~rinci~le which ~uided the Mandatorv was that of tvhite
suprerna~y an'd, throughv its policies of apartheid. South Africa
withheld from the indigenous inhabitants anv ~ossibility of social,
econornic and politicaiYprogress and any ho.CeAofsomedday being.
able to errercise 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 in South West Africa, while the barbarous policy of apartheid
was also being more broadly and more intensely applied."
Finally, 1 refer to a statement made by air. Cabal of Brazil, at the
1457th Meeting of the Cornmittee, at page 151:
"Thus the factual situation was that there was in the Territory
of South West Africa an inhuman policy designed to subordinate
and exploit the indigenous population . .."
So, hlr. President, we find here allegations of oppression, of subjection,
of treating the Xatives as inferiorurnan beings, even serious allegations.
of genocide-that is what the word or the concept of apartheid conveyed152 SOUTH WEST AFRICrZ
to these deIegates, not a mere allotment of rights, duties, etc., on the
basis of rnembership in a group rather than on individual merit, etc.
The çame theme, 3lr. President, was expressed in numerous other
statements, some of which are referred to on Our list marked "KM l.
hlany more examples of speeches to the same effect as estracts quoted
by us could be citi:d, but we submit that we have shown conclusively
that none of the resolutions relied upon by Applicants, at least those
pertaining to Soutfi 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 differeritiation on the basis of a group or race is im-
permissible, but upon thc basis of acceptance that such policies were
designed to, and did in fact, oppress the indige~ious inhabitants of the
Territory for the benefit of the IVhite group. Hence, hlr. President, the
repeated allegations of subjugation of the Natives, of depriving them of
al1human rights, of confiscating their land, of driving them to the poorest
and least fertile areas of the Territory, of deliberateretarding of economic
progresç, of davery, of forced labour, of education designed 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. If 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. -4s 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, hIr.President, becxuse, in the
face of the facts presented to the Court by Respondent, Applicants \vould
have bcen wholly unable to produce the necessary factual proof that
wouId have been required for success on that basis.
It is consequently wholly unnecessary for us to show that Kespondent'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 leriving the resolutions pertaining to South West Africa, it will be
convenient to recall that one of Applicants' arguments relating to their
standards andlor norrn 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 Coi?tritillee:
111~.Ene (Romanja): 14~gth 3Ieetiilgp. 1%.
MY. Salifou (Siger): 1458th Meeting, pp.160-161.
Mr. Budu-Acqirah (Ghana): 1458th Meeting, p. 158.
MT. Aworiîcc (IvoryCoast):e1460th Meeting, p. 183. 181-I~Z,
111~.Hana (Xcpal): 1460th Mceting, pp. 184-185.
MY.Purevjal (hlangolia) :1460th hleeting,p. 185.
dfr. Kundya (Tanganvika): 1460th Meeting, p. 186.
nfr. Alongono (Sigeria):146ist Meeting, p. 191.
Mr. Alexeyou (Ukrainian S.S.lZ.): 1464th Meeting, p. 215.
MYS.Campos(Cuba): 1464th nleetingp. 217.
Mr. Lu10 (Albania):1461st Rfceting.
Mr. &la~ikou{Congo, BrazzavilleJ: 147znd Rieeting.p. 258. ADDRESS 13Y MR. VAN HEERDEN I53
". .. the incompatibility of Respondent's policy of apartheid with
the relevant Charter provisions, in the llght of which, as the Ap-
plicants contend in their Memorials, the Mandate should be read"
(IX, P.331).
Now, it is true that moçt of the rcsolutions in question stated that
Respondent's policies were inconflict aith the provisions of the Charter-
if rny recollection is correct, some also referred to a confiict with the
Mandate and with the Universal Declaration of Human Rights-but,
as we have shoun, tlie resolutions condemned apartheid on the basis
that it was a policy designed to oppress the indigenous inhabitants of
the Territory. In so far, therefore, as these resolutions could be said to
be interpretative of the Charter, they merely established the view that
the Charter prohibited oppressive discrimination-and this, of course,
does not in the least assist Applicants' contention regarding a norm
andlor standards as defined by them.
It is also clear that whenever a delegate contended that Iiespondent's
policies were in conflict with thc Charter andlor the Jiandate andior
the Universal Declaration of Human Rights, he did so on the basis 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 wtiich 1have cited
to the Court and which are referred to in our various lists. 1 think it is
sufficient to quote three more very typical esamples, and then give
references to some others.
At the rqth Session of the Fourth Cornmittee, hIr. Caba of Guinea said:
"The Union Government disregarded its obligations as laid down
in Article 22 of the Covenant of the League of Nations and in
articles2 to 5 of the Mandate. The people of the Territory were kept
in aposition of inferiority, denied political rights, education, medical
<.re and freedom of rnovement, and subjected to forced labour.
Ilic country w:ts administered for the benefit of thc European
citizens, ~vhoalone possesscd civic rights and enjoyed democratic
liberty, freedom of movement, the protection of the law, human
dignity and opportunity for economic. social and political develop-
ment." (Fourth Committee, 14th Session, gi~st Meeting, 22 Oct.
1959,P. 203.1
Finally, at the 15th Session of the Committee, Blr. Marcors of the
Phillipines stated that the policy of apartheid uraç-
". .. based on the concept of 'white supreniacy' whereby the rights
and well-being of the 'Xatives' were completely subordinated to
those of the 'whites'. Thoçe policies were a flagrant breach of the
sacred trust assurned by the Union Government under the League
of Nations Mandate and the United Nations Charter, n.violation of
human rights and fundamental freedom, an open defiance of the
United Nations and a callous disregard of world public opinion."
(Fourth Committee, ~jth Session, 1060th Meeting, 172 NOV. 1960,
P- 349,)
Furthcr examples of the çame kind, Mr. President, are set out in our
list"O" 1.
FourthComtiiiflee:
MY. Carpio (Phillipine:)15thSession.p.301.1 54 SOUTH WEST AFRICA
Xr. President, we submit that there can be no question that these
:and other speakers thought that apartheid was in conflictwith 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 \vas contrary to the Charter because it was an
oppressive and, as was also said, a radical and inhuman policy.
We turn now to resolutions pertaining to South Africa itsclf. As already
stated, Applicants rely on 13 such resolutions, which were adopted
between the 5th and 17th Sessions of the General Assembly. It is true
.that most of these resolutions, which were not by any means al1adopted
by, to use Applicants' phrase, "a majority approaching unanimity",
,referred adversely to, or even condemned, Respondent's policies and
.apartheid by name.
Once again, reference to the debates in the ad hocPolitical Cornmittee,
.during the 5th tothe 8th Sessions, and in the Special Political Comrnittee,
during later sessions, where the relevant draft resolutions were adopted,
:shows that such adverse cornmentary on Respondent's policies was based
ton 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 willbe appreciated that it would be a tedious business
.to illustrate this point by citing estensively from the debates during
al1the sessions concerned-it woiiId be 13 in all-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.1refer to the 14th Session of the General Assembly
and during this session of the Special Political Comrnittee, Mr. Talaat
lof 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; Irefer to a speech by
'Mr. Malalasekera of Ceylon, st the 143rd Meeting of the Committee,
:page 81:
"The Union Government had based its political philosophy 011
the doctrine that the white race, as the heir to Western Christian
civilization, w:is in duty bound to perpetuate its dominant position
despitc 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
thern to the statuç of second-class citizens."
There we find, Mr. President, the sarne allegations, the sarne content,
as encountered in the debates in the Fourth Cornmittee, which of course
Mr. Sophiaan (Indoaesia):106znd Meeting, p.366.
iMr. Valencia (Ecuador: 17th Session, p.rI.
JIr. Purevjai (Mongolia)17th Session, p. 326.
Jlr. Atexeyev(UlrrainianS.S.R.):18thSession, p. 215. ADDRESS 13Y MR. VAN HEERWEN I55
related to South West Africa. Further references are given iri list "P" l
to which 1 should like to add a speech by hlr. Jarnil of Iraq, at the
rqrst 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 Committee, at pages 64
and 65 ;
"The purpose of apartheid was ta preserve risociety based on the
exploitation of the cheap labour provided by a body of indigenous
inhabitants who were denied the exercise of al1 political and civil
rights and freedoms."
hfr. Wojado of Ethiopia statt:d at the 240th Meeting of the Cornmittee,
at pages 66-67 :
"Although based on a philasophy which rationalized prejudices
and interests, in the final analysis apartheid was s system of ex-
ploitation which attempted to guarantee a life of comfort and luxury
to the few million Europeüns.
Since apartheid was fiindamentally 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 economic measüres."
It isseen, Mr. President, that it aas clearly stated that the concept
of apartheid conveyed to this speaker a policy designed to maintain the
economic status quo, narnely a life of comfort and luxury to the few
million Europeans.
Further references, Mr. President, are given in Our Iist marked "Q" 2.
1 turn now to the 16th Session of the General Assembly. First of all,
1 cite a passage from a speech by nlr. Barnes of Liberia, made at the
qznd Meeting of the Committee, at page 61:
"The Assembly had adopted many resolutions condemning 'apart-
heid', but the Government of South Africa had always refused to
1 Spccial Political Cornmiltee:
MY.Quaison-Sackey (Ghana) :140th Meeting. p. 68.
MY.Cassel (Liberia): 141st Meeting. p. 71.
MY.Pefros (Ethiopia) : 14znd Meeting, p. 76.
MT. Shaha (Nepal) : r4znd Meeting, p. 78.
MY. Chferni (Bulgaria):143rd Meeting. pp. 83-84.
MY.Bryarnou (Byelorussian S.S.R.): 146th Meeting, p. 93.
' Special Political Cornmiltee:
Mrs. Fekini (Libya): z33rd Meeting, p. 31.
1W7.Thiam (Mali)2:35th Meeting, 1).337. Meeting. pp. 31-32
U On Sein (Rurma) : 235th Meeting,p. 38.
Mr. Shahn (Kepal) : 235th Meeting, p.39.
MY. Offendal (Nonvay): 236th Meeting.p. 44.
MY. Collet (Guinea):238th Meeting, pp. 51-52.
MY.Loncar (Yugoslavia) :238th Meeting, p. 53.
hlr. hfalil8(Albania):239th Meeting. p. 57.
MF. Bogdan (Rornania): 240th Meeting, p. 63.
Mr. Gulkiir (UyelorussianS.S.R.):2qrst Meetingp ,. 71.
MY.Akakpo (Togo): zqznd Meeting, p. 75.156 SOUTH WEST AFRICA
comply with them. Far frorn revising its evil policy, it was stepping
up its systematic repression of the Africans.
What exactly was 'apartheid'? h doctrine of racial superiority,
which held that the Africans were mentally inferior to the Whites."
Here, Nr. President, a representative, and, if 1 may say SO, a very
disiinguished representative, of orle of the Applicant States clearly stated
what the concept of apartheid conveyed to him; a doctrine of racial
superiority which Iield that the Africans were mentally inferior to thc
Whites.
At the 279th Meeting of the Cornmittee, at page 94, Mr. Pachachi of
Iraq said:
"The South African representative had said that 'apartheid' did
not mean ineqiiality and oppression for Africans but simply separate
forms of development for two differcnt races with their distinct
cultures. That argument was patently, false, for anq70necould see
that the policy of 'apartheid' was so conccived and carried out as to
keep the -4frican inhabitants for ever subservient to the whites in
al1 aspects of life, whether political, social or economic, while at the
same time it provided the labour on whicli the whole South African
econorny was l~ased."
Mr. President, tIiis statement is very important because the speaker
said in so many words that apartheid did not mean a policj' which merely
separated the races and provided separate forms of development for
different raccs with iheir distinct culture; he said that concept of apart-
heid was false. In other words, &Ir.President, he said that apartheid was
not merely what 1 can term a colourless policy which in effect allotted
rights, duties, etc., on the basis of rnembership in a group rather than
on the basis of individual merit, ctc. This delegate çaid that any argument
that apartheid was merelp such a differential allotment was false. Apart-
heid was something else. It was, to him, a policy conceivcd and carried
out sa as to keep African inhnbitants for ever subservient to the mites.
Mr. President, further references are set out in Our list markeci "Rn l.
1 corne to the second from last ofthe sessions of the General Assembly,
to which Ive refer, namely the 17th Session, and 1 refer first of al1to a
speech by blr. Subashinghe of Ceylon, at the 332nd Meeting of the
Special Political Cornmittee, 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 to it and were exploiting a mas of indigenous çemi-slave
labour. The State had instituted apartheid in order to perpetuate
that shameful society."
'Speiial Politicrcl Cornmittee:
MY. Qnaisota-Sackey(Ghana) : 269thMeeting, p. 46.
MY. Tevoedjre (Dahomev) :269th Meeting, pp.47-48.
illrAstaphenko (I3yelorussian S.S.R.): 27znd 5leeting. pp. 62-63
MY. Benabud (JIorocco): 247th Jleeting, p. 70.
Afr. Haire (Alhania):zSist hIeetinç. pp. 105-106.
1117 .iac~by Jzkarbe{Cuba): 2Sist Meeting, p. 106.
rlfr.Sinr~iboLi(Hulgari;~:281st hlccting. p. i07.
Alr. CabrSelassie(ilthinpia: zG3rd Neeting,l'p.I 19-120.
Jlr. Suleiinan (Sudan): 284th Meeting, p. 121. ADDRESS RY MR. VAN HEERDEN I57
At the 339th Meeting of the Committee, at page 67, Aïr. Gassou of
Togo, speaking of apartheid, said that :
". . .they [referring to the Africans] were deliberately kept in a state
of illiteracy and ignorance by the white colonialist rulers and
together with South Africans of Indian aiid Indo-Pakistan origin,
lived in constant fear and uncertainty .. . Racist laws rerniniscent
of those which had been enforced in Gerrnany at the tirne of the
Third Reich were being enacted for the purpose of protecting the
privileges of the whites ancipostponing indefinitely the emancipation
of the indigenous inhabitants."
Alr. President, further refereiices to speeches made during the 17th Ses-
sion of the General Assembly in the Special I3olitical Cornmittee arc
given in our List "S" l.
1 may Say that in a11these speeches the same old theme was repeated,
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: Jir. Diallo Telli of Guinea, at the 379th Meeting of the Special
Political Committee, at page g, clearly said what apartheid conveyed to
him. He said:
"Apartheid mesnt blind repression, arbitrary imprisonment and
floggings; it meant constant humiliation for the sole crime of not
having a white skin.The entire international comrnunity 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 Ilongolia said:
"The policy of apartheid was a philosophy of hatred which per-
vaded every aspect of the country's administrative, political, social
and economic life. It was based on an out-and-out domination of
the overwhelming indigenoiis majority of the population by a
small white rninority, on ~iersecution and on tyranny."
Then a last, final, quotation,Mr. President ; this isfrom a speech made
by &Ir. Mimbang of Cameroon, at the 390th hleeting of the Special
Political Committee, at page 70:
"The policy of apartheid which the advocates of segregation
described as 'separate development', was based on force-enough
SpeciaPloliticaE Cornmiltee:
MY. I'alaal (United Arah Republic): 329th Meeting, pp.11-12.
itlrDorumu-Jolznsoi~ (Liberia):329th Meeting,pp. 14-15.
MY. h'izi(aUkrainian S.S.R.): 331st Xleeting, pp. 23-24.
Mr. ~llolliizedo (BoIivin): 332nd hZei:tin29..
Mr. Usher (Ivory Coast): 333rd -Meeting,p. 32.
Mr. hleizdoxa (Guatemala): 333rd hIectingp. 33.
ilIr. Ngyese (Congo, Leopoldville334th Meeting, p.j?.
&Ir. Jargalsaikhart (>Iongolia): 33jth Meeting,42.
Mr. Lainani (Albania): 335th Meeting, p. 44.
MY. Garcia del Solar (Argcntina): 335th Rfeeting, p. 45.
MY. Gallin-Couathe (Central African Repuiili:336th Meeting, p. 47.
illr. Badra (Tunisia: 337thMeeting. 1).53.
1i4rNttr 61mi (Somalia): 337th hleeting, p. 54.
iVIrJararbey Juarbe (Cuba): 337th bIeeting. p56.
MY. Verret (Haiti): 337th Meeting, p. 57.
hIr. Sahnoun (Algeria):339th Meeting, p.69.19 SOüTH WEST AFRICA
to hold in a state of slaverÿ more than 12 million human beings.
The aim was to perpetuate the domination of the LVhitcs over the
13lacks."
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 Cornmittee, 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 al1 that itdeliberately sought to
keep the majority of the population of South Africa in n state qf
perpetual servitude."
Quite clearly then, these speakers whom we have cited eupresseci the
notion that the main aspect of apartheid which deserved their condem-
nation was that it was a policy which was defberately 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" l.
The Court will have observed that the same accusations as in the case
of South West Africa were made ivith respect to South Africa itself:
inter alia,econornic exploitation of the indigenous population, confining
them to arid areas, deprivation ofail human rights, refusa1 to assist the
Bantu in matters of health, commerce, etc., deliberate withholdilig of
educational facilities-even serious allegations of herding of Bantu into
concentration camps and of large-scale murder. Quite clearly, Air. Presi-
dent,, the relevant resoliitionon which Applican ts relied, iwrebased on
the notion that apartheid in South Africa is a policy which isdesigned
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 andjor a
norrn of non-discrimination and non-separation on the basis of group or
race as defined by AppIicants.
Mr. President, tlie 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 atIV, page 503 of the wntten
Reply and the verbatirn 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 Xations Charter,
but again, Mr. President, this fact in itself does not assist Applicants'
case.
The question is: why and on what groundç did the authorç 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 resolutionç is illurninating. The first resolution,
MY. Menskikov (U.S.S.R.): 3grstMeeting,p. 75.
MY. Gebre-Egzy (Ethiopia): 3g1st Meetinp. 77.
MY. Astapertko (Byelorussian S.S.R.): 392nd Meeting,88.
Afr . aylhardat(Venuzuela):3g2nd Meeting, p. 88.
Mr. Dafo' Ong (Malaysia): 394th Meeting, p. 95.
Mv. Nacof (Albania):394th Meeting, p.96.
Mr. Nul EImi (Somalia):396th Meeting, pp. io8-109. ADDRESS BY MI<. VAN HEEKDEN
I59
S/qgoo, was concerned with specific occurrences in South Africa, that is,
disturbanceç which took place in 1960, while the other two resolutions
' ivere more generally concerned with Respondent's policies. The first
and tliird resolutions were adopted after the Security Council had been
convened at the request of wliat is popularly known as the Afro-Açian
bloc at the Unitcd 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 al1the relevant meetings of the Securi ty Council representatives
of African and Asian States, including Ethiopia and Liberia, which were
not members of l.he Council, took part in the debates. They indeed did
soto such a degree that during the 852nd Meeting of the Council, 30 March
rg60, 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 1can recall
during my service here".
At the 1040th Meeting of the Sccurity Council, Mr. Grimes of Liberia
esplained the participation of rcpresentativcs of non-members of the
Security Council as follows (S/PV 1040, paras. 16 and 17, p.4) :
"We have come to the United Nations Security Council as rep-
resentatives of al1the independent States of Africa under indigenous
rule, bearing the instructicins of al1heads of States and Governments
who met at Addis Ababa, in May 1963 . . . Our mission is to present
i in the Republic of South Africatru..."cts of the situation of apartheid
Now, Mr. President, what were the true facts which were presented by
the representatives of non-menibers ofthe Security Council? In our sub-
mission, it is not necessary to cite more than a few extracts from the
speeches of such representatives in order to show that the theme was the
oldfamiliar one of oppression, which was repeated so often in the debates
of the Fourth Cornmittee and the Special Political Cornmittee. At the
Sjznd Meeting of the Security Council (SIPV 852, para. 1'49,p. 33))
Mr. Cox of Liberia said:
". .. in a country in u~hich the non-white population constitutes
over 80 per cent. of the total, measures were adopted deçigned to
create perpet.ual economic and social scrvitiide and to practise the
vilestforms of racial discrimination and segregation".
And in paragraph 151 on the next page, Rfr.Coxsaid:
"Thus the Union of South Africa haç proclaimed to al1the world,
openly and without any attempt at subterfuge, that it seeks to
crcate a social and legal system to ensure the permanent supremacy
white citizens in civil life."ly to prohibit participation of its non-
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, RIr.President, 1refer to a speech made by hlr.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 appiied in South Africa in a cruel and
odiouç manner. Human beings are treated as things, deprived of160 SOUTH WEST AFRICA
ireedom and the enjoyrnent 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. XI.)
And in paragraph 49, on the same page, hlr.Slim stated:
"At the mercy of the multiple and varied demands of law and of
injustice, pursiied at every step by the exactions of agents of a sort
of South African Gestapo, the black-skinned inhabitants are daily
subjugated, hiimiliated and oppressed, haunted by the constant
spectre of arrest and suppression. Al1 the paths of progress and
development are closed to them."
A3r. 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.
In view of statements süch as these and against the background of a
long campaign in the General AssembIy and its committees, it is not
surprising that the authors and supporters of the three resolutions in
question viewed apartheid as a policy oppresçing 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.
It is true that some representatives, when speaking aclversely of Re-
spondent's policies, did not indicate clearly on what grounds the criti-
cisrns were based. 011the other hand, Mr. President, we did not find a
single statement from which it can be inferred that the speaker concerncd
based his objection to these policies on the notion that they merely allot- ,
ted rights, etc., on the basis of membership in a group rather than on
the basis of individual mcrit, etc. The important point is that thase
speakers who did give clear rcasons for their views, based the condemna-
tion of apartheid on its alleged oppressive and unfairly discriminatory
nature. To illustrate this point it suffices to cite a few extracts, selected
at random, from the debates in the Security Council, which culminated
in the adoption of tlie three resoIutionin question. At the 8pnd Meeting
of the Council, Sir Claude Corea of Ceylon stated:
"The vicious doctrine of racial superiority and 'apartheid' have
been practised in a cruel and calIous way, and hurnan beingç are
treated as no inore than mere chattels and are deprived of freedom
and enjopent of al1those rights and privileges which we have come
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 inhabitantsare arbitrarily deprived of the elementary
civil rights and 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- ADDRESÇ I~Y MR. VAX HEERDES 161
suring for the settlers the possibility of a ruthless and unobstructed
exploitation of the local population, depriving the latter of al1rights
to the meanç of production, to the land and whai lies under it, and
converting the Afrjcan population into a cheap, underprivileged
labour force." (SJPV852, paras. 28 and 29, p. 8.)
Xr. Sidi Baba of Morocco referred at the 1054th Meeting of the Council
to: "the crirninal policy . .. of the Verwoerd government" and then he
proceeded to state:
"Apartheid, {vhich the South African regirne 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 ~054,para. 7, p.2.)
And a little bit further on,ticsaid:
"Racism in Soutli Africa takes the form of an inhuman system
of persecution and tyranny against the overwhelming majority
of indigenous population by an insignificant minority of \vhites."
(P. 3.)
At the 1055th Meeting of the Council, the same view was expressed by
Mr. Nielsen of Norway, wlio was then the President of the Security
Council. He said that the Norwcgian Gover~iment waç shocked-
". .. by the merciless ways of discrimination and the other foms
of suppression under rvhich the large African rnajority in South
Africa suffers".(S/PV Iûgj, para. 9, p.3.)
Now, hfr. President, in Our siihmission these extracts rnake it perfectly
clear if the resoltitions in question were based on the existence or ap-
plication of any norm then, ;is 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 defiried by Applicants. It
follows that the resolutions of the Security Councif also do not assist
Applicants' case.
But, hlr. President, apart fiom the views of delegates with which 1
have dealt, there is another very importairt source of evidence which
clearly dispels Zinynotion that in condemning Respondent's policies the
United Nations created or applied the standards or norm contended for
~ JApplicants. 1refer tothe studies which were undertaken at the request
of the General -4ssembly regariling the so-called question of 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. LVeshall
show that it was never suggested that this Court could be asked to de-
clare that Respondent's policies are in conflict with standards andlor
a norm of non-discrimination or non-sepiration, and that the bodies
concerned concluded that sucli policies were contrarjrtO the Nandate
because they were designed to,and did in fact, oppress the Native popu-
lation of South \Iresi Africa. It is, however, convenient firstto sketch
brieRy the historv of the so-called legal studies which were undertaken.
It started off with resolution 1060(XI) of 26 February 1957 in ~vhich
the General Assembly requcsti:d the Cornmittee on South West Africa
to study what legal action was open to ensure that Respondent fulfilled
the obligations assumed by it under the Mandate for South West Africa.
(General Assembly, OficiaERecords, 11th Session. Supplement No. 17162 SOUTH WEST AFRICA
(A/357z).)Having received the Committee's special report on this study ,
the General Assentl~lyin October 1957adopted Part B of resolution 1142
(XI), in terms of ~vhichthe 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 Territory of South West Africa, and to make recomrnenda-
tions in its next report concerning acts of the administration on
which a referencc to the Court may usefully be made as to their
compatibility or otherwise with Article 22 of the Covenant of the
League of Nations. the Nandate for South West Africa and the
Charter of the United Nations". (GeneralAssembly, Oficial Records,
12th Session, SuppIement No. ;8 (A/3805).)
Pursuant to the adoption of this resolution the Committee appointed
at its 88th Meeting a Sub-Cornmittee to go into the question. This Sub-
Cornmittee submitted n study of the question which served <asthe basis
for a special section of the Committee's 1958 report contained in Part
II thereof, GeneraEAssembly, Oficial Records.13th Session, Supplement
No. 12 (A/3go6),page 2.
After the General Assernbly had at its 13th Session by resoIution 1247
(XIII) decided to resume consideration of the question of legal action
at its 14th Session, the Committee appointcd another Sub-Committee
which was called the Sub-Cornmittee on Legal Questions to undertake
further studies of the question: the reference is GeneralAssembly, O@-
cinl Records, 15th Session, Supplement No. 12 (A/4464), page 4. The
report of this Sub-Cornmittee was brought to the attention of the Gener-
ral Assembly during its 14th Session, and the latter body then adopted
resolution 1361 which drelv-
"the attention of Mernber States to the conclusions of the special
report of the Committee on South West Africa covering the legal
action open to Mernber Stateç to refer any dispute with the Union
of South Africa concerning the interpretation or application of the
Mandate for South West Afnca to the International Court of Jus-
tice for adjuclication 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 rnatter of legal action under review pending further instruc-
tions of the General Assembly (AIAC73/SR rzo, 9 Sep. 1959),but as far
as we can ascertain nothing further was done, and in its 1960 report the
Cornmittec 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 rg60 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).
It is clear therefore that in order to determine the grounds on lvhich
it was thought that thiç 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-Cornmittee on Legai
Questions.
The first special report of the Committee on South West Africa,
GelzcraEAssemlily, O@ial Records,12th Session, Supplement No. I~A ADDRESS BY MR. VAN HEERDEN 163
(A/3625), dealt inainly with the cornpetence of organs of the United
Nations to requcst advisory opinions of the Court and with that ofindi-
vidual States to institute contentious proceedings. It is, however, sig-
nificant thal 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 conforrnity with the Mandate, the Cornmittee rernarked:
"If an ndvisory opinion were requested rcgarding, 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 rnethods and on the baçis of
evidence produced to and weighed by the Court." (P. 3.)
This attitude stands in çtriking contrast to that lately adopted by the
Applicants, naniely that no t:vidence may be weighed by this Court,
that all evidence is irrelevant, that the Courtmay only have regard to
what was said and decided in the United Nations, and that this Court
is not competcnt to second guess what was there said or decided.
In its second special report, being PartII of the 1958 yearly report,
(G.A..O.R., r3th Sess., Suppl. No.rz (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 eapressly statedor 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 besought S.uch acts iïeredivided into tivo groups, namely (a)
acts relating tothe 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. We are of course for the present only concerned
with thc latter group of acts.These werc sub-divided as follows: firstly,
application of the practice of apartheid or racial separation with refer-
ence to the Comrnittee's 1957 report: secondly, application of racially
discriminatory legislation in the political, econoinic, social and educa-
tional fields with reference to the1954, 1955, 1956 and 1957 reports;
thirdly, application of restrictions on freedom of movement and va-
grancy legislation, urithreferenceto the same reports; fourthly, alloca-
tion and alicnation of land, with reference to tIgj7 report, and frnally,
legislation providing for the expulsion of perçons frorn the Tcrritory,
with refcrence to the 1956 report.
The report of the Sub-Cornmittee on Legal Questions, in so far as it
is relevant for present purposes, merely repeated these suggestions of
the Committce on South West Africa. It is, however, of some interest
to note that when this report was discussed bythe Committee on South
West Africa, Mr. Carpio of tht: Philippines remarked-
"that the examples of questions which might be submitted to the
International Court were badly choçen. 70 choose questio 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 Xandate to do so, was to choose the weakest
arguments. The qriestions should, on the contrary, deal riith such
acts as the subjection of the interests of the indigenous inhabitants
to those of the European settlers." (AIAC. 73/SR. 120, p. 3.)164 SOUTH WEST AFRICA
It is clenr that &Ir.Carpio thouglit that the main case which had been
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 esactly the case, and the sole
case. made in the Jlernorials.
[Public hearing of29 October 196jl
Rlr. President, prior to the adjournment yesterdav, Iwas dealing with
which weres undertaken by United Nations organs.ctionIapointed out thatt
the Cornmittee on South West Africa suggested that the compilation
of acts of administration in its successive reports served to indicate the
subjects of queçtioris oii which advisory opinions might be sought. Sucli
acts included the application of the practice of apartheid, and racially
discriminatory legislation in the political, social, economic and educa-
tional fields1 also pointed out that the reportof the sub-cornmittee on
legal questions merely repeated these suggestions.
In the concluding paragraph of its report, the sub-comrnittee sug-
gested that as regards acts affecting the well-being and progrcss of the
inhabitants of the Territory, the list of acts contained in the previous
reports of the Comrnittee on South West Africn should be expanded to
include such further acts as might be selected hy tlie Committee during
its then current esamination of conditions in the Territory-that would
have been the 1959 report. (The reference here is AlAc. 73/2-31 AU-
gust 1959. I) its1959 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 Respondcnt's administration of the Territory. It
follows that one has to look at the 1954, 1955, 1956, 1957 and 1959
reports of the Conimittee in order to ascertain the grounds on which
it was thought that action could be instituted against Respondent. We
propose to cite estracts frorn these reports in order to illustrate that the
Committec's cornplaints and criticisms were directed at what it thought
to be an oppressive and arbitrary policy, and not to mere separation
or differentiationon 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 liasno part whatsocver
in the management of tliç 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 arestrictivesystem of law and practice." (G.A.,
O.X. ,1th Sess., Suppl. XO. rz (A/~I~I),p. 27.)
In its1957 report the Committee stated:
"The continued and increasing political, social and economic
pressures and restrictions imposed in al1 wnlks of life on the vast
majority of the inhabitants and especially on the indigenous African
population reveal, in the Cornmittee's opinion, a policy intended
to give paramount importance to the interests of the population
of European origin,to maintain and reinforce the entrenchment ADDIIESS BY MR. VAY HJ%RDEK 1~5
of government control in the hands of this rninority . .." (C.A.,
O.R., 12th Sess., Suppl. No. 12 (A/3626), p. 26.)
The statements at page IO of the 1959 repart are to the sarne effect,
and the refcrence is General Assembly, Oficial Records, 14th Session,
Supplement No. 12 (A/qrg~). We find here, Mr. Yresident, the same
accusations that were levclled in the debatcs of the Fourth Cornmittee
and in the Special Political Cornmittee, 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 "Economic Conditions", but referring more gener-
ally to land settlement, the Committee concluded in itç 1959 report:
"The Conzmitteeconsiders that the land settlement progrutwme of
the Mandatory Power is contrary to Article 22 of the Covenanf of the
LeagaseO/ Nafions ad fhe Mandate in that il has resultin the truns-
fer of the major #orfion of the Mandated Territoryto 'Eztrofieula'cit-
izen ~f theUttioltof South Africa and in the rernoval of groups of
'Native' inhabitants, without due regard for their well-being, /rom
$lace fo place withirt the Territory ad possibly even beyondthe bound-
aries of the Territory, depriuing the indi~enous peufiles not onlyO/
their traditional lands but of security of tenure and zinmolested resi-
denceon the limited lands allocatedto thembythe UrtionGovermment."
(G.A., O.R., 14th Sess., Suppl. No. 12 (A/~gr), p. 21.)
Referring to the economic development of Native areas, the Cornmittee
concluded in its 1955 report:
"It [the Committee] cannot ignore the inference . . . that the
limited efforts thus far made by the Administration to clevelop
Native areas reflect a ~~olicyto relieve the longstanding labour
shortage 6y com~elling the Aatives to seek emfiloyment on mines and
Eurofiean jurms." (Italics added.) (G.A., O.R., 10th Sess., Suppl.
No. 12 (A/zg13), p. SI.)
Xay 1 add, Afr. President, that similar statements are to be found
in the same 1955 report, at pages 17-18, and the 1957 report (A/3626),at
Page 17.
As regards education, Mr. President, the following passage from the
1956 report is illustrativc of theway in which the Committee viewed
Respondent's policies in the Territos:
". ..it [the Committee] can only conclude that, in a manner par-
alleling the situationin al1 other fields of development in the Ter-
ritory, a position of privikge and of superior op$ortzdnityfor advance-
ment has beenand is still heing$rovided for the children of the 'Euro-
peart'minority thvoughth&flz.ilureto eicpawdand im roueat a veason-
ablerate the educutionallacilities availableto chidren O/ the rnajor-
ity of the $o#udalion." (Italics added(G.A., O.R., 11thSess., Suppl.
NO. 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 Territorgr, the Committee stated in
its 1959 report its conception that the proposed change would be-
". ..devising for one pgrt of the fio#ztlafion a type of education for
their chi1dre.nwhich on the basis of thesysdem of apartheid would cotzfinthem loa subovdinaterole in the life of the country." (C.A.,
O.R., 14th Scss.,Suppl. Xo. zz (A/qrg~),p. 32.)
Finally, Jlr. President, reference may be made to the concltrdin
rernarks in the 1959 report, to which the Cornmittee, in paragraph 8
of the same report, drew the attention of the General Assembly in the
context of a discussion of the question of legai action against Respon-
dent. Paragraph 230 of these remarks reads aç follows:
"The Mandatory Power bases its administration of the Terri-
tory on a policy of apartheid and 'White supremacy' contrary to
the Mandates Systern 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 Territoryand its resources to 'European' citizens of the Union
of South Africa, has allocated the bulk of the public fundç ofthe
Territory to 'Europeans', and has reserved to them the Iarger share
of the economic, social and educational opportunities available in
the Territory.It has at the same time denied to thc 'Non-European'
inhabitants of the Territory, not only a recognition of their para-
mount interests, but also the right to participate on a basis oequal-
ity and merit in the political, econornic, social and educational
life of the Territory.he 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 nlandated Territory." (1959 report, pp. 32-33.)
Now, 3fr.President, the extracts which we have cited from the various
reports suffice to show that the Cornmittee's adverse comrnents on, and
criticisms of,Respondent's policies, particularly in the political, economic,
social and educational fields, were baçed on the notion that these policies
were deçigned tu, 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 theçe 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 Cornrnittee thought that a judgrnent could be pro-
cured against Reçpondent, was that of deliberate oppression of the
Natives. It is,perhaps, no slight coincidence that the Mernorials of the
Applicants aImoçt exactly adopted the enurneration of, and remarks
pertaining to, Respondent's policies and practices contained in these
reports. The important point, hoivever, is that nowhere in the reports
or in the discussioiisof the question of legal action is any indication
whatsoever to be found that it 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 bais of individual merit, etc.
In conclusion, hlr. President,1 wish to emphasize two points. In the
first place, Applicants, in connection with the ço-called evolution of
theirstandards and/or nom, in addition to the cesolutions of the General
Asçembly placed niuch reliance on conclusions of the Committee on
South West Africa. So, for instance, in the verbatim record of 18 May, ADDRESS BY NR. VAN HEERDEN 167
IX, page 334, Applicants cited an extract from the Cornmittee's report
in which it uras concluded that the situation in the Territory was not
in conformity with, inter dia, the principles of the mandate system.
Applicants wcnt on to say:
"Mr. President, it is perhaps relevant to notehere that Rcspondent
throughout the pleadirigs and again in the Oral Proceedings, ha
sought to evade the force of the resolution, and has sought to construe
the findings of agenciesof the United Nations, such asand including
the Cornmittee 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 favoürs,
or other considerations of unenlightened self-interest. The force and
effect of these resolutions, of these findings, cannot,in the Applicants'
view, be disposed on suc11 a basis."
That is in the sarne verbatim record, at page335.
We have already dealt with the political campaign and related aspects,
but the point which we wish to emphasize is that Applicants have made
no attempt whatsoever to show that the Cornmittee's findings cited by
them were based on the prernise that Respondent's policies were in
conflict with Applicants' suggested norm or standards of non-sepakation
and non-discrimination.
As we have shown, Mr. President, the Cornmittee's findings were indeed
not based on the application of any such standards or nom.
In the second place, Mr. President, there is the question of the factual
correctncss or otherwise of the sweeping condemnations contained in
the report of the Comrnittee. It will have been 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 ofthese reports. It will albe evident of what great significance
in this respect the Ap Iicants' admission of Responclent's exposition of
the facts is.In view O? this admission, but particrilarly in view of Appli-
cants' abandonment of the charges of oppression and their confinement
of their case to the norm andlor standards contention, it isunnecessary
for Respondent to canvass systematically each and every one of the
assertions and findings of the Cornmittee.
hlr.President, this concludt:~Our analysis of the processes and proce-
dures in the United Nations, on which Applicants rely, within the
context of anorm or standards contention.
May 1 be allowed to summarize very briefiy what we have, in our
çubmission, dernonstrated to the Court? First, that the resolutions upon
which Applicants rely were influenced by a olitical campaign which
has been waged against Respondent; second&, that these resolutions
were to a very large extent based on erroneous factual information
contained in statements of petitioners and in the reports of comrriittees
such as the Cornmittee for South \Vest:Africa, which were in turn also
based on statements of petitioners; thirdly, that the reference to the
debates in the Fourth Cornmittee and in the Special Political Comrnittee
clearly shows that the delegites ~vho 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?mite168 SOUTH MIEST AFRICA
groups; and finally, that at no time when the studies on the so-caiied
question of legal action were considered by organs ofthe United Nations
was it suggested that Respondent's policies urere in conflict with the
Mandate merely because they allotted rights,duties, etc.,on the basis
of membership in a group rather than on the bais of individual merit.
I.thank you, hlr. President. With the leave of the Court, my learned
Senior, hlr.Muller, ïviicontinue ouc address. 29. ADDRESS BY MR. MULLER
COUSÇEL FOR THE COVERPIMEN'T OF SOUTH AFRICA AT THE PUBLIC HEARINGS
OF 29 OCTOBI~R AND I XOVEMBER 1965
>Ir. President, 1 indicated on Tuesday that our argument, which is
now in progress, would be divided into three parts. My learned friend,
Dr. van Heerden, has just concluded the address on the first part and
1 intend to proceed now with our argument on the second part; that is
that a norm andior standards, as suggested by the AppIicants, 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 virtuaily conceded in their
cross-examination of Professor Yossony that a norm and/or standards,
as defined in the Reply, IV, page 493-that isas we interpret page 493
and as Professor Possony interprets that page-is not observed in the
practice of States.
The main eviclence 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 Statess that of Professor Possony,
Professor van den Haag and Professor Manning.
Professor Possony, in his evidcnce, addressed himself particularly to
the question whether States do or do not, by governmental policies and
practices,allot status, rights, duties, privileges or burdens on the bais
of membership in a group, class or race rather than on the basis of
individual merit, capacity or potential.
The evidence of Professors van den Haag and Manning, although deal-
ing also with prai-tices which would not be in accordance witli the alleged
norm and/or standards, concentrated more on the question whether the
application of the norm andlor standards in certain circomstances would
or would not lead to unfavourable results for the welI-being and progress
of the people concerned.
It is intended to deal at present with the first topic, that is, the
allotment by governmental policies and practices of status, rights, i-luties,
etc., onthe basis of membership in a group, class or race.
'l'hat Professor Yossony is einincntly qualified to speawith authority
on the subject is clear from his expertise.
1 \vil1 not reaii it, -tir. Presiden1,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 ethnic problems and relevant constitu-
tional and lcgal provisions for the management of ethnic groups in
multi-national societies".
That is frorn the verbatim of 18 October, XI, page 648.
Korv, his evidcnce can be di~ided broadly into fhree parts: the first
isan historical development of group relations in the world; the second,
an analysis of differential treatrnent by governmental policies and
practices of population groups in various parts of the world; and theI7O SOUTH WEST AFRICA
third, attempts inthe international sphere to formulate uniform objec-
tives with regard to the trcatment of individuals and ethnic groups.
1do not intend to deal in detail with the first part, that is the historical
part of his evidence, whicfi is contained in the verbatim of 18 October,
at XI, pages GqS-660.
In brief, filr. President, this partof his evidence demonstrates the
importance of group relations in the history oftheworld-the recognition
over centuries of group identities, both on an ethnic and on a religious
basis, and the rnethodç 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
rninority treatiesand autonomy arrangements.
This part of his evidenceis important in demonstratiiig that differential
treatrnent of ethnic 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 evidence which goes to the very core of the issues in
this case is contained in the record of18 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 officia1 governinent
policv and oractice. These svstems he divided. for convenient treatment
Ôf thésubjgct, into the folloking groups: (1)~Siatic systems of pluralistic
societies:(21certain svstems in the Eastern Mediterranean: .\-raduralistic
systems in 'the ~sla&c countries; and (4)systems in various countries
dividing advanced from aboriginal groups or providing differetitiation
between tribal groups. Hc also mentioned other specific provisions of
differentiation in many countries.
The division of his testirnony in these four main groups isindicated
at XI, pages 664-665.
Mr. Preçident, it isnot my purpose to repeat or to analyse in detaii
Professor's Possony's evidence on this aspect. 1thinkit would be sufficient
to give merely a summary of differential treatment found inconstitutions
and laws which are in force and then merely to mention the countries
concerned.
In the verbatim of 16 October, at XI, page 665, Professor Possony
dealt with Burma. He indicated differential provisionsforrepresentation
of ethnic groups in the legislative body of Burma. At XI, pages 6Gj-667,
he dealt with India. There, he indicated differential treatment of castes
and tribes with regard to administration, land rights, judicial system.
succession laws, and differential treatment of the Anglo-Indian com-
munity with regard to political rights. At pages 667-669, he referred to
Cyprus. There he dealt with differential treatment of Greeks and Turks
in respect of political rights, offices of State, schools, etc.pages 669-
671, he discussed the Lebanon. There, he indicated that there were
differential measures between 3ioslems and Christians with regard to
representation in Parliament and offices of Governrnent. At pages 671-
676, he dealt with the lslamic States. He indicated to the Court that
there were 16 Islamic States-1 shallnot repeat the names of the States,
lhey 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-hloslems in respect of appointment to offices of State, ADDRESS BY MR. MULLER I7I
personal status, testirnony, guardianship, inheritance, marriage, etc. He
also dealt with differential treatment as between men and women in
these Islamic States with regard to mariage, succession, testimony and
divorce. If 1 may mcntion here, the differentinl treatment of persons
on the bais 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 whjch Applicants
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-1 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. 1 shall not give the names of
the countries-he mentioned a number and then he gave speufic examples
of the Sudan, Indonesia and Nigeria. It is stated there that Moslems
live under their own personal statutes often paranteed conçtitutionally,
and he mentioned certain exaniples. Then at XI, pages 677-678, Professor
Possony dealt with the differential meaçures on religious grounds and
he there mentioned ten States in all. In the sarne verbatim record,
pages 678-684, he mentioned the following States: Liberia, Sierra Leone,
Nigeria, 13asutoland, Bechuanaland, Swaziland, Northern and Southern
Rhodesia, Kenya, Eritrea, Peru, Panama, Brazil, Canada, the United
States, Sweden, Ghana, Ethiopis, Pakistan, Australia, Venezuela and
New Zcaland. In respect of these States 1 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 andlor land rights
and ownership of land. 1 would indicate that with regard to his evidence
concerning Basutoland, 13echuanaland, Swaziland, Northernand Southern
Rhodeçia and Kenya, he refer.red ta the Counter-Mernorial of the Re-
spondent, III, pages 257-262, iri 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-Mernorial, III,pages 263-
265, also containing factsin this respect whicli are not denied.
Then at pages 684-685, of the same verbatim record, Professor Possony
dealt in particular with the case of Indians in certain countries in South
America and in the United States ofAmerica. In all, Professor Possony
mentioned 50 countries including protectorates under the British Crown,
in which by law and officiai practice status, rights, duties and burdens
are aIlotted on the basis of membership in a group, class or race. Of these
50 countries mentioned by hirn, 40 are Members of the United Nations
and they include both the Applicant States.
We say, &Ir. President, that it is clear from this body of evidence
that in many countries inthe ulorld status, rights, duties, burdensetc.,
are allotted on the basis of membership in a group, class or race rather
than on the basis of individual merit, capacity or potentral, and that
a so-callecl norm of non-discrimination or non-separation, as defined by
the Applicants, is not observetl or practised. This indeed,Mr. President,
was the cspert view expressed by Professor Possony when he said in the
course of his testimony-in-chief and 1 quote from IX, page 662:
"Mr. President, 1 can state that in my judgment on reading the172 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 Replyl notably the question
of differentiation in general, allotment, separation and equality of
opportunity. As I go on 1 will be able, 1 think, to add additional
evidential points on other parts of the norm, or alleged norm."
And at the end of his evidence-in-chief,he said, at pages 707-708:
"blr. President, from what 1 have indicated to the Court with
relation to the practice ail over the world, there is no general obser-
vance of such a rule or norm."
hlr. 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 evidenceas to the practice
of States, or questioninghis expert view that anorm of non-discrimina-
tion or non-separation-as both Professor Possony and Respondent
interpret AppIicants' definition at pa e 493, IV, of the Keply-is not
generaIly observed in the practice of 8 tates. Instead the general trend
of rny learned friend, Mr. 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, so it would seem to follow, the witness's
testirnony was lzotdirected to the real issue before the Court. Thus,
Mr. Gross commenced his cross-examination by questioning the witness
with regard to the rneaning of the word "discrimination". He asked
Professor Possony what significance he, that is, the witness, attached to
the word "discrimination"? 1refer inthisregard to the verhatim 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 continiied to press the point by asking Professor Possony:
"Now, with regard to your understanding on the points to which
you have testified, as set forth in the letter, paragrap(a) and (b)
[that was the letter by the Respondent indicating the points to
understandesthe Pcontents of the standards, contended for by the
Applicants, to apply to any differcntiation or distinction, whether
or not such differentiation or distinction involved discriminationin
a pejorative sense, to use your term?" (Supra, p. 4.)
And the ançwer of thewitness was this:
"As I tried to clarify a moment ago, IV, page 493, and I will
have to read it for whnt it says, does not Say 'pejorative' or perhaps
better terms would be 'disabling' and 'enabling', using some of the
language £rom lndia for esample, but it uses it neutrallv in the
sense that governrnental policies should nat be made that are
allotting status, etc., to groups rather than individuals. T1athink,
seems to me to be the gist of the second paragraph on page 493."
>Ir. Gross then suggested that page 493, IV, of the Reply is "not a
self-contained page in the pIeadingsWand that 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 hy
those words" (su@r[a ,. 7). AIIDHESÇ BY MR. MULLER I73
Professor I'ossonj:ivas homver adaman t that :
". .. on page 493 the language isver7 clear. 1 do not feel that
I have any particular doubt-1 can easily argue about the meanings
of these things, but I think the meaning is quite clear." (Szdp~a,
P 8.)
This attitude was adopted by Professor Possony throughout and he .
in fact gave a full explanation tothe Court on 21 October in the verbatim
record, pages 36-38, su ru, of Iiis reasons for interpreting page 493,
IV, the Rcply as he did. tshall not revd what he said there, Ir. Kesident.
Mr.Gross did not sfiecificallyput it to the witness that the Applicants'
case was one of unfair discrimination or that the definition of thc nom
of non-discrimination or non-separation, as worded at page 493, IV, of
the Reply, could reasonably be interpreted to contain a suggestion of
unfair discrimination. Yet, mp learned friend, Mr. Gross, raisetl some
doubt on the question ivhether Applican ts had expressed theinselves
clearly in their formulation of the suggested norni. 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
tao niiich further, to defend the language uscd by the Applicants
-no doubt better wisdom would have suggested better language
-nithout asking you to comment about that, Sir, would it be fair
ta say that you were not really sure ivhat the definition mcant in
terms of your testimony? What the phrase 'discrimination' as uçed
therein meant? Would that be a fair question to ask ?ou to answer?"
And this immediately after my learned friend, >Ir. Gross, had asked the
witness wliether he,that is the witness, would change any of his testimony
and 1 quote:
". .. ifit were the case that Applicants contend for standards
ïvhich do not make impesmissible any distinction or differentiation
as such ..." (sues, p. 7).
Later, Mr. Gross, with reference to certain terms used in the affirmative
part of the definition at page 493, IV, of the lieply 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
prevrilent customary use of the term 'discrimination' to refer to
phenomena, political, social, economic pheno~nena, in which persons
are denied equality of opportunity and equal protection of the law;
would that be a prevalent and custornary use of the term 'discrimi-
nation' in the political and social sciences?" (Szlpra, pXI.)
IIr. President, it is not clear what was meant by Mr. Gross's use of
the words "phenornena, in which persons 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
equaï protection of the lam. Tt is to be noted, however, that AIr. Gross,
in formulating this question, left out the words "to individual persons
as such" which appear in the definition at page 493, IV.
Air. Gross then went on to cite certain constitutions whicli contain
provisions to the foltowing effect: tiiat al1citizens are "equal before the
law"; "[aJII men shall be equal beforc the law": "the State shall notI74 SOUTH W'ESTAFRICA
deny . . . equality before the law and the equal protection of the laws
withiii the territory ..."; 1 refer in this regard to the verbatirn,record,
pages 20. 23 and 24, supra. With reference ta such provisions in the
constitution, &Ir.Gi~ossasked thc witness whether they were not :
". . . evidence of a constitutional practice relevant to the question
of mhether or not an international standard andior an international
norrn exists, of the sort contended for by the Applicants" (supra,
P. 24)-
At page 26, suprtz, of the same verbatim record, Nr. 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 defined 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 collectiveiy evidence a
general constitutional practice, virtually universal, in which the
equality of individual citizens before the law, and equality of op-
portunity, are guaranteed by the constitutional provisions? Would
you agree that thep are evidence of standards covering the same
subject-maiter, 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
Mr. Gross as follows, and I quote from the verbatim record at pages
26-27, supra :
"ilr. President, 1 ïvould respectfully submit that the Counsel's
comment is irrclevant and the reason being, Sir, that page 493, irn-
portant as it is, does not embody the case of the Applicants and,
Sir,1 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 disernbodied from the balance of
the pleadings, not explaincd 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 ofCounçel'çquestion, or
interposition, isthat 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 thnt in their submissions as
reformulated Applicants relied on-
"standards and legal norrn, . . . as described ancl defined in the
Reply, IV, at page 493, and solely and esclusively as there deçcribed
and defined .. ."(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 I75
that the content of the norm and/or standards was elucidated bj* ~i~hat
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 fully described
below, gives a concrete and objective content to Article 2. para-
graph 2 ..."
As was then pointed out by you, &Ir. President, the passage relates to
acceptance of the norm and not to its content. 1 referin this regard to
the verbatim, page 28. suf~ra.
Eventually or1 21 October Applicants came forward with an apparent
formulation of their understanding of the content of their norrn andlor
standards. We find this in the verbatirn record, pages 35 and 38-40,
supva. At page 39 of the çaid verbatim record MT. Gross's tentative for-
mulation was as follows:
". .. if the hpplicants' true contention, [on] the actual content of
the standards .. . retertogovernmental policy and practices which
do not give weight to i~idividual merit or capacity but trrhich allot
rights, burdens and privileges on the basis of membership in a group
and which do not protect equality of opportunity and extentl equal
protection of the laws to individual perçons as such?"
.4nd at page 40 of the same verbatim record Mr. Gross described this
formulation which 1 have just read now as an attempt "to place before
you [that is, the witness] an interpretation of the meaning of the Ap-
plicants' words".
Aswe have already indicatetl, and 1refer in this regard to the verbatim
record, at page 81,supra, this reforrnulation by the Applicants in the
course of cross-examination of their norm and standards "does not differ
in any rnaterial respect [rom the definition ... at page 493, IV, of the
Reply". All that the Applicants have done in this reforrnulation is (a)
to change the sequence in the negative formulation of the definition
whereby the position of the individrial is deait with before that of the
group, nid (bj to substitute the words "which do not give due iveight
to individual merit or capacity" for the words "rather than on the bais
of individual rnerit, capacity or potential"which nppcar in the definition
at page 493, IV, of the Replv.
It is submitted that Professor Possony was quite correct when he
stated as follows, and 1 quote from the verbatim record at page 40,
supva :
"1 fail to see that the formula differs from page 493 in any sub-
stantial aspect. It is little hard to be accurnte on an evaluation of
this sort but on hearing it, 1 think this is just a restatement. in
somewhat different sequence of what page 493 says, and oii that
basis 1would not change my testi~nony."
CZrsubrnit that the renson why Applicants now favour a reforrnulation
of their norm as earlier defined at page 493, IV, of the Reply isevident
from their cross-examination of Professor Possony. I have already made
reference to the fact that on 20 October Mr. Gross read to Professor
Possony estracts from various Constitutions which provide that al1
citizens are "equal beforc the lawu-"[al11 men shall be equal before the
law", etc. On 21 October, alter having reformulated their sugçested
standards, as I have jiist indicated, hlr. Gross rcvcrted to this matter.17~ SOUTH WEST AFRICA
He asked Professor Possony whethcr he would agree that "the equal
protection clause of the United States Constitution .. . existas a prin-
ciple or standard ... whatever way you would wish generally to describe
it?" (sztpra,p.42); and he also asked whether the witness would concede
that "there is a standard at least in the United States, oa constitutional
level, of equal protection of the laws" (ibid. T). this Professor
Possony ariswered, and 1 would, with the Court's perniissioti, want to
read the whole answer before I deal further with this matter:
"Certainly, but, 3lr. President, that is really not the point. The
'equal protection before the law' norrn or standard has been in
existence for many years. 1 do not know whether it started several
centuries ago, but certainly as of 1920, wliich isa relevant date in
these proceedings, that norm and standard u7asgenerally applied.
Certainly we do not have to go further than to say it was being
applied in France and Britain.
Xow, the point in hIr. Gross'ç presentation, it seemç to me, is that
after the 1920 period, and notably in the United Nations period, n
qlewnorrn has been developed. That is the question. That old norm,
that it haç been in esistence, there is no question about it. This
norm, I would Say, was clearly recognized by al1 parties to the
Mandate. 1 do not want to go further than this because it becomes
a strictly legal problem but, speaking as an historian, 1 certainly
would stand on the point that by 1920-and, in fact, hIr. Gross
yesterday was kind enough to read the Constitution oi the Republic
of Austria, which is dated 1920, and whicli was written by Professor
Iieben-certainly at that time, without going any further back in
history, that was an nccepted principle. However, the point here is
that a new norm has been developed, as defined on page 493 [of
the Reply]." (Srspra, pp. 42-43.)
Mr. Gross's cross-esamination eventually culminated in the following
general questiori:
"\Vould you agree that the principle of governmental protection
of equality of opportunity and cqual protection of the laws is a
virtually universall~. proclaimed standard. which is enshrincd in
most constitutions of civilized'countries and in decisions and deciara-
tions of international organizations? Do you agree with that as n
statement?" (Sztpra, p. 62.)
Theii Professor Possony \vent on to explain how he sali7the equal pro-
tection clauses. 1 d.o not wish to read his esplanation, wliich is fairly
loiig,but in the course of that he said: "So far as 1 understand it [that
is, the equal protection clauses in Constitutions], it means that a law
that isin esistence, depending on what the law says" (supra, p. 62).is
to be applied equally. It 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 founcl in many Constitutions, some dating back
to the 19th century, have nothing to do with a norrn and/or standards
as defined at page 493 of the Reply. The principle of equal protection
of the Iaws means no more and no less than that the laivs of the land shall
be aPfiliedequally to al1perçons to wfiom they rclate. The principle does
not introduce a concept of non-discrimination or non-separation in the ADDRESS BY MR. MULLER I77
makiiag of a law. I draw the distinction bctween the application of the
l;iw aiid the making of the 1a.w.In other words, it tloes not involve a
concept that the content oftl-telaws is to be such as to accordidentical
treatment to evcry person in the Statc. This latter concept lnight be
in~olved in the phrase "equality of opportunitgr" ~vhichis also found in
some of the constitutional provisions, but that u70uld depend on how
that phrase is interpreted in the context. If it Ineans equalityin facl,
differentiation ilaw would not only be permitted but very oftenrcquired.
Only if it means an artificial kind of cqz~a2ityirclaw could it be inter-
preted as requiring identical legal provisions for al1 personsin a State.
Tliat this is not what was meaiitinthe Constitutions concerned, is shoxvn
by the differential laws which csist çide by side with provisions in various
Constitutions-provisions regarding cquality before the law. A very
good esample in this respect, Mr. President, is the case of Tndia. The
Constitution of rndia cited by Rlr. Cross in the verbatim at page 24,
supra, contains an equal protection clause reading as follows:
"The Statc shall not deny to any person 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 perçons by
reason of membership in a group, class or race. 1 refer in this regard to
'the verbatim record, XI, at pages 665 ff.
Alr. President, it seerns c1t:ar from the whote trend of RIr. Gross'ç
cross-esamination of Professor Possony that Applicants are on the horns
of a dilemma. On the one hand, they cannot say that their norm andior
standards contai11the element of unfair discrimination. Bow tliey cannot
Say that for two reasons-the firçt is that in reformulating their Sub-
missions 3 and 4 they excised al1 allegations of discrimination in the
pejorative sense and tied their submissions to the norm and/or standards
as defined at page 493, IV, of the Reply, and exclusively as there defined
-a definition, >Ir. President, which upon analysis shows that it contains
no suggestion of unfair discrimination. The second reason is thal they
clearly stated to the Court that their case was not concerned with motives,
or witli the results of Respondent's policies or practices. From that, .
>Ir. President, it must follow that their case cannot be one of unfair
disci-iminatiori. AsIalreadg iridicated in addressing the Court on Tues-
dav, Respondent's policies and practices can only be unfair if such
policies and practices are tainted with improper motives, or if,whatever
the underlying niotiveç rnap tie, they, in fact, work out to be unfair in
practice, or both of these two situations.
On the other hand, AZr, President, the Applicants do not want to
admit that their nom as defined at page 493, IV, of the Reply is simply
a norm of non-djfferentiation-i.e.,a norm which prohibitç the allotment
by governmental policies and practices of status, rights, etc., on the
baçis of rnembership in a group, class or race.1 Say they do not want to
admit it becausc, on the evidence, it is clear that such a norm is not uni-
versally observed and does not esist. It is because Applicants find thern-
selves in this dilemrna that they now have to improvise and formulate
their case as resting on a norm and/or standards which prohibit-and 1
cluotc Mr. Gross's words in defining or reformulating the norm, in the
verbntim record. at pages 36 and 39, sz~pra:
".. . governmental policies [and practices] which do not give weight17~ SOUTH WEST AFRICA
to individual nierit or capncity, but which allot rights and burdens
[and privileges] on the basis of mernbership iiia group [and] which
do not protect equality of opportunity and extend equal protection
of the laws to individual persons as such .. ."
Alr. President,in this passage "equality of opportunity" and "equal
protection of the laws" cleady mean non-differentiation on the basis of
mernbership 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-thesecond 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 firstpart of the definition reading: "which do not give weight to in-
dividual rneritor capacity, but which allot rights, burdens and privileges
on the basis of mernbership 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 tmo parts of the definition must be reconciled.
Furthermore, if the suggestion were to be that equality,in f~ct, is to
be striven after, and that it was, in fact, not done by Responderit, the
allegation would invalve an enquiry into fact, into purposes or resultç
which the Applicants have repeatedly told the C,ourt that that is not
necessary. There is, consequentlp, in fact no difference between the norm
as recently reformiilated by Mr. Gross in cross-examination, and the
nom as defined at page 493, IV, of the RepIy, and as Professor Possony
has demonstrated, the practice of States does not bear out the esistence
of such a norm.
hir. President, imay, in this regard, also be siated that the esamples
of differential treatment rnentioned by Professor Possony cnnnot be
explained away by the Applicants on a basis at one stage advariced by
thern relative to differential measures such as, for example, the ininorities
treaties. It wiii be recalled that they seemed to suggest at that stage,
earlierin the argument, that in order to be permissible the differentiation
must be aimed ai the benefit of the individual rather than the group,
and that the individual rnember of the group should, in particular, be
permitted, if he wislied. to quit the group. In rnost of the cases mentioned
by Professor Possoiiy this would be either legallp or physically impos-
sible. As esamples, one can refer to the position of Cyprus, where yoii
have the Greeks, 011the one hand, and the Turks; the differential laws
applied in the Islaniiccountries as between Moslems and non-Moslems;
the laws differentiiiting between tribes, and the laws differentiating
between men and women.
Mr. President, 1 wish to draw attention again at this stage ofmy 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-with regard to the results which must necessarily flow from a
departure by Applicants from their definition of the aHeged norm and/or
standards as fonnulated at page 493, IV, of the Reply, and it was this:
that it would, in effect, constitute themaking of a new case which Re-
spondent lias not been called upon to mect. and which Respondent, in
fact, has not sought to meet; and that Applicants' charge as formulated
intheir Submissionj 3 and 4 would then not correspond with the norm
ifthe new definition differs from the definition at page 493, IV, of the
Reply. ADDREÇS BY MR. MULLER I79
This must be so, inaçrnuch as Appiicants have charged Respondent
with abreach of Article 2, paragraph 2,of the hIandate, on the sole ground
that Respondent has (and 1 cluote 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 norrn asdefined at page 493,
IV, of the Reply, and any departure by Applicants from the norm as so
defined must render the charge in their subrnissions defective.
Then 1corne now to dcal with the third branch of Professor Possony's
evidence, namely that conceriiing attempts in the international sphere
to formulate uniform objectives with regard to the treatrnent of individ-
uals and cthnic groups. His evidence on this aspect is contained in the
verbatim record of 19 October, XI, at pages 695 to 70s. Again, Mr.
Presjdent, jt is not necessary to enter into a detailed analysis of this
evidence as the factual correctri<:ssthereof was not disputed in cross-
esamination. A brief summary of the purport and effect ofthis evidence,
1 thiiik, will suffice.
Professor Posçony's evidence is to the effect that on the subject of
group rights, and the rightsof the individual, there are no international
conventions other than the Conv<:ntionon Genocide which, he said, can
be interpreted to mean that it provides each ethnic group the funda-
mental right of survival. Now, in stating that there are no international
conventions, he did nat mean that there are no conventions, which, in
some way or another, deal with rights of certain groups or with the rights
of inclividuals.Inthis regard he stated that there are conventions ~vhich,
in fact, deal with rights of indivic.lualssuch as, for example, the Charter
of the United Nations, which, among other matters, ernbodies under-
takings to promote human rights and fundamental freedoms of individ-
uals.He referredto that in the verbatim record atpages 17-18 sipra. And
he also referredto trust territory agreements, which deal with the rights
ofindividuals, but in certain areas, in thesame verbatim record, apage 18.
He referred to the International Labour Organisation Constitution and
Convention, which deals with certain aspects of human life relative to
the question of laboiir, in the çame verbatim record at page 18, supra.
And he also referred to regional treaties, such as the European Conven-
tion for the Protection of Wuman TZightsand Fundamental Freedoms,
which deal 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 1 have now stated when he said:
"Let me make myself clear, those arenot international agreements
addressed directly to the question of human rights. After all, we do
have a major effort in the United Nations going on which aims at
writing such an agreement on human rights fierse."
That isin the verbatim record, nt page 18, sttfirnAnd, Mt-. President,
he \irenton, after further questioninby air. Gross, to explain the position
as follo~vs:
"The difference iç that esscntially in most of these treaties-we
will leave out the European convention-liuman rights are men-
tioned as a matter of coilrse.The meaning of these stipulations js
vague, sometimes obscure. Tt is preciseiy in order to remedy this
difficulty that the United Kations has started on the effort to180 SOUTH WEST AFRICA
straightenout the human rights problem by writing an international
convention of which each lilember of the United Nations could be a
signatory, layiildown language so clear that it couldbe introduced
into statutory law and so that human rights in effect could be pro-
tected. It is the differenc1,think, between a declaratory yolicy and
positive law."
The statement which 1 have iust read is from the verbatim record at
page ~g,szd$va.
Now with regard toattempts in the United Nations to draft a coi-enant
on the subject of human rights #er se, Professor Possony, in his evidence
in chief, dealt with the Hurnan Kights Declaration of rg4S, which he
said was-
". ..içsued by the General AssernbIy as astatcnient defining hurnan
rightsin generrilterrns so that onthe basis ofthis declaration and of
the ideas espounded in the declaration an international convention
could be elaborated".
This is in the verbatim record, XI, at page 696.
&Ir. President, he rnentioned the attempts that have beeri made to
draft a covenant or covenants, attempts which have coine 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 inteUectua1 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 describe exceptions which make the drafting oi a
covenant difficult:that isin the same verbatim record, at pages698 to 700.
Likewise, he dealt with the Declaration on Racial Discrimination of 1963
and the attempts which have been made to settle a draft convention.
The Court will find his testimony in that respect in the sarne verbatim
record at pages 700 to 702.
Mr. President, in the course of his testimony he referred to the "in-
discriminate use of the terms racial discrimination, segregation, separa-
tion, apartheid. Xazism and the linkage of ail these terms to racial
superiority doctrines and doctrines of espansionism and racial hatred",
which, he said, hatl "no rational basis and leaves the whole subject in
utter confusion". The Court will find that in the same verbatirn record,
at XI, page 703,
Kow, Mr. President, also, this declaration has not resulted in a cove-
nant, and how far the world community is rcmoved from consensus on
such matters as rights of groups and rights of the individual, isclearly
demonstrated by the further evidence given by Professor Yossony re-
garding a recent seminar held under the auspices of the United Xations
in June of this year, in Yugoslavia. The names of the States that were
represented at this serninar are stated in the verbatim record, XI, at
Page 703.
Of particular importance, Mr. President, isthe main conclusion reached
at the seminar which in part (and 1 shall only quote a part of it) reads as
follows:
"There {vas general agreement that al1 Governme~its should
promote and yrotect the rights of ethnic, rdigious, linguistic or
national groups, not only through the adoption of constitutional
and legislative provisions, but also through the promotion of al1 ADDRESS BY MR. lCIULLER 181
forms of ictivities consistent with the political, econornic and social
conditions of the State or country concerned."
That is in the vehatim record, XI, at page 704.
In the same verbatim record, at the same page, Professor Possony
quoted another cortclusion to the follo~vinefiect:
"There was general consensus that the United Nations, as well
as Governments and institutions, should undertake measures and
stimulate more intensive rescarch on ethnic, religious, linguistic
and national problems."
Professor Possony read parts of the record of the seminar which dea1t
with the folloiving matters-I am notgojng to read the views espressed
in the record,1 shall merely give the Court the reference and the subject-
matters dealt with, which were the following-the nature of the minority
problem; language rights; indiviciual group rights; the rights of ethnic
groups; assimilation, and types of solutions. The Court will find extracts
from the seminar,quoted by Professor Possony in respect of these subject-
matters, in the verbatim record, XI, at pages 704 to 707.
&Ir.President, alsoof particiilar importance isrvhat Professor Posçony
described as the major operational conclusion renched at the seminar,
parts of which hc quoted at page 707 of the verbatim record that
1 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 itselwas that only ratification oa convention could impose bind-
ing comrnitments in this regard.
hlr. President, it ino wonder thnt when Professor Possony was asked,
in conclusion, to express an opinion whether in practice and usage there
was observance by States of a norm of non-discrimination or non-
separation which prohibits the allotment by governmentrtl policies or
actions of rights, duties or burdens on the basis of mernbership in a
group, class, etc., he stated emphatically :
"hlr. President, from what 1 have indicated to the Court with
relation to the practice al1 over the world. there is no general ob-
servance of such a rule or norm. And furthermore, from what Ihave
said relative to attempts at formulation of a concept of effective
practice, those attempts have progresscd no further than expressions
of general abstract ideas."
The Court \vil1find the quotation ri.hic1Iihave juçt read in the ïerbatim
record XI, at pages 707-708.
Mr. President, beforc the adjournment I had rend tothe Court Professor
Possony's opinion expresscd a.s to whether the norm suggested by the
Applicants is observed in the practice of States and thrit it indicated
"no". IVe Say, Mr. l'resident, tliat nothing in the cross-esamination of
Professor Possony, with regard to this aspect of the case, in an! way
detracts £rom the factual testirnony giveri by Profeçsor Possony or from
the conclusion whjch he stated on the basis of such facts-a conclusioii
which, inciced,is so manifestly lustified by the facts and by the documents
to which he referred.
ft issubmitted that Professor Possony's evidence establishes beyond
any doubt that the Applicants cannot rely on an? of the following
sources as evideiice of the virtunlly universal acceptance of the norm182 SOUTH WEST AFKICA
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 13raft Covenants, and the United Nations Declaration
on the Elimination of al1Forms of Racial Discrimination.
It may be convenient, Mr. President, also at this stage to deal with
a number of resolutions of the General Assernbly 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 ofthe
United Nations organs, asspecified at pages 497-504,IV, of the Appii-
cants' Reply, we intimated to the Court that not al1of those resolutions
related to South Africa or South West Africa. We then stated that the
remaining resolutions, that is, those not specifically concerned with
Respondent's policies, would be dealt with at a Iater stage, together
with other suggested sources outside of the United Nations. I refer in
this regard to the verbatim at page 87, siq5ra.
Now, the other silggested sources have been disposcd of and it remains
to deal with the United Nations resolutions which are not directed at
South Africaor South West Africa, and 1propose to do so,Mr. President,
in the light of the teçtimony 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 general application. I shall deal first with the latter
group, which comprises the following resolutions, narnely resolution 103
(1) dealing with persecution and discrimination; resoiution 1779 (XVII)
dealrng with manifestations of racial prejudice and national and religious
intolerance; resoiution 17So (XVII) dealing with preparation of a draft
dedaration and a draft convention on the elimination of al1 forms of
racial discrimination, and resolution1904 (XVIII), United Nations Dec-
laration on the Elirnination of al1forms of Racial Discrimination.
As the titIe of the first resolution shows, it did not deal with mere
differentiation on a group basis. The very short text of the resolution
merely declared that "it is in the higher interests of humanity to put
an immediate end to religious and so-called racial persecution and dis-
crimination ..." The resolution called on governments and responsible
authorities to conform to the Charter of the United Mations. The resolu-
tion is contained inGerzeralAssenably,OficinlRecords. 1st Session,Second
Part, Document -4164,Add. 1, page zoo. The coupling of the word in
this resolution "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 asa source of the
norm ancilor standards, as defined at page 493, IV, of the Applicants'
RepIy.
The second resoliition, that isnumber 1779, in its preamble expressed
concern 3t "the continued existence and manifestations of racial prcjudice
and of national and religious intolerancein different parts of the world.
The resolution is recorded in Getzeral Assembly, Oficial Records, 17th
Session, Supplement No. 17, Document A/j217, page 32.In its operative
part, the resolution, inter alia.called upon governments "to take al1
necessnry steps to rescind discrirninatorjr lawswhich have the effect of
creating and perpetuating racial prejudice and national and religious
intolerance wherevar they still exist.. .".
Here, again, Mr. President, the use of the phrases "racial prejudice"
and "national and religious intolerance" 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 discriminatioii and not Laws which merely involved
differentiation or separation on the basis of membership in a group. This,
indeed, iç expressly stated in the resolution, part of which reads. as 1
have quoted, "discriminatory laws which have thc effect of creating and
perpetuating racial prejudice, etc."
The third resolution,No. 1750, referred to "manifestationsof discrim-
ination based on difierences of race, colour and religion still in evidence
throughout the \vorld". In its operative part the resolution requested
the Econornic and Social Council to ask the Commission on Human
Rights to prepare a draft declaration and a draft convention on the
elimination ofail forrns of racial discrimination. The resolution is recorded
in GeneralAssembly, Oflcz'ulRecords, 17th Session, Supplement -1'0 17,
Document A/~sI~, page 32.
The fourth resolution, No.1904, irtlerdia,statcd in its prearnble that
"any doctrine of racial differentiation or superiority is scientifically false,
moraiiy condemnable, socially unjust and dangerous, and there is no
justification for racial discriminationeither in theory or in practice".
The resoIution went on to state "al! forrns of racial discrimination and,
still more so, governmental poIiciesbaseci on the prejudice of racial
superiority or on racial hatred, bcside constituting a violation of funda-
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 Gexeral Assernbly,Oficial Records. 18th
Session, Supplement No. 15, Document A/5515, at page 36.
In its operative part the ri:çolution proclaimed the Declaration on
the Elimination of al1Forrns of Racial Discrimination.
In view of the evidence given by Professor Possony, Mr. Prcsident,
as to the as yet abortive atteinpts at drafting a covenant on the bais
of the Declaration on the Elimination of al1 Form of Racial Discrim-
ination, and with regard to the views expressed at the recent serninar
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 illustratioof the lack ofclarity and the confusion
in regard to terminology, as u7as referred to by Professor Possony in
his evidence.
1 now, Mr. President, turn to the second group of resolutions under
consideration, namely those pertaining to non-self-governing territories.
This group can in turn be dividcd into two sub-groups, narnelÿ those
resolutions concerned with racial discrimination in general, and*those
concerned with equal treatment in matters relating to educat~on in
particular.I shalI dea1first with the resolutions which hadmore general
tenor, and then with those ri:solutions 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-governing territories. These resolu-
tions are 644 (VII) of IO Deci:ml)er 1952, 1328 (XIII) of 12 December
1958.153(6 XX) of 15 December 1961,1698 (XVI) of 19 December 1961,
and 1850 (XVII) ofrg Uecember 1962.
Mr. President, in tlic first resolution that I have just mentioned,
644 (VII) ofIO December 1953, the General Assembly, after referring
to the Charter and the Declaration of Human Rights, recognized-184 SOUTH WEST AFRlCA
". ..that there isa fundamental 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 dia,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 esistence providing particular measures of
protection for sections of the population,hese laws should frequently
be examined in order to ascertain whether their protective aspect
is still predonunant, and whether provision should be made for
exemption from thern in particular circurnstances". (C.A., O.R.,
7th Sess.,Suppl. No. 20 (A/2361),p. 32.)
Air. President, it is important to note the distinction clrawn, on the
one hand, between discriminatory measures, and, on the other hand,
mesures which are intended to protect indigenous inhabitants. It seems
that the General Assembly intended to draw that distinction-that is,
on the one hand, discriminatory legislation, that is, legislation lvhich is
motivated by an improper design, and, on the other hand, legislation
intended to protect indigenous peopies.
As long as the yredominant aspect of a measure was and remained
one of protection the legislation was not outlawed.
This resolution, ilIr. President, we say, does not, therefore, lend support
to the norm as defined at page 493, IV,of the Reply.
Coming next to resolution 1328 of 12 December 1958, which is the
second resolution 1 mentioned, this resolution merely referred back to
resolution 644 (VII),that 1 have just dealt with, and-
"[r]eafirms its resolution644 (VII) and draws the particular atten-
tion of the Adnlinistering Mernbers tothe recornrnendation contained
in paragraph 2 thereof .. .",
and further urged members responsible for the administration of non-
seIf-governing territories to pay special and constant attention in future
to implementation of its resolution 644 (VII). (G.A., O.R., 13th Sess.,
Su pl. Xo. 18(A/4i,go), p. 35.)
kr. President, again this resolution does not asrist the Applicants.
Resolution 1j36 (XV) of 15 Decernber 1960-the third one mentioned
by me-also in turn refers to resolution644 (VII) of IO December 1952,
and to the second I have mentioned 1328 (XIII) of 12 December r958.
hiow, this resolution in its operative parts-
(a) endorsed the view that racial discrimination is a violation ofhuman
rights and a deterrent to progress in al1 fieldsof development ;
{b) recommended the resisjon of al1laws and regulations rvhich tend .to
encourage or sanction, directly or indirectly, discriminatory policies
and practices bnsed on racial cansiderations;
(c) urged that measures to solve the probiem of race relations should
include the estension to ailinhabitants of the full esercise of basic
politicaI rights. in particular the right to vote,and the establishment
of equality among the members of al1races inhabiting the non-self-
governing territories.
1 have just referred to the contents of the resolution as rccorded in ADDRESS RY MR. MULLER 185
the General Assembly, Oficial Records, 15th Session, SuppIement 80. 16
(-Now, again, pW.e Prcsident, as this resolution referç back to resolution
644 (VII), there must, by implication, again bc 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, açdistinct from something
intended to bring about bindirig commitments of an exactly formuIated
content. Consequently, we Say, Nr. President, also this resolutioii does
not assist Applicants' norm or standards contention.
1'~vishto deal now with resolution 1695(XVI) of 19 December 1961.
That resolution referred back to the resolution with which I have just
dealt, that is resolution 1536(XV) and also to resolution 1514(XV)
which is entitled "Dcclaration on the granting of independencc to colonial
countries and peoples". Alr. President, this resolution noted that racial
discrimination still existedinnori-self-goveming territories and endorsed
the view of the Comrnittee on Information from such territories "that
on no grounds whatsoeves can the existence of racial discrimination in
any aspect of life in the Non-Self-Governing Territories be justified".
In its operative part, theresoli-itioncondemned "the policy and practice
of racial discrimination and segregation in Non-Self-Governing Terri-
tories", and urged the administering BIembers to take steps to ensure:
"The immediate rescinding or revocation of al1 lawsand regula-
tions which tend to encourage or sanction, directly or indirectly,
discriminatory policies and practices based on racial considerations."
That is in the GenernE Assembly, O@cial Record, of the ~Gth Session,
Supplement No. 17, document A/51oo, pages 37-38.
Before sayingsomething about the meaning and purpose of this resolu-
tion, itwillbe convenient to refer to the last resolution th1trnentioned,
that is1850 (XVII), which was closely linked with this one. This resolu-
tion recalled resolution1698 (XVJ) , and noted with deep concern :
"that racial discriminatiori in law and in practice, which is utterly
repugnant to humanity, has not been eradicated in Non-Self-Govern-
ing Territories",
and it reaffirmed. the General Assembly's "resolute condemnation of
the policy and practice of racial discrimination in Non-Self-Governing
Territories". That isin the Gelteral Assembly, Oficial Record, of the
17th Session, Supplement No. 17, document A/5217, at page 43.
Mr. President, 1 should like to draw attention to two features of
these two resolutions which 1 have just mentio~ied. The first is this:
resolution 1850 (XVII) referred back to resolution 1698 (XVI), which
in turn referred to reçolution :r536(XV); the Iast-mentioned rcsolution
in turn again referred back to resolution 644 (VII) whicli 1 mentioned
earlierand which mas the first resolution pertaining to non-self-gowrning
territories that 1 mentioned. As already stated, Mr. President, that
resolution, that is644 (VII) raised no objection to laws providing par-
ticular measures of protection for certain sections of the populat?on.
No resolution of the General Assembly ever expressed an oppoçite view.
And since the last two resolutions in effect referred back to resolution
644 (VII), it would seem that these two resolutions also did not intend
to condcmn mere differentiation on the basis of membership in a group,I86 SOUTH WEST AFRICA
class or race. In other words, it scems again that where the words "racial
discrimination" were used in these resolutions, they were intended to
mean "unfair racial discrimination". If they rneant anything else, Mr.
President, they cei-tainly did not succeed in stating so.
A further point 1 wish to make is that al1 the resolutions pertaining
to non-self-governing territories were based on information furnished
with regard to such territories, which of course do not include South
West Africa. and were intended to apply solely to those territories, and
then, of course, merely asrecommendations. They were never intended
to lay down a norm or standard or principle which shouId also apply
to other countries or territories.
In sum, therefore, these resolutions may at their highest be seeii as
part of the thus far abortive attenipts, which Professor Possony referred
to, towards arriving at a generally applicablerule about irtdividualsand
group membership.
fiTay1 then deal with the resolutions relied upon by the Applicants
in so far as the subject of education isconcerned. The first of these
resolutions, No. 328 (IV) of2 Decernber 1949 invited the adrninistering
mernbers: .
"to take steps, where necessary, to establish equal treatment in
matters related to the education bet~veen inhabitants of the Non-
Self-GoverningTerritories",
and further:
"in cases where for exceptional reaçons educational facilities of a
separate character are provided for different communities, to include
in the information transmitted under Article 73 e of the Charter
full data on the costs and methods of financing the separate groups
of educational institutions".
I have just quoted from the GeneralAssembly, Oficial Recovd, of the
4th Session, docunient A/rz51, at age 41.
This resolution clearly recogni8ethat, under particular circumstances,
it rnight benecessary to provideeducational facilitiesof aseparatecharacter
for different comrnunities and it is worth noting that, as was pointed out
in Our Rejoinder, VI, page 152, the Special Comrnittee on Information
gave the following interpretation ofthe above resolution:
"The Special Committee considers the resoIution to stressequality
of opportunity for different ethnic and religious groups of the school
population. in order that every child, regardless of race, religion,
language or social status,rnay acquire both a knowledgc of his own
culture and a sympathetic understanding of the cultures of others.
It does not necassarilymean that a common edrccationalpvogramme
shozsldifallcases beprovided#or al1groupsin n comrnasîsitof diferent
racial orreligioltscomposition."(Italics added.)
Itis consequently clear 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 IZ December 1939 endorsed-
"the view expressed by the Committee on Information from Xon-
Self-Governing Territories that on no ground whatsoever can educs-
tion on a racial basis be justified", ADDRESS BY hZK.MULLER 187
and requested the committee ta pay speciaf attention to this matter.
1 refer in this regard to the GelteralAssembly, Oficiul Record, of the
14th Session, Supplement 16. document A/4354, at page 35. At the
same time, the General Assentbly reaffirmed resolution 328 (IV) with
which 1 have just dealt. If regard is further hadthe fact that resolution
1464 (XIV) did not cal1 upon adrninistering members to give effect to
the view espreçsed by the Cornmittee 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 witli regard to non-self-
governing territories.
Itshould be observed that the views of the Cornmittee on Information
which were endorsed by the General Assembly werc 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, inderaldu, that-
"whether or not it had bt:en feasible to provide equally advanta-
geous facilities for each of the racial groups, it was liable to entai1
a multiplication of staff,efiortand 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 wauld be
justified".
It should be observed that after the adoption of the resolution in
question, administering 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 foIIowing
two extracts from the report dealing, respectively, with Ruanda-Urundi
and New Guinea, are illuminating in this respect1 quote from the report.
The first one is from1959 elative 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
Asianç at Usumbura and schools run on Belgian lines. The Admin-
istering Authority explainathat these distinctions are prompted not
by racial discrimination but by practicalrequirements arising from
the locationof 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 reIative to New
Guinea, dated 1962:
"The great majority of both mission and Administration primary
schools are classified asPrimary "T", and have a curriculum spe-
cially designed for indigenous pupils. The others, classifiedas Pri-
mary "A", follow the primary school curriculum of the State of
New South \Vales. The Adrrunistering 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, >Ir. President, that the resolution188 SOUTH WEST AFRICA
in question and the views of the Committee on Information wer? based
on particular circurnstances existing in specific territorviz.,the noii-
self-governing territories,which do not include South West Africa.
Neither the cornmittee 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-gover~iing territories. It is not necessary for us to show that
circurnstances in South West Africa differ from those in the non-self-
governing territories, but in passing it may be pointed outaswasstated
in the Rejoinder, VI, at page 150, that the Imite population of non-
self-governing territories constitutea 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 intcnded
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 theReply.
>Ir. President, with Sour permission. 1 nom turn to the third part
of our argument. The Court mil1 recall that on Tuesday 1 explained
that the argument would be divided 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 norrn andlor standards, asdefined at page 493,
IV,of the Reply, would, in the circumstances of many countries, including
South West 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 circurnstances of pluralistic societies in
gencral, and the second part, evidence directed at the particular circum-
stances of South 1VestAfrica.
With regard tothe first-mentioned branch, that is the evidence directed
to countries generally,1 shall refer to the evidence of Profesçor van den
Haag, and Proiessor 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 chatlenged by the Applicants. At one stage, it was indicated
that he would be cross-esamined 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 M.r. President, 1 shalI not repeat what lie
stated there. i wish to make a few points relative to these cjualifications.
He mentioned that he had obtained certain degrees, interalin, anM.A.
and a Ph.D. degrce and his special fields of study were sociology and
psycho-analysis. He is a Professorof Social Philosophy-it js 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 booksbeing used as a text-book in United
States universities.
He has fora long tirngiven special attention to the subjecofminority
problems and particularly to the manifestation thereof in the United ADDRESS 131MR. MULLER 1~9
States regarding the relationship between the Negro minority and the
\iliitemajority, and he is engaged in major research projccts on the
effects of segregated and integrnted schooling of Xegro pupils under con-
ditions wherc al1vanables are controlled.
Sow, >Ir. Yresident, Profcssor van den Haag dealt with the existence
of liuman or social groups and with the importance of having due regard
to such groups in matters of governmental policies and yractices. He
stated that although a human group was, of course, composed of iridivid-
uals it rvas sorncthing more than "a mere aggregate of perçons". 1 refer
in this regard to the verbatim at X, page 141. BIr. Yresident, as1 go on
1 shall not try to give a complete summary of what was said, but merely
indicate generally the topics arid then refer to the pages wherc the refer-
ence is made in the testimony.
He saicln social group waç an aggregate that felt as a group and was
bound together tiy a feeling ofgroup solidarity usually based on the
perception of similar characteristics, on a sharing of values, or possibly
on cornmon historical esperience. (X, p. 141.)
He \vent on to Say that nations could be described as groups that ivere
"held together by cultural values that are perceived as cornmon". That
is the same verbatim, same page.
Now such group solidarity, he testified, led to a sense of order and
law-abidingness in the community and maiiifested itself, inter dia,
in a preparedness to make 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 thcmsclves within t.heborders of the same country, the situa-
tion could give rise to conflict, cspecially when one group feIt itself orits
identity threatened by anothei. group. (Ibid p. 180.)
Now, in this regard, Professor van den Haag referred to situations
which arose in certain countries, namely India, which, he said, wasparti-
tioned to accornmodate turo incompatible groups in an effort t~ reduce
strife and conflict(Ibid.,pp. 143, 144, and 43 3-436.)
He also pointed out how the Governments of Yoland and Czechoslo-
vakia after iorld War II,fearing the introduction of elements of dis-
solidaritgrhad the German po ulationç within their countries remaved.
He referred also to the case okuanda-~rundi and the fact thvt group
conflicts led to the partitioning of the country-partitioning which in
the final event turned out to be one that did not go far enough, as the
tragic events showed. (Ibid., p.144.)
Professor vari den Haag also referred to two cases-the United States
of America and Russia-where government fears of possible disloyalty
on the part of certain popuIation groups within its borders led to action
against such groups on a purely group basis. (Ihzd., p.145.)
He also pornted out that certain countries franzed their immigration
laws in such a uTayas to avoicl the introduction within their borders of
elements which might not be readily assimilable because of the cultural
or ethnic differeiices.
He referred in this regard to the United States of America, Australia,
the United Kingdom and Canada. (Ibid., pp. 146-147.)
Mr. President, al1 this, apai-t 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 ethnic difierences-practica1 recognition accorded to the=go SOUTH WEST AFRICA
importance of thece matters, and the tragic consequences of overlooking
them or granting insufficient recognition to them.
In regard to the question of assimilation, reference may also bemacle
to the evidence of Professor van den Haag as recorded inX, at pages 167
to 174, the effect of which can briefly be stateasfollows.
At the base of group solidarity lies identification, consciousriess of
kind, andit is auriiversal phenomenon that members of an ethnic group
show a preference for, and telid to associatwith.fellow members rather
than with others. Indeed, as between different ethnic groups, there is
everywhere in the world, he said, a tendency to "ethnic prejudice" and
"ethnic separation" unless circumstances can be so arranged tiiat there
ismutual acceptance. 1 refer to the same verbatim, at page 172.
Professor van den Haag said that atte~i~pted assimilation might be
successfüll~~accomplished "when it iç carefully regulated, when there is
a lot of groundwork laid, when it was done slowly", and when it Iras
produced, as he said,by "mutual acceptance". 'l'hat is at page 174 of
the same record. He said an attempt to do so by force ~ould not be
successful. Disruption leads to verSrinjurious 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, Yrofessor van den Haag
said,"the less1 would urge any irnrnediateand sudden homogenization",
and the more he would want the two groups "to remain relatively iso-
lated fcom each other". (X, p. 179,)
He also said that cultural differences between two groups might be so
great asto cal1for legal measuces to maintain separation betu7een them.
If this was not done a technologically weaker group might be overrun
by a more advancizd group. He referred in this regard to the Indians in
the United States of America. (Ibid p.p.179-180.)
According to Professor van den Haag. it cannot be said that segega-
tion is, by itself, harmfIn.many cases, he said,it would have beneficial
results.(Ibid., pp. 179-180.)
Mr. President, in thisregard,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 has any sort
of strength. (Iln'd.,pp. 152-153.)
(b) Differences in cultures and in levels of development are factors
favouring sep:iration(Ibid pp, 164 and 179.)
(c) When a grou11considers itself or its identity or its standard of life
to be threatened by another group, "the amount or intensitjr of
prejudicetends to rise".(Ibid., p.180.)
Mr. President, al1this ernphasizes the need to deal mith each case, as
Professor van den Haag said, on its merits and noby a fixed preconceived
formula, as appears from the wap he expressed himself, at page 180.
Professor van den Haag also dealt specifically with the question of
education. 1 do not intend to dcal with this here. It willbe dealt with
later,Mr. President, when we corne to the particular subjects, such as
education.
May 1, then, deal very briefly with the evidence of Professor Manning,
Rlr. President? His qualifications as an expert were not challenged by
the Applicants in cross-examination. It is true that during the eramina- ADDRESS BY >IR.MULLER *gr
tion-in-chicf Applicants raised objectionsas to the formulation of the
points to which Professor hlanning's evidence was to bc directed and to
the relevancc of his evidence, but this objection obviously did not relate
to his expertise as suchAt ont: stage-that was during the exaniinaiion-
in-çhief-BEr, Gross for the Applicants suggested that Professor Manning
\vas not really qualifiedas an expert, but that he was expressing his
"persona1 credo". I refer in this regard the verbatim, XI, at age 604.
3lr. Yresident, in Oursubmission and for reasons which 1sha 1outline,
this suggestion was unfounded.
Professor Manning's qualifications appear at XI, page 601 and the
following pages of the verbatim record, and 1 shall very briefiysum-
marize the qualifications. He obtained the degrees of Rachelor of Arts
and Bachelor of Civil Law at the University of Oxford, his main fields
of study being philosophy and law. Thereafter, he held a fellotvship at
Harvard University. Having taught legal subjects at Oxford, he held
for more than 32 yearç the Chair of International lielations in the Uni-
versity ofLondori. He has published a nurnber of articles and i1962a
book The NadtireofInternational Society.
His basic field of study, international relations, entailed a study of
charactcristics of the internationalSociety and such developments in
the domestic affairsof Statesas have an impact on international issues,
es ecially the problem of the nature of groups and group personality.
A so'he, &Ir.President, testifieù on the matter groug solidarity and on
situations which may arise where different groupsfin thernselves within
the same country.
Very hriefly, his evidence was: a groupas he said-is, of course,
composed of individuals, but it cnn also be more than a mere aggregate
of individuals. The groupis so~netimessocially viewed as a person, as an
entjty luith agroup personality(XI,atp. 606).He said that every individ-
ual member of a group has firstly an image of hirnself,as participating
in the collective selfhoof hisgroup, and secondly an image ofhisgroup,
and the collective self-image of the members of the group is a part of
that which gives them their <:ohesion and their solidarity as a group
(ibid.).
The existence of more than one such group in a single country, Profes-
sor Manning pointed out, could lead to difficulties in government 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-pnrty rule (ibid.p. 611).He mentioned India and Ruanda-
Urundi in this regard, where resort was had to partition when Great
Britain and Belgium respectively withdrew. He also referred to Cyprus,
\vhcre hc said a formula for ensuring peaceful coexistence of the Greek
and Turkish comrnunitics was still being sought (ibid., p. 614).
"Where the population of a country is a single people with a single,
all-inclusiveself-hood and s single, collective self-image",Professor
Manning said, there is no difficulty about making satisfactory constitu-
tional arrangements (ibid.).
Dificulties, he said, arise "when within the ambit of a single polity
there are included oneor more less dynamic.. .self-hoods whose presence
and potentialities are not sufficientlyllowed for in the given constitu-
tional schcmc" (ibid. ).yway of illustration he rcferred, intalia,to
the position of French-Canailians in Quebec, and of the Fleinings
and the \.fTalloonsin Belgium-both cases where groups in a country=92 SOUTH EVEST AFRICA
have shown themselves to be unassimilable and not ïvanting to be assirn-
ilated one to the other (ibid.).
Where the objective is the promotion of the well-being and progress
of two or more underdeveloped peoples living in one territo~y, the ap-
proach should not be (in Professor Manning's words) "ideological or
doctrinaire" but "tentative" and "clinical",i.e., suited to the sociological
needs of the particular situation. I refer in this regard to the verbatim
record, XI, at pages 616-617.
The Court will also rernember that Professor Manning was asked to
express certain views with regard to the position in South \Vest Africa
itself.1shall not deal with that now, but at a later stage.
Coming to the evidencc of Professor Possony. Iie also stressed the im-
portance of recognizing group differences in pluralistic societies.1 shall
only read a brief estract from his evidence in this regard (ibid.,p. 648).
This is what Professor Possony said:
"3TuIti-ethnic societies presuppose the explicit recognitionof eth-
nie differences. Such societies require institutions that are based
upon and manage the ethnic diversity. In addition, an effective
organization toensure the collaboration of different ethnic groups
is neederl to bring about mutually beneficial economic progress
and to provide for each individual an intact social community of
his ou7n. If such communities are disrupted, or if the relationship
between the individual and his comrnunity is disorganized, man
becomes psycl~ologically alienated, that is, he no longer belongs to
his group.
In summary, ethnic differences demand recognition. If rnulti-
ethnic societies are to function well such differences must be handled
through institutional arrangements."
hlr. President, the Court wiii also recall that when asked the question
whether it would be practicable and just to apply a norm andlor standards
as contended for by the Applicants under al1 circumstances and at al1
tirnes, Yrofessor Possony's answer Ras (and 1 shall read only a part of
it):
"blr. President, my answer to this question is no. Nankind with
al1 its diversities has never accepted a single writ. To impose a
single formula would be ideological imperialisrn . . . the best prin-
ciple, it seem to me, is to tailor methods or responses to specific
challenges. An optimal soIution can be optimal only in terrns of a
concrete situation. A solution can be viable only if it respects the
history of an area and is implernented 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 I-Iaag,
Professor Manning and Professor Possony each, from his own field of
learning and research, and each in his own wording, emphatically came
to the same conclusion, narnely that the best principle (and 1 quote
frorn the words of Professor Possony) is "to tailor methods or responscs
to specific challenges". This evidence, in our contention, lends support
to an argument which we have already advanced relative to the discre-
tionary powers bvhich were vested in the Mandatorieç, narnely that it
would have been irnpracticable, if not entirely impossible, to prescribc
special methods of promoting well-being and progress for each of the
mandated territories. Consequently, Mr. President, Save for providing for ADDHEÇS DY MR. MiJLL13R =93
certain specific prohibitions, cach Alandatory ripasespectrd and em-
powered to (ancl 1 quote Professor Possony's words) "tailor methods or
responses to specific challenges".
We submit, Mr. President, that there is nothing in the cross-esainina-
tion of Professorvan den Waag,Professor Manning or Professor Posçony
which in any way detracts from their stritcd views that to apply the
norm ofnon-discrimination or non-separation for which the Applicants
contend, under a11circumtances and atal1 times, espcclnllin countrjes
in which there are pluralistic societies, that is, societies composed of
different etlinic groups, would in many cases be to court disaster.
Mr. Presiderit, having dealt with the gcneral evidence, 1 now wish to
proceed to deal with witnesses who expresscd themselves relative to the
situation in Soutli West Africa itself. Here again, the testimony can be
divided into two broad catcgories, namely (a) the evidence of witnesses
who espressed opinions on the situation in general; ancl (b) the evidencc
of witnesses who dealt tvith pal-ticular aspects of policy, such as political
rights, education, and, for instance, the economic aspect. 'l'heris,liow-
ever, some overlapping between the two categories, and the evidence of
some witnesses niay be rcferred to in the argument relative to both,
but, neverthelcss, 1 consider it.convenieiit to deal with the subject, as
far as possible, in terms of these two categories.
Concerning the witnesses wlio expreçsed vieu7s on the situation in
geiieral, the Coiirt will reccillthat certain witnesses, as,ffor exaniple,
Professor van den Haag and I'rofessor Manning, did so not on the basis
of personal or intirnate know1t:dgeof conditions in South Irest Africa,
but on the basis of knowlcdge obtaincd from our pleadings, the facts
treated in the pleadings being adrnitted by the Applicants.
It will accordingly be conveiiient, before dealing with the evidence of
such witnesses, to refer bricfly t.ocertain general circumstances or factors
as described in the pleadings concerning the different popiilation groups
of South \Vest Africa, wliich facts are not disputed by the Applicants.
In this reg~rd I wish to rcfer the Court to a statement made by my
learned friend, air. Gross, with regard to the admission of facts, in the
verbatim record, IX,at page 21. May 1be permitted to read the passage,
which isto tlie following effect:
"The Applicants have gone further in order to obviate any plau-
sible or reasonable basis foran objection that the Applicants have
not paintetl the hole picture in their own written pleadings. The
Applicants have advised Respondent as well as this honourable
Court that al1 and any averrnents of fact in Respoiident's written
pleadings will be and are accepted astrue, unIess specifically denied.
And the Applicants have not found it necessarp and do not find it
necessary to controvert any such avcrments of fact. Hence, for the
purposes of these procccrlings, such awrments of fact, although
made bp Respondent in acopious and.unusually voluminous record,
may be trcated as if incorporated by reference into the Applicants'
pleadings."
3Ir. President, may 1 now be permitted to state tlic more important
circurnstanccs or factors to which 1 have just referred, and which in
our subrnission are not only rt:levant but very material in the present
enquiry? 1shall state them very briefly, and then refer to, or givevery
brief quotations from certain passages in the pleadings.194 SOUTH WEST AFRIC-4
The first factor to which I refer is the existence in South West Africa
of a nurnber of population groups with different traditions, cultures and
languages. In this regard 1 refer to the Counter-hlemorial, II,pages 311
to 348, wliich contains a description of the population groups of South
West Africa. The Court is respectfully referred to what is stated in regard,
iizter dia,to the history, social and political organization, language,
economy, etc., of the different groups. The foilowing passage states very
briefly the position in 1920 and the position today:
"The population of South West Africa is todap, and has been for
centuries, a heterogeneous one. When Respondent assumed the
Mandate in 1920, the Territory was occupied by at least nine major
population groups differing widely as to appearance, ethnic stock,
territories of origin, culture, language and general level of develop-
ment."
1 have just read from the Counter-Memorial, II, page 311, paragraph I.
There is also a passage in Book VI1 of the Counter-h.Iemoria1, III,
with regard to the position in 1920. If 1 mal be perrnitted to read, it
is as follows:
"Each of these groups had its own identity, its own culture,
custorns and language (save that the Bastcrs and other Coloureds
spoke one of the European languages, and the Dama the Xama
language, as they stilldo). There were in these respects differences
not only between the \2%ite,'Coloured and Native groups, but also
between the various Native groups intev 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 sirice the assurnption of the Mandate
by Respondent, has the population of the Territory in fact formed
an integrated, homogeneous society. On the contrary there has at
al1 times esisted a wide diversity of population groups. several of
ivhich have always been confincd in their habitation to defined and,
in some instances, relatively isolated regions or areas within the
Territory. There have at al1 times been wide differences between
the groupç-in levels of development, modes of living, outlook and
aspirations-and in the not too distant past conflicts of interest
resuIted in almost incessant warfare between some of them." (Ibid.,
p. 106, para. 7.)
\Vithout reading it, I would also refer the Court in this regard to the
Counter-Mernorial, III, at page 375, paragraph 49.
The second factor, Mr. EJresident,is that in the history of the Territory,
prior tv the assumption of the hiandate, there had been a period of
strife and warfare between a number of indigenous groups. The factual
position in this regard is briefly stated as folloivsin the Counter-Mernorial,
II, atpage 407, paragraph 13:
"In the Police Zone, ... Respondent fotintl variouç Native groups
which had been in contact with one another for at least a century.
This contact had not led to the creation of a common society-on
the contrary, tribal and racial differcnces, and confiicting claims 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-hlemorial Ge dealt with thcçe matters ADDKESS i3Y MR. MULLER I95
in some more detail. It setsoiitat II, page 327, paragraph 56, how the
Uushmen were hiinted down and virtually esterminated by the stronger
Hottentot, Hereri~and other Uantu groups ;how theDamawere persecuted
and enslaved by the Nama arid the Herero (that is at pp. 332 to 333,
paragraphs 64 and 65);and how the Herero and the Narna fought each
other alrnost continuously for most of the nineteenth century (that is
at p. 349 of the same part of the pleading).
1 think the position may be summarized by the following short quota-
tion from page 349, paragraph I:
"The history of South iYest Africa during the nineteenth century
consists of a record of alnlost uninterrupted warfare, particularly
between the Nama and the Herero. As will be seen, in the period
between 1835 and 1861 the Narna 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
pasition asthe dominant group in central South West Africa. After
ten relativcly peaceful years, the year 1880 saw the beginning of
renewed hostilities, whicli were not finally terrninated unti1 the
Germans, who had in the meanwhile acquired authority over the
Territory, suppressed the warring tribesby force of arms in the last
couple of years of the century."
Mr. President, the third factoris that, generally speaking, tlie various
groups find theniselves at differcnt levelofdevelopment, and, in partic-
ular, that there is a vast difference in this respecbetwecn, on the one
hand, the European group, which has a tradition of western civilization
and isused 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 suhsistence economy.
Hook III of the Counter-J1i:morial contains brief descriptions of the
traditional economic systems of various indigenous groups. Al1 these
econornies were of a simple subsistence type, with some more primitive
than others. So, for esample, the economy of the Uuçhmen was one of
hunting and food gathering, and that of the Dama almost equally prim-
itive. The references in this regard tothe various groups are the following:
1shalI only indicnte where theq. are to be found, &Ir.President, without
quoting or even summarizing.
The Eastern Caprivi people are dealt with in Book IIIof the Counter-
Mernorial, 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 13ushmen, at pages 329 and 330; the Dama, at pages 335 and 336;
the Nama, atpages 336 and 339; and the Herero, also in this sarne volume,
at pages 346 and 347.
The agricultural and pastoral activities of the groups in the northern
territories are, clcspite devcloprnents which have taken place, still largely
of a subsistence type. Details of this are contained in the Counter-
Mernorial, III, at pages 4 to9.
In the PoliceZone deve1opnient has progressed further. in that area,
Xative farmers have to some extent become commercial farmers who
produce for the market. 1 would rcfer the Court in this regard to pages
IO to SI, III, of the Counter-Mernorial, 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. Ig6 SOUTH WEST AFRICA
In the field of industry and commerce the Natives of the Territory
have generally not acquired the esperience,enterprise or means to initiate
modern dcvelopmerit. So. blr. Prcsidcnt, for example, thc following is
said inregard to mining, if1may quote ashort passage from the Counter-
hlemorial, III,page 59 :
".. . due regard must be had to the fact that the Xative population
has as yet not. acquired the esperience, and generallp does not as
yet have the initiative or the means, to iindertake prospecting and
mining operations, which . . . rnust usually be on a large scale to
render them profitable".
blr.President, details with regard to commercial activities on the part
of the Natives are briefly set out on pagesIOI to103, III,of the Counter-
Memorial.
The fourth factor, Mr. President, is that to a very large extent the
groups occupy, antl 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-Mernorial, II, pp. 312-313) the Okavango
people have occupied their present tersitory for probably more than
one hundred years [ibid., p. 317);the position would seem to bc about
the same in the case of the Ovambos (ibid., pp. 320-321 )the Himba and
ïjimba of the ICaolroveldseem 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 52); the othcr Herero $vent to the
Kaokoveld in 1915, this matter is dealt with in the Cou~iter-JIemorial,
III,p. 242, paragraph 39; the Sama of Okambahe have occupied that
area since1870 (Counter-Mernorial, II,p. 378,paragraph SG) ; the Basters
of Rehoboth have occupied that territory since 1870, 1 refer in this
regard to the Countcr-Meinorial, ibi~l.,page 379, paragraph $8.
Mr. President, the fifth factor is that thc indigenous groups, to a
large extent, still recognize and apply their traditional systeof govesn-
ment through chiefs and headrnen. In this conncction, the Court's atten-
tion is firstly dramn to what is said in Respondcnt's Counter-IIemorial,
III, pages 114-125 paragraphs 38-83, about the indigenous poIitical
institutions outsidt: the police zone.As wiil appear fsom these pages,
the Ovambo tribes have in some cases in a soniewhat ndnpted form
retained the original or traditional systems of government: some tribes
have chiefs assistetlby councils oi leading men, others have councils of
headrnen; 1 refer to the Counter-Xemorial, III,page 116. paragraph 47.
These chiefs and governing bodies, risis also the position elsewhere
outside the police zone, also exercise judicial functions (ibid.). 1 also
refer in thisregard to II,pages 322-323, asto the Ovambos' traditional,
social and politicalorganizations. The tribes in the Okavango territory
. have a system of chiefs assisted councils of headrnen; the councils
of headnien are an innovation. At the inception of the Mandate there
were only chiefs; this is also in tlie Counter-Merriorial,III,page 119,
paragraphs 58 and 59. In the Eastern Caprivi, the traditioiial system
is stiU in operation-hereditary chiefs assisted by councils; I'refer to
the Counter-JIemorial, ibid., page 120, paragraph 66, and II, pages 314-
315.
In the Kaokoveld, where conditions for a long time werc unsettled
and where the different sections, that is, the Herero, Himba and Tjirnba, ADDRESS BY IliRMULLER I97
living thercdicinot get on too wcll with each other, a solution has been
found by instituting a joint council of headmen who are elected by
members of the tribe concerned usually on a hereditary basis-that is
in the Counter-Mernorial, III, pp. 121-125 and particularIy page 124,
paragraph 79.
Attention, Mr. President, is riext 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. Iwill appear from ivliat is
said in those pages that tribal life and institutions had been broken
doivii by+the eve~itsduring the nineteenth ancl early twentieth century,
that mernbers of the different groups were scattered al1over the southeni
sector at the ti~ne when the Mandate was assumed-1 refer in this
regard to page 125, paragraph 84, III, of the Counter-Mernorial. It will
also appear, Mr. President, from these pages, thnt altliough the t7arious
groups do not todny have their traditional systems of government, some
elements of such traditional systems, largely in the forms of councils
of headmen, have been introtluced into the systems of administration
appiied in the different Reserves. The general linc of developrncnt in
this regard is set out at pages 125-rz8, III, of the Counter-Alernorial
whiIst at pages rzS-130 there is contained particulars relevant to the
Herero, the Kama and the Dama.
The sixth and the last factor to which 1 wish to rcfer, hlr. President,
is that the poyulntion groups each have and are conscious of their
separate identity and that thi:y wisli to be treatcd as separate groups.
1 have already quoted certain passages from which it will appear that
at the time of tlie assumptioii of the hIandate each of the population
groups had a separate identity, and that is still the position today;
1 rcfer in this regard to what 1 stated under tlie first of the factors that
1 dealt with earlicr.
Reference m:Ly also be made to certain other passages which show
that the various groups wish ta bc treated separately and this applies
not only as between the White groups, on the orle hand, and the non-
IVhite groups, oii the other hand, but also as between the latter, the
non-White groups themselves, and that is so everl in those areas where
they do not occupy areas of their own, for esample, in the urban areas
in the police sector.
Speaking of this position in 1920, it is said in the Counter-hleniorial,
II, page 408, paragaph 15, thnt:
"The absorption of tlie non-White population in the money
economy of the IVhite group did not lead to the creation of an
integrated society, even among the Kative groups. Each group
still regardecl itseas different from the other."
And speaking of the position of the Natives in the Police Zone in 1920,
we stated in thc Counter-Meniorial, II, page 409, paragraph 21 (e):
". . . wide differences between the various groups were still founcl, and
each group retairied its own identity" and it is stated in various places
in the Colinter-Alernorial that there has at no time in the history of
the Territory been social integration between the White and tlie noii-
iVhite groups. So for exarnple, Iilr. President, it is saicl that:
"In the history of the Territory there ha at al1times been social
separation between these groups, and experiencc has shorvn tliat
members of each group prcfer to associate with rnembers of their198 SOUTH WEST AFHICA
own group, and that certain kinds of contact betiveen mernbers of
these groups tend to create friction.(III, p. 5j.)
Bir. President, the following passages relate to rnernbers of the Native
groups living in the urban residential areas. 1 cite from the Counter-
Mernorial, III,page 180, parngraph 46:
"The various groups prefer to have their own separate çchools.
clubs,churches, sportsgroundsand other amenities and interrnarriage
between the different ethnic groups iça very rare occurrence."
And in the Counter-Nemorial, ibid .age 296, we have the following:
"In South West Africa Kespondent makes, as far as is practicable,
separate provision for each of the different Native groups, since the
majority ofNatives prefer to liveinethnically grouped comrnunities."
Mr. President, niay 1 conclude then by indicatini the staternent 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, çupportecl by evidence, that thearious population groups har-
bour strong feelings against other groups and would prefer to have
their own homelands and comrnunities in which they will have and
retain residential rights, political çay and their own language, to
the exclusion of al1other g-roups."
&Ir. President, the factors 1-have rnentioned are the more important
factors. Other factors, for example, that different groups wish to have
different schools wille dealt with later whcn we corne to the particular
subjects to be dealt with.
[Public heuring O/I November19651
Mr. President, on Friday 1 dealt with certain factors which in Our
submission are very materia1 tothe issues before the Court, factors which
are set out in our pleadings with particularity, anwhich, as facts, have
not been disputed by the Applicants.
The last factor with which 1 deait was that the different groups in
South \17estAfrica eachhave. and are conscious of, their separate identity,
and that they wish to be treated as separate groups. 1 ended up on
Friday by referring in this regard to a passage in the report of the
Odendaal Commission. hlay 1 be perrnitted to add another reference,
and that is to Respondent's Kejoinder, V, pages 285 to 291, where we
deal with consultations with the different population groups heldby the
Odendaal Commission before it brought out its report and consultations
held subsequent to the publication of the report. The reçults of these
consultations, in oiir submission, clearly dernonstrate the wishes of the
groups to be treated as separate groups.
Iproceed next, Mr. President. to deal with the testimony of witnesses
who expressed opinions in general relative to the application in South
West Africa of a norm andlor standards of a content suggested by the
Applicants. The first witness is Professor Manning. Now, for the purpose
of his opinion, he assumed the correctness of the description of the
Territory's population groups as contained in Respondent's Counter-
hlemorial and in the report of the Odendaal Commission. On the basis
of these descriptians Professor Manning said-and 1 quote from the
verbatim record, XI, at page 615- ADDRESS BY MR. MULLER =99
"The Territory would appear to me to be a veritable continent
in miniature, inhabitcd by a diversity of peoples not in general
~t able to stand by themselvcs in the world. Even so, they are,
1 would gnther, fully conscious each of its own distinctness from
the others. Individuals in general do very wcll know of what
group they are a part. 1donot asurne that the group consciousness
of these several communities is as yet in the nature of a national
consciousness. In some cases it may well be. For instance, with the
Ovainbo. But that is not a necessary part of my theme. Rly concern
is simply with the diversity of thcse ethnic groups and the iinmis-
takably separate identity of each."
JIr. President, in espressing his opinion on what the effects of the
application of the Applicants' norm in South N'est 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.various 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 616.
As to the first point, that is the prcsenb,Professor Nanning stated
that the application of the norm would involve a non-recognition of
relevant differences. It might be, he said, adrninistratively convenient
to treat al1 the groups alike, once one had decitled whase needs and
aspirations u7ereto be taken as typical of the needs and aspirations of
all,but that such an approach would not prove conducive to the speedy
development alid greater well-being and progress of al]. He expressed
the view that one should look at tiie needs of each group separately,
and, so far as possible, deal appropriately with each one's important
needs.
"Only so [he said], will onebeable 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 itç own traditional institutionsto move
fonvard towards a genuineself-determination in a world and a South
West Africa made safe for diversity."
1 refer in this regard toXI, ai page 617.
As to the second point, that is the future, Professor Nanning stated
that, in his view, it was "necessary to the dignity of every ethnic 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 espressed the view that a
rule of non-differentiation would be radically incompatible with the
essential idea of self-determjnation. The application of such a rule,he
said, would mean a lumping togethcr of the several cornmunities and,
at best, the creation of :Isynthetic unit. This, he said, would preclude
the several groups from the right of self-determination and the oppor-
tunity for self-rule. Tt would mean, furthermore. that a group could
find itself joincd with other groups before it had achieved the needed
understanding of itself and before it was mature enough to be fully a
party to what was being dont:. The evidence in this regard is in the
verbatirn record, XI, pages 618 to 619.
Professor Manning also espressed the view that even if self-deterrnina-200 SOUTH WEST AFRICA
tion was no1 precluded in the sense that 1 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 ~vhich
it was capable. Failure to npply different rneasurcs for the specdier
advancement of the several groups would tlierefore, Professor Manning
said, be like the case of an entire convoy having to move ivith the
slowest ship. The evidence in this regard is in XI, at page 619.
Now, Mr. President, although Professor Manning was cross-examined,
he was not cross-esamined on the opinion he e'rpressed to which 1 have
just referred.
May l then proceed to deal with the evidence of Professor van den
Haag, As in the case of Professor Manning, Professor van den Haag
was asked to espri:ss an opinion relative to the circumstances in South
West Africa. h'ow he has 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 Coiinter-?dernorial, which contnins a detailed
description of the different population groups in the Territory. 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 qtiestion waç
put, an objection was made by the Applicnnts, but the objection having
been heard the question was allowed to be put and was repcated. That
is in the verbatim record, X, at age 161.
Professor van den Haag's rep Iy mas as follows:
"1 am aware, as any sociologist is. that there are in this wortd
different hurnan groups fitdifferent levels of development, if we
take development not to be a rnatter of developing by regular
stages-which is a theory 1 do not hold-but it is certainly true
that some peoples have primitive, and others more cornples cultures,
that some are pre-literate and others are literate, that some are
more highly developed and others less highly developed in particular
respects ... so there are major diffcrences along thosc lines and
though 1 cannot vouch for the correctness of the description of
thesc differences in South [West] Africa 1 should think that, in
general, one would espect that different tribes, different people,
different groups, are developing in different ways."
1 have just quoted frorn the verbatim record, X, at page 162.
This matter was then taken fu~ther in his evidence, with particulnr
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 conc~usions
stated by Professor van den Haag generally-that is without specific
reference to Soutli \\.TestAfrica-tend very strongly against the applica-
tion of Applicants' norrn and/or standards in South West Africa, that is,
at least for a considerable time in the future. 1have in mind, in this
regard, particularly his emphasis on the importance of different cultures
and different levels of development, and ofthe tensions which arise when
one group feels ilself threatened by another. The references in this
regard, Mr. Presidt:nt, were givenin Friday's record, at page 190, supra.
Now, the facts c:oncerning South West Africa, as set out in the Re-
spondent's pleadings, to which I referredon Friday-that is in the ver-
batim record at pages 193 to 198, supra-are not only admitted by the ADDRESS RY MR. MULLER 201
Applicants, but their existence and the importance of their existence
have been testified to by a nimber of witnesses who were asked to ex-
press an opinion relative to the application in South West Africa of a
norrn of a content suggested by the Applicants.
The first witness with whom 1wish to deal in this regard iDr. Eiselen.
He is a renoivned anthropologjst ivho has made a special study of African
life and languages, linguistics and social nnthropology, as well as physical
anthropology, and he testifieclwith regard to population groups in South
West Africa. He is a person with a missionnry backgroiirid wlio, in his
own words, "grew up amongst the Rantu peoples" and-
"syent really the whole ofmy lifein the service of the Bantu people
of ihe Republic of South =ifrica, andI Iiave endeavoured to obtain
an intimate knowledge of the circumstances of the people there,
and my life's work has been devoted to helping . . . the Rantu people
of South Africa, in their efforts to attaanhigher standard of civi-
lization".
The Court will find that cluotation in the vcrbntim recorX, at page 89.
In testifying with regard to the population groups in South West
Africa, he described the position inthe Territory as follows:
"Air. President, the term 'multj-community' applies to an even
greater extent to the Territory of South West Africa. [He was com-
paring the position hi the 'rerritory 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 Bantii-the yarious population
groups of the Rantu-the Coloured people, the Indians and the
White people, but in the Territory of South West 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 \Irhite people relatcd to those of the Republic,
Bantu in South West Africa who are not of the same type. Tliey do
not belong to the snme type. There also exists a great difference
between the Ovambo and the Hercro in their social structure and in
mriny other respects." (X, p.108.)
Hc then uTenton to describe to what cxtent the various groups in the
Territory differ relative to their customs, traditions, ways of lifi:and
languages. The Court will find that in the verbatim record, X, at pages
10s to109.
He described what the position was when South Africa assumed the
Mandate, what parts of the 'rerritory were occupied by the different
groiips, and how a policy of separate devclopment has, throughout the
existence of the Mandate and iip to the present, been applied in the Ter-
ritory.In this regard ttiereference is tX, at pages ~ogto III.
Now, in the latter regard, he denied that the policy of separate tlevel-
O ment is based on any concept of superiority and inferiority of any of
t e popiilation groups or that the object of the policy iç to discriminate
against the Bantu people. 1 refer in this regard to the sarne verbatim,
pages XII-112.
When asked to state his opinion relative to the application in South
IVest Africa of a rule or norrn or standard which would prohibit the
allotnlent of rights or dutieson the basis of membership in a race, or
tribal orethnic group, he stati:d thathe had difficulty in understanding
how tlie idea of non-separntion could he applied to South West Africa.202 SOUTH WEST AFRICA
He stated that the term could have in the contest three possible mean-
ings.
With regard to the first rneaning,he said:
". ..that you rnust not take to pieces a natural whole, because that
would obviourly be a separation; but as no such natural whole has
ever existed in South West Africa, as Ovambo and the Herero. the
Dama, the Uushmen and al1the others have never formed a natural
whole, this catinot surely refer toaking to pieces a natural whole".
(X, p.112.)
With regard to thesecond 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 have been
separated by historical events, who did form a unit at one time or
other. In this respect 1 can think of, Say, the Ovarnbo, of whom a
portion live in Portuguese Angola and another portion-perhaps
the major poi-tion-in South West Africa; these people were at
one time a unit, and they have been taken apart by action of the
so-called colonial powers, but it is not somethinin which the South
African Government could take action unilaterall , aIthough every-
body would of course be pleased to see that, if tKese people so de-
sired, they could once again form a whole." (Ibid.)
And, theri, regarding the third possible meaning, he said:
"But then there is apparently this third possible meaning: that
you must not allow u~iits who in the opinion of people of greater
wisdom should form a unit to remain apart, although they had
never formed n unit before-that apparently is the rneaning of this
alleged norm in regard to South West Africa: that the population
groups should noy become a unit, apparently because they had been
included in one area by the people who carved up Africa in the time
of colonial expansion; that the Herero, the Ovambo and others had
been included in the sarne area and were therefore, by virtue ofthat
action of the colonial powers, now expectcd to become a unit; that
they would not have the same right as people who had iiot been so
included to have an independent future oftheir own. That the said]
. . issomething that seems to be entirely against the feelings not
only of the Government, but sornething that would definitely not
be welcomed by the people." (Ibid., p.113.)
He expressed the view that the policy of separate developmeiit 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 5, at pages 113-114.
Asked what the effects would be ofapplying 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 artificinl new unit-be obliged to accept the precept
and esample of the most nurnerous group. For instance, ifevery-
body were given political rights-the vote-in the same \vay in rlDDHESS BY MR. MULLER 203
South West Africa, then the Ovambo people would, by beiiig the
vast majority in that area, obviously be the people called upon to
form the Government, and 1 take it that their language would
become the officia1language unless they would choose to make En-
glish or Afrikaans the offii:iallanguage, which does not seem to be
very likely. l'o 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 strongas 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 ..,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 government the power of dealing with substantial achievernents
in the econornic sphere, in theining sphere, in the fishing industry,
in the diarnond industry, in the wool industry, the meat industry,
and so forth, would be asking for trouble." (2bid.J
The Court wiil recall, Mr. President, that Dr. Eiselen was not cross-
exarnined at al]. 1 merely statethat now as a fact. Thesignificance and
effect of it wilbe considered later in Our argument.
May 1, then, proceed to deal with the evidence of Professor Bruwer.
He is a renowned social anthropologist, who can also be said, as student,
missionary, educntionist and adrninistrator, to have devoted his life
to a study of and the upliftmeilt of the Bantu people, not only in South
Africa itself, but also in Rhodesia and in South West Africa. I refer in
this regard to the verbatim,X, at pages 239-24 2,here he gave the Court
a detailed descriptionof circurnçtances in South West Africa and, partic-
ularly, of the different groups in the Terntory.
Mr. President, Professor Bruwer is, in our submission, eminently
qualified to speak on these subjects.Not only has he live. amongst the
indigenous peoples of South West Africa and studied their ways of life,
but he was also a mernber of the Odendaal Commission, the report of
which is before 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 isin the verbatim, X, at pages 241-242.
His description of the population of South West Africa was briefly
as follo~vs:
". .. looking at the population from an anthropological point of
view, 1 woulcl in fact Say that it is extremely heterogeneou?, com-
prising as it does a number of separate and also distinguishable
groups or communities of people". (X, p. 243.)
We described in detail the differences between the various population
groups.
3lr. President, it will be a lengthy process even to summarize his cvi-
dence. 1 shall not do so but simply state the topics covered by his evi-204 SOUTH WEST AFRICA
dence and indicate where such topics can be found in the record, the
topics being tlie folloiring:
the different nameis 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 ethnic background and derivation of the groups-ibid., pages 246-25 ;1
the cultural configuration, social structures and institutions and the
customary laws of the different groups-ibid., pages 251-256;
the economic systams, political systems and judicial systems of the
groups-ibid., pagr:s 251-256.
Asked what conclusions he dreiv from his study of the different groups
Proiessor Bruwer stated, and 1 quote from the verbatiin record, X,
pages 253-25 :9
"RIr. President. if I take into account the pattern that 1 have
tried to indicate to the honourable Court, if 1 take into account
the qualities inherent in the different systems and ifI take into
account the functional value, the varying systerns of value inherent
in these varioiis spstems, then 1 can only Say, Mr. President, that
there isno doubt in my mind that we have to do with a variety . . .
on the basis of language, we have to dowith a variety in regard to
social structureand institutions, w*ehave 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 alço explainecl the extent to which the various groups occupied
different parts of the Territory, in the verbatim record, X, apages 259-
261.
When asked whether there is an inclination amongst the people of
South \irest Plfrica towards forming an integrated tirhole, he statcd:
"Xr. Presidi:nt, I cannot say that because I have never come
acrosç anything that convinced me of such a desire, either in the
past or in the present . . . neither the Commission [that is the Odcn-
daal Commission] nor 1 myself in the capacity as research worker,
have ever beeri impressed by facts or. by possibilities in regard to
such an inclination, because 1simply have not come across them.
1 admit that there are individuals and that there also are certain
political organizations that have expressed such a desire, but it
jsmy earncst deduction and my conviction that they do not repre-
sent the wishes of the majority in any one of theçe groups, neither
the wishes of the majority within the population as such."
This quotation is iti the verbatim record, X, at pages 261-262.
He esplained to the Court ïvhat he considered the basic advantages
of the policy of separate development as applied in South \T'est Africa,
in X, pages 262-264, and, when asked tostate his opinion as to tvhat the
effect would be if the present mensures of differentiation in the Territory,
that is, measures based on mcrnbership in a group, were to be doiie away
with, his reply wns:
". . . p&diction is naturally baçed on opinion. 1have quoted certain,
what to rny opinion are, advantages of a certain approach, having
in mind the situation as 1know it and as 1 interpret it. Kow, >Ir.
President, natiirally if you do away with this system at a specific ADDRESS RY MR. MULLER 205
moment, or let us Say mtimentarily, you discard an approach that
has been going on not only during the pcriod of the Mandate, but
long before that. If you discard that, Mr. President, then naturally
al1 the advantages that 1 have explained as being rny opinion, will
diçappear. In practice al1the essential rneasures of protection will
fall away. There would be no protection of land rightç, there could
be no protection of language rights, 1 am afraid; now what can be
then the predictable consequences of something like that?" (X,
P. 265.1
Having posed that question relative to the predictable consequcnces,
Professor Uruwer discussed these consequences and he said:
". . . if ive had to take as an esa~nple what happened and did liappen
in the previous century, then one \vould irnrncdiately say that there
would be a violation of rightç, or asçurned rights, and such violation
would undoubtedly lead to friction. and perhaps even more than
friction, perhaps even striiggle; but there is also this other predict-
able consequence, Mr. Prcsident, and that is that one will destroy
that which 1 have pleaded for as being the achievement by people
tfiemselves, and 1 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, Mr. President; but as far as South IVest Africa is
concerned, 1also thiiik that the one group,either on tlie basis of num-
bersor on the basis of economic streiigth, wi11undoubtedly doiiiinate
the other group if you have not got protective measures; and 1
also think, >,IrPresidcnt, that one can Say that ifyou have riow to
start a noveI or a new syste~n, an alicii system, you will very defi-
nitely retard the process of evolutionary developrnent that hos been
going on for the last 40 years approsirnately after the assurnption
of the ?ilandate." (Ibid.)
ln cross-examination mlr learned frierid, >Ir. Gros, questioned Pro-
fessor Eruwer on various matters of detail concerning the implcrnenta-
tion of policy in South West Africa. lt is submitted, howevcr, that
nothing in the cross-esaminat.ion detracts from the opinion expressed
by Professor Bruwer.
The next witness, wliose evidence I intend to deal with shortly, is
Professor Logan. The evidence of Professor Logan is generally to the
same effect as the eviderice of the two other witnesses 1have mentioned,
that is,Dr. Eiselen and Professor Rruwer. At a later stage ofthe argu-
ment ive shall deal in more detail with his evidence relative to the cço-
nomic aspect. At the prescnt time I intend to refer only to certain fea-
tures of a more general nature.
l'rofessor 1-ognnesplaincd tl-iathis particulnr study,that is, gcography,
is concerned not only with the crust of the earth as such, but also with
man and actually involvcs a study of the relntionship between man and
the land. 1 shallindicate wlicre thatis to be found: itis in tlie vcrbatim,
X, page 337. AS such, his study impinges on the field of sociology, as to
which he said: ". .. as geographers WC have to knoiv about men, and
knowiiig about men \rrehave to know about sociology and societies ...".
This quotation is in X, at page 344.
This assertion by Professor Logan is rimply borne out by the extent
of sociulugical studics actually pursucd bp 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 certainarid regions, and that he also had made
a study inSouth West Africa, where he spent a considerable time. Pages
338 to 339, XI contain the evidence that 1 have just indicated.
Professor Logan described the general conditions in South West Africa,
deaiing 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 econornic rnatters, as 1 have indicated, will be
dealt with later, but what is of general importance at this stage of the
argument ishis description of the people in the Territor).. When asked:
"Would ?ou say that the population of the Territory is a homogeneous
one?" he replied: "1 do not believe thereisariywhere i11the 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 diferences among thern in the cultural, etlinic, techno-
logical and economic spheres. This is in the verbatim, X, pages 368-370.
He also esplained and illustrated the relationships among the various
groups, evidence which he summed up as follows:
". . . they distinctly identifythemselves as separate groups. They
not orily identify tliemselves as çeparate groups but they want
to be treated separately in most cases. The? do not mix together
to nny great extent." (X, p. 37r.)
For his discussion and illustration of this aspectZ refer toibid.,at pages
371-373.
When asked about the desirabilitv of measures diffeerentiating amongst
the various groups, Professor L.ogah expressed the view that &ch mëa-
sures were necessary, for reasons which he gave in his testimony. Some
of these reasons were of a purely economic nature and, as 1have indicat-
ed, those will be dealt with later, but at this stage it is necessary to point
out that the econoinic measures regarded by Professor Logan as neces-
sary related spccifically to such matters as allotment of rights, duties
and burdens on the basis of membership of a groüp rather thaii on the
basis of individual rnerit or individual qualities. Forxample, he referred
to the measures dealing with the protection of land rights and economic
opportunities which necessarily entai1 privileges and disabilities for the
various Native groups as well as disabilities for the Europeans.
Apart from referring to economic matters, Proiessor 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, ancl.he concluded this part of his testimony by stating,
and 1 qüote from the same record, at pages 374-375 :
"Finally, I think that the really,perhaps most important, of all
of these, 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 seif-respect, tliere 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 h.IIZ.MULLER 207
way of life frorn the practicnl point of view, from the very material-
istic point of view, to give them better food, to give them health
services, to educate tfiem, 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. 1 empha-
size, perhaps most importantlu, 'forced upon thern', that is, to
let the idea corne gradually but not to impose a new \rlay of life
instantly upon tiiem. So, in eacli case then, it is a matter of allowing
to develop the individual group within itself, rather that to force
a different type of culture upon al1 of the individual groups."
After he had discussed these various reasons for differentiating between
the groups. Professor Logan was asked:
"IVhat, in yoiir 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:
"Well, I think probably what 1 have said during the past few
minutes has . . . lecup to this: that to remove the controls would
result iii the domination of many by a few, would perhaps result
in the subjugation or almost the obliteration of some of the esisting
tribal groups, it would result,1 think in rnany cases, ina reversion
to an old way of life and that wasa way of violent antagonism and
frequently of wnrfare.
The economy, as it ha5 been developed, both on the European
basis and on the Xative basis, would, to a large extent, fa11apart.
In other words, what 1 ~vouldvisualize rnyself, if al1 controls were
ta be abolished in the area and al1 differentiation between groups
ignored, 1 am afraid a rather chaotic situation would develop."
(1bid.J
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, 1 think it will suffice
to Say that this cross-esamination did not directlj? challenge the opinion
expressed by Professor Logan, and, 1 submit, did not in any way detract
therefrom.
May 1 then proceed to deal with the evidence of the Reverend Nr.
Gericke?
Mr. Presiderit, he is n mernber of the Dutch Reformed Church of
South Africa, ancl has been a minister of that Chiirch for 27 years.
I referin this regard to XI, page 4.
He is the Vice-Chairman of the Synod of his Churcli and has for the
past 20 years bcen a member of the General 3Iissions Commission of
the Church.
At the outset of his testimony, hlr.Gericke's attention was directed
to the diversity of the population groups in South West Africa, and the
followlng was put to him by Counçel for the Respondent, Dr. Rabie:
"The Applicants say that they are particularly concerned witli
what they cal1 the qualitative aspects of the well-being of the
inhabitants of South West Africa, that is, with their moral well-
being and social progress. in this regard the Applicants rely on a
suggested norrn and suggested standards which appear to emanate208 SOUTH WEST AFKIC:\
from a certain prernise, and this premise 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 well-being and the social progress of some
of the inhabitants. In particular, the notion seerns to be that the
provision of separate institutions and facilitiesforthe diffcrent . ..
groups must inevitably be detrimental to such moral well-being and
social progress." (XI, p.j.)
JIr. President,in this regard the Court's attention is drawn to state-
ments made by the Applicants on 17 >Tay,and 1 refer to the verbatim
record, X, at pages 232-233.
Mr. Gericke was then asked whether his church had gained esperience
in Soutiiern Africa with regard to provisions of separate institutions and
facilitiesfor difierent groups, and, in connection thcrewith, moral and
social well-being.
His ans\tler was this, hlr. Prcsident :
"The church is not concerned only rvith what 1 may cal1 the
care of the soul. The church is also deeply concerned with the moral
well-being and social progress of people and fias gained extensive
esperience which, as 1 see it, is relevant to this matter which has
been referred to." (XI, p. 5.)
He then went on to erplain the various spheres of life to which the
activities of the church estend, such as mission work in a number of
southern African States-he referred to Bechuanaland, Malawi, Rhodesia,
Zamhia and Nigeria-al1 of which countries the Keverend $Ir. Gericke
has visited, with the exception of Nigeria. In this regard, 1 draw the
Court's attention to the evidence 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 fieldof education.
The reference here is to the same 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, ithe sense that they were attended by White people and also
by slaves of that time, as well as a few Aborigincs.
However, by the 19th century, according to him, itbecame clear that
the results were veiy 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 opportiiiiity
for full religious experience. They were a niere appendix to the
White congregation. They were seated in a separate prt of the
church and received very little benefit from a service which was
attuned to the needs and the background of the imite people."
(Zbid.,p. 7.)
This, he said, ledto the establishment of a separate, independent and
self-governing church for the Coloured people in the Capc Provi~ice of
South Africa.
The main considi:ration for such a step, in the words of Mr. Gericke,
was as follows:
". . .as appears from history, it became quite clear that the differznce
in culture, language, level of intellectual development and racial ADDRESS BY hlR. hlULLER 209
backgrourid, demanded a different method of approach, ei7en an
adapted fonn of preaching; also, new hymns to serve as a Ineans
of expression of religious esperience.
In addition, there was no real communion, spiritual communion,
between the White and non-White members of the congregat'ions,
chieffv due to the absence of social intercourse in ordinary life.
Fricthn occiirred 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 positiori 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.,.)
Later, Air. Gericke said, sepnrate churches were also established for
the Bantu groups, so that today there are, in addition to the mother
church, 12 scparate. or daughter, churches wliich are completcly in-
dependent. The ovidence in tliat regard is to be found in the vertratim
record, XI, page 8.
Noïv,the advantages of this systcm of separate churches were described
by 3lr. Gerickeaç fo1ioïr.s:
"First of ail, this systern provides full opportunity for self-
developrneni for the members of the daughter churches. Al1offices
are open to thcm. A new stimulus is provided for developmi:nt of
their own leaders and the nianagement of their own affairs. This
has brought about a more positive attitude and a new seiise of
enterprise and responsibility on the part of the members of the
daughter churches. Furtlierinore, thiç system has stimulated co-
operatioii and remorred possible occasjons of friction.
The separated churches realize and appreciate the fact that they
are not merely an appe~idis of the White Church but chiirchcç
equal in strrt.us.This has really engendered a spirit of CO-operation.
of mutual respect and of neighbourliness. Ttiey can now mect. their
White brothers in the church .as equals. Tfie preserit relationship
betnreen the mother and the daughter churches is one of mutual
respect and readiness to CO-operate." (Ibid.,p.9.)
He çtated, hlr. President, that the daughter churches-had become
less and lesç independent on the mother church, even financially, and
lie said :
"Al1 these factors must have contributed to giving the rncmbers
a neiv sense of self-respect ancl 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
itsowii. \ilhere you have independent self-governing churches and
communities. the requirenlent that one rnust love one's neighbour as
oneself becomcs easier of fulfilment than rnight othenvise be the
case." (Ibid., pp. 9-10.)
When asked to express an opinion on what the resuits u70ultIbe if
there ïvere to be no separation in the church, Mr. Gericke replied:
,'
... it would cause a disruption of the orderly situation which
no\v esists in the nutch Refarrned Churches, and orderlincss is of
suprerne importance to the Church. You cannot preach the Gospel in
a diçordered society where tlicre is tension and friction. It would
also lead to ... unfair cornpetition in thc church organizatjon210 SOUTH WEST AFRICA
which would cxdude many non-\hite members from leadership
and consequently cause friction, frustration and even bitteriiess.
In short, itwould nullify the advantages which resulted froni this
particular system in Our Church." (Zbid.,p. IO.)
He said in this respect also the following, and the quotation that.
1 give the Court noïv, which wiil be the last one out of the evidence of
the Revererid Alr. Gericke, is in the verbatim record,XI, at page 12:
"Once it is appreciated and accepted, as we firrnly believe, that
a policy of integration will lead to-and 1 am speaking figuratively
now-either siiicide or homicide of certain groups and to a fatal
set-back in th<:advailcement 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. 1 think that it is largely
because of a different understandingof the situation that churchmen
have been led to espresç divergent views on this particular policy
and not because of a difference of opinion on moral concepts and
Christiaii ethicç."
The policy of separate developrnent as practised by the Dutch Keforined
Church in South Africa is, according to the Reverend Mr. Gericke, also
practised by that church in the territory of South \l'est Africa although,
as he explained to the Court, Nr. President, the church has onIl. recently
extended its mission work to South West Africa where other denoniina-
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 indicated 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, atpages 10-11.
Jlr. President, although the Reverend Mr. Gericke was cross-esaniiried
at length, and particularly with regard to opposite views held and
eupressed by certain other church bodies and ministers of religion, lie
was, in Oursubrnission, not at al1shakeii in the opinion which he expressed
to the Court, or the reasons upon which he based his opinion.
May 1 then deaI with the last witness in the group of general witnesses,
which form part of the argument at liresent, and that is the evidence
of Mr. CillieThe Court will recall that, according to Mr. Cillie'sevideiice,
he has for many years had experience as a political jounalist ancl as
the editor of one of the leading newspapers in South Africa itself.1refer
in this regard tothe verbatim, X, at pages 506-507. He described political
developments inthe history of South Africa and dealt in particular with
the policy of separate development,as it isapplied in South Africa and in
South West Africa, and also with the basic reasons for such a poiicy
and the object sought to be achieved thereby. The reference whicti 1
wish to give in this regard is to the verbatim, X, at pages jog-515.
When askcd to express his view with regard to the application in South
Africa and South \\'est Airica of the norm andlor standards by a process
of what he himself termed "pressures frorn 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
ofuniversal adult suffrage."
The quotation is taken frorn the verbatim, X, at page 525. ADDRESS BY MR. MULLER 211
AIr. President, he then went on to esplain that the imposition of such
a systern on South Africa would, in his words, "be a mortal threat to
the whole of Southern Africa" and he said, "innunierable tensions wauld
be created . .. perha s even f:o the extent of revoIt and group wars".
I refer in this regarfto the verbatirn, X. at page 527. For his vieius
regarding the application of such a systern in South West Africa, may
1 refer, 3Ir. President, to the answers givenbjthim in crosçesarnination
in the record, X, atpages 546-j47.
hlr. President, although Rfr. Cillie, in his evidence, concentratecl on
the political aspect, his evidence is, in our çubmission, of general im-
portance in the sense that the political aspect has an over-ridiiig im-
portance, and effect with regard to the promotion of mell-being and
progress in ail spheres in SoutlAfrica and in South West Africa.
This brings us now to the part of our argument which will deal \\<th
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 firof these topics, tliat is,
the question of the political aspect in South West Africa. 30- ADDKESS i3Y MK. DE VILLIERS
COUNSEL FORTHE COVEHXhIEST OF SOUTH AFRlCh AT THE PUBLIC HEARIXGS
OF 1-3 NOVEMDER 1965
hlr. Prcsident, honourable &lembers, before 1 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 1 might cal1 a transitional nature between the
two which I should like to deal with first.
My learncd frietid, Mr. i\luller, promiscd the Court earlier that wewould
deal with certain authorities on the question of the Iegal effect and the
practical effect of adniissions and with certain related considerations.
1 propose to do so now, >Ir. Yrcsident, at this particular stage, ivith
brief reference to authority. 1 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 effectof admissions made by a party is dealt with very
lucidly by Wigmorts in his major work on Evidcnce, the third edition,
in Volume IX. That is the edition in the Court library. 1 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 ofsorne alleged fact, has the effect of a confessory pleading
in that the fact is thereafter 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. jomitting some ~vords] Tt is, in truth, a
substitute for evidence, in that it does away with the need for
evidence."
That isthe end of the quotation frorn the test at that page, but in the
footnotes to this portion of the test, at the same page 586, Ive read,
amongst others, the following: a reference to the law of England and
to a work called GlEberotn Evidence and a quotation from that as follows:
"The consent of the parties concerned niust be sufficicnt and
concluding evidcnce of the truth of such fact, for they, [the jury]
are onljrto try the truth of such facts wheiein the parties differ."
That is the end of that quotation; and then further in the footnote a
reference to tlie law of Louisiana, in respect of which it is said that in
Louisiana the Contirientnl law has left its mark, Thcre is a refcrence then
either to a decisioii or to a publication, 1 am not quite sure which,
from which there iç given the following-q-otation:
"Judicial confcssion 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. It cannot he divided
against him. It cannot be revoked . .." ADDRESÇ BY MR. DE VILLIERS z13
That is the end of the quotation, but the authors add, "unless made
through the error of fact, but riot for error in law."
Then in Wigmore's text, at the nest page, 587,we find the following:
"The vital feature of a judicial admission is universally concedcd
tobe its concltisivenessupoii theparty rnaking 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 1 may say, hlr. President, that
Phipson on Evidence in his nirith edition, at pages 18-19, is broaclly to
the same effect as I have read to the Court, thus far, about the gt:neral
principles.
Then the next question is (ive 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 1i.efind that Wigmore quotes quite estensively
from an Americaii decision Larson Jr. ComPany v. Wrigley Jr. Com,bany;
- it was a dispute about alleged unfair trade in the chcwing gum line.
We find in tliis decision, in the extracts cited in Wigmore-passages
reproduced thercvery clear descriptions of considerations of logic and
of fairness which according to one's esperience are applied very gerierally
in practice in this regard. 1 read some of those passages as reproduced
in Wigmore, the first being at page gS8 in the text:
"Undoubti:dly a litigant hâs no cause for cornplaint if the Court
accepts hissolcmn and sworn admissions in pleadings and testirnony
as true. I3utwe must reject the contention that his adversary has
the right to compd the Court to do su. Otherwise a Court rvouid
be forced by parties to decide moot, fcigned, and collusive cases,
or a Chancellor might be made to proceed with an equitable account-
ing betwecn partners who had stolen the property they brought
into court. But the preçerit case on the counterclaiin is not moot,
nor feigned, nor collusive, and it presents, a question of Larson's
legitimate property rights."
Then at that pagt:,and running over ont0 the next page, we find passages
in which thc court discusscd certain features of fact in that particular
case which could be said to throw sorne doubt upon the correctness of
certain admissions which had been made in court by Wrigley. The
admissions concerned particü1:irly the question of the likelihood of con-
fusion betwecn the two articles wrapped up in accordance with the
partjcular triide-rnark, or wliatever it was that was in dispute, and the
court referred to those consiiierations, as 1 Say, which rnight throw
some doubt oii the question whether those admissioiis were correct in
fact. But the court then procccded:
"Rut Larson's counsel inay have relied on the stipulation of fact
in bill and counterclaim to çave hunting up and bringing in witnesses
of wrongfui sales. Furthermore, Wrigley and anotlter interested with
him gave tcstimony as esperts in the gum business that confiisioii
was likely to result from the sirnilarities; and so there 1s a basis
for at Icast the possitiility that IVrigley's averment of fact aiid his
expert opinion may be true, and that Larson's clirninished sales
came from Wrigley's simulation of the '\frintermint' package.
In such a situation, tht: rule, in Our judgment, is this: In a real
and legitimate controversy, a party should be left within the knotZx4 SOUTH WEST AFRICA
of his averments in pleadings and admissions in testimony, unless
the Court can find an absolute demonstration from other evidence
in the case, or from facts within judicial notice, like the laws of
physics, etc., that underno circurnstances could the averments and
admissions be true. "
That, then, gives a very apt sumrnary, in our subrnission, of the very
highly exceptional circumtances under which a court would consider
itself free to depart from admissions made in a particular case.
The principles to which 1have referred 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. 1 can give the Court an esample of a Continental system-the
case of the German Code of Civil Procedure, paragraph 289. 1 read Our
own translation:
"A fact alleged by a party need not be proved by him if in the
course of the proccedings such fact is admitted by the other party
..." (Baumbach-Lauterbach, %ivil~rozesso~dnzmg ,znd edition,
P 519.1
And then we findcomment on the effect of such an admission by Rosen-
burg, Lehrbuch des detstschenZivilprozessrechts,8tedition, page 550, and
1 read again our translation:
"The effect of an admission isthat the admitted fact need not
be proved, and that the judge must accept it as true for the purpose
of his judgment, even ifhe is not satisfied that it is in fact true,
unlesshe consitlers it to be impossible-i.contrary to al1experience
-or if the contrary is beyond question."
Paragraph 275 of the Austrian Code of Civil Procedure is to al1intents
and purposes identical with the paragraph of the German Code which
1 have just read. In that respect 1 could refer to Wolff, Grundriss des
6sleweicIiischeZivilfirozessrechtspage 296.
Applying these considerations tothe present case,and to the admissions
of fact that have been made here and to which reference has several
times been made I-)ymy Iearned 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.Ifever there was a reat dispute,
it surely is this one, on the subject-mattin 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 ive could not give a documentary source
but relied upon information given to us by officiaior departments
we cited that information asbeing based upon departmental information,
and we gave the explanation in the introduction to our Counter-Mcmorial
that in such cases we had the evidence available, ifthe information
were questioned at al1 by the Court or by the opposite Party, to sub-
stantiate that information.
So it uras in respect of tlocumented and substantiated information of
that nature that,the admissions were made. The AppIicants had full
access to al1 kinds of records and sources from which they could check ADDRESS BY MR. DE VIL1,IERÇ 215
the accuracy of what we said. 'fhey had full access to officia1piiblications
from the Union of South Africa and the Territory of South West Africa,
to records of Parliamentarp debates, to press reports. There is a full
reporting of everything done, particulnrly in the political field, in South
Africa, anything said by a political Icader, anything done. lt is ülways
brought to light. As Mr. Cillie said, we are an open societp, and there is
copious record of anything that occurs which coulclhave been of interest
to the Applicants in this respect in order to check upon the inforriiation
which WC supplied. The Applicants had full access to the researches and
the attempts at fact-gathcrjng that had been going on in the United
Nations for years and years on the subject. Thep had full access to
numerous books and articles witten about South Africa and about
South West Africa by authors and by journalists from South Africa,
fromSouth West Africa and from elsewhere, as well as to visitors to the
countries, Inany of whom Iiad writtcn about the countries, and rnziny of
whom may have visited the countries without tiaving written about
them, and indeed a host of South Africans and South West Africans
who had gone abroad. in many cases perçons who were not friends of
the Government at all. Virtually al1 the basic aspects of these facts
that have been admitted havi: been confirmed by the expert witnesses
in their evidcnce, not bccausa that was the purpose of their evidence,
but because in many inst:mces in order to assist the Court by way of
the inferences which they drew from the facts-the conclusio~isat which
they arrived-it was necessary for them to refer again to those basic
facts. And although they did not deaI with them each and every one
systematically, by and large the basic aspects of them stand fully
confirmed by that expert testimony.
hlr. President,Iwas dealing with what rnay betetmed the surrounding
circumstances regarding the admissions that have been made to the
Court-the considerations which go to guarantee their probable accuracy,
or otherwise 1 was dealing with the question whether it could ever pos-
sibly be said of these admissions that they relate to facts which c~uld
not possibly be true, and 1have referred in that respect to the documen-
tary and other sources which we quoted for the facts, which were even-
tually admitted. 1 have referred to the sources available to the Applicants
for checking on our facts, and 1 have rcferred 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, Mr. President,
were not confined to South Africans, they incltided also a man like
Professor Logan, an outside, entirely independent observer, wliose vcry
vivid descriptions of the basic factsthe Court will recall.
Then, ;\Ir.President, 1 want to reter to the fact that the admissions
were very carefully made, not irrationallp. They ivere made with respect
to all the facts concerned, except in so far as there might be dcnials in
particular instances-except where otherwise indicated-so that the
opport unity was reserved to the Applicants to check upon the facts as a
whole and to see whether, in some cases, those admissions recluired
qualification. As the Court will recall, denials werevery few. They were
in effect almost non-existent.
Finally, >,Ir. President, thereis 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 collectivitj? of African216 SOUTH WEST AFRICA
States. And it willbe evidcnt £rom the reviews which we have given that
thosc adrnjttcd factsgo djrectly counter towhat had been alleged over
al1these years agaiiist South Africa and its policatsthe United Nations
by that very grouy of States and others acting in this respect as their
allies,soit could not have been an easÿ admission to make, and yet it
was made.
Al1these factors, in my submission, combine to make just about the
most cogent guarantee one could wish for the probable correctness of
the admitted facts. There is no suggestion thatthese facts could not pos-
sibly be true or that "under no circumstances could the averments and
submissions be true", if 1 may use the words of tlie authoritics.On the
contrary, itseems most highly probable that each and every one of them
is true.
1refer next to another aspecof the authorities in regard to admissions,
and that is the effect of admissions on the opposite party-theparty who
had not made the admissions. That is dealt with iri the same volume of
Wigmore, Volume IX, at page 589:
"A fact that is judicially admitted needs no evidence from the
Party benefitting by the admission.
But his eviclence, 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 reaçons
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 statesa qualification
lower down on the page as follo~vs:
"Nevertheless, a colourless admission bjr the opponent may some-
times have the effect of depriving the party of the legitimatemoral
forceofhis evidence;furthermore, a judicial admission may be cleverly
made with gruclginglimitations or evasionsorinsinuations. ..Hcnce,
there should be no absolute rule on the subject; andthe trial Court's
discretion shoiild determine whether a particular admission is so
plenary as to render the first party's evidence wholly needless under
the circurnstances."
Now, applying tliat is tiiis case, hlr. Presidcnt, we find that in some
of the Applicants' formulations of their admissions of the facts, although
not consistently in al1 of thern, they sought to draw a distinction be-
tween "the facts" and the "inferences that may be drawn tlierefrom".
One finds their distinctions stated, for instance in the verbatim record of
18 Mnrch, at VIII, pages 115-11 6.s 1said, in later forn~ulations that was
not repeated and 1do not know to what extent they intended to proceed
with that distinction. Se\w-theless, a good deal of the evidence which
we proferred to the Court didnot concern the same facts as were 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 ma!- be drawn from the admitted facts, evaluating them, seeing
them in their proper perspective and then coming to certain conclusions
about them. Tlint ia, of course, in relation to the issues as tliey are now
before the Court. InitialIy there were the wider issues of alleged oppres-
sion and so forth, but now the matter in respect of which inferences were ADDRESS BY Ml<. DE VILI.IERS z17
sought to be draivn, particularly from this evidence which was covered
by the admissions, concerns,in particular, the question of the detrimental
effect, allegedhy the Respondent from the application of the suggested
norm and standiirds in certain circumstances, in certain countries of
the world, and in particular, in South West Africn.
1shall proceed next, hlr. President, to refer to certain aspects of,and
implications regarding. cross-euamination in proceedings of the present
kind. 1 should like to begin hy referring to the following passage in
Phipson on Ewidelice,Ninth Eclition, at pages 497-498:
"As a rulc n party should put to each of hisopponent's witnesses
in turn so niucli of his own case as concerns that particular witness,
or in rvhichlie had a sharc,e.g.,if the wjtness has deposed 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 accctpt the witness's account."
Then there is a i-eference to an Irish case-a case decided in Ireland-
and one decidecl by the House of Lords-Urowne v. Dunrs. 1 mention
the name of that one because itis referred to several times again in the
passage which folloms:
"hloreover, where it isintended to suggest that the witness iç not
speaking thc truth upon a particular point his attention muçt first
be directed to the fact bjr cross-examination, so that lie maÿ have
an opportunity of esplanation ... and tliis probably applieç to al1
cases in which it is psoposed to impeach the witness's credit . ..
Failure to cross-euaminc, however, will not always amount to an
acceptance of the witness's testimony, e.g.,if the witncss 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 motivcs of delicacy, as wliere Young children are called as
witnesses for their parents in divorce cases, or when counsel indicates
that he is rnerely 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 theni all."
Those are the comments of l'liipson on this subject, air. President, and
1 may add that in the case of continental systems, to tlie cxterrt tliatme
understand them at al1 as far as their procedure is concerncd, they ap-
parently do not know the system of cross-esamination. Apparcntly the
Court itself leads the evidence of the lvitness, 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
circiimstances the whole naturc of the process tliere is a vcry different
one, and 1 should take itthat the Inilure or otherwise of the represcntative
of a party to ask cluestions in a particular case would be a matter of
cornmon sense to weigh, a rnatter from ïvhich inferences 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 there is this tendcncy, and a strong one, of common sense,
that in particular circumstani:es particular significance may by way of
inference be drawn from failure to cross-examine or from particular
lines adopted in cross-examination, and the fonn 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 sy -t ern.
Kow, hIr. President, applping that to the circumstances of this case,
there are certain features of the cross-esamination to wliich 1 should
like to draw ütteiition at this stage.The first noteworthy feature was
that Dr. Eiselen u7as not cross-exarnined at all,but after Dr. Eiselen
had given his testimony and the other mitnesses came, there \vasan ap-
parent change of policy in this respect.
The non-cross-examination of Dr. Eiselen was perfectly consistent
~viththe attitude which the Applicantç 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 subrnissions on 19 hlay, the attitude which 1
can very briefly summarize as being firstly, that the case was now con-
fined to the norm and the standards-that was the only case they were
bringing-that only the pev se aspects of the Kespondent's policies and
measures were relevant, that tlie Court was bound by the judgments of
the organized intei-national cornmunitp. and that there was to be no
"second-guessing" of the findings or judgments of that organized inter-
national cornmunity.
Consequently, Mr. President, applÿing that attitude in itslogicalim-
plications, al1evidence would of course be irrelevant, and even evidence
dernonstrating 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 logicalconsequençe of their attitude,inthe verbatim record of 30 April,
IX, at page 64, wfiere, as I quoted to the Court before, they acceded
ta an exposition inour Rejoinder. in ïvhich we had suggested that on the
basis of the alleged norm, and the standards of the same content, Re-
spondent's policies wvouIdviolate the Mandate "even if tlie Court were
to hold that such policies wrereintendcd to enure, and did in fact enure,
to the benefitof the population as a whole".
So, as 1 Say, it would follow the other way sround, that if it were to be
established to the Court's satisfaction that the application ofthe norm
ancl the standards in South West Africa would O erate to the detriment
of the population, then that would still be a legfy irrelevant considera-
tion to the case which was being advanced by the Applicants.
It seems then, Mr. President, that this was the basis upon which Dr.
Eiselen was not cross-examined. Quite obviously, it seems that it was
considcred unnecessary, and pcrhaps futile, to atternpt to contest the
strong conclusions from his evidence that the application of the norm
would detrirnentally affect the inhabitants. and to contest the basis upon
which he arrived at those conclusions. They were not canvassed at al1
in cross-esamination.
13ut, Mt-. Presiderit, as from the second witness onwarcls we find a
change in policy.Now there is lengthq-cross-examination of each witness,
and the question is, why? The probable answer, in our subrnission, is
this, Mr. President, that probably the Applicants were no longer so
happy tvith their theory of the case, particularly because of its extremc
implications. On this basis, one could understand that the Ap licants
could proceed with cross-examination on an alternative basis.?n 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 norm ADDRESS BY MR. DE VILLIEKS 219
and the standards, and permitting no evidence to esplain them or to be
relevant at al1 as to the question of their application in South West
Africa. Rut, in the alternative, if the Court were to find it relevant to
determine whethcr the norm or the standards would operate to the ad-
vantage or to the detriment of the inhabitants, andlor whether the norrn
and the standards were observed generally in the practice of States,
then the AppIicants would ascist the Court by offering a testing of our
evidence-the evidence of the Respondent on those subjects-ancl seek
to break down that evidence, or to qunlify it sufficiently for the rippli-
cants' purposes.
That is a line of procedure which one could understand but, Mr. Presi-
dent, this was not inany way, as far as we can infer, the purpose of the
subsequent cross-examina t'ion.
My learned frjend, Mr. Muller, has shown that Professor Possony was
hardly cross-examined at al1on his vital evidence about the practice of
States, and that there was ncithing in the cross-examination to throw
the least shadow of doubt upo~ithe conclusions at which he arrived. The
same applies, Mr. President. about the conclusions of Professor Possony,
Professor Nanning and Professor van den Waag 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.
We find the saine, Mr. President, in regard to the conclusions of those
three witnesses-Professor Possony, Professor Manning, Professor van
den Haag-and also of other ivjtnesses, ljke Ur. Eiselen, Professor
Bruwer, Professor Logan, the Reverend Mr. Gericke and hlr. Cillie,
about the general detriment that would result in South West Africa from
the application of the norm and the standards. Again, those concliisions
and the manrier ofarriving at them werein no wajrreally testedin cross-
examination.
Those were 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 in the Territory-thepolitical aspect, the eco-
nomic aspect, the educational aspect. and so forth-we shall see that the
same pattern emerges. We find, hlr. President, that witnesses were one
after the other asked mostly hypothetical questions about the effect of
particular measures upon particular individuals in particular circurn-
stances-for instance, the one about which we heard, 1 think, during
the cross-examination of every witness, viz., the individuai who was
born, who lives and who dies in the Police Zone outside of the Keserves.
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 concentratiiig on isolated aspects
of a policy flowing from particular individual measures in that policy,
and not asaffecting the general ~vell-beingof the people entrusted to the
care of the Rlandatory, but as affecting the case of, and very often the
hypothetical case of, certain individuals.
But the orrer-al1conclusians 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-esamination.220 SOUTH WEST AFRICA
Another fcature of the cross-esamination was this, that very often
there were put to a witness Iong ertracts from a work written by some-
body else, sornebody who espresses an opinion contrary to an opinion
expressed by a witncss on a particular subject-matter, or yutting a
certain interpretationupon facts, and, on the basis of that jntcrpretation
of the facts. or version of the facts, coming to certain conclusions, or
making certain carnrnent. It was quite evident, BIr. Presidcnt, thatvery
oftcn the purpose of that, in Our respectful submission, \vas to get those
passages on tlie record, not so much to ask the witness about them,
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 all.
It is hardly necessary to Say that that is nota legitimate method of
bringing evidence beforc 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 may of evidence, or by other lcgitimate means as rnay be proper
in the presenlation of their case, with a fair and proper opportunity to
the other Party to rneet 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 al1 of canvassing those, is no legitirnate
way of putting any evidence before the Court, and it is accordingly,in
Oursubmission, to be entirely disregardedas a possiblesource of evidence.
1 refer to certain instances in the record, in this res ect-1am just
giving the rcfcrences-for example, in Professor van denB aag's testimony
in X, at pages 444, 460, and again, at page 461.
31r.President, 1 cannot emphasize ciiough that it was purely for the
purposes of the canclusions upon the question of the general wcll-being
that Kespondent led its evidence. That was the only relcvance which
this evidence nom had in the light of thc altered submissions and the
altered issues between the Parties-the effect which the application of
the norm and the standards niay have on the well-being of the population
as a whole, in gcneral and in respect of the various aspects of their lives.
The only question raised by the amended submissions. in Oursubmission,
is whether the approach sIiould be one of differentiation or non-differen-
tiation, meanin uf course, differentiation or non-clifferentiation in the
sphere of the O% cial allotment of riglits and obligations, and so forth,
and with referencc to the question whether there may or may not be,
in tliat sphere, differentiatioii with reference to mcnibersinpan ethnic
group.
So, >Ir. Presiclenas a convenient shorthand cspression for this anti-
thesis,may 1 use the terms "ofiîcial ethnic differentiation", on the one
hand, versus "officia1ethnic non-differcntiation", on the other hand.
The suggested norm and standards involve that an approacli of
officia1ethnic differentiation, in this sense in which Ive understand it,
violates the Mandate. Now, part of our answer to that contention is
that an approacli of officia1ethnic non-differentiation would inevitably
be detrimental, catastrophicatly detrimental, to the well-being and pro-
gress of the population as a whole in South West Africa. And u7csay,
hlr. President. that, in Our submission, the only rnethod for avoiding
thc catastrophe is to bujld constmctively upon the historical basisof
ethnic differentiation as it esists, and in this manner to attain self-
determination and self-realization for each group. ADDRESS BY MR. DE VILLIERS 221
Therefore, blr. Prcsident, the issue concerns the choice between the
two general approaches-officiai etlinic differentiation, or officiai ethnic
non-differentiation. 'rhc issue i:oncerns nothing more than that, as now
, formulated before
the Court. When 1 Say "now" 1 mean ever since the
amendnient of the Applicants' submissions in May, together with the
esplanations offered in regarcl to the purpose and the scope of that
amendment.
The Applica~lts have not brought a case to the effect thnt although
officia1ethnic differentiation may in general be pcrmissible, nevertheless,
certain specific measures must be regarded as irnpermissible on some
criterian or other. That \\,a not a case which they brought, or which
they esplai~ied as beirig invol\lecl in their case as they made it in their
arnended subrnissions.
The position niight well have been differeiit, Mr. President, on the
basis of the Applicants' originiil case, as we understood it-the original
case of thc allegation of oppression. One could understand that case as
relating to the Respondent's policies, legal measures, laws, regulations,
officia1 practices, takenas a whole-as a body. One could understand
the contention to be that the Respondent's policics 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 coukl understand that tliat could carry within
itself possibly the alternative that even if the Court should find that the
policy asa whole is not oppressive in that sense, and is not aimed at op-
pression of the Natives, then, iievertheless, certain of the measures may
be isolated, and in respect of that particular measure it may be said that
itdoes not conforrn to the diities of the hlandatory, and przrticularly
to the authorized yurposes of the blandatory in the nIandate. 'l'hat would
have been a possible alternative line of proceeding on the basis of the
Applicants' original form of complaint.
But, as soon as we corne tu the new form of complaint, that no longer
becoines logically possible-that form of alternative-because now,
Alr. President, tliere is one critcrion and one criterion only-official
ethnic differentiation or officia1cthnic non-differentiationAncl we know
that in respect of each one ofthe rneasures relied upon bp the .4pplicants
-the laws, the regulations, the official rnethods and measures-each one
of theni involves officia1 differentiation.That is comrnon cause. It is
admitted on the gileadingsthat that is the poçitioii in respect of each one
of these measures and in respect of a large nurnber of the measures of
Respondent's policies and that, indeed, is the basic characteristic of the
policies viewed as a whole.
SO, IIr. Prcsidcnt, 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 thc policy as a whole involves officia1ethiiic differentiation,the
answer is yes. As soon as we enquire further whether each one of the
measures involves thnt, the answer is pes again. So there isno distinction
and no room for ,zri alternative.
If one were to corne to the conclusion that, iii general, a policy of
officia1cthnic differentiation docs not violate the Mandate, then that is
the end of the question, because in the issues as they now stand tliere is
no criterion suggested as an alternative upon which the Court could
say that neverthelcss this particulnr measure, or that particular mesure,
is,witliin the contest of the issues before the Court, a violation of the222 SOUTH WEST AFRICA
Mandate. That is the inevitable conclusion to ~vhich ive corne on the
basis of the Applicants' aniendecl case. And the Applicants have macle
it so clear that they advance no other criterion than this official ethiiic
differentiation as being a basis for contending that policies or measures
violate the Xandate.
Purposes, resuits, fairncss or unfairness, rcasonableness or unreason-
ableness, none of these is advanced as a criterion. And it is ~zotmerely
a question of omission-of the Applicants not mentioning any of those
as a criterion, it goes rnucli further than that, hlr. President. It is a rnatter
of the Applicants explicitly and with emphasis telling the Court and
telIing us that they are not advancing any one of those criteria asa basis,
and they do so for the spccific purposc of telling us that the factual can-
vassing, that would have been necessary in the event of any one of them
being advanced as a criterion, is now rendered unnecessary. That isthe
basis, then, upon which the rest of the case is shaped.
When we say this,Mr. President, then we are not adopting in an? way
a Lechnicalapproach. It isa very realistic approach and, indeed, the only
practical one which was possible to us in these circurnstances. Our at-
titude, asexpressed to the Court several tirnes, was that we were prepared
to meet any case properly presented against us, and, so, when we were
first charged with irnproper motives or deliberateO pression, we met that
properly on the pIt:adings, and we prepared ourse ves to mcet 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 whole basis of the charge, but they adrnitted al1the
facts which we had presented to the Court in Our answer to the original
charge. There was then no longer any need for us to meet the case ivhich
was not brought against us. There was no need for us to prove admitted
facts, and, more than that, hlr. President, on the bais of the authorities
to which 1 have referred-well-known principles-it would have been
incompetentfor us to take up the time of the Court by bringing evidencc
in answer to a case which the Applicants emphatically said they wcre
not bringing againçt 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.
It hüd the effect of clearing the Respondent's name of these charges, at
Ieast before this Court. And it mil1have the sarne effect to alarge extent
before the whole world, ifonly the world gets to know about it. In es-
planation, I may sq, in parenthesis, that, with commendable 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-
estremely important, Alr. 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 acknowledgrnent-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 poticies have been con-
demned at the United Sations'over ail these years.
And, $Ir. President, the acknowledgrnent did not come from a third
party that stands diçinterested in al1this. It did notcome from a party
of whom the rest of the world need take no notice. It came, hZr.President,
from representatives of the whole collectivity of African States which ADDIIESS DY MR. DE VILLIER5 z23
has taken this leading part at the United Nations which we have de-
scribed.
Indeed, >Ir. Preçident, it cornes from States whose representatives
clairn, in thcse proceedings anrl on the pleadings before the Court, that
they seek to iiphold the intercsts also of al1other hlembers of the United
Bations, anrl indeed of the 0rg;inization itself, and they pride themscIves
on the fact that they were corrimended by the Gerieral 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 a
the? made it.
And, therefore, &Ir.President, there is no basis, either in law or as a
matter of practiatl dispute requiring decision by this Court, upon ivhich
individual measures are to be judged as being in conformity or otherwise
with Article 2,paragraph 2, of the Mandate-individual measures that
are dirrorced 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 yractical sense that is so.
We corne, &Ir. President, to that same conclusion by an esamination
of the Applicants' 50-caIled illustrative catalogue of laws, regulations,
and officia1methods and measures, on which they rcly as the factual basis
for saying that the Mandate, read in the light of the norm and/or stan-
dards, has been violated. The catalogue, as the Court will recall, is set
forth in the record of 17 May, IX. The Court may nlso recall that 1dealt
qr~iteestensivelj- ivithitin rnqa.ddress to the Court on r July,pnrticu-
larly atX, pages 219-221, in order to show how the Applicants emphasized
tliat their casewas concerned only with the #er se aspects of these la~vs,
regulations, and so forth. 1 need not repeat that argument.
But there isa curious aspect of the catalogue, Mr. President, to which
1 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
hasis. Now, the Respondent admits that its whole policy is baçed on
differentiation on a group basis, and, in fact, Mr. President, there are,
bjt the Respondent'ç own adniission, numerous laws, regulations, and
so fortli, involving such differentiation, some of them operating in favour
of some etlinic gioups, others operating in favour of others. So, iinder
those circumstances, by reason of these admitted facts, the catalogue
was unnecessary for the purposes of this amended case. Yet we find
that the catalogue was very carefully compiled and it \vas read out to
this Court with great gusto, and the question is, why?
The anslver, in our çubmission, >Ir. President, is not far to seek. ive
find the answcr in, what 1 might call, a process of selectiveness that went
into the compilation of that catalogue. The only nleasures 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 b~oup
vis-à-vis the non-i\'hite groups.Not a single measure having an opposite
effect, or even distinguishing between the non-\.mite groiips intev se,
ifras included in this catalogue. They al1 went one way, favouring the
one group, the White group vis-à-vis the non-White groups-nothing
in favour of a non-Imite group, or non-White groups generally, vis-Ù-vis
the White group or interse as between the various non-White groups.
Now, why was that, hlr. President? In our subrnission, the Applicants
clearly wanted the best of two worlds.224 SOUTH WEST AFRICA
In the first place, they wanted to avojd the factual enqujrjrthatir.ould
have becn involved in a straiglit-forward allegation of oppression, or
unfairness, or the like. They did not want that factual enquiry-that
enquiry ititothe whole ofthis systernof which these laws and regulations
formed a part. But, at the saine time, Mr. President, they wishecl to
attempt to attain somc emotional appeal suggestive of siich oppression
or unfairness, thruugh the superficial impact of these bits and pieces
which were taken out of their context and then stacked together in a
kind of a Guy Fawkes bonfire pile. That was the cffect of the compilation
of this catalogue, as we see it, and1 very much regret to say, JIr.Presi-
dent, that, in our submission, it was n somewhat unworthy manmiivre
and that the Court will have no hesitation about uninasking it as such.
The important point is that this so-called "covpicsof fact" was pre-
sented with reference only to its aspect of being per se and inhcrently
in violatioi~ of the alleged norm andlor standards, as was stressed so
repeatedly in the record of 17 May. I read from IX, page 285 of that
record the rvords "without elaboration, ivithout argument, without
charactcrization". And 1 should like, Mr. President, to read from that
record just a brief passage, which 1 have read before. but, because it is
of such crucial importance for the whole foundations upon which the
case now rests, 1 should like to refer to it again, aIX, pages 298-299of
the record of 17 May:
"These, and sirnilnrly conceded existent legislation and adminis-
trative measures, and effectuating implementing policiesand prac-
tices, form tht:COYP ofCfSctual 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 ancl practice, thc Kespondent allots status, rights,
duties, privileges or burdens on the basis of memberçhip in agroup,
class or race rathcr than on the basiç of individual inerit, cayacity
or quality. In the Applicants' subniission such a policy and prac-
tices are inherently incompatible with Respondent's obligations
under Article z of the AIandate and Article 22 of the Covenant,
and constitute per se and ipso fucfoviolations of Article2,the inter-
prctation and the application of which Article are governed by
international standards and/or by an international legal Iiorm, as
described in tlie Keply, IV, atpagc 493."
In the Applicants' further submission, "no evidence or testimony in
purporteci espIanation or extenuation thereof is legally relevant to the
issues joined in these proceedings".
So, Mr. President, apartheid or the policy of separate development
itseIf is given a new definition for the purposes of the new case.
Thereforeour conclusion is clear. ï'ltissueisjoined, on the Applicants'
amended case, about the choice between a generalpolic of officia1ethnic
differentiation and a generaEfiolicyof official ethnic non-differentiation.
There is no issuejoinea dbout the rnerits or the demerits, the fairness or
the unfairness, the purposes or the results involved in any individztnl
law, regztlationmetbod or measwe. It is for thesc re:isons that we sliall
deal, in the further portion of this argument, only with the issue that
has been joined, in referring to the fact under the various headings
of political rights, economic aspects and so forth. \Ire shall not deal ADDRESS BY MR. DE VILLIERS 225
separately or sjrstematically with each item in the catalogue. 'lJieshall
only refer to sorne of them as illustrations in regard to this only general
issue which is before the Court. 1l7eshall concentrate on that sole isijue.
We shall dernonstrate, hlr. President, with submission, that on the
basis of the admitted facts and the evidence, a genernl approach of
officia1ethnic non-differeritiation would be catastrophically detrinientai
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 ifthe Court, or in-
dividual hlenibcrs of the Court, may feel or consider, as a considered
judgment, that a general approach of differentiation-officia1 ethnic
differentiation-is permissible and is indeed to be preferred to one of
official ethnic non-differentiation. but nevertheless feel that a particular
individual rneasure is perhaps not what it ought to be? It is quite pos-
sibIe, of course, to have views of that kirrdand it is a practical problem
that could arise in the decision of this case and in deliberating upon
the issues in this case. And it is for that reüson th1give some attention
to it, with the greatest respect.
&Ir.President, for the reasons 1 have ridvanced it would. in mp sub-
mission, not be possible fothe Court, within the framework of the issues
hrought before it at the moment, to give a decision on the bais of any
criterion jn respect of these individual measures except, of course, as
forming part of the totality and of saying that the general approach is
to be differentiation or non-dif'ferentiation.
The Court, or individual Jlernbers of the Court, may possibly consider
that even though a general policy of differentiation is permissible and
to be preferred, a particular measure is one that could corne in for criti-
cisrn. Shen one has to distinguish: now criticism on what basis? l?'ould
it be criticisrn merelyinthc sense of questioning the wisdom of the Man-
datory in the esercisc of its discretionary power in deciding upon a
rneasure of that kind, in other words, a difference of vieiv as a rnatter
of policy? For reasons of law and logic, which I indicated to the Court
before in argunients which 1 need not repeat, that is no basis, of course,
for a court of law to condemn any rneasurc decided upon by an authority
in the course of a discretion duly conferred upon it. It msy be that the
Court ma? feel that even if it were to apply the more stringent tests
which 1 suggcsted 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, tbat under those circurnstances
it may have becn possible to invalidate some of these measures.
1 would suggcst, Mr. Presicient, with respect, that in view of the turn
which events Iiave taken in this Court, that would be a dangerous line
of enquiry to embark upon at al], especially because of the jnadequate
canvassing of th<:factual aspects which would have been necessary in
order to corne to a decision in respect of each of these individual measures.
1 may say, in general, that ifwe had been called upon to meet a case in
which it was nccessary to coiisider each one of these individual measures
upon these various bases, theii we would have been very much nearer
to the beginning ofthis case now than to the end of it.
Therefore, &Ir. President, I haYe pointed out before that whenever
there isasystcm ofgovernmental regiilatiothere may be agreement upon
the need to have such a systcin and upon the general benefit involved.226 SOUTH WEST .AFRICA
T used the example before of a system of rationing or of import control,
and there rnay be differences of opinion as to whether individual measures
in that particular system rnay or map not be commendable. It may mell
be that if Blembcrs of the Court feel that they want to indicate that they
have not considered each measure on these various bases-on the b'asis
of espressing a view of policy about itor on the basis of dcciding wiicther
itdoes or does not conform to theauthorizcd objectives of the Mandatory
or the like,then the Court or Meinbers of the Court may make that clear,
that their judgment does not estend to matters of that kind because
those have been taken outside the purview of the issiies in the case.
It is, in that respect, important to'bear in minci the general factor
which has so often beeri stressed in Our addresses to the Court and in
the oraltestimony of the expert witnesses, and that is, tliat these policies
and tttese measurej do not constitute a static situation. They are part
and parcel of a dyriamic situation in which adjustments are continually
being made as tirnt: goes on. There are many individual measures which
are of an empirical and transitory nature; they are designed to deal with
a particular problem asit arises at a particular stage, and particular
measures which miiy cause concern at a particular stage may have dis-
appeared or niay have been radically aItered by the next year or in five
years' time or in ten years' time.
It is, 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
life of the Territory? The AppIicantç said in this regard, in the record of
17 Nay, prior to stating their catalogue of laws and rneasures and so
forth to the Court, the following at IX, page 284:
"The norm of non-discrimination or non-separation, when broken
doivn into its component parts .. .for esarnple, in the economic
field, in the economic Iife of the comrnunity, could be, properly is
to be, coriceived and spoken of as the norm of non-discrimination
or non-separation in economic affairs ... Similarly, in the political
and civil liberties fields, they becorne norrns or sub-noms, whichever
phraseoIogy 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 Rlemorials and it is esplicitly set forth as such, although it
had not at that phase of our pleadings the name, the style; the
title was not yet forrnulated or incorporated in the pleadings. It \iras,
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."
1 apologize for making the quotation so long, but 1had to read the whole
of it in order to corne to this Iink at the end with IV, page 493, of the ADDRESS BY YR. DE VILLIERS 227
Reply. It describes the contet-itof the norm and the standards taken as a
whole and theii 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 (1 need not read it to the Court agairi, it has
been read so often) the terms "non-discrimination" and "non-sepriration"
are defined in tivo ways: one, in a negative wny, with reference to the
prohibition on the allotment of status, rights, privileges and so forth on
thebais of membership in agroup, ciass or racc, rather than on the bais
of individual rnerit, capacity and so forth; then there is added the positive
part (as my learned friend, Mr. Xuller, h'u pointed out, obviously in-
tended to bear the sarne meaning) where the same concepts are espressed
with reference to the ideas of equality before the lam and equality of
opportunity.
Il'hen one applies this to the political field, this could in tlicory mean
that the norm would be violated only where tliere existed a diffcr-ential
allotment of political rights-that that was the sole aspect with which
the norm \vas concerned. In other ivords. >Ir. President, one could in
theorq- read this as applied in the political sphere to mcan that the norm
wouId not compt:l the granting of any political rights at all, or political
right of a prticular type, as long as no difference was made on the basis
of menibership in a group, class or race. That would theorctically be a
basis upon ~irhichone could apply this norm. But the Applicants have
made it clear that that is not theircase and has never been their case.
Tn the lilemorials, 1, at page rjr. 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 l'erritory] throiigti rights of suffrage, propessively increasing
participation in the processes of government, developmcnt of self-
governrnent and free politicai institutions."
So, one sees that there is no siiggestion here that the Respondent \~~ould
be acting perfectly la\\-fullyby just granting no political rights to any-
body at all. The Respondent was espected to see to political advance-
ment of the persons "throiigh rights of suffrage" and in that respect, as
the Applicnnts later staterl in t1it:iReply, there was to be applicd this
criterion of officiiilethnic non-differentiation. This suggested cluty, as it
{vasformulated in the Memorials, drerv from ris the following rcaction in
our Counter-Mernorial, II, page 398, and 1think it iç important to read it:
"Applicnnts' duty So. 3 seeks to impose on Respondent the obliga-
tion to promote the 'political advancement of [the inhabitants of
the Territory] fhvozcgkrightsof szcflrage... Xeither in the Mandate,
nor in the Charter, 1stheri:any provision requiring that the political
advancement of the inhabitants of dependent territories should
necessarily be prornoted 'through rights of suffrage'. Whereas Re-
spundcnt ûdmits that itisunder a dnty, s'?$ierdin,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. mhich is to be exercised by spplying policies 'as niay be
approprinte to the particular circumstnnces of [the] tcrritory and
its peoples'. Respondent, while in no way opposecl to the idea of
suffrage for al1 or any pc:oples in appropriate circumstances. does
not consider that provision for such rights in one integrated political ADDRESS BY MR. DE VILLIERS 229
rity, with identical political rights for al1 ..." (IV?p: 453, para. 2).
Nest, I give a quotation from the same page, still indicating the pur-
pose: ". . .one system 01 governmentin which both Ezcropeans and indzg-
eltous inhabitants wotrld fiarticifint...". And a further quotation from
the same page reads: ". ..a unified political structure for each territory
in which al1inhabitants would have equal rights in the government ...".
Finally, still at the same page, paragraph 3, mention is made of ". . . a
totally integrated political unit for cnch Territory ...".
So, we find in the context, under both af these hcadings, just one
theme-an attempt to subçtantiate the existence of the alleged norms
contended for in the statement of law, at IV,page 441, ivhich 1read out
to the Court çhortly 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
statement of the law, and this conclusion is stated as follows,at pages
442-445 :
". .. Respondent's refusal. .. to grant to the indigenous peoples
of South West Africa rightç of suffrage.. . within the framework
of the Territorial Government, constitutes .. . a violation of the
obligations of Article z (paragraph a)of the Rlandate agreement".
So, Rir. President, the impact of the Applicants' case in the sphere
under discussion, as contained in the Reply, is clear-quite unmistak-
ably they are srtying in effect that Respondent must conform to the
". .. norms by which the obligation stated in Article z, paragraph z,
of the Mandate . . . should be measured". (IV, p. 442.) And they Say, in
other words, that Respondent must, interalia, institute ". .. universal
adult suffrage. ..within the frarnework 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 Rlandate obligations. And to
ensure that Respondent does in future conform to these alleged norms,
wc find that the Applicants castigate ". .. the policies projected in the
report of the Odendaal Commission". (IV,p. 444.) They castigate theni,
Mr. President, as bcing even more serious and repugnant to Article z
of the Mandate than the present one. That wvefind in the Reply at IV,
page 444-
And we find in their submission h'o. 4 that they ask the Court not
only ta condemii the Respondentls present policy, but also to adjudge
and declare that Respondent--
". ..has the duty forthwith to cease its violations as aforesaid and
to take al1 practicable action to fulfill its duties under such Arti-
cles;" (1, p.197; IV, p.558).
This case, hlr. Yresident, was niet 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 reaIly 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 Kejoinder, VI, at pages 1-12.
At this stage, we still deait with the matter on the dual basis because
it had not been made quite clear esactly ïvhat the Applicants' case was
-we deait 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 S. 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 andior the standards, and
that in these Oral I'roceedings also these norms, as set out in the Reply,
IV, at pagc 441, wcre seen in this light was rendered perfectly clear on
.r8May, that is on the day preceding the closing ofthe bpplicants' case,
when they stated the following:
f'. . . in the Applicants' Reply are set forth cxampleof the United
Nations standards of non-discrimination and non-separation in
the fields of... political development, al1LW expressed through the
years by the organs of the United Nations with respect to dependent
territories generally subjcct to the scope of supervision of the United
Nations . . . Such esamples, referred to in the pleadings at the places
cited .. ."(IX,p. 336.)
Those places cited, 1 may interpose, hlr. President , include, interdia,
the Reply, IV, at pages 451-457,in other words, Annex 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 approved by the Court.
The norm and tht: standards so explainedin the Reply, IV,at page 441,
agree exactly with the objectives that have been expressed by the Gen-
eral Assembly of the United Xations, as well as by the Applicants in
that forum. 1 rnay cluote but a single example, Mr. President. The special
Cornmittee on South [Vest Africa in its report to the 16th Session of
the General hsembly 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 Oficial Records of the 16th Session, Supplement No.
xzA, Document A/4g26, at page 22.1 indicated to the Court a few days
ago that this was taken up entirely in resolution No. 17oz of the 16th
Session.
Therefore, the Applicants' case as stated in the Reply, and the case
ofthe African States as stated at the United Nations, we find, corre-
sponded entirely.
[Public hearilzgO/2 ilTovernher19651
hlr. President ancfhonourable Mernbers, at the adjournment yesterday
1 had pointed out that tlie Applicants' attitude as expressed in their
Reply, in the political sphere was entirely clear. Itwas an unqualified
demand for universal adult suffrage in South West Afnca within the
framework of a single territorial unit,as being a nom andlor standards
with which, so it was contended, the Respondent was obliged to compIy.
1 pointed out also that this clear attitude was entirelin accord with the
attitude taken up at the United Nations by the Applicants, by the ADDRESS UY hiR. DE VILLIERS 231
-1fricriii Statiiigeneral, and by others who were acting as their allies
in that respect.1 had referrcd to a committee report and 1 had referred
also to resolutioii 170(XVI) of the 16th Session in1961 giving effect to
that committee report. May 1 point out that (or remind the Court as I
have pointed out before) bot11of the Applicants voted in favour of this
resolution, together with the whoIe block of African States.
1 should like to refer also to a very nearly contemporaneous resolu-
tion (the previoils one was19 Ilecember 1961, that is, No. 1702 (SVI)).
We corne to resolution 1760 (XITll)of the 17th Session, clate31 October
1962. This is a rcsoiution in respect of Southern Rhodesia. Of course,
in Southern Rhodesia al1groups of the population, on the basis of esis-
ting arrangements, have right.s 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 ensure the riglits of the majority
of the people, on the basis of one man, one vote, in conforrnity with the
principles of the Charter of the United Nations and the Declaration on
the granting of independence to colonial countries and peoples.. ."
And, then, further 1 quote again: "The immediate extension to the
whole population without discrimination, of the full and unconditional
excrcise of their basic political ri$.hts, in yarticular, the rightvote."
(C.A.,O.R. ,7th Session, Suppl. ho.17 (A/jz17), resolution1760(XVII),
P So, hlr. Presiclent, on the basis of th& clear exposition in the Reply,
and in view of the fact that the attitude as expressed there accorded
entirely with the attitude as expressed at the United Kations, we thought
that this was a ctear-cut case for us to meet and \ve dealt with that case
in our Rejoinder, V, and 1 sIiall read a passage at page 243, the para-
graph numbered 3:
"3. The first,and fundamental, issue between the parties relates
to the metliod whereby political advancement of the inhabitants
of the Territory is to be secured. Respondent was at pains in the
Counter-hlemonal to denionstrate that the only reaiistic alternative
to separate development was domination of the whole Territory
by majorityNative groups (or, possibly, by a despotic régimederivcd
from thern). Respondent emphasized, particularly, that there was
no middle cottrse-al1 expedients and manipulations intended to
achieve such a course really being just slightly more extended ways
of arriving at majority rule by Katives. The correctness of this
assessrnent not only has l~eenborne out by further events in Africa,
but is confirmed bp tht: attitude adopted by Applicants in the
RepIy. They urge, without any qualification, abolition of al1differ-
entiation between groups, treatment of the whole population as a
unit, and universal adult suffrage-claims which have aIso 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 hlay,at IX, pages 111-112, while we were
dealing with the inspection pioposal.
We saw, in other words, a clear-cut straight issue between ethnic non-
differcntiation and ethnic differentiation-between political separation
or political integration-and that was the basis upon which we dealt
mith this case.232 SOUTH WEST AFRICA
hlr.Preside~it, the Applicants did not like that formulation of such
a clcar-cut issue, apparently because the evtrcrne aspects thereof hit
them between tlie eycs when dealt with in this rnanner. Possibly for
this reason, they starteda process during the Oral Procecdings of trying
to get away from the implications of this straiglit-fonvard issue. The
process commenced on 13hlay when the Applicants saidin 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 1have 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 al1 democratic
principles of suffrage in al1 civilized societies; age, literacy and
other factors are of course implicit insuch a standard of achieve-
ment." (IX,p. 248.)
3Ir. President, this passage contains a number of elements which cal1
for comment.
First of all, we find that Applicants say that the words "universal
adult suffrage" have a content which is so familiar that the Court may
take judiciat notice of it. And then they go on tsay that there are cer-
tain restrictions implicitin the concept. Mi- .resident, one monders
where they get this concept from and what exactly is the content which
they Say is sofamiliar that the Court may take judicial notice of iLVe
have looked at sources and we could find no support whatsoever for
this suggestion of the qualifications or restrictions, particularly per-
taining to litcracy and other factors referred to bymy learned friends.
Let us start witli the United Nations resolution to which we have
referred-the General Assernbly resolution on Southern Rhodesia.
There we Iiave 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 tht: granting of Independence to Colonial Coiintries
and Peoples". (G.A., O.K. ,7th Session, Suppl. No. 17 (A~SSI~),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
basicpolitical 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 ShorterOxford
English Dictionary, 19 jg edition : "Universal suffrage :a suffrage ex-
tending to the whole of a community, especially one in which ail persons
over a fixedage, except lunatics, aliens and criminals, have the right
to vote for representatives to a legislative assernbly." So, thone findç
no exception or restriction of the kind referred to.
In Websters AT# International Dictionary, and edition (p. 2782),
published in the United States in 1947 w,e findagain, under the heading
"Universal suffrage" "suffrage of all, that is, of al1 adults not legally
disqualifiedby the laws of the country, as criminals, idiots and aliens;
formerly manhood suffrage, but now in most countries including also AWDRESS BY MR. DE VILLIERS 233
those entitled to vote under woman suffrage". And, then "manhood
suffrage" is defined as "suffrage of al1 male citizens not under a civil
disability as crime, lunacy, etc."
Then A New English Dictionary mzHislorical Pri~~ciples , olume X,
-this is somewhat older in datc, 1926 edition.1 quote from this: "Uni-
versal suffrage: a suffrage extending to the whole of a community, espe-
cially one in virtue of which al1male persons over 21 years of age except
lunatics, aliens and criminais, have the right to vote for representatives
to a legislative (usually pariiarnentary) assembly (p. 242)."
And, then, of very recent vintage, The Cowcise Oxfovd Dictio~zary,the
1964 edition, which is the fifth. Under the heading "Uiiiversa1"-"Uni-
versal" is defined as "belong,ing to .. .a11persons ... in the world or
in the class concerned; applicable to al1cases". Then, under "Suffrage"
"the right of voting in political elections...manhood suffrage, extended
to al1 adult males without property tests, etc." .4nd, then, "Universal
suffrage" is defined as "extended to al1 adults".
So, Mr. President, in the light of these dcfinitions it iscertainly not
clear what the Applicants mean ivhen they say that the concept "universal
adult suffrage" is :
". ..subject to the normal restrictions and safeguards ~vhichattend
al1 democratic principles of suffrage in al1 civilized societies;age,
literacy and other factors are of course implicit in such a standard
of acliievement". (IX, p. 248.)
We have seen that literacy is not a factor in an). one of these definitions
and one seriously wonders whether the Applicants are suggeçting that
in the African context it woiild be realistic to suggest that literacy is,
either in practice or as a matter of general concept, part and parce1 of
a concept of "universal adult suffrage".
Purther, no light is thrown on the question of the other factors which
may be invoIved-we are not told what they may be-other factors
which would operate as restrictions and safeguards.
Another important feature of the passage under discussion iç 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 sorne time iil the future, but what that time is, ileft
vague. So the question ariseswhether they stillregard "universal adult
suffrage" as one of the alleged norm-as they stated in the Reply,
IV, at page 441, "noms by which the obligations stated In Article 2,
paragraph 2, of the hiandate should be measured", norms which had
been "established by the Unitcd Nations" and in respect of which
Applicants contended that that organ "is legally bound, not rnerely
permitted, to formulate criteria with respect to the conduct of the
administration of the Territory". We fmd al1that in the verbatim record
of rS May at IX, page 320.
It rnust be recalled, Mr. President, what the United Bations in fact
said on the sutject and when we revert to those resolutions which
1 referrcd to this morning, 1702 (SVI) on South West Africa and the
subseque~it one on Rhodesia, there is certainly no suggestion of waiting
until some distant date in the future, or to sorne uncertain date in the
future. In the case of paragraph 2 (eJ of reçolution 1702 (XVI) the
phraseology for South West Africa is:
"Preparations for general electioiis to the Legislative Assembly,234 SOUTH WEST AFRICA
based on universal adult suffrage to be held as soon as possih1eH;
(G.A.,O.R., 16th Sess., Suppl. No. 17 (A/$roo), p. 40.)
and in the case of Rhodesia, as the Court would recall, 1 stresseù in
reading it out, the irnmediate extension to the whole population of this
facility of universai adult suffrage.
So that ngain is a question that arises when the Applicants now tell
us that their claim is not concerned with the irnmediate 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 difficuities than they have solved.
This subject asto what Ras mcant by the concept of "universal adult
suffrage" and as to what esactly the Applicants were claiming iil this
regard, arose again in the course of the evidence of hir. Cillie. which
the Court will recal!vas given on 13 and 14 July. Certain queries were
raised by you, Mr. 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
1 had occasion to rt:fer first to pag441, IV, of the Reply and later. in
fact, to quote it to the CourThe reference to page 441,IV, the Court will
find in what 1 said on page 513,X, of that record and again at X, pqe
523, and the actual quotation was given on that page. On these prlor
occasions, before actually quoting the passage in the Keply, 1 refei-red
to (and 1 use the words asat p. 523):
"The content of the norm as applied in the political sphere.
namely, the content of univcrsal adult suffrage within the frarne-
work of a single territorial unit."
Later, on the same page, mp iearned friend,inspeaking ofthiç,said that
this waç ". ..a rnisrepresentation, surelyunwitting, of the Applicants'
case"; and he added: "With al1respect, Sir, 1 just will note an objection
on this line of argument by the Respondent's counsel."
Itwas in response to this, Mr. President,that I pressed this reference,
the actual quotation from page 441,IV, of the Reply, and 1 pressed
my learned friend to exylain what his attitude was. Then, in response
to your invitation, Sir, hesaid, atX, page 524,the following:
"1 hardly know how toproceed, Mr. President. Tliisseems to require
legal argument of the sort which 1 know, with al1 respect and
deference, is not in place here. Just for the sake of the record 1
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 Sations
which have given rise to this standard, and of cornpliance bjr
Administering Powers therewith, the Court is referred to .4nnes
7 hereof'."
That wï7asthe quotation, then, by rny learned friend from the Reply,
andhis staternent proceeded :
"The Annex sets forth, in somc 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 esplain
and elaborate the two sentences quoted by the Respondent. But,
xvithout venturing to go into an elaborate argument, there are of ADDRESS BY 3fR. DE VILLIERS 235
course al1sorts of aualifications uDon the ~hrases used. 'the institu-
tion of universal idult suffrage'ind the'iarticipation'on the part
of all oualified individuals'. There is no absolute or mechanical
standard which is applicable, or not, without reference to the issue
in this case, which is that apartheid, kvhich denies al1 effective
rightsof participation-lens suffrage totaIljr-isa violationof the
Alandate. That has been, and remains, Our case. We believc that
the United Nations standards, aselaborated in the Reply, may be
considered and, with al1 respect, should be considered by this
honourablc Court in interpreting the Mandate and applging the
undisputed facts of record constituting apartheid in this respec..."
(X, p.524,)
AIr. President,1 shall comment on this passage presently. 1 should
just like to foiiow it up by referring to a question which you, ;\Ir. Presi-
dent, ut, arising from this, on the nest day, 14 July, at X, page 555.
1 shnlf read the question.
"Do the Applicants contend that their final subrnissions, as filed
in the Court, contain, in the content of the obligatory norm for
tvhich they have contentled, an obligation tu grant unirersal adult
suffrage in South West Africa within the framework of a single
territorial unit?"
and to this question, if the Court will recall. there came the cryptic
reply, immediately: "Xo, Sir."
Sa thnt is urhere the matter rests. Ive have had no subsequent esplana-
tjon. This final answer, in reply to your question, Mr. Preçident, does
not provide any guidance as to what the Applicants now Say their
case is. Of course we know what case we have to meet. We 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 where we haire to find what their case actunlly is,
but we do not know, in regard to these subsequent esplanations, what
the Applicants now çay theircase is.This isparticülarly so rvhen regard
is had to the fact that the Applicants Say tliat they use the expression
"universal adult suffrage" asbeing subject to certain implicit restrictions
concerning, as I have pointed out, inter alia, age,literacy and other
factors.So, if they use the phrasc iis carrying within itself those i~nplicit
restrictions, what does their nnswer to you mean, Sir, when they say
that universal adult suffrage is not a partof what they suggest we have
to comply with on the basis of thcir nom?
Surely one would have eupected an answer, then, saying: yes, itis
part of Our case, but of course one has to bear in mind that it is subject
to certain restrictions and inherent qualifications. Rut that is not the
ansiver; the answer is that it is not part of their case asfounded on the
norm at ,211.
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 1 quoted
just now from the verbatini record of 13 July at X, page 524. In
essence, it will be realized, this passage appears to be contraclictory
to the whole norm and the standards theory, as my Iearned friend.
31r.IIuller, pointed out earlier. Ttcontains the statement, amongst others,
that :
"... apartheid, which denies al1 effective rights of participation-236 SOUTH WEST AFRICA
denjes suffrage tota1lj~-is a violation of the Mandate. That has
been, and remains, our case." (X, p. 524.)
But, in putting it this way, the ~~~Gcantç fail to çtate why apartheid
isin this sense a violation of the hlandate. 1s it bccause of the esistence
of some norm? If so, then what is the content of that norm? And in
regard to this stateinent that "apartheid . . . denies effective rights of
participation" who is to judge, 3lr. President, whether the political
rights esisting 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" legiti~nately be granted upon a group basis? Or does the
idea of non-ethnic 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 iiorm are fier se, ipso facto and inherently binding
upon al1concerned, including this honourable Court. Now the Applicants
only ask that such standards ". .. rnay be considered and, with ail res-
pect, should be considered by this honourable Court in interpreting the
Mandate . . .". (Ibid.)
Finally, Mr. President, the question is how do the Applicants reconcile
al1this-1 may cal1it, 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, IVt of the Reply, clearly and explicitly and consjs-
tently explained in the subsequent pages of the Reply, and their clear
and consistent attitude before the United Xations-their attitude and
the attitude of the other African States which they represent. How are
al1 these things to be reconciled with one another? The Applicants give
no answers whatsoever to these questions.
In the result, Tllr.President, and until we receive those answers, 1 shall
proceed to deaI with the subject of political rights on the only safe basis
which we have-the only legitimate basis indeed-and that is the bnsis
of the case which we are called upon to meet. And that case, 1 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 esplained in
the immediately preceding and the contemporaneous explanations. 1
proceed against this background to deal with the potential application
of the Applicants' norm and standards in the political sphere inSouth
IlTestAfrica.
The Court wilI recall that 1 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 all,
provided that there is no officia1 differentiation between the different
groups in the al1otmi:nt of political status, rights, privileges, so forth.
But, hlr. President, it would be entirely unrealistic to n~iproach the
rnatter on the basis of that theoretical possibility. The Applicants quite
clearly do not expect the Respondent perpetüally to deny the inhabitants
of South \Vest Africa a11political rights whatsoever, and that course
would hardly be in ;iccordance with an obligation "to promote matcria1
and moral well-being and social progress". Indeed, the Applicants theni-
selves have frequently emphasized the importance of the concept of
self-determination and of political development towards seli-determinn- ADDRESS BT MR. DE VILLIERS 237
tion,aswe see, for instancein the RepIy, IV,at page 238, where reference
ismade to ". . .the fundamental importance attachcd to the concept
of self-determinationand self-government ...".
On 19 March, in the verbatim record of that date, aVIII, page 140,my
learned friend, Mr. Moore, rt:ferred to "... the importance which the
founders of the mandates systern attached to the principle of self-
determination". And, at page 142, he said:
"R;Ir. Presidcnt, it is clear, in Applicants' subrnission, tliat the
basic principle of self-determination includes tivo necessary ele-
mentç: 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 &Ir.BIoore
said, in a slightly different contest:
"Tlie phrase 'apolitical unit'indicate... [a]view that the concept
of self-government and self-determination meant the establishment
ofa politicalunit, andnat severai political units."
So, those were the contentions as stated on behalf of the -4pplicants
at that stage of the record.
Now, Mr. President, let us for the moment disregard the Applicants'
cxplicit formulations in the Keply, 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-diçcriinination- etn-niscrimination-and
non-separation, as defined at page 493, IV, of the Reply, on the other
hand, and bring them togetlier. It then becomes perfectly clear that
ifpolitical advancement towaids self-determination of al1the inhabitants
is to be secured without a differential allotment of rights, duties and
burdens, and so forth, on an cthnic basis, thcn it must in the elid lead
to universal adult suffrage in South West Africa as one political unit,
whether unitary or federal; it must be so. Once you combine those two
features-the ethnic non-differentiation and the idea of advancement of
al1the inhabitants to self-determination-then this is the point awhich
you must arrive logically. Sa, Mr. President, itis not surprising at al1
that the Applicnnts themselves put that situation so clearly in the lieply,
at the pages ta which 1 have referred before. And if the Applicants
now have less enthusiasm for what they said in the Heply at those
pages, then it becomes clear that this is not any disenchantment with
the j5rincifile in gencral-the principle of universal aciult suffrage.Tt
cauld, at most, suggest a contemplation that certain qualifications (on
a non-group basis) rnight be attached to the idea of universal adult
suffrage, which qualificationscouId delay the ultimate attainment of the
principle, but not bring about any deviation from the principleas such.
Let us look, then, ritthe implications of this attitude, in the light
of the facts which rire admittcd on the record.
On Friday, and again yesterday, my learned fricnd, Mr. Muller,
surnrnarized the main facts ivhich were adrnitted by the Applicants,
and 1 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 po ulation groups with different
traditions. cultures und languages. second$, in the history of the Terri-
tory, prior to the assumption of the >Ia~idate, there had been a period~3~ SOUTH WEST AFRICA
of strife and warfare betrveen a number of these indigenous groups.
Thirclly, generally speaking, the various groups found themseives at
different levels of development, and, in particular,there isa vast differeiice
in this respect between, on the one hand, the ICuropean group, whicti
have a tradition of iestern civilization and are used to a modern
economy, and, on the other hand, the various Sative groups which are,
to a large estent, still bound to the traditional subsistence economy.
Fourthly, to a very large estent, the groups occupy, and have in the
past, for many years, occupied, separate regions in the Territory. Fifthly,
the indigenous groups, to a large estent, still recognize and apply their
traditional system of government through chiefs, headmen and councils.
Sixthly, the different population groups are conscious of their separate
identity, and they wish to be treated as separate groupç, also in the
political field: this, Mr. President, being of the utrnost importance.
These differcnces among the groups, as here summarized, and theic
group consciousness and their wishes as groups. have eserted their
influence even upon the political parties which have been formed amongst
the non-White inhabitants, even those which agitate for the abolition
of White rule, as they cal1it.
The Court will recallthe evidence of Ali-.Dahlmann in which he
described the varioiis attempts at unification amongst the various anti-
Government bodies of this kind-attempts which were stirnulated by
a very important factor which was referred to by Air. Dahlmann in the
verbatim record, XI, at page 473, as follo~vs:
"This movenient was necessary because the liberation committee
of the Organization of African Unity had indicated that no financial
aid should be given to splinter groups or tribal organizations but
only to a united front."
And that esplains, therefore. the frantic efforts that were made to
create such a united front. But these efforts failed almost completely,
as Mr. 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 grouys in South \i7est Africa, his reply was as
follo\vç, on that page and running on to the next page:
"Most of the parties are formed on a tribal basis.AI1 attempts
to achieve unity proved a failure. There is one exception-that is
the South \l'esAfrica National Union [StVANq-which ha anly
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 intellectuaIs,~but from various
population groups. You find there Ovambos. Hereros (especially
i-iereros) and afew Damaras."
And Iater, IIr. President,he was asked, at XI, page 480:
<I
Frorn your experience, can you state as your opinion whether
the different non-iVliite political parties wiIl be able to CO-operate
and form, or work in, a single political party unit?"
And he then replied :
"1 would like to associate myçelf with Mr. Kapuuo, who said,. in
an intervie~i... that tribalism and group Ioyalties are tliings which ADDRESS BY MR. DE VILLIERS 239
jiou have to take into account in South \Vest Africa for many years
to corne. So I cannot see any possibility for aunification within the
loreseeable future." (XI, p. 480.)
$Ir. Presideiit, the impact and tlie significance of this evidence is self-
evident. And Alr.Dahlmann's evidence in this respect was not challenged
in cross-examination. It is apparent that he is erninently qualified and
espcrienced to espress an opinion on this point, and 1 can refer in this
respect particularly to the record, XI, at pages 457-458-
hly learned friend, Mr. Gross, did indicate that he might be attacking
the credibility or the degree of expertise of tliis 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 LVar.
hlr. President, this line of cliiestioning of the man's expertise and
integrity as a witncss was very effectively answered by the witness him-
sèlf and 1 need not tnke it any further. I have dificulty in seeing what
relevance this could have to the matter at all. Perhaps we shall hear
more oï that subject at a later stage. My submissjon is that MT. Dahl-
mann's evidence mas quite clearly the product of very intensive and
very systematic study of this rnatter, extending over a long period,
based on Iiis experience and clelivered with full frankness to thiç Court.
There is no reason whatsoever why it should not be accepted. Indeed,
31r. President, the probability of the correctness of thiç evidence is also
borne out by so many other factors on record, to some of which I shall
refer in the further portion of this address.
The clucstionis, then, Mr. Yrcsident, whcther, in the ligl-tt 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. In dealing with this question,
the relationship between the various non-White groups, if I ma- cal1
thern that, or indigenous groups, intesre, is quite obviouslyas important
as, if not more important than, the relationship between the Whitc
group and al1 or any of the non-White groups. Al1 those aspects of the
matter caIl for consideration and for equally serious and important con-
sideration. Rut, >Ir. President, we find that it is stressed, particularly
in attacks which are made upon South Africa's policy from outside a$
again in the catalogue particularly relied upon by the Applicantç in this
particular case, that this relationship between White and non-White
must be seen as the primary l~roblem.
It is, in Our approach. not so at all. The problern is not prirnarily one
of colour or race, as is so often represented. lt is much rather one of
reIations between various etfinic groups-between peoples, or enibryo
nations if one might prefer to cal1them that-living in close geographical
contact with one another. as was so strongly stressed and so clearly
illustratedby the vnrious South African witnesses and also by Professor
Logan. The situation is indeed, hZr. President, a specific esample, and
a ïrery intricate one, of what was called the multi-national problem.
which was discussed at this recent serninar in E'ugoslavia in regard to
which I'rofessor Possony testified.
As T snid, because this relationship betwceri the White inhabitants
and the indigenous inhabitants of South IVest 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 here, 1 shouldz4° 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 lirest Africa in the political sphere.
It is customary in certain circles to refer to al1 Europeans or White
people in Africa as "settlers", a terrn which is often interpreted to mean
persons of recent arrival, ~vhohave no real right to remain. The Court
ail1 recaH from the nurnerous passages we cited from debates in the
United Xations, 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 recail thaMr. Dahlrnann testified that
NUDO, which isa party of Hereros, wished to divide South West Africa
into a numbcr of regions with regional parliaments and a federal 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, page476.
Holvever, Mr. President. what are the true and the admitted facts
aboutthe Europeaii population ofSouth West Africa? When the Kespon-
dent assumed the Mandate in rgzo there rvas already a settled European
population in South IVest 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 biandatory's charge, to retain and to extend that
popiilntion.Wc deal with those circumstances very specifically in BooIV
of the Counter-hfemorial and 1 should Iike to refer to sorne of the
most important aspects of our treatrnent of the subject, just in brie£
summary.
First, hIr. President, we point out at II, page 406, that at no time
during the German regime was Soutli West Africü self-supporting and
that was in spite of the fact that under the German administration there
was a much more limited estent of administration than was required
of the hfandatory under the Mandate. The German administration went
no further than the Police Zone but under the Mandate of course the
other territories were broiight iand al1were put under the Kespondent's
charge.
Ive surnmarized the situation as Respondent found it in 1920 in the
Counter-Nemorial, II, at page409 It is afairly brief summarvand 1should
like to read itout to the Court. Paragraphs 20 and 21 read:
"Outside the Police Zone, tlïe social, political and economic lives
of the inhabitants were virtually untouched by contact mith 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 esport products of which were rninerals, and,
in particular,diamonds.
(b) The revenue of the Temtorp was aIso largely dependent on the
production of diamonds, and had never been sufficient to cover
the costs of admiiiistering 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 been limited and retarded by the high
capital espenditure required, and the inaccessibility of markets.
(d) The Territory was served by an extensive railway system, which
had beeii joined to that of South Africa during the war. .4DDKESS Bi' MR. DE VILLIERS 24r
(e) The traditionai tribal economies of the Native tribes had been
shattered, [we arc dealing with the Police Zone, the Southern
Sector tiow] but wide differenccs betwcen the various groups,
were still found, and each group retained its own identity.
{fj 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.
JIr.President, we have pointed out in II,at page 410, that even the
maintenance of the status quo, namclg an organized administration
which could provide certain t:lementary protections, would vcqzrirethe
firesenceof a lurgt:ltumber O/ Ezcvopeans in the Tervitory.When we speak
of providing certain elementary protections, we include those wliicti were
envisaged in the provisions of the Mandate relatiiig to protection of the
indigenous inhabitants against abuses such as forced labour, traffic in
armsand ammunition and the supply of liquor, and, Mr. President, those
involved in making the basic provisions which were then 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 ashousing and, in the first place, safety and
protection against the other groups in this state of chaos which had
pertaiiied before.
Now, the matter could not rest, in terms of the Pllandatory's charge
under the Mandate, at maintenance of the status quo. And-even before
1 corne to that ~nerely as a matter of baiancing the budget, and mereIy
as a matter of crenting reserves on this basis ofmaintaining thestatusquo,
reserves to combat droughts and other calarnities which are known to
occur in that part of the country, and also for the purpose of extcnding
the administration to the nortliern areas, for al1these 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,
Mr. President, thete were no international funds available for this pur-
pose, The Nandatory was apliointed to fulfil the task and the task liad to
be performed within the range of avaiiable funds.
J3ut then, as 1 have said, it was required of the Mandatory to bring
about advanceinent, and not merely to maintain a status quo. Therefore,
there had to be development oEthe Territory-devefopment which could
produce benefit and advantagr: for the whole of the population. And for
that purpose, hir. President, as we pointed out at pages 410-411 II,of
the Counter-Rlemorial, itmas absolutely necessary for the Respondent
to :cl'. on the capital,on the initiative and on the entrepreneurial skill
of Il-uropeans. Tlie Native inhabitants were not at a stage of development
which made it possible for them to provide these dements.
The only natural resourcc \\.hich could be developed was the land, in
the state of knowledge as it esisted at that stage, and since the Territory
was nnder-populated the obvious method u-as lo introduce prodiictive .
Ihite farmers, and that is exactly what the Mandatory did, that is
esactly what was foreshadowed that the Mandatory would do, and that
is wliat was espected aniongst the Powers wfiich agreed upon tht, con-
ferring of the Mandate upon the Respondent, as we pointed out before.
Ive deal with this in the Counter-Jfemorial, II,at pages419-42A 1.nd so. -
242 SOUTH WEST AFRlCA
forthis reason, there was a positive encouragement to White farniers to
settle in the Territory and to help with the process of econornic develop-
ment.
It is important to note that various investigating authorities who
examined the circuinstances of South West Africa came to the conclusion
that this policy on 1.heRespondent'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 Commissic,n, which is quoted in the Counter-hlemorial. II, 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 Temitory are those
which have been di:veloped and maintained by Europeans. It was inev-
itable that it shoul~lbe so, because iwe look atthe descriptions given by
the economists, the geologists, the geographers and the others in regard
to South 'IVest Africa it was evident that the onlÿ possible sources of
economic development which have bee~iput into operation so far required
a very high degree of modern technology.
Let us take the various 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 agricuIture and cattIe and stock farming. In the
sphere of agriculture the basic problem is water, "water-making" as itis
called in South West Africa, involving very often the drilling ofvery deep
bore-holes on the basis of geological knosvledge and modern techniques
specially adapted to the circumstances of South IVest Africa, water con-
servation and, in places where the water may be available, irrigation.
Al1 these things hacl never been known in the economies and in the
practices of the Native groups of South West Africa.
When we come to the other branch. cattle and stock farming, there
the Court will recall that there hasbeen the development ofthe Karukul
industry in the southern part of South.iVest Africa. That is a long story
in itself, dealt with to some estent 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 form of industv there at all-research in regard tothe develop-
ment of a particular kind of pelt and so forth. Generally in regard to
stock and cattle farming, be it I<arukul, or be it cattle, or any other forrn
of cattle and stock farming, there is the problem of cornbating stock
diseases in a territciry such as South West hfrica-an absolute necessity
as a prerequisite for marketing-and al1those recluire 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 Tcrritory,
where diamonds are taken from the desert, there is this whole process of
- clearing a huge ovcrburden, as itis called, of Sand and soi1and so forth
until one comes down ont0 the rock layers where the diamonds are found
-the beds, as thev are called-and then the process of sorting out al1
this and coming to the actual gem. In the case of copper mining, itis deep
underground mi~iing,and of course the processes involved in separating
the copper from the other thingsbrought up from the earth and in putting ADDRESS HY hIR.DE VILLIERS 243
it in a state fit for marketing, al1 tliose are techniques of high modern
techriology.
In the fishing industry it is the same thing. First there was a problem
which had licver 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 caiining processes. and the making of fish-meal irt fish-
1nea1plants and similar prodiicts mhich again require high degrees of
technology.
Those are the economic bases of the Territory. Professor Lo~an çaid in
the verbatim record, X, at page 367, in refcrring to the southërn part of
the Territory :
"'i'hat anything has been done ivithit. think, jsrnost remarkable.
Vast portions of it, were they under many other economic systerns,
ivould have been left tot:illy unused and yet they are today pro-
ducing nrnodest incorne and in some cases, a fairly good incorne, to
the people who Iiave developed them in the last 70 years or so."
Aiid then, in the verbatim record, X, at page 348, Professor Logan said
in regard to the Namib area (the Court will recall that isthe tvestern,
desert-like area) :
". ..sincc the European group is the one that today keeps the water
supply going, keeps the food supply corning in, keeps the railway
operating, that it is the managerial ability, that it is the initiative
and drive of this group that ha kept the place in operation, the
rerriovnlof this group without itçdirection and initiative, ivould. 1
think, result in almost immcdiate and almost complete colla~ise".
.Andin bringing the European group into South West Africa in order to
fulfil this functioti, nobody was dispossessed of land, nobody rvasdispos-
sessed of rights, nobocly was forced into a position of heing unable to make
a living any more. 'l'he southerri portion was underpopulated, as we
demonstnted, and it continues to be so today. There is sufficient land
for everybody, as tws so clearly testified to Mr. Pepler, in the verbatirn
record, XI, at pages 223-224 hi: said:
". ..according to my survey and our planning made in terrns of the
agro-ecological regions and the carrying capacity of the different
Reserves, far more people, 1 am talking about the iion-Whites now,
can be accornrnodated agiculturali~~ in their Keserves than what we
finci there today. Actually far more stock can be carried in those
Reserves than what we firid tliere today."
And earlier, at page 221, he had said specifically-
". ..that thcre iç more than enougk land in the Reserves to accom-
moclate the non-\Vhites on an agricultural basis, oii a farmirig eco-
iiomic unit agricultur arisis".
So, XIr. l>residt:nt, putting it briefly, at the inception of the Mandate
there \ras already this settled TSuropeanpopulation. Thereaftcr irnmigra-
tion n-as encourageci in order to develop the econorny and to provide the
riivenue for the maintenance of law and order and for the upliftrnent of
al1the groups-so as to make surplus funds available from these growth-
points in the ecoriomy for the derrelopment of the whole 7èrritory-and
one sees how the growth of this economy, together witli the econorny in244 SOUTH N~ST AFRICA
South Africa itself, has resulted in that very process coming about-in
the large amounts becoming available, and having becorne available over
quite a number of years now, for development. so that >Ir. Pepler says
that he has more tlian sufficient funds at his disposa1 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. Hc worries on
the question whether they are not, in some respects, perhaps going too
fast as far as thatis concernecl.
These aims have been abundantly realized as one sees also in al1 the
planning which is involved in the Odendaal Commission report, and in
the White Paper of the Government tvhich came in response to that
report.
Xow, under those circurnstances, >Ir. President, 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 Rlandatory
"to promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the Territory", the authors of the
Mandate did not distinguish between, or among, thc different classes of
the inhabitantç, and, having regard to the circumstances 1 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 ismore, its presence in South West
Africa is still, and continues to be, of the utmost value to al1the popula-
tion groups in that Territory.
Now, Mr. President, when we against this background consider the
probable cffect of npplying the Applicants' norm to the political life of
the Territory, we shall submit that regard should be had to the present
political institutions inthe Territory. The Court will recall tliat at the
inception of the hlandate al1 political authority was veçted in the Re-
spondent Government, but there were a largenumber oftraditional Native
politjcal jnstitntions inexistence. U'hert. tlteyexistcd they ïrrcre main-
tained and devcloped, positively as a matter of policy by the Respondent
Government, and iicases mhere they had been destroÿed os injured they
were regenerated. î'hat was as far as the various non-White groups ivere
concerned.
For the White group, on the other hand, a certain measure of delegated
political power was granted in due course, and in the result the iV11ite
group attained a greater degree of development in poIitical polrer than
the other groups which is not surprising in view of the differences in
stages of development. However, $,IrPresident, 1 must emphasize that
that additional arnount of power was not granted at the cost of the non-
White groups, nor were tliose groups deprived of any power previously
exercised by them. Rÿ and large the powers given to the IVliite group
were powers of local self-government for themselves and oïJer those who
corne into their area. ;tnd corne and work for them in their economy. It
clidnot extend to the other portions of the 'îerritory, to portions governed
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 scratcli in 1920.
The European population was able to make a greater contribution at ADDRESS BY MK. 1)E VILLIERS "45
that stagethan rvaspossible in the caseof the other gronps. TheEuropean
population group was used to this form of political institution in the
various countrics from which they had come. It was a natural extension
tothem at tliat stage, and the differentiation in the stagof development
of these institutions-the stage of advancement of these institutions-
was also perfectly natural. Of course, that was not a situation that was
intended to persisr for evcr. It was one that was tbe 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 cxercises greater political rights than other
sections, can be justified only on a transitory basis, and that the
goal should be equality among the various groups. "
The question before the Court is now in the choice between the two
alternatives which 1 held up to the Court yesterday-whether this
equality must necessarily be soiight on the basis of the method laid down
in the Applicants' norm and standarcis, that is, by the abandonment of
the separate political institutions of the various non-White groups and
a more or lesç precipitant introduction of a miilti-racial parliarnentary
institution. The question is whether that method is to be adopted or
whetlier the approach of separate development of official ethnic 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, hIr. President, the admitted facts and the uncon-
tested opinions of the acknou7lt:dged experts lead to the conclusion that
the application of the Applicants' norm as a methocl towards the achieire-
ment of this ideal ofequnlity aniongst 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-FVhite 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, a1pointed out this morning, asthey insist elsewhere,
that universal adult suffrage should beintroduced immediately in South
West Africa. The extremeness, if 1may cal1 itthat, of that attitude, and
the very obvious detriment iiivolved in it must have struck the Appli-
cants, and that is probably the reason for these atternpted iluslificat'ions
to which we had regard earlier this rnorning.
However, Ict us examine this posçibjlity of a qiialified franchise, ïvhich
may be what they are suggesting now, 1 donot know, leading to eventual
universal franchise in n single political unit. We subrnit, Mr. President,
that that approach suffers from the very same defects as the immediate
introduction of universal suffrage.
\fie dealt in the Counter-Ilemorial, II,at page 472, with the implica-
tions first of immediately handing over.contro1 tothe non-\frliite rnajority
in South West Africa (1 shall not deal with that for the moment as ive
shall come back to the implications of that situation at a.later stage),
and fallowi~igfrorn that we dealt then with the possibility of a further
alternative, another method of a proach, which appears to accord with
this middle course noiv suggeste1 by the Applicants.
Mr. President, we arc dealing with the implications of a possible246 SOUTH WEST AFRICA
middle-of-the-road policy in regard to the political aspect as may or rnay
not be suggested by the Applicants at this stage. After dealing inour
Counter-Mernorial with the implications of an irnmediate handing over of
power, 1%--eent on, at II,page 473, as foiiows:
"Another method of approach may be to attempt to establish a '
multi-racial society onthe basis of identical rights for all. In view of
the utter failure,.. .of a11such 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 likeIy to succeed, it does not seto
Respondent that this alternative can really commend itself. The
evidence is ovenvhelming that African nationalism does not in fact
desire such a inulti-racial state, that it will not tolerate any process
of gradualism aimed ai bringing about such a state, and that its
only demnnd is absolute power for African Natives on the basis of
their rnajority.In ather words, this second alternative is but a
slightly longer drawn out process than the first, but otherwise one
involving esactly the same results."
Mr. Presidcnt, 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 ~lationalism in general. Indced, Mr. President,
events in Africa have made it impossible for the Applicants to dispute the
statements. Examples ofthe failurc of multi-racial expcriments in Africa
were given in the Countcr-hlemorial, II,at page 454, and again at pages
470-47 1.d in the Rejoinder, V, st page zoo, and further references
were given there. We made references to the Congo, to Kenya, to Tan-
ganyika and to Nyasaland, the present Xalawi.
In regard to Rhodesia we said in the Corinter-JIemorial, that js,
towards the end of 1963 when this portion of the Counter-Jlemorial was
written:
"Perhaps the only rernaining instance on the continent of Africa
where a real attempt is stili being made at the creation ofagenuine
multi-racial community on a basis of artnership between \Vhite
and Black, is Southern Rhodcsia. .. tRe present constitution and
franchise arraiigernents are such as will probably result amajority
of the niembers of the Legislative Assembly being White for some
time to come. But the fact is well known, and has been much
ernphasized, that this process is likely be reversed in favour of an
African rnajority in about15 years' time-i.e.,if the present arrange-
ments continue in force. There isoverwhelming evidence, liowever,
that this arrangement does not satisfy aiiy African national leader,
whether in or outside Southern Rhodesia." (II p. 470.)
Then we gave a more up to date and thorough review of the history of
the Central Africaii Federation, of which Rhodesia formed a p~rt, of its
break-up and subsequent events in OurRejoinder, V,at pages 231 to 234.
In the course of this Ive said, at page233:
"lt ismanifest that an impasse has been reached in the attempted
integration of the different population groups inSouthern lihodesia
into asingle integrated political unit. Instead of bringing the popula-
tion groups closer together, as had been hoped, the method of
political development advocated by Applicants is now producing
the opposite result." ADDRESS BY hlR. DE VILLIERS 247
The facts in this passage, Mr. President, are of course admitted by the
Applicants, and they are very I-ienvilunderscored by the current errents
and the situation in regard to Southern Rhodesia, upon ïvhich 1 need not
eniarge. 1 need only refer to the threat of leaving the Commonwealth,
of even trade boycotts and so forth, which are levelled at the United
Kingdom Government in regard to this issue of granting independence
to Southern Rhodesia before an African majority has already taken over.
The ivhole situation, hlr. Yresident, was very we1lsurnmed-up by the
noted authoress and expert on Africa, hIrs. Elspeth Husley, in a letter
dated 24 September 1963,ivhich we quote in our Kejoinder,V, at page384.
She writes :
"Alas, mubi-racialism is dead beyonclhope of revivaand there can
be no shaving of pozoer,only seizecreof it. Ifthe whites relinquish
theirgrip then the black rnajoritjr will take as jn Kenya-and as
blacks, African racialists, not as so-called 'civilized men' rneasuring
up to some comrnon 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 earthof Africa and
everything that's in it, and this they mean to Iiave. lihethcr we
think this 'reasonable' or not is beside the point. It is no good going
on trying to ride a dead horse."
Now, hIr. President, that this phenornenon just described applies to
South West Africa as much as to other parts of Africa appears very
clearly from passages which wii cited from statementç by petitioners to
the United Nations, and to which I am not going to refer again noïv, and
also from the evidence of Mr. Dahlmann. 1-lewas asked in croçs-esamina-
tion whether he had encountered Natives in South \tiest Africa whorn he
regarded <as sufficiently mature and sophisticated to participate in the
political lifofthe Territory, and we find his reply ithe verbatim record,
XI, at page 485. I-Iesaid :
"Yes. 1 must sav Tcould think of a few nolitical leaders who wouid
be capable, 1 wouid say, to sit in the l-egtçiative Assembly of South
West Africa."
Thcn he mentioncd a few exarriples, and he proceeded:
". ..but the greatest difficiilty 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 orily accept majority rule-
that means one man, one vote-nothing Icssand they are so dedica-
ted to their own nation or to their own group and to grouployalty that
they do not think of this qualified franchise. On the other hand,
their respective nations or groups would regard them as trnitors.
I might mention one nanle again, and that was Kozonguizi; and
Kozonguizi is of course for multi-racinlism and against group loy-
alties and tribalism in any form,-but he is even more outspoken
against participation within,if Imay Say so, White-led parliament,
andhe went so far as to Say that he is against any sort of co-opera-
tion with the White liberals within the Territory."
So, hlr. President, it is clear that any attcmpt at a gradua1 creation
of a multi-racial political organizatioisdoomed to failure.The African
Nationalists do not want it except, perhaps, that they rnay takc itas a248 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 cIear that no esperiment along these lines has ever
succecded, or has ever shown any signs of succcss. That is the attitude
that has manifestcd itself from the Africanside.
Now, as far as the White population içconcerned, Mr. President, we
find the following evidence of air. CillieX,nat page 516:
"... every sci-caIled middle-of-the-road policy, every policy that
suggests giving limited rights to these various groups inside one
political structure, does raise fcars immediatcly that the end of
thispoiicy is a position of one man, one vote, and that once you
start, there isno 10 ical, and indeed no practical, stopping place
short of universal s%rage".
1 may interpose again, MT. President, the situation in Rhodesia which
so forcibly emphasizes this.
It is, consequently, in these circurnstances predictablthat any form
of qualified francliise 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 wouid press for acontinual lowering or abolition
of the franchise qualificationsAnd the end of the road could only be
one man, one vote, and sooner rather than later.
Now, hlr. President, what would the effect he of the introduction
of universal adult suffrage in one political organization? What would
the effect be on the well-being and the progress of the inhabitants of
South West Africn, whether it occurs now or reasonably soon at the
end of such a middle-of-the-road policy?
A reference may approyriately in this respect be made, Mr. President,
to events in other similar countries or territoriesinAfrica and in the
rest ofthe worId. ilTedeal in our pIeadings aIso with such matters and
the facts we state there appear to be entirely accepted.
In the Rejoindei-,V, at page 194, me referred to-
". ..the generally observable fact that there urs fieoples and groups
(nafions or entbryo nations) which are /ora16practical perrposesnot
assimilable,theone by the other, because of unwilling.aess to becorne
assimilated. 'Hiesame psychological, emotional or cultural attributes
which prevent assimilation, frequently result in a situation in which
the groups concerned cannot govern oae counlvy joidly in a manner
which zsfairand acceplableto botlzal1of them-the uderlying reason
being ?sotlkalone is sztperim ad theother(s) inferior, but siînply
thut the di#erences betweeîzlhem are toogreat."
Applying this observation, more particularly to Africa. we said at
page 198: "\i%ere deep-seated tribal, racial or ethnic 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 totheesa~nple of Rwanda which isdealt ivith in the Kejoinder.
V, at pages 221-223, the case of the Sudan, V, pages224-226, the Congo
(Leopoldville),V, pages 205-207, and, outside of Africa, we could refer
to the cases of Iridia and l'akistan, dealt with at pages 235-236, V,
and of Cyprus, dealt with at pages 237-235 V,.All thesc facts, Mr. Presi-
dent, arc now covered by the Applicants' admission, and, indeed, we ADDRESS BY MI{. DE VILLIERS 249
believe that they have been set out in such a way in regard to matters
which are fair111generally known, that there can really be no disputing
of any ofthose facts.
A further feature which has coinmonIy followed on the grnnt of
independence to .ilfrican States, apart from thesc cases of utter chaos,
bloodshed and so forth-a feature which haç 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-Memorial, II, at page 455, and again in the Kejoinder, V, at
pages go-rgr, and pages 199-zoo.
Insome cases, as mepointed out, this tendency appears to be stirnulated
by the need to overcome the difficulties created by ethnic diversity and,
as it were, to stifle them from above, or to keep them in control by
sheer force. But, be that as itmay, dernocracy in the western sense bas
had a rather rough passage in these territories in Africa-in independent
Africa. This has often been to the detriment of opposition parties, what-
ever their colour, whether they be White, Black, Brown, Africnn or
Asiatic.
In addition, Xr. President, Ive pointed out and uredealt quite esten-
sively with the phenomenon of precipitate "Africanization" of the civil
service in many of these territories and the consequent lowering of
standards in them. 1 do not need to enlarge upon that. The Court will
find the references in the Counter-Memorial, II, at pages 455-456, and
in the Rejoinder, V, at pages 187-189.
Al1these tendencies, Mr. President, are facts, and they are admitted
facts and indisputable facts. So, if we take them into account, the
ovenvheIming liki:lihood, in our submission, is thnt the introduction of
universal adult suffrage in South West Africa would lead to inter-group
rivairy and, possibly, clashes, or it would lead to s strong centralized
rule by one group or by a dictatorial clique from sucha group. Africani-
zation would be the policy in the civil servicewith the resultânt decline
in the standards of administration.
Now, in other parts of Africa, this synclrome has lecltoan evaciiation
of Europeans, as we point out in the Counter-Mernorial, II, at page 454,
and the Rejoinder, V, at pages 188-189 and 200-201. At page ZOO 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 tievelopment of black despotisms .. . have
induccd many White people to depart."
This again forms part of the admitted facts, the inclisputable facts.
But, Mr. President, as BIr. Cillie pointed out, and aç 1 tried to point
out to the Court earlier this morning, the situation of the European
population, not only in South Africa, but also iti 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 511:
". ..The Afrikaners, by being cut off frorn their original Dutch
horneland, ceased to be colonials-colons-more than a century and
a half ago, and thosc European people who came later during the
time of British rule are now largely falling in with that view, the
basic view that we are there to stay as a White African nation, a3d
in the second place that we are there to stay with full control of our25O SOUTH WEST AFIIIC.-I
destiny as a nation. By that 1mean that colonial minorities tend to
hold on as long as possible,and then they abdicnte, or they depnrt
under the usual anti-colonial pressures; but a nation cannot do
that-by its very nature it cannot do that; a nation has to defend
its freedom and its nght to self-determination to tlie very last and,
even if beaten down by superiorforce, it has this inner compulsion
to start its struggle for freedom al1ovcr again."
Itis against this background, Mr. President, that the experts whom
Ive called. expressed an opinion as to the probable effect of applying
the Applicants' suggested norm in South West Africa in the political
sphere.
The first expertwas Professor Bruww. My learned friend, Mr. Muller,
haç dealt with his outstanding qualifications to speak on the subject
and 1 need not refer to those again. After explaining the composition of
the population and the measures of differential allotment of rightsand
duties and so forth which are found necessary in the Territory, Professor
Bruwer was asked this at X, page 264:
"WiII you state your opinion as to what the effect would be if
the present measures oi differentiation on the basis of membership
in a group were to be done away \vith?"
and his answer reads as follows at page 265:
"Mr. President. prediction is naturally based 011opinion. 1 have
quoted certain, what to my opinion are, advantages of a certain
approach, having inniind the situation as 1know it andas 1interpret
it. Bow, Mr. President, naturally ifyou do away with this system
at a specific moment, or let us say mornentarily, you discard an
approach that has been going on not oiily during the period of the
Mandate, but long before that. If you discard that, Mr. President,
then naturally all the advantages that 1 have explained as being
my opinion, \\ildisappear. In practice al1 the essential measures of
protection will fa11away. There would be no protection of land rights,
there could bi: no protection of language rights, 1 am afraid; now
what can be then the predictable consequences of something like
that?
hIr. President, if we had to take as an esample what happened
and did happen in the previous century, then one would immediately
Say that there wouId be a violation of rights, or assumed rights,
and such violation wauld undoubtedly lead to friction, and perliaps
even more than friction, perhaps even struggle; but there is also
this other predictable consequence, &Ir.President, and that is that
one will destroy that tvhich 1have pleaded for as being the achieve-
ment by people themselves, and 1 do not think . . ."
May 1interpose there: speaking of the achievement by the people tbem-
selves, the Court will recall that Professor Bruwer stressed particularly
the achievement by the various non-ifhite peoples themselves. 1 proceed
with the quotation:
". .. and 1 do not think that I would ever be able to agree to an
approach where one destroys a people even through other than
physical mearis, Mr. President; bu't as far as South West Africa is
concerned, 1 also think that the one group, either on the basis of ADDRESS BY YR. DE VI1,LIERS 2jI
numbers or on the basis of economic strength, will undoubtedly
dominate the other group ifyou have not got protective measures;
and 1also think, Mr. Presidcnt, that one can saythat if you have now
to start a novel or a new system, an alien system, you will vcry
definitely retard the process of evolutionary development that has
been going on for the las40 years approximately after the assump-
tion of the RIandate".
Now, to revcrt to Mr. CilIjc,ivho gave evjdence specifically on the
political issues, his qualifications have also been dealt with and thcy
are beyond any question. He esplained how the policy of separnte
developrnent had its origin in the nationaIism of the Afrikaner nation.
The feature of nationalism he regarded as basic to the political scene
in South Africa alid in South West Africa ancl thus he said, X, at page
512 :
"If you subscribe to a credo of nationalis or anti-colonialism,
ÿou cannot stop short at championing the freedoms and the rights
ofthose whom you regard as your own group."
That was then, in his opinion, one of the main determinants of the
policy of separate development ris it had developed in southern Africa,
a policy whereby al1groups were to be encouraged to develop their
own national identities.
When he was asked to express a view about the effect upon the
prospective welI-beiiig and progresç of the inhabitants of South \Vest
Africa of political pressures from outside the country, Mr. Cillie said
this, at page 525,X, of the record:
"These pressures have, in m view, been increasingly directed
to the main purpose of making zouth Africa itself, and South West
Africa, conform to thisstandard ofone man, one vote-this standard
of universal adult suffrage. It was niy 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 partof the country
itself, there wouldbe no valid reason for refusing to do so at home. This
ccrtainly would, and does, create theutmost resistance and fhc nf-
most resolution in the White population of South Africa to resist al1
these pressures.
inen appIied 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 1 be1ii:ve forrn about45 per cent. of the total population.
On the basis ofone man, one vote,their numerical preponderance
could be esptoited by ruthless and ambitious men to subject al1
the other groups to Ovambo rule. Not only would the Mihites be
submerged, and they are going to form for a very long timo 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
tribes of theICaokoveld would be submerged. Thirdly, you,are going
to submerge the most highly developed of al1the non-l\hite groups
which are, Ithink, the Coloured people of South West Africa and the
distinctive Rehoboth people. It means to these people, as it nieans252 SOUTH WEST rlFRlCA
to the Whites, that they are being forced to commit a form of
national suicitle and that prospecevokes al1the forces of resistance
that you would espect in any nation in similar circumstances."
That quotation recalls forcibly the evidence given by Professor van den
Haag upori the situation which as a general principle emerges-the
tensions which enicrge-when one group feels itself or its identity, or
its continued existence, threatened by another.
h further question was put to Air. Cillias to whether the resistance
mentioned by him would corne from White people only, and his reply
was :
"No, 1don'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 al1minority groups inSouth 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
minorities, say in the name of their blackness, or in the name of
their non-whiteness, or what you uill. I think the resistance will
not be confincd to the IVhite people only." (X, p.525.)
1 took the liberty, in reading, to correct an obvious rnistake in the
phrase "preponderant-should be-majority" and inthe text it reads
"minority". 1 am quitesiire that hlr. Cillie will probably have corrected
that.
In the result, hlr. Yresident, Mr. CiIlie 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-White peoples into self-respecting
and self-governing organic entities". That is inX, at page 517.
hlr. Cillie's evidence was summed up succinctly in cross-examination
in certain passages, the first one of ïvhich occurs at X, page 546, and
to begin 1 quote a question by my learned friend,Mr. Gross:
"Do you favour the introduction of methods of suffrage which
might lead eventually to elections by universal adult suffrage?
UTouldthat be compatible with the policy of apartheid or separate
development ? "
Mr. Ciilie replie:
"Well, universal adult suffrage is quite compatible with the policy
of apartheid as long as you define the group in which this voting
power operates."
Mr. Gross:
"May 1 define it for you, Sir, so that you can answmy question
briefly and responsively? 1 define the group as al1 those who may
be deterrnined to be qualified in a geographical area specificaily
in this caseSouth IVest Africa?"
Mr. Cillie replied: "And you are asking my opinion on that as a
prospect for Soutl.1West Africa?"
Mr. Gross: "Yes, Sir, that is al11am talking about, Sir."
Mr. Cillie: "It would mean chaos."
The cross-examination continued in a similar vein up to the bottom ADDRESS BY hiR. DE VILLIERS 2j3
of page 547 and there is just one brief passage there which 1 should
like to read to the Court. hfy 1r:arnedfriend, Mr.Gross, asked:
"Would the educativc measures prepare the population for the
adoption of universal suffrage? i'lJouldthat be compatible rvith
the situation in South kirest Africa?"
Rlr. Cillie replied :
"1 do not see how education is going to rnake an Hercro less
of an Herero. It is going to make hirn more of an Herero and that
goes for an Ovambo too and for al1 the peoples of South West
Africa."
Again, this was so clearly supported by the expert testirnony of other
witnesses like Professor Logan and Professor van den Haag.
In addition to hlr.Citlie and Professor Bruwer, we may also make
a reference to geiieral opinions espressed by men like Dr. Eiselen and
Professor Logan, opinions which are also apposite to the political life
of the country, because 1 cannot emphasize enough that the political
aspect is the crucial, the kernel, aspect of al1this-thmain dcterminant
of the happincss and the prosperity of the particulas community. These
general opinions espressed by Professor 13ruwer,Dr. Eiselen and Professor
Logan, were referred to by niy learned fnend, 3Ir. biuller, and will
again be referred to under other topics such as education or economy,
and consequently 1 shall not quote them here, but 1 merely wish to
ask the Court to bear them in rnind also for thcir bearing on the political
issues.
Mt. President, there we have the picture painted by these experts
on the basis of uridisputed facts-really indisputable facts.Apart from
al1these possibiljties mentioned of complete disruption, bloodshed, chaos,
what would the result be on the situation of the least developed and
the most developed groups in the country, being al1 rninorities in that
country? May 1 refer to two of the very artifical aspects that would
result from the application ofthe norm and the standards in the political
sphere, aswe understand that norm andthose standards. Werefer to them
in Our pleadings, and I mercly wish to refer to them very briefly now.
If we take thc preponderant position of the Ovambos in regard to
numbers, it means not only that they woiild, in this suggested takeover
on a basis of one man one vote. rule over other groups, it means also
that they would geographically rule over the whole of South West
Africa-and the Ovambo nation have never had aspirations of aggrandize-
ment of that kintl. The Ovambo nation have alwnys been vcry happy
and very satisfied to Iive in the northern part of South West Africa,
which is Ovamboland. They only have the cornplaint of the kind which
Dr. Eiselen mentioned becaust: the colonial Powers went and drew a
line in the rnidst of their territory, so as to place sorne of them in South
West Africa ancl 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 Ovanlbos to rule any other country than theirolrn.
Yet, here they would, as it were, have colonialism thrust upon them-
doniination of other groups and other territories not their own.
Thc case of the Eastern Caprivi peoples affords another example of
the complete artificiality of this approach. As described in the pleadings,
the Court \vit1recall, and these facts are admitted. they are completely254 SOUTH WEST AFRICA
isolated geographically, ethnically and otherwise from the other ~ieoples
of South West Africa; they have no form of contact with one aiiother.
They have ethnic relationships with the peoples of Bechuanaland, and
again, over the river, with the peoples of Za~nbia. And, Jlr. President,
according to the approach of separate development, these peoples are,
whcn they achieve their stage of maturity, to decide upon their own
destiny-they may decide whether they want to becorne an independent
territory, they may decide whether they want to link up, Say, with
Zambia or with Bechuanaland, or partly with one, or partly uritiithe
other-that is part of tlie outcomc of the approach of separate cle\+elop-
ment. But, Mr. President, on the basis of the approach of non-discrirn-
ination and non-separation, with which we are dealing-non-ethnic
differentiation-that freedom isnot to be ailowed, eveii when they
reach that stage of development, to the peoples of the Eastern Caprivi.
If the majority in South West Africa should decide, if the O\*ambos
should decide, that they stay a part of South West Africa, theri they
stay a part of South West Africa,and then they are ruled by theOï.arnbos
or whoever may have the sway in such an independent South \\'est
Africa.
Kow, Air. President, let us see what the Applicants' renction \vas
to the evidence wliich was given by the experts.
\Ve noted that al1 these experts testify that in their vie\\, 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 espected the Applicants to adopt
one of two courses-those to whicli1 referred yesterday. The one course
they could adopt, was that this evidence was entirely irrelevant and
therefore required no cross-euamination at all, on the basis that the
organized international cornmunity had spoken, and that the actual
benefit or the detriment caused by the Respondent's policies or by the
application of the norm would not matter but, Mr. President, as we
pointed out, tliis attitude was consistently adopted only in so far as
Ur. Eiselen was conccrned, and thereafter tve had cross-enamination
of the various witiiesses.
Once it was decided to cross-examine, one would have expected the
Applicants to attempt to break down the witnesses' testirnony in these
crucial respects-in otlier words, to establish that a differential allotment
of rights, burdens, and soorth, indeed necessarily gave rise to undesirable
consequences for the well-being and progress of the peoples concerned.
And one would have expected thern to endeavour to demonstrate that
the abolition of sucli diffcrential allotment would necessari]? promote
well-being. 13ut, Ali-.President, this the Applicants did not in the least
attcmpt to do. Instead, they limited themselves on the whole to crit-
icizing certain limited aspects of Respondent's policies, including aspects
without any apparent relationship to the content of the norrn or the
standards. 1give some esamples without reading from the records but
merely by way of refcrence to the records.
Professor Bruwi:r was cross-examined, amongst others. on the mem-
bership of the Odendaal Commission-that we find in the verbatim
record, X, at page 267, and foltowing-and he was questionet-1on the
census classification between the various population groups, at pages272
and the following; he was questioned about what was meant by the
phrase ". ..absorbed in the econorny .. ."-that we find at pages Zjj ADDREÇS BY MR. RE VILLIERS 255
and the followjng; about changes in the boundary of the Police Zone,
at pages 280 and the following; and then about job reservation, at
pages 282 and tlii: following.
Mr. Ciilie nas cross-esamined 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 meaniiig of "trusteeship", at pages 529 and
the following.
JIr. President, 1 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-esamination would, for the reasons 1 have
just given, appear to be irrelevant to their case-to the case which
they called upon us to meet. We are in the dark as to wliat the purposc
reaiiy was whicli was intended to be achieved by this form of cross-
esamination; possiblp we shall have some esphnation later, and if we
do have the explanation there will be opportunity for us to deaI with
that at a later stage.
From our point of view, as 1pointed out at the beginning, the evidence
was ied to establish that implementation of the norm or standards
would, in many instances. be detrimental to well-being and progress-
that it would, indeed, over-aii, for the general well-being and progress
of the population, be detrimental. And it seems clear, Mr. President,
that the Applicants did not eveii attcmpt to attack our evidence an
that hasis. At the most, thep attempted to show that certain specific
measures were not justified-not justified 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 Respontient's policies.
Now, hlr. President, let us jiist have a looat these two aspects and,
firstly, atthe suggestion that particular rneaures ivere not justified. As
1 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 aiIotment of rights,
obligations, and so forth, on the basis of membership in a group or
claçs or race, then the whole of the Respondent's policy is in conflict
with the Mandate, and each and every measure lvhich contains that
differentiation is inconflictwith the Mandate. There woiild, therefore,
on this criterion be no basis for saying that the policy as a wkole is
perfectly legitimate, but individual measures are to be rcgarded as being
in conflict with the Mandate. So, if individual measures were to be
tested it would have to be on a different criterion.In the first place,
no such different critcrion was taken 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 even such as would serve as a basis for a court of law to come to
3.concIusion about, in a process of testing the validity of measures,
because they refcrred in general to aspects or criteria of policy-aspects
of criteria of an economic nature, of a social nature, of a moral nature,
and so forth-where there may or may not be clifference of opinionin
a pnrticular respect, and where no account is taken whatsoever of the
discretionary nature of the 5Ialidatory's task which was entruçted to it.
We have, as 1 said yestcrda.~, not essayed the task of following up ADDRESS SY MR. DE VILLlERS 257
Court's task to make a determination of that kind in regard to policy.
NTernay have had to essay a task of that kind for the purposes of the
case originally bi-ought by the Applicants-the case of deliberate op-
pression-but again thc necessity of that fell away with the change in
the Applicants' case. So, Mr. :President, we are, with what are left, as
the issues bet~veen the Parties before this Court for adjudication, not
concerned with this factor of a certain arnount of detriment to inclivid-
uals. That, in itself, means nothing. It certainly does not weigh up against
the preponderant weight of the iindisputed and uncontested evidence
that, taken as a whole and in the over-ail bearing upon the well-being
and progress of the population, the results of the application of thc
norm or standards would definitely be chaotically detrimental and that
the only alternative wouId be the policy of separate development.
To sumrnarize, then, Mr. President, the Applicants criticized some
points of policy. l'heir criticism rnay or may not beustified on the basis
of some undefined criteria, and critcria not formirigpart 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 bcen preferable.Arrd 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-al1 effect, the measures which contravene thenorm or standards
defined at page 493, IV,of the Reply are, or must necessarily be, harm-
ful.Ie therefore, Mr. Presiderit, still wait with iiiterest for their com-
ment on this evidencc.
Noiv, Mr. President, the last aspect of the political field: ivsubmit
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, consequently, also established that
sorne system involving a diffcrential allotment of rights, duties and
burdens, etc., in the political field would be necessnry. In Our pleadings,
asalso in the evidence, there was some discussion of the method whereby
we consider this can best be done on the basis, therefore, of the policy
of separate development.
We have not, in these Oral Proceedings, attempted to define in detail
a political programme for the Court's approval or otherwise. Indeed,
hlr. President, that would have been completely inappropriate. If,as
we submit,the Court is satisfiecl that officia1ethnic 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 Kespon-
dent Government-the policy of building forth constructively on the
basis of separate development. 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 policiesinthe political sphere
really entai1 in order to provida a more tangible illustration of the real
matter which is at issue here.One can only, in these rnattersbe realistic,
as 1 Say, when ont: weighs practicable alternatives against one another.
The Rcspondent Government.'~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. 1read from IV, page 213: "The Government wishes to state clearly once again that its
general attitudc, . ..inter alia,involves agreement with the Com-
mission's finding that the objective of self-determination for the
I-arious population groups will, in the circumstances prevailing in
the Territory, not be promoted bu 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 sclf-determination and self-realization."
Mr. President, in our pleadings, the Counter-filernorial, 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
WC 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 espositions must now be taken
to have been adrnitted by thern by reason of their general admission
of factual averments.
Now, 3lr. President, it may of course be a matter of opinion or pre-
diction ~vhether certain benefits or advantages will, or will not. in fact
accrue under any policy. That may be so as farasthe future is concerned
but those that have already manifested themselves and have already
accrued, they are facts. It is further, blr. President, certainla fact that
these future benefits and advantages, as envisaged, are indeed expected
to accrue. It isafact that the policy has been 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 faras 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 lvhich we have
expressed, on which we have relied and in support of which we have
called in expert testimony.
In any event. hfr. President, as Mr. Cillie emphasizcd so forcibly to
the Court,if,in particular respects, aswe gointo the future,it is observed
that certain expectations are not realized, then it would be nccessary 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 lvhich is to be
applied in each one of its details as a rule of thumb,as a law of the hledes
and the Yersians, in respect of cvery aspect of futurc developrrient. It
is a broad pattern. itis a broad ideal, but it Ilasbeen taken out of the
sphere of mere idealism and it is brought into the practical sphere of
actual implernentation-to the stages of advancement as has been de-
scribed in the pleadings.
Now then, let ils look at the advantages, hlr. President, wliich the
Respondent sees in the policy. They are convenientlp summarized in the
Rejoinder, V, at ages 244-246.The summary, &Ir.President, is a fairly
long one and, if frecall mrrectly, 1 think 1 read it out to the Court on
. a previous occasion. 1 do not intend to do so again, naw, but 1 should
iike, with respect, to submit it to the Court for reading.
1should like to refer only to one or t~~oaspects thereof and put before
the Court brief quotations in that respect. Throughout the exposition
here there is this weighing of the only two practicable alternativcs- ADDRESS BY hlR. DE VILI.IERS 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 1just reüd some portion of the initial aspects of the surnmary
and then corne to the final co~iclusionat the end?
At page 24.4 the surnmary commences as follows:
"(a) Separate development is nr>ta policy of domination, but the
very antithesis thereof-it contemplatcs evolutionary termi-
nation of gunrdianship in amanner cnlculated to lead to peace-
ful CO-existence. Atternpted integration, on the other hand,
must, in the circurnstances prevailing in South West Africa,
inevitably lead, at least, to domination of some groups by
others.
(6) The aim of separate devclopment is justice for al], not only
for some. It seeks to avoid a situation where the exercise of
self-determination hy some of the inhabitants would involve
the denial of self-determination to others." (V,pp. 244-245.)
And so it proceeds. It will suffice fomy purposes to read the very brief
description found at page 246, which says this:
"111 short, separüte development is intended and calculated,
negatively, tu avoid the Iiuman tragedies ivhich have occurretl, and
are occurring, in hfrican territories such as the Congo, the Sudan,
Rwanda, and others, as \vell as in the systems of ruthless dictator-
ship found necessnry in so manv other territories with a view to
maintaining even a semblancc of order. Positively, separate devel-
oprnent envisages the establishment of a system of peaceful and
friendly CO-existence, based on mutual respect for one another's
identity, culture, rjght to existence and human dignity, coupled
with fruitful CO-operationin matters of common concern. Atternpted
intcgrntion, on the other hand. involvcs inevitable injustice to
minority groups-the highcst and the lenst developed ones-inevi-
table retrogression in standards of economy and administration,
and a very high degree of probability of 3.repetition ofthe human
tragedies of other territoi-ies, or ruthless dictatorial rule, or both."
One very important aspect to bear in minci, and this is of course a
fact, isthat the $urfiose of scpsratc developnient ista 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, orany
other stage, to forecast what esactly the ultimate pattern in the political
or economic life of South IVeçt iifrica or South Africa will be. This is
inevitably so, because that exact pattern will depend upon arrangements
or agreements whicb will havi: 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 maturitj. ii'hat is envisaged is that there is
not to be superimposed upon peoples whicli have not yet reached matu-
rity,a systern 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 isto be avoided. 'They are to be given the opportunity
when they reach maturity of saying: "Now, we see Ourfuture as foilows,
and we shall try hy agreement with the others tomap out a course tvh~ch
\rVillsatisfp our sense of self-determination and self-realization." Aïr.
Cillie said inthisrespect in the verbatlm record, at X, page 520:260 SOUTH WEST AFRICA
". . . obviously the extended form of future CO-operationhas 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 bear in mind that thc principle is acknow-
ledged, and it is sti.essed asa principle and as a purpose-that of self-
determination leading, if a particular group rnay so wish, to complete
independence for that group; leading, if it rnay ço wish, to some forni
of arrangement that may be entered into with a view to CO-operation.
As far as CO-operation bctween groups is concerned, various modefs
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-eïarni-
nation and also some questioning by hIembers of the Court as to the
ultimate result of the policy of separate development. However, for the
reasons 1have mentioned, thiç is not a matter which the policy envisages
as one which will be or will rernain under the controI of the Respondent
Government, except of course asone 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 rctain their present significance for ever-even that
seems unlikely, and I can recallin this regard the evidence of Mr. Cillie,
again in the verbatim record at X, page 52r:
" . . . our theoretical thinking goes further than the geographical
frontiers of South West Africa and South Africa ... We arc 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 closely liiikedtu South Africa economically; ive include the
Portuguese Tei-ritories, Southem 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 territories."
These, however, arematters for the future. For the moment the Kespon-
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 passin that there isanother important aspect of
this My learned friend, Mr. &mîs, refened several tirnes incross-exami-
nation to the fact of an expectation that there would still be a fioxving
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 sufiiciently 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 nomr,as it were, one of alrnost international
concern, becomes a legitimate matter to speak about in the various
forms of CO-operation that rnay be devised, and if the Government of, ADDRESS BY MR. DE VILLIERS 261
may IveSay, the Transkei, or a future Ovamboland, or what have you,
should be dissatisfied with the basis upon which labourers from that
territory areaccepted in, shall ive Say, the White part of the country,
be it South Africa or South West Africa, surely that is a matter for
legitirnate discussion, and a matter upon which arrangements could be
made in the same way as that in ~vhichcivilized arrangements are made
between other 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,hlr. Yresident.
I may cmphasize that when we speak of these patterns for the future
it haa often been stressed from the South African point of view that the
idea of a federation imposed beforehand is not favoured, for the trvo
reasons: the one is that one does not want to determine a shape before-
hand, before these various entities have risen to 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 if its merely as between entities. There rnust be some way of com-
ing together, of having some federal structure at the head of it ail or
as some part of it all, and norrnally such a structure then operates on a
majority hasis. And the very purpose of these arrangements of separate
developmet~t is to avoid the stresses and the strains which arise from
the application ofa principle of rnajority in circumstances of inter-group
relationships such as we are dealing with. That is mhy, as hlr. Cillie also
explained, in this future thinking the pattern and the mode1 are very
much favoured of a consultative basis, ofa basis of consensus or agree-
ment, takiiig as a basis, as1have said, models such as a commonwealth
or the Common Market, the form of CO-operation existing tas between
the countries of western Europe.
AS 1 have said, the present is an important practical stage of building
up these various entities, with the support of these groups. And the
methoclswhich are adopted in that respect were sketched in OurCounter-
Mernorial, 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 hy the Applicants, but they havenow
adrnitted themall; and in these passages the Court will see to what estent
the Respondent has already in South Africa graiited powers to Rantu
Authorities, and to what an estent this has led to greater CO-operation
and harmony between the races and the variobs population >groups.
This process has developed furthest in the Transkei, where considerable
local autonomÿ is esercised by a Bantu parliament and cabinet based
on a constitution in which the elective element plays a major role.
[Pziblichearzng of 3 November 19651
Air. President, honousable AIemberç, 1 was dealing at the acljournment
with Illustrative esampleç of what is being done at this particular stage
of application of the poiicy of separate development-the stage whicli
I described to the Court as being one in whicli the Respondent Govern-
ment, with the assistance and support of the indigenous groups of South
Africa and South West Africa, is building up these various groups, these
various communities, to a stage of self-realization, self-determination
and mutual equality. 1was dealing particularly, at the stage when wc262 SOUTH WEST AFRICA
came to the adjournment, with thc development that had taken place in
the case of the Transkei as an illustrative exam le of what is being coii-
ternplated not only in South Africa, but alro in Pouth West Africa, and I
referred to the considerable amount of local autoiiomy now exercised by
a Bantu parliament, a Bantu cabinet, on the basis of a constitution in
which the elective element plays amajor role.
1 should Iike to refer very briefly to somevery significant elcments of
that development. First, tiiere is this relationship between the elective
element in the parliament and what onemight cal1the traditional elemcnt ,,
the element of aristocracy from the traditional systems operating in the
various Hantu conununities, in this particular case in the cornmunities
of the Transkei. The relationship is in reality something like 64 chiefs.
I think, who corne there ex oficio iinto the parliament and 45 eIected
members of that parliament. We dcal in our plcadings with certain facts
which led up to this developrnent and those must now be taken to be
admitted, and we pointed out that this Constitution came about on the
basis of the wishes of the Transkei population itself-thwishes conveyed
to the Rcspondent Government by what was called a Recess Committee
of the previous aiithority there-a committee which was composed of
leading rnembers of thc present Government party in the Transkei as
well as of the present Opposition party in the Transkei. This factor of
the electiveelement )vasone of the few on which the Respondent Govern-
ment took a firm line, notby Ray of trying to force its will upon the
representatives of the Transkei, but by way of suggestion. The original
proposa1 from the side of the Recess Committee-dealt with in the
Rejoinder, V, pages ~~I-~zs-w~s to have 64 chiefs and 30 elected
rnembers, but the Prime Alinister of South Africa suggested that the
elective eIement should be made stronger and as a result thereof, and as
a result of the acceptance of that suggestion, the Recess Committee came
back witli a suggestion of 45 which waç eventually agreed upon.
Imention that, &Ir. President, because it is aIso very important as a
background to an understanding of the proposals of the Odendaai 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 thatisto remain the position. There is no
specific indication, even from the side of the Respondent Government as
yet, that that iwllat is going to be decided upon in each case. The \'hite
Paper, as the Court will know, in general and in principle accepted the
recornmendations of the Odendaal Commission, but these are matters of
detail which were specifically 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.
Thisis an example of proceeding by evolution rather than revolution,
of not discarding the positive vaIues in the traditional system before they
have been completely replaced by other values which have been accepted
as values in. the community, Recognizing the need for bringing in the
dernocratic element in the particular form of suffrage and election, one
at the same time brings in that refom in,as 1 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 VlLLIERS 263
~rhich 1 wish to refer toby way of illustration. is the forms of co-opera-
tioii \ilhich have i:merged between White South Africans and the Bantu
population. In the case of the Transkei, as we have noted, the cabinet
coiisists of a Baiitu prime minister, or Chief hlinister asIie is called, and
several other Bantu ministers. \trhen we come to the civil service we find
that as at thi stage ofdevelopment the permanent head of each depart-
ment, the departmental secretary, is a WhiteSouth African tvho has been
lent, if1may call it that, seconcted 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 officialç irnmediately beIow
these departmental sccretaries are still, at this stage of development,
White South Africans there 011the same basis. Then when we come to
the other positions further on, as high up as one cango at the moment,
there are Uantu officials working their way upwards in these civil service
departmentç. 1 emphasize that that is the situation at this particular
stage ofdevelopment. It is again an example of proceeding by progression.
This is Africanization, too, of the civil service-avery sound principle of
Africanization-but it proceeds again by evolution and not by revolu-
tjon. The idea is that aç the necessary number of qualified officials are
trained and come to the fore tvith the neccssarjrqualifications and with
the necessary experience to take over, they will take over from those
imite officialsThe process is already in operation and it has already
pro~essed up to a certain stage. And in due course there are to be no
White officials left and al1thosc situations are to be filled by the qualified
Bantu. Here again, therefore, is an examplc of achieving a cornmon aim,
but achieving it along methods which are destined to be successful and
not to break dair~nbccause the pace ismade too fast.
The form of CO-operation 1 have mentioned, exists not only in the
administrative spl-iere,it exists also in wha1might call the technological
sphcreç. If one goes to the Transkei one finds a large number of South
' African technological ofiicials, Mr. Pepler's men, assisting in the same
way as the administrative men in the processes of the development of the
Transkei. 1 could give a number of details: esper~mentation on agricul-
tural projects, vnrious other development projects and so forth, where
these people are açsisting 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 rcspect, theri: is the developrnent of the 13antu Invest-
ment Corporation, also dealt with in the pleadings. The idea isto assiçt
thosc members cif the Bantu community tvho corne forward wjth the
necessary initiative, with the necessary basic requirements to çet upsome
industry or some form of trade-to assist them with technical advice in
the task of finding the necessary capital and so forth.
Then there js 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 Africiin Government, not only towards develop-
ment projects, but also even ta the ordinary processes of balancirig the
budget-again, a course of developrnent which is intended to be a
trançitional one, but which certainly has its goal firmly in mind.
Now, Mr. President, that sets an example, and I have only mentioned
certain illustrati~re aspects of the example. It is very interesting to see
how the peoples of South West Africa thcmselves have reacted .to .that264 SOUTH WEST AFRICA
example. \i'e recall that we pointed out in the Rejoinder, V, pageagr,
that during October 1964:
". .. the whole ~vnmbo nation through itç tribal leaders subrnitted
a written petition to the Prime Minister requesting, interalia, the
implementatioil of the Commission's recornmendations, and partic-
ularly the recomrnendation rclating to the creation of a central
governing body for Ovamboland".
Mr. Dahlmann, the Court will recall, 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 thiç touring group included not only Ovambos, it included leading
members of al1the other indigenous communities in South West Africa.
Rlr. DahImann proceeded to testify about a request from 145 teachers,
ministers and nurses of the Kuanyama tribe, the largest tribe in Ovambo-
Iand, 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 adrnitted because there waç no denial placed on record. We
said :
"... excepting the meeting in the Kaokoveld [lvhich 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, Le., the Chiefs and Headmen who were consulted,
and the majority of their foIlowers, was ovenvhelmingly in favour
of the Commission's recommendations". (V, p. 290.)
If the Odendaal Commission reports were implementedwith or without
modifications in detail, 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 depend to a large measure upon the efforts, upon the
reactions, and upoii the rate of progress shown by the particular com-
munity itself. But the end result in principle must be that al1 groupç
should be in a position to determine for themselves what their future role
in southern Africa would be, on a basis of mutual equality. Lie, therefore,
if1 may use a phrase previously used in an articleby Dr. Eiselen, have a
situation of harmonious multi-community development-it is a process
rnoving towards an end product of constructive CO-operation between
equals.
In this caseby way of cross-esamination, anything else offered to the
Court of an evidential or factual nature from the side of the Respondents
haç 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 realilies
of the situation, and, in that respect particularly, it standsin 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 norm and the standards suggested by the Applicants in the
political sphere. ADIIRESS BY MK. DE VILLIERS z65
That, Rlr. President, concludes my consideration of the political
sphere, as such, but thcre is a relnted subject, also taken up in the
Applicants' catalogue, to which I should like to devote very brief atten-
tion-very brief, because its importance has now, in the light of the
developments ofthe issues before the Court, corne to be of a subsidiary
nature entirely. 'ïhat is the sphereof rights of residence and freedom of
rnovement.
The Court will recall that, at 1, pages144-152 of,the Memorials, the
Applicants set outa nurnber of 1ai.vand regulations dich, according to
them, detrimentally affected three things-the rights of residence, the
freedom of movement, and the security of the person of indigenouç
inhabitants of the Territory. Dmiiig the course of setting out their
catalogue of laws, and so forth, for purposes of illustrating the a plication
of their norm or standards, on17 May the Applicants said, at 1x,page 2go
of that verbatim record:
"At pages 144 through 1j2 of the Memorials (1), the Applicants
have set out a series of laws and regulations and officia1methods
and measures by which they are carried out with regard to the civil
lives of the inhabitants ofthe territory and which, the Applicants
respectfully subrnit, constitute pese violations of the international
legal norm of non-discrimination and of non-separation and the
international standards covering the same subject, having precisely
the sarne content."
'TheApplicants then proceeded to enurnerate at page 290 what they
terrned "~Ilustrative examples of the laws, regulations and officia1
measures and methods in question", pertaining to this sphere.
Now, the first important feat:ure to note from that enurneration is that
it did not any longer include any laws, or aspects of laws, on which the
Applicants had previously relied in their Alemorials, relative to the
question of security of the person. That subject seems to have fallen out
of tlie picture, and it was almost necessanly so in view of the change of
the Applicants' case, Mr. Presiiient, 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 person, wasan attack alieging
cornplete arbitrarinessin the legal provisions in question. In other words,
it invited a fnctual investigation into the question whether those provi-
sions were indeed arbitrary or whether they were not, and the Court will
recallho~v wc set out very copiously and fully in Ourpleadings the reasons
why those rules and regulations and lawswere there, pointing out that they
were anything but arbitrary.
So that, 3lr. President, in the light of the issue as now before the Court,
dealing witlithe question whetlier thcreis to be officia1ethnidifferentia-
tion or officia1ethnic non-differentiation, it is quite evident that this
aspect relating to security of the person fiersewould have fallen out of
the picture. Tt concerns mostly, as the Court will recall, questions such
as powers of arrest-in some cases without warrant-and cases of that
nature, forming subçidiary parts of regulatory statutes dealing with
generaI subjects in the interests of the community as a whole.
Bow, we are left, therefore, with the enumerative catalogue with
respect to the other ttvo subjects-freedom of movement and rights of
residence. And ure find that the catalogue included pas laws, statutory
machinery deçigned to control the influx of Natives to urban and con-266 SOUTH WEST AFRICA
trolied 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 egressfrom the Territory. 1 mention these as examples; 1do
not think 1have given each one of them, but Ithink these examples mil1
suffice for the purposes of what it is necessary for us to say about this
aspect of the matter, because itiç not our purpuse to deal with each and
every one of these laws and measures, for reasons which 1 have explainecl
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
official ethnic differentiation or non-difîerentiationand if we were to
apply that thcn every 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 shalltest theçe conseqnences on undisputed fact and nrith
illustrative reference to someof the laws, measures, and so forth, talcen
up in the catalogue.
Now, Mr. Yresident, let us first understand clearly what the Appli-
cants' case would logically amount to on the application of the norm and
the standards in this particular sphere. The Applicants say here, as
elsewhere, that the laws and measures in question are per se violations of
their norm and standards. Now again, as 1 pointed out before, although
the Applicants did not rely upon restrictions imposed upon White or
Coloured residents of the Territoryinthis sphere, and, as inother spheres,
it must follow as a matter of logic from an application of the suggested
norm and standards that: these meaçures, restricting rjghts of White
persons and Coloured persons, would abo violate the suggestcd norm
and the suggested standards.
LVeset out in our Counter-Mernorial, III,at pages 308-310, and again
at pages 311-312,a number of exam les of these laws and of this aspect
of the la~vspertaining 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 areawithout a
permit, affecting tliereforeboth the residence aspect and the movement
aspect. It follo\vs, therefore, BIr. l'resident, that on application of the
Applicantç' suggested norm and standards to South West Africa al1
these restrictions which protect the residential rightsof specific groups
in specific areas would have to be abolished. And so, Ovamboland \vould
have to be thrown open to members of other groups, including the
Hereros and the White group. notwithstanding the very cornpelling
reaçons which we advanced in the Counter-Mernorial, III, at pages 240-
246, for protecting the residential rights of Native groups, including the
Ovambo, against such encroachcnt.
The Court will recall that this was a subject which came up con-
tinudly also in the evidence and particularly in the cross-esamination
of various witnesses who, when referred to limitations placed upon indi-
vidual pcrsons in the Police Zone in the White area, referred to those as
being onIy part of a total system which, asits counterpart or as another
part thereof, had also this feature, this very important feature. The ADDRESS BY AIR. DE VILLIERS 267
Court might recall the vivid description given by Profeçsor Logan of a
IVhite farmer on a drought-stricken farm who \\-ould yearn for the O por-
tunity of havin5 a farm ready for irrigation in the Okavango, but t ae is
not for him; it 1sfor the Okavango people.
So, >Ir. Yresident, in the final analysis, the application of the ilppli-
cants' norm or standards would invoIve that the Territory should be
trented as a single, integrated unit,also for the purpoçes of this partic-
ular splzere whicli 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 poliiical arrangements of the Territory, would
be to invite chaos; that in order to provide a general politicai çystern
ïvhich may have the least chances of success it is necessary to differen-
tiate-it is necessary to çeparate.
Xow, Air. President, once one has corne to that conclusion, thcn surely
what is at issue in the sphere nolv under discussion must follow as a
matter of course. If one decides on a policy of attempting to intcgrate
tlic various people, the various members of the population of South
West rlfrica, into one integrated unit, then one makes one's laws and
regulntions with that end result in view. If, however, one envisages
development 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 prodiict in
rni~id.If it is perrnissible internationally, and quite natural internation-
ally, for States living in close proximity to one another to make provision
for rnatters such asvisas, pasçports,pcrmits, restrictiu opon certain
things that aliens rnav or may not do when coming into a territory
and sa forth, then it is perfectly natural to do it, if there is suficient
renson for it,in the circumstances of South West Africa, wherc there
is aii evolutionary deve1oprnerit towards that end product and where,
in fact, one cornes from an historical background which involves that
separation-which involves that differentiation. Therefore, Bir. Yresident,
~t 1sperfectiy natural that ont:shauld have tlieseancillary regulations
as soon as one decides upon that basic structure of the future society.
So Iet us now then, on that basis, have a look, a closer look, at the
concrete conçequences of applying the Applicants' suggested norm and
standards in particular aspects of the sphere now under diçcussion.
In the Counter-Nemorial, III, at page 279, and the following pages,
we set out the basic considerations which underlie Respondent's policy
of influx control into urbnn areas. \Ve deaIt, Mr. President, with that
situation in respect of South Africa itself, with mhat experience had
learnt and had dictated in South Africa. We dealt with it alsa with
reference to devcloping situations in South \l'est Africa itself and we
dealt with it with reference to tlie situation in a number of other countries,
particularly in Africa, whcre similar or the sarne probIems arose and
~i~licrethe need for regulation became apparent and resulted in fact in
regulation of the situation.
JIr, President, those again form part of the undisputed facts of record
as the? stand now.
IVc did not spi:cifically calan 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 cfeal with
itforther by wajr of expert testimony, but we could ha\ve callcd many268 SOUTH WEST AFRlCA
men of standing with the practical experience of thiç situation insouthern
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
çerious problem, ?;ou 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 citieç because of the allurement-because
of the lure-of what one might cal1 the bright lights of the cities, due
to some view-some vision--of finding here employment, of finding
riches, or of findiiig something beyond the horizon. Experience has
taught so often that that has happened. It has, in fact, happcned in
South Africa; it lias cauçed 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 neceçsary, and it has been demonstrated to be
neceçsary, in these various u7ays,to have this form of control.
Xow, 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, first, that
there ought to be no such influx control. Then these consequences, to
which 1 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 asa 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-Mernorial, 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 ïvould have been the easiest thing in the wortd to
bring evidence on that situation ifit mere necessary and if that were
a disputed fact. So, if we were to apply the norm or the standards in
this particular instance in the form of rnaking some laws also restricting
the movement of White persons or Coloured persons towards cities,
then ive would be fighting windrnills. The South African Government
~ould be required to make laws in respect of a non-existent problem.
So, Mr. President, on either of these bases,1 subrnit that the suggested
apptication of the norm or standards justdoes not make sense.
Ttake only one further example, Mr. President: the reference by the
Applicants to the nieasures controlling the residence of northern Natives
in the Police Zone and the movement of those northern natives into
the Police Zone. We dealt with that subject in the Counter-JIemorial,
III,at pages 276-277, and again in the Rejoinder, VI, at pages 325-326,
and we pointed out there that theçe mensures were enacted at the
request of the tribal leaders of Ovarnboland, who had in that respect
consulted their councils and their peoples, and that those requests were
fully representative of the views and the wishes of those groups, for
very understandabIe 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 who reserve for him those rights hic11 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 31. ADDIIESS BY &IR. RABIE
COUNSEL FOR THE GOVLRNMEh'T OF SOUTH AFKICA
AT THE PUDLIC HEARINGS OF 3 AND 4 XOVEMBER 1965
>Ir. Yresident, Members of the Court, in the course of my address,
1 shall refer to the cvidence of Dr. Eiselen, Dr. VanZyl,Professor van
den Haag and Proft:ssor Rautenbach.
Dr. Eiselen and Dr. Van Zyl, as the Court will remember, gave evidence
on Xative education in South Africa and in South \Vest Africa. Professor
van den Haag expressed. on the basis of information contained in
Respondcnt's pleadings, certain views in regard to the subject of scparate
education in South West Africa. Professor Rautenbach dealt with higher,
that is university, education iSouth Africa. The Court will know from
the pleadings and from Professor Rautenbach's evidence that there are
no facilities for higher education in South West Africbut that students
of al1 groups in the Territory can and do go to university institutions
in South Africa. I shall revcrt to this when 1 corne to deal with the
evidence of Professor Rautenbach.
Afr.President, I shall first deal with the evidence of Dr. Eiselen and
Ur. Van Zyl. Their evidence can, to a large extcnt, be considered together.
Thereafter, 1 shall deal with the evidence of Professor van den Haag,
and finally, with that of Professor Rautenbach.
1 now proceed to deal with the evidence of Dr. Eiselen anDr.Van Zyl.
Dr. Eiselen's evidence,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 ancl 129.Dr. Van Zyl's cvidence is recorded
in XI,froni page 253 onwards, up to page 325,As 1have said, $Ir.Yresi-
dent, 1 shall as fai.as possible deal with their evidence at the same
time. 1 shall first refer to their expertise, th1nshall deal with their
cvidence on the advantages of the present system of scparate cducation,
then with their opinions as to what the results would be if itwere at-
tempted to introduce a svstem of joint schooling in the territory, and
finally, 1 shall refer to th& cross-examination.
1 turn now to Dr. Eiselen's expertise, This matter has alrcady been
referred to in gencral terms, and 1am not going to repeat al1 that has
been said. 1 refer the Court ta page 201,su@. Ur. 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 fi1.A.anPh.D. Degrees wcre African life and languages. linguistics
and social and physical anthropology. Professor Eiselen has an intimate
knowledgc of the life and culture of the Bantu people, and at the Uni-
versity of Stellenbosch, South Africa, he estabIished 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 waç his interest
in the education of the Bantu people that he left his Chair to become
an lnspector of Xative Education in the Transvaal, ïvhich is a province
of the Republic of South Africa. Hedid so, he told the Court, particularly
because he thought that Native education was in need of specialization,
and because he thoiight that he couId make a useful contribution in ADDRESS BY MR. RABIE 271
that regard. This appears at X, page go, of the record to which 1 have
just referred.
Dr. Eiseleii's reptationas an cducationist was also recognized beyond
the borders ofSouth Africa when he rvas, in1945 n\'ted by the British
Covernment to be a member of a three-man education commission for
13asutoland. This also appears in the same record, X, at page 92. In
1949 he was Chairman of thc Native Education Commission in South
Africa, a coinniission which was appointed to investigate the Native
education system then in esistence in South Africa and to make recom-
mendations to make such education more effective. This commission is
often referred to in the pleadings1 may, just by way of esample, refer
tlie Court to our Counter-iilenioriaIII,at pages 357, 364 and 369, and
to the Rejoinder, VI,at pages 38, 39, 42,46, 47, 50,93 and 111.
To revert to Dr. Eiselen, he has on several occasions visited South
l'l'eAfrica and the various population groups living there. As the Court
will know, Dr. Eiselen uras 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 thüt he did not have an espert
knaivledge of the matters on mliich he testifiedand eupressed opinions.
Sow, as to the expertise ofDr. l'an Zyl: in this regard Ishould like
to draw the Court's attention to the following points.
Dr. Van Zyl liolds a B.A. Ilegree in Bantu Languages and Anthro-
pology, an R1.A.Uegree in ilntliropology and also a Ph.D. Degree in
the same subject. This appeai-s inXI, at page 252. Dr. Van Zyl spenks
several Bantu languages. His whole life and work, he told the Court,
have in one way or another been linked with education, and prirnarily
Bantu education. Thils he has taught at a Native teacher training
institution; he has been a principal ofa Rantu high school; and lie has
been an Inspector of Bantu Education. Since rg57, he toid the Court,
he has been at the head officeof the South African Department of Bantu
Education in Pretoria,and at present he isthe Deputy Secretary of that
Department; thisappears at the same page of the same record. Dr. Van
Zyl is Chairman of the Cornmittee for Bantu Languages of the Joint
31atricuiation Board, and moderator of matriculation esamination papers
in three Bantu languages of South Africa; thisappears at page 254 of the
record 1 have cited. On the snme page the witness told the Court what
the Joint BIatriciilatioii Board u7as.He told the Court that it wasbody
which exercised control over the standards at the matriculation level
in the Repiiblic, which is the highest school standard we know. A mod-
erator, he also told the Court, was the man who saw to it that a yroper
and uniform standard was maintnined at the rnatriculation level.
Dr. Van Zyl has also writteiiA Practicul Guidefor 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 ha
written also several Afrikaans readers for use in Rantu schools; this
appears at XI, pages 254 and 25j. 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 iiirluired
inta Native and Coloured education in South West Africa; this appears
at XI, page 26j. This commission is frequently mentioned in the plead-
ings; it first appearsinthe Alemorials, 1, at page 152, then frequently
in the Counter-Mernorial and in Rcspondent's Rejoinder. As a mrtmber
and Cfiairman of that commission Dr. Van Zyl made a study of the272 SOUTH WEST AFRICA
different poputatioii groups in South West Ainca, and he spent somc
months in the country; and during that time he also consuItcd with
representatives of al1 sections ofthe Native population. For the last
tlvo staternents 1 refer tXI, pages 2j3 and 266.
Dr. Van Zyl was cross-exarnined, but no attempt was made to challenge
his expert knowledge of the types of education on which he was called
to testify. Those were prirnary and secondary education, and technical
and vocational training. Furthermore, no atternpt was made to challenge
his knowledge of the different population groups inSouth ii'est Africa,
and Applicants in no way challenged his cornpetence to express the
opinions whicli he did on what the results would be ifattempts u7ere
made to have an integrated school system in South kirest Africa.
hlr. President1 iiow turn to the evidence of Dr. Eiselen and Dr. Van
Zyl on the advantages of the present systém of education. The evidence
of Dr. Van ZyI and Dr. Eiselen on this issue was briefly to the effcct
that, firstly, the prcsent system of separate education liad decided
advantages for the Bantu or Native groups, and secondly, that any
attempt to introduce a system of joint education would have harmful
results. As far as particularsare concerned 1 shalI refer mainly to the
evidence of Dr. Van Zyl. Dr. Eiselen's evidence on education was, as
the Court will remember, not as fuIl as thatofDr. Van ZyI, and 1 shall
accordingly refer to Dr. Eiselen's evidence as confirmatory of that of
Dr. Van Zyl.
The advantages rifthe present system, as dealt with by Dr. Van Zyl,
may be summarizetl as follows. Firstly, the system allows for and con-
tributes to the building up of an educational organization which the
Native people can cnll their own.An important feature inthis connection,
as testified to by him, is the institution of community schools, which
were introduced in South West Africa upon recommendations made by
the 1958 Commission which 1 have mentioned, and of which Dr. Van Zyl
was the Chairman.
These schools, he told the Court, give Xative parent comrnunities
the opportunity to play an active part in the education of theic children.
'ïhey are managed by Native school cornmittees 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 j0,000 Bantu parents were serving on such cornmitteesand boards.
In the Counter-hleniorial,III,at page 371,he set out what developrnents
there have been in this regard in South West Africa. We Say there
that the scheme started to operate in the northern territories of South
UTest Africa in 1961 and that such comrnittees and boards have also
been instituted there.
Secondly, to continue with niy summary of Dr. Van Zyl's evidence,
in South Africa, he told the Court, this scherne has led to increased
interest in education on the part of Xative 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.
In South Africa, Dr. Van Zyl said, the scheme has resulted in a
phenomenal increase in enroiments 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 ZyI said that the number of pupils
in South Africa had doubled during tlie yeriod 1953 to 1963, and that ADDRESS BY MR. RA1iIE 273
the annual growth rate waç 100,ooo pupils. Of al1 children in the age
group 7-14 about 80 per cent. were at school, and in1964 the enrolment
figure $vasnearing the z million mark. The nurnber of schools, he said,
had, during that same ten-year period, grown by about 3,000. The
witness espressed the belief that the system of comrnunity schools
would have sirnilar beneficial results in South West Africa, ancl that
it would result in children stsying at school longer than previously.
This appears at XI, page 307. In this regard, Mr. President, 1 should
also refer you to the evidence of Dr. Eiselen, X, pages 117-118.
Thirdly, to continue with Dr. Van Zyl's evidence, the system, he
said, creates extensive opportunities for employment of Natives as
teachers a~id in related posts. This appears at XI, pages 260-261. Dr.
Van 23.1 pointed out in this regard that in South Africa the number
of teachers had grown from about ~1,000 in I9j3 to about 32,000 in
1964, and that the more or less 500 White teachers who were still em-
pioyed in Bantu çchools, chit:fly in secondary school posts, cornprised
only 1.2per cent. of the total teaching staff. He also pointed out that
there were, at present, 55 Kantu inspectors, and 170 assistant Bantu
inspectors. In an integrated system, he said, progress by the Natives
would be hampered by competitioil from members of the more experi-
enced and more advanced groiips. This appears at the same pages of the
sarne verbiitim record.
Fourthly, Mr. President, separate schools, the witnesç said,and 1cluote
from his evidence from page 261 of the same verbatim record:
". ..stimulate the development of the Uantu languages concerned,
and the procluction of school books in these languages. Thcy also
provide the stimulus in other respects of culture, such as literature,
folk-songs, etc."
Fifthly, the witnesssaid, also at page261 : .
". . the separate school systern makes it possible to adapt educa-
tional facilities to the background, need, and circumstances of a
particular group".
In this connection, AIr. President, the witnes seferred to three factors.
First, he said, the system makes it possible to apply or to give effect
in practice to certain educational principles, suchaç the use of a child's
honie lariguage or ~riother-tongueas 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 mhicli is unknown, the
preservation of prtrticiilar cultural jnstjtutionsand the adaptation of
spllabuses to suit particular ncedç.
The second factor mentiont:d by the witness in this regard was that
technical and vocational training could be offered to rneet particular
needs. and the third factor \vas concerned with the provision of teachers
and facilities, and expenditure connected therewith. This also a-i-ears
nt XI, page 261.
Mt-.President,I should like to dcal specially with one of the advantages
mentioned by Dr. Van Zyl, and that is the use of a child's honie language
as niedium of instruction. 1 do that because of the importance of that
language from an educationak point of view, and, secondly, because a
good deal of Dr. Van Lyl's cross-examination was directed to this issue.
1 shall refer to this cross-esamination a little Iater, but at this point
1 wish to Say that tliere was vcry little cross-esamination on any of the274 SOUTH WEST AFRICA
othcr advantages dt:a!t 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 atXI, page 261. Dr. Eiselen, at X, pag118. described
mother-tongue education as basic. Dr. Vaii Zyl, in dealing with the
advantages of inother-tongue instruction, referred firstIy to his olvn
experience in Rantu schools in South Africa, as teacher, principal and
inspecter of Bantu schools, and he stated that this had convinced him
that mother-tongue instruction was the best method of teaching, espe-
cially inthe primary school. This appears at XI, pages 261-262.
He pointed out, furtherrnore, that it wasa generally accepted educa-
tional principle thatthe mother tongue %vasthe best medium of teaching,
and that he knew of no educationist of standing who denied that priii-
ciple.That also appearç atpage 261of that record.
He referred in this regard to the vielvs of Unesco experts which sup-
ported him, and also to a recent view expressed by an African professor
at the University of Ghana. This appears atthe samc page, and, Jlr. Presi-
dent, in this regard 1 should also Iike to reicr the Court to quotations
which appear, firstly, in Our Counter-Mernorial, in III, at page377, and
in the Rejoinder. V1,at pages 64 and Sj. And then also to page 165 of the
Rejoinder, VI-to a passagw ehich 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 thegap betiveen
the home and the school, and that it led to parents displaying a greater
interest in the education of their childreHe said also that the use of the
mother longue was the best way to ensure that pupils understoorl what
was being taught tliem, and that it promoteci original thinking.
South African experience, Dr. Van Lpl also said,waç 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 ivhich occurs, at XI, page 262. Dr. Van Zy1said:
"These experiments also showed, and ithas also been our espe-
ricnce 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 reguIarly."
FinaIly, Dr. Van Zyl stated that the motker-tongue medium had the
added advantage that it stirnulated 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 founciation of society and the root of culture, and every
society should prcserve 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 oii the
advantages thereof, which confirms that of Dr. Van Zyl. His evidence,
as 1 have said, waç not chalIen-ed in anv-wav, and it is recorded, on
pages 118-119,X.
Now, hlr.President, before 1 proceed to deal with the opinions es- ADDRESS BY hlR. RXBIE 275
pressed by Dr. t'an 24.1and Dr. Eisclen on u-hat thereçults ivould be if
an attenipt were made to introduce a system of joint schooling inSouth
\Vest Africa, 1 should like to refer the Court to some relevant material
which is contaiiied in our pleadings, and which concerns the wishes of
the different po iilation groups in the Tcrritory in regard to the question
of mised schoo Ping.
111the Counter-Mernorial, Book VII, III, Rspondent stated that the
system of separate education in South ilTest Africa \vas in accordance
ivith the mishes of the vast niajority of the people, and, furthermore,
that an attempt to introduce a system of joint schooling would lead to
dissntisfaction and group friction, which would reçult in the neglect of
the nccclsof al1the groups and in irreparable harm to the Territory as a
trhole.Mi- President.1 refcrto paragrapb 62,\!,hich appears on page 382,
III, of the Couiitcr-Mernorial.
In their Reply, theApplicants did not dispute the truth of these state-
rnents. They said that they accepted those assertions but that they
regarded them as an "indictmeiit of the passivity and negligence of
Respondent's conduct of the hfandaté" (IV, p. 385).
Noiv, Mr. Yresident, Respondent dealt with the Applicants' allegation
concerni~igpassivity and negligence in itsRejoiiider, VI, at pages 124 to
128, and no more need be said about it now. \Vhat is important in the
present contest is the Applicants not disputing the truth of the following
statements in the Counter-3lemoria1, as quoted by the Applicants them-
selves at pages 38s and 389, IV, of their fieplp.
Firstly, the Applicants quote, on page 388, IV, of the Reply, the fol-
lowing statement from the Counter-&fernorial, III, page 367, which referç
to the time when Respondent assumed the Jlandate. The passage reads
as follows:
"The introduction of a mised school system would have run
directly counter to the prevailing social orcler, and wouid, for that
-\-eV reason, have failed."
Then, >Ir. President, there is also the following statement, which is
quoted on page 389, IV, of the Reply, and which iç found on page 368,
III. of the Counter-hlemorial, It refers to the wishes of the different
indigenous groups and readç as follows:
"The attitude of the respective groups is,as far as possible,
respected by providing separatc facilitiefor them."
Then, hlr. President, tliere is also the following statement whicb forms,
in the Counter-Mernorial, III,at page 376, part of a paragraph in which
Respondent states 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 ais0 in
accordance with thc wishes of the vast majority of the population
of the Territor).."
And finally, there is also this statement, which alço forms part of a
paragraph in which Respondeilt statcs why it rctainsthe present sjrstem
of seyarate schooling. It appears on page 389, IV,of the Reply, and on
page 513, III,of the Counter-Mernorial. It reads, in somewhat adapted
form :
"[Tlhe sÿstem of separate schooling [is] in accordance with the
v-ishes of the vast rnajorityof the population of the Territory . .." 276 SOUTH WEST AFRICA
hlr. President, before the adjournment Iquoted certain passages to the
Court. The point 1 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 Ur. Van Zyl and
Dr. Eiselen as to what the results would 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 \vas asked the following qucstion; it
appears at XI, page 267: "[bvhat, in your opinion, would be the results
if an 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 withwhich we are here now concerned, &Ir.President, 1shall
first quote onlythe first part of Dr. Van Zyl's reply, XI, pages 267-268 :
"Mr. President, 1 do not think that thcre is any hope of success.
The differences arnong the population groups in background, lan-
guage, tradition and culture are so big that the people do not mis
socially, with the result that integrated schools are almost incon-
ceivable. From what 1 know of the people, there cannot be peaceful
integration in the field of education and any atternpt to enforce
integration wiii cause the collapse of the educational services.
. Further, integration will bring friction and enmity among the pupils.
ln other countries with heterogeneous populations, atternpts at
integration have brought about serious clashes between the racial
groups and in some inçtances have even led to violence and this,
hlr. President,is,in my opinion, esactly what will happen in South
West Africa."
Applicants, hlr. President, in no uray questioned or challenged this
view. Thep 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 as1 know, nobody in South West Africa has ever requested
or propagated integrated schools and 1 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.
In the circumstances, Mr. Presidcnt, in our submiçsion, there can be
no reason why Dr. Van Lyl's opinion should not be unreservedly accepted
by the Court. And, according to that opinion, it is obviouç the Respon-
dent's duty to proniote the education of the inhabitants of the Territory
would be made irn~iossibleby the application of the norm or standards
'for which the Applicants contend.
Dr. Van ZyI, having expressed the view to which 1 have just rcferred,
went on to say what, in his 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 2 68:
"From an educational point of view, a system ofjoint education
wouId, if it could be introduced, mean the eiid of sonie of the advan-
tages 1have prevjously mentioned. It would be imyoçsible to apply
sound educational principles which can be applied under the present
circumstances. So, for instance, instruction through medium of the
rnother tongue would be out of the question for at least one group ADDRESS BY MR. RABIE ?77
and it woulcI be impossible to do full justice to the traditions and
culture of al1 the groups. If the officia1 langiiages, English and
Afrikaans, were to be the sole media the Bantu groups will suffer as
a result."
In this regard,hlr. President,1 should also Iike to refer brieAy to the
evidence of Ur. Eiselen. His oj~inion,which was of course not challenged
in any way, was that to do away with diffcrentiation in the schoolingof
children in South West Africa would lcad to "enormous difficiilties",
That appears at X, page 121.Dr. Eiselen said (this also appearat p. 121)
that a system of joint education would be unfair and unrealistic and that
it would do violence to sound educational yrinciples. He referred, in this
regard, to the use of the child's home language as medium of instruction
and also pointed out that itwould be dificuit to decide "whose back-
ground waç to be taken as a starting point for educational development".
(lbid.)
We respectfully submit, Mr. President, that the evidence of Dr. Van
Zyl andDr. Eiselen will have ci~nvincedthe Court that the present systern
has substantial advantages for the Native peopie of South 15'estAfrica,
and, conversely, that a systern of joint schooling wouldmean the Ioss of
such advantages, This result, in Our submissioi~, is also unavoidable
unless one assumes that in a system of joint schooling the Coloured and
White children-Afrikaans and Engtish-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 bc that it is the children of the Native groups
ivho must forego the advantages of mother-tongue instruction and of
having their own culture serve as the basis for educational development.
1 now turn to the cross-examination of Dr.Van Zyl. As 1 have stated
before, there was little cross-esamination on what Dr. Van Zyl described
as the advantages of the present system and on some aspects there was
no cross-examination at ali.Indeed, it seems to us thatthe cross-esamina-
tion was not intended to cast doubt on what Dr. Van Zyl had testified
in hiç examination-in-chief, but to serve some other purpose, not directly
relevant to the witncss's evidence, and not directly relevant to the issuc
of the applicability of the Applicants' norm or standards.
In the circumstances, 1 shall not deal with the cross-examination in
detail. 1 shall merely indicate, in a general way, the different topics that
were dealt with in cross-examination and then deal somewhat more fully
with the cross-examination in regard to two niatters, and theÿ are
mother-tongue instruction and compulsory education.
First there was a whole series of questions about the relationship
between the South West Africa Administration and the South African
Government and about the organization and interna1 workings of the
South West Africa Ediication Department. 1refer the Court in this regard
to XI, atpages 268 to 279, and, in the same volume, pages 298 and 314.
Many questions seemed to be tlirected to showing that the real objective
of Respondent's educational policy was, and 1 quote the question put to
the witncss: ". .. to prepare and educate the Uantu 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 forative school-
children insufficient attention was given to the needs of those living in
urban areas. In this regard 1should like to refer the Court to the following~7~ SOUTH WEST AFRICA
pages in the record, XI, pages zSo-282, 283-284 29,3, 296-300 and page
301, and then page 316. Those are answerç given to questions by a
hlember of the Court.
Perhaps I may quote in this regard one ançwer 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 ali practical purposes, the Hantu in South kirest Africa can
get exactly thesame education as Mites, with necessary modifica-
t~onsalong the lineswe have discusscd this morning".
May 1 say that those modifications related to questions of method and
approach. I continue the quotation:
"As1 pointecl out inmy main evidence yesterday also, the general
education given to Bantu pupils and White pupils culminates in thc
sarne standards, the same examination requirements, at the end of
the full school career ïvhen thailhave to write thesame matricula-
tion examination."
Xext there was a çeries of questions concerning vocational and teacher
training. Itwas suggested to the witness that a lack of economic oppor-
tunities accounted for the low enrolment in the industrial courses at the
Augustineum and also that low salaries discouraged çtudents from em-
barking on tencher training courses. The reference to the Augustineum
is atXI, pages 302-303, and the reference to teacher training is at page
311. Both the suggestions were denied and, we submit, convincingly
refuted by the witness.
In this regard 1should 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. WC submit that it is a
problem which exists everywhere in Africa. 1 refer the Court to the
Counter-Mernorial, XII,pages 421-424, and there içalsoa relevant passage
on page 405.
Our subrnission is then, &Ir.President, that the cross-examination of
Dr. Van Zyl on the topics which Ihave rnentioned detracts nothing from
his e~ridenceregarding the advant ages of the present system.
1 noxv turii to the cross-examination of Dr. Van Zyl on the issue of
mother-tongue instruction. 1 point out, first of aland stress the fact,
that although Dr. Van Zyl mas cross-esamined On certain aspects con-
nected with mother-tonguc instruction, his evidence in regard to the
particular advantages described by him was not chalienged or called
into question in any way. We submit that this is an important matter
for, asDr. Van Zy1said in his evidence, in a system of joint educationit
would be impossible to apply sound educational principles which can be
applied under the jiresent 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 quotati1have
already quoted to the Court.
Itis clear, in our subinission, that non-differentiatinnregard to the
question of mediu~n of instruction would dcpnve Native children of
important advantages, that is, ifAfrikaans or English should be made
the medium for all. Kow, cross-esamination of Dr. Van Zyl on the ques-
tion of mother-tonpc instruction was along the following lines, and 1
shall iiiention four points.
First, the witness kvasasked his opinion about giving priority to the280 SOUTH WEST AFRICA
at pages 287 and 288 of the record which 1have mentioned-the vernac-
ular \vas used as medium only during the first four, or in the northem
territories five, years at-school, and that politics and economics formed
no part of prirnary school study. He stated, furthermore, that his ex-
perience in South Africa was that about go per cent. of the terms needed
for schooluse alreacly esisted in the Bantu languages, and that the other
IO per cent. couid be successfully coined. He also said, &Ir.President,
at XI, page 321, that such words had been successfully coined in South
Africa up to the standard VI Icvel, which is the last year of the prirnary
school course. So that there are, in South Africa, Bantu terms ~vhichcan
be used in,for example, arithmetic problems of the kind referred to by
an honourable Member of the Court.
hfr. President, in this regar1 should also liketo refer the Court to a
passage which ure qiiote in the Rejoinder,VI, at page86, a passage which
appears in a Unesco publication, and where Unesco experts are quoted
as saying-"there isnothing in the structure of any language which
precludes it from bticoming a vehicle of modern civilization". And tben,
Mr. President, may 1also refer the honourable Court to a short passage
in a document, which was referred to in evidence a little whileago by
Professor Possony: it is theSeminat on the MtJti-National Society-I
believe that is before the Court.Itis United Nations document STITAOI
NR/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]easureswkichshould betaken to enszdrethe realizatiola,byelhnic,
religiozts,liwguistic or natiolzal groups, the special ~ightsNecessary to
enable them to preserve their traditions, characteristicsornational cofi-
scioncsness"-this appears on page 13 of the report. In the course of the
debates on that problem, it \vas 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 less 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."
.4nd then, Alr. President, there isthis further sentence, on page 16,
whjch deals with thc difiiculty of language problems in various countries:
"Several participants indicated that commissionç 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 line of cross-examination, 1 indicate that Dr. Van
Zyl waç asked whether a Native pupilwould be allowed to take his les-
sons through the medium of English or Afrikaans when he felt that he
would like to do so. The answer was "No", just asin the case ofa White
child. who wanted to be taught through the medium of a language not
hisown, the reply would be no. This appears at XI, pages 293-294.
And then, Afr. President, as 1have already said to the Court, Dr. Van
Zyl explained that a Native child in South West Africa begins to study
Afrikaans and English from hissecorid year at school.
Our submission then, in regard to the cross-examination on the ques- ADDRESS BY MR. RABIE 28I
tion of mother-tongue instruction, isthat it leaves Dr. Van Zyl's evi-
dence about its advantageç comp~etelj~untouched.
Now, Mr. Presidcnt, I turrk to Dr. Van Zyl's cross-esamination on
the question of compulsory education.
1 refer the Court, first of all, to certain passages in the record regard-
ing the fall-off between standards and the number of pupils attending
school-that isat XI,pages 288-292 and 300-301. And as to compulsory
education more particularly, 1 refer the Court to XI, at pages 292-293,
and pages 307-3rr.
Sow, first of all, as to the facMr. President, itiscommon cause that
there is compulsory educatioii for the White children in South \\lest
Africn and not for the Native children. In the case of Coloured children,
the position is tliis (and thiç appears from the Counter-AIemoriril, III,
at p. 392) ,he Administrator hnç the right, under the IZducation Ordi-
nance of 1962, to introduce, on the reconimendation of the Education
Department, conipulsory education at any Government school forCol-
oured children.
It is pointed out also, hlr. President, on pag3gr, III,of the Counter-
Mernorial, 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 rnap perhaps be called com-
pukory education on a voluntary basis, that isit 1snot enforcedby law.
Dr. Van Zyl said, and Tquote from XI, page 308:
"It isnot a system of compulsory education in the ordinary sense
of the word ...the administration ha made it possible for school
boards in a particular centre to introduce compulsory education
within its area, but it is iiot enforced through legislation."
Thrise, brieflyMT. President, are the facts.
As to the nature of Ur. Van Zyl's cross-esamination, he was asked
in cross-examination why therc: was no compulsory education for Native
children in the Territory. His reply was this, andI quote from XI, page
292 :
"... 1 think mainly because the Bantu communities have not
reached that stage of development where it would be feasible to
make education compulsory. lVe should not lose çight of the fact
that the introduction of compulsory education in any country or
inany cornmunity implies legislationby which the parents are com-
pelled by la~vto send their children to school and should they fail
to do so, they are liable tci 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 çuch legislationby which
they would be compelled Eosend their childrento school every day
and consistently up to a particular age or up to a particular stan-
dard. Al1 the communities 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:
". . . 1 do not think that it would be feasible for the simple reason
that the administration will not have the CO-operationof the I3antu
people. They have not reached that stage where you can cxpect282 SOUTH iVEST AFRICA
of them to accept a drastic systcm 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-esamination it appeared that
the Odendaal Commission also thought that the Native population
generally was not pet ready for compufsor~ education. This appears
frorn yaragraph 1097 of the Commission's report, and from XI, pages
309 and 311 of the verbatini record.
In the Counter-A,iemorial,.III, at page 392, reference is made also to
the views of the rnissionaries in the northern territoriesof South West
A frica with regard to cornpulsory education, andit 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 1 have just referred-i.e.,1097.
hlr. President, in the course of Dr. Van Lyl's cross-examination on
this issue, Applicants' Agent was asked the following question by you,
hlr. President. which appears at XI, page 315:
"Do I understand that ifthere is no con~pulsory education irn-
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 tthe people,irrespective ofany other circumstances.
that it is inherently inconsistent with Article2 of the Mandate and
per se a breach of the Mandate?"
MT. Gross's answer was this,which appears on the same page: ''?JO,
Sir, that would not be the Applicants' contention." From this it isclear,
in our submission, hlr. President, that Applicants do not now Say that
the absence of conipulsory education in the case of Native children is
inherently inconsistent with Reçpondent's duties under the Mandate,
and ter se a breach of the Mandate. One mould have thought that to be
consistent with their case, Applicants' reply should have been to the
effect that the absence of compuIsory education in the case of Native
children constituted a breach of the nom or standards, and for that
reason that isipso ilactoalso a breach of the Rlandate, but that was not
the reply. The reply\vas tliis, and1quote from the same page. hlr. Gross
said :
"The Applicants' contention in respect of the difference, standard
or requirement of compulçory education on a çtrictlp racial basis
would be that that standing alone, unsupported and unesplained,
would violate the duty to allot tights and burdens, privileges
and so forth on the basis of promotion of welfare and progress of
al1 the inhabitants to the fullcst practicable extent, and that it
would seem to the Applicants that a systern in tvhich no cornpulsory
education in anypart 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
al1other aspectç of the apartheid policy of which this forms a part."
Now, hlr. President, we do not pretend that we understand every- ADDRESS BY hfR. RABIE 283
thing that is said in this passage, biit one thing seems to be fairly clear,
and itis this: the reply contzmplates that devintions from the norm or
standards can be explained, and that non-conformity thercwith does not
by itself constitutea breach of the hlandate. This, in our submission,
is clearly inconsistent with the Applicants' case as previously formulated
when it was said, and 1 refer to on17 one instance whch appears at IX,
page 45:
"It is the Applicants' case, rightly or wrongly, that the
and practices complained of, as a matter of the internationaf Iegal
norm, and the universally accepted standards upon which that legal
norm is based and which it reflects, that such a policy cannot
inhereiitly rornote the welfare of [the] .: . inhabitants of the
Territory. .ny contention to the contrary isan attack upon the
norm itself."
hIr. President, according to this passagthe Applicants' present conten-
tion in regard to compulsory education mould be nothiiig less than an
attack on their own norm or standards.
Itissignificantin 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-
faire on Respondent's part, an allegcd negiigent failure to remove such
difficultieas stood in the way of a successfill introduction of a system
of compulsory education. There \vas no question then of tlie absence of
compulsory education being a per se breach of the Mandate. 1 rcfer in
this regard to the Applicants' Reply,IV,at pages 388,389 and 390 to393.
At that tirne, Rlr. President, Ap licants dealt ïvith the question of
,.mpulsory education in a Chapter eaRed "Extent of Education in the
lerritory" (this appears at p386,IV, of the Reply), and tlieythen said:
"Applicants now show that the exlentof education in the Territory
isa violation by Respondent of its obligation to promote tuthe
utmost the well-being and progress of the inhabitants."(IV,pp. 386-
387.)
This shows, Mr. President, that Applicants were at thattiinein na sense
trying to make a case of a fiersebreach of the hlandate in respect of
compulsory education. They were trying to make out a quantitative
case, and this wa. part of their general charge of oppressiAnd Respon-
dent accordingly regarded 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 exyressly
stated by Applicants that no quantitative case is being made, and that
reliance is placed solely on the norm orstandards for which they contend.
The Court will recaii, if1 nlay 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 theory that the Xandatory had built
too few schools or hoçpitals in the Territory. Now, this being 50, the
Applicants muçt,in our submission, ifthey want to be consistent, contend
that the absence of comyulsory education in the case of the Satlve
poqulation is @Y se a breach of the hlandate, but now that they have
indicated that they do not contend for such a perse breach on the issue
of cornpulsory education, they would appear to have fallen between two
stools.
Further, on this issue of iconipulsory education, we should like to284 SOUTH \\-ES TFRiCA
point out that we have shown in Our pleadings that it would be wholly
unrealistic and artificial to regard the existence, or othenvise, of a
compulsory education law as necessarily determinative of the question
whether progress has been made or can be made.
Mr. President, 1 propose to deal briefly with somc of the relevant
facts in this regard, and shall in doing so reinteraliu, to the position
in one of the Ayplicant States. 1 do this because this State's own es-
perience should, in Our submission, also help to make it clear that a
compulsory eclucation la~vcan only be successfully introduced when al1
relevant circumstaiices arc favourable.
>Ir. President, iti the Counter-3lemorial. III, apage 405, we make
the following stateinent. \ire Say:
"The dificulty of translating principle into practice is probably
nowhere more graphically illustrated than in the case of Liberia.
A Iaw providiiig for compulsory education was passed as far back
as1912 ,ut it has never been possible to implement theprovisions
of the Iaw."
That statement was not denied.
In the Rejoinder, VI, at page 132, we sho\t. that this compulsory
education starts for al1children at the age 6and ends at 16.We quote,
for that statement, &Ir.President, a Unesco publication of 1958.The
quotation is at page133, VI, of the Rejoinder. In the Counter-Mcmorial,
at III, page445, we show, on the basis of officia1Liberian figures, that
about zz per cent. of the school-age population of Liberia attended
school in 1961-196 W2.e make this calculation, &Ir. President, on the
assumption that the school-age population constitutes 23 per cent. of
the total population. Thiss also the basis on which we make calculations
in regard to the school-age population of South IfTestAfrica. This appears
in the Counter-iilemorial, at III, pag443. No", at III,page 382 of the
Counter-hlemorial, we quote from a book on Liberia called TheFirestone
Ofierationsin Liberia, written by one Taylor and published in 1959.
From that it appears that the average age of children inthe first grade
at school is 14 years. This is despite the fact that the education law
requires attendanci: froma pupil's sisth yertr. 1 shall quote the passage,
Mr. President, because it is also rcvenlasto what hnvc bcen considered
good grounds for proviciing separate schools for Liberian children, on
the one hand, and American and European children, on the other hand.
The passage reads:
"Teaching ofAmerican and European children in the same schools
and classes as the Liberian children is impracticable, owing to the
Ianguage barrier and to the very large differences in the children's
ages, curriculaand cultural backgrounds. For esample, the average
age in the first grade of the Libenan schools is 14, as compared
with 6in the American and European school. For this reason alone,
the classes could noi be integrated."
>Ir. President, in addition to whaIhave just said about the position
in Liberia, 1 shoulcliketo refer the Court also to the position in regard
to cornpulsory education in Africa gcnerally. Here, again, 1 do so merely
to draw the honorirable Court's attention to factors which should, in
Oursubmission, always be borne in mind when the question of compuIsory
education in Africa is discusçed.
First, there is this point.1961 , e point out in the Counter-Memo- ADDRESS BY Mt<. RABIE 285
rial, atIII, page 446: "... for the African States as a whole, only 16
per cent. of the children of school age are [enrolled) in school." This
appears from a Unesco publication, which we cite at the page to which
I have referrcd the Court.
Nest, MI.. President, at pages 445-447 of our Counter-Mernorial, III,
ive give details of school attendance figures in various African countries.
1 am not going to deal with thern in any way, Jlr. President, but we
respectfully draw the Court's attention to what appears from those
pages.
Next, in the Rejoinder, V, at page 132,we refcr.to a Unesco piibljca-
tion of 1961 which says that at the end of the 1950s only g of solne 40
African countries listed had a system of compulsory education pcrtain-
ing to their indigenous inhabitants. As stated on the page referred 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 $vas referred to by the Applicants, Togo, and we showed on that
page, Mr. President, that in the case of one country. one of the trvo ive
rnentioned, the attendance rate was only about 5.6 per cent.,and in the
other case it was about 28.6 per cent., calculated on the same basis as
the South West Africa figures are calcuIated in the Counter-hlemorial.
Then, hlr. President, we should like to refer the Court also to the
Counter-Mernorial, 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 t:xtending education, and then we go over
to set out what the position is as reportcd in various officiadocuments
in various countries. They are set out under the headings "Central
African Territorieç", "East African Territories" and "West African
Tcrritories" and then separate paragraphs are devoted to Tanganyika,
Ethiopia and Liberia.
Finally, hlr. President, before 1 turii to the questioof school atten-
dance in South U'est Africa, 1should like to dra~ the Court's attention
to certain rnaterial contained in our Counter-Jfemorial, which shows
what difficulties educational authorities have generally to contencl with
in African countries. Thismaterial is contained in the Counter-Meniorial,
III,on the pages 1have refcrred to-396-399, and also pages 421-424. It
shows, hlr. President, what factors have hitherto affectcd the de\,elop-
ment of education in South West Africaand alsoin other African countries.
As regards South West Africa, &Ir.President, 1 should also like to refer
the Court to what is said on pages 407-421,III, of theCounter-JIernorial.
1 am not going to go into any detail, hlr. President; 1 merely make the
submission that we show on tliese pages, first, that there are, in many
parts of Africa, even at the present time, parentid attitudes which do
not conduce to any rapirl extension of education and, secondly, that
teacher shortages hamper development everjwhere.
Sow, corning to the position in South West Africa, particulars of
school attendance are givcn first in the Counter-lllemorialIII, at pages
444 and 445, and also on 447, and 1 als? refer to tlie Rejoinder,VI, at
page 136,pnragraph 21 on that page. From these pages, it appears, Mr.
President. that in 1960 the attendance percentage was 39.8, in 1961 it
was 44 and, in 1964, it was estimated to be 52.286 SOUTH WEST AFKICA
On the pages of theCounter-Memorial referred to, &Ir.President, that
is pages 444 and 445, III,we also setout what progrcss has been made
in South West Africa since 1951. Uetween 1951 and 1960, as is sho~vnon
page 444, there was an increase of54 per cent. in the numberof children
enrolled. This was more than tliree times the rate at which the total
population increased over the same period, which \vas 17.4 per cent.
In the Rejoinder, VI, at page 136,we show that in 1964 enrolments in
the Police Zone wi:re 6per cent. higher then in1963,and in the norttiern
areas no less than15 per cent.
or. 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 present time is to aim at the ideal of compulsory education but to
show, at the samc time, due appreciation of those practical difficulties
which exist in so inany African countries in regard to their indigenous
populations.
Mr. President, 1 now tum to the evidence of Professor van den Haag.
The Court will recall that Professor van den Haag's testimony has al-
ready been discussed in relation to oür general contention thatheappli-
cation of a norm or standards as contended for by the Ap licants would,
in the circurnstances of many countries, including Sout K West Africa,
lead to results inconsistentwith the promotion of the well-being and
progress of the peoples concerned. 1 refer in this regard to the verbatim
record, at pages 188-19s1 upra,and 200,supra.
In 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 Yrofessor van den Haag nas
engaged on a research projecton the effects of segregated and integrated
schooling in the United States of America. This appearat pages 188-189,
supra.
The 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 Yrofessor van den Haag as to his qualifications as an espert,
there was in fact no such cross-examination. This appears at page 138,
supra.
In the course of his' address Mr. Muller also stated that Professor
van den Haag had dealt çpecificallywith the question of education,
but that his evidence would be referred to at a later stage of our argu-
ment. 1 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 unfavourabie seilse,
and he replied as follows-thisappears in X, page 160-
".. .as 1 tricd to indicate yesterday, 1 think, depending on the
intention of the user ofthese devices and on the wishes of those
concerned and on the circumstances, segregation must be regarded
likea knife,. or any other instrument. as neutral; it can be used
for surgery, it cabe used for murder; it can be used for beneficial
puryoses, itcan be used for matevolent ones".
And when Professor van den Haag was asked whether he believed
in the proposition that pçychological damage inevitably resulted from
separation, or segregation, or differentiation, his answer was this-it
appears at the same page-
,I certainlybelieve that this conclusion ha in no ivay been285 SOUTH WEST AFRICA
". .. 1 would in fact think that non-separation would be harmful
to both of the groups tliat 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 harrnful to both, as well as unsuccessful".
Professor van den Haag stated that the position in South West Afrjca
was different from that in the United States, and he said, arnongst
other things, and 1quote from the sarne page:
". .. in the United States there is certainly a much better case
for desegregation because, asImentioned in my testimonyycsterday,
there is no separate cultural source for the Negroes who arereally,
generaily, participants inAmerican culture".
May 1 inthis regard, blr. President, ais0 refer to the evidence recorded
on X, pages 151-152.
Now, al1 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.
Mr. President, ycsterday 1 dealt with the evidence of Dr. Van Zyl,
Dr. Eiselen and Prcifcssor van den Waag, and 1 now turn to the evidence
of Professor Rauteribach, who testified on university education in South
Africa and, more particularly, university education for the Hantu.
The Court will recall that we explained in Our pleadings that there
were no facilities irt South West Africa itself for higher education, that
is, education at the university level.
Mr. President, in the Counter-Rlemorial, III,at page 474, it is stated,
amongst other things:
"The number of students who quaIify for a university education
is not sufficient to warrant the establishment at this stage of any
institution for such education in the Territory."
Students of South \Vest Africa-European, Coloured and Xative-who
desire a university education, can proceed to institutions for higher
cducation in South Africa.
In the Counter-Memorial, III, at page 476, and again at pages 485
and 486,we setout what.those institutions are: they are, firstly, institu-
tions for European students; three university colleges for Sative stu-
dents; a similar institution for the Coloured people; and another one
for Indian students. In addition to those, there is a medical 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 isnot 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 haveappeared from the evidence, and we point also in this regard
to the Counter-Mernorial, 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 White universities in South Africa.
Itwas further explained in the Counter-hlernorial that students from ADDRESS BY MR. RABlE 289
South West Africa-studeiits of al1groups-are given financial assistance,
in the way of loans or bursaries, to enable theni to attend university
institutions in South Africa. In this regard, 1 refer the Court to the
Counter-Xfemorial, III,at page 477, and also to the Rejoinder, VI, at
page 118.
Now, Air. Presideiit, as the Court will recall, Professor Rautenbacli
gave evidence on the establishment inSouth Africa of separate univer-
sities for the different population groups and, more pacticularly, the
I3antu groups, and the reasonstherefor. Professor Rautenbacli's expertise
is set out in the verbatim record at XI, pages 326 and 327, and ~ISOon
a lew other pages, to which I shall refer. As will appear from what is
stated in that record, Mr. Presidcnt, Professor Rautenbach has wide
esperience of iiiiiversitIifand atln~inistration in South Africa. He has
been associatecl with the University of Pretoria since 1923, when he
became a lecturer there; and fiebecame the Principal and Vice-Chancellor
of that University in 1945. This appears on page 327, XI.
I'rofessor Rautenbach was, for Inany years, also a mcmber of the
Coiincil of the University of Soiith Africa, to wllich 1 have referred,
and he is, at present, the Chairman of the Council of the University
College of tlic North, which is one of the three Bantu university colleges
which were establishcd n féw years ago. after the passing of the University
Act of 1959,which was frequently referred to in the course of his evidence.
Tliis appears on the saine Ilagi:.
Professor IZautenbach, as will appcar from his evidence. also serves
on a nurnbcr of scientific and advisory bodies, such as the National
Advisory Education Council of South Africa, of which he is the Chairman,
and at one time he served, for a period of five years, as a member of
the Executive Cornmittee of the Association of Universities of the
British Commonwealth. This appears at pages 327-328 of tlie record to
which 1 have referred.
hlr. President, Professor Raiitenbach supported the Respondent's con-
tention that it would riot be practicable, at this stage, to establish a
university institution in South West Africa. This appears at XI, page
329-
Then, h3r.Precident, 1 wish to point out that there was no suggestion
at al1 that Professor Kautenbach's esperience of university administra-
tion and his knowledge of Sciutli \irest Africa did not entitle hirn to
espress this view. And his view was in no way challenged by the Appli-
cnnts.
Now, with regard to university education in South Africa, Professor
Rautenbach espressed the opinion that the present system of having
seplrate university institutionsfor the different population groups held
decided advalitages over the former-that is the pre-~ggg-system of
so-called open universities.
In regard to university education for the T3antu in South Africa,
Professor Rautenbach drew a cornparison between the position which
obtained up to 1959, and the position since then. In 1959, as appears
from his evidence, tliree university colleges were establishecI especially
for the Bantu. Pi-ior to 1959,the governing bodics 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 45.
Now it appears from the evidence, Mr. Prcsideiit, that some of these
so-called open universities did not admit Bantu students at all; others,2g0 SOUTH N'EST AFRICA
again, did, but at the sarne time placed certain limitations on admissions.
This appears from XI,pages 330 and 331. At present, as I have stated,
Bantu students may still cnrol at White universities, if givcn the neces-
sary permission by the responsible >finister. This appears at XI, page
329.
Now, in regard to the pre-1959 period, Professor Rautenbach drew
attention tu the followi-infeatures, tvhich Ishall now briefly mention:
firstly, he pointedout, those White universities which were prepared to
admit Bantu students limited the number of admissions. ln the case of
one university, he told the Court, some faculties, again, were completely
closed to Bantu students. Tliis appears at XI, page 331. And, Alr.
President, in this connection, I also refer to our Counter-Rlemorial,
III, page 482, where we refer to a speech by the Minister 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 life: they attended lectures with White
students, but al1extra-curricular activitieswere separate-for example,
sport, social gatherings, and al1 university activities-nordid they ever
share university lodgings ïvjth otherstudents. >Ir. President, thappears
at XI, pages 331 and 332, and also on pages 337-338. Now, in such
circurnstances, and because of the srna11numbers of 13a1itustudents at
the White universities, Professor Rautenbach said that the Hantu student
at a White univeisity was a lonely individual. This appears at XI,
page 411.
The third featurt: 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 comrnunities; they were
brought into a sphere which was foreign to their own people. This
appears at XI, page 332.
Now. Mr. President, 1 corne to the post-1959 period, as dealt with
by Professor Rautenbach. ,The advantages of the present, that is, the
post-~ggg, system, as described by him, rnay be summanzed as follo~vs.
First, he said that universities have been established for the Bantu
people thernselves. These institutions,he said, play. and will play, an
important role in tliedevelopment of the various 13antu communities.
They are already, he said, receiving the support of these comrnunities,
financially and othenvise, and enrolments are steadily increasing. The
establishment of these university colleges especially for the Uantu,
Professor Rautenbach also pointed out, is in line with developments
elsewliere in Africx 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-Nemo-
rial. There, are setout views which have been espressed in regard to
university education for tlie Bantu in Africa, and then, in this regard
also, we refer to pages 378-35 2f the same voliime of the Countef-
hfemorial where are set out trends in various States in Afnca to "afri-
canize" education for the African, ADDRBSS BY hfR. HABIE 29x
Now the second feature rnentioned by 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 studentç at White ~iniversjtjes.
enjoying a full life, both acadernically and in the extra-curricular sphere.
This appears at XI, page 337.
Thirdly, he pointed out, fet:s at these Bantu universities are appre-
ciably lower than at the Wliite universities. Particulars are given at
XI, page 336.
The fourth point mentionecl by him: teaching methods, he said. at
the 13antu institutionscan be properly adjusted to the background and
culture of the Rantu 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-
versityof South Africa. This is set ouat XI, page 336.
l'hcn the finalpoint mentioned by him: the establishment of these
Bantu university colleges, he said, has created more opportunities for
Bantu intellectuals to be appoi~ited to teaching posts on university
staffs. This appears aipages 335-336 of the same record.
Now, Mr. President, I corne to Professor Rautenbach's opinion as
to what the results wouId be if the present system were to be done
away with. He said that to go back to the pre-1959 position "fiTewould
not only be back where we were in 1958, but we would be saddled with
anumber of new problems". This appears at page 344 of the same record.
Now, 1do not intend to go into any detail. We have already referred
to the advantages of the prcsent system as described by ProCessor
Rautenbach and it would obi~iously, in his view, mean a loss for the
Bantu people if the present systern were to be done away with. hlr. Yresi-
dent, he also espressed the view that it would have unfortunate results
for these Rantu coHeges ifthe present system were retained but stiidents
were given an urirestricted right to go to other universities. The loss
of students wouId be harmful, especially at the post-graduate level, and
would make it difficult, at thc same time, to retain the best staff. Al1
this, he said, would make it impossible to build up thesc institutions
to becomc the eqiial in every respect of uiiiversity institutions elsewhere.
This appears at XI, pages 344 and 345.
In addition to what T have just said, Mr. President, 1 aIso draw the
Court's attention to a particular instancementioned by Professor Rau-
tenbach, where it has been essential to adopt differential measures in
the case of Rantu university students. This concerns the training of
Bantu medical stutlcnts at thc University of Natal, to which 1 have
already referred, and where it has been found necessary to devote an
extra year to the course of Bantu students in order to wipe out what
Professor Rautenbach termed a cultural lag,which was temporary, he
said, but nevertheless there at the present time.
hlr. President, in this connectionJ I refer to pag330-33 2f the same
record. XI.
To do awav with this differentiation in the training of Bantu medical
students, Professor Rautenbach said, would obvjouslp be to the detri-
ment ofsuch students. This appearç at page 344 of the same record.
&Ir.President, 1now turn briefly to the cross-esamination of Professor
Rautenbach. First, ProfeçsorRautenbach was cross-examined on a large
variety of subjects, but very little of that was directed to the advaritriges292 SOUTH WEST AFIIICA
of the existing system in South Africa as testified to by him. He was
questioned widely o~imatters (1 am not going to mention al1of them),
which did not relate to university education at all-for exarnple, he
was asked many questions on the functions of the National Advisory
Cornmittee 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. 1need not give the Court al1the refer-
ences, but some of tliem mas 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 interna1 orgnnization of
the Bantu university colleges and the measure of tlieir control by the
State, on the question of why there \vas not a so-calIed conscience
clause in al1 university statutes and whether regulations concerning the
rights of White and Bantu students to leave the precincts of their
university were the same in al1cases, and so forth. Rlr. President, some
of these references are in XI, at pages 366-369, 429-430, 389-393 and
385-38 9.
Finally, Mr. President, certain views contrary to those of Yrofessor
Rautenbnch were put to-hirn concerning such questions as to whether
universities should be complctely autonomous or not and as to whether
mised universities in the pre-rgjg period did or did not contribute to
inter-racial harrnoriy and understanding. The references on these two
topics arc in XI,at pages 400-403, 403-408 and 441-442.
Now, Professor liautenbach did not agree with ttiese views which
were put to him and, as has been stated before in the course of argument,
our submission is that views and opinions of oiher persons which are
put to a witness, and with which he does not agree, do not becorne
evidence. In Our subrnission, it is thercfore unnecessary to deal with
these vjews and it is also unnecessary to state Professor Rautenbach's
replies to the questions that were put to him. Our submission, hlr. 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 Rantu peoples of South Africa. It is hardly necessary to Say,
Mr. President, that in our submission nothing has been advanced by
the Appljcants to suggcst that the systcm of separatc university education
is incompatible with the promotion of progress.
iVe appreciate, of course, that some of the advantages of the present
system as tcstified toby Professor Rautenbach do not directly concern
the Sative peoples of South West Africa in the same way as they do the
people of South Africa. So, for esample, the building up of their own
universitieç for the Bantu people of South Africa does not directly con-
ccrn, for example, the Ovambo people of South West Africa. As far as
South West Africa Kative students are concerned, the relevant question
in regard to university education relates to facilities availablforthem
in South Africa, arid to the qualitative cffecton their moral tvell-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 bvell-beingis served by the existence of separate facilities, and
that it would be injured by non-separation.
1 should like to point out that in the Alemorials, Applicants alleged ADDRESS BY MH. RABIE 293
that the university institution for the Rantu in South Africa were of an
inferior type. This appears from what is said on pages 157 and 158,I, of
the IIemorials. This allegation was denied in Respondent's Counter-
Mcmorial, wliere the subject \vas fully clealt with. 1refetoIII, page 527;
Of course, this aspect of the case is no longer relevant to Applicants
case as formulated at present. 1 shoulcllike to oint out, however, that
it\vas never put to Professor Rautenbach that t l?e facilities for the Hantu
were in any way inferior. In his evidence-in-chief l'rofessor Rautenbach
testified tliat the material facilities athe Bantu university collcges of
which he kncw, were very good, and that the teactiing staff was of excel-
lent quality; this appears at XI, pages 334 and 335. These statements
were not challenged in any way in cross-examination. The Applicants'
Iearned Agent at one point asked Yrofessor Rautenbach ~rhetherthere
were South [!'est ilfrican stiidents studying overseas, but it \$*asnot
suggeçted that that fact proved a lack of proper facilities in South rlfrica.
In fact, when thi:re was an attempt to re-examine Professor Kautenbach
on thisissue, any such suggestion seernsto have been expressly disclnimed.
1 refer toXI,pages 454 and 455. But, as 1have said, adequacy of facilities
is not the issueas the Applicants' case is formulated at present.
1 conclude, fiIr. President, by repeating Our submission that the evi-
dence has shown that the present system has decided advantages for the
Bantu people, and that revcrsion to the earlier system wouId be injurious
to the qualitative well-being, particularlyof those perçons about whom
Applicants are specially concerned.
AIr.President, that concludes my address, and with your permission
mg' colleague, Rlr. Grosskopf, will now address the Court on the economic
aspect of the case. 32. AUDRESS BY %IR.GROSSKOPF
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINCS OF 4 AND 5 NOVEMBER 1965
If it please the Court, >Ir. President,as rny learned friend has said,
1 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 sideto show that Applicants' norm or standards as
defined at page493, of the Reply,IV,will, if applied to South West Africa,
in many respects not promote well-being and progress alsoin the economic
life of the 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 AppIicants, as well as to the evidence given by
various witnesses.
The main witnesses who testified in particular on the economic aspects
were, firstly, ProfessorK. F. Logan, whose evidence may be found in
X, at pages 336-429 and 479-jO5 T hen, 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
&Ir.Pepler, whose evidence is found in XI, pages 202-251.
In our submission these witnesses were clearly competent toexpress
opinions on the ecotiomic aspects of Respondcnt's policies1 do not want
to go into their qualifications in detail, but perhaps it might be con-
venient to give a brief sumrnary. Professor Logan, the first one-his
qualifications are found in X, apages 337-346.He explained to the Court
that hismajor field of study was geography, of which he was a professor.
It is not necessary to give his acadernic qualifications in detail, but in
viexvof 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 onefinds in X, atpage
337, where lie 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 urere consequently inter-
ested not only in ail elements of the physical environment, that is, the
climates, the naturaI resources and things of that sort, but that they
werc also interested in thernanner in which the elements in question are
utilizedby man. Professor Logan then continued, still aithe same page:
"So it is necessary for us to know aboutman, that is, the different
groups of men. both racially and ethnically, that occupy a given
area, and we also need to know about tiie stage of technology, the
stage of material development of these people, because different
societies use land in differentys and so we are interested in this
aspect. Ive 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 IIIRGROSSKOPF 295
raphy of an area. Consequently Ive 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 fie said in the same verbatini record, at page 344:
". ..there on at least à number of facets 1 think 1 can testify with
a fair degree of cei-taintand rvith a fair degi-ee of technical know-
ledge".
Professor Logan has published somewhere around 70 publications on
his subjcct, of which details are given in the verbatim record, Xi 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 and regions, to desert
lands, and he has done a great deal of work in that sphere in various parts
of the world. Anci he told the Court that it was pursuant to this interest
of his that he became interested also in South West Africa, whcre he has
done a considerable arnount of field research work; that is in the same
verbatim record, at pages 338-339
I have gone into Professor Logan's qualifications in pcrhaps more
detail than 1 otherwise would have because Applicants' Agent laiinched
an attack on his qualifications as an expert in the sarne verbatirn record,
at pages 340-346. Horarever,at the end, when asked whether he chal-
lenged the cornpetency of the witness as an espert, he said at page 346:
"Not as an expert with respect to his disciplinas 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
born and grew up in South ihçt Africa, with which Territory he has
still retained personal and professional bonds and has, inter aliraper-
formed economic research there. He holds the degrees of R.Conim., M.A.
and a doctorate in economics at Amsterdam, as well as a doctorate in
philosophy at Pretoria. He is Professor of Economics and Head of the
Department of Economics and Economic History in the University of
South Africa. He also serves on a nurnber of cornmittees concerned with
economic affairs, and participates in the work of several econornic
institutions and societies. His special field of study concerns the use of
economic accounting in development pIanning, with particular reference
to Africa, and in this connection he ha done research in various countries
and territories in Africaaswell as the United States of Arnerica. He haç
also published several publicat:ioils on economic affairs.
Tlien there is Mr. Pepler, whose 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 fieldof agricultural
technical services. At presenthe is Director of Santu 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 varioiis homelands are concerned. He also
serves on a nuniber of government bodies, and has represented his
country at international conferences relating to agncultural matters. In
the course of his official duties haç also paid a number of visits to the
Territory, details ofwhich may be found inXI, atpage 219.2g6 SOUTH WEST AFRICA
Now, Mr. President, Save for the case of Professor Logan, to which
1 have already referred, Applicants have not sought to impeach the
expert qualifications of any of these witnesses, and in oiir submission,
their cornpetency has been clearly cstablished. 13eforedealing specifically
with Applicants' case, and the application, pr 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
\est Africa. This background derives frorn the historical, geographic
and social factors in the 'l'erritol. It appears from the admitted facts on
the pleadings, as well as the evidence of the witnesses to whorn 1 have
just referred, tliat these factors have given risc to a number of basic
problems regarding ecoiiornic developrnent. These may be summarized
as follows.
The first factoris the size of the Territory. Xo\v South IlTest Africa
has an area of 824,269 sq. kilometres, which includes the area of IIralvis
Bay, which, although part of the Republic of South Africa, is for con-
venience administered as part of South West Africa. That is in the Coun-
ter-hlemorial, II,at page 291.
The Court will recall that in the Counter-JlemorialII,page 291, map z
shows graphicnlly how one could take South West Africa, and how the
Netherlands, England and Liberia could be placed within its borders with
lots of rooni to spare, so it is a very large territory indeed. 'Therelevance
of this factor to econornic development was explained by Professor Krogh
in XI, at page 72, where he said:
", .. the implicatioiis for economic developrnent are rather self-
evident-to eçtablish in any short period of time cffectjve ad-
ministrative control, means of communication, transportation and
so forth over an areazo times that of the Netherlands, is technically
and financinlly simply an impossible task. It lvould take a very long
time to estend the nccessary public utility services for the encourage-
ment of economic development over so vast a territory."
Aç the second factor, I should like to refer to the nature and distribu-
tion of the natural resourcesofthe Territory. A brief survey of thenatural
resources of the South West is provided in the Counter-i\lemorial, II,
at pages 301-310, under the headings: "Water Resources", "Land
Resources", "Minera1 Resources" and "Marine Resources". There it was
stated in general, at page 289:
". . . the natural environment of South \lJest Africa is to a large
evtent unfavourable for man's purposes and that it dispIays great
diversity, resultingin çpecial problems of administration and devel-
opment. The adverse physical environment places a premjum on the
role of man in realizing the limited and diverse natural potential
of the Territory."
Dealing specifically with water resources, itwas shown that rainfûlI
varies between les than 50 mm. (i.c.,2 in.) in the south-western part of
the Territory to more than 400 mm. (16 in.) in the north-eastern part of
the Territory (on p.295, II). Indeed, &Ir. President, \iresaid in the
Counter-AIemorial that the north-eastern part of the Territory, and 1
quote from page 298,II:
". .. has the cornbined advantages of a higher amount of rainfall,
a longer rainy season and a smaller variability of rainfall". ADDRESS BY MR. GROSSKOPF z97
In addition, by reason of the availability of water in the perennial
rivers along the northern boundary of the Territory, and 1 quote from
pages 303-304, II,of the Couriter-Memorial:
". . . the only considerable 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 serious impetliment
to substantial industrial development, and tends to restrict agri-
cultural activity in the major part of the Territory to livestock
farrning."
And asregards mineral resources, we said, at II,page 307:
"South \\'est Africa has a great variety of minera1 deposits but
only a felv have proved of real economic importance. There are
concentratcd occurrences of diamonds, leadlzinc, copper aiid salt
deposits; for the rest the Territory's minernl resources arc char-
acterized by rich samples from srnall quantities widely dispersed
over the countrjr."
And the final item in the list of naturai resources. Mr. President,
relates to fishing with regard to which we said, at II,page 308:
"In the period aftcr World War II South West Africa has emerged
as a considerable fish-proilucing 'Territory, due to the prescncc and
exploitation of a teeming marine life along the otherwise barren and
inhospitable coast."
. These then, Mr. President, are the main features of the natural endow-
ment of the Territory. EVithin the extremeç of rainfall and climnte to
which 1 have referred, there are found a number of different regions, each
with its own particular problems. 1do not want to go into any of tliese as
they are set out and classified in the Counter-Nernorial,II,pages 298-301;
by Professor Logan in X, at pages 340-355; Professor Iirogh in XI, at
pages 72-73, and Ur. PepIer in XI, at pages 208-211.
In general, Rlr. President, Professor Krogh summed up his evidence
on this aspcct as follows, inX, at page 73:
,. . . speaking genernlly, Tthink South \Vest Africa can be described,
from the viewpoint of econornic development and looking at its
natural resources-as a poor territorp. Tt is not only poor, but also
displays great variety or differences in the location or qualityof its
resources."
Now, Mr. President, the most striking difference bctween various areas
as regards natural endowment was sumrnarized Iiy Professor Logan in
his evidence in the following words, and 1quote frorn X, at pages 367-368:
"\i7e can divide the Territory of South ljTest Africa ... into tm*o
contrasting regions ...
We linvc in thc soutll an area tl-iat is poorly endowed as far as al1
aspects of agricultural and pastoral activity are concerneci. Its
natural resources are quite limitcd. The sole big resource is tliat of
the diamonds along the estrerne southern coast. Thearea, otherwise,
is lacking in most mineral resources. Tt is lacking in good, reliable
precipitation. It has a relatively poor vegetation. That anything has
been done with it, 1 think, is most remarkable. Vast portions of it,
were they under many other economic systems, would have been
left totaily unused and yet they are today produclng a modest income2gS SOUTH WEST AFRICA
and in sonie cases, a fairly good incorne, to the people who have
developed them in the last 70 yenrs or so.
NO;V in contrast to this,'theré is the northern port'ionof 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
onIy area of eilough precipitation to allow field crops to be grown
successfully in almost every year, perhaps 9 years out of IO. .. 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."
Xow, Mr. President, the facts to which 1 have referred are, of course,
admitted explicitly in the case of the passages from the Coiinter-ùfemorial
and, we subrnit, implicitly in the case of the evidence given by the wit-
nesses, by reason oi the failure to cross-examine. In passing, however, it
may be instructive to note the following comment which appeared in the
Memorials, 1, at page 109:
"The Police Zone embraces generally the southern and central
sections of the Territory, bcing the richer and better developed
portion . . . The smalIer segment, lying to the north, is the poorer
and less well developcd portion ..."
And in the Keply, 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 ta natural resources, but
at most to a cornparison of development brought about by the population
groups occupying the areas concerned. It is also obvious that theçe facts
give the lie to rnany statements made before the United Nations by
petitioners and others to the effect that the Reserves are al1situated in
desert areas, that the non-ivhite inhabitants are relegated to the worst
portions of the Territory from an agricultural point of view, that the best'
lands have been taken away fromthem, and so on.
Reference was made to some of these statements by my learned
friends, Mr. Van Rooyen and Dr. Van Heerden, last week, and 1 would
refer the Court to pages 120-123, 146 and 151, supra, just by way of
example of the type of statements ihat are made.
1come 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 -4fricahas a population density
of just over half a person per square kilometre. With the exception of
Bechuanaland, which adjoins the Territory, it has the Iowest population
density in Africa south of the Sahara. That one finds in the Counter-
Mernorial, II, page 292. In this regard Professor Krogh said in XI, at
Page 74:
"Africa as a whole has the lotvest population density of al1
continents in the world. So South IVest Afnca is in fact an exception
inAfrica, which again is an exception in the world."
The detrimental effect of this feature was summed up by him as
foIlows, at the same . .e:
"Low population densities, apart from indicating the necessity
for esporting hecause of a limited local market, also add weight to ADDRESS BY MR. GROSSKOPF 299
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.1 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
Iack of entrepreneurial eIements, enterprising elements" (XI, p. 74),
found in the tradition-bound societies of the Territory, which Professor
Krogh contrasted with the modern, dynarnic, 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 froma basic cultural difference between the
two groups, which is generally recognized by experts on the problems of
developing counitries. The implications, as far as the tradition-bound
society was concerned, were summed up by him as follows in the sarne
verbatim record, at page 94 :
"This simply means that the problem of economic development
lies in gradua1 cultural change, and is not simply a matter of
supplying ïorejgn aid and technical assistance to them. It is not a
pure econornic-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 cluoted by my learned
senior, Mr. de Villiers, and this passagisfound in X, at page 345, 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, thatit 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,1
think, result in almost imrnediate 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 nosuch initiative, from the local Native group, 1 am
afrajd that things would fall apart very quickly."
The same point was made in the pleadings-in the Counter-Mernorial,
II,pages 408 and 410-4 I1and III,pages 44 to 46,page 68 and page 101-
and as such,of course, now admitted.
The next feature, Mr. President, to which 1would advert, is the social
environment of the population. This feature ha been discussed before.
It relates to the heterogencity of the population and my learned friend,
Mr. Muller, referred to it at page 194, su#r'a; and itwill be recalled
that in this regard Professor Logan said. in X, at page 368, "1 do not
believe there is anywhere inthe world a more diverse" population.
For present purposes, that is as far as economic policy is concerned,
this feature is to betaken into account when applying policies which in
a hornogeneous society would have been eminently sound frorn an30° SOUTH N'EST AFRICA
economic point of view. I>rofessor Krogh said in this connection, when
he referred to members of such a Iieterogeneous population, that-
". ..their loyalty is first and foremost, and their interestsare seen
to be those of their particular group rather than of the population
considered as a whole. 1 make this point ... because it is very
dificult, under such a set of circumstances, to devise a policy of
administration and developrnent that could in fact satisfy every
group ... [and] everywhere in the Territory. To deny that this
exists is, withoiit doubt, inviting disaster and strife in theTemtory."
(XI, P.75,)
l'hose, then, Mr. Presidcnt, are the features which witncsses and the
pleadings told the Court teiid to retard econornic development of the
Territory, or at any rate, those are the features which present problems
for any administration which sets about such cconornic developrnent.
It also appears, in our submission, from the record, that is, from the
pleadings and oral evidencc, that these features neccssitate policies which
involve a differential allotment of rights on a group basis arnong the
various population groups. Of course, the political aspects, to mhichrny
learned senior, ilIr.de Villiersreferred on Tuesday, are basic also, from
that point of view, to the economy, in the sense that no economic activity
is possible in a.state of political chaos, or, if one puitata Iower Ievel,
that any political tension, or any political uncertainty, necessarily under-
mines also the confidence, rnatters of investment, and the smooth func-
tioning of the economy in general.
In the course of his prcsentation on the political aspects, JIr. de Villiers
dealt nlso with tht: position of the Europeaiis in Soutli West Africa,
and their important role in the economic life of the Territory, and in
that regard 1 wouId refer the Court to pages 240 to 244, srcpra. -4s he
pointed out-and 1 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 dctrirncntal effect on the economy of the
Territory. Hoivever, 1 do not \vant to traverse that field again, but 1
shall confine myself as far aspossible to matters which are more purely
of an economic nature.
In this regard, Mr. President, the first, and, iiiOur suhmission, one
of the most irnport;~nt rcasons for adopting a differential approach ariçes
from the necessity in South \$Testhfrica of protecting the land rights
-the rights to the possession and use of land-of the various groups.
The Court \vil1recall that in Book LIT ,hapter III, ofthe Counter-Me-
morial, II, WC set out hriefly the historÿ of the various conflicts tliat
had occurred in the Territory, caused largely by disputes regarding land
and grazing rights. The Court will recall that thcrc were always disputes,
for instance, bet~ï-eenthe Hereros and the Namas, about who was eiititled
to graze their stock on a particular piece of territory, or to whom that
land really belongcd. And the Court will recall thnt disputes about land
also formed one of the major causcs of the wlir between the Hereros
and the Germans iii the years 1904 to 1906 n regard to which we said,
in the Counter-Ble~norial, II,at page 373:
". ..economic conceptions differcd widely between the Hereros and
the Germans. 'This mnnifested itself,inter ah, in conflicting clairns
to land. Thus the Gerrnans bought land from the chiefs, intending
thereby to obtain sole rights of property; but this concept was not ADDKESS BY hlH. CROSSKOPF 301
understood by the Hcrero, who resentcd being prevented frorn
grazing their cattle on land mhich they hacl sold."
Furthermorc, &Ir. President, in Book VI of the Counter--ilemorial,
III, we esplaincd how, at tht: inception of the Mandate, it was found
necessary to allocate lancl to the various indigenous groups. We also
explairied how these allocations were in due course increased and es-
tended; that is at III,pages 246 to 253. .4nd, of course, the Court will
be a\r7arethat the Odendaal Commission has now recomrncnded certain
further extensions, and that $orne of the lands concerned have already
been purcliased in anticipation of thesc extensioris.
We also dernonçtrated, Mr. Presidcnt, in my submission, in Book VI
of the Counter-JIemoriai, that there was always n sirong tendency on
the part of members of the indigerious groups to dispose of their land
at esccssii~ely loiv prices, and certain esamples were given at III, page
245.
Mr. President. of course, thcse thiiigs are matters of historical kiiow-
ledge and we do not suggest that thc Native population of South West
Africa is today as unsophisticated. or as economically unaware, as it
was 40 years ago.
Howcver, Air. IJresidcnt, this tendencj;-the tendency to seIl land at
uneconomic prices-will always persist. in our submission, as long as
there is a substantial differcnce in the productivitjr as among the various
groups, because, Alr. President, when one speaks of an ecoiiornic or an
uneconomic prici; it depends on one's point of view. A price may be
extrcmely ecoriornic from the point of view of the seller inasmucli as
the seller may be deriving much more from the sale of tlie lands tlzan
he could evcr derive from cultivation of the lands, but it rnay be, by
any objective standard, a very low price. It is from that point of view
that in the case of a cnpita1 nssct such as land, its price must rilwriys
depend or1tlie return which can be clerived therefrom.
Xow, in the case of the Kative peoples in South \Vcst Africa, thc
return hich tliey derive froni the land iç very much srnaller than the
return which a progressive and modern European farmer ïvould, or
could, derive. Tliat, Mr. I1'resident,in our submission, appears cleczcly
from the record lierein.
Thc Court may recall that we macle reference to the Rehoboth Basters
which is one of the most advanced population groups in South \iTest
Africn. In 19zG there was n Commission of Encluiry into their affairs
ancl tlie Chairrnnn of the Rehoboth Commission of that year stated in
his report that, in his opinion which lie based on facts disclosed in the
report :
". . there [was] no doubt whatever that liberty to alienate land
to Europeaiis would inevi1:ablyresult in tlie Burghers [of Rehoboth,
that is] Iosing the greater portion, ifnot the whole, of their land
within a comparati\~ely short period of time." (III, p. 245.)
In regard specifically to Rehoboth, Mr. President, the policy was
thereafter pursued of encoiiraging the Rasters to farm their land thern-
selves and to eiicourage them to improve their agricultural methods,
ralher than to sel1it or tolease itta European farmers.
Rut as late as 1957 this policy drew the followihg 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 'Europeati' leasing
farms from Rehoboth landowners automatically deprives the Reho-
both landowners of a major source of income." (IiI, p. 33.)
In other words, JIr. President, the cornplaint is made that if they
are not allowed to lease their land tlien they are deprived of incorne
from the land, which, as we pointed out in the Counter-Mernorial,
suggests that :
"Thus the Cornmittee 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 asum equivdent tosuch rent." (Ibid.)
In this regard I rnay also refer to the evidence of Professor Logan
in X, page 355, wliere he also dealt with agricuIture in the Rehoboth
area, so that, Mr. President, the picture emerges of even the most
advanced, or one of the most advanced non-Euro ean groups not being
able to farm progressirely enough to raire as mucR rnoney 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 utifization of the land on the Nama Reserves
l'ses and Berseba and the European farms imniediately adjacent to
these Reserves. Hi: 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 al1 their occupiers than the Reserves did. His in-
vestigations also showed that this contrast did not result frorn any
difference in thenature or quality of the land or intlienature or quality
of the services and encouragement provided by that administration,
but purely, ashe testified, from the traditional approach and attitude
of the various groups. In the verbatim, X, at page 3j9, he testificd
regarding a similar 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 income 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. In some years it
is not. In the pars in which it is not, there is no reliance whatever
upon irrigation anywhere in the area. Even in the Okavango area
in which the Okavango River flow even in drought years, a large
river on the surface flowing very frequentiy right alongside of the
fields which are dying of drought, there is no carrying of water at
al1 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 goups carrying on irrigation.
This is entirely a subsistence type of agriculture, these people
produce for their own needs, they do not produce for the market. ADDRESS Bi'YR. GROSSKOPF 3O3
Sor do they buy anything on the market. Tt 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 thisis
a purely subsistence type of agriculture or economy." (X, pp. 363-
364.)
Now, Mr. I'resident, to avoid any misunderstanding as a result of
the use of the words "subsistence economy", it must be empliasized
that such rcferencesdo not suggest that the perçons involved suffer any
lack, or tliat they were not producing enough to satisfy their needs.
as indeed Professor Logan sltowcd 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 eniphasized that this subsistence
type of economy and the approach which it shows are not exyected
to remain unaltered. Indeed, al1 the witnesses on the economic aspect,
and in particular Mr. Pepler, esplained to the Court what efforts are,
in fact, being made to lead thi: Eatives to a higher level of productivity
and to a more progressive approach, what success they have been having
and what prohlems they have encountered. 1 may refer the Court to
hIr. Pepler's evidence in XI, at pages 211-217, and this is a topic to
which 1 shall corneback at a later stage.
Furtherrnore, as noted by my leamed friend, &Ir. de Villiers when
dealing with the political aspect,Nr. Pepler also, ernphasized thnt the
present Rcserves-the present areas for the in+rgeiious inhabitants-
could accommodate the whole Yative population on an agricultural
basis. This was dealt with by my leamed senior at pages 243-244 stcpud.
Mr. President, before the adjournment I was dealing with the need to
protect the land rights of the iiifferent population groupin South West
Africa. 1 had just finished referring 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 1 have shown, this has in fact becn the practice in the
past. Land has been sold for priceswvhich appear extremely low to us.
The inevitable result of this situation would be, in out-submission, that
unless there is some measure of protection, many ofmost Natives would
be induced to sel1their land.Tliisview was espressed by al1the witnesses
who gave evidence on this topic. Thus. Professor Logan \\+as asked,
at X, page 373: "Do you consider that rneasures of differentiation to
protect the various groups art: necessary?" The first part of his reply
reads as follows atpages 373-374:
"\'es, I think there arc protective measures in esistence today
that have to be continued. The first of these. 1 think, are protective
rneasures to reserve the lands of the Katives-this is to reserve the
lands of the Natives against the Whites.1 have just painted a cluite
nice picture before the tea recess of the northern part of the Terri-
tory.3O4 SOUTH WEST AFRICA
There are a great many White farmers on rather drought-stricken
farms in the South who wouId be delighted to move into the Oka-
vango and push a group of Okavango Natives out of the area.
They \t70ulddo 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 Yrofessor Logan gave some esamples of e?ipcrimental irriga-
tion projects for Natives in the Okavango, which arc at present being
pursued. Hc thcn continued, and Iquote ngain from tlic same pages:
"Were controls tobe pulled off, we would find that, insteacl, ive
would have soine European irrigationists in the area very cluickly.
The same is true of Ovamboland, much of Ovamboland is very
fine agricultural land. If it were not under control, certainly many
Whites would inove into the area and take it over."
Replying to a similar question, Mr. Pepler said, XI, at pages 218-219:
"It is my personal opinion that if a norm of this nature has to
apply, if1 interpret it correctly, it will be a very tragic day for the
Native peoples . ..hlr. Prcsident, I think that other groups [that
isgroups other than the Natives], more highly developed, 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 lessdeveloped pcople,
will be the sufferers for it."
Professor Krogh said,in XI, at page 82:
". .. it follows from what 1have said previously in reply to other
questions that it \voiildbe necessary to protect the economically
weaker or less productive or less viable groupi: againstthe econom-
ically stronger and more resourceful with regard to land owncrship.
Thus, for example. it would be necessary to ensure that the economi-
cally more resourceful and stronger group mould not transgress
ont0 the land owiied by the economicatly weaker and less produc-
tive, for if this protection wns not given 1 have no doubt tliat
in a relatively short period of time the economically weaker groups
holding land would in fact not have an opportunity to earn a living
on the land; they would, in fact, becorne a landless people if no
protection was afforded in this respect."
Tliese opinions, ~vhichwere cxpressed bp tlic cxperts 1have mentioned
which we called, were not contradicted in aiiy way aiid they were not
attacked in cross-examination. In addition, wesubmit that these opinions
aresolidly based or]undisputed and undisputable facts.
Now, the question may well be asked, what is the benring of al1this
on the norm or standard? My subrnission is that it is clearly impossible
to protectthc land rights of the Natives without allotting status, rights,
burdens, privileges, disabilities or 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 al!the qualities necessary
for successful farming along the Okavango, he may have experience,
ability, energy, capital, everything one needs, but nevcrtheless for tran-
scending or more important reasons he is prevented from farming there. ADDRESS BY MR. GROSSKOPF 305
Sirnilarly, one may have a siiuation where one has a member or cliief
of a tribe in the Okavango wlio might be in need of money, who might
ivant money, who might evcn be able to ncgotiate a favourable or
suitable price, and might even possibiy have sufficient sophistication
to know what to do with the money once he has it. Howcver, in the
intercsts of the group as a whole, it is necessary to prevent him from
selling the land. Purthermore, in this situationit is clearly also a case
when an individual should not be allowed toleave Iiisgroupor to contract
out of his obligations or rights as a member of the group. You will
recall, Mr. Yrcsident, that at:one stage my learned friend suggested
that that possibly might be a feature which would render an allotment
of rights in orrler if a particular member of a group were to be eiititled
to leave that group or to abandon his rights and privileges or obligations
as a mernber of that group.
Now, if one ivei-etoprotcct the land rights of the Natives then clearly
it niust folloiv that no individual Native could practically have the
right to leave tliat group or to Say to himself or to the authoritics:
well, if1 am not allowed to sel1my land because 1 am a Native, then
1 would rather not be a Native. If that yere to be the case then the
whole idea of protecting land rights would be rendered nugatory. The
whoic purpose would comc tonothing. Siniilady, irprospective European
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 reasons of his own, then that again wouId rcnder entirely nugatory
ail these provisions which are there for a sound purpose. One would
then soon have the position, it is submitted, that a numberofEuropeans
would avail themselves of tliis opportunity. Tliey would go there, they
would buy up the land ancl they woiild farm there and the result would
be that in the end al1 the land mould be in European hands. It would
probably have a much higher prod~ictive capacity than formerly, but,
on thc other Iiand, on the debit sidc, one would have the Okavango
Natives dispossessed of their lands and dispersed from their environ-
ment:
So that, >Ir.President, Iny subrnission is that on any basis this is a
sound principle. Nevertheless, on the other haiid, on any possible basis,
these provisiorls for protecting land rights offend against the norm or
standard which my learncd friend suggested. One can hardly seriously
say that that is not a case where rights or privileges, or viewing it from
the ottier side, disabilities, are granted purely on the bofimembership
in a group, or a class, or a race and not on individual merit at all.
Hourever, on<:finds that this is one aspect of differei~tial allotment
whidi my learncd friends npl)arently do not object to. 7'hey have not
attacked it in cross-examination at al1 and thcy have indeed not even
included it in their illustrative catalogue of measures to which they
object. The catalogue, as the Court will recall, appears in IX, and as
far asthe econornic aspect isconcerncd, on pages 284-287.
Now, Mr. Prcsident, it is siibmitted 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 isan important one, shows how untenable their argument is.
Up to now 1 liave dealt particularly with the protection of land rights30~ SOUTH WEST AFRICA
of wealier groups, economically speaking, against stronger groups from
an economic point of view. However, quite apart from the problems
which arise where there esists 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 alid possessio~iof 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. 1 would refer in this
regard to the Counter-Memorial, II, pages 316, 319,325, 339 and 346-347,
In these passages ive 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 also irnpinging
on the social and the religious fields. 1 would also refer the Court to the
evidence of Professor Bruwer in X, at page 357. This land in the tra-
ditianal systems is heId in communal ownership and it has al1 these
\vider implications to which I have referred.
These various factors. in Iny submission, Mr. President, support the
opinion expressed tiy 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 development . . . it could very well leadto sociaI strife
and upset the delicatesocial balancc in the Territory if members of
one group insirted on obtaining, or in fact obtained land occupied
by another group, if tliis other group felt thathis would lead to the
alienation of tlieirland . ..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-operationand development
in the Territory."
This is, of course, ilIustrated by the events which in fact occurred
prior to the advent of the European population, when there were al1
these quarrels between the various goups, largely about land.
Both the açpectç of land protection to which 1 have referred, that is,
the aspect of protection of the econornically weaker against the econom-
ically stronger, and also the social implications involved in land rights,
are, it is submittetI, illustrated by the circumstnnces relating to the
purchase of agricultural land in the Police Zone of the Territory. In the
Memorials, at 1,page 114, Applicants said:
"In çum, on the basis of available information, it may be inferred
that no individual 'Natives' own land or can own land anjwhere
within the Territory of South West Africa."
That was the allegation in the Mernorials but, aç we pointed out in the
Counter-Mernorial and is now admitted in the pleadings, there, in fact,
exists no Iegal provision prcventing non-Whites from purcliasing agri-
cultural land in the Police Zone. That appears, inGeralia, in the Counter-
hlemorial, III, pages 319 and 324. That is in the Police Zone, as such.
Of course the Court will recsll that in the Reserves land is utilized on
a communal basis, which is the traditional systern obtaining, and which
Respondent has not, as yet, changed because the groups appear to
prefer it to remain lis such.
However, corning back to the Police Zone outside the Reserves, the ADDRESS Bi' MK. CROSSKOPP 3O7
fact that no Native has, as yet, purchased any farm or agricultural
land there, in ProfessorKrogh'ç.view, illustrates the following:
". . . that they are gther not able to afford this land-because
the market value is determined by the productive use made thereof
by \\,\'hitefarmerand they cannot afford this and cannot use that
Iand productively-or even if they can afford it, that theprobably
will not wish to stay there among these White farmers". (XI,p. 84.)
Thus, in my submission, Mr. President, showing both the economic and
the social aspectsinvolved.
Now, Mr. President, that, then,as faras the protection of land rights,
which is a very important thing in an agricultural country or territory
such asSouth West Africa, as I have said in our submission, by itself
shows the untenability of Agiplicants' case on the norm and the fact
that, if it were to be applied, it woulbe detrimental toprogress of al1
the groups.
A further aspect in which differentiation is, in Our submission, essential
-and in the viewç of the experts calleby us-is aç regards commercial
and employment opportunities. As regards commerce, there are certain
facts which are undisputed on the record, to which 1 should like to refer
bnefly. Firstly,Air. President, itappears that bettveen 1952 and 1960
Ovambo traders in Ovamboland were permitted by law to open smaii
businesses without payment of the prescribed licence fee, and without
complying with çpecifications laid down for shop buildings. Since 1960,
licence fees are charged for the benefit of the Tribal Fund, but the
method ofobtaining licences is simpler and less expensive than in the
rest of the TerritoryThat appears in the Counter-Mernorial,III,at page
101.
Now, if the Court will recall, Europeans are not allowed into that
area at aI1,except in certain cases, ço the Native tradesrnen 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 al1 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 Keserve rcquest that a particular Eiiropean
be allawed to open a business, which occurred years ago in the Waterberg
East Reserve. These facts are set out, &Ir.President, in the Countet-
Alemorial, III,at page 102.
In urban areas, business anil trading rights in Native townships have,
since 1951 ,een reserved by law exclusively for Natives. To promote
trade in the townships, Native dealers in seireral urban areas are ex-
empted from observing the ordinary shop hours. Those facts, 31r. Presi-
dent, mal be found in the Counter-lllemorial,III,at page 102.
Now, Mr. President, the re;ison for this preferential treatment of the
various groups is,inmy submission, quite clear. In the words of Professor
Logan :
". . . if thiwas thrown open to equal opportunity, al1 sortsof
avaricious entrepreneurs wouId move into the area, and in a short
time the existing systeni would he a shambies, and the Native
traders, who are today able to compete quite wcllwith the pcrinitted
Imite traders in the area, would be totally out of business". (X,
P.373.)305 SOUTH WEST -4FRIC.I
The extent to which the protective mensures implemented by the
Administration have in fact led to an increased participation by the
Native population in commerce, is, in my submissioii, sliown by the
facts we have sel out in the Counter-Jlemorial, III,pages 101-103, and
which facts are, of course, now adrnitted. So that, in surn, Mr. President,
it would appear agiin to be a case where it is necessary, in the generd
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, Mr. Prcçident, 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 Xative businessman, who has risen above the general
level, by giving hini a chance to rise even higher and to help others up
with him.
Now, alliecl to this topic, Mr. President, is the subject of holding jobs,
in which regard Professor Krogh iiluçtrated the general policy in the
Territory asfolloms :
". ..there is prefcrence given to the emplo ment of Ovarnbos in,
for instance, jobs available and created in 8 vamboland. 1 have in
fact beeii there quite recently and 1 have seen that in the field of
public administration, jobs are being held and preference is being
given to the Ovambo to the estent that these people are available.
They are encouraged to hold jobs in the fieldofpublic administr at'ion.
I have also seeii thern doing skilled jobs connected with development
projects that ;ire in progress there on a large scale. 1 have seen
Ovambo contractors making bricks, driving tractors and employed
inal1 sortsof other occupations. 1 saw a lactory there quite recently,
at Oshikati, not far from Ondangua, where on the factory floor there
were Ovambo skilled and uriskilled workers ...I stiould put it, very
rouglily, at let us say something like25 or 30 of them workirig there,
and there were only at that time two LVhites serving there to
demonstrate to them and to manage this particular factory, but
on the express underçtanding by the authorities that as soon
as a qualified member of the Ovambo group wns able to do this
job tl-iis would bc given to him, evcn if he were, economically
speaking, less qualified than the iVhite manager to do this." (XI,
P 85.)
Again this is a case, in our submission, wfiere it is necessary, in tlie
general well-being, to allot rights on a differential basis as amongst the
different groupç-in this case in order to uplift the one group which,
at present, is still less developed than the other.
Professor Krogh ;idvertecl also to the restrictions on job opporturiities
for non-Whitcs in the White areas. In this regard, he said:
"1 know of this and 1 cari understand why these restrictions
operate, but at the same tirne it is very important to remember
that a much wider range of restrictions operates with regard to job
opportunities iri the non-White areas compared with these few posts
inthe mining Industry and in the supply ofpublic transport." (Ibid.)
The justification for these limitations was seen by Professor Krogh
in features which he surnrned up as follows, in the sarne verbatim: ADDKESS HY MR. GROSSKOPF 3O9
"1 can understand the reason for these restrictions-yes. 'I'hey
are in the interests of protccting those who would otherwise have
to face unfair cornpetition from the economically strongcr. I can
also undcrstnrid that wliere this is not the case, even if they were
at the same leve1 of economic development, that it is siniply a
matter of the group insisting upon and wanting these job oppor-
tunities not to be occupied 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, 1cannot over-emphasize, there is little prospect of
economic detrelopment in the Territory an*ap." (Ibid.)
So that, in this regard, Professor Krogh emphasized that social peace
rnight require certain measures which, from a purely economic point
of view, might otherwise not be justified in the same way.
Although, Mr. President, Applicants dia not in their pleadings or
cross-esamination dispute the necessity or the aclvisability of special
measures to protect and promote the econornic advancement of the
various Native groups, evcn if they entailed limitations or deprivations
for individuals of Europenn descetit, or of the Coloured group or of
othcr Native groups, although f.hey did not appear to clisputthe necessity
of thase measures, nevertheless, they devoted a considerable part of
tlieir cross-examination to the job disabilities of Natives in the imite
areas.
Now, Mr. I'reaident, my lcnrned senior, Mr. dc Villiers, has dealt
with the apparent purpose and effect of Applicants' cross-examination,
both generally and also rvith some rcference to the economic aspect.
1 shall, also, at a later stage, make brief refcreiice thereto. However,
at present it will suffice to point out that the Applicants' norm or
statidards are cither applicable or non-npplicable. In the way in which
they have formulated them, tliey cannot be appliecl to some allotments,
to the exclusion of others. 'I'heyare either applicable to any allotment
of rights, burdens, privileges, etc., on the basis of class, group or race,
rather than on inciilridual qualities, or they are not applicable to any.
They have not suggested that there are only sorne or a certain class
or a particular type of allotnient-clifferentialallotment-of riglits to
which they object. So, >Ir. President, if the norm were to be applied in
South IVest Africa, for instance, it would not only strike, in the economic
sphcre, at job limitations of Natives in ]!'hite areas, it would equally,
in ?y submission, and neccssarily, çirjke alsoat bencfits or privileges
wliich non-Eui-opeans h.ave, as against Europeans. It would cqually
strike, for instance, at the protection of employment opportunitics or
cominercial opportunities of the non-European populat~on. It would
equally strike at the protection of the land rights of the non-European
population. So, hir. I'resident, one cnnnot, at any rate as my learned
friend formulated his case, divide up tliese various allotments into those
that are good and thosc that are bad, because, as Iie formulated his
case, the norm and standards would strike at al1of them, whether good
or bad, whether they affected Europeans or non-Europeans, and irre-
spective of how they affected Europeans or noil-Europeans.
Mr. President, the finalrcason, in thc economic sphere, for the necessity
of a poIicy which differentiates betwecn various population groups, is
the consideration that there are certain çpecial rnethods of promotion
and improvement, which are necessary as between the various groups.310 SOUTH WEST AFRICA
For example, it would be impossible to secure any irnprovement 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 clifferent point of departure, and it must therefore
follow a different niethod.
These different methods were described. amongst others, by Rlr. Pepler,
in XI, at pages 211-218, 248-250and by Professor Logan in X, at pages
35r-352 and 366-367. Z do not want to go into any of these detaib,
Mr. President. The Court wiIl recall how hlr. 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 individuallp, as distinct frorn other Native groups. In
sum, Professor Krogh said:
". .. because your problems are different you will have to have
difierent approaches and you will have to use different measures.
You will have to have different policies with regard to the economic
development of these particuIar groups and the areas which they
occupy ...". (XI, p.80.)
TheIn conclusion,d&Ir. President, it must again be emphasized that al1.
these measures, to whicli I have referred, necessarily involve the allot-
ment of status, rights, obligations and privileges, on the basis of member-
ship in a group, claçsor race, rather than on the basis of individual
quality, potential, etc. For the reasons 1 have also given, it would be
impractical in any of these cases to permit an individual to abandon or
his rights or his privileges or his disabilities as a member of
a0pgatiecu ar group. That would render the mhole purpose of the differ-
entiation and ofthe rneasurenugatriry.
Now, in culmination, Mr. l'resident, 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 rneasures. The
replies wcre the following. First, Professor Logan said:
"Well, 1 think probably what 1 have said during the past few
minutes has somewhat led upto this: that to remove the controis
would result in the domination of rnany by a few, would perhaps
result in the sirbjugation or almost the obliteration, of some of the
existing tribal groups, it would result, 1 think in rnany cases, in a
reversion to ail oldway of life and that wasa way of violent antag-
onism and frequently of warfare.
The economy, as it ha5 been developed, both on the European
basis, and on the Xative baçis, would, to a large extent, fall apart.
In other tvords, what 1 would visuaIize myself, if al1 controls were
to be abolished in the acea 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-1 have already quoted it and 1 shall not do so again-
that the land rights would inevitably suffer. Professor Krogh snid: ADDRESS BY MR. CROSSKOPF 3IX
"... under the circumstanceç 1 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 thjs Iparticularly referto the non-White
population groups. 1 can also see that they would not tolerate this
and that tliis might very well lead to social strife, that would in
fact arrest the economic development of South West Africa. The
economic developrnent of this Territory is esceptional in Africa,
even having grown from a lower base than that of the Republic of
South Africa, it has advanced at a rate faster tlian that of the
Kepublic of South Africa, during the last 40 years during ahich the
Iatter expenenced a phenomenal industrial revolution. Confidence
would be lost, economic development and bettement would be
arrested as a result of encouraging, as it were, social strife in the
Territory. And, 1 cannot see how the long term basic problems of
economic clevelopmcnt in South West Africa would thereby be made
any easier.In fact, 1 believe tllat more problems would be added
to its economic development." (XI, p. 86.)
That is the end of that quotation, 31r. President.
Those then are the witnesses rvhogave evidence specificaliy on the
economic field. 1 should Iike also to rcfer to one opinionof aperson who
is not an economist, and that is Dr. Eiselen.
Reference has already been made to his evidcnce by my learned Senior,
Alr. Muller, at pages 201-203, supra, and, although Dr. Eiselen is notan
economist, he possesses, in my submission, such an intirnate knondedge
of the people and the circumstances in South \Vest Africa that he is
clearly competent to express a view on this particuIar question. It wi1l
be recalled, hlr. 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:
"Rlr. President, in the case of the econoinic sphere, it is very
difficult toliink that anything could result from this except chaos.
I have tried to put before the Court information in regard to the
state of civilization-thestate of advancement-of the variaus pop-
ulation groups in South \\'est Africa, and to explain that they have
not so far responded very well, and that applies particularly to the
field of economics where, on the one hand, they have shown great
reluctance to depart from their own primitive customç 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 al1 these matters upon the
initiative of theWhite people." (X,p. 114.)
That is the end of the quotation. The point to be emphasized is that the
witness considered that nothiiig could result froni this except chaos.
Mr. President, turning now to the reaction of Applicants to this
evidence-their reactjonin the cconomic sphere fallotved much the same
pattern as that sketched by my learned Senior, &Ir.de Villiers, onMonday,
which appears, at pages 218-219 s,tpra, and Tuesday, which appears, at
pages 254-zj6 supra-it followed much the same pattern in that the
Applicants, in n~ysubrnission, did not attempt to break down the mit-
nesses' testimony nor to establish positively that a differential allotment
of rights, burdens, etc., indeed necessarily gave rise to undesirable con-3Iz SOUTH WEST AFRICA
sequences or, on the other hand, that the abolition of such differential
allotment would necessarily, as a fact, promote well-bei~ig.Instead, as
in the political aspect to which my learned Senior referred on Tuesday,
Applicants limited thernselïres to criticizing certain restricted aspects
of Kespondeiit's policy, frequently without anp apparent relationship to
the content of the norm or standard. Their ernphasis fell, as in other
aspects, on the detriment whicli could conceivably be suffered by a
particular individual in particular circumstances. 1 do not want to give
a list of them all; I rnay give somc examples-for instance, Professor
Logan was cross-examined on the question whether the Territory as a
whole is econornicalIy interdependent and the probable effects if the
various parts of the Territory, or the various groups, were so to speak
cut off into watcrtight compartments.
Now, if 1may just comment, JIr. President, assuming that it would be
indeed impossible to do that, how does it assist my learned friend in his
case? That still does not show that any allotment must be wrong, any
differential allotmcnt on the basis of group, race, etc. It merely shows
that a particular division, taking it toa 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 neceç-
sarily be a bad thing.
Similarly, >Ir. President, therewas a cross-esamination of Professor
Lopn on the future political rightç of Xatives in the IVhite ares. That
1s in X, at pagcs 392-396, on the question whethcr there is population
pressure on the land in Ovarnboland-pages 406-410, and so on. There
again, of course, if population pressure exists, oifit does not exist,1do
not see, with rcspect, what bearing that has on the existenceof the norm.
Professor Krogh waç cross-esamined on methodç 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 hotv that could be remedied-XI, at
pages 91-96; job reservation policies-a lot of ernphasis \r7;tsplaced on
that-at pages 107-13 9,d so on.1donot want to go into al1the details,
hlr. President.
For reasons which my learned Scnior, Mr. de Villiers, dealt with, 1
shall not go into the details of this cross-examination which might w-el1
be clarified in due course when Appiicants comment on the evidcnce.
However, Air. President, 1 would again emphasize and repcat that the
question whether or not particular measures can, or cannot, be justified
on the basis of cconomic or moral or other unformulated criteria, was not
canvnssecl by us and cannot, it is submitted with respect, be passed upon
by the Coiirt. 'l'here was neverany attempt on out part to discuss the
econornic or the social or the moral merits of each and every detailed
provision which has been referred to in this CourtIt would iiideed, inrny 1
submission, as my learned friend, Jfr.de Villiers, pointed out, have heen
an emphatically long task to attempt to do that. One would never
reach the end of it and. in my subn~ission, that applies a jortiovi 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 srnaller
cornpass. There arc two issues there, Mr. President, first whether the
provision as a wholc, as it stands, rnay be justified on the basis of some
economic or other criterion, and then there is the further question of how ADDRESS BY MR. GROSSKOPF 3I3
an individual is affected. That is an even smaller issue, which of course
would form a part of the \vider issue of the justifiability of the provision
itself, but in itself it forms an even smalier en<luiry-a more limited
encluirp.
If 1 may illlistrate these submissions we have put before the Court,
with an example, 1 refer to the provisions of the Xining Proclamation,
to which a great deal of attention has been dcvoted in thcse proceedings
and whicti, as tlie Court will recall, provides certain restrictions as to
jobs which may be held by Natives in mines owned by Europeans. Now,
hlr. President, if one were to test this measure on the basis suggested by
my learned friend, on the bais of the norm as defined at page 493, of
the Reply, IV, then the yrob1i:m is not a difficult one becnusc then one
would merely look and see if there is an allotment of rights, burdcns,
privileges, and if the basis of such allotment is niembership in a group
irrespective of individual quality? However, Alr. Presidetit, if one were
to go beyond that and if one were to testait oii the basis of other criteria
such as, for instance, economic advisability or social advisability, thcn
the yroblem becomes much more difficultand,in my submission, virtually
insuperable. First, ifone were to look purely at economic criteria with which
ive are, at this stage of thc argument, concerned, then one niay look, in the
first instance, at the immediate economic implications of such n pro-
vision and one niay ask oneself ifthe effect of this measure is to keep
wages higher? 1s the effect of this measure to keep more efficient workcrs
out of jobs whicti are at present being filled by less efficient workers?
These would be economic factors which might bear on thc economic
jiistifiability of the measrireand 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 thiiigs. One would, for iiistance, find out whethcr,
as a fact, wages are being increased by such a measure. One would look
and see how wages are deter~ninetl in these various occupations. POS-
sibly one could have evidence of pcrsons in themining industry itself, or
persons associ:itcd with the mining iiidustry, to tell the Court liow wages
are determinecl in the industry nntl they coulcl possibly express an
opinion as to what extent, and in what manncr, these wages mould be
affected ifthese provisions were not there.
One would also havc to have evidcnce as to how many other perçons,
that is persons who are at present debarred or not permittecl, would, in
fact, be available. What practical effect would it have on wages? IIoulcI
it Iiave any economic cffcct or not?
One would also have to see whetlier these pcrsons are better qualified;
would they, ifthey were appointed, make the industry a more efficient
one frorn an economic point of view, or would they not? These are al1
nlatters to which one would have to give attention, and if they are not
at present better qualifiecl, corrId one make them better qualified, could
one train tkiem? If so, how niuch wouid it cast to train tiiern? What
would be the pros and cons; woiild it be cheaper, or more efficient. to
employ an esisting trained European; would it be more efficient econom-
ically to dismiss the trained Eirrope:in and to trainanon-European who
might be prepared to work at iilower u7age?l'hcse things would have to
be investigated, and such evidence might, in rny submission, show that
the measure has no undesirable economic consequences, or it might show
that it has undesirable economic conçequences, and if so, it.would show
what the extent of the undesisable economic consequences 1s.3I4 SOUTH WEST AFRlC.4
If one takes it a step further,and one has regard also to wider economic
or socio-econornic or social considerations, one would have to investigate
whether itwould not, from this wider point of view, be necessary to have
these measures, whether they do not balance or outweigh the irnmediate
economic disadvantage which the previous enquiry to which I have
referred might hava: shonrn to esist. So, for instance, one could conceiv-
ably lead evidence from persons in the mining industry. or persons with
knowledge of the inining industry or in contact therewith as to the
probable effect of lifting these restrictions-what would happen to the
present incumbents, ~vouldthey lose their occupations, tvould they be
forced to take a lower wage: if they were to lose their occupations, are
there other occupations available for thern; would thejf require training,
to what cxtent woiitd this crcate social problems, or would it not create
social problems; how many of them arc they, and so on? One \vould also
have to look at the industry as a whole. IVould a lifting of this sort be
conducive to labour peace, or to labour unrest? If itwere 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 uponby
Professor Krogh, the Court ivill recall, in XI, at pages log-1x0, where
he referred, amongst other things, to a 1922 labour unrcst on the Wit-
watersrand which Ied to considerabIe destruction of property and even,
1 think, bloodshed. Also one would have to invcstigate the availability
of necessary skilled European operators if such a provision were not
there. In other words, if there were no such rovision, would one get the
workers; would the Europeans make themse ves available? If not, would
there be sufficient lion-Europeans to do the job?
These things would have arisen had one had regard to economic
criteria or social criteria or socio-economic criteinaassessingthe merits
of any particular measure such as that, and, in addition, one would also
have had to investigate thc credit side, 1may put it that way; in other
words, wvhatbenefit would actually have accrued ifone had Iifted 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 unernployed, or in the sense that qualified people are employed
at a lower levelthan 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 ;ireal defect.
Indeed, hlr. President, you will recall that there lias been considerable
evidence that there is, in fact, an unsatisfied demand foreducated or
trained Katives as it is; that there is, as a fact, not a surplus of trained
Natives or an underernployment of trained Natives; but ifthe 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 cail officials of the
Department of Labour, or people of that sort. and one would have had
to see what the position was in other branches ofindustry-for instance,
in the fishing industry, where these restrictions do not apply. Are thcre
adequate opportunities, and so on? What woiild be the remedy if there
were perçons underernployed or unemployed; are there enough openings,
where should one create them, and so on? ADDRESS BY MR. GROSÇKOPF 3I5
If one were to take the argument a step further, assuming that after
the enquiry 1 have postulated it appeared that from a financial or
economic point of view these measures were undoubtedly detrimental,
that theyhad a detrimental effect on the econorny of the country seen in
isolation, then the further question would arise whether this detrimental
effect is not part of the price which has to be paid for a peaceful pattern
of racerelations in a territory where al1progress depends on racial peace.
This issue would then have required an assessrnent of the measure in
question in the whole context of the policies applied in the Territory as
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 broacIoutline isthe type of enquiry on which one
would have had to embark if this Court would have been required to
decide whether a particular rneasure is or is not a sound one frorn an
economic point of view or from a social point ofview, and if one were to
embark on such an enquiry. one would, 1 take it, or one could in theory,
in many cases reach the situation where a particular measure has certain
pros and certain cons; there are certain things to be said in favourof it,
and there are certain things to be said against it. How woutd the Court,
in the ultimate result, measure the over-al1 effect? \mat criterion would
the Court apply in deciding that a particular measure is on the whole a
good one or a bat1 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, hlr. de Villiers, also indicated in another con-
text, 1 may add that the same type of investigation would have been
necessary if the Applicants h;id 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, ofcourse, in testing the Mandatory's
state of mincl. Then the question would not have been whether the
measure is sound or is not sound as measured against some standard of
econornics or socialscience; then the question wonld 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 with which we dealt, was
whether there esists this absolute rule ïvhichpu se prohibits any allot-
ment of status, rights, etc., on the baçof membership in a group rather
than on individual qualities. And the irnmediate question with which
1 dealt specificalIy, 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 views of our
experts, fully supported by the admitted facts of record, stand com-
pletely unchallenged.
Therefore, in conclusion. 1 siibmit that, for the reasons 1 have dealt
with, the Court will hold that the application of a norm or standards as
defined at page 493. IV,of the Keply to the economic life of the Territory
would be incompatible with the well-being and progress of al1the inhab-
itants, including, in particular, the Native inhabitants, andsince this 1s31~ SOUTH WEST AFRICA
the final aspect under Article 2 (2) 1 may recall to the Court that this
was alsothe concliision which was reaclied in respect of the situation in
other fields of the Territory's life-that is, in the general life 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.
&Ir. Presideiit, this thcn also virtually completes our argument on
Article 2, paragraph 2,of the Mandate. Sorne concluding remarks will
still bemade on tlie whole of the case, including Article2, paragraph 2,
but tllis will, with the Court's leave, follow after we have also dcalt with
the remaining subinissions of the Applicants, that is, those submissions
relating to militarization and to unilateral incorporationwith which we
shall deal very briefly. Howcver, as far as the merits are conccrned, this
then concludes our treatment of Article 2 and we have, it is submitted,
shown firçtly tliat the United Nations organs on which my learned friend
relied have not piirported to and have not, in fact,created any norm or
standards of the ccintent on which he relied. \t7e have also, inrny sub-
mission, shown that no such norm is generally a pliecl in the practice of
States, and we Iiavc also demonstrated, inmy suB rnission, tliat the appli-
cation of such a norrn to South West Africa would be incompatible with
well-being and progresS. In the process of this last demonstration ive
provided further evidence, it is submitted, of the unreIiabiIity of the
petitioners on whose testimonp the norm or standards on which my
learned friend relies, to such a large extent ultiniatcly depend.
Ifthe Court will permit me, hir. President1 shali then pass over to the
question of militai-ization, ïvhich is the nest topic with ~vhicwe shall
deal briefly, and in respect of which cornplaints were made against us.
The YRESIDENT Y:lease do.
hlr. GKOSSKOPF N:OW, Mr. President, the Court will recall that the
military clause in the Mandate is Article4, which reads as follows:
"The military trainingof the natives, otherrvise than for purposes
of interna1 pcilice and the local defence of the territory, shall be
prohibited. Fiirtherrnore, no military or naval bases shall be estab-
lished or fortifications erccted in the territory."
In the Oral Yrocecdings thc 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
proceedings made serious allegations of violations of Article 4 of the
Mandate, 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. We shall therefore deal with it
fairly briefly.
To see the matter in its wliole perspective it is, iimy submission,
necessary to trace in broad outline the dispute as it ernerged in the
pleadings. In the ;Ilernorials, the Courwillrecall, the Applicants' case
was çummarized as follows, and1quote from the ~lemorials, 1,page 181:
"The A plicant has not been able to make an independent veri-
ficationO ?th(! existenceor nonexistence of 'bases' or 'fortifications'
in the Territory, but on the basis of statements contained in the
'Report of tht: Committee on South West Africa' for the years I9j9
and 1960, italleges upon information and belief that the Union
maintains three 'military bases' within the Territory." ADDRESS RY YR. GROSSKOPF 3I7
Now these three military bases were allegccl to bc the following:
Firstly, the supply and maintenance facilities of Regiment Windhoek,
together with the vehicles and material of the Regiment itself. That ap-
pears in the same volume of the 3Iemorials, 1,at pages 131-182 and pages
182-183 .econdly, an alleged military landing field at Swakopmund.
That appeürs at prigeç 182-183 A.nd thirdly, a niilitarycamp and/or
military airfieldat Ohopoho in the Kaokoveld. That appears on the same
pages.
These were the three military bases which, in the Memorials, Appli-
cants alleged iiad becn establislied in the Territory. The basis upon which
these installations, or alleged installations, were contendecl to constitute
military bases, wss defined as follows, atpage 181, 1:
"Armed installations not related to police protection or internal
security fa11within the class of 'military bases' or 'fortifications' and
are thercfore proliibited by Article 4 of the Mandate."
That was the criterion which was suggcsted-"arrned installations" which
do not relate to "police protection or internal secnrityH-that wis the
test. In accordance with this statement the three alleged military bases
were said to be such because (and I quote from p. 182): "its purpose is
not police protection or interna1 security." Now, as Isubmit we demon-
strated, hlr. llresicient, this, of course, isanotenable basis for dcciding
whether a particular installation isa military base or not. The factthat
ariinstallation is, or inot, relatecl tr, police protection or interna1 sccur-
ity certainly, in our submission, cannot ordinarily be a reason for decid-
ing mliether it is a military base or not-the two enquiries seem to be
entirely different ones. As, in Our sul~mission,we showcd iii the Counter-
hlernorial, tliis whole test was devised because of an artificial and fal-
lacious intcrpretation of the mititary clause itself in so far as it dealt with
the training of persons. The criterion used for training of perçons was
applied to the otlicr question, namely whether a facility was a rnilitary
base or not. And we dealt with ttiese arguments in the Counter-Menlorial,
IV, at pages 47-63.
Firstly, ;\Ir. President, we considered what was to be regarded as
understood by the expression "military bases" as used in Article 4 of
the Mandate. For this purpose we provided an analysis of the wording
of the Nandate and of Article 22 oi the Covenant, asurvey of the drafting
liistory of these provisions, and we further referred to standard dic-
tionaries and to practice during the League period. After these various
things had been considered, we concluded, atpage 50, IV:
"Consequently, fniling tlie $ur$ose of zstilizntioforoperationsor
a canepaig?~ a,dtlal or pros$ec$ive,by B Joyce or an nrmy, a place
cannot be said to be maintained as a rnilitary or naval base."
That was the criterion ~vhich we suggested, namely the purpose of
utilization for operations or a campaign, actual or prospective, and it
may be noted in passing thai: General hlarshall 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 559, and Iater at
page 596 he called it "a fair definition". At this stage. Mr. President,
I may just Say that General hiarshall's expertise is set out in XI, at
pages 574-576, and it is subniitted that he is eminently qualified to
express opinions on military matters. In fact, Applicantç conceded that318 SOUTH WEST APRICA
he is "indeed a recognized rnilitary authority and widely read as such
in our native country". This appears in XI, at page 587-
Now, Mr. PresirIent, Applicants' reaction to our Counter-Mernorial
and Our subrnissions as to what constitutes a military base, and the
application thereof to the facts, can, in my subrnission, best be dealt
with in relation to each of the three alleged military bases separately,
since different considerations arise in respect of each. Consequently,
I shall first deal with Regiment \.'lrindhoek.
This was dealt with in the Counter-Mernorial, IV, pages 54-57.There
we set out the two facts showing that the only purpose of the Kegirnent
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, thiç could not possibly constitute a rnilitary base.
Evidence to the same effect was given by General 3larshall in XI, at
pages 580-582 and 593-597, where he also confirmed that that particular
institution was nd military base.
Facedwith these facts, hlr. President, the Applicants would not concede
that the information and belief on which they had relied inthe Mernorials
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 occurrecl 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 ex poslfactorationalizations. Iis,with respect, not necessary
to analyse al1 the arguments used in the Reply, it is sufficient to note
that they raised i-ather extreme and unlikely suggestions. One was,
for instance, thatonly Natives could legitimatelybe trained "for purposes
of interna1 police and the local defence of the territory". That they
tried to justify on an interpretation ofArticle 4, atpage 567,IV, of the
Reply.
Another contention of theirs was that Article4 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 Rep- -
IV, af page 559.
There were also similar arguments, &Ir. President, which we dealt
with in Our pleadings, in the Rejoinder, and 1 shall not analyse them
in detail here, but if thc Court wishes it can have re-ard to our written
pleadings on this point.
Specifically, asregards Kegiment Windhoek, the Applicants said in
the Reply, IV, at page 558:
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 Repubtic of South
Africa, and its corresponding place in the Republic's,administrative
hierarchy and chain of command, constitute a violation of Artictc4
of the hlandate".
These points were deatt with in the Rejoinder, VI, pages 369-376.
1 do not wish to repeat Our arguments here, fiIr.Prcsident. In our
submission, the Applicants' contentions were so far-fetched and fallacious
that they hardly nceded refutation. Howevcr, the Court may, with
respect, have regard or may refer to our pleadings for Our more specific ADDRESS BY MR. GROSSKOPF 3Ig
answers to these various contentions. \Vhat 1 do want to say now is
that it will, ofcourse, 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 thosc which had appeared originally in the
Nemorials. Xo longer was it the test, as in the Mernorials; now entirely
different criteria are suggested.
I now turn to the alleged military landing ground in Swakopmund.
In the Counter-illemorial we showed that the landing ground in question
was not situated in Swakop~nuncl at all, but in Walvis Ray, which is
not a part of the Territory of South West Africa, but is a part of the
Cape Province of the Republic of South Africa. That was in the Counter-
Mernorial, 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 all; 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, AppIicants contended in the Reply,
IV, at page j60:
". . . [that] \Valvis Bay must, in a military sense, be considered to
be 'in' South West Africa, inasmuch as it is completely surrounded
by territory subjcct tothe Mandate and neceçsarily depends thereon
for essential services, transport, communications and supplies, in-
cluding water".
So tllat no longer is it,in fact, in Soiith JVest Africa, it is only in a
militnry sense iii South West Africa. Thcse contentions, Mr. President,
we dealt with in the Rejoinder, VI,pages 374-376, wliere we demonstrated,
it is submitted, that they wcre neither factually correct nor legally
tenable, so that, in fact, \Valvis Bay is, for instance, not completely
surrounded by territory subject to the Mandate, and in any event, we
submitted that legally this argument is untenable.
Now, the only furtlier reference to this line of argument came during
the cross-examination of Ceneral Aiarshall, when he was asked whether
planes on militarjr missions from Walvis Uay ever overflew South West
Africn. The General said that he had no knowIedge thercof. That was
in XI, at pages 595-596. illy learned friend thcn asked, at page596 of the
same record:
"As a military analyst could you say whether, on the basis of
your own visit to [Valvis Bay, planes taking off from the airfreld
there ~vould have to either flyover the rvateror over South West
Africa?"
With respect, Mr. President, tlie answer to this question becomes clear
even to a non-militnry analyst \vho 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 [luestion.
[Public keavirzg of.jNovenzber196jJ
3lr. President, at the conclusion 1 was dealing with the topic of
militarization, and as 1 pointcd out yesterday the Applicants' original
case in this regard was based on the alleged esistence of three military
bases-that is, the Regiment Windhoek, an alleged airficld at S~vakop-
mund and a militûry camp and/or a military airfield at Ohopoho. Their320 SOUTH WEST AFRICA
reason in the hlemorials for saying that thesc installations were military
bases was that their yurpose was not police protection and internal
security. We dealt with the facts and with the law in Our Counter-
Mernorial, and thereafter Applicants changed the basis of their case.
In regard to the liegiment Windhoek they now advanced entirely
different criteria for saying that the facilities constituted a miIitary base,
criteria wliich uresubmit to be entirely irrelcvant to the issue. In regard
to the alleged airfield 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 geographical sense
not within the Territory, nevertheleçs in a military sense it was so
witliin the l'erritory. This contention also we submitted to be entirely
untenable. In 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 tvhichthey had advanced
in the Memorials. The same applies to the alleged military camp andjor
military airfieldat Ohopoho, to which 1shall now turn.
The nature of thesc facilities was described in the Counter-?vlemorial,
IV, at pages 39-61, and was again descnbed by Gencral Marshall in his
evidence, wliich is recorded at XI, pages 577-580. The Court will recall
that fie said at XI, page 579 : "... in my judgment, any plane tliat can
land in that field could alço put down safely in the Bush". I-ic was
asked at the same page: "Were there any indications that there had
ever been a military base at Ohopoho?", and his reply was: "No,
Mr. President. There were no indications whatever." This statemeiit was
not challenged in any way in cross-examination.
In their lieply, IV, at pages561-562 t,c Applicants were reduced to
arguing that the strip at Ohopoho, in common with sirnilar strips in
other parts ofthe 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 internal security and
rescue operations, and because they could in future be used for military
purposes; that was an aspect on which they aIso relied, and which indeed
they emphasized-that these installations, althougk possibly not at the.
moment used for military purpoçes except in a very unnatural, strnined
sense, could he so used in the future, and this Iatter argument tvas
taken to what we submit to be its ultimate absurditp during the cross-
esamination of General Marshall. He was asked:
"Would you describe, Sir, or1the basis of your military espertise,
ina very general way, to the Court, as briefly as possible, the nature
of the current military technology with respect to helicopters or
other methodg of vertical enveloprnent." (XI, p. 592.)
His reply was:
"In the simplest terms, Mr. Yresident, ifyou have a piece of flat
ground anywliere on earth, this can be made a military base if you
want to strain the rneaning of the terrn, because uou can put a
helicoptcr down on a pad of that size and it can fight from that
ground, sotherc 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-
modate a helicopter." (Ibid.) ADDRESS BY MR. CROSSKOPF 32x
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 isa military base or not.
In the Keply 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, 1 shall come 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 anew omnibus charge relating to military activity in general
-that was at pages 562-563, IV. In this they referred to "Respondent's
ever-increasing military activity in the Temtory" (p.562). In pasçing
it may be noted that this charge waç in the Reply based entircly on
certain resolutions of the General Asçembly of the United Nations which
in turn were based on information derived from petitioners-that appears
in the Keply, IV, pages 562-563 I. iç, inmy submiçsion, not necessary
to refer to these detailed allegations which Ivere, in our submission,
as untenable as, or more so thaiithe original complaints in the Rlernorials
which had also, as the Court wiII recall, been based on what was said
to be information and belief, andwe 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 1 have ever
seen in the world." Also this statement was not contested in cross-
examination. Indeed, my learned friend, Rlr. Gross, referred in general
at XI, page 590 to the "first-hand, authentic and undoubtedly correct
factual statement" of what the witneçs had seen as a rcsult of his inspec-
tion, so that 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 petitionersand
also the extent to which they have misled not only certain organs of
the United Nations but also apparently Applicnnts themselves. This
process, as we have shown, still continues. The Court v7iil recall that
Mr. Van Rooyen, my learned friend, dealt with this last Wednesday
at pages 124-12T. supra, where he gave some examples of the wild
alIegations that were made, inter @lia,urith reference to allegations
regarding a certain alleged atomic testing centre, which turned out to
be completely untme.
Those. tlien, n-erf: the complaints in the pleadings, and 1 shall now
advert to what was said in the Oral Proceedings.In the opening argument,
that isin the verbatim record of 18 March, at VIII,page 135, Applicants'
Agent said:
"Now I turn very brieffy,hlr. President, with your permjssjon,
to tlie asserted violations of Article 4 ... of the Mandate. The
Applicants will deal at the later, ifmay cal1it, fact stage of these
proceedings, with the issues presented by Respondent's asserted
violations of Article 4 of the Mandate, the so-called 'military clause'
.. .It does iippear pertinent, however, at this Iegal stage of these
proceedings to note that the co~itroversy placed before the Court
with respect to factual issues involved in the so-called 'militas.322 SOUTH WEST AFKlCA
clause' of Article 4, are before the Court asa result of the lack,
or default, of administrative supervisory authority, which would be
in a position to ascertain the true stateof 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 1 am familiar, information and belief."
It appears from that atthat stage the Applicants still asserted certain
facts on the basis of information and belief, 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 wap 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 tliey once more
came to deal with this question of militarization. However, that was
after they had already generally admitted ailaverments of fact in our
pleadings, so then, when thep dealt with it at that stage, they had
already previously generally admitted al1the facts which were in dispute,
and al1the facts in liespondent'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 rnilitarization ..., as disputed
by the Respontlent, and as subsequently accepted by the Applicants
for purposes of these proceedings . ..".
It is consequentli clear, in Our submisçion, that whereas the Applicants
originally indicated that they were going to deal withthe 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 the- defended before this
Court it does, inrny submission, cal1for close scrutiny.
They do not at those pages deal with cornplaints regarding militariza-
tion as a substantive submission standing on its own any more. They
couple it with the argument that administrative supervision is anecessity
if the Mandate is to survive at all, In other words, they couple it to
the argument regarding Article 6 of the Mandate. They deal with it
with the context of the necessity which they claim to esist for a con-
tinued existence of supervision, and they do so after rcferring 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 Ap licants' 5th
and 6th Submissions which relate, respectively, to the f;espondent's
asserted violation of the international status of the Territory and
to the establishment of military bases therein. 1 refer the Court to
the subrnissions set forth in the hIemorials, 1, at page198.
It isregarded ... 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 A plicants
contend as a matter of law must exist so long as the Man d!ate itself ADDHESS BY MR. GROSSKOPF 323
endures, because .. .the necessity for continuing administrative
supervision ishighlighted by considerations which relate to these
Submissions 5and 6."
In this contest then, they wish to dispose of the submissions. On the
next page they stated that :
". . . the failure of administrative supervisionthe absence of effec-
tive consultation and information .. .transcend, althougli they
include, the Applicants' request for a favourabla 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 sucli doubt against the mandatory".
1 would emphasize, hlr. President, that their contention is that the
absence of administrative supervision in the case of doubt concerning
the nature of an installation resolves suchdoubt against the hlandatory.
Kow, from al1this, inmy submission, it becomes char that Applicants
in the Oral Proceedings advanced onlp one central theme regarding
Submission 6. l'heir theme is that the Court should find in favour of
Applicants, and against Kespondent, because Respondent has not sub-
mitted to administrative supervision by the General Assembly of the
United Xations. 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 al1 relegated to the background and are not
even referred to. As a matter of fact, they refer to Regirnent Windhoek
and to Respondent's statement in the Kejoinder, VI, page 370 that:
"The issue turnç on the question whether the cornplex 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 al1 that they say is the following, and 1 quote from the sarne
verbatim record atthe same page:
"Mr. President, jtis nitthe puipose of theçe references to enqulre
into the accuracy of the information, to weigh and evaluate its
significance, to consider its merits in any respec. . ."
And, Mr. President, 1 Inay add that this is the sole specific reference
in the whole of the Oral Proceedings to any of the carlier alleged rnilitary
bases.
Now, if one wcre to apply this test which is now propounded by the
Applicants, namcly that Iack of supervision resolves any doubt as to
the nature of an installation againstthe Mandatory, the question im-
mediately arises, what possible doubt could there be concerning the
nature of any installation nfter Applicants had admitted as true al1
Kespondent's statements of fact? Once they admit al1 Our facts, what
doubt could there be? In our submission, Mr. President, there could
not be any doubt mhatever. What then must one understand of this
contention? What do the Applicantç intend to convey? What effect
could the lack of supervision have on the question whether or not a
particular installationis a inilitary base? Let us analyse this question
with reference ta the three alleged milital 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 mjlitary base while there is no supervision, and
cease being a military base once supervision is established?
Secondly, &Ir. 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 tliere 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 inerely by reason of ttie existence
or non-existence of supervision? The answer to tiiese questions,Mi- .resi-
dent, must clearly be in the negative, in Our submission.
However, Jlr. President, this argument may be taken ristep further.
In the hlernorials, Applicants' Subrnission 6 as itwas then formulated
read as follows:
"the Union, by virtue of the acts descnbed in Chapter VI1 herein,
has established rnilitary bases within the Territory in violation of
its obligationsas stated in Article 4 ofthe Mandate and Article 22
of the Covenant; that the Unioii has the duty forthwith to remove
al1 such military bases from within the 'I'crritory; and that the
Union has the duty to refrain from the establishment of military
bases withiii the Territory;" (1,p. 198).
In the Reply, the ~ubmission \vas, without any amendment, reafirmed
and incorporated by referencc, and that one finds at page 588, IV, of the
Reply.
At the conclusion of the Applicants' case thissubrnission iiTasrefor-
mulated (this was the position, of course, with certain others) and it
now reads:
"Respondent has established military bascs within the Territory
in violation ofits obligations as stated in Article4 of the hiandate
and Article 22 of the Covenant; that Respondent lias the duty
forthwith to remove al1such military bases from within the Terri-
tory; and that Respondent has the duty to refrain fromthe establish-
ment of military bases within the Territory;" (IX, p. 375).
The Court will see that the reference tothe acts describin Chapter VI1
of the Mernorials has fallen away. Now, this amendment was probably
regarded as necessary because the Applicants' case had rneanhvhile been
widened beyond what it had been in the hlemorials by including this
omnibus allegation of military activities in general. However, Mr. Presi-
dent, be that as itniay, that is not the point w-hich1want to rnake really.
The point which 1clowant to make is that the Applicants still ask for an
order declaring ". . that Respundent forthwith fias theduty ta reniove
al1such rnilitary bases from within the Territory".
Now, Mr. President, urhat is Respondent to remove? ShouId Respon-
dent now remove these admitted facilities which are cither non-military
orare outside the Territory? In Our submission, no answer at al1is pro-
vidcd to these questions, and indeed the matter goes further than that.
In the Oral Proceedings ilpplicants also said:
"The techniques and logistics of military science in1965 are such ADDRESS BY bIR. GROSSKOPF 325
that the Territory could effectively be militarized in two or three
days, or a shorter time tlian tliat."(IX,p. 235.)
This line was also pursued in the cross-examination of General Marshall
at XI, page 592 and the following pages.
Now, if we understand that correctlÿ, the implication would appear to
be that Respondent must be tleemed to bc guilty of a violation of Arti-
cle 4 by reason of a combination between lack of supervision 011the one
hand and the technical ability to militarize the Territory within a short
tirne.In other ~\,ords,because there is no supervision, and because it iç
technicaliy possible to militarize the Territory in a very short space of
tirne, therefore Respondent must be guilty of a contravention of the
military clause. That, as we understand it, seems to he the argument.
Now, Mr. President, tbis may or may not be an argument in favour of the
necessity of supervision; that is another matter with which 1 am not
dealing at present. It may be said that supervision would be necessary,
or desirable, because there iç this technical ability to militarize the
Territory, but this feature could hardly show that there isany reason for
holding that Respondent (and I quote from the subrnission) "ha cstab-
lished military bases". And, furthemore, itcan hardiy show that Re-
s ondent has the duty "to remove al1such bases". How, Blr.President,
&es one rernove a base which exhypothcsi is going to be established. if
at all, onlyinthe future? The Court will recall tha1 dealt with a similar
argument regarding airstrips where the suggestion was also made that
these airstrips, whatever thei~ purpose and nature rnightbe at present,
might in the future be converted for military use. That iç a sirnilar argu-
ment relating specificaIly to airstrips, and that 1have already dealt with,
and 1 gave references in the Rejoinder.
Now, for al1these 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 he dismissed.
Thank you, bIr. President. With the Court's leave my learned senior,
Mr. de Villiers, will now continue Respondent's address. 33. ADDRESS BY AIR.DE VILLIERS
COUNSEL FOR THE GOVEKN~IENT OF SOUTH AFRICA
AT TH13 PUBLIC HEARING OF 5 NOVEMBER 1965
Mr. President, honourable Members of the Court, 1 should like to
begin by correcting a staternent of fact which I made to the Court on
Tuesday. 1 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 reference is to page 242, supra, of the
record of Tuesday, 2 November. 1 apologize for the slip imy rnemory.
1 propose to deal now, Mr. President, with the Appiicants' Submission
No. 5 very briefly, and thereafter their Submission No. 9-No.5relating
to incorporation and Xo. g to unilateral amendment of the mandate
instrument.
The course of events in regard to these two submissions of the Apph-
csnts, Mr. Prcsidentwas very much similar to that in regard to militariza-
tion, lvhich hajust been deaIt with by my learned friendMr. Grosskopf.
In both instanceswe find also that there was,during the pleadings stage,
a gradua1 amendment or change of the grounds upon which the Apph-
cants reliedin support of their submissions, until eventually, whenwe
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 there was substituted a completely new ground in each
case. And the measure of agreement does not stop there, because this
new ground relied upon in the Oral Proceedings was indeed exactly the
same in both theçe cases asit was in the case of militarization. Twas
relianceupon 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 ofthe Respondent's obligations in these particular respects.
In these circumstances, Mr. President, it is unnecessary for me to take
u the time of the Court withadetailed examination of what went in the
P
p eadings. 1 shall deal with thatbriefly,in order to indicate that the
AppIicants were forced into this new ground-into this shift of ground-
which brought them to this rather desperate contention at the Oral
Proceedings stage ; and theI çhall deal very briefly with their contention
in each case.
Starting, then, with Submis~ion No.5,incorporation: the change in the
Applicants' case to which 1 have referred, is marked immediately by a
cornparison of the forma1 submission, as originally contained in the
hlemorials, with the submission in its finand amended form, as put to
the Court on 19 May. In the Nemorials the submission read as follows:
"the Union, by word and by action. in the respects set forth in
Chapter VI11 of this Mernorial. has treated the Territora manner
inconsistent with the internationalstatus of the Territory, andh+~
thereby impeded opportunities for self-determinationby the inhabi-
tants of the Territory; that such treatment isin violation of the ADDREÇS HT MR, DE VILLIERS 327
Union's obligations as stated in the first paragraph of Article 2 of
the Mandate and Article 22 of the Covennnt; thatthe Union has the
duty forthwith to cease the actions summarized in Section C of
Chapter VI11 herein, and to refrain from sirnilar actions in the
future; and tiiat 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 VI11 of this hlemorial" ;and again, when there isreference
to a duty to cease particular actions, the actions are identified as those
"summarized in Section C of Chnpter VIII" therein. Reference to Sec-
tion C of that chapter in the 3lemorials, Mr. President, willreveal 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 ïvith earlier in
that chapter in purported support of this submission.I rnay saIr that the
submission was reaffirmed, or incorporated by reference, in the Reply,
IV, at page 588, without any change.
Then at the conclusion of the Applicants' caseon rg May the reformula-
tion 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 im~iededopportunities for self-determination
by the inhabitants of the Territory; that such treatment is in viola-
tion of Respondent's obligations as stated in the first paragraph of
Article2 of the Mandate and Article 22 of the Covenant; that Re-
spondent 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 ;".
That is at IX,pages 374-375 of the verbatim record of 19May, Mr. Presi-
dent.
lmmediately it will be apparent that the two features of the first sub-
mission, to which 1 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 Iletnorialsby construing a
legal prohibition against "unilateral annexation or other unilateral pro-
cesses of incorporation": we finclthat in the hlemorials, at 1,page 184.
They then stated that "incorporation or annexation can take place
through ... gradua1 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, namelp
one of piece-rneal incorporation of the Territory. And in this respect they
made this submission of law, a.tpage 186 of the Memorials:
"Piece-meal incorporation. . . is both insidious and elusive. Mo-328 SOUTH WEST AFRICA
tiveis an important indicator since it sheds light upon the signifi-
cance of individual actions,whichmight otherwise seem ambiguous."
This was the conclusion of their statement on the laiv in the IrTemorials
and they proceeded on that basis with their exposition of the facts.
In accordance wiah their appreciation of the importance of the roIe 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
Territorp, and they alleged that that intent or purpose was manifest
from certain officia1statements, which they proceeded to cite.
Clearly, hlr. President, they were dealing here, then, with allegations
of fact, as to 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 tvith direct evidence-direct evidence corning 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. 1 quote from the Afemorials, 1, at page 189:
"Although the Union has not chosen, at least up to the present,
to announce de jure annexation, its purpose is incorporation. The
Union, in furtherance of this purpose, avowedly treats as nu11and
void the obligations stated in Article 22 of the Covenant and the
Mandate, which prohibit unilateral annexation and contemplate
progress towarci 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 thcy alleged that this so-called intent "fias been given
practical effect by, and explains" (1, p. 189) Respondent's actions. The
individual actions cornplained of were then dealt with-the four 1
mentioned before-and they were stigmatized as "part of a plan to
incorporate the Territory". That we End in the Memorials, at 1, page 193.
And, finally, in theirlegal conclusions, the Applicants stated as follows
in the 3Iemoriab:
"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 zz." (1, p195.)
So, AIr. 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 aIleged "plan to incorporate the
Territory", a11these acts were also invalidated as forming part and parce1
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-
hlemorial, IV, aipages 74-75.
We dealt fuUywith the law and the facts in the Counter-Mernorial, IV,
over the pages 67 to 133. Analysing the legal position, we emphasized
the feature that the Respondent has, in terms of the Mandate, "full
power of administration and legislation [over the Territory] ... as an
integral portion of the Union of South Africa". (IV, p. 67.) Uecause of
that feature, any facts within the purview of that form of administration
would be permissible, save only if they were tainted by an improper oc
an ulterior purpose. And, therefore, Mr. President, where we were met ADDRESS BY MR. DE VILLIERS 39
with an aliegation 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 ail important element insuch a
charge, but it would-
"... be the very criterion, and the only criterion, for determining
whether a particular action is inviolation of Respondent's obliga-
tions under the Mandate ;".
That was from the Counter-AIemorial, IV,page 75,and 1can also refer to
pages 68 to 70 on that point.
Then, as far as the facts wcre concerned, we denied that the Kespon-
dent had an intent to incorporate the Territory, and we substantiated
the denial witli a factual exposition of what the Hespundent's attitude
to the Territory was, quite apart from the statements relied upon by the
Applicants-a statement of fact and an exposition offact as to what the
attitude really was. That we find in the Counter-Mernorial, IV, at pages
76 to 92.
We analysed the statements by political leaders and officials relied
upon by the Applicants, and looked at them in their propercontest 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.
Xest, Nr. President, the acts that were complained of by the Appli-
cants-the list of four that1 mentioned earlier-were closeiy analysed
and diçcussed and we showed that those acts were permissible in tem
of the Ilespondent's authority under, the Mandate, that they did not
affect the separüte 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-hlemorial, IV, at pages 93-131-
Now, Mr. President, when we corne' to the Reply, the Applicants
significantly shawed 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 ... constituteipso facto,and without regard
to 12espondent's motive or purpose. a violation oRes$ondent's obli-
gation b vespect the separate i?zter~bationaltnbcso/ the Territory."
(IV,576.)
The Applicants retained th(:ir allegation that the liespondent had an
intent to incorporate the Territory but that allega-tionwas toned down
in importance. There was not this, what appearecl to be, alternative con-
tention to the effectthatthose acts were inconsistent without any regard
to motive or purpose.
These selfsame four acts, which 1 mentioned before and which the
Applicants had described in the Memorials as acts which could be re-
garded as ambiguous and of ~vhichthey had said that they were to be
read in the Light of the Respondent's avomed intent in order to be pro-
perly understood, ivere now represented as being unambjguous and as
constituting per se violations of the Mandate and of the Covenant.
RTr.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 Rejoincler, VI, at pages 391-421 and 1 need not
enter into the details of that demonstration again, not at this stage.33O SOUTH WEST AFRlCA
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 Submission 5 "at the later...
fact stage ofthe 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 recaI1, the Applicants had
maintained, without further attempt at supporting, their allegation of
an intent to incorpcirate still the Reply stage of the pleadings.
So,Alr. President, the factual allegations in that respect still remained
in iççue-over-aii, and also with reference to the four acts compIained of,
the allegations that they were al1 elements in a plan of incorpor ;t'ion.
Those rnatters were specifically and directly at issue between tlie Parties
as rnatters of fact. So, it would have been necessary to canvass and
examine thesc facts at the oral hearings in order to test the validity of
the Applicants' allegations as they stood.
Rut, as my lèariied friend, Rlr. Grosskopf,pointed out in the case of
militarization, so also here the Applicants never reached the discussion
of "the later. ..fact stage ofthe 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 aiready state at that stage, reserving some others until tlie facts
had been dealt witli, and we find that they, at this stage also, asked for
an order on Submission 5, without having dealt \vith any of the facts in
support of that submission.
In the record of 26 April, at VIII,pages 707-711-we expressed Our
surprise at this treatrnent of the matter and we asked for clarification,
reserving our forther comments until we had received such clarification.
We also commented at the same time on a new feature which had
ernerged in the Applicants' argument-in-chief regarding this alleged
intent to incorporate. LVe 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 becarne a completely artificjd one.
In the verbatirn record of 23 March, ai 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 dfrica".
And, then, on the iiext page, &Ir.President, page 221, the Applicants
made it clear that they were now asking the Court to infer this intent
"legally", asthey said, by meanç of a presumption-the presumption that
a person or a body is preçumed to intend the natural and probable con-
sequences of his or itsactions.
The Court wiIl recall that we deaIt very estensively with the law
pertaining to this suggested presumption because it was relied upon aIso
by the Applicants in regard to other aspects of their case. We dealt with
it rnainly in the record from page G39 to page 653, VIII,and we pointed
out, Mr. President, that this manner of approaching the matter really
avoided the necessary enquiry 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 findat VIII, pages 709-711 of the record of 26 April.
In this particular aspect of the Applicants' case, >Ir. President, the ADDRESS BY MR. DE VILLIERS 33I
artificiality really becomes extreme. In the hlemorials,as 1 pointed out,
the Applicants relied on direct proof of an "intent to incorporate"-
suggested direct proof. They then used thisas a basis "to shed light upon
the significance of individual actions which might otherwise seem ambi-
guousW-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. Itisnot surprising, Mr. President, that the Applicants
avoided an enquiry into the facts in order to justify the validity osuch
an inference. It should be sufficient 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 prolie 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 rz May, at IX, page 235, explicitly said that al1 the
Respondent's versions of the facts were accepted also in respect of this
particuiar submission.They said itexplicitly at that page.So, inasmuch
as the existence or otherwise of an intention to incorporate is a fact and
was initially treated very specificallby the Applicants as being a fact,
the Applicants' admission ofthe factç constitute an acceptance of, inkr
alia, that fact which we stated in our pleadings, that the Respondent haç
no intention to incorporate the Territory. Once the Applicants had
admitted al1the other facts, it was indeed, Mr. President, quite impos-
sible for them to contest thevalidi tfythat statement of the Respondent.
So it is not surprising that they then went over to suggest that Respon-
dent had a çomewhat inconsistent intent, that is, an intent to partition
the Territory without the co~iseiit of the supe~isory organs. That we
find in the record of IZ May at IX, page 239. The central theme of the
Memorials, therefore, that Respondent had a plan to annev the Territory
and was putting it into effectLiy piece-meal acts, simply petered out into
nothingness.
It would, Nr. President, in my submission, have been entirely unreal-
istic for the Applicants to have atternpted to demonstrateanything 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 aftenvarcls, 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, hir.President, although even then the
South African Governrnent made it perfectly clear that ithad no such
intention. But, when me have corne to this stage of development, when
the Respondent's policy has crystallized absolutely dearly intoone which
involves self-determination for each one of the various popu1ation groups
of South West Africa, where each one of those could, if it so wished,
decide upon complete independence, where it is known to the South
African Government that the White group of South West Africa has332 SOUTH \EST AFRICA
always indicated that it would prefer to seek its future in conjunction
with the Repiiblic oi South Africn but whereas the principle is that every
one of the groups can decide for themselves, surely,Mr. 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 inthe Oral Proceedings
in regard to this apparently alternativeline taken in the Rcply, namely
that the acts cornplained of-the four of them-were per se,and irrespec-
tive of the Respondent's purpose or motive, a violation of the separate
international status of the TerritoryThe simple answer is that this con-
tention did not feature in the Oral Proceedings at aI1.ive never heard of
it again.
For the reasons which 1 have rnentioned and especially after the
acknowledgment in the Memorials that these acts, seen by themselves,
could appear arnbiguous, this argument was really without merit right
from the outset, and it is quite clear that it was introduced into the Reply
mereiy to meet the exigencies of the moment, namely the collapse of the
basic contention tliat Respondent had an intent to incorporate the
Territory.
As 1 have said, we dealt with the total unsoundness of this ber se
argument in the Rejoinder and, after that and after the subsequent ad-
mission of al1thc facts relied upon by the Respondent, it was inevitablr:
that this argument could no longer be pressed. Indeed, it does not seem
to be represented any more in the amended subinission because, as 1have
pointed out,the amended submission does not any Ionger identify these
acts, or any acts of the Respondent, as being particular ones relied upon.
It is therefore really unnecessary for us, as we see the situation, to
enter into any discussion ofthese separate elements with a view to seeing
whethcr they are indeed, or whethcr they can indeed be said to be, perse
in conflict with the separate international status of the Territory. Never-
theless1 shall very briefly indicate what the effect of what Ive stated in
that respect was on the pleadings and what seems now to be admitted as
a rnatter of fact by the Applicants.
In regard to the c~uestionof nntionality. thecornplni 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 1949. The matter was dealt with in the
Memorials, 1,at pages 190-19 n,the Counter-Mernorial, IV,pages 93-100,
in the Reply, IV,at pages 576-579,andin the Rejoinder, VI, pages403-405.
Originally, it wiIl be recalled, the Applicants alleged that this too was
part of a plan to incorporate the Territory, but thisas we have shown,
has fallen away. The alternative bais, as we demonstrated with respect,
was a highty technical approach and,inour subrnission, entirely unsound.
It relied, not uponan analpsis 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 N.orv, Iveadrnit-
ted that there was in one respect a conflict With the provisionsof that
resolution ofthe Leiigue 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 interiiational worId as to what
exactly the status of South iliest Africa was-as to ivhether itcould still
be regarded 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 Alnndnte had lapsed atzd t:hereivas a need forregiilarjzjng theposi-
tion of the inhabitants.
iVe pointed oiit. 31s. President, tliat the League Council resolution
showed that il did not contemplate that therc was any incompatibility
with mandate principles, etc., in the inhabitants of a mandated territory
taking the citizenship of the niandatory country. That was not regarded
as incompatible nt al1if it happened by a voluntary process on the part
of the inhabitants of the mandated territory. Ço if,along these processes,
a situation should have arisen whereby al1the inhabitants of amandated
territory had taken on the citizenship of the niandatory, that still would
not have been, according to the contemplation of this resolution, a
situation in conflict ivithmandate principles or ivith the principles or
requirements of the mandate system. The objection was to a general act
bringing about tliat result and we have no clear distinction between what
was regarded as good mandate policy in that respect, or what was regarded
as clear mandatc law in that respect.
If it was suggested, &Ir. President, that in circumstances as they
existed in 1949 ,nd as 1have briefiy tried to sketchthem, itwouIdhave
been in conflict with mandate law to bring about such a result, tlien we
must, with respect, differ witl-Lthe conclusion arrived at by the Council
of the League oii that particular point, but there is, as Iar as we can see,
no such suggestion. The matter \vould appear to have been treated as a
matter of pulicy and the League Council certainly didnot express jtself
on whnt 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 nationnlity upon the inhabitants generally of
the mandated territory took notliing away from them; it did not impair
any riglits whicli they may or rnay not have had as citizens of the
rnandnted territory, or inhabita~its of the mandated territory, and any
status that may have flowed therefrom. lVhat was given to them was
given as something additional which might be of assistance and of help
to them in this stage of uncertainty and stage of transition. That this1s
so becomes evident again from the vcry proposaisof 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. 1 read as an
example tothe Court the paragraph 306 of the Odendaal report at page 83,
regarding Ovamboland:
"That, assoon as is practicable, the Legislaiive Courichy 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 any Ovambo born outside South \.l'est Africa
but now permanently resident in Ovamboland and iiot declared a
prohibited immigrant in South West Africa, slinll be entitled to such
citizenship: Provideci that such a person shaII forfeit his citizenship
if he assumes the citizenship of another homeland."
In other words, citizenship particularly pertnining to ench homeland334 SOUTH WEST AFRTCA
iscontemplated here. As 1 have said, nothing has been taken away; this
iswhat the policy leads to in its ultimate consequences. There are similar
provisions in respect ofl1the other homelands:
paragraph 319, page 85, about the Okavango;
paragraph 332, page 87, about the Kaokoveld;
paragraph 3&, 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 theiown
citizenship in terms of their own patriarchal laws.
The next matter, 3Ir. President, was the question of representationin
the South African Parliament, and this aspect was dealt .with in the
Memorials, I,at pages 192-193, in the Counter-Mernorial, IV, at pages
101-104, in the Reply, IV, at pages 579-58 1nd in the Rejoinder, VI,
at pages 405-409 H.ere 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 dealinonly with the
later contention ofa per se violation of the Nandate and the Covenant.
Rlr. President, on the facts ~vhich we set out in our pleadings and
which arenoiv accepted as fact, iismanifest that such an arrangement
can onIy benefit the Temtory, that similar arrangements were made in
other territories, iricluding 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 niandated or trust territory. It is alsfactihat 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 Sations. There were proposed condemnatory
resolutions in the United Nations, but these were rejected. And that iç
where the matter stands as a matter of fact. The reference is to the
Counter-Mernorial, IV, at pages 82-84.
We ointed out further,Mr. President, that the Cornmittee on South
West f frica could riot suggest that this type of arrangement constituted
a per seviolation of the Mandate or the Covenant. In general we submit
that each and every one of the arguments submilted by the Applicants
was shown to be without substance.
Xeut, there is the administrative separation of the Eastern Caprivi
Zipfel, and that is dealt witinthe Memorials, 1,at pages193-19i4 nthe
Counter-Mernoriai, IV, at pages 105-118, in the lieply, IV, at pages 581-
582, and inthe 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 parcel ofthe droppingof that contention.
Now here again, Mr. President, we indicated-and 1 rnny Say very
briefly-in the Counter-Mernorial that the area was inaccessible from the
rest of South West Africa, that serious roblems of administration were
created and that the separation uTaseffcted for this reason; and when
upon the urging of the Permanent Mandates Commission to the con-
trary, an experiment was made over the years 1929-193 to9administer
the Eastern Caprivi Zipfel from Windhoek, 'aspart and parce1 of the
ordinary administration, that attempt proved to be a failure. ADDRESS BY >IR. DE VILLIERS 335
CVealso pointed out that those were the practical reasons why we had
to revert to this forrn of administration from Pretoria; that it al1 hap-
pened in terms of the charge under the Mandate, that there was nothing
inconsistent with the separate international status of the Territory, and
tliat the Permanent Mandates Commission had, indeed, no objection to
the arrangement. provided al1the provisions of the Mandate were prop-
erly applied in the area. So ag~in, 31r. President, itis qiiite clear that
the Applicants' charges undei this heading were without any merit, on
a perse basiç or ciany 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 tothe well-being and progress
of the inhabitants.
Finally, the very same follows in regard to the other matter ofcom-
plaint-the transfer of administration of Native affairs to the Minister
of Rantu Affairs and Development, and the vesting of South West
African Nativc Reserve land in the South African'Native Trust. This
was dealt with in the Alemorials, 1, at pages 194-195, the Counter-
hlemorial, IV, at pages 119-131, in the Reply, IV, at pages 583-58 6nd
the Rejoinder, VI, at pages 414-418.
\Ye çubmit, Mr. President, that we sliowed without doubt that these
measures are purely administrative measures, fullywithin the Respondent's
powers under the Riandate, that they nrere designed to operate for the
benefit of the inhabitants of the Tenitory, for the protection of theirland,
and for the intensification of the development of those lands and their
homelands, and that they do, in fact, so operate. These factsare adniitted,
and uresubmit that the conclusion follows that the actions cannot, perse
or on any other basis, be regarded as rriolative of the Mandate or the
Covenant. It is therefore clear, AIr. President, that thiper se argument
.of the Applicants stood no earthly chance of success, and that is obvi-
ously the reason why wedid riot hear of it again in these Oral Proceedings.
That brings us then to this totally new line adopted by the Applicants
inthe Oral Proceedings-the same sort of argument to ïvhich the? were
driven, as 1 have pointed out, in respect ofmilitarization.
To Our request for clarification of their attitude, twhich 1 referred
before, they reacted on 12 May, at IX, pages 235-239. In conjunction
with niilitarization. there is a passage, rit page 235 of this verbatim.
where the Applicants said:
"It is regarded . . . by the Applicants. as appropriate to consider
and dispose of these submissions at this stagc in the context of the
requirement of administr~~tivesupervision ..."
The nest paragraph made it clear that the Applicants admitted a11the
facts advanced by Respondent in connection with the charges originally
ïevelled under Submission 5-and that is in a passage rit page 235, to
\\-hich we have referred before.
And then, having dealt on this basis with militarization, the Appli-
cants said, at page237:
"On the same basis of analysis and consideration, turning to the
question of annexation, administrative supervisiorl is here again
seen to be of the essence. Respondent's refusal to subrnit to admin-
istrative supervision, indeed,is the underlying element of the Appli-
cants' complaint in this ri:gard.. ." *
And on the same page:336 SOUTH WEST AFRICA
"Denial of aubmission-the duty to submit-to international
accountability is adenial of the separate international status of the
Territory.''
On page 23s :
"'In the absence of such accountability, Respondent's functian
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, alters the international status of the Territory, it deprives it
of that character. .. [That] is the basis of our submission in this
regard."
hlr. President,1 had read those passages from the record of 12 May
to indicate the Applicants' own esplanations of their amended Submis-
sion No. 5 and we find in these explanations, indeed, a conclusion which
concurs e~itirely with that which we drew already upon a mere com-
parison at the beginning between the original subrnission 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
wliich this charge had rested was no mistake, it was done deliberately.
There isnow no longer an identification of those four original Iisted acts
or any other acts as forming the basis of this charge; it has now become
generalized, as in the case of rnilitarization.
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 hoiv its conte~itio~ithat the
United Nations has no supervisory powers over its adnlinistration
of South West Africa-a contention which Respoiident submits is
çound-can have any bearing on the propriety or otherwise of its
acts of administration in the Territory.Ifsuch acts of administration
are in themselves unquestionable, the fact that there is no super-
vision cannot i-ender 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 tliis? They react with a play on the
words "questionable" and "unquestionable", and as 1shnll show, it leads
them into worse trouble than before. We find that in the verbatim record
of 12hlaj, at IX, page 237:
"... Respondi:nt's analysis presupposes the possibility of a judg-
ment of this honourable Court to the effect that srich acts of adniin-
istration are 'unquestionable', and, as 1 have said and as the Appli-
cants respectfiilIy submit, al1acts of administration, in the absence
of supervision, must be 'questionable'. That does not reflectupon
their merits, they are questionable because they are open to question
because there is no information available upon whicli their merits,
or otiierwise.can be supervisecl and examined."
So we find that the Applicants refuse to discuss mhetlier the acts origi-
nally complained of are questionable on their merits, or any other acts; ADDREÇS DY h1R. DE VILLIERS 337
as a matter of fact,they make it plain now that that is no longer relevant
to their contention. Instead the original acts are no longer isolated, as
being specificallj~relied upon; they are equated with ail other acts of
administration,and the sweeping statement is then made that in Appli-
cants' submission al1acts of administration, irrespective of their rnerits,
are questionable in the absence of supervision.
And so it becomes perfectly clear that Chapter VI11 of the Mernorials
and the original Submission No. 5 have now been turned into a complaint
relating solely to thedenial on Respondent's part of a duty to submit to
supervision by the General Assembly of the United Kations, which com-
plaint is idcntical with their purely legal cornplaints with regard to
supervision. And that is the reason why, as1 emphasized before, it is now
really unnecessary to give attention to each one of those specificacts of
which the Applicants originally com lained.
Once this becomes clear, it also gecomes evident that the amcnded
Submission No. 5has now virtually become rneaningless. Let us illustrate
it by readirig 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 refusal 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 laon
sequitur.They continue: "that: such treatment is in violation of Respon-
dent's obligations as stated in the first paragraph of Article 2 of the
Mandate and Article 22 of the Convenant."
Ituill be rernembered that the obligations relied upon by the Appli-
cants in thcir Mernorials for the purposes of this submission were firsfly,
the alleged duty to refrain frorn unilateral anncsation, and, secondly, the
alleged dutjr to advance the political maturity of the Territory's inhab-
itants so that they mas ultimately exercise self-determination. The new
factual complaint under ameiided Submission Ko. 5-that is, the Re-
spondent's denial of supervision tothe United Nations and the refusa1 to
submit to such supervision-has nothing to do with thesc alleged obliga-
tions-wjth these obligations of refraining from unilateral annexation
and advanciiig political matiiri ty. On the contrary, tlie complaint is
esactly the same as that made by the Applicants under their submission
relating to Article6 of the Maiidate. And so it goes further also when the
amended Submission No. 5 continues: "that Respondent has th<:duty
forthwith to cease such actions, and to refrain from similar actionsin the
future; and that Respondent has the dutyto accord full faithand respect
tu the international status of the Territory" (IX, p. 375) .hose are the
words from the iiew, amended submission.
The Applicants are now mfirely asking for an order that Respondent
must stop denying the existence of rights of supervision on the part of
the United Xations, and that the Respondent is legally bound to submit
to such supervision in future. In other words, they are asking al1 over
again for thc same thjngs as in their Submisçions 2, 7 and 8. Tliere is
no distinction. The only distinction now has become a verbal one, and
the description in these later subrnissions. for instance No. 5,ol that
contention isreally a very strangely worded one. lt arose from one
circumstance, and one circumstance only, nIr.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 relying could not siipport them, and33S SOUTH WEST AFRlCA
that therefore thest: original charges they made were, as a whole, com-
pletely insu portable.
The Applcants ought to have heeded the warning of hlr. Carpio of
the Philip ines, which \vas quoted to the Court earlier, in a discussion
in one oftKese committees dealing with the question of possible litigation
against South Africa. 1quote frorn theGenerak Assewtbly,ilficiaRecords,
A/AC~~JSRIZO ofg September 1959 page 3, where Mr. Carpio said:
"To choose cluestions dealing with the administration of South
West Africa as an integral portion of the Union of South Africa,
whes the Union Governrnent was authorized by the Mandate to do
so,was to choc>sethe weakest argument."
My learned friend, >Ir. Grosskopf, has indicated to the Court why
this argument cannot succeed in the case of militarization. It would be
supererogation on rny part to repeat that argument to the CouEt.1 sub-
mit, very clearly, that also Subrnission No5 should be dismissed.
Then we corne to Subrnission Ko. g, unilateral amendment of the
Mandate, where we have much the sarne story. And 1 am quite sure
the Court would not like to listen in detail to al1 the various courses
which the dispute in this form took. 1shall deal ïvith it very briefly.
Inthe hlernorials the Applicants allegecl:
"... that the actions of the Union, as set forth in ChaptersV, VI,
VI1 and VI11 of this Mernorial, read in the light of the intent of
the Union, ... constitute a unilaterai attempt by the Union sub-
stantially to modify the terms of the Mandate". (1, p.rg6.)
Xow of these chapters as identified here, &Ir. President, V to VI11 of
the Memorials, Chapter V dealt respectively with aiieged violationsof
Article 2, paragraph z, of the Mandate, which, as the Court wilI recall
at that stage, were alleged tobe intentional violations of the Mandate.
Then Chapter VI related to allegations of petitioners, Chapter VI1 related
to militarization, and Chapter VI11 relatedto unilateraI incorporation.
It vas bn the bais of al1 those allegations made that the Court will
recall the factual basis of the Applicants' caineach of these instances,
tliat there was said to be a unilateral attempt by the Union substantially
to modify the terms of the Mandate.
Now, hlr. President, in our Counter-Alemorial we denied that Respon-
dent had any "intent to modify the Mandate". We emphasized then,
as 1 should like ta emphasize now, that it is very difficult to sec 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
circurnstancesof an ünintentional violation of obligations under aagree;
ment where there is a difference of interpretationor a basis for an
unintentional action which, nevertheless, transgresses provisions of an
instrument. But one could as a matter of notion, in rny submission,
never conceive of an unintentional attempt at modifying the provisions
of an instrument. SureIy that is somefhjng that can be brought about
only by an intent, or on the basis oanintent, 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 emphaçized as being fundamental to our answer,
in the Counter-Mernorial,IV, at page 136, that-
". . . the record shows a complete absence of intent on Respondent's
part to perform any actions in regard to the Territory which ivould
not have been permissible under the hlandate ifit had still been
in force".
And we also denied that any acts by the Respondent modified the terms
of the Mandate.
Now the Applicants' reaction in the Reply, IV, at page 587, was dealt
ivith in the Rejoinder, VI, atpages 423-428 O.fspecial importance was
the fact that the Applicants liad, 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 Respondent, the Respondent never having agreed to it at all.
And it was, according to the Applicants' contention, to be read as
forrning 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
hlandate.
We pointed out, therefore, that if anybody wished to modify the
terms of the hlandate unilaterally,it was certainly not the Respoiident.
That was in the Xejoinder, VI,at pages 424-425,
A further point of importance, Mr. Yresident, was one I have already
referred to, and that is, that in each of these chapters of complaints-
1 am leaving aside the petitioners now for the moment-those relating
to Article2,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 aiiegation in regard to intent,
and that, as we have traced out in these proceedings, has fallen away
in every respect, inciuding 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 Sut)rnissions 5 and g. and then made it clear
that the nature of the intent relied upon by them was the same in both
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 hlandate without the consent of the supervisory organ, toit,
the United Nations.
The correlation of Article,paragraph r, with Article 7, paragraph
I,underlies the Applicants' Submissions Nos. 5 and 9 respectively."
That was the record of 23 March, at VXII, page zzo, and this was still
their evidence-in-chief before the changes in regard to the elernent of
intent became so absolutely manifest.
The Applicants then proceeded to state that this intent to incorporate
had to be objectively determined by legal inference from conduct and
thcy continued, at page 221:
"Accordingly, conduct from which map be objectively inferred
an intent to evade the requirernents of Article7, paragraph I, 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."34O SOUTH WEST AFRICA
So, &Ir. President, it is apparent that the Applicants not only reIied
on the same alleged intent to siibstantiate the charges of unilateral
incorporation under Submission 5 and unilateral amendment of the terms
of the Mandate, Submission g, but also that both of these submissions
were dependen t on their arguments regarding supervision. That sppears
from their statemeiit at page 221 of the same verbatim record:
"If the honourable Court were to accept Respondent's contention
concerning lapse of provisions for international supervision, including
Article 7,pnragraph 1,the Applicants' Submissions numbers 5 and
g would. tliereby, and for that reason alone become unavailing."
Here, too, we found this strange phenomenon that already at this
early stage, on 23 March, they wcre asking for an Order in terms of
Submission No. g, at page 231 of the same record, and the submission
was formally stated on the next day, 24 Rlarcti, 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 hlemorials and itstill
referred to and re1ic.don "the acts described in Chapters V, VI, VI1 and
VI11 ... [in] the Mernorial".
Xow, in the light of the euplanations that had been offered. there
was clearly sornething wrong with this formulation. These chapters, as
I have pointed out, certainly as at that stage still held within themselves
various allegations of jntent and dis utes of fact. Sa how could the
Applicants then ask for this Order bezre dealing with these disputes of
fact as they suggested they would do ai a later stage of the proceedings?
Here, also, we commenled in a like way, as in the case of Submission
No. 5, on the artificiality of this sriggested reliance on the presumption
which 1 mentioned before in regard to the question of intent, and \ï7e
finished off on 26 April, atVIII, page 712:
"The fact is, in Our subrnission, that the Applicants are here also
riinning away from the task of embarking upon that full eiiquiry,
of establishing by ordinaru. evidential means ail intent which they
have to prove, and wvhichtheg admit that they have to prove, in
order to establish their case in law1 have never heard 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 rz Rlay in conjunction with
these two previous matters 1 have just mentioned, militanzation and
unilateral incorporation, and here the pattern was esactly the sanle. No
longer relying upon these previous factualallegations in regard to intent,
they continued simply with a new argument, and they no longer relied
on an intent to incorporate the Territory; they now placed reliance upon
another intent and that is: ", ., an avowed aiid cleclared design of
Respondent to partition the Territory ,.." This is found in the record
of 12 hlay, at IX, page z3g. At the same page, they said-
"In respect of Submission 30.9, Respondent has esplicitly avowed
an intent to partition the Territory without the consent of the
superviçory organs."
And again, on page 240:
'The Applicants accordingiy have requested the Court to adjudge
and declare that consent on the part of the United Nations is a ADDRESS BY MR. DE VILLIERS 34I
condition precedent to the effectuation of such an avowed intention
or plan."
Then on page 239,they said:
"It waç on this basis and for this reason, in the light of these
avowals, that Submiçsion No. g is the only submission which in-
incorporates or is intended to incorporate reference to or relies upon
Respondent's intent."
Aïr. President, this was rather çurprising because the onIy intent we
had heard of up to that stage was the "intent to annes the Territory".
That had petered out inthe way I had described before. \Vc hear now
for the 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 thathad been in the submission right from
the days of the Memorialç. Ai~yway, this is also the vey last that we
hear of Submission No. g from the Applicants. It must be noted that
thep 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 parce1 of the Respondent's intent to bring about a modifica-
tion ofthe provisions of the Xandate. We are left with this suggestion
of an intent to partition the Ti:rritory unilaterally and it is very evident
that the Ap licants arc graçpingat straus.
None of t feir characterizations of the Reçpondent's alleged intent is
correct.\Ire dealt with this niatter very clearly in the Rejoinder, VI,
at pages 416-418. The Odendaal Cornmisçion's recommendations are
aimed at the best methodç of administration and developrnent regarding
the specific circurnstances of South West Africa. The approach of the
Commission and the Rcsponclent's attitude thercto concern prospective
measures entirely within the provisions of the Mandate arid directed
çolely at the well-being of the inhnbitants. The Applicants overlook
entirely the Respondent's power under the Nandate-"the full po\ircrs
of and administration and legislation over the 'I'erritory..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-called partition problem is one which will only be met when
that particular stage is arrived at.The policy as at this stage envisages
nothing morc than that certain comnlunities develop up to a stage of
self-determination lvhere they are ripe for the purpose and where they,
in fact, express their xvishes as to what their future iç to be and is to
involve. It may involve sometliing that does not mean partition, it may
involvs eomething that does mean partition. If so, that position will
have to be met as at tliat particular stage, but to talk at this stage of
an intent on the part of the Respondent to partition the Territory
unilaterally makes complete nonsense in rny çubmission. If one reaches
that stage eventualiy 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. aç I have pointed out before, provision for amendment
of the provisions of the Mandate-special provision-in Article 7, para-
graph I,of the Mandate, under 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 achieved and it is certainly342 SOUTH WEST AFRlCA
not the only way iiiwhich a change with international recognition could
be achieved under circumtances 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 Ap~ilicants'part in any case falls away. But even if the
United Nations should have supervisory functions then the Mandate
never said and never meant that the organ exercising the supervisory
functions must necessarily give its consent to a modification of the
Mandate, ifsuch a modification is to be a valid one. That the Mandate
never said, as 1 ha.ve pointed out before, and 1 need not go into those
arguments again.
So, hlr. Preside~it, there is again no factual and no legal bais for
this line of attack on thepart ofthe Applicants. It becornesa completely
artificial one.
Perhaps the Ap~ilicants have appreciated their difficulties after alt.
When we look at tlieir final subrnissions of 19May, in the record of that
date at IX, page 375, Ivenotice that they no longer refer to the actions
ofthe Union as set forth in Chapters V, VI, VI1 and VI11ofthe alernorials
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 tem
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 Kations is a necessarp prerequisite and condition
precedent to attempts on thepart ofRespondentdirectly or indirectly
to modify the lems of the Mandate."
It could hardly be more vague than this, hlr. President. Al1 reference
tothe manner in which they allege that the Respondent has attempted
to modify the tems of the lilandate has simply been escised. Apparently,
as we find frorn 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 would appear that
here also al1the rcliance preliously placed uponspecific facts and par-
ticularly on specific alleged forms of intent has now been abandoned.
Here again, 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 hefore. 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 subrnissions which deal with that question and which allege
that the Respondeiit violated its obligations inthe respects of failing to
submit to tlie supervision of the United Nations, but to suggest that the
one of its siibstantive obligations under the Mandate, in our submission,
also the Applicants' Submission Ko. 9 should be dismissed. premises
Mr. President, it remains for me, then. only to offer some very bnef
remarks in conclusion; the Court will probably hear that with relief!
In regard to the Applicants' Submissions Nos. I,2, 7 and 8, these have ADDRESS BY MR. DE VILLIERS 343
been disposed of and the diffcrent conclusions which, we submit, rnay
be reached by the Court in rliis respect have been deaIt with by us.
Merely for handy reference, 1 point out that that tvas in the verbatim
record atVIII, pages 583-584, and again at IX,page 481.
Now, in regard to Subrnissions Xos. 3, 4, 5, 6 and 9, on the basis of
the contentions which we have put to the Court there are general grounds
upon which al1ttiese subrnissions may be dismissed. One of them wouid
be that the Mandate aç a ~vholeha lapsed. That would, of course,
dispose of ailthe submissions. Another rnay be that the Court has no
jurisdiction generally, on the basis thatwas argued in the Preliminary
Objections.
Now, specifically in regard to Submissions Nos. 3aiid 4,to summarize
the various possible findings in Our favour, for which we have contended
inthe course of our presentation to the Court, the issue turns on the
existence or otherwise of the iiorm andior standards as defined at page
493, of the Reply, IV, and it niay be convenient to deal with the matter
separately as regards the norm and the standards.
In regard to tlie norm, firstly, we pointed out that the Court would
not possess jurisdiction in terms of Article7, paragraph 2,to decide on
alleged contraventions of any newly created norm, such as that relied
upon by the Applicants. But uredid not abide, ofcourse, by submissions
about jurisdiction, we proceeded to deal with the merits of the contention
in regard to the norrn. And we contended, secondly, that there is no
legislative or otiier 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 ilpplicants.
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 rnajorities 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 woulcl
comply with standards laid down by the competent supervisory organ.
Secondly, that there is no longer any competent supervisory organ since
the dissolution of the League. 'ThirdlyMr. President, uTecontended that
the United Nations did not attenlpt 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 asUnited Nations activities are concernein regard toçtandards,
we demonçtrated, in Oursubmission, 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 dernon-
strated,in our submission, that a norm or a standard, asdefined, ~vould,
in its application, be detrimental to such well-being and progress. We344 SOUTH WEST AFRICA
çubrnit that this isrelevant and matena1 because of the following con-
clusions that flow from it:
Firstly, that no norm as defined could exist or could be appliedby the
Court by virtue of Article 7, paragraph 2,of the Alandate, inasmuch as
a norm which is inconsistent with the purposeç of the Mandate could not
fa11under "the provisions of the Mandate".
Secondly, Nr. President, in Oursubmission, this incompatibility would
by itselfshow 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
prernises and the political motivation in the United Nations would render
invalid any purported creation of standards. In other words, bringing
those two together-our demonstration of what really happened in the
processes of the United Nations, and ivhat are the realfactsabout idl-
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 g,Our contention isthat
they should be dis~nissed for the reasons with which we 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,
yaragrayh z, of the Mandate. Representatives of both sides, hIr. 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 human beings. From the Res ondent's side, we hope that
the presentation of our case, ~vhichwe coul?make tothe Court by way of
expositions of true facts, by legal argument, by the assistance afforded
by the evidence of the esperts, willbe regarded by the Court as being of
assistance to it in the determination of itstask with these very serious,
and these Véryjar-reaching implications.
We trust also, Mr. l'resident, that we may have thrown further Iight
on a statement which 1 had occasion to make at the beginning of these
proceedings, and tliat is, that there ias faras the Respondent Govern-
ment is concerned, no real argument about basic objectives, questions
of humanity, basic noms and standards which require to be applied in
a matter of this kind; that differences which have arisen, have been
differences in regard to rnethod of achieving cornrnon ideals. We have
directed our evidence to the question of those methodsand to the reasons
why ive submit that those methods that are being adopted, the broad
approach that has been adopted by the Respondent Government in that
respect,is theonljvone which could really be conducive to the tvell-being
and the progress of al1 the peopIes concerned in the application of its
policies.
We have endeavoured to demonstrate also that the approach of the
South Africnii Governmcnt in this respect is not one of the spirit of
infallibility. 1 had occasion to Say, in my opening staternent on the
question of the inspection, on 30 March, at VIII, page 278, "the South
African Governrnent does not lai any claim to perfectionJ'. 1 wish to
refer the Court also to the statemenby the Reverend &Ir.Gericke in the
record of 21 Sepfember 1965, at XI, page 62, made under cross-ex-
amiriation :
"\Ve are not defying the world-ive are follo\ving 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 ... We are seeing this
road as the only road to the solution, that is all."
So, Mr. President, 1 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 to its task, and what
would appear to be, as a matter of general approach. the best method of
setting about that task. Now what are those real norms? They have
clearly been shown to be basic, generally accepted,norms and standards:
justice for everybody, faith, hope and charity. Charity in this context,
Blr. President, charity or love, must very clearly include also the con-
cepts ofpatience and humility. There has been rnuch show of impatience,
but \ve 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 questionof patience and humility.
Experience has very often shown in Africa that the best intentioned
schernes are bound to fail unless they take sufficient cognizance of
African reality: imported or preconceived notions which do not take
sufficient cognizance of that factor,and are not prepared to Iearn from
the local circumstances, are very often doomed to failure, whether it be
a groundnut scheme or a poljtjcal constitution.
Mr. Pepler in his evidence rnentioned 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 al1over again when it may be necessary.
That, then, Mr. President, is what the Respondent's Government
wiçhes to stressto the Court as the way in which it sees its task in regard
to these principles, these norms, these standards, to be adopted-çub-
mitted to this Court as the way in dich its duty is to be construed.
Inparticular, it submits that it is to have regarto those basic norms
especially commeridecl to itby leaders of the Dutch IZeformed Church in
a time of stressin 1960I. t was a reference to a very weU-known text in
the OIdTestament in the Book of Micah, Chapter VI, verse 8:
"He hath shewed thee, O man, what is good; and what doth the
Lord require of thee but to da justly, and to love mercy, and to
walk humbly with thy Gad?"
Mr. President, that conclu di:^the presentation of the Respondent's
case on the facts, subject of course to what we may find necessary by
way of oral rejoinder at a later stage. Again, 1 wish to convey to YOU,
Mr. President, and to every hlernber 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-
tion of Ourcase. With your leave, one of the Agents for the Respondent,
Mr. Botha, will present Our formal submissions to the Court. 34. ADDRESS BY &IR.BOTHA
AGENT FOR THE GOVERKMENT OF SOUTH AFRICA
AT THE PUBLIC HEARING OF 5 WOVEMBER 1965
hIr. President, wzerepeat and re-afiirm Our subrnissions, as set forth
at page 6,of the Counter-bkmorial, II, and confirmeri at page 429,of the
Kejoinder, VI. Thebe submissions, Mr. President, can be brought up-to-
date without any amendrnents of substance and then they read as fol-
lows :
Upon the basis of the çtatements 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, asrecorded ai IX, pages 374-376of the verbatim
record of 19 May 1965, are unfounded and that no declaration be made
as claimed by theni. In particular, Respondent submits-
I. 'ïhat the whoIe Mandate for South West Africa lapsed on the dis-
solution of the Leabweof Nations and that Respondent is, in consequence
thereof, no longer subject to any legal obligations thereunder.
2. In the alternative to r above, and in the event of itbeing held that
the Mandate as such continued in existence despitethe dissolution of the
League of Nations :
(a) Relative to Applicants' Submissions numbers 2, 7 and 8, that
the Respondent's formerobligations under the alandate toreport
and account to, and to submt 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 Xations or any
other organization or body. Kespondent is therefore under no
obligation to submit reports concerning its administration of
South West Africa, or to transmit etitions from the inhabitants
of that Tesritory, to the United dations or any other body;
(b) Relative tu Applicants' Subrnissions nurnbers 3, 4, 5,6 and g,
that the Kespondent ha not, in any of the respects alleged,
violated its obligations as stated in the Mandate or in Artic22
of the Covenant of the League of Nations.
Mr. President and honourabIe Rfembersof the Court, I thank you. 35. OBSERVA'TIONS OF >IR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARINGS OF 9-12 NOVEMBER 1965
Air. President and honourable Nernbers of the Court, it may be con-
venient for the Applicants to preface comrnents upon the evidence with
clusion by Applicants of their argument on both llaw and fact, subjectn-
to the reservations made by the A plicants in the Oral Proceedingson
19May in the verbatirn record atf~ ,age 373. The Applicants at that
time, as the Court wili recall, reserved the riglit, pursuant to Article 50
of the Rules of Court, to comment upon evidence given, as weil 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 aliu, the right of amendment of submissions.
The Applicants take the occasion to reaffirm their response to the
question addressed to them by the honourable President on 5 Novernber,
in the hlinuteç, VILI,page 92. The Applicants rest upon the final sub-
missions presented to the Court on 19 May, as set outin full in the ver-
batim record of that date, IX, pages 374-375.The Applicants perceive
no reason, on the basis oany arguments made by Respondent since that
date or of any evidence produced, to arnend theirsubmissions.
If it please the honourable President,now roceed, on behalf of the
Applicants, to cornent upon the evidence of tRe witnesses and experts.
Diligent efforthas been made in the time provided, and will be main-
tained, to compIy with the terms othe staternent made by the honourable
President on behalfof the Court on24 May, in the Minutes,VIII,page 46,
and to that end, subjectof course to the disposition of the Court, the
Ap licants will not detain the Court beyond the session of tomorrow.
fornrnent will be fint addressed to the objections fully and tirnely .
made by the Applicants witli regard to the question or issue of relevance,
weight and credibility to be attached to the evidenceinthe light of the
manner or guise in which Respondent formulated the points to which the
evidence waç directed, and the issues to which such evidcnce was said
by Respondent to be relevant.
The Applicants' objections in this regard were first lodged by Ietter
dated 20 June 1965,confirmcd and read intothe record in open Court on
21 Junel. In the same verbatim record, pages 103 and following, the
Applicants elaborated the grounds u on which such objections were
based. As the Court wili no doubt recat the Applicants' objections were
consistently and repeatedly maintained thereafter. In the iriterest of
expedition, it will suffice perhaps to draw to thCourt's attention the
reservation ofsuch objections in the verbatim records, iialia,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 lvhich its evidencc was
directed, orsaid to be directed, made itç forma1 début ina letter dated
16 June 1965, adtiressed to the Court by Respondent's Agent1. Para-
See XIIPart IV. 348 SOUTH WEST AFRICA
graph (b) of the Respondent's letter of 16 June stated, arnong other
things, as follows:
"The testimony of al1 the witnesses to be called wiii be directed
solely to the question whether a norm andlor standards such as
contended for by Applicants exist and are applicable to South M'est
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 gi-ounds upon which the Applicants' objections to such
a formulation urere lodged is germane to, and a relevant aspect of, com-
ment upon the evidence itself, in the Applicants' submission. >fore than
this, however, consideration of the groundç of the Applicants' objections
furnishes a key to evaluation by the Court of the relevance, the weight
and the significance properly to be attached to the evidence Ied by
Respondent and produced in response to this formulation, by the Re-
spo~ident, of the issue to which the evidence was said tobe directed. This
is al1 the more apparent from the practice, adopted consistently there-
after by Rcspondt:nt, of putting to virtually every witness a so-called
"culminating question", or series of questions, in which expert opinion
was solicited as to the effect upon the inhabitantsofthe Territory, in the
standard form, of a "norm andlor standards such as contendecl for by
Applicants". Sometimes, as a variation of the same theme, perhaps to
relieve monotony, the phrase "of the nature contended for by the Appli-
cants" was substituted for the phrase "such as contended for by the
App1icants"-the distinction, of course, is insignificant.
In the case of Professor Manning, the Respondent injected a new
variant, according to kvhich the testimonj~ of the witness ~vîç to be
directed to a consideration "of the application of a suggested rule of
non-differentiation in South \Vest Africa". This is from the verbatim
record of r4 October, at XI, page 600.
The Applicants, as they had before and as they did thereafter, duly
and promptty reafirmed 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 hy the Applicants
in the course of their objection at that page. The Applicants objected
to Respondent's newly coined, though no les counterfeit, formulation
ofthe point to which Professor Manning's evidence was said to be directed.
In the Applicants' submission, the new formulation merely 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 testirnony. The witness $vasled by Xespondent, for example,
to express views concerning "group personality", 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 gronnd of their uncertainty asto the
real pointto whicli the evidence was being directed. The attention of the OBSERVATIONS OF $IR. GROSS 349
Court is drawn to the objection stated at XI, pages 606 to 607. The
Applicants stated tl-iat they also were firm believers in "group personal-
ity , but did not perceive what relevance that fact bore to the issues in
this case. The Applicants stated, in esplanation of their objection, and
1quote from page 607 of the same verbatim record:
"If the witness is attempting by his testimony to support officia1
discriniination on a basis of race, the Applicants would like to know
that with clarity, Sir,ifit is possible."
'l'heRespondent never answered the question.
A concise statement of the grounds of the Applicants' objections to
any and al1such 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 a,d the Court's attention, respectfully, is drawn tlicreto:
it will not be cited again, in the interests of espedition; no quotations
will be made.
The esserice of the objection,Mr. Presirlent and honourable Members,
can bc put into a nutshell. Evidence directed to a false issue is irrelevant
to the real issue. The ûmbiguity 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 al1 its variations imports a false rendering of the
true nature of the standards for \ilhich 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 iç of
course unclerstood by the Appiicnnts that :irecanvass of the arguments,
with respect to the content or other aspects of the standards and the
legal norm, would be out of place in the contest of this comment upon
the evidence.
Respondent's formulation of the issue to which its evidence was
directed would in any event, undt:r any other circumstnnces, justify an
objection on the grounds of arnbiguity purçuant to normal and logical
principles of evidcntiary procedurc. But more than this, itis, in fact, in
its verIr formulation, an implied legal argument, meaningless in itself
without reference to the conflicting interprctations 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-
ularljrof course the Reply.
In the course of reyeated objections to the formulation of the issues
to which the Respondent's evidence u7assaid to be relevant, the Appli-
cants pointed out that the Respondent's obstinate use of the term
"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 frorn the question
of relevance as such, the evidence itself would be difficulritbest, 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 culrninating
question: "Do vou consider that measures of differentiation to protect
the various groups are necessai-y?" (X,p..373.)
Içit the intended sense of such a question-1s it to be inferred there-
from-that measures of raciaI discrimination may be necessary to protect
groups against ~vhichsuch measures are practised?35O 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 imrnediately in the evidence, in the testimony in
response thereto.
In his response, Professor Logan confined himself to measures to
reserve the lands ofthe 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
peoYrofessor Logan made no mention at al1 oflaws and remlations or of
Respondent's Üfficialmethods and rneasurcs for effectuahg such laws,
which impose limitations upon economic advancement on a racial basis,
or totaliy deny franchise on a racial basis, or place obstacles on a purely
racial basis in thway 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 laws lvhjchcomprise the poljcy of apartheid.In other words,
Professor Logan Ras 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 put to him in pursuance thereof, and did not address himself to the
facts which, on the Applicants' theory, are decisively relevant to their
case.
Arguments reIative 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
supercro atory to assure the honourable Court that no aspect of impli-
cation O"; the Applicants' objections to Kespondent's formulation of
the issue, to which its evidence was said to be directed, reflects the slight-
est doubt that, asthe A plicants put in the Oral Proceedings of 21 June,
"the Court indeed is aPe to appreciate the contentions of the respective
Parties". (X,p. 106.)
The evidentiary confusion (which is the subject ofthis 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 testirnony of Yrofessor Possony.
As the -4pplicants sought to bring out on cross-examination of this
witness, the relevance, weight and credibility of al1opinions elicitedby
the Rcspondent from Professor Possony as an expert al1hinged upon an
understanding of the witness concerning 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 21 October. at pages 36-38, sueu, in support of
what he understood to be the Respondent's interpretation of the stan-
dards or the nom, or both, as defined and described atpage 493, ofthe OBSERVATIOSS OF MR. CROSS 351
Reply, IV, was studded with references to the sources set out at other
pages in the Reply from which the standardsare derived, ancl the sources
described in the Xeply which, as is also stated in the Reply at page 493,
"severaliy and in their totality comprise the generally accepted norm".
The witness, for cxample, referred to the Draft Convention on the Elirni-
nation of al1forms of Racial Discrimination, one of the sources cited by
the Applicants, which embodies a definition of racial discrimination.
which is quoted in the Reply, IV, at page 507, footnote z. The purport
of I'rofessor Possony's testimonp 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
jt is indeed a fair rendering ofhjs testimony, as itseems to be-would,
in the Applicants' submission, go far to dirninish or dismiss the credibil-
ity and weight of his testirnony 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 they are
comprised.
However, the point the Applicants seek to mnke is that his response
was difficult-if not impossible-to evaluate, cxcept in the Iight of his
understanding ofthe legal nature and content of the international stan-
dards for which the AppIicants contend, and as they are described in
their Reply, IV, at page 493.
1 turn now to another aspect of the consequences of Respondent's
formulation of the issues to which Professor Possony's testimony was
said to be directed, that is, "the absence of a general practice of a sug-
gested norm andlor 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 s'ameverbatim
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'ç letter
of 16 June, to~vhichI have referred.
Following his argument in support of his construction of the legal
nature of the Applicants' contention-an argument, incidentally, whicfi
was triggered by a question addressed to him on cross-examination but
which was not responsive toit, as the Court \vil1observe in~ages 3j-36,
supra-Professor Possony was questioned further in an e ort to elicit
as clearly as possible his own understanding of the point or issue twhich
his evidence was said by Resportdent to be relevant. The inherent 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 &lember of the United biations would not be
entitled to provide special protection or special public conveniences
for women". (Supra, p. 41.)
Professor Possony, after a prefatory comment, responded: "1 think
page 131, V, of the Rejoinder, which hfr. Gros just read, is a correct
description of page 493." (Ibid.) He meant, of course, page 493 of the
---r-J.V---
The witness thus found itnecessary, 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 trnvel the road of confusion to its destination, ~vhichin
this case was absurdity.
In responçe to a question addressed to the Applicants by the honour-
able President at X, page 132, the Applicants indicated thatit was their
position that evidence relevant tointernational custorn 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 evidenceof ageneral 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 ln rcpeated 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-calIed "practice" of international standards
in the sense employed in these proceedings.
In respect of the Applicants contention with regard to the asserted
international legal norm, orrule ofinternational law, the issue is whether
the rule of international law contended for exists as such, as a matter
of law, and whethix the Court could properly find and apply it to this
case in terms of Article 38 of the Statute. That is the içsue to which
evidence pertaining to such an alleged international legal norrn would be
relevant and woulti be properly directed.
In respect of the international standards, however, quite a different
issue is presented. No evidence is relevant, in the Applicants' subrnis-
sion, concerning the extent to ~vhichinternational standards pertaining
to racial discrimination-to 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 sourcescited and properly
reflect them-the i:sistence of which sources is undisputed and indis u-
table-then the extent to which such standards are perhaps violate cfin
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.
In the evelit, the evidence actually led by Respondent, as distinguished
from that indicateil in Counsel's initial proffer, to whi1hhave referred,
largely was concerned with sociological data and hypotheses, rather
than general ractice. Such evidence as was produced which did relate
to practice OP 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 his mernbership in a racial group or
by reason of his colour. None of this evidence had anything to do with
the Applicants' contention, exccpt 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 all. 1would Say parenthetically, i1may, Mr. Presi-
dent, that Resporident neither through Professor van den Haag, nor
through any other witness, offeredevidencc-nor isthere any suchevidence
to be found-tending to show that racial discrirniiintion could promote OBSERVATIONS OF MR. GROSS 353
moral well-being or social progress in any human contest. As was brought
out during the examination of Professor Possony-1 will-corne back to
Professor van den Haag in a.moment-Respondent itselin its pleadings,
and Respondent's witnesses in their testimony, employed the term "dis-
crimination" in its customary and prevalent seiise connoting adverse
and unfair deninl of equal rights or opportunities to an individual as
such ,n the grounds of his race and colour. Esamples of the use of the
term "discrimination" in this sense by Respondent may be found, inter
alia, at pages 5, 6-7 and 12, supra, and the Court's attention is drawn
also to the testimony of Professor van den Haag at X, page 150, and to
that of Professor Bruwer at X, page 299,
As 1have said, Rlr.President, the testirnony of Professor van den Haag
did not concern State practice a.tall. It appeared at first that his yroffered
testimony rnight be directed to the practice of States-see X, page 130,
and the question ropounded bp the honourable President at page 132
in the same record'
In the event, lJrofessor van den Haag's testimony, however, proved
to be wide of this mark. In the Applicants' siibmission this was brought
out in Professor van den Haag's response to the question put to 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 Professor Possony's examination: during the course of
hiç testimony lie described, forexample, socialor politicalnaoresin the
United States, conceding, as the Applicants understood hirn, that con-
stitutional practice in the United States, as in most other civilized coun-
tries. interdictedofficia1racial discrimination.The AppIicants refer to
the intervention 11ythe honourable President, in respect of certain as-
pects of Professor Possony's testimony in reg-rd to this matter, at XI,
pages 693-694.
With regard to Professor Manning's testimony, the A~plicants re-
spectfully draw the Court's attention to Professor Manning s statements
at XI, pages 620 and 623-624. Eikewise, at page 637 of the sarne record,
Professor hlanning conceded that he would have to make what he calIed
a "special study" before he could answer a question as to whcther the
States he had enurnerated in the course of his testirnony had, orpursued,
policies of establishing the rights, status, duties, priviieges or burdens
of individuals on the basis of their groiip or race, rather than on the
basis of theirindividuai merit and capacity.
Whatever the testimony of Professors van den Haag and hlanning
was intended to show, it had nothing, so far as the Applicants perceive,
to do with international custom evidencing the practice of States, in
thissense or in the termsof Articie 38(1) (6) of the Statute of the Court.
Yrofcssor Possonv ex~ressed o~inions with regard to ~ractices and he
gave evidence co&ern'ing certain lawç and conFtitutionS of States. None
of this, however, was relevant to issues presented and raiscd in respect
of the international standards or the international legal norm, or both,
for which the Applicants contend, as contrasted with the unintelligible
and arnbiguous reforrnu2atior1,iiçedas the basisupon which Respondent
led its witnesses, and asserted to be the sole question to which their
evidence was diri:cted or relevant.
When Respondent led its witnesses to testify concerning the practice
of States with regard to the norm ofnon-discrimination, or of non-sepa-354 SOUTH WEST AFRICA
ration as itis altcrnatively called, whst the Court heard, in our subrnis-
sion, was either testimony concerning the unofficial practice of groups
or individuals within States, usually not sanctioned by officia1action-
to say nothing of not being fostered and encouraged or required by of-
ficial action-or testimony related to the practice of States concerning
some standard or some international nom, but not the one for which
the Applicants contend.
In connection \vith the range of issues relevant to this matter under
comment, the Applicants were asked by the lionourable President, at
XI, page 6g0, whether or not evidence designed to establish that the
application of a standard, clairned to exist by Applicants, to the Terri-
tory iwouldbe contrary to the social progresç 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 certainthnt the Ap licantsunderstood and did justice
tothe true im ort ofthe honourable Besident's question, the Applicants
requested an a received permission to answer at a Iater date, in order to
give a considered response. Mith the President's Ieave, a very brief
comment in response thereto will now be made.
In 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 esist by the Applicants-
would be contrary to the social progress or welfare or development of
the inliabitants of the Territory of South West Africa (or indeed the
inhabitants of any other territory, but the latter is not in question here).
The Applicants' contention is that officia1 racial discrimination is in-
herently incompatible with social progress and human upelfare. The
standard for which they contend reflects and ernbodies, in their submis-
sion, a virtually uriiversal judgmeiit that racial discrimination under al1
circurnstances isanimpermissiblegovernmental policy, and is a fortioso
in respect ofamandate obligation to promote moral mell-being and social
progress to the utmost.
The Applicants, with respect, cannot conceive of any evidence rele-
vant to show that it ~ould be contruryto social progress toappl a stan-
dard according to which racial discrimination isincom~atible with social
progress. Any sucli evidence would be based upon a self-contradicting
proposition, and this was the intended sense of the brief, and only par-
tially considered, replymade by the Applicants to the President's ques-
tion as fisiunderstood at XI, page 690.
Furthemore, in the Applicants' subrnission, the testimony of Profes-
sor Possony proves that, within the ambit of State practice and under
the general rubric of Article38 (1)(bj, of the Statute of the Court, of-
ficial racial discriminationis universally condemned and proscribed in
the constitutional and legislative practices of al1 civilized States, with
virtually the sole exception of Respondent, as wel1as 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.
Ifit pleases the Court, 1 turn now to comment upon another aspect
of the evidence which likewise relates both toResponclent's formulation
of the issues to wliich the evidence was directed, and to the relevance,
or aeight, properly to be attached to the evidence produced. 1 refer OBSERVATIONS OF MR. GROSS 355
to the misunderstanding, or the apparent misunderstanding, of the
Respondent with respect to the actual significance of the AppIicants'
contention which was made in the Reply, IV, at page 260, and ever since
maintained, that-". .. the decisively relevant facts concerning Appli-
cants' Submissions 3 and 4 are undisputed". In the context of the present
comment, emphasis iç on the word "relevant". One by-product of Re-
spondent's persistent misconception of the meaning of the Applicants'
contention in this respect is the 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 ilone quickly, it ~vould
seern appropriate to comment upon a deeper dimension of the Respon-
dent's apparent misunderstanding of the contention lvhich 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 ~veighed by this Court, that all evidence 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 automatic "norm andlor standards", as to which
no evidmce or facts are relevant, but which-by means of some process
of legaI alchemy-establisli a violation of the Mandate without reference
to any evidence. And the "norm andjor standards", moreover, are said
to make irnperrnissible "special public convenienceç for women". This
is the parody of the case to which Respondent elected to lead its evidence
-the sole question to which it saw fit to direct the testirnony of its
witnesses.
The truc significance of the Applicants' contention that al1decisively
relevant facts are undisputed isreadily apparent on the basis of asimple
syllogism. It can, in Our view, be stated in three declarative sentences
which furnish a key to the interpretationand application of thehlandate,
and which demonstrate the actual basis upon which the Applicants'
contention-that "a11decisively relevant facts are undisputed"-rests.
The syllogism is asfollows:
I.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 $remise: apartheid is an extreme form of racial discrim-
ination.
3. The conclztsion: apartheid is inherently and per se incompatible
with the mandate obligation to promote moral well-being and social
progress, interpreted, as the obligation iç to be interpreted, in the light
of the applicable international standards ahich are set out in the major
premise.
To the conclusion rnay be added a footnote sentence that, inasmuch
as the mandate obligation iç-and 1 quote frorn the Mandate, Article 2
(2): "to promote to the utrnost", apartheid is 4fortioria violation of the
obligation.
This is the Applicants' case, and it always has been, frorn 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 rninor premise of the356 SOUfH WEST AFRICA
syllogism wliich 1 have just vcritured to place before the Court-that
is. that "apartheid is an extreme form of racial discrimination". The
laws and regulatioils, and the officia1methods and measures by which
they are effectuated, the existence of which is conceded by Respondent
and is on record as evidence, constitute a policy and practice of racial
discrimination of an estreme and virulent nature, which jsuniversally
condemned as such. Such a policy, establislicd by sucli evidence, is in-
herently and fier sr?incompatible with moral well-being and social pro-
gress, not only in the mandated territory but, in the -4pplicants' sub-
mission and as has often been said, anywliere, at aiiy time, and under
any circumstances.
It is on this hasis and for this reason that the Applicants have rnain-
tained that no evidence, nddifio~inlto that already in the record in the
written pleadings, is necessary or relevant to their case, tvhether such
further evidence is in the form of testimony or inspection. There is no
issue of fact, relevant to the existence of the international standards for
which the Applica~its 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 proceeclings, is their legal
quality and applicability to the Mandate-a purely legal 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 ohtained 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 1have already 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-al1 in the terms of Article 3s (1) of the Statute of
the Court. And as the Applicants indicated during tlie course of the
proceedings. they perceive no objection, subject to the Court's pleasure,
if materials relevant to Article 3s of the Statute are brought in by the
Rcspondent as evidence rather than as argument.
The Respondent's argument or contention with respect tothe asserted
legal consequences of the Applicants' so-called "admissions", to which
1 now turn our attention, is preniiçed upon the same 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 al1 times, as the record mnkes clear, have
reserved the issue of relevance. This apyears, intev alia,in the lpery
portions of the record cited by Respondent's Counsel. hlr. hluller, 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 Mr. Muller, the
Applicants state, at IX, page 21 :
"AI1 facts set forth in thisrecord, which upon the Applicants'
theory of the case are relevant to its contentions of law, are undis-
puted."
Sirnilarly, hlr. hluller cited the verbatim record of 26 OctoberIX, pages
43-44, at page 43-one of the very pages cited by Bir. Muller-the
Applicants stated : OBSERVATIOSS OF MR. GROSS 357
"~here is no relevant factrial issueindis ute between the Parties
concerning the measures and the practices l!ywhich the Respondent
gives effect to the admitted policy of apartheid."
Mr. President, the Applicants' reservation 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 115-116. The reservations expressly included
infcrcnces to be drawn from averments of fact, as well as averments not
relevant to the Applicants' theory of the case. Thereafter Resporident,
and appropriately so, on several occasions expressed doubt conccrning
the significance and the scope of the Applicants' reservation.ltimately,
on 3 May, in the verbatim record at lx, page 95, Respondent's Counsel
asked: "What do the Applicants mean by the expression 'averments of
fact'?". It was a fair question and it receiven fair answer.
In the verbatim record of 17 &Zay,the Applicants have set out what
was described as an "illustrativeenumeration" of laws and regulations,
officia1methods and measiires, the existence of which js conceded by
Respondent and upon which the Applicants rely, and which, of course,
stand undisputeci in the reco1.d. In describing the legnl significarice 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 esistent
IegisIation and administrative rneasures, and effectuating policies
and practices, form the cor+usof factual material or describe the
pattern of Respondent's coiiduct, which is known and characterized
widely as 'apartheid' ...
ln the Applicants' further submission, no evidence or testimony
in purported explanation or extenuation thereof is legally relevant
to the issues joinedin these proceedings." (IX, pp. 298-zgg.)
And the Applicants sought to clarify the matter still further, if possible,
in their res onse to the second question addressed to them by Judge
Sir ~erald 8tzrnaurice, in the verbatirn record o19 May ut IX, page 361.
A so-called "admission of irrelevn~zfacts" isa contradiction in terms.
If averments of fact are contended by a partÿ to be irrelevant, the
question of admission or deninl does not arise as a legtll proposition.
For the purposes of litigation sucIi averments of fact sirnply are ignored,
and 1 would also again draw to the Court's attention, with respect,
the persistent-if 1 may so dcscribe it-confusion esisting which one
hds 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 treatment of al1of these entireIy
different elemeiits as being legally synonymous, and exarnples have been
cited at more than one place in the record of these proceedings. The
Respondent's contention conct:rning the alleged legal effect of theAp
plicants' so-called "admissions" is, in the Applicants' submission, without
ment and should be rejected.
Before turning to comment of a more specific nature in regard to
the relevance, 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-examination. 1 refer in particular to the question raisby Respon-
dent ln the verbatim record of I November, at page 220, supu. 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 "aç 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 deerned pertinent to explain their agreement or dis-
agreement, as the case might be. As is clear, in the Applicants' respectful
submission, from the very nature of contentious proceedings before this
tribunal, as well as frorn the character of the parties to such proceedings,
latitude of a considerable degree, both on directand cross-examination,
properly may be accorded which, of course, always çubject to axiomatic
considerations of fairness, rnay not strictlybe in accord with rules of
evidence generaLiy observed in municipal jurisdictions in the field of
procedure. The self-evident character of this proposition is rnanifest
from the breadth of Article 49 of the Statute of the Court and Articl53,
paragraph r, of the Rulcs of Court. Reference is also respectfully made
to a specific application of the foregoing principle by the honourable
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, econornic, 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. Al1the foregoing evidencewas 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 res ect to the
procedures followed on cross-examination seems to boil 3own to the
proposition that i~ideliberating the credibility or weight properly to
be assigned by the Court to the views or opinions of ex erts, or in
assesning their possible bias or prejudice, the Court shoufd 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 sarne thing, the Respondent's contention seems
to be that such evidence, subrnitted in that form and for that purpose,
must be inadmissible unless it is presented by personal testimony ofal1
the scholarly authorities whoseviews are tobe placed before the witness
for his concurrence or non-concurrence.
Respondent's very reference to the testimony of Professor van den
Haag in this context brings the unreasonableness of the contention into
sharp focus. This witness. a professor of social phiIosophy, cited and
quoted in support ofhis own viewsnumerous opinions ofother authorities.
The Court's attention is drawn, inter dia, to the verbatim record of
22 June, at X,pages 145,146, 147 and to the verbatim record of 23 June,
at X, pages 166-171,172-17a5 nd 176-177.It was accordingly, peculiarly
relevant and appropriate, in order to assist the Court in evaluating the
weight and credibility of Yrofessor van den Haag's testimony, as well OBSERVATIONS OF MR. CROSS 359
as his possiblebis, 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 Iiis expertise and
to which fields his evidencewas directed. Indecd, in the case ofthis 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 everi the honesty of some of his most highly
respected conternporaries in the same fields. 1 refer the Court to the
verbatim record of 12 juiy atX, 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
exarnple, in Wigmoreon Evidenc(e a work rcferred to by Respondent as
an authority), Volume VI, the 1964 Pocket Supplement. pages 9-10;
from this the Court will observe that the cases there cited reveal an
increasing tendericy on the part of some municipal courts, in any event,
to enlarge or to expand previoiis practice, so as to permit the procedures
followed by the Applicants in cross-examination of the experts presented
in these proceedings, and that wch increasing tendency to enlarge upon
previous practice in these jurisdictions is viewed as an appropnate means
of testing the knowledge, the credibility and the weight properlp to be
accorded to expert opinion. The Applicants, on the basis of all these
considerations which Ihave mentioned in this regard, respectfully submit
that the Res ndent's contention, in respect of the use made by the
Applicants of% works of scholarly authorities, lacks merit and should
be rejected.
hlr. President, the Respondent has thought fit to make enquiry as to
the rcason why the Applicants crnbarked upon acourse of extensive cross-
examination, but there is no iieed 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 hata been disappointed in the
results.
The witnesses, both by admission and evasion, strikingly confirrned
the correctness of the Applicants' basic contention and legal premise
that apartheid by its very nature is an extreme, and fortunately unique,
forrn of racial discrimination, which is inherently incompatible with the
moral weI1-being and social prcigress of the persons whom it affects and
whose lives it touches. The wif.nessesbrought to life in the Court room
the impact upon individual hurnan beings of an officia1policyof racial
discrimination in which, and according to which, inhabitants are clas-
sified by inexorable fiadas either "non-European" or "European", as
either "White", or "Native", or "Coloured", or "Asiatic".
The Applicants, from the beginning, have maintained that (and Icluote
from the klernorials, 1,p. 161,paragraph 188):
"Taken as a ~vhole,the weight of the factual record cannot be
materjally djininjshedby atternpts at extenuation."
And itis accordingly paradoxiczal but true that the testimony, in direct
as weIl as upon cross-examination, confirrned over and over again how360 SOUTH WEST AFRICA
unnecessary the evidence really was. The testirnongr revealed 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, àrawn from
the evidence of record in the esceptionally voluminous written plead-
ings.
Respondent disparages the weight and significance of testimony elicited
in response to what Counsel for Respondent describes, or characterizes,
as (and 1 quote from the verbatim record of I 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 demean the evidence brought out in this respect, upon
cross-examination and also upon direct. The asserted distinction dra~vn
by Counsel: between what he referred to as "the geiieral well-being",
of the population as a whole, as distinguished from "the effect of partic-
ular measures u 011particular individualç in particular circumstances",
in our respectfuf view, begs the central question.
The impact of Respondent's racially discriminatory policy upon indi-
vidunls "in particular circumstances",and through "particular measures",
is precisely what the Applicants are talking about. The distinction
purported to be dr;iwn by Respondent between "the general well-being"
and the u7ell-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, if sought tobe drawn-would
illuminate with Iightning clarity, as the evidence has done, the essentially -
racist perspective which uniquely marks apartheid in the officia1order-
ing of the relationship between the individual and a group and the
society as a whole, where the individual person is classified and his nghts
and burdens are irrevocably established on the basis of his race or coIour.
The testimony of liespondent'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 1X, 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 (cal1 it what you will) of apart-
heid (and 1 quote from this record at p. 89) : "the individual is essen-
tially looked upon asa Kative; the Native is not looked upon as an indivi-
dual."
Mr. President and honourable Alembers of the Court, 1 turn now to
comment upon the relevance, weight, credibility and significance of
evidence of individual witnesses. 1 refer first toDr. Hruwer, the only
member of the Odendaal Commission to be called as a witness by Re-
spondent, ~ho testified, among other things (as the Court will recall)
concerning the relationship, if any, between his testimony and a state-
ment by liespondent'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. Rruwer
conceded, at the page just cited, that the establishment of rights and
privileges in the Territory wa"by reason of being White and non-White".
He further testified, at page 280 of the same verbatim record, that
"the position of the non-imites, using that term, is different from that
of the 1Vhites"-and then, referring to the so-called White economy- OBSERVATIONS OF hiR. CROSS 361
"[in the White economy] ... in the sençe that the Whites in that area
have certain rights and privileges which the non-Whites have not in
that area".
\iTithregard to job reservation laivs 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 etlinic basis, but that the
restriction precliiding a Native from becoming a mine overseer. in
European-owned mines, for esample, 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
al1 people falling under tlie 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 Iimited, in the White sector, on the
basis of whethcr an individual is asNative or a iVhite person by legal
classification.
Professor Logan also, like Professor Bruwer, commenceci by laying
stress upon a "cultural difference between different groups" (to use Iiis
language in the verbatim record at X, p. 400). LVhilehc started with
the emphasis that these cultural difierences 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 Hantu (that jç to say a
"Native" or "Rantu", since tlie terms are used interchangeably in this
record) happened to be a Hcrero, or a Nama, or nchild of mixed marriage.
had-n---- in^ to do with the level which he could achieve above certain
forrnç of labour in the ~uro~ean community-in other words, that
cultural configuration, or "cultural difference", had nothing to do with
this fact, asit was based on a "White" veysus "non-\;nite" categoriza-
tion.
Again, atX, page 400 of tlie verbatim record, Professor Logan espressed
the opinion that the rights aiid privilcges in the southern sectoi, the
modern or exchnnge economy of the 'Territory, are not, in his words,
"baçed on the ccnsus classifications, they are based on the tribal affilia-
tions". That ïvas histestimony at page 400. But at pages 419-420 of the
same verbatim record he conceded that job reservation policies bcar no
relation to the individual's irinate capacitp. or persona1 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.
>Ir.Cillie, in fiis testimony, was not sure about the existence of any
legislaiion in South or South West Africa establishing rights or irnposing
limitations upon freedoms on the sole basis of ethnic origin or colour-
X, pzge 544. Earlier in the cross-esamination, however, Xr. Cillie had
conceded that ceilings were placed upon non-Ilihites in the southern
sector-and 1 quote from X, page 538-"becausc they do not belong
to the \ilhite grotip".
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 wns in and whether he was a "member" of tlie "developed362 SOUTH WEST .4FRICA
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 colo~irthan those of another is a "rule" which is applied
(as he called it), because "it is only human todo son in deterrnining the
economic "absorptive capacity" of a group; he conceded the coloor bais
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, witliout reference to individual potentiaor preference.
Dr. Van Zyl, describing his enquiry into Native educatioin n the
Territory in 1958, stated in the verbatim record ai XI, page 310, as
follows :
"We took these people who had settled in urban areas at the
time stillto be part and parce1 of their respective national groups
pertaining to different homelands. We were informed ... that the
Hereros staying in urban centreshave al1retained their connections
with their homelands and their national groups in the Reserves. So
we took al1the others still to have the affiliation with their horne-
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 rnatter for how
long a period, no matter through what number of generations, does not
affect thepremise upon which this evidence was based.
Among more specific opinions reflecting thesame rigidity of classifi-
cation and irrevocability was that of Reverend Gericke, who in the
verbatim record, at XI, page 54. stated "1 have never met a de-tribalized
Bantu in South Africa. They al1belong to a tribe."
Dr. Rautenbach, in the verbatim record, at XI, page 356, expressed
the view that an urbanized Uantu or Native in Pretoria, for exarnple,
and 1 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 econornic inter-
dependence within an area does not change what he described as "the
essential 'Alricanness'of any individual".
The meaning of that is not clear exceptforits connotation with respect
tothe impossibility, in the witness's view, of educational, economic, and,
presumably, social factors affecting the relationship between an individual
and the çociety escept upon racial coiisiderations, or ethnic considera-
tions.
Conceptually, the evidence unifarmly foliowed s line that the individ-
ual and the group areinterchangeable concepts for the present purposes.
This was shown in the testirnony of Dr. Rruwer, for example, who stated,
at X, page 271, that "itwas to the Odendaal Commission and also to me,
in the type of analysis that1 made, a question of exercising one's riglits
and one's privileges witliin an area assigned to yo... In the area looked
upon a. belonging to yoü."
Then, Dr. Bniwr, in respnse to questioning, commented that he did
not distinguish between the individual and the group, on the ground
that, if a group exercises rights,itmeans that every individual of that
group exercises those rights.(X,p. 271.) This is true, but not sufficiently
comprehensive to statethe whole truth. Tt was no part of Dr. Bruwer's
thinking, on the bcwisof his evidence, that the individual, as such, rnight OBSERVATIONS OF MR. CROSS 363
be entitled to rights which did not necessarily pertain to the group, as
such.
The concept of interchangeability of individual and group likewiçe
was reveded in the testimony of Dr. Logan in the verbatim at X,
pages 416-417 The essence ofhis approach is found in his response to
questions designed to elicit his opinion when, if ever, an individuarnay
be regarded ashaving attained a persona1 status of his own, by which he
should be, in theterrnsof the question, "judged as an individualand not
as a member of a group in terms of his rightsand duties and freedoms".
This was the question.
Dr. Logan reçponded at X, page 416: "He will be judged as a member
of the group who has achieved these things and will achieve this status
within his group."
Dr. Logan tlien gave an affirmative response to the question wliether
he believed "thnt limitations imposed upon individual fredoms 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 rnay ive11recall,
this witness viewed any Hereio, as such, as one of what he called "the
cattle people", irrevocably irrlbued, inDr. Logan's phrase, with "the
cattle philosophy". This is fro~the verbatim, X, pages 424 and 425.
Proceeding from this premise, Dr. Logan espresçed the view that this
consideration, that every Werero was irnbued irrevocably with "the
cattle philosopliy", was relevant to the imposition of limitations upon
the freedoms of individunl Hereros.
According to Dr. Krogki, it ii what he called "characteristic" and
"inherent" in the M'bites to seek out modern economic opportunities
for development in the Territory, while, as he said, in his view the only
"product" the Natives "could contribute at this stage to their ecoiiomic
development" wriç their "labour employment". 'Thesewere his words
at XI, page 77.
At Xi, page 292, according to Dr. Van Zyl, no Xative cornmiinities
have "reached that stageof development where it would be feasjble 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 itis their tvish, the wishof the
people themselves, as a group, and not as individuals". (XI, p. 224.)
Likewise, in the verbatim at XI, page 142, Dr Krogh referred to-
"... membcrs of non-White population groupç 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-
rnents. 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, pagc 255, was led by Respondent to express hiçopinion
conceming what counsel described as "vast differences between the
groups".
No aspect of Dr. Bruiver's analjsis or opinion, in respect to thi~
question which wns addressed to him at X, page 255 of the record1 have364 SOUTH WEST AFRICA
cited, and which lie answered at pages 256-258 of the same record,
touchcd problems or relationships arising or euisting in the modern
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 modern economic sector of the Territory.
Dr. Bruwer's attention was exclusively confined to the familiar dis-
tinction of matriliiieal descent, and the differences between the tradi-
tions of the tribes, particularly-almost exclusively-in the subsistence
areas., in the northern areas and the like. 1refer the Court to histestimony
in X, pages 236-258 On cross-examination, Dr. Bruwer generalized ali
problems pertinent to the economic heart of the Territory inits economic
life, with the sweeping statement ". . .the White economy, the money
economy, is alien to the basic economic systerns of these people". (X,
p. 278.) He ignored the fact that many of "these people", that is the
non-llihites, were part and parce1 of the money economy, which, he
conceded at anotlier point of his testimony, could not thrive or perhaps
even survive without their services. (X, p. 303.)
In the sarne vein and to the same effect, Jlr. Cillie characterized
non-ii'hites as "pi:ople on a lower level of civilization". (X, p. 544.)
Earlier, at page 541, in response to a question if there would be, as a
matter of policp, limitations imposed by reason of their colour upon
non-\mites remaining for any reason in the White economy, >Ir. Cillie
remarked :
"It isnot mainly a question of colour, it ia question of different
peoples. These people are lesser developed, they are differeiit from
us and they have not attained the \Vestern standard of living.1 do
not know why you are concentrating on colour."
(This statement wiis addressed to Counsel on cross-examination.)
The evidence of the witnesses similarly demonstrated that the policy
is self-perpetuating; it leads ta restrictions upon certain higher levels of
activities for perçons classified as non-White, and then such restrictions
necessarily require, and are cspected to require, a search elsewhere for
opportunity by the non-\\;hites affected by such restrictions. It is a
classic vicious circularitp of cause and effect. Applicants will shortly
comment upon eviilence 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 kriow whethcr or not there was any law or regulation
which fixed individual rights or burdens on the basis of individual
capacity, apart from rnembership in a group. 1rcfer to X, page 292.
In the result, as Dr. Bruwer conceded, the only solution for the
individual deprived of equality ofopportunity, or subject to limitations
upon his freedorn, is to "escape" from the local situation.1 refer to the
verbatim at X, page 317. The word "cscnpe" was used by Counsel upon
cross-examination, and Dr. Bruiver, at the cited page, accepteclthat
characterization of the situatioti.
In the words of Professor Logan, in respoiise to Judge Sir Gerald
Fitzmaurice's question in X, pages 501-502 (Judge Fitzmaurice's ques-
tion, if 1 may remind the honourable Court, was "whether . . . it does
not begin to look alittle as if these laws are aimed precisely at preventing
the man who would be able to do the job frorn doing it?") : "Yes1 think OBSERVATIOSS OF MR. GROSS 365
that the basic aim is to try to force this man to do that job elsewhere
thari in the White community, to force hirn to clo it in his home com-
munity ... and that would be my esplanation of it." (Ibid., p.502.)
The policy was referred to subsequently by Mr. Cillie at X, page 542.
Blr.CiUie referred to this policy as "an encouragement for non-1Vlrite
groups and non-White peoples who are qualified to serve their people in
the areas where thcy cstnblish their homelancls".
Dr. Krogh gave diffcrerit 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 indicatiiig beforeyou enter the street that this isa
cul-de-sac, instead of arriving at the end and then discovering that
you have not been wariied or clearly indicated that therc are other
ways of arriving at your particular destination". (XI, p.119.)
Much testimony confirmed the evidence-replete in the written plead-
ings and Ieadiiig therein to the sanze inescapable conclusion-that non-
IVhites,as such, are regarded and treated as rnere sojourners iii so-called
\\'hite areas; the word is uçed in this context numerous tirnes by Re-
spondent in its written pleadings, and is reflected in the testimony as well.
'These persons. these individuals who are classified by law as "non-
White", witli rights irrevocribly established on thnt basis, arc "sojourn-
ers" iiithe su-called "White areas", irrespective of the length of time
that the!., tlieir ancestors, or their descendants, may live and work
there. (This, of course, is what the Applicants have had in mind in
emphasizing, and in using, thi: phrase-which they have done on more
than one occasioii in thesc proi:eedings-of the treatment of perçons who
"live, work ancl die" in the so-called White sector as "sojourners"-and
the Resporident's Couiisel has rat her ridiculed this in his comment upori
the evidence.)
As a "sojourner", the non-White 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 same nrea and working in a.common and
shared economy.
13r.I,ogari, atX, page 493, conceded: "There is a ceilingif [referring
to non-12'hitesJ they wish toremain in the Il'hite Territory."
Ilr. Rautenbach expressed the view that Natives in the southern
sector are regarded as living in arcnlie~tterritory, In the verbatim at XI,
page 379, 11estated 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 3713in this stark form. These are the inhabi-
tûnts of the Tcrsitory etnderMandate!
Similarly, 13r.Pcpler 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 qgS, cidmitted, in response to a question about
the individua1 Native who is "absorbecl in the White economy"-these
words being used in tiie Odendaal Commission report, as the Court will
recall-that :
". .. there are programmes for attempting to give him a better
education, to do better things for himself within thc areâ, subject, 366 SOUTH WEST AFRICA
of course, to the fact that theisa ceiling placed upon his economic
attainment".
Dr. Bruwer likewise conceded that unless the non-White pliysically
moveç to hiço~vn so-calledterritoryor "homeland", tvhich he may never
have seen but wherr?he cari "dominate", however-that unles he moves
away from where he is, there is no safeguard to protect hirn agaiiist
preçent limitations upon his freedom so long ashe works or lives in the
White area. 1 refer the Court to X. pages 310-311. According to Dr.
Bruwer (and his testimony in this regard is at X, page 308, "the best
possible appraach", in his words, which commended itself to the Oden-
daal Commission (ofwhich he was a member) was the physical removal
of the non-White to his own "temtory". Likewise, he acknowledged
as correct the statement that was posed to him on the same page of
the record 1have cited:
". .. the non-White, who might spend his entire working life or
longer-beyond hisretirement-in the White area, would be subject
to imposed limitations on his freedoni so longas he was physicaily
present in the White area".
In order to avoid confusion, let me repeat, if 1 may, Mr. President, that
the words 1 have just quoted were put to the witness by Counçel, but
that he expressed agreement with them asa characterization.
Likewise, at X, page 543, b1r. Cillie agreed with Dr. Bruwer's affir-
mative response (X, p. 317) to the question whether the alternative
posed by the Odendaal Commission for the individual Native was
the option of remaining in theWhite sector so longas 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 victirn 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 corn-
munities politically independent and economically interdependent".
This was on the saine page of the record 1 have just cited.
ivitnesses 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 ofequality of opportunity and equal pro-
tection of the laws. Different standards of "social peace" prevail here.
AsDr. 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 economir: interestsfrom the group rather than the national
view-point".
Seen jnthjs 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 la~vs.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 appli- OBSEHVATIONS OF MR. GROSS 367
cants to fil1the demand, replied, at XI, page 509: "That might be to
avoid social friction, for example."
The simplest level where dangerous "social friction", as itwas called,
might arise, wasdescribed by Dr. Logan in his capacity asan expert on
the relationship between man and the land, in the foiiowing terms, atX,
page 488. First, Dr. Logan said :
"If you were to put sidt:by side within ahousing area of an urban
comrnunity, a Damara, a Nama, a Herero, Ovambo, mixing them
thoroughly. house by house down the Street, thenIam 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 coIIective
gathering of individuals standing together in an open space. There
might be some difficulty between them."
Dr. Rautenbach, jmtifying the legislative 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
backgrourids may leacl to conflict." He explained that educational
apartheid at university level would "lead to more harmony because
nobody will have a right to be disgruntled or make comparisons". It is
not explained why this degree of diçgruntlement arising from rnaking
"cornparisons" does not exist 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 Iive in separate houses, or attend separate theatres. orstand 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
vieurs. 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 thnt such separa-
tion, in his own wordç, "removed possible occasions of friction". In more,
çhall one Say, theological or moral terms (XI, pages g and IO and 15-17
respectively) the Reverend Gericke said:
"iihere you have independent self-governingchurches and com-
munitics, the requirement that one must love one's ncighbour as
oneself becomes easier of fuifilment than might othercvise be the
case."
And as the opinions of others cited for his expression of agreement or
disagreement demonstrated, the principle is just precisely the apposite
from that implicit in his statement: the requirement of "loving one's
neighbour" is decisively important in the case ofbringingtogetherpersons
of different backgrounds.
The evidence showed in considerable detail the sacrifice esacted from
individual non-If'hite inhabitants on the altar of "social peace", as it is
repeatedly called in the evidence.
Dr. Krogh testified that non-ihites are excluded from positions as
firemen, conductnrs and guarcls 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 induçtry against placing Natives in positions of365 SOUTH WEST AFRICA
authority over IVliites, or against permitting them to achieve positions
above a certain low level, in these words:
". ..but 1 respect ., . the wishes of the rnembers of different groups.
If they do not in fact want to employ members of another group or
do notwant their members to work under members of another group,
1 cari very urell appreciate that if you forced thcm to do this, you
urould bc inviting social strif.. ."
Dr. Krogh appeared to assume without question, for the purpose of his
testimony, that the preferences of the ernploying group must alurays
govern, automatically, unquest ionably . This emerged sornewhat more
candidlp in his further testimony concerning the framework for the
imposition of prospecting and mining restrictions on rion-Il'hites. In the
verbatim record. at XI, page 84, Dr. Krogh stated:
"This [that is to Say, these limitations and restrictions] is noon
the grounds of protecting the economically weaker against the eco-
nomically stroiiger. It makes no sense. But 1can very well appreciate
that this is for the sake of social peace and in the interests of the
White population group layingi down these particular restrictive
measures, througli feeling that the members of the other population
groups have equal opportiinities for owning, of prospecting and of
obtaining mining rights in their [own]areas."
It appeared, asthe Court may recall from otheradmissions and testimony,
that there was no equality of this sort at all. There are no mines in the
northern territories, or in the Keserves, comparable to thosc which
su ply sinews to the modern economy in the Territory.
Er. Kmgh's testirnonv is consistent with Dr. Bruiver's acknowledge-
ment that "integrationU: in his sense of the ~vord,cannot be achieved in
the modern economy of the Territory because of the requirements
perceived by Dr. Bruwcr as necessary to protect the \iT1>itegroup. 1refer
toX, page 297. At page 315 of the same verbatim record, Dr. 13ruwer
agreed that a citeil section of the Odendaal Commission report could
fairly be interpreted to mean that non-White persons are adrnitted tothe
activities of the White group "onlÿ in so far as they are supplementary
to the White group and not cornpetitive". 1 wish to point out to the
Court that 1 have quoted the words of the question. rather than the
words of Dr. Bru\ver's response, but Dr. Bruwer agreed to this charac-
terization at page 315 of the verbatirn record 1 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 tlie admission of
non-li1-iites physicrilly into the \Vhite area for the purpose of labour".
hIr. Cillie, when asked to define unfair economic competition in the
context of industrial situations in South West Africa, repiied (and 1quote
from histestimony in the verbatim record at X, p. 544) :
8'... people on a lower level of civilization are sometimes willing to
work at lomerrates and pu have to protect the citrilizestandards".
Dr. Krogh readiIy agreed that the approach, implicit in this type of
testimony which 1have just cited, entails what Dr. Krogh, as an econo-
mist, termed a "social cost", at XI, page 187. At page 185 of that same
record, Dr. Krogh conceded that :
". . looking ai a particular individual 1 can very well understand OBSERVATIONS OF BIR. CROSS 369
that this would in fact mean an economic sacrifice for this particular
indivjclual".
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 iavour
of individuals. At X, page 494, in which he comrnented upon this matter
of the job reservation system, Dr. Logan said:
"Recause there are exceptional cases, the individual that you
want to bring out, fromtime to time, who perhaps would be able to
conforrn and be able to work to the best of his ability within the
European area. 'l'hemoment, however, a door is opened to n situa-
tion ofthis sort, then the entire attempt atadevelopment, aparallel
elevation of groups, a whole concept, begins to break ddown."
Dr. Logan appeared tofind consolatjon in a feeling avhichhe espressed
at the same page of the cited record:
". .. feeling that in some cases it is necessary to jeopardise the
absdute happiness, perhaps, of a certain very small roportion ...
in order that the set of circumstanees, the set of con<etions und the
set of plans be allowed to operate".
Parenthetically, and with respect, this would seem to be the undcrlying
thought ; philosophy or perspective of Reçpondent, as voiced by Respon-
dent's Counsel in stressing, in the verbatim record of I Kovember, that
the sole prirpose to which the evidence was led was "the general well-
being"; it was apparently intcnded to be a reflection of this concept.
Reverend Gericke likewise felt that the group was so much Inore
important than the individual, that ". . .sacrificesas a person 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.
1-letestificd also that"... there are certain hardships which have got to
be endured en rciute 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 person wi.lio
is the non-conformist. E~ien in Native grozcps,1 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 srnall number of
individuals who do not want to conform to the over-al1 pattern is,
1 think, quite impractjcal." (Italics added.)
In another colloquy in the same record, Dr. Logan conceded, at page 405:
"In the case of the esceptional individual, sometimes the regula-
tions bear heavily upon l-rim-I think there is no question of this.
There are in every one of the communities, every one of the Native
groups, 1 an1 sure, in South West Africa an, or some, or somr:times
a reasonable number of people who have the ability to have privi-
legesat a higher lcvel than is accorded to the group."
Dr. Logan, however (as was true of other witnesses), felt that such
sacrifices averenot too much toask in the light ofthe objective of raising
the "level of the greater part of the group". Neither he, nor any witness,
so far as we have obseri~ed. atternpted to esplain-ii.hat clearlgr is in37O SOUTH WEST AFRICA
any event inesplic:~ble-why the precise contrary is not true: why and
how would the level of the group not be raised preciseIy 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.
Some euiderice sought to sup ort the Respondent's view, as expressed
again by Kespondent's counsef Our friend Ir. 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".
Mr. Cillie, for example, in response to the question addressed to him
by Judge Sir Louis Xbanefo at X, page j55, said:
". ..1don't think that this matter of discrimination in the southern
sector isas important ashas been made out in the cross-examination.
1 think this has beeii blown up. These are . .. trivial, piffling points
which do not affect the real case."
Dr. Krogh described the individual impact of raciaI discrimination in
the Territory in different words, but to the same effect, and Iquote from
his testimony at XI, page 188:
"1 can very well understand that there are certain individuals
who may, in fact, be affected detrimentally, economically speaking
by such restrictions asyou are referring to in the mining industry,
and the supply of public trançportation, and the other examples
that you mentioned, but 1 can assure you as an economist that this
is of marginal significance considering the economy as a whole."
In further regard to the effect of racial restrictions in the mining
industry upon the economic welfare of individuals, Dr. Krogh testified
at XI, page IIO :
"... 1 must admit 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 rnining opportunities
exist in otIier areas .. . But 1 think that it is marginal from the
viewpoint of the economic advancement of that particular group and
1 think it is even less important viewed from the national economy
as a whole. 1 think it is marginal."
In what respect permitting an individual to achieve economic advance-
ment or promotion above a certain level in an existent mining industry
is incompatible with raising the level of the so-called group to which
he belongs, when the industry does not exist eIsewhere; if thrtt is a
relevant factor, this was never made cleac.
Dr. Rautenbach stressed the inherent capacity of a talented individual
to overcome the adverse personal impact of discriminatory restrictions
laid upon hirn by Government action. A non-White individual, othermise
qualified, denied entrance to the university of his choice where the
faculty or facilities might correspond tohis requirements, should keep in
mind, Dr. Rautenbach implied :
". . .there are occasions when the individual must sacrifice something
for the greatest happiness of the greatest number, but 1 doubt
whether that would be such a. .. serious sacrifice because the very
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. GROS5 37I
quality of the individual as such is more relevant to liis capacity to
surmount official discriminatory restrictions placed upon hirn 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 alrcady in comment upon evidence of Dr. Bruwer.
Dr. Logan was sornewhat more explicit. He expressed the view that
5 per cent. of the population would not be an unreaçonably high pro-
portion to suffer in the service of the ultimate vision(X, p. 421. )uch
persans would,he explained, "be the ones who are at least in conformance
with the patteni of the group"-1 refer to X, same page. When he was
asked in cross-esamination whether his answer would be affected if such
individuals "happen to be ... of a highly superior innate capability",
Dr. Logan answered:
"Yes, jtwould affect it. 1 thjnk that the people who were of a
higher development woulti find their own way of handirig the situa-
tion. that they would not insist on remaining in the area which was
antagonistic to them, but mould find their means of development
within the area in which theyfitted,in which they wished to develop
their own group." (X,pp. 421-422.)
The "wish" being an imposed or implied wish in rnany cases,no doubt.
As in the case of Dr. Bruwer, this witness, Dr. Logan, conceded that
it would be a fair renderingof his testimony as well to say that the so-
lution forsuch persons, in such an event, would be ". . . to escape from
that situation". 1 refer to the verbatim at X, page 422.
Thc Court will recall thatDI'.Bruwcr also conceded that the basis upon
which the Odendaal Commission recomrnendations 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 woüId, leave
the White area. (1 refer to X, at p. 314.) But if a non-iVhite could not
escape fromhis 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 aiid alive1 refer toX, page 322.
Acceptance of the inevitatiility and propriety, of the necessity of
sacrifice, as the evidence confirms and as is clear from the evidence of
record, is posited upon the concept that the policy and doctrineofapart-
heid must be served at al1 costs. This was esplicitly brought out in the
response of Dr. Logan to a question propounded to him by Jiidge Sir
Gerald Fitzmaurice in the verbatim record. The learned 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-U'liites are not up to doing cer-
tain jobs, they are made a.least partly in the interests of the policy
ofseparate clevelopment". (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 statecl, in the verbatim record thathe-
".. . differed with the Government policy [that is to say, on job372 SOUTH WEST AFR1C.a
reservations] because it does prevent ccrtain individuals from reach-
ing higher than they might do othenvise, but . . . 1 still felt that it
was necessary and rr~hilIedon't necessarilyapprove whoIeheartedIy
of such measureç, it is necessary in ordcr 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 Xative in the so-called "IVhite
area", and 1 refer now to the same page:
- -
"In order to prevent the breaking-dawn of the entire programme
that is being developed because then if one exception was made,
in the case of this particular individual we have in rnind, then there
would immediately be another one of las validity, and then another
one, and eventually the systern would break down because of a
tremendous nixrnbcr of exceptions being made endlessly."
The clearest implication being that the possibiiitjr of this happening
had to be avoided at al1costs, irrespective of the wish of the individuals
composing the groiips who are, presumably, so deçperately ansious to
have these results brought about; there is a basic inconsistency iii the
concept reflected in Dr. Logan's testimony.
The lieverend Gericke contended:
". ..ifyou had to open the gates and give political rights, theitivill
ncver be possilile to work out this policy of separate development".
(XI, P. 54.)
The full impact of apartheid in human terrns upon the individual
inhabitants, is confirmed and maiiifest from the undisputed evidence
concerning, for exarnple, the numbers of non-Whites who are "doniiciled"
in the southern sector, outside of any Reserves, in the so-calleci White
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 foriiiforma-
tion with regard to the nuinber of the non-Ilrhites in the southcrn sector.
Dr. Logan's testimony included his exposition of the meaning the Re-
spondent attributeil to the word "domiciled" in this contest-to wit:
". ..a reference to whether or not their permanent place of residence
iswithin one zone or the other ; the place where the family islocated,
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' references to the area where an
individual may be barn, live, work and die.
The foregoing evidence, that is of Dr.Logan, which 1 have justcited,
illuminates Dr. Bruwer's description of the premises upon which the
Odendaal recomrnendations are based. 1 refer to the verbatim record,
at X, page 322, where Dr. Bruwer testified:
". .. the [Odendaal] Commission very definitely came to ttie con-
clusion tliat the one people cannot be dominated by anotlier peopIe
in an area. and it \vas on that basis that the Commission said. ~vell,
under these circumstances, hriving nom a it'hite group-ancl let us
then, for the moment, Mr. President, say that they domitiate the
non-Whites in regard to the fact that there are measures that they
have applied-the Commission could not subscribe to such a post-
tion and, on the other hand again, the Commission had to subscribe
to existing rights in that White area and on that basis .. . it was OBÇERVATIOSS OF )IR. CROSS 373
the conviction of the Commission[Dr. Bruwer continued] that ifyou
agree, orifyou accept the rights aiid privileges of people, and there
are other people iii that society not haviilg thoçe rights and priv-
ileges, then iiçyour duty, if you cannot change-and the Comrnis-
sion could iiot change a factual position-then pou have at least
got to provide for the other man, ,w that he also can make use of
the same liberties, the same rights and the same privileges . . ."
And on the bais of this rather elaborate prernise, whicli boils down to
a formulation that has been described, 1 believe,as "reciprocity" or the
concept of reciprocity, to which 1 shall reCerlater, Dr. Bruwer testified
in the verbatim record :
". .. the recommendations made by the Odendaal Commission as
protective nieasureç for domination of the one gronp by the other
group were those recommendations that assigned to a group of
people a certain area in wliich they would have thc only say in regard
to certain matters, suchaslandrights and these thingç, and in which
the other group would riot be able to esercise suchrights. The Oden-
daal Commission conceived that iii that way then the iiiterests of
the one group would be çnfeguarded aiid protected against domina-
tion by any one of the other groups." (X, p. 314.)
It was in this context thatDr. 13ruwer,as has been noted, testified that
the protectivc measurc recornmended by the Oclendaal Commission to
assure against domination of the non-Whites bu the ilihites was thatthe
non-White could, and it was hoped would, leave tlie IViite arca. And it
should be observed in this coiinection that even on the assumption,
arguendo, that this reasoning corresponds to justice and common sense
-assuming its practicability, tvhich stretches the imagination-iwould
have no application whatever to that segment ofthe inhabitants ofthe
Territory classified as "CoIourads". These individuals have no homeIaiids
either reserved or contemplated for them, even as part of a "vision".
This is clear from the Odendaat Commission report, paragraphs 420-424,
at page 109.
The prernise underlying the "escape" tlieory, in the case of the Natives,
thiis hasno relevance to the CoIoureds, who are left without either an
escape route orthe hope of ecliialrights and equal protection of the laws.
Inthe words of Mr. Dalilmann, the Coloureds"do not fit in" tothe scheme
-1 quote from the vcrbatim record, XI, page 5jg.
[Public heuring of IO Novembev 196j]
Mr. President and honourable IIembcrç of the Court, special problems
and dificulties, raised by the unhappy fact that the Coloureds "do not
fit in", in the langiiage of witness Dahlmann, to the plan or concept of
territorialapartheid, were canvassed during the cross--examination.of
this witness-XI, pages jjg and following. >Zr. Dahlmann rigreed with
the finding of the Odendaal Commission that the jndividuals categorized
under the heading "Coloured", and 1 quote from the Odendaal report:
". . . have a strong Caucasian strain and for the most part maintain
a LVestern culture and way of Me." This is at XI, page 560. -411of
tliese perçons categorized as "Coloureds"-including those who, in the
language of the census "although in appearance are obviously white,
are genernlly accepte ds Coloured personsW-pay the inexorable price374 SOUTH WST AFRlCA
of their classification. Among other discriminatory restrictions, based
upon their colour alone,they are denied the franchisin the centralorgans
of governrnent, incIuding the Legislative Assembly-XI, pages 559-560.
The Odendaal Commission recommends that Colourcds who are
resident in urban areas should be persuaded "in their olvninterests and to
enable them to have a sayin their own affairs, to move to their respective
urban residential areas"-that is in the Odendaal report, page 1x9,para-
graph 452. This refers to the three so-called Coloured townships which,
in the words of the report, are to be "properly plannedaiid proclaimed"
and where the Colaureds "shall enjoy the right to own property". That
is in the Odendaal report on page 109, 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 whetlier the Coloureds who
might not be persuaded to move tothe Coloured townships, to be "plan-
ned and proclaimed, would have "a say" in affairs where they resided,
and he left obscure equally the question ofwhether the Coloureds who
they were planned and proclaimed, would have a "çay" in their affairs,
to use the laiguage of the report, in respect of those affairs pertaining
to that portion of their lives which would be spent in and üt work for
the so-caIled White economy, including, of course, their working con-
ditions. The testirnony of the witness on this point isat XI,page 561.
Professor Manning manifested similar ignorance, even unconcern, in
regard to the statu; of individuals classified in the "Coloured" category.
The witnesç 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. Profeççor Manning's response,
in our view, was revealing. He said, uith relerence to the question posed
-at XI, page 639:
"It may be that if 1knew more about it, 1could give an adequate
explanation for everylhing that has been done ['it'rneans tlie prob-
lem, ifany, presented by the Coloureds as distinguislied from the
Nativesl, 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
phy".y which seerns to me to be the wise policy in its basic philoso-
The witness's response, in the Applicants' view, reflects a perspective
similar to that which inheres in the distinction whjch 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
crosç-examination by the Applicants, as he said, left virtualIy uncan-
vaççed "the over-al1 conclusions regarding the well-being of the popula-
tion as a whole". Iiistead,asthe learned Counsel admonished the Court,
the Applicants concentrated on what he described as "isolated aspects
of a policy flowitlg 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 weii-being and prog- OBSERVATIONS OF MR. GROSS 375
ress of more than 12,000 inhabitants, whosc rights and freedoms are
regulated and determined and limited on the basis of colour alone. The
"basic philosophy" of apartheid is"wise", iil Professor Nanning's view,
and that isthat.
Such a perspective seems to be called forby the premises of apartheid
itself. Application of aule 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 Manning's approacl~, like that of Resyondent
itself, seeks to explain and to extenuate the laws, the regulations and
the practices, in the light of the policy. The çame mirror-reading approach
characterizes the evidence seeking to justify the discriminatory denial
of rights to Natives in one area on the basis that LVhiteswill lie discrim-
inated againçt in other ares.
Mention already has been made of Professor Bruwer's testimony
concerning the premise and hope of the Odenclaal Commission that
Xatives 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 finding of the Odendaal Commission report
at page 429,paragraph 1437 T.here 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 isin any
case undesirable under the circumstances on moral and ethnic
grounds".
Parenthetically, Mr. President,it might be noted that the word "discrim-
ination", unqualifiedly used by the Commission in this paragraph, is
obviously ernployed 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 defined at page 493, IV, of the Applicants' Reply.
The Odendaal Commission report, in the same paragraph lvhich 1
have cited, concludes that the aims of separate development, or apart-
heid :
". . . cannot be achieved in a frarnework of integration, and the
traditional non-White groups must therefore be given separate geo-
graphica1 areas in which the aim of special advancernent 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 follo~v-
ing terms :
".. . 1 would Say that integration would be where you create a
society by giving rights and privileges to mernbers of other groups,
who have already got their rights and privileges in another area,
in that specific society of another group" .
This jmported into the testimony the concept of what ha been referred
to, if1 am not mistaken, by the learned Judgc Sir Gerald Fitzmaurice
(although 1 may be mistaken there) as "reciprocity" which, as the evi-376 SOUTH WEST AFRICA
dence likcwise coniirms, is based upon a premise of wholly false equiv-
alence. This, moreover, became a major and recurrent tlieme of the
evidence.
Dr. Brumer had earlier explained, and 1quote from X, atpage 264:
"... you have already given the rights to those people in their
specific area of abode, and what is excluded for them here in this
one area .. . that is to Say the Caucasoid or White area, is naturally
also excluded for the Caucasoids or IVhites in their areas, that is the
areas of other people".
Dr. Logan likewise explained a policy bvhich accords no place to a
non-\Plite in the White area above the level of certain foms 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 stresçed that the policy of limitation upon economic
freedoms on racial grounds ". . .must be viewed in the rvhole context of
the country, because it works in both directions". This is from X, at
page 4x7.
How the policy is in practice, and in its impact upon the lives of the
inhabitants, designed tu work "in both directions" (asProfessor Logan
said) was etaborated by hIr. Cillie, who testified-
". .. there is iioequality of J2liites and non-LVhites in the White
sector, just as there iseventually going to be no equality between
Whites and Ovambos in Ovamboland". (X, p. 548.)
Tliis concept, which characterizcd other evidence as ~vell,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. &IrCillie
effected a smooth transition in one sentence frorn tlie use of the present
tense, in respect of the discrimination against or the limitations upon
the freedoms of non-Whites in White areas, to the future indefinite, in
the sarne sentence, mith respect to the ultimate "eventual" deprivation
of rightsof Whites in otherareas. Yresent LVhitedomination in themodern,
economic sector is "balancecl" against "eventual" Black domination in
the subsistence or traditiona1 areas. It was noticeable throughout the
evidence, as it is in the Odendaal Commission report itself, that the
living present is set off against n hypotheticaand indeterminate future.
Zn application of the doctrine of reciprocity,Dr. Krogh testified, at
SI, pages 108-109 i, regard to the mining regulations that-
"... these restrictions oprate with regard to mining being carried
on in White areas. Similar restrictions would, in fact, operate in the
non-\mite areas where mining operations exist or will indue course
be developed."
Likewise, the Reverend Gericke said, at XI, page 46 :
"... if a man has n ceiling in Johannesburg, [he ilras talking about
South Africa wherc a situation cognate, to the Territory liad arisen,
according to the Respondent's contention] and that man has no
ceiling in Umtata, then it is not an infnngement on his rights".
may work in, Umtata. seems tor evbe beside the point.er works in or ever
Reference is also made to Dr. Krogh's testimony at XI, page 114, to378 SOUTH WEST AFRICA
If. ..people are dcprived of advantageous locations without being
offered other locations equally advantageous or sirnilx in advan-
tages, then 1 would caU it discrimination because they would be
deprived irrelevantly of opportunities to which, inmy opinion, they
are entitled.If,on the other hand, they are prevented from Iocating
themselves in one place but allowed and abIe tu locate themselves
in another place about eqüally advantageous, then 1would Say this
falls within the rubric of segregation."
The witness was swking 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 wasimplicit inProfessor van den Haag's testimony, as it was implicit
in Professor Logan's, that the opportunitieç must be in substance, and
not merely in shadow, similar, and this refers to that heavily temporal
factor, which al1 hurnan beings share in cornmon, and that is that
advantages accrue to them during their own lifetirne.
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 equivaleiice of practising engineering
in a place where there are no enpneering works:
"1 should certainly say that if he is permitted to carry out his
profession in an area where there are no material possibilities to
carry out his profession then in effect he is not permitted to carry it
out, and I would then cal1 it discrimination and iiot segregation.
However, 1would Say that if thereis a reasonablechance that he can
carry out his profession, although perhaps not immediately, but if
arrangements are being made along those lines, 1 would have to
mitigate rny statement accordingly."
The testimony confirmed and corroborated the undisputed evidence
of record showing liow false the asserted equivrilencreally is.
With respect to population figures, Dr. Bruwer, at X, pages 287-288,
testified that there are "around300" Ihites 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 \nites "in other areas
outside the Police Zone or southern sector, other tlian 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 calledin the record; the north was, he said-
"entirely an area of Native occupants. There are no Whites in the
area at al1other than a few administrators, health officers, mission
people, traders and so on. The area is a strictly Native area canying
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 fm in the
muthern sector as having a population of fiveEuropeansand some 50-odd
Natives, the Natives being employees and their depeildants.
Dr. Krogh, at XI, page 194, agreed that approximately 250 to 300
Natives are emploj+ed in skills in industry or non-public enterprises in
the.north. He also stated, at XI, page 165, that the economic policy
pursued in the Territory rests heavily upon the distinction drawn OBSERVATIONS OF MR. CROSS 379
between the modern economy of the southern sector and the traditional
or subsistence economy of tlie north, and he said: "ln fact it is more
striking in the case of South Iliest Africa than it isin rnany other
African territories." Dr. Krogh stated that there areno job opportunities
in the northern areas for electrical and mechanical engineers, as he said,
"at the moment" (XI, p. 118) .imilarly, in the same verbatim record at
page 124, Dr. Krogh indicated that-and again in his words-"at this
particular stage"-there are no or very few available emplo~rment
opportunities for non-Whites in rnotor service or repair stations, for
example, in the northern territories. At page III of the same verbatim
record he had eariier stated that employment opportunities, again saying
"at the present tirne"-for mine workers, outside the salt mines in the
north, are noil-existent. Dr. Krogh likewise conceded at XI, page 1x0,
that, although he thought that the impact of mining regulations upon
the econoinic welfarc of a qualified non-White individual would be, as he
said, "marginal, viewed from the economÿ as a whoIe, or from the group
from which that member derives":
".. . 1 must admit 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. 1 can appreciate that point and 1 admit that
that içso."
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 environinent in which officia1racial discrimination is practised.
As Dr. Logan conceded at X, page 393 :
"... today,.with the economic development of the homeland areas
still in an embryonic stage, it is quite likely that many people arc
quite forced, economically, to stay inan area in which they areable
to obtain a higher standard of living than they wouId if they
returned to the Reçerves".
The use of the word "returned" is, if the Court will recalI, a locution
which applies to persons whether or not they have ever been in the
Reserveç, on Dr. Logan's premise that they belong there ; therefore when
they go there, evcn for the first time, they "return" there.
Dr. Krogh answered, when asked the following question upon cross-
examination-1 shall read the question, i1 may, first-at XI, page 120:
"Would you çay as an economist or aç a witness or both that a
non-White who ... has been born and lives and works in the eco-
nomic sector in the urbsn area has a practical option as to whether
to stay where he is or go to, letus say, Ovamboland or sorne other
northern territory to finish out his life-does he have a practical
economic option?"
That question was asked on cross-examination, andDr. Krogh answered,
at the same page, as follows:
". ..not at the same level of living-thnt is after al~vhy he is there
and is working tliere becnuse it is in his economic interest to be
there and it is in the economic interest of the White ernpioyers to
have him there. It isin the econorni icterest ofboth these parties
participating in this exchange relationship".
The Applicants found peculiar significance to be attaclied to the words380 SOUTH WEST AFRICA
"exchange reiationship", because it malr 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 esplained 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 questiori posed to himby 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 thisman to do that job elsewhere than in the Nrhite com-
munity, to force him to do itin his homecommunity ...". (X,p.502.)
The concept of reciprocity and its underlying fallacy of false equivalence
also is esposed by evidence that non-White
labour ivill in fact, for al1
the foreseeable future, be essential to the so-called White economy.
Witnesses who testified to tlie point conceded this to be true, although
with varying degrees of candour. Dr. Rruwer 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 cifthat area".
He testified that neither the Odendaal Commission asa 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 tlie 'Ilihite sector would operate without the so-cailed
non-IVhite labour. . . within the foreseeable future. . .".
He agreed, on the same page, tliat this could possibly bc true for 300
years.
Dr. Logan gave his opinion at X, page 384 Ire said-
"that al1of the plans that have ever been envisagcd Iiave envisaged
a continuing use of Kative labour on the European farms and in
other ways within the Jtliite area of the Police Zone".
The Native labour supply, according to Dr. Krogh (XI, p. 177)~ is
necessarjr 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, stated aXI, page 381, that "we will always have people coming
from over the borcler to work in the White area, as far as hurnan 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 \vil1be rnany non-Whites working in the White
areas of South Africa. This testirnony,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 sarne evidence to South
West Africa.
With regard to the political aspect of any homelands proposais, such
as those reflected in the Odendaal Commission report, Mr. Dahlmann
said thathe 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 forthese so-called "horne- OBSERVATiONÇ OF MR. CROSS 381
lands" was, as he said,"in the far'futur e"r.Dahlmann was "unable
to give any figure" (XI, p. 544)in terms of yertrs, decades or even cen-
turies as to the accomplishme~it of the political independence envisaged
in the Odendaal Commission report.
In response to a question by Judge Sir Louis Mbanefo coiicerning the
nurnber of States reconmended by the Odeiidaal Commission to be
created in the Territory, Dr. Eiselen stated:
"That ... would be very djfficult to sajr, 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 Government that I am in a position
to givea definite answer to this question.My own personal view is,
of course,.. .that you ~vouldliardly be able to think of Bushrnen
or the 'Damaor even of such people as the Merero as being indepen-
dent stütes." (X,pp. 127-128.)
Likewise hlr. Cillieresponded ta question by Judge SirLouis Afbanefo,
at X, pagc j33, concerning the ultimate independent statuç foreseen for
the proposed homelands by saying :"Some of these units could obviously
not be independent states in any accepted sense", and that:
"Some of them are so srnall andthe numbers are so low [meaning
population] that obviously you cannot speak of al1 those smaller
areas as viable states. You cannot envisage that, nor for the fore-
seeable future .. ."
At XI, page j61, the honourable President put a question to the
Applicants with regcird to pa.ragraphs 356 and 357 of the OdendaaI
Commission report, wliich had formed the basis for certain questions put
to witness Dahlmaiin on cross-examination at page 552 and following of
the same verbatim record. The Applicants' questions in cross-esarnina-
tion (it was,as 1understood, Sir, permitted at that time that the answer,
which isa very brie!one, mightbe given in the course of comment, and
with the leave of the President 1 would propose to do so now) were not
intended to be directed towaril eliciting the witness's opinionas to the
transitional quality, or othenvise, of the Odendaal recommendations in
question.
With regard to paragraph 222 of the Odendaal Commission report, to
which the lionourable Preside~it drew the Applicants' attention and to
which he suggested that we give our consideration, the Applicants'
questioning of Mr. llahlrnann in regard to paragraphs 35G and 357 (to
which the Presideilt also referred) was not designed in any manner to
engage thc witness, or to elicit opinions, concerning the possible intend-
ment of the Odendaal Comnlission 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 languagc employed in
paragrriph 222, which in any event ihey do find ambipous, the contem-
plation of eventual transier of certain functions tolegislative 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 atany stage that al1legislation
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 in any 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 thernselves. The evidence-and this is relevant to the general ap-
proach ofthe Odendaal Commission report with respect to the unilateral
determination bythe White minority, without effective voiceorparticipa-
tion of those composing the large majority who would be affected by the
recornmendations, if carried out-confirms the facts of record. These
show indisputably that the non-White inhabitants of the Territory are,
as 1 have said, denied a vote in decisions affecting the development, the
direction, the timing, the structure or the form of the political institu-
tioiisunder 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 Dominie Gericke
put itat XI, page 54:
". ..if you had to open the gaies, give political rights, then itwill
never be possible to work out this policy of separate development".
When askecl on cross-examination whether there were any methods or
means-other than the right of petition-by which non-kZ1iites could
make their views or wishes known to the South African legislature,
Mr. Cillie responded atX, page 535 :
". .. ido not know whether they have Iittle councils, perhaps they
have spontaneous councils which make representations to the
Government-1 do not know".
hïr. Cillie appeared to think it sufficient assurance that the governing
authority (and 1 qiiote his words atX,p. 533) :
"...would soonknow if wemade a really ghastly mess, you know-
that wauld be apparent vesy 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 aypeared to be evadii~gthis fundamentally simple and clear proposi-
tion. So did Mr.Cillie atX, pages 530 through 532.
Dr. Rautenbach admitted that Native taxpayers, in regard to the
field of education, have no right to vote for the mernbers of Parliament,
which, for examph, 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 OdendaaI 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 (ifat ail), so
Dr. Van Zyl conceded that educational policy in the Territory was
deterrnined by the Legislative Council and Executive Cornmittee. al1of
the mernbers of which are White, and al1of whom are elected by Whites
alone. That is at XI, page 274. He also admitted that the inspectors in
the Education Department were al1imites-XI, page 275. Dr. Rauten- OBSERVATIONS OF MR. CROSS 383
bach conceded that al1 the rnembers of the National Advisory Council
on Education were White-XI, page 347.
This may be a convenient cctntext, Rlr. I'resident, in which to turnto
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 honourabie President, the response
is made pursuant to the grant, at that time, of the Applicants' request
to be permittecl to take the matter up, after consideration, during the
course of comment.
Blr. Preçident,aswas stated at pages 391 and 392, IV, of their RepIy,
the AppIicants have not insisted that education be made compulsory for
al1 Native children in the Territory-that is explicitly set forth in the
Replÿ. Xor do they insist that education be compulsory for alE 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 ofal1 White
children, irrespective of wish or circumstance. and is not applied in the
case ofagay Native children,a question fairly arises concerning the reason.
And if such a striking contrast existsin a society governed by a policy
of exlreme racial discrirninatioii and separa tiothe reasonable infcrence
may very well become a compelling one. Respondent's failure, after 45
years of administration of the Mandate. to have instituted even an
experimental or provisional conipulsory education system for any Kative,
even in urban areas where Natives have for generations, as the evidence
shows, been "dorniciled" and where theyarc "absorbed" in the economic
life (whatever that term maÿ mean esact1y)-such a failure, in the
.4ppiicants' view, must reasonably be ascribed to, and isobviousIy based
upon, racial considerations.
If so, and to that extent, such a failure is inlierently incompatible
with the obligation to prornote 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 143-14 5onceded, as
the record made clear in any event, that Natives were represented in
labour disputes and collective bargaining situations esclusively by
Government officiaisal1 of wliom were White. He conceded also that
non-\hite labourers (and 1quote from p. 14,XI) :
". ..have no participation in the government of the White area
where the modern econoniy operates. In other words, they are in
that respect not represented politically in the administration of the
White sector of the soutliern part of South West Africa."
Dr. Pepler, at XI, page 238,stated that no "Bantu" (synonymouswith
"Natives" in this record) wert: members of the Uoard of Directors of
the Bantu Investinent Corporation. At that page of this record he said:
"That is a policy."
Dr. Dahlmann informed the Court about the present circurnstances
of political life in the Territory with respect to the Natives and their
political organizations. At XI, page512, he indicated it to behisopinion
that-
".. . the outside worId takes these organizations a little bit ~OO
seriously... they have very lirnited support and people-as we Say,384 SOUTH WEST AFRICA
the man on the street-are not much interested in these political
parties and organizations".
Air.President, the Applicants would not find thissurpriçing, even ifit
were true. What elsecould be expected when the normal and natural end
of political activit-which is participation of a meaningful nature in '
decision-making processes-is denied on the basis of race or coiour?
Such a denial isby inexorable classification, even though, as Mr. Dahl-
mann conceded, the are non-Whites in the Territory who lvould be
capable and qualified to servein governmental bodies and participate in
the decision-making. And, of course, this refers throughout to participa-
tion in decision-making of the central authoritieç, which actually deter-
mine the well-being and the social progress and welfare of the individuals
concerned, presently and in the living future.
With regard to perhaps the most important attribute of political life
-that is to Say nationality and citizenship->Ir. Dahlmann was unable
to Say whether it is open to a South West African Native to becorne a
citizen of the Republic; ofSouth Africa, as may-and do-White South
West Africans. At XI, page 496, he appeared to dismiss the subject, '
or else to considcr it responsive to the explicit question posed to him
on cross-examination, by saying:
"He [that [is the Native] is part and parce1 of his oivn nation,
in the first instance, and there are these .. . tribal and national
links, howeves one wants to cal1 them, within this comrnunity and
he cannot regard himclf as anything else than he is."
ln 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 citizenshiin the Republic of South Africa on
the same basis. terms and conditions as are the White inhabitants of
the Territory? .\nt1 the Applicants would respectfully urge clarification,
for the first time, of thiç point, for the benefit of the Court's clearer
understanding of tlie matter.
The evidence confirmed the full implications and consequences of
Respondent's concept that a dominant IVhite minority could justly and
objectively make decisions affecting the well-being and social progess
of the non-White inhabitants who happen tu compose the niajority.
But ignoring the latter fact for the moment, the point is whether the
Respondent could, under such circumstances, justly and objectively make
çuch decisions witliout, on the one hand, permitting the non-\j7hites to
share effectivelyin the decision-making process, or, on the other hand,
accepting international supervision, or both. On cross-examination Mr.
Cillie was asked if he considcred the officia1position of Respondent's
governing party to be a statement made by the Prime Aliniçter, Dr.
Verwoerd, in the House of Assembly of the Republic on the Odendaal
Commission report. As is set forth at X, page 530, the Prime Rlinister
had said, ilzter alia:
"Our policy is based on Our belief that whatever others may Say,
the only way in which we can test our policy and our actions 1s
by asking ouiselves ïvhether m7eare honestly and sincerely doing
what a Christian guardian can be expected to do for the peoples
entrusted to his care." OBSERVATIONS OF MR. CROSS 385
"Asking ourselves". And who isit who asks themselveç? It is a govern-
melit elected by and composed exclusively of rnembers assigned to, or
catcgorized in, cine racial grouping aloiie, that is, the Whites, even
escluding those "who, although in appearance are obviously white, are
generally accepted as" something else.
Alr. Cillie responded to this question, "Yes, definitely"X,tpage 530.
He likewise conceded, in a statement made upon direct examination,
that he had used the word "trusteeship" in the same çense 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 outside the
South African Government itself.
He espreçsed the view, and 1 quote from the same page of thesame
verbatim record, with regard to "trusteeship" in his and Respondent's
use of the term, "in this technical, political sense itis accountability
to yoursclf and to your conscience". The witness conceded, aç in any
event is obvious frorn the record, atX, page 531, that "the predominant
poïver", in hiç \vords, "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
White perçons; and reference has already been made, Mr. President,
to his testimony concerning the means, the only means availablc, to
non-i17hites for the espression of their views or grievances.
Again, in response to questioning by Judge Sir Louis Mbanefo, at X,
page 554,$,Ir.Cillie testified "Certainly, if, in the process, we find points
of iriction and if their objectioiis arc valid, we will make the necessary
accommodations", and further stated that by the words "we" he intended
"the administration . .. the ruling \'hite people".
In regard to the impact upon the economic life of the non-White
inhabitants of thc unsupervised and unshared coiitrol of the Territory
by the dominant White ruling group, as so-called "trustce". Dr. Krogh
readily admitted that thisgroul~determined the degree and the condition
of individual sacrifice or hardship which is to be visited upon individual
non-White inhabitants of the l'erritory-thisisat XI, page 189 . r. Krogh
likewise concedecl that the objectivity of the trustee, under such circum-
stances, could become clouded t>yself-interestAt XI, page 82, he stated:
". .:Ican very rc7ell nderstand that themembers of one population
group would givc preference to job opportunitics created by them
or, in fact, created in their area or available in their area. They
rnay prefer tliat these jobs should be occupied by members of their
group ..."
And the sarne witness has said:
"The problem in South iVest Africa iç that the Whites may very
weII look too weil after tliemseIveç individualiy-too well that is
at the expense of other groups." (XI, p. 187.)
Well. Mr. President, if 1 ma.y insert parenthetically,this, of course,
happcns to be true of people everywhere. This is a universal human
tnith, and the "White trustee" isno exception to the generalhuman rule.
Professor Manning expressed the same thought differently. He said:
". . . detachment .. .is as difficult for defenders of apartheid as
itis for critics of apartheid. Defenders of apartheid are quite com-
monly members of the privilcged society into which 1 was born,386 SOUTH IVEST AFBICA
and it isnotorious amongst sociologists thnt privileged people find
it difficult to be detached in thinking abouttheir own situation."
(XI,p. 62s.)
So it is true that privileged trustees niay find it difficult to be "detached"
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, hlr. President and honourable Jfembers
of the Court, the Applicants found to be the most remarkable contention
of all-evidence was led by Respondent which sought to esplain or
extenuate apartheid on the ground tliat the trustee's objectivity would
be clouded, or his conscience impaired, il non-Whites w-eretobe accorded
equal opportunities and equal protection of thela~vs>Ir. Cillie formulated
the conception in very stark terms indeed. The Court wilI note his
testimony in the following terms:
"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 leading people, the
White people of South Africa, to carry it through ... Al1 wisdom
in statesmanship is to some extent a functioriof a sense of çcclirjty.
Threats to that security, of course, could arise from various sources,
in South Africa and South West Africa. 1 would like to distinguish
between two kirids of threats. The one sort of threat cornes through
ençroachments. If a group encroaches on the preserves of another
you get a feeling of fear and you engender bitterness and hostility
which make riIl sorts of positive and constructive action very
dificult. That is the one sort of threat that coiild upset, what Icall
orderly evolution. You really cannot expect the if7hite 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-jzz.)
The upitnesswent on to esplain that avoidance of tension and hostility
and of being "thrcatened", was, in his words, "the real justification
for some of the legislation that has been under nttack in the Court and
in other forums". (X, p.522.) In Mr. Cillie's words, "vou cannot risk
sabotaging this whole constructive outlook on the par% of the IVhites
by allowing a process of encroachment to put economic and social fears
into the hearts of the ?mite people".
At page 537 ofthe same verbatim. Mr. CiIlie warned that "you have
to protect the scnse of sccurity of the Whites 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 confirmed, as the evidence on record made
ineçcapably clear, thai Respondent's insistent pursui t of a unilateral
course under such circumstances breeds extrernism, which, in turn,
generates a sense of isolation and persecution. RIr.Cillie strongly rejected
what were described as (and I quote from X, p. 516) "so-called middle
of the road policies-policies of moderation, moderating somewhere
between an extreme of differentiation and integration".
This witness, etlitor-in-chief ofthe newspaper which, according to
his testimony, has the closest relations with what he called the thinking OBSERVATIONS OF MR. GROSS 387
element of the National Party, stated his grounds candidly as follows:
"The reason, 1 think, is fairly simple, because every so-caiied
middle of the road policy, every policy that suggests giving limited
rights to these various groups inside one political structure, does
raise fears irnmediately that the end of this policy isa positioii of
one man, one vote, and that once you start, there is no logical,
and indecd iio practical stopping place short of universal suffrage."
(X, p. 516.1
The emphasis on "fears" uras repeated by Mr. Cillie, in response to
a question put to him on direct esamination, 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" rnight lcad to domination or exploitation by one non-
White group over another, hlr. Cillie reverted to his principal theme,
as follows:
". ..itdoes raise fearç arnong the ruling IVhites as to their position
[that is, these "outside pressures"] and their safety, and it does make
them behave in more negative ways than is appropriate in the
circumstrinces, than they should behave. The kirhites certainly are
not going to surrender themselves to so-called majority rule based
on the numerical prepoiiderance of the Black peoples in South
Africa or South West Afi-ica. They would resist it as mcaning the
end of tlieir world and they will deal with it as s~ich." (Ibid525.)
And, Mr. President and hlenibers 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 Orgnnization are to be evaluated inthis light.
In the verbatirn record at X, page 84,Respondent's CounscI advised
the Court asto the issues to whjch the testirnony of Mr. Bahlmann and
witnesses generally were to be directed. Mr. de Villiers advised thCourt
as follows:
". .. by the means which 1 have already indicated plus other
evidence and demonstration from available records, we want to
show in what light the iictivities in the intcrnational 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 ulas said to be directed and said to
be relevant, had beeri forecashy 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 Africnn Government for a long period and per-
sistently in the international political' arena, particularlin the
United Nations".
In offering the testimony of RZr.Dahlmann at XI, page 456, Res-
pondent there indicated, as one of the issues to which his testimony
would be relevant, what Respondent described as the "connection"
bctween certain political parties in the Territory and "certain perçons
at the United Nations". Such evidence, Respondent's CounseI said,
would be "relevant when we corne to deal later on in argument With
the so-calied law-creating processes or norm-creating processes referred38S SOUTH l'EST AFRIC.4
to by the Applicants, that is,resolutions and reports of organs and
agents i~ithe United Nations".
From this statement of the issues to which the evidence was said
to be relevarit in ivhole or in part, it ivould 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
ai page 493, IV,of the Reply, that iç to Say, in terms
content described
of Article 38 of the Statute of the Court.
The Applicants had, it is true, referred to "lam-creating processes"
in the course of their arguments addresseci to this point but made
explicitly clear that they were not, of course, contending 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 becarne quite tvholly cIear to the Applicants, as
the Respondent put forward the points to which the evidence was to
be directed, particularlyMr. Dahlrnann's testimony.
Air. Dahlmann's testimony, for example, at XI, page 564, appeared
to involve an attempt to discredit certain unspecified United Nations
resolutions. Ori the other hand, hlr. &Iullcr, Respondent's Counsel, in a
colloquy which ensued in the same verbatim at pages 563-564,advised
the Caurt ttiat Respondent did not envisage any evidence from the
witness as to the basis of or influence upon United Kations resolutions,
but was reserving t.his for argument. That is ai XI, page 563.
Followiiig the conclusion of the testimoriy, Respondent in the course
of the two weeks of comment and of resumeci argument, introduced into
the record a considerable volume of material for use as ammunition in
a broadside, the target of which was obscure to the Applicants. >IrDahl-
rnann's testimony regarding the activities of certain petitioners-some
of whorn had left the Territory to seek opportunities abroad, educntional
or other-and the implications to be drawii b57 the Court from his
testimony in this regard. were equally obscure to the Applicants.
hlr. President, in the light of this treatment, the Court rnay appreciate
that a difficulty confronts the Applicants in an effort to limit and confine
comment upon evidence which is adduced by the Respondent iiithe
form of argument-and argument which is produced by the Respondent
in the form of evidence.
hIr.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 true). Thus, in testifying atXI, page 471, as
to political activities of the Hereros, the witness said:
"They [that is. the Hereros] are mainty responsible for the interna]
campaign against the Government. Thep have transmitted a large
number of petitions to the United Nations."
And then tlie wvitnessproceeded to name several peisons whom, fie said,
had "appeared before the United Xations as petitioners for the Chiefs
Council of Hosea Kutako."
hlr.President alid honourable hlembers of the Court. In any event
I would respectfully advise the Court that there is not much more to
fdlow-in time, as distinguished from çubstance.
In regard to the material introduced by Respondent pertaining to OBSERVATIONS OF MR. GROSS 389
United Sationç resolutions, or debates in the United Xations, or delibera-
tions of United Nations committees and agencies dealing with the
mandated Territory, little nced be said and it can be said in a few
sentences ofcomment, without argument.
1 sliould like, with the honourable President's permission to state
five undisputed facts.
I. Conclusionsconcerning Respondent's racial policies in the Territory,
expressed by the Gcneral A~sernbly and its relevant and competent
committees and agencies, as well as by the Trusteeship Council and the
Specialized Agencies, including the International Labour Organisation
-conclusions in this field, and in respect of the Territory, are based
upon evidence whicli has poured in over the years. Much the most
important eviderice consists in Respondent's laws and regulations and
thc practices and ~nethods by which they are effectuatecl, the existence
of which has never been and is not now clcnied by Respondent. The
Court's attention, by may of example, can be drawn to one Comrnittee
Report: the report of the South West Africa Commjttee of 1956 at page
29, paragraph 170.
2. Tlie United Nations bodies which have passed on ttiis matter are,
without exception so far as the Applicants are aware of a multi-partisan
nature. The structure and composition of such bodics represent and
incorporate the most diverse perspectives, interests and icleologiescsist-
ent iii the organized interiiational community.
3. The virtually unanimous support of resolutions condemning apart-
heid and calling for climinatioii of racial discrirninatioii in al1its forrns,
and human rights resolutions and declarations, is a.ilthe more significant
in the light of the varicty ancl cliversity of the membership composing
the bodies and committees ancl agencies coiicerned.
4. The resolutions, by their very terms, dcmonstrate the opprobrium
with which the mernbers of the Organization, of al1 çhades of ideology,
perspective and point of view, view racial discrimination in general,
and apartheid in particular, asan extreme Iorm therof. 'Thisis 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 policiesasare reflected in the views of representative
Governments set forth in the Reply brief.
5. Just as the bodies are multifarious and multi-partisan in composi-
tion,so the bodics which have dealt with problems ofracial discrimination
in general, and apartheid in particuIar, have been characterized by,
and have approached the rnattcr from, the perspective of varying ri:spon-
sibilities and areas of cornpctence-political, economic, labour, educa-
tional and the like. And in each case their judgrnents have been con-
sistentJj7 the same; they have been overwhelmingly support~d, and they
have bcen emphatically worded.
No testimony adduced by Professors Manning, Possony, van den Haag,
or hlr. Dahlmann, or any of tlie other witnesses, and no evidence which
Respondent itself has introduced in any other fom or manner, refutes
the accuracy of the five propositioiisof fact I have just enurnerated.
When the Applicants asked the Court, as they have and respectfully
do, to attribute to the resolufions and actions of international bodies,
taken on this basis, and ovcr these years, and done in this manner-3g0 SOUTH WEST AFRlCA
to attribute authoritative weight to such decisions, they do not of
course suggest that the Court act asa "rubber stamp", in the infelicitous
phrase used by the Kespondent, and there is no argument necessary
on this poiiit. The argument has been made to the best of our ability.
Ifthe Court considers that these resolutions and these actions embody
reasonable and just interpretations of the Charter of the United Nations,
then itis submittell 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 Ali Forms
of Racial Discrimination as being incompatible with the principles of
the Charter-is persuasive.
It is, of course, for the Court, as the principai judicial organ of the
United Nations, to determine whether ornot the internationalstandards
reflected in theacts of United Nations organs and bodies arc in conformity
with, or do interpret correctly, the Charter of the United Nations.
Even more so is it forthe Court to determine whether the sources from
which international law is derived, in the sense of Article 38 of the
Statute, have generated an international legal 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 Yroceedings, 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 anytvhere would inherently
be incompatibl w ith 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 form
of testimony or taken by other means, could add to or detract from,
or explain or extenuate, racially discriminatory policies established in
the undisputed laïïrs and regulations and practices of the Respondent
-could show in any manner that they were indeed beneficial to the
moral weI1-beingand social progress of individuals. The effects of apart-
heid, in the Applicants' consistent submission, are established by the
facts of record as :imatter of law. ilrhether apartheid is, in the words
of the Respondent. "good or bad", is not a question offact,it is a question
of law in terms of the obligations of the alandate.
The evidence produced by the Respondent made it crystal clear, as
it inevitably woulii have through these u7itnesses or any others, that
the Applicants' contention from the beginning is a correct and valid
contention. Out of theirown mouths the witnesses showed the inherently
incompatible quality of apartheid with moral well-being and social
progress. It n'as ihis aspect which the Applicants had in mind when,
at the outset of these comments, 1 made reference to the paradoxical
but true fact that the evidence, bjr itsvery cascade and persuasiireness,
showed how unneceçsary it \vas, because the impacts upon the individual,
which ernerged 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, OBSERVATIONS OF )IR. GROSS 391
it made this exposure in the vocabulary of apartheid, which has an
upside-down Ianguage peculiar to itself, consistentlywitlithe perspectives
towards race and colour which characterize apartheid and form its major
premise. The testimony of witness after witiiess was coiisistent only
with the following propositions-1 take three briefones just to enurnerate
and illustratc:
I. 1,imitatioiis are imposed upon the economic advancement of non-
White persons in order to protect them from the cornpetition of the
more advanced Whites.
This is proposition I,but it makes no sense.
2. Obstacles are placed in the way of the achievement by non-Whites
of professional, scientific or eiigiiiecring skills, in order to protect them
from what is called the "inevitable frustration" they would otherwiçe
suffer, from the unwillingness of Whites to ernploy them in these capa-
cities,or to be supervised by them.
This applies, if the Court please, to the Territory utzdevMandate,
where not even the Government agencies see fit to train and place these
persons for service in their own Territorv.
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 ri~h-s of self-determination.
Propositions such as these appear to be taken for granted, almost as
asiomatic, by the witnesses, as they are by Respondent's highest offi-
cia1s-as shown by their officiastatements mhich are of record in this
case and appear in the Resporident's own pleadings.
RJr. President, and filembers of the honourable Court, it seems to
the Applicants that no furthercommcnt appears to benecessarjr.I should
like in closing, hlr. President and honourable filembers of the Court,
to thank, on behalf of my colleagues, the Deputy-Registrar and his
staff, and the many aho have suffered above and beyond the cal1 of
duty and CO-operatedtlirough these months inperforming their arduous
services which have lielped us immeasurably, as 1 am sure they have
helped my distinguished and learned colleagues from the other side,
and to thank the Court, the honourable President and the filembers 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, Mr. President, 1 take my
Ieave of the Court, if that is the dispositioof the Court. 36. COMhlENT RIr AIR. DE VILLIERS
COUNSEL FOR THE GOVEKNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINGS OF 12 AND 15NOVEMBER 1965
3Ir. President and honourable ùlembers 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 militarizatiori, which was their
Submission No. 6,nothing about incorporation, which was their Sub-
mission No. 5, and nothing about modification of the Mandate, which
was their Submission 90. g. Inregard to these last two, incorporation
and modification, they may have thought thnt their right of comment
on the evideiice did not estend to further comment on these matters,
but tliat certainly did not apply in regard to militarizationin respect
of which there was evidence by General Marshail, and there was cross-
esamination of the wiiness. So at least in tliis 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 events
took il1 regard to the issue of militarization and also in regardto the
other tmo matters, this is not surprising at all.
The Applicants' comment was confined to the subject-matter of their
Submissions Nos. 3 and +-the alIeged violation of the sacred trust
obligation contained in Article2, paragraph z, of the Mandate-and
Our comment wiii thereforc likewise be confined to that subject.
&Ir. Presiclent, perhaps1 may be allowed a few very broad, general
remarks at tlie start before1 deal in more detail, on a more analytical
basis, with the Applicants' comment. Broadty it can be said, in my
subrnission, that the Applicants' comment represented a very rernarksble
attempt to sail between Scylla alid Charybdis. Scylla represented in
thiç contest the abidingby the Applicants' submissions as reformulated
and amended on 19 May, especially if those submissions are readin the
light of thcir explicit wording and in the light ofthe definitions and
explanations which were incorporated therein by reference. It was clear
that it would not be profitable for the Applicants to abide bjr those
submissions so morded, so defined and so esplaincd because it had
clearly been establishecl Inthe Respondent's case that the norm and
standardsas so defiiied and explainedsimply did not exist. The Charybdis
for the Applicantç would be openly to depart from tlieir submissions
as so worded and so defined and so esplained, because if they were
openly to depart from thase submissions, that would involve an arnend-
ment of their submissions, an amcndment which, inal1the circumstances,
would aln~ost inevitably have then brought them into a factual field
which ~vould require investigation, and in respect of which they had
explicitly said at earlier stages that no such investigatiwas required
-no such investigation was invited-and the Respondent and the Court
were informcd that it was unnccessary for the Respondent to cover
that factual field. 'Therefore the Applicants knew that atthis stage an
amendment of their submissions to that effect could certainly not be
granted by thiç Court, and so they found themselveç in this dilemma.
And how did they attempt to get out of it? The attempted solution COMMENTBY 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 thnt 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 alirather
vague and to load 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 ina court of law.
Our contention is that these tactics on the Applicants' part cannot,
and will not, bear analysis. On the contrary, oii proper analysis they
show very clear recognition on the Applicants' part that their case as
reflcctedin their submissions of 19May has collapsed entirely, and we
shall also show, ivith submi~sion, that the atternpted and somewhat
conceaIed substitution for that casisequally ~vithoutmerit or substance.
1 may add at this stage, also by way of general comment, that the
Applicants' comment contained a rather pathetic attempt to slither out
of aclmissions of fact which liad so clearly and so unequivocallp been
made at an earlier stage. It was not only pathetic, it was also futile,
as we shall show, but 1 do not want to anticipate my argument-we
shall corneto thnt 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. Ive have dealt with this several times,
and the final review \vas given in Our opening address to the Court on
26 October after the completion of the oral evidence-the address by
rny learned friend, hlr.Muller. It is contained in the verbatim record,
at pages 70-82,supra, and 1 tlo not intend to cover that field indetail
again, but as a basis to my further comment 1should like to recapitulate
very briefly somc of the main points.
In the hIemorials, where we started off in this case, in Submissions
3 and 4 the Applicants objected to the Respondent's policies on the
ground thnt they were-
"determined and allotted arbitrarily ... inn pattern which ignores
the nceds and capacities of the groupsand individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority". (1p. 108.)
That is the oftcn-quoted passagc from the Mernorials, defining then
what is objected to in the Kespondent's policies; defining also what
this concept of so-called apartheid was to which the Applicants objected,
and which they wanted the Court to rule as being a policy in conflict
with the Alandate.
On 19 hlny the Applicarits, aftcr long and piecemeal adjustment and
long explanation, amended these submissions by the deletion of these
ver7 factunl allegationsivhichI have now read out to the Court.
Iheir 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 defined at page 493.IV,of the Reply,
thus identifying Submission 4entirely with Submission NO. 3.394 SOUTH WEST AFRICh
hlr. I'residentwe pointed out repeatedly that this arnendment was
not inadvertent or unimportant. lt represented a studied and adeliberate
decision on the Applicants' part not to ask for any decision of this
Court as to wvitetlier the Respondent's policies are il!-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 froin the circurnstances in
which these changes came about, and which was expressly stated by the
Applicants, hlr. President, waç to avoid the factual enquiry which would
be necessary if the original, factual allegationç were persisted in-the
factual enquiry which the Respondent had declared itself to be wilIing
to undertake. in respect of wvhich the Xespondent had notified the
Court that it intended to cal1a large number of witnesses, and in respect
of which it invited this Court to go on an inspection of the Territory
of South \l'est Africaand ais0other territoriesin Africa.It wasspecific-
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 inthe AppIicants' case.
The case for thi: 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 resiilt of such distinction would be. 1 use the word dis-
tinction here, Mr. President, because that is tlie word appearing in
Submission NO. 3. There has, as the Court will recall, been objection
to Our use of the word "differentiation". 1am using here the Applicants'
own word contained in their formal submission.
Xow, Mr. President, this was the Applicants' case, as 1 have just
stated it, which waç 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 Subrnissions 3 and 4 were
"distinguish", "discriminate" and "separate". We gavecertaindictionary
definitions of thes~: words which showed that they do not bear any
pejorative connotation, except in the case of the word "discriminate"
which may bear siich 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 thert: that these words ''non-discrimination" and "non-
separation" were used in their prevalent and custornary sense, and then
foiiowed the definition, which has so often beeii read to.the Court,
and wliich amounted to nothing more than the objection to an allotment
by officia1governmental policies or actions of status, rights, duties and
privileges on the basis of rnembership in a group, class or race rather
than on the basis of individual merit, capacity or potential.
In other words, &Ir. President, there was nothing to indicate that
anything pejoratiw was intended, and al1 the indications of reconciling
the concepts of separation with discrimination-reconciling the second
part of the definition with the firçt-taking into the account the official
and the non-official explanations, al1 confirmed that that was what
was intended.
Then, hZr. President, this also appeared from an examination of the
Applicants' treatment of the sources upon lvhich 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 didnotinterpret those sources-they did not purport
to rely on thoçe 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 tirntehey abstracted the meaning
whicli they assigned to them, referring to the neutral concept of distinc-
tion-of different iation-confirming again that the word "discrimina-
tion", where used by them, was used in that primary sense.
Then, Mr. President, the vcry nature of the amendments of 19 May
showed, in our submission, that the Applicants intended to foreçwear
any allcgations that the Respondent's policies were il1-intentioned, or
that they produced undesirable results; and, as 1 have said, this was
made further esplicitly clear and coiifirmed by a number of informal
statenients whicli we have rcad out to the Court before, and which I do
not intend to read'out again.
In this sarne opening statement in the verbatirn record of26 October
by rny learned fricnd, Mr. Muller, to which 1 have referred, \Ire also
showed that the Applicants had apparently realized more recently the
extreme implications of the attitude which they adopted as the basis
for their amended submissioni an 19May. They apparently also realized
the absurd consequences to which that contention would lead, such as, a
for instance, the interdiction of separate public conveniences 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 ~ieeds of a particuli~r individunl are not taken into
account at al1 in determining whether he or she is entitled to take
advantage of a particular public facility rather than some other one
which may be niore inconvenient or situatcd at a greater distance from
him or her than that particular one. The allotment is purely, in such
a case,on the basiosf membership in a group or claçç.
This, the Applicants say, is the caricature of their case, that it if;
something which flows naturally frorn 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 sorne signs of fretting, of
ivjshing to escape from their case on which they had so deliberately
decided. But, Mr. President. it was iiot so easy for them. They could
not escape that case. Their difficulty was, on the surface, one of formula-
tion, but, of coiirse, the formulation was only the symptom; it was
only symptomatic of their real substantive difficulties.
If their norm and standards did not strike at al1types of differential
allotments of rights, duties and so forth, on the basis of membership
in a race, class cir group, theri they would have to define the criterion
to be applied in determining the illegality of some such allotments to
the escIusion 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 discuçsion would be permissible, and some would be imperrnissible,
wouId have to fallinto one or other of the categories which rny learned
friend, bIr.Muller, mentioned to the Court. They would have to fall,
firstly, in the category of an irnproper state of mind of the person who
allots the rights, dutieç. and so forth. Alternatively, they would have
to fait in the category of undesirable results which flow from such an COJIMENT BY MR. DE VILLIERS 397
I raise these things not by way of theoretical abstractions, Mr. Presi-
dent, or by way of sometliirig academic which has got nothing to do
with this case, but because as we go along we sliall see that the Appli-
cants' case, partjcularly as \vas putto the Court in thjs final comment,
involves extrcme vagueness and confusion exactly on aspects of this
kind.
However, Mr. President, it was not possible for the Applicants to
define anÿ case falling within any or al1 threc of these broad classifica-
tions which I have given to the Court, because they had explicitly
renounced any reliance upon an irnproper state ofniind on the Kespon-
dent's part, anci they had e:iplicitly renounccd any reIiance on detri-
mental conseclilences of the policy. And the reason becausc of which
they made these renunciations still remains: the reason was the need
to avoid a factiial enquiry iiito these aspects as 1 have mentioned to
the Court. 1 may remind the Court that tliat factual cnquiry would,
inkr alilr,have involvcd a cornparison tvitlistandards in other parts
of Africa-comparison of standards in South \ircst Africa with standards
in other parts of Africa, including theAppIicant States themseives.
So, &Ir. Presideiit, how did the Applicants then seek to overcome
this dilemma flowing from the untenability of this wide formtilation
of their norm and their standards ancl the difficulty, on the other hand,
that they couid not go back io categories of complaints which they
had esplicitly foresworn? They tried to cope with it in a numbcr of
ways. When they were faced with problems such asthe minority treaties,
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 imrnaterial to their norm as defined, or to their
stand'ards aç dcfiiied. The criterion to which they referred, n7as the
purpose of protecting groups and members of groups, and also they
referred to the criterion of the possibility for an individual to leave
his group. Why these features would have been relevant as distinguishing
between legitimate and illegitimate, on the baçis of a norni and standard
as defined by the Applicants, was ncver explaincd by them.
Then, Mr. Prcsident, the Applicants often objected violently to Our
description of thcir norrn and standards as involving non-differentiation.
They objected to the use of that word but they did not explain the
differencein meaning between "distinction", "discrimination" and "sep-
aratiori", on the one hand, and "differentiation", on the other hand.
In particuIar, they never said that by "discrirnination" they meant
something pcjorative, for as mon as they had said that it would have
landed them into the difficuIties I have just mentioned. It ~rrouldhave
brought them back into the field of necessity for a factual enquiry,
which they did not want.
Next, hlr. President, in tlie course of thc leading of our evidence
and cross-examination in respect thereof, repeatedallegations were made
by the Applicants that the Kespondent had distorted their norm. But
they never told the Court ho~v or in what respect this was done. When
a serious al1eg:ition of that kind is made, Mt-. President, one would
expect the objector to Say to the Court, even if very briefly; here we
have the clear content of oui. norm and standards as defined, and our
clear explanations as to what it rneans, and here, by way of coiitrast,
we have the Respondent's distortion thereof. Rut we never got that.
Nowhere under any of these cjrcumstances of violent objection to so-398 SOUTH WEST AFRlCA
called distortion diil we have any clear indication frorn the Applicants
what exactly it is that they say their norm and standards is-what
is this content which isso different from that which is now being repre-
sented by the Respondent.
On various occasions during the course of the evidence the hppiicants
gave some ad hoc explanations in regard to the norm and 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
1 have referred, these esplanations were inconsistent with the content
of the norm and standards as that content has been formulated at page
493,IV, of theReply, and 1 need 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,hlr. Gross, as not reallyrepre-
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 instriiments and sources upon which reliance was placed.
13ut when this canie ta a final combination, in the verbatim record
at pages 3j-36 and 48, supra, when rny tearned fnend was pressed to
put to a witness what he contends to be the real meaning and purport
of the norm and tht: standard, what was then eveiitua1Iy put amounted
in substance to esactly the same as we find at page 493, IV, and there
was certainly then no indication whatsoever that the word "discrimiiia-
tion" was intended to bc used in a pejorative sense.
It was suggested, hlr.President, to some of the witnesses very vaguely,
for instance, Profesçor Possony, that the use of the word "discrimina-
tion" in the definition at page493, IV,had some significance. However,
the nature ofthat significance was never explained. There was always
on the part of the Applicants a holding back from saying, specifically
and explicitly, that "discriminatioi~" rneant something bad.
Ttaas suggested t>ythe Applicants to some witnesses, and particularly
to Professor Manning, that there was, ormight 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 11ot pursucd subsequenlly:
it obviously was without substance.
So, Mr. President, we went through the list and we found that these
various hints and suggestions on the Applicants' part were, of course,
not intended 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. We Iound that that was promised
to the Court, for instance,in the verbatim record at XI, page 315, and
again at page 647. Eut now we have reached that stage-the stage in
which the Applicants' comrnents on the evidence was given-and we
shalI considcr to what extent further light on that question has been
shed by these comnients.
The first and important point to note.DIr.President,isthat the Appli-
cants still persist, iii these cornrnents to ~vhiamI now replying. with
accusations ofdistortion on our side, but they couple those accusations
with a complete failure to state ïvherein this distortion lies, even to
state the alleged content of the norm andjor the standards. They ex-
plained this attitude as folloïvs in the record of Tuesday, at page349,
supra: COMMEN'TBY MR. DE VILLIERS ,399
"The formulation in al1 its variations irnports a false rendering
of the true nature of the standards for which the Applicants in
fact coiitend, as well as of the international legal norm of the sarne
content which the .4pplicants have put fonvard as an alternative
legal tlieoiy; it is of course understood by the Applicants that
n recanvass of the arguments, with respect to the content or
other aspects of the standards and the legal norm, would be out
of place in the contest of thiç comment upon the evidence.:'
So, Mr. President, we find this most amazing statement in lieu of
the elaboration which me had been promised at various stages during
objections to the evidence. It is most arnazing. Mr. Presidetit, because
the Court ~villrecall thatrny learned friend spent the half of the first
session on Tuesday making the point that the Respondent's evidence
had not been directed at the realmeaning and content of the Applicants'
norm and standards. That was the maiil point which he madeover that
first half of tbnt first session. That was the form which his comment
on the evidence took, as far as tliat particular stage was concerned.
Now, surely, Mr. President, if there was any substance in it, of course
that \vould be n legitimate form of comment on tlie evidence. But,
then, surely one would expect tliat for the purposes of such comment
it would be equally legitimatc-it would indeed alniost 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 justificd from its sources; we are riot arguing
the legal merit ngain of the contention that such a norm does or does
iiot exist, from the sources as we previously relied upon thcm; we are
saying that we liave made clcar before, and we arc repeating, that the
content of this norm and of tliese standards is soand so and so,and the
Xeçponde~it, by way of contioçt, ignores that and it directs its evidence
to a proposition which is vitally differentin that it is so and so and so.
But Ive do not find that, ;\Ir. PresidentThe excuse isgiven that that
~\~ouldnot be appropriate by way of comment upon evidence, and that
in spite of the fact that you, ilIr. Presideiit, snid esplicitly on IS October
at XI, page 647: ". . . comment as to relevance of evidence falls within
the permission which has already been accorded." And my learned
friend, hlr. Gross, there reserved his right to present such comment
on the relevancc of evidence, and, as 1have pointed out, he had earlier
promised that there would be elaboration.
So, on the basis of this rather transparent excuse, the Applicants
do not once tell us explicitly whnt it is that theallege to be prohibited
by their norm and their standards. Instead, they make use in this
cornnient of their suggestion by speaking of the sense in which other
peopIe have used the word "discrimination". And so we find in Tuesday's
record, at page 353, supra, this illustratiï,e passagea rather significant
one :
"Respondent itself in its pleadings, and IZespondent's witnesses
in their testimonÿ, employed the terrn 'discrimination' in its
custornary and prevalcnt 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 soinething unfavourable, something adverse, something
unfair. 1 shall analyse later to what this unfairness and this adversity
relate-I sha11corne to that Iater. But, by suggestion, one is apparently
intended to undersland that this is how the Applicants intended to use
the word "discrimination" in the earlier formulations of their definitions
of their nom and of their standards-of their definitions and their
submissions. If that really is what was intended here, Mr. President,
then they have guiirded tliat secret very, very well. 'Then we had to
aurait 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 put to my learned friends as to whether
they can point to aiiy portion of this long record of the Oral Proceedings
in ~vhichat any time, after they had started to make their turri towards
their amended submissions of 19 May, they had in the least said or
suggested that their use of the concept of discrimination was intendeci
to be in a pejorativt: sensc1 know what the answer is to that, Mr. Presi-
dent. There is no suc11instance.
Then we corne to \Vednesdayls record at page 375, sz~pra,ivhere we
have a sirnilar example. There reference is made to a statement by the
Odendaal Commission, and the Applicants Say:
"Parerithetically, Mr. President, it might be rioted that the word
'discrimination', unqualifiedly usedby the Commission in this para-
graph, is obviously employed in its prevalent and custoinary, or
pejorative, sense, precisely as it is in the conçtitutions of govern-
rnents throughout the world, in United Nations judgments and
other sources comprising the standards defined at page 493, IV,
of the Applicants' Reply."
Here the suggestion becomes almost stronger, although it still stops
short of saying esplicitly that that is the way in wliich the Applicants
intended to use the u-ord, or that there is even a link in the sense that
this is spoken of as theway in ~vhichthe word iç used in certain sources
on wliich the Applicants havc relied for the formulation of theirstandards,
asdefined at page 493, IV, of the Reply.
But, still,itwill be noted that the Applicants do not Say explicitly
that they thernselves used, or intended to use, the word "discrimination"
in that sense-they merely irnply it-they merely suggeçt it-by as-
cribing such use to Respondent, to some certain witncsses, to the Oden-
dan1 Commission, to certain constitutions, and to certain international
instruments and resolutions, and $0 forth. And, indeed, Rfr. President,
jt \irilbe obvious that the Applicants cannot make such a statement.
They cannot Say that that was how they intended to use the ivord
"discrimination" in their case, as formulatecl on rg May in their sub-
missions, becausc such a statement would be patently untrue. That we
liave demonstrated. And çuch a statemei~t would, in addition, &Zr .resi-
dent, only lead them into further difficulties, as we,shall show.
In passing, we may just note that where the Respondent or certain
witnesses used the mord "discrimination" in a pejorative sense this CObIMENT BY hZR.DE VILLIERS
401
always appeared from the context. This was always made explicitiy
clear by the author of the piirticular passagein the pIeadings or by
the particular witncss by explicitly using adjectives such as "uiifair"
or prepositions such as "agairist"-discrimination "against" as distin-
guished from a more neutral scnse of discrimination "between". Neither
the Respondent at any stage nor any of its wit~iesses ever stated that
such sense of the term -3s itscustornary or its prevalent sense,
In regard to the use ol the word in rcsolutions and other proceedings
of the United Nations,1niay refer the Court to tlie testimony of Professor
Fossony at XI,pages 69s-703, where he demonstrated how inconsistently
the term \vas used generally in the United Nations records-sometimes
as rncaning one thing, and sometjmes 'ameaning another, and sometimes
it is impossible to make out in what particular sense it was intended
to be used.
Now, >Ir. President, let us then analyse this suggested "customary
and prevalent sense" of the ivord "discrimination"which, by suggestion,
apparently should be read intn the norm andlor the standards of non-
discrimination and non-separa1:ion.
In tlie first Place, Mr. President, it conflictç witli the customary and
the prevalent seiise of the word which the Applicants explicitly told
us at page 493, IV, of the Reply is tobe assigned to it. There they also,
as1 pointed out earlier, used the term "customary and prevalent sense"
but there to the exactly opposite effect-esactlwith a view to elcplaining
to the Court tlist they arc not talking of something pejorative-that
they are talking of discriminationin the neutral seiise of discriminating
bet ween and not discriminating against.
Secondly, ;\Ir. President, no new "customary and prevalent sense"
rovided for the other ,t,ords wrhichthe Applicants used in their
2e Aniions and explanations, and which words urereused inter-changrably
with the word "cliscrimination", namely the word "separation" and the
tvord "distinguishing". At page 493, IV, we are told that the terms
"non-discrimination" or "non-separation" are used in their prevalent
<andcustomary sense. 1 stress the word "or". This indicates clearly
that those two are used inter-changcably as meaning the same thing
for purposes of this norm; as my learned friend, Mr. Muller, demon-
strated, there were not tivo noms, 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" ancl"non-séparation'" And, cer-
tainly, Mr. Prcsiclent, 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 1 Iiave pointed out, the
word used and still used in Subrnission No.3.
Now, tvlien one examines the concept of discriminationitself, as used
by tlie AppIicants in thesc cluoted portions of what they said on Tucsday
and M'ednesday, then it becomes even more apparent that this manceuvre
cannot provide an avenue of escape for the Applicants. The phrase
which they used in these formulations which 1 read out to the Court,
was "adverse and uniair denial of eqiial rights or opportunities to an
individual". Those are their quoted words. Now, one finds in that .
expression the words "equal rights or opportunities". Those words of
course are in themselves unclear and they do not make mûtters more
esplicit without explanation.402 SOUTH WEST AFRICA
Do they mean-are they intended to mean-that everybody should
haveidenticalrights and opportunities-in other words, rights and oppor-
tunities which are defined in identical terrnsby law? Or, do they connote
that it would be permissible and sometimes even necessary to have an
allotment of differeiit rights and opportunities in order to bring about
an equivalence in cfficacy or utiiity, in fact?
If this latter should be the intended meaning, hlr. President, then
how would one set about rneasuring the efficacy or the utiIity of the
rights and the opportunities given on a differential basis? In particular,
Jlr. President, how would one even attempt a task of such a kind urithout
the fullest and the most mide-range inquiry of fact into that precise
problem, which issomething, 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.
Hoivever, Rlr. President, be that as it may, in regard to this plirase
"equal rights and opportunities", the Applicants are right back with
their old problern, alço, with their employment of the adjectives "adverse"
and "unfair". What are the criteria to be appIied in determining whether
a measure is adverse or unfair? hgain, we submit-hve have considered
this matter from al1 possible angles but it seems to us impossible to
conclude othenvise-that unfairness or adverçity must always bring
into issue either the state of mind of the person performing the act,
or the effect of thi: act upon the person affected thereby, or both these
things. Conscquently, Mr. Presiclent, it is impossibltodetermine whether
a rneasure 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 Iullest inves-
tigation of the facts to see whether adversity or unfairness, whether
in intent or in effect or in both,isactuslly present.
Shen, Mr. President, a most important furtlier question arises. Un-
fairness or adversity to whorn? 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 al1 the Natives
-then, RIr. President, they wouid be right back at the case which they
originally made iii the Mernorials and which they have sul-isequently
abandoned. This would then mean that they are now presenting a case
on a basis which they espressly 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 id1 be
obi~iouç 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.
lvhere they said tliis:
"If compulsory education is applied in the case of nEl White
diildren, irrespective oi wish or circumstance, and is not applied
in the case of aray Native children, a question fairly arises con-
cerning the reason",
it looks, as 1 Say, superficiaIlyasif there is again this suggestion of
unfairness towards the whole of the Native population. Then we find,
after referring to certain circumstances in the Territory, the Applicants
continue to state that a failure to apply compulsory education to any
Xative children ". . .must reasonably be ascribed to, and is obviously COMMEKT BY MR. DE VILLIERS 4O3
bascd 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 limits the opportuiiities given to Natives merely
because they are Natives. If this is su, then, of course, we are right
back at the original oppression case, as originally brought-the case
of arbitrary, deliberate, improperoppressiori, subordi~iation of the Native
population to tht: iiiterests of the White population. But, as 1 have
said, that case was abandoned and, as 1 understand it, itisunnecessary
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
lulied 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 oi testimony in order to meet that
original oppression case? Certainly ttieir assurances which they gave us,
had the necessary effect so that wedid 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 should have understood
that our case was still the same asat the beginning-that you stiU had
to meet aii that and in spite of al1we said was for you to decide whether
or not to bring those witnesses. Now that you have not brought those
witnesses, we corne again witli Our original allegations and we Say it
is good enough to take the record as it stands, even though we know
tliat you wanted to supplement that record-that you wanted to bring
much more detailed evidence about it. Now u7e take bits and pieces
from what Lvecan estract from cross-euamination and from evidence of
esperts-whethcr in contest or out of context, does not really matter
-we piece them together and we Say, there, there is something on
whicli the Court can still find that our original case was substantiated"?
JIr. President, ifthat is how the Applicants' attitude is to be under-
stood, 1 have to say 110more about it. I am quite sure that this Court
itself will make wry short shrift of that kind of tactic.
On proper analysis of wliat it is that the Applicants told this Court
on 'l'uesday 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 orunderstood. It seems to us that they intended
something else therebp, not something that would bring them any
further, but nevertheless something differcnt from the possibility ~vhich
1 have just discussed, and a very useful key is afforded by a passage
whiclt occurs in l'uesday's record, at page 360, supra. There they refer
to a statement wl-iich1 think 1 had macle before and they said this:
"The asserted distinction drawn by Counsel: between what he
referred toas'the general well-being', of the population as a whole, as
distinguished from the 'effect of particular measures upon particular
individuals inparticular circumstances', in Ourrespectful view, begs
the central question.
The impact of Respondent's . .. policy upon individuals 'inpartic-
iilar circumslances', and through 'particular measures', is precisely
what the Applicants are talking about."
Now, Mr. Presidcnt, in this Lastsentence 1 have deliberately omitted
certain emotionaily charged adjectives in order to go more directly, as it
seems to us, to the legal significance, if any, which may be attached to4O4 SOUTH WEST AFRlCA
this passage. 1shall come back to these adjectives later-to the purple
prose in general-but for the moment I uant toconcentrate on what
appears to be the suggested legal sipificance of this passage.
The suggestion seems to us to be this: that unfairness csiçts because
certain individuals may in certain circumstances be harmed bp certain
particular measur(:s-that, and no more. Certain individuals may be
harmed in certain circumstances by certain particular mcasures. Now,
if that is so. hlr. Preçident, then that is sureayvery strange concept of
unfairness. This is so yarticularly in the context of discussing policies
which are required to promote the well-being and the progress of the
inhabitants of the mandnted Territory-al1 the inhabitants of the
mandated Territory. In such a context surcly it is gencrally acceptcd
that the individual's happiness must often necessarily be abated for the
greater happiness of the group of which he is a member, and conse-
quently, alço, and this ismost important, for his own future happiness.
That situation is not normaliy regarded as necessarily unfair; and even
ifit shoulclor might be regarded in the light of being unfair, it is normally
seen as somethirig 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 iits terms, in the sense
that certain of them reccive less direct benefit or greater immediate
detriment therefrorn thaii other individuals. One can take esamples of
policies al1 over the world, and one can hardly think of a policy which
does not have the effectof causing or ostensibly causing direct or imrne-
diate harm to individuals, as distinguished, of course, from over-al1 well-
being and, therefore, also of the real well-being, now or prospective, of
that individual.
Let us take es,ampks, merely by way of illustration. which were dis-
cussed in the evidence: let us take the esamples of policies in the United
States, where we get an esample of a policy of differentiatiori in regard to
the Indians-the land reservation policy, if1 may cal1 it ttiat-and then
a policy of non-dil'ferentiatian or integration, iri so far as the American
Negroes are concerned. In the case of the differentiation regarding the
Indian Reservations, surely, hlr. President, some individuals are hit
harder, more specificalIy and more directly by that than others,and are
affected in different ways. There is the mernber 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 takc up some othcr occupation somewhere-he wants to sel1
his land at tlie best price lie can get-andthe price which would make it
economically worthwhile for him would be thatfrom a European member
of the American community, but he is not allowed to do that. He is
affected more directly and more specificaIIy than the other member of
his community who is content to stay on the Reservation and wishes to
stay there as lar as he and his family and descendants are concerneci.
That is an esample of a differentiating policy.
The same examples occur in the case of a non-differentiating or an
integrating policy. There is the policy of integration as far asthe Negroes
are concernecl-the Court will recall the evidence of I->rofessorPossony
to the effect that, as Ras demonstrated ina recent report on the subject-
there is a tremendous lag inthe development stages of the Negro popula-
tion as a whole, compzred with the White population as a whole, and
there is a strong body of opinion to the effcct that the only way in which COMMENT BY MR. DE VlLLlEKS 4O5
one could be fair to tlic Negro, ~iowin these circumstances, would be to
discriminate in his favour,and to try, by that way, to eliminate that lag
first beforc expecting liim to compete, without any assistance, with the
White tnembers of the community. Agairi, Mr. President, that demon-
strates hotv particular individuals map be much more spccifically or
irnmediately or detrimentau'. affecied by a policy than others. Oile can
iinmediately imagine some who would not require that special assistance;
one cnn immediately imagine others wlio would vci-ydefinitely require it.
Then, Mr. President, one can tl-iink of policies whicli hüvc nothing
whatever to do witti questions of integratioii or differentiation, whicli
are just concerned with something efse-a policy such as a declaration
of !var. Under certain circumstances, a declaration of war may be
regarded as being the only thing that can be bencficial to the welfare of a
commuiiity as a whole, and therefore also to al1 the individuals com-
prising that cominunity. But rhat policy may affect very harshly some
individuals, and some, of course, inore than otherç-thosc wlio are going
to be in the figliting lineç, being in tliat particular age group, and thosc
who are going to stay at home.
Mr. President, ifthis, as1 have said, is the concept of unfairness.with
which wc are dealing, it iç a very strnnge one and, indeed, if that1s so,
and if that is intendcd to be represcnted as the content of the Appli-
cants' norm and/or standards, then it is difficult to see how ~vccould
ever be said to have misrepresented the Applicants' norm or standards
becauçe, Mr. President, if the essence of the discriminatiori is thatsome '
individuals in certain circumstances are detrimentally affected by partic-
ular measures, then 1 may recall that any measure which nllots rightç,
duties, and so fortlï, on the basis of group, ciass or race, must be inter-
dicted bccause in al1 those cases some harm must necessarily faIl on
individual members. In any case, where one has a differential policy,
some individuals must be more specifically affected bu itthan others. In
al1these cases of urhich Professor Possony spoke, al1over thc world in the
practicc of States that must int:vitably be so, and he pointeil it out in his
evidence too. And that applies not only to these cases of racial dis-
crimination, of which my learned friends now speak, it applies to al1
these cases of differentiationon the basis of group, class or race,
As 1said, of course, when 1am spcaking here in terms of detriment to
some individuals, it is ostensible or immediate deprivation-ostensible
1 stress because very often the ciirtailment of liberty at this particular
stage is something which is looked upon in an immediate sense as a
detriment-but one must not look at that in isolation; one must see what
the effect is going to be for this individual, not on1y in the future, but
~iow,if this policy, of which this particular measure forms apart, did not
apply. If the answer is that this policy did not apply, ünii the only
alternative applied that the whole State-the whole community-would
be reduced to a çtate of misery, affecting also that ~ndividual, then it is
not true to Say that that individual suffers any detriment at all, even on
a short-terrn bais as compared with a long-term basis. But, of course,
there are also circumçtances in which one could saÿ thnt the individual
may be said to suffer on a short-term basis, whcrcas the long-term, ovcr-
al1 basis is intencled forthe bt:nefit of the community as a whole, as is
normally the case, hlr. President, in the case of al1the various kindç of
policieswhich have been discussed.
Alr. I'resideiîrnay I just make this point: ifthis jsthe sense in which4'33 SOUTH WEST AFRiCA
the Applicants speak of detriment, then, of course, they have not,
despite al1 appearances to the contrary, in that respect departed from
what their case was before in regard to the norm and the standards.
MT. 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 pe~ SE incompatibility of apartheid with
individual moral well-being and social progress, and that such a
policy if apylied anywhere would inherentlp be incompatible with
the moral well-being and social progress of any individual, inside or
outside this court-room".
1 skip about six lines, and I read a further passage:
"The effects of apartlreid,in the Applicants' consistent subrnis-
sion, are established by the facts of record as a rnatter of law.
\Vhether apartheid is, in the words of the Kespondent, 'good or bad',
is nota question of fact,it ia question of law interm of the obliga-
tions of the hlandate."
Bringing that in canjunction with the factors which Imentioned to the
Court just before the tea adjournment would make it appear, thercfore,
that the Applicantshave not departed frorn the basic attitude which they
expressed in regard to their norm andlor standards contention at an
earlierstage. When they speak of harm or detriment to an individual,
when they speak in that sense of unfair or detrimental consequences of
apartheid, apparetitly they speak of those things not as facts but as
legal fictions. Apparently the attitude is that, whatever pomers have
decided upon the norm and 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 legai consequence
which inheres in the whole concept and the whole contention of a norm
and a standard, and therefore it is noteaIly a question offact, because if
it were a question of fact, then it would of course be impossible to stop
just therc, and toSay "well, letus merely look at these immediate, these
ostensible, these short-term effectsupon 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 legaily 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 tlieir submissions on 19 May, and that
this talk of unfair, adverse effects is really just anotheway 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 isthat they mean, because if the inference which 1have
just stated tothe Court is a correct one, then it is çtiI1difficult to under-
stand when one may 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 institutionsof the people'".
These were rnatters to which Professor Logan testified. The Applicants, COMMENTBY MR. DE VILLIERS 4O7
within the contest 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 persons, and they certainly suggested that this "has
nothing to do with the Applicants' case" (p. 350). I3ut can it bc 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 icpeatedly pointed out, the
rneasures to reserve Sative land impose a limitation 011 a11individuals
outside the Native group in cluestion who may wish topurchase that
reserved land. It also imposes a limitation on al1 Xatives who wish to
sel1reserved land. If~7etake the next one, i.e., control of population
movements, particularly into urban areas, thst affects individuals who
may wish to go to the urban areas. Jf we take maintenance of tlie tradi-
tional institutions, that almay subject a pnrticuInr individual toatype
of control which he does not desire. One gets the esample of the individuaI
member of a particular people ivho haç had education, and ivho con-
siders himself to be more advanced than the chief under whose jurisdic-
tion he is no\v to serve. iswith a view to coping with situations of that
kind that there is provision in the Respondent's policies, of whiwe have
spoken before, for introducing the democratic element, togethcr with the
traditional elements, as a form of advance, but at particular stages of
development one may have thcse individuals who are perhnys inadvance
of the developments in the institutions provided for his group. So,
certainly, in that respect, and in other respects also, maintenance of the
traditional institutionmay have certain effects upon certain individual
persons. And yet, it seems to us that the Applicantssa>+that these forrns
of discrimination, differcntial:ion, separatioror distinction are 11ot
prohibited-why we are not told. We are not told what is the criterion
separating these legitimate forins of discrimination, etc., from the others
which the Applicants wish to haire interdicted.
Let us return, then, to thjs example referred to in Our Kejoinder-
the case of special protectioii or special public conveniences for women.
The Applicants referred to this passage when the- dealt with Professor
Possony's evidence, i.e., that a prohibition of such a discrimination would
indeed be a coiisequence of the Applicants' norm and standards, and the
Applicants said in Tuesday's record, at pages 351-352 su,pra:
"The witness thus found it riecessary,by reason of the formufation
by Respondent of the issue to which its evidence is said to be
directed and relevant, to travel the road of confusion to its destina-
tion, which in this casewas absurdity."
Of course tlie absurdity was there with respect to this submission, but
that absurdity rcsults not from distortion on our part, it results froin the
Applicants' formulation of tfieir iiorm and thcir standards; it does not
result from anything me said or did-we or Professor Possony.
The Applicants Sap that because ive can point to absurd consequences,
therefore, we are misrepresenting their case. \jre say that these absur-
dities show the untenabilitp of their case. They have drawn their lines
so wide as to include instances of this kind-instanceswhich demonstrate
that that case wliich they malre is an untenable one-and thcy cannot
draw a narrower line so asto exclude these absurd cases without coming
in to asphere of factual enquiry which they have sought to avoid. That
is,and remains, their difficulty.408 SOUTH WEST AFRICA
So, by way of suggestions and insinuations tlie Applicants have at-
tempted to create the impression that there was something more to
their case-sometliing more to be taken into account-than mere dif-
ferentiation, discrimination in the neutral sense, and so forth, within the
sphere of allotmetit of rights, obligations and so on, on the bais 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 elernent, and they never told us what case it was we had to
rneet in regard to ttiat element which they now suggest must bc regarded
as decisive.
They did this, JIr. President,by playing around with the word "dis-
crimination" without defining exactly what they meant thereby, as 1have
demonstrated. It i; a similar manŒuvre, Mr. President, to what we
referred to earlier in regard to the use of the word "apartheid". The
Court \vil1rernember that 1dealt with this matter in reply to a question
by the Court as to the scope of the Applicants' subrnissions of 19 May,
and as to the possible scope of enquiry by the Court, particutarly in the
verbatim record or T July, at X, pages 220-224, where 1 dealt with the
play which the Applicants made on the use ofthe kvord"apartheid1'-on
the meaning of the word "apartheidH-how they started off with one
meaning-a definition giving it the meaning of an oppressive systcm-
and how it ended iip with an entirely different meaning for the purposes
of their submissioris, referring merely to the element of differential allot-
ment-of distinctioil-as being the word which they use in their sub-
mission. And I poiilted out at a later stage when answering this self-sa~ne
question of the Court, they wished to make those lines a bit vaguer
again so as to add a bit of confusion as to whether they were now talking
about apartheid still in the original sense or in this more limitedspe-
cialized sense in which they later defined the word. We have much the
same proceçs, Mr. 13resident, with this worcl "discrimination". 1 have
dealt with that and 1need not enlarge upon itany further.
Sot only the word "discrimination" came into this. Ialso promised
the Court that 1 would come back to certain adjectives which 1 left out
of a particular passage earlierWe are now brought to a conception that
in various ways ofsuggestion, and so forth, tlieir normand standards did
not prohibit distinction or separationamongst al1groups or classes, but
onlyamongst vacialgroups. It will be recalled, of course, that page 493,
IV, of tlie Reply the Applicants defined their norm by reference to
allotments on the basis ofmembership in "a group, class or race". They
could hnrdly avoitl this general formulation for the simple reason that
the various sources upon which tliey relied-the various international
instruments and draft instruments and so forth-use a variety of con-
cepts in the particular provisions of those instrunients.
We say that the Applicants do not interpret those provisions cor-
rectIy when they Say that they afford any support for the norm and the
standards which the Applicants attempted to extract therefrom, but
that is not the point under discussion at the moment. 'I'liepoint is that
for whatever purpose those instruments spoke of groups and so forth,
they did use language including "race, ses, language or religion". That
phraseology 1 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, atpage 501, we find that the instrument speaks COMMEKTBY MR. DE VILLIERS 409
of "race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status".
The third example, the draft Declaration on Riglits 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 thc Applicants' definitioii of "group, class or race"
was consequently necessary bccause of the wide terms of these ather
instruments relied upon; whether the reiiance was a justified one or not
is not under discussion for the mornerit. The formulation-group, class
or race-ivas consjstently employed by the Applicants throughout these
proceedings. As examples we mriy refer tothe verbatim record of 30 April,
at IX, pages 64-65-to a passage there which was previously quoted to
the Court by us on IO June at IX, page 566. Here tlicre wns an even more
simplified method of rendering their contention. The reference was to
group simfiliciter, not even with reference to the questio~iof race or class
in that particular formulation.
The Applicants were there acceding to a formulation by us in the
Reply, of what we conceive to be the effect of their norm or contention
asit had already been stated in their Reply and dealt with by us in our
Rejoinder, and the Court will recall that atIX, page 64 of that recordof
30 April, the Appiicants said:
"For the purpose of interpretation and application, the following
passage in the same volunie of the Ixejoinder removcs any vestige
of duubt that Rcspondent clearly understands the basis of the
AppIicants' case."
And in this passage then, cittid from the Rejoindcr, there cornes this
sentence which 1 have previously quoted for anothcr purpose, but which
1should like to read now for tliis purpose:
"If indeed Article 2 of the ?ifandate must be read as containing
an absolute prohibition on 'the allotment, by governmental policy
and action, of rights and l~urdens 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. 64-6j.)
That is the end of tlie quotation which, the Applicants say, removes any
vesti~e of doubt that Remondent clearlv understands tlie basis of the
~p~lkants' 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 cvidence of the witness, Professor van den Haag, and here the Ap-
plicants said this:
"If this or any other witness is competent to testify with respect
to the practice of States, citing the officia1 Iaws and regulations
which, in his viclv, 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), 1 should think that it woiild be
perfectly easy for learned Sounsel to explain ..." (X, p.139.)
So, very clearly, &Ir. Presiclent, if the evidence about practice of
States could relate to practicc of officjal laws wicl regulations which4x0 SOUTH WEST AFRICA
conçtitute discrimination or separation by reason of a group, without
regard to individual merit or capacity, then 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 syrnpathy with the Applicants because they
said that before knowiiig esactly what the evidence of practice of States
was going to produce. Uy wav of contrast we can refer to what they
now Say about it in Tuesday's record, page 353, supra:
"Professor Possony expressed opinions with regard to practices
and he gave evidence concerning certain lawç and constitutions
of States. Norieof 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 tiasis upon which Respondent led its witnesses, and
asserted to be the sole question to which their evidence was directed
or relevant."
Mr. President, 1 can hardly imagine evidence more directly concerned
with, and 1 shoulii say directly anchored to, the Applicants' own for-
mulation, which 1 have read out to the Court, as to what evidence of
practice of States would really bemeeting their case in regard to the
standards and the norm.
NOW, Mr. President, to return to this present attempt at narrowing
down the issue to raciad liscrimination. 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 easiIy demonstrated
while they kept it so wide-while they retained that vague formula of
group or class or race. Some of the estremc consequences would fa11
away, 1 suppose, or would not be so easy to demonstratc-ço readily
demonstrable-whcn they cut out the others and they corne down to
race alone; for instance, what they spoke ofas the parody of their case,
the separate conveniences for men and wornen.
In addition, of course, &Ir.President, vcry little emotional impact is
roduced by such formula as group, class or race. If one wants real
gandwagon efîectr it is rnuch more to the point to speak of racial &s-
crimination. So it scerns to us that it was ayyarently 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
themelves cal1 their major premise and which reads as follows in the
verbatim record at page 355,supra:
"... international standards areaccepted according to which racial
discrimination is inherentlv and alwavs incorn~atibie with moral
weil-beingand socialprogréss".
Their case is now no longer the one as defined at page 493, IV, ofthe
Reply. It is now one against "racial discrimination". As 1 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' submissions. Ko attempt was made even to show the
relationship of this concept of which thev are now speaking-racial
discrimination-to show that relationship &th the wide words used in COMMENTBY MR. DE VILLIERS 411
the alleged documents relied upon as sources for the norm and/or stan-
dards, some of which documents were quoted abave, where these docu-
ments speak of race, class, group,religion and so forth.
Nevertheless, Mr. President, despite their cornplete failure to attach
any legal rneaning 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 befort: tt:a on Tuesday. Why is that? In Our
submission the i~npression is unmistakable that the Applicants have
now abandoned al1 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 allotrnents which mould not be
iegitimate. They have given up a11attempts at a clear legal, logical
definition of that criterior distinction.Instead they have now resorted
to undefined expressions, more prevalent on political platforms than
before courts of Iaw. LVe submit, Rlr. President, that this Court will
have no difficulty about recognizing this manŒuvre and about knowing
how to deal with it.
The reason for the Applicarits' disenchantment with the content of
their norm ancl standards as previously explainecl and as previously
formulated, is of course obvious. Tt is obvious afterthe Respondent's
evidence and thc Respondent's dernonstration of what happened in the
various international bodies, that no nom or standard of the content
relied upon bqr the Applicantc; could possibly exist. The only wsy in
which the Applicants could rneet the impact of the Respondent's case
as presented in the cvidence and in argument was to deny its relevance
and in that way they have iniplicitly conceded, in our submission, in
the most effective way possible, that if our case was indeed reIevant,
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 prt:sented and which they esplained to us.
'They could not go further ancl they could not define what their case
really mas. They were consequently left with onIy one weapon and
that %vasan appc~~lto the emotions.
In view of what 1 have saitf, it is hardly necessary to add thatthe
Respondent's witnesses did indeed 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
arnong racial groups, it may be apposite to remind the Court that
although no evidence of the Kespondent was specifically directed tu
such a narrowly defined issue. the evidence and the argument tvhich
was presented to the Court iiideed covered this aspect. 1 could give
esamples from tlie evidence of Professor Possony which very clearly
show that his evidence about the practice of States, and also about
what is desirable and what inay be desirable for well-being and so
forth in certain çircumstances, iç qposite whether one speaks of differ-
entiation, discrimination, distinctions on the basis of group, race or
class in the wide way, or even when one rnerely narrows it down to
racial groups. Of course, one has difficulty when one deals with an
undefined concept especially this vague one aboyt race. l'hat exactly
is meant by race? There are so many classifications. Are tve speaking
only of the so-called "grand" races-the three sometimes referred to:
the Caucasoid, the MongoIoid and the Negroid-or are we spenking412 SOUTH WEST AFRlCA
more generally of other classifications that have come about or of various
ethnic grou s that exist al1 over the world. The Applicants ha\ye not
esplained t at tu ils.
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 of State showing such differentiatiand necessarily
involving the fact that there ~iiustbe this type of artificial or short-term
or imrnediate detrirnent ta the individualsinvolved that the Applicants
spoke of.
There are particular provisions in India with regard to the Anglo-
Indian community. We find that at XI, page667.There is the differeniia-
tions between Kegroes and Llrhites in Liberia which we find at XI,
page 681. There is the position of the aboriginal races in Australia,
found in the çame record, on page 684. There are the differeiitial laws
regarding the Maoris in New Zealand, also at XI, page 684. There are the
separate systems for Indians in Venezuela-same record, sarne pa e.
There are the special provisions for Indians in America, at XI,page 6ij.
There is the situation in17 states of the United States of Arnerica which
still proliibit marriages between Negroes and Ji'hites-XI, page 695.
If we do not confine ourselves strictly to these "grand" races, if we
take into account also ethnic differentiations and so forth, there is the
very well-known, i~ften quoted, example of the differential measures in
Cyprus, as between Greekç and Turks. Professor Possony referred to
this at XI, pages 667-668.
These are only examples. If this emphasis had come enrlier we could
also have placed more emphasis, in our searches for evidence, on practices
of States and on the proceedings in the international bodies in concen-
trating upon this aspect, which is now presented as being the gravamen
of the Applicants' case, but indeed, &Ir. President,what we halle done,
1 çubmit, is really enough in that respect.
Also, Mr. Presitlent, our evidence in regard to South West Africa
itself stands uncontradictecl, including the evidence that it is often
necessary to distinguish, on the basis of tnembership in ai1 ethnic or
racial group, for the benefit of the whole comrnunity. It is necessary
to distinguish between the various non-White groups inter se, for the
reasons that have been given. It is necessary also to distiriguish betivcen
the White group, particiilarly in its own homeland, ancl the various
non-White groups; but not only in itçown 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, al1 this cvidence clearly goes tu show that even
if the Applicants' caseis 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 1leave thjs aspect of analj~sisof the contentof the norm
and the standards, may we just test the matter in another way, by
way of illustrationIt involves, perhaps, saying çome things that 1 have
said already in another way, but 1 think it affords a rather graphic
illustrationof what we are talking about. What would the Respondent
be required to do if the Court were to giant an order simply in terms
of Submissions Nos. 3 and 4? hfr. President, as those submissions are COMMENT BY MR. DE VILLIERS 413
worded, witli rclerence to the definitions incorporated in them by refer-
cncc and thc official explanations, then obviously an orclcr in terms
of those submissions would require the Respondent to rcpeal or abolish
al1 measures or practices which clo iiot comply uith the formulations
set out in'those subrnissions and in those definitions, particularly the
one at page 493, IV, of the Keply.
This wouid mean, in effect, that the Respondent would have to repeal
al1 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. Iftlie Court were to make such a declaration, which
is urhat the Applicants asked for in those submissions, it would mean
that the Kespotident would have to repeal al! its nreasures ~vhich have
as their objectthc protection of the incligenous groups, including those
measures which, the Applicants apparently now Say, are tiot objection-
able-such as the rneasures to reserve the lands of the Natives, the
measures to control the movements of Natives in certain circumçtances,
particularly into iirban areas, andthemeasures directed at the protection
and develoymcnt of the traditional institutions of the Native peoples.
I have referred br:fore to the passage in the record at page 350, supra,
where the Ap licnnts appnrently inciicated that these measures would
not be in condict with their case.
And, Mr. President, if the Courtisnot now asked to make a declaration
on the basis of the submissions as they stand and as tliey are worded,
what is the nature and the compas5 of the declaration which is sought
to be obtained? 1s 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, &,Ir.President, so that the Court inust then in
the end compile its own list or catalogue, what criteria is the Court
to apply? Must tht: Court seek to dctermine lvhether a particular measure
brings about an actual or a potcntial diçability for certain individuals,
and if that should be the critcrion, must the Court havc regard only
to immcdiate effects. or should it havc regard also to the fact. if that
js so,that in the long run, or over-ail, even the individual who sufiers
this immediate or ostensible hardship will be substantially benefited by
the measure. or by the whole system of lvhich the measure forrns a
necessarjrpart? hlust the Court entirely disregard the over-al1 advan-
tages of a measure for the group as a \rPhole,or must it weigh those
advantages agsinst disadvantages suffered by a few individuals?
The question then further asises, Mr. President, as to how the Court
is to ayply any of these criteria to certain types of mcasures which
have formed tlie subject of cliscussion in those proceeciings, and in
regard to which we now really do not know where we stand at ailas
far as the AppIicants' case is concerned. Let us take the measures
which provide for se arate educational facilities for the different groups,
having regard to t!e evidence, the uncontested evidencc which the
Court has heard, about the basic iniportance of mother-tongue education,
about the gcneral differences in levels of development of the children
at the pre-çchool stage when they come to school, and so forth. Where
does that stand? How does the Court determine now ~vhether that is
to be interdicted or declared against, or lvhether it is to be declared a
permissible form of differentia.tio~~?Does the Court determine that on
any criteria, or does the Registrar write a letter to the Applicants and414 SOUTH WEST AFRICA
ask them-do you want this incIuded or do you not want it included?
Mr. Presidcnt, the same question arises about rneasures such as those
which protect opportunitieç of commercial development for indigenous
peopleç in their own area. where they get the prefereiit opportunities
-where those are specially protected for them. Are those to be declared
contrary to the Mandate, or are thep to be declared permissible? How
about measures protecting administrative pasts for Satives and other
indigenous eoples in their own area-positions such as teachers, police-
men. schoorinspectors and so forth. agrieultural officials, administrative
officials, al1 these; how about measures for separate residential facilities
for various groups, wherc the groups indicate that they want those-
tliat that is the wap in which they prefer to live and in which they wish
to live?
These are only esamples, %Ir.President, of the problems which would
necessarily arise in this regard. The' are in fact so multiples as to
render the task of the Court an impossible one, and this is the more
so when we take into account that in vie*, of the form of the submissions,
and the Applicants' definitions and declarations regarding the nature
of their case, that becausc of that, an investigation of the problems
which would present themselves to the Court in this rnatter, and the
presentation of factual material which wouId be relevant and necessary
for the Court if it were to attempt to embark upon such a task, have
not taken place.
That. then, hlr. 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 1 should hst like to deal.
The first is this subject of the admissions made by the Applicants.
On Tucsday, in the record, at page 357, supra, the AppIicants said on
this subject:
"The Respondent'ç contention concerriing the aIleged legal effect
of the Applicünts' so-called 'admissions' 1s.in the Applicants' sub-
mission, wlthout merit and should be rejected."
3fr. President, Iet us trace very briefiy the course and the history
which was taken by what is now cded by the Applicants "the Appli-
cants' so-called admissions". The Court will recall that in our Counter-
Memorial, II, atpage 5,we said the foIlowing:
"9. It will be noted that in many instances Respondent does
not quote any publislied 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 arnplified or explained, Respondent
\crould ivillingly make the necessary evidence available during the
oral proceedings ."
Now, hlr. President, many of these statements of fact referred to
in this passage which 1 have just quoted, and many other statements
of fact,were not specifically ridmitted or dcnicd or otherwise dealt ïvith
bp the Applicants in thc Reply.
And then came our Rejoinder, which was the last of the pleadings, COMMENT BY MR. DE VILLIERS 415
and in that Rcjoinder further facts were 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 occiirrcd. Ail the factual allegations which had becn made by
the Applicants irithe Mernorials and the Reply had been specifically
dealt with by the Respondent in its pleadings, each and every one of
those, systematically. But we were faced with the difficiilty-and the
difficulty applied to the Court as at that stage-thatherc the Respondent
intended to cal1 izvidence, vivu voce, to be directed to what rnight be
issues between the Parties but, as yet, we did not know esactly what
the total scope or ambit of those issues would be, for these reasons.
And the question then arose when we had to compIy with the Rules
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-1 shall not disclose nny cietails about
discussions-but it will be known that because of this problem there
were certain pre-trial discussions between the Preaident and the repre-
sentatives of the Parties, and these led then to an understanding which
u-as espressed by the Applicants' representative, on the arery çccond
day of these proctiedings, aVIII, pages 115-116, which reads as follo~vs:
"Without conceding the relevance of facts containcd in Respon-
dent's pleadings, including the oral proceedings, the facts-as dis-
tinct from inferences which may be drawn therefrom-are not
contested by the Applicants except as otherivise indicated, specifi-
cally or by implication, in the Applicants' written pleadings or
in the oralproceedings."
That, then, was the staternent as made esplicitly as of that date-in
other words, al1 those facts "esccpt as othenvise indicated specifically
or bjr implication, [either] in the Applicants' . . . pleadings or in the
Oral Proceedings".
Those were then two methods by wliich the Applicants could indicate
that specific facts would fall out of the generality of this admission.
Those rvould be excluded then.
But, >Ir. President, mhen we came to the debate on the proposa1
for an inspection the rnatter came to a new stage, ancl the Court will
recall that the Applicants then went further and Iurther in order to
eIiminate any factual dispute betwleen the Parties, whether by way of
oral testimony or by way of an inspection. And, so, they said in this
respect on 27 April, at IX, page 21:
"The Applicants have advised Kespondent as well as this honour-
able Court that al1 and anp averments of fact in Responclent's
Written Pleadings will be and are accepted as true. unless specifi-
cally denied. .4nd the Applicants have not found it necessary and
do not find it necessary to controvert any such averments of fact.
Wence, for the purposes of these proceedings, such averments of
fact, although made by Respondent in a copious and unusually
volurninous record, may be treated as if incorporated by reference
into the Applicants' pIeadings."
So, Mr. President, now we go a stage further. This previous qualifica-
tion, which had existed about denials or indications ta the contrary in
the Applicants' pleadings, has now fallen away. On the contrary, what-
ever the Responclent had said in its pleadings is now taken, not onlp41~ SOUTH WEST AFRICA
as being admitted as true, but "as if incorporated bp reference into
the Applicants' pleadings", unless there should be an indication to the
contrary in the Oral Proceedings. -4nd the Applicants stress here, in
this very passage, that they "have not found it necessary and do not
find it necessarytci controvert any such avcrments of fact".
Sirnilarly, blr. President, in the next record, aIX, page 43, the Ap-
pIicants refer to their pleadingsin which now al1 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
rnilitarization and annesation, and they referred to "the facts .. . as
disputed by Kespondent and as subsequently accepted by the Applicants
for purposes of these proceedings" (IX, p. 235)-a very clear, a veryfair
description of exactly what itmeant'bcfore.
This clear and cornrnon understanding between the Parties, Mr. Presi-
dent, as to what had been admitted, remained unchanged eïren on
8 October. On that date, with the presentation of the evidence of &Ir.
Dahlmann, my learned friend, Rlr. hluller, referred to letters by peti-
tioners quoted in Book VI11of the Counter-Mernorial, IV,as "documents
which have been adrnitted bp the Applicants". That is atXI, page 459.
He also referred to them as "letters wliich are before the Court and
have been admitted". That is atpage $31 of the same record.
Although my learned friend, Mr. Gross, made frequent objections
about the evidence and aspects of the evidence, he at no stage disputed
that he had indeed admitted these letters. Indeed, Blr. President, at
page 468of that record there occurs a passage ivhere my learned friend,
Mr. Gross, could not find the relevant passage in the Counter-hlemorial.
and there was then a discussion between the President, Mr. Muller and
Mr. Gross, which concluded as follows:
"Mr. I~~ULLE R :e witness is quoting frornthe letter itself.
Mr. GROSSA : nd that is in evidence, is it Mr. President?
Mr. ~IULLER The whole letter has been handed in and the whole
letter has been admitted.
Ur. GHOSS :hank you, Sir."
So, even at that stage, Mr. President, the Applicants accepted com-
pletcly that theyhad aclmitted al1the facts in the Respondent's pleadings,
sometliing which rine coulci hardly imagine they would evcr deny, as
they apparentlp now appear to do.
Kow, after the conclusion of our prescntation,the Applicants refer to
their "so-called admissions". And it is interesting to note how tliey at-
ternpt, hlr. President, with the greatest respect,to slither out of this
situation which they now reslize has very dangerous implications for
them. Tfiey 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 are undisputed". And, they Say, this con-
tention has been maintained ever since, The Applicants Say, in this
record :
"1 refer to the misunderstanding, or the apparent misunderstand-
ing, of the 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 relcvant facts COMMENT BY MR. DE VILLIERS 417
concerning Applicants' Submissions 3 and 4 are undisputed'."
(SflPra, PP.354-3551
Mr. President, we never spcike about this passage in the Reply. \Ve
were talking about the later admissions jnthe Ord Proceedingç which
1 have just read out to the Court, against their background of coritext.
13ut, to that, the Applicants never rcfcrintheir comment. They refer to
this passage in tlie Reply, a Fiassage which was indeed concerned, not
with admissions made by the Applicants. but with admissions made by
the Respondent. Tliis appears very clearly from that passage inthe Reply
as a whole, at page 260, IV, and even more clearlÿ at the repetition in
somewhat differeiit words, at page 262, IV, I think I rnightread 110th.
"Notwithstanding the voluminous detail with which the Couiiter-
Alemorial is cncumbered, the tlecisively relevant facts concerning
Applicantç' Submissions :$and 4 are undisputed.
It is possible, nevertheless, that the central issue, viz., the charac-
ter and consequences of the policy of aparlheid, or 'separate develop-
ment' (in Rcspondent's presently preferred usage) may be lost to
sight in a haze of irrelevant psrticulars." (IV, p.260.)
Proceeding to page 262, IV, &Ir.President :
"The decisively relevant facts concerning Respondent's policies
and objectives, relied upon by Applicants in suliport of theirSub-
missions witli regard toArticle 2,paragraph 2, of the Mandntc, are
undisputed. The doctrine of (zparthsidor, inthe phrase of Rcspon-
dent's currently preferred usage, 'separate development' emerges
from Respondent's own forrniilations of that policy, as set out in
escerpts drawn belon- from the Counter-Alemorinl, passim, as wcil
as from public statements of Respondent's highest officials." (Ibid.,
pp. 262-263.)
Mr. Yresiclent, they could ha.rdly have made it clearer that they were
speaking here of facts relieduupoiiby theApplicants in support of their
submission, and thcy speak of those asbeing admitted and confirmed by
Respondent in these various sources of lvhich they speak.
It has always bcen the Applicants' contention thnt al1 relevant facts
for the purposes of their theory of the case-or their case as now pre-
sented-are aclinitted by the Respondent. That they have always said.
But that contention in no way bcars iipon the completely different ques-
tion, nameIy what facts did tiie Applicants admit? And the answer to
that question is: they admitted esplicitly al1 the facts in the Rcspon-
dent's voluminous pleadings. They made one esception only, the one
to ithich 1 refcrred some days ago concerning the representative capa-
city in which they appear in this Court and political motivation of the
campaign of the group of States on whose behalf they appear. That was
the only one that 1could recall and that we could find.That was isolated
for purposes of a denial.
111their comncnt on the evidence, Mr. Presidcnt, thc tlpplicants now
quote only their contentions rcgarding admission by Kespondent of the
facts relevant to the Applicarits' case, in purportcd substantiation of
a contention that the Applicaiits have only admitted such of the Ke-
spondent's averments as the Applicants regard a. relevant. That is the
way in which they now put it. They nom suggest a11they have adrnitted
are those facts which they regard as relevant and nothing else. They
state that i~ithis form at pagc 357, sttpya:418 SOUTH WEST AFRICA
"A so-called 'admission of irrelevant facts' is a contradiction in
terms. If averments of fact are contended bya party to be irrelevant,
the question of admission or denia1 does not arise asa Iegal propo-
sition."
Mr. President, reatly, words almost fail one in having to reply to çuch
a contention. Of course, if a court were to hold that the particular fact
iç irrelevant, theri 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 contends to be irrelevant.
Indeed, >Ir. 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 adrnitted.
Rlr. Presidenta party is often much more ready to admit tacts 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 Applicantç çtated
specificalljr as the reason why they had admitted the Respondent 'sfacts,
or denials of facts, that the Applicants regarded those staternents or
denials as irrelevant. They gave that as the very rcason why they admit-
ted the facts. That appears in the record, atIX, page 21:
"ALI facts set forth in this record, which upon the AppIicants'
theoryof thecaseare relevant to itscontcntionsof law, areundisputed.
There have been certain imrnaterial, in our submission, allegations
of facts. data or other materials 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 adrnitted by Respondent
and they pretend that these passages define what ivas admitted by the
Applicantç. This, in Our submission, with the greatest respect, waç not
only dishoneçt, it was also absurd. It would mean that the Applicants
only admitted fact:s 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 factç 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 .4pplicants
mentioned in their comment, and that was in regard to oiir contention
that the views of alleged authorities, read ai some length into the record
by the Applicants to witnesses under cross-exsrnination, did not per se
become evidence. The Court will remember that 1 dealt with that point
in the verbatim record of r Kovember, at page 220, sztpa.
This is the way in which the Applicants referred to this argument on
g November, at pages 357-35 9upra-they deal with it over those pages
-and on page 358,supra, they say that Our argument-
".. . 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 ivith views of recognized scholarIy
authority with which they may be confronted ...". COMMENTBY MR. DE VILLIERS 49
Of course, Mr. President, that imputes to us a contention that Ive never
advanced. \ire never suggested that it was not permissible for Applicants
or ior anybody cross-examining a witness or an expert to put views of
others to the witness or the expert inorder to test his credibility or pos-
sible bias. That, of course, is almrayspermissible, and we never suggested
anythitig to the contrary. WCmerely said that those views, read at such
extraordinary length in this case to those witnesses, oftcn not followed
up by a question that dealt mith 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 vieurs. Obviously
ifan expert agrees with a view of sornebody else which is put to hirn
in cross-examination, then that vicw does become evidence, not
because it has been expressed by soniebody else, but because this
man who is now standing in the box makes it evidence by agreeing
with it and, therefore, indicating that that is aIso his own view. But if
the expert disagrees with the view put to hirn, then such a view does
obviously not become evidence in the sense that there are now two con-
flicting views on record which must be weighed by the Court-the other
one is notn view to be wcighed at all; the only relevance of the opera-
tion is to see whether the expert agrees or not ifhe does not agree, there
may be features in the way in which he answers, in his demeanour, or in
other circumstances which m:iy afford the Court some 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 iheferred to ". ..the views of recognized
authorities read by the Applicants to Respondent's experts . .."-we
find that in the verbatim rccord, of gNovember 1965,at page 358, su@a.
And in speaking of alleged bias on the part of Professor van den Haag the
Applicants also said that he questioned the motives of ". ..some of his
most highly respected contemporaries in the same field". (Ibid.)
Now, hlr. President, the experts which we called had to qualify as
experts, but it seems that the authors and otherç to whom the Applicants
refer in cross-examination become experts or recognized authoritics
merely by reason of the fact that the Applicants happen to cite their
views. or because the Applicaiits attribute that quality to them. Some
of them may well be experts or "highly respected contemporaries" ina
particular fieldbut, Mr. President, that is not something which Ive know
on the record as it stands. Isufficesto say that the Respondent does not
concede that al1the persons whose views were put by the Applicants to
the Respondent's witnesses, are indeed experts or recognized authori-
. ties.
The Applicants in this respi:ct also relied on cases which were cited
in the 1964 supplement to Wigmore on Evidence, Volume VI, pages
9-10. They reliedon those for the proposition that there is anincreasing
tendency on the part of some municipal courts ".. . to enlarge or to
expand previous practice, so as to permit the procedures followed by the
-4ppIicants in cross-examination of the experts presented in these pro-
ceedings . . ."-that is in thc same record, atpage 359, supra.
Kow, Mr. President, we have looked atthese 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 perçons-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 rnerely show that the present
trcnd in the Uwited States, although by no means in al1the states, is to
relax this rigid tendency by allowing such a procediire for the purpose
of attacking the witness' credibility or shoming possible bias. 13ut the
cases, itiç interesting to note, cited at pageII of the supplement make
it clear that, even for this lirnited purpose, the procedure is impermis-
sible unless the authoritativenessof the view put to the espert is recog-
nized by him or ha3 been established by otlier direct cvidence.
&Ir. President, 1may 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 show11to be entirely without substance. For instance, the
Applicants attacked Professor van den Haag as having sholvn biaç-
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 insome 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 espcrimentation or clinical work witti one exceptioii-tliat
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 expected of him, and his condemnation of him was some-
what harsh, as one might perhaps understand but it certainly did not
display any bias ac far as the subject-niatter before the Court waç con-
cerned.
Equaiiy, 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 Applicaiits Say in the record, at pag350, supra, that
as they sought to bring out in cross-esamination of this witness-
". .. the relevance, weight and credibility of al1 opinions elicited
by the Resyondent from Professor Possony as an espert al1hinged
upon an understanding of the witness concerning the true nature,
content and scope of the Applicants' legaltheory of its case".
"Ïhe Applicants then proceeded to attempt to make two points. The
firstwas, and 1 qtiote from the same page:
". .. the witness found it necessary to seek to validate and make
relevant [to] hiç testimony by nieans of a legal argument of his
own concerning the legal basis of the Applicants' case".
Mr. Preçident, the Court will recall of course that that isnot a correct
version of what transpired iiiCourt.
During the evidence-in-chief of Professor Possony he was questioned
by rnylearned friend, >Ir.BIuIler,as to ~vhethea norm çuch as contendcd
for by the Applicants was observed in the usage and practice of States.
And then came your suggestion, Mr. President, that the definitioii of the
norm, aç set out atpage 493, IV, of the Reply, should be read to Profes-
çor Possony, and that was done-that was the verbatim record, at XI,
page 662.
After that had been done, Professor Possony then ançwered that
". .. there is no such norm". That is at the same page. COMMENT BY LIR.DE VILLIERS 42I
During cross-esamination on 20 October, my learned friend, &Ir . ross,
repentcdly put questions regsrding this witness's understanding of the
definition at page 493, IV-this you will fiiid at page3-5, 7, 8 and Ir,
szifira. And this\vas 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, stipra.
There was no question of the witness seeking to validate and to innke
relevant his testiinony by means of a legal argument ofhis own coricern-
ing the legal basis of the Applicants' case.
[Pztblic hearing O/ij iVovember 19651
Mr. President, al the adjournment on Friday 1 wns dealing with
certain criticism which had been offered in regard to the evidence of sorne
of our witnesses and experts by my learned friend, kIr. Gross, in his
comment on behalf of the Applicants. IVith regard to Professor Yossony
the first suggestion was that hiç evidence as to the practice of States had
procrecled upon n wrong or improper interpretation of the norm or
standards relied upon by the Applicants. i.Ve have siiown, with sub-
mission, that that suggestion was without substance.
The other suggested point of criticism one found iit the verbatim
record at page 3 j~, su@. There the Applicants Say that Professor
Possony referred to the Draft Convention on the Eliminrition of al1forms
of Racial Discrimination, and they then procccd:
"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 ~lth the spirit of the Charter' (sufiru,
p.38). Such a view-if it is indeed a fair renderiiig of his testimony
as it seems t.0be-would, in the Applicants' submission, go fnr to
diminish or dismiss the credibility and weight of his testimony as an
espert in regard to international standards relating to racial dis-
crimination, as weII as to the sources from which those standards
are derived and of which they are comprised."
Mr. President, this rendering of what Professor Possony said isin fact
exactly the opposite of what lie said, and how this could possibly be
suggested as appearing to be a fair rendering of his testimony 1 do not,
with respect, understand. \Vliat Professor Possony said is to be found at
page 38,su+ra:
"But then when wego tothe declaration or the convention against
racial discrimination, then specifically the allegation would be that
those foms of-1 am using the term here as used in the declaration-
discrimination which are based on, or reflect, or aimat racial hatred,
racial superiority or generally speaking, involve oppression and
genocide, those foms of tlistinguishing-if that be the nrord-are
absolutely out of line witl-i the spirit of the Charter.do not think
there isany clueçtion about that."
So, what is said to be out of line with the spirit othe Charter is not this
Draft Convention, but those very things which are condemned in the
Convention, and it is really incredible,in my subrnission, how simple and
clear Ianguage could be so badly misrcpresented, and then used as a422 SOUTH WEST AFRICA
basis for suggested discrediting of a witness. We submit that Professor
Possony in his evidence makes it clear that in his opinion the object of
the Draft Convention and the Draft Convention itself were entirely in
he with the Chai-ter, and that this whole forrn 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 nom andlor 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. We have shown that the Appli-
cants' complaint is now restricted to: "The impact of Respondent's
raciaiiy discriminatory policy upon individuals in particular circum-
stances, and through particular measures . . ." That we find at page 360,
supra. 1 have now brought in those words which 1 left 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 onc or on the other, or on both. The one is
the elernent of so-caIled 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 1 already largely dealt on Friday, and what 1 need
now Say about it need not repeat the wvhole of that analysis; jtismerely
offered very brieffyby way of recapitulation. As we have noted, this is a
very strange fom of complaint. The Applicants are not concerned with
the over-al1 effectof the policy as a whole upon particular individuals,
nor are they concerned with the effect of particular measures upon the
over-al1 well-being of everybody. They are only, in their own words,
"concerned with the effect of the policp through particular rneasures upon
individuab in particular circumstances". Now, this form of complaint as
we have analysed it before is, in Our submission, cornpletely alien to the
Alandate. Article 21 of the Covenant refers to: ". . . the principle that the
well-being and development of .,, peoples form a sacred trust of civiliza-
tion . .."(1,p. zoo.) The word "peoples" in this context clearly does not
rnean, as the Applicants Sayin the RepIy IV, at page 275, "the individual
inhabitants compriçing the pofl~dafion". It clearly means national or
ethnic groups.
Itcould never have been the intention of the mandate system that a
mandatory would be required to jeopardize or to disregard the interests
of the preponderailt number of the inhabitants merely for the sake of
preventing harrn to a few individuals. This conclusion follows not only
from the wording of Article 22 of the Covenant, it follows also from the
crucial provision in Article 2,parapph z, of the fifandate giving effect
to the sacred trust principle which requires the mandatory to promote
the well-being anil the progress of the inhabitants of the Territory,
without exception. In other words, the inhabitants as a whole wvereto be
Iooked upon asthe persons to be benefited by this sacred trust, and again,
it would have been a strange concept to suggest that the mandatory was
to disregard the over-al1benefit of the large majority-the preponderant COMMENT BY hlR. DE VILLIERS 423
number-of the population, merely for the sake of preventing harm to a
few individuals.
That, then, is as far as the intent of the mandate system is concerned.
But, Jlr. President, in Oursubmission, such a canon of government is
also entirely unk~iownin the practice of States 3s 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 andlor
standards. Even on the record, incomplete as it is, with a view to invcs-
tigntjng a suggestion ofthjs kj~id,it is clear as we have shown, that there
are in actual practice many recognized distinctions between groups,
racialor otherwise, which necessarily involve some detriment to indi-
viduals. It is indeed unthinkable that there could be any rule which
would result in a measure being regarded as objectionable merely
because some iridividuals are hürmed in some way. without having
regard to the over-al1 effect01.piirpose of the lneasure or of the policy
of which the measure forms a part.
We 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, aosingle resolution
of an international body or assembly, ~vheresuch an artificial concept
has been designated as a basis for regarding a measure as impermissible.
There is indeect Iione whatsoever anywliere in the deliberations of the
bodies relied upon.
That then is asfar as the element of impact upon individuals is con-
cerned. In discussing that impact 1used the neutral word "distinctions"
between groups, racial and otherwise. And that brings us to the other
element, apparently now relieii upon by the Applicants in the present
formulation of their cornplaint of racial discrimination. We have already
pointed out that if this were jntended to mean unfair discrimination then
an enquiry into the accusation could not stop short at ostensible or
irnmcdiate or short-term effects of policies or rneasuresupon individuals.
Unfair discrimination rnay be directed against individuals or it may be
directed against groups, and the unfairness rnay lie in the motives of the
authority which discriminates, or it may lie in the reçults of the mcasure,
or it rnay lie in a combination of these.
Save then for the rather unlikely case where there rnay be direct
evidence of improper motive, any such enquiry would, in Oursubmission,
have to entai1 a full exarnination of al1the purposes and the effectof the
measure, before any reliable inferences could be drawn. In particular,
hir. President, the enquiry would have to include actual, long-term and
over-al1 effects of the measurit 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-al1 effect, and they speak oiily and exclusively of the
so-called fiese effectof the mesures upon individuals and not upon the
community asa ~vholeor upon the population as a wvhole.
It is therefore evident, Mr. President, 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 1 have referred-
indeed in one or other of the onIy senses in which one could speak of
unfair discriminati woheiher towards individuds or towards the whole424 SOUTH WEST AFRICA
of a particular population or a particular population group. They are not
speaking ofthat, qiiite apart frorn the fact thatit would not be cornpetent
for them to do so under the submissions as they stand. Consequently, we
find confirmation for the fact that racial discrimination, even as now
used by them, could at most mean distinctio~in the allotment of rights
and so forth, upon the basis of mernbershipin a racial groufi. 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 sphere ofallotment of rights and obligations.
And as we have shown, hIr. President, neither the practice of States,
nor the sources relied upon by the Applicants, support their contention
as to the existence of a norm or standards prohibiting such distinctions
fier se. But, 3lr. President, when we look at the whole of the Applicants'
comment of g and IO Novernber, we find that there is a strong suggestion
of a further element of artificiality which reduces this lvhole concept of
racial discrimination relied upon by the Applicants to an estrcme of
absurdity. 1 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 onlp as betwccn White and non-Imite persons, and then, also,
mly in one direction, nameiy when the distinguishing measure is setchlhat
itsimnaediate efecl is ta +ro&cf the iderests of White fiersons vis-à-vis
non-White fieïsons. That appears to bc the sense-the sole and exclusive
sense-in which the Applicantsspeak ofracialdiscrimination. Apparently,
only when a measrire cornes to fa11in this category then it is impermiç-
siblreacial discrimination, othenvise not.
When a distinguishing measure has an opPosite immediate effect,
protecting the interests of non-White pcrsons vis-à-vis White persons, or
when it is concerned with members of non-White 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 1
could mention to the Court some of the factors which would appear to
indicate very strorigly tliat this would seem to be what the Applicants
are suggesting.The first factor is that the Applicants nowhere complain
of diffcrcntiation clf the last kinds th1thave mentioned, in favour of
non-Imite perçons vis-&-vis Imite persons, or as amongst non-ihite
perçons interse. They nowhere complain of that form of distinction, of
which there is plenty in South \lrest Africa, as constituting racial dis-
crimination. They specifically mention some forms of that kind of dif-
ferentiation as beiiig permissible, in their contemplatio1.have rcferred
the Coiirt to what they said in the record apage 350, supra, where they
referred to the reservation of Native land rightsto the control of move-
ment, particularly influx into citiesand to the protection and develop-
ment of traditional institutions,whcre they refer to al1those apparently
as being permissible.
They seern to suggest, >Ir. President, that measures of that kind are
to be seen in generalas being in the nature O£firotection, and therefore as
being permissible. They speak in that vein not only in regard to, South
West Africa-we find that at page 350, sup~a-but they speak in that
vein also, in general, of the practice of States, at p352-353 srtpfa.And
then, in contrast to this, we frnd passages such as the following, which1 COMMEXT BY SIR. DE VILLIERS 425
quote by way of example (this is in the same record, at page 350, supra):
"Professor Logan madc: no mention at al1of Iaws and regulations
or of Respondent's officia1inethodç and measures for effectuating
such laws, which impose limitations upon economic advancement
on a racial basis, or totallp deny franchise on a racial basis, or place
obstacles on a purely racial basis in the way of achievement of
engineering, scientific or prafessional skills, or preclude ona 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, Mr. President, whcrc there is an exclusion of measures
not regarded as discrimination, biit 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, namely when the measure operatesinfavour ofanon-IVhite it is
in order; where it operates in favour of \\'hites iisracial discrimination.
At pages 352-353 s,pra, by way of contrast to speaking of protective
measures in the practice of States, we find this passage:
". .. Rcspondent neither tlirough Professor van den Haag, nor
through aily other witness, ofîered 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
contest".
And again at page 353, st@ra, ive find thjs passage:
". .. constitutional practice in the United States, asin most other
civilized countries, interdicted officia1racial discrimination".
Now, AIr. President, in regard to both of these passages, we did point
to a number of instances where distirictions were drawn between groups
which on any clrissification canbecalled "racial groups" ;but apparently
those are ignored because the?; da not constitute this pecuIiar concept of
racial discrimination lvhich operates only when the short-term or imrne-
diate effect ïvould appear to he to favour Europeans or to protect the
European interests vis-à-vis non-\Vhite interests.
Ifwe take the case of constitutional practice in the United States as a
ready esample, we cited the esample in evidence and in argument of the
protection of the rights of the Indinnç in their Xcservations, but ap-
parently itis said that that constitutional practice does not constitute
officia1racial discriminat'ion.
In general, Mr. President, ure find that, in discussing the evidence on
South West Africa, the Appticants concentrated entirely on aspects of
this LVhite/non-\Vhite relationship, and then in oiie sector only, narnely
the White sector, to the exclusion of anpthing else. The laws and so
forth urhich were designed to protect interests of the White group in this
sector-those alone, came under fire as "racial discrimination" and as
"the eçsentially racist perspective which uniquely marks apartheid".
Thase were the vtords used in the record at page 360,sztpua.
So can it rcallybe, Mr. President, that the AppIicants, :ilthou& not
saying so explicitly, are by suggestioii advancing this (suggested) norm or
(such suggestd) standards to thisCourt? If that should be so,al1 I need
Say is that there is no support whatsoever for such an artificial concept,426 SODTH WEST AFRICA
either from the sources relied upon by the Applicants for their norm or
standards, or from the practice 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 wvould EXpear to have suggested that it might be permissible
ta discriminate or strnguish in favour of non-White groups but not in
favour of White groups, but nobody, Mr. President, has ever come
fonvard at any international gathering, or on any occasion that 1 am
aware of. to suggest or propose seriously that such a norrn 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 ~vhatsoever upon which the Applicants could possibly
rely for such an artificial concept.
-4nd 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 toconform to such a suggested norm or
a standard. Particularly, Mr. Preçident, if we look at the situation of
States with populations which are either exclusively or overwhelmingly
European or White. one finds no relevant practice there upon which my
learned friends could rely, because,and forthe simple reason, that the
problem of a \Vhite group which may need protection vis-à-vis non-Ilihite
grolips orperçons, does not arise in such countries. That isso in general
if we look at the situation al1over Europe, in Northern America, the
United States, Canada, in the case of Australia, New Zealand and so
forth-the situation is as 1 have described it for one of two reasons:
either because non-White persons do not offer themselves in large
numbers as immigrants in çuch countries, or bccause the number of
potential non-\hite immigrants is limited in such countries, either by
immigration laws or by stringent requirements about standards of civi-
lization before they are admitted as citizens or the like. That is the
situation in ailthese 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 thaa White group may
be in need of protection aç a group against possible genocide. upon
possible flooding of its standards by non-Ilihite groups in its vicinity.
it could be said that it must necessarilÿ be impermissible racial dis-
crimination if any measures of protection are offered to that White
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 operates 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
regime certainly showed, hlr. President, that protection is not necessarily
required only by an under-developed or a less developed group, but that
there are circumstances where the rninority group inneed of protection
may well be a groiip 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 factç before the Court with regard to
South !est Africa, the situation in South West Africa is exactly that
both the most advanced groups in the Territory and the lest advanced
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
estensively in the record and in the pleadingç. 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, hlr. President, be a very strange nom, or very
strange standard, which ordained that such protection is to be regarded
psr se as impei-missibleracial discrimination.
It is because of fundarnental errors in perspective that one finds that
the Applicants' comment on detailed aspects of the cvidence also Ieads
absurd and completely in conflict with what hasbeen accepted and whaton,
has been established asincontrovertiblefact in this case. The fundarnental
error of perspective in the Applicantç' comment lies itheir disregardof
the basic aspects of the circurnstances of the Territory. We have been
over these several times and 1 need not go into any detail about them,
but for purposes of showing this warped perspective 1must refer to them
very briefly again.
There are a number of separate groups in South West Africa, largely
living in different regions of the Territory. The groups differ ividely
from one another. They maintain different institutions; they are at
different stagesof developmcnt ;they regard themselves as being differ-
ent from one another in important respects and they u-ish to retain
their separate identities. There are certain types of contact behveen
those groups which would leaclto friction and have done so in the pst,
in hjstory. In particular, it ha been established and it forms part of
the incontrovertible record of fact in this case that any attempt to
force these groups into a singlc 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, because of the con-
centration on that aspect in the Applicants' attack and in the attack
which lias been made upon Respondent's policies at the United Nations.
We demonstrated that they had a right to be there. We 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 i-emaining on in South
West Africa under circumstances where they feel that they could remain
on there and where they could still make the contribution which they
are making at this stage. Mre have demonstrated that such atternpted
integration would have these consequences, whether that attempt were
of an immediate or gradua1 nature.
Ive have demonstrated also, RIr. President, tliat in the case of the
other groups, self-determination on a bais of iiitegration of al1 these
into one cornrnunitÿ rnust necessnrily rnean the denial of self-determina-
tion for others. Ifone applies asimple majority conceptover the whole
of the Territory-if one ignores the facts of the different groups with
grou identities existing within the Territory-then one arrives at
resu t where the minority groups are denied the self-determination to
which they are entitled. Therefore, in these circurnstances, there is an
established need fora carefullychecked and balanced system ofprotected
Respondent's demonstrations on the pleadings,as beof which al1 the facts428 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 mas of material. Tt al1 stands unchallenged. Therefore,
if tliey had now conie along and said:we wish toattack certain measures
in Kespondent's policies because of the effect which they have upon
individual persons-then they should have taken these basic incontro-
vertible facts as thi:ir premise-as their point of departure.Thnt is the
only permissible basis upon which it could happen at this stage of the
proceedings. Then, of course, al1 that would have been open to thern,
would have been to say: the Respondent's yolicies in general, as regards
their general purport and their general direction, are perfectly permis-
sible (that is on the established facts the only course that one could
adopt in these circumstances). But we stjlISay that individual measures
within that system should not be there for this, thator the other reason,
(whatever criterion in law they want to propose as to why individual
rneasures should be declared impermissible). That, as a question of fact,
quite apart now irorn the way in which the issues have been defined
-that would really hüve been the only course now open to them. Hut
that is not what thi:y do. They offer comment which appears to proceed
from an assumption (which has never been established), that the con-
trary premise is ü 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 factorofthe importance of group personality.
Theydo Say, at pages 348-349, supra-reyeating something thcy 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 i:o the circumstances of this case is not apparent to
them.
Surely, Mr. President, in the light of the demonstration to which
1 have just referred-in the light of the need to have this carefully
checked and balanced system-how can tliey possibly Say that they
cannot see the importance or the reievance 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
ispossible and desirable. They rtoivhere go the whole Iiog with this and
try to analyse what would be the consecluences of it whcn applied al1
over South West Africa. They are concerned only with the aspect of
protection of the interests of the \IJhite cornmunity. This one aspect of
a whole total system of checks and balances is isolated frorn its contest
and is now Iooked upon in isolation, and al1 the measures which are
directed to the end of protectioof the interests of the IVhite community
whcre regarded as necessary, are branded and condemned as racial dis-
criminatio n.eir comment is directed only at demonstrating the sup-
posed plight of the non-White, particularly the Native who içnot taken
up in the White society or the White 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 inthe Territory.
When one sees this background, then of course it becomes perfectly
plain and understandable that the Applicnnts would disregard circum-
stances in the Territory as a livhole and that they would concentrate COMMENT BY MR. Dl: VILLIERS 429
only on the position of individua1 non-Wliite personç, particuIarlp Na-
tives within the Police Zone. This is indeed what they did, although
they sometimes pretended to do more, as 1 shall point out. But this
process of concentrnting witliin these narrow, isolated limits had of
course started during their cross-exmination of wvitnesses, when wit-
nesseswere discouraged from wandering beyond the limits of that portion
of thc Police Zone which was situated outside the Reserves and outside
Xative townships. It is in this context1 mny say at once, that a witness
like Mr. Cillie spoke of certain piffling suggested effects upon individuais
being blown up into somethi~ig bepond their importance-when taken
into account in the total perspective of the issuesreally at stake here
in regard to the weli-being and progress of al1 the peoples of South
iircst Africa. It is in that contest that JIr. Cillie used that language.
It is in that context that1 spoke-my learned friend says disparaginglp
-of lines of cross-esamination which concentrated on the situation of
the Natives who live, work and will die in the Police Zone. 1 did not
speak clisparaginçly of the siti~ation of the individual orofhis interests
or of his aspirations, or of llis circumstanceof lifeWhat 1 spokc about
!vas the lack of perspective in the argument which concentratcd on that
aspect of the situation and blew it up into something quite bejrond its
truc significance.
Against this background it will be understandable that the Applicants'
cornnient 011 the evideiice irrilack perspective. It rnust necessarily do
so, and it is hardly necessary, therefore, for us to go into miich detail
about this. 1 propose merely to illustrate tliis theme with reference to
certain aspects of the comrntznt. 1 shall not try to make my ünswer
exhaustive; it is not necessary for our purpose.
Let us begin with this aspect of the suggestion of the "eçsentially
racist perspective wliich uniquely marks apn~*lheid".ï'hat one finds on
page 360. supra. In making a suggestion of that kind the Applicants
dicl not attempt to weigh what evidence there is on record. which either
enables one to sap this, or does not enable onc to Say this-what evidence
there is which hears upon the questioii whether apartheid lias an essen-
tinlly racist perspectivc or notIf they hnd tried to have reg.~rdto what
evicicnce there was, thcy miist surely linve noticed the eviderlcc of
Dr. Eiselen at X, page 96 where he emphasized that in Southern Africa
we are dealing with a "niulti-community" probtem, and 1use-his words,
and "while these peoples 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 \vas clear that his remarks irere of general
application also to the problems in South \.\rcsAfrica. He emphasized
that the factor of race was not of concern and he explaincd whv that
was so-why race was not regarded as being of importance-tlie impor-
tant emphasis fell al1 the tirne upon the miilti-community problem-the
number of different groups, the number of different national ent~ties-
that were formecl, and their relationship with one another.
1 should like to refer the Court also to the Coiinter-3Iemorin1, where,
in the vicinityof page 468, II,and the pages which follow. we cite quite
extensiveljr from various addresses by tlie Prime XIinisterof SouthAfrica,
]Ir.Verwoerd, where he espounds the basic essentials of the policy of
separate development. MI- .resident, in every case one finds that the
emphasis falls on groz@, nntioiznllty-on the nced for recognizing the
different national cntities, arid on the difficuIties lvhich corne about430 SOUTH WEST AFRICA
when that isnot done. There axe these particular quotations at page
468, II,to which 1 would refer the Court:
"Difficultiesarise where the founders [that is ol new States in
Africa] try to throw together in one State more than one national
cornmunity. \Vhenever account has been taken of national entities
when creating new States, contentment has been the result."
In reverting to South Africa, the Prime hlinister 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 so in the case of Hlack nations in other parts of
Africa or as it is to throw together Xhosa,Basuto and Zulu without
conflictinto 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 \vil1 be possible but never
CO-operation between separate groups who desire to rernain sepa-
rate."
Tliat, Mr. President, is what one might cal1 the sociological aspect of
the matter, not tlit: racial aspect of the matter. That is what one finds
to be the basicemphasiç in the Respondent's policies.
The same emergt:s. Mr. President, frorn a factor of which mp learned
friend, iilr. Gross, made great play at various stages of his address to
the Court, and that is what he called the Respondent's censüs classifica-
tion. The Court will recall this comment of his, in the verbatim record
at page 360, supro: ".. . the individual person is classified and his
rights and burdens are irrevocably established on the basis of his race
or coIour". And then, in the verbatim record, at page 373, supra, he
said:
"Al1 of these persons categorized as 'Co1oureds'-including those
who, in the language of the census 'although in appearance arc
obviously white, are generally accepted as Coloured personsl-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 sight of. This definition, and particularly
this aspect of it, "although in appearance are obviously White are
generally accepted as Coloured persons", really demonstrates esactly
the opposite of what rny learned friend is contending for. It is, 1 must
admit, in that particular formulation rather clumsy draftsmanship, but
if one knom the background, and if one looks at what it really says,
then itbecomes perfectly clear what the basicobjectives are.
In South Africa we have had legislation for a long time providing
for separate institutions for Native persons, Coloured persons, 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 itthen becarne necessary
for the courts, in cases of dispute, to decide what exact criterion was
to bc adopted. In the course of extensive case law upon this subject, COMMENT BY MR. DE VILLIERS 43I
the courts pointed out that there were various criteris that one could
applp: there was the criterion of a man's appearance; there was the
criterionof his descent; there was also the criterion of what 1 rnight
cal1 hi5 sociological acceptance-where is he accepted in society; does
he live amongst Coloured persons? noes he Iive amongst IVhite persons;
does he live amongst Native pcrsons; and is he accepted generaIIy by
that community; does he identify himself with the particular community ;
and is he accepted in that community as being one of their menibers?
The courts came to the conclusion that, on the whole, in the absence
of special statutorydetinition, although these factors of association and
appearance may be taken into account, when it came to an ultimate
dispute the ultirnate deciding factor would have to be the factor of
racial descentThat, of course,as one can see, could in certain instances
lead to anomalous consequences and partjcular hardship upon an individ-
ual and upon a family-a family having been accepted in a parlicular
community and then, becausa of an instance of admission to a school,
or something, having to delve into the past of that famiIy and to see.
purely and strictly upon a descerit basis, lvhere that family is to be
classified. Itcould, of course, in certain cases lead to hardship. As a
result, therefore, of this definition on the paofthe 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 itclear that, althcrugh the factor of appear'mce 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 classificatjon rvhich we read at
page 109 of the lilemorial1, and it is justan exampie, taken from one
of the Statutes, of this type of definition,and the purpose is quite
evident from it when one takes the background iiito account.
Let us look at the definitiori of White persons:
"(a) M7hites-Perçons who in appearance obviously are, or who
are generally accepted as white persons. butescluding persons who,
although in appearance are obviously white, are generally accepted
as Coloured persons."
One could have refined that by saping rather "but excluding persons
who, although in appearance would seem to bc white, are generally
accepted as CoIoured persons". But the general purport of it and the
intention of it are clear. The criterion of appearancein other words, is
prima facie accepted as designating that a person may be regarded as
a White person. But there may be instances where appearance could
be deceptive and where, in actual fact, that person is not accepted as
a \mite person-where he is accepted and lvhere he identifies himself
as a member of the Coloured community. And so it could be the other
way round-where a person, if one were ta look at his appearance alone,
would be perhaps 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 regardas a member of the
\\'hite community. And that is al1that it means.
Therefore, also one finds in the case of Natives the definition is:
"Persons who in fact are, or wlio are generally accepted as members
of any aboriginal race or tribe of Africa.(1,p. 109.1432 SOUTH WEST AFKICA
In the case of Asiatics, 1 may point out, the definition is purely-
"Natives of Asia and their descendants".
And then it goes on, in the case of Colourcds-"Al1 persons not included
in any of the three groups mentioned above". (Ibid.)
Kow, the case of Asiatics, in this total context, is also easily esplained.
The basic test there is the test of descent: for a man who wishes to be
regarded asan Asiatic, he need merely point to his descent as an Asiatic,
and then lie is regarded assuch and not as a member of any of the other
groups. But where there has been an admixture, and particularly where
there has been identification of a particular person as a member of,
Say, the Coloured comrnunity, or as a member of the White community,
then the definitions given in the cases of those other groups would see
to it that that man isthen regarded as a member of that group.
So, &Ir.President, the whole system is one which places the emphasis
on socioIogica1acceptance and identification,and not on the factor of
race. It is nota matter of delving into a man's past and finding whether
by statutory definition he has s quarter or one-eighth per cent., or
whatever it rnight be (perhaps 1 should have said 25 per cent. or 12.5
per cent.) of a particular kind of blood. That is not the criterion. The
criterion is that of sociological acceptance.
And therefore, Alr. President, also, although the classification is a
rigid one, as rny Iearned friend correctlysays, for the large number of
persons, it is not absolutely rigid for thosc perçons who are soiiiewhere
on the borderline. It is quitc possible for a person, purely by reason of
this aspect of acceptance, to find achangc in his classification-that he
may by moving from one part ofthe country to the other-cases occur
of that kind-where he may become entirely identified and accepted in a
particular community, that is the end of ii-he is then entitled to be
classifieas being a member of that community.
ive also had occasion to point out that this census classification relied
upon at page ~og of the Memorials, 1, refcrs only to some aspects of
classification. It does not stop short at a classification of Natives as a
group, because even forthe census purposes one finds that the census
statute goes further,and it provides that the census is tbe taken on the
basis of home ianguage, and home language then provides for acounting
for the census of the various different Native groups in SoutWest 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 all,a censuç is onlyn count-but if IV~look at al1
the othcr Iüws 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 bais between the various
Xative groups, identifying them as Herero, or Ovambo, or whatever the
particular group rnay be, and providing differciitial rights and obliga-
tions for them on the basis of that classification.
Against this background we find that the Applicants suggest that
certain witnesses-Professor Rruwer, Professor Logan, hlr. Cillie and
Professor Krogh-had acceded to the proposition that rights and privi-
leges in the Territory are establishein accordance with the colour of the
inhabitants-that is,by reason of their being imite and non-White.
The Applicants Say, for exampIe, in the case of Professor Brubver, in the
verbatim record, at page 360, sufira, referring to evidence which Professor
Bruwer, gave in the ï7erbntim record, nt X, page 279: COXIMENTBY MR. DE VILLIERS 433
". . . Dr. Bruwer conceded ... that the estabIishment of rights and
privileges in theTerritory was 'byrenson ofbeing White andnon-Wlite' ".
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-
legesirztheTerritory. He was questioned in this verbatim record, at X,
page 278, regarding a passage in the Odendaal Commission report con-
cerning non-\hrhites being absorbcd in the White or maney economy of
the southern sector, and in this contest my learned friend hlr. Gross,
referred to a sentence in the statement of the Prime Blinister ofSouth
Africa regarding "domination by the White in his own areas"; so that
was the coiitest in which this tliscussion took place. Dr. Bruwer said that
that stateinent by the l'rime Minister related to "certain rights that
people look upon to have in certain ares". He was then askcd "By
reason of being U'hite and non-imite?" His answer was "By reason of
belonging to different groups". Then rny learned friend repeatcd the
question "by reason of being White and non-White?" and the mitness
said "Yes", but in that context rclating of course to the situation within
the area uiiderdiscussion-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 Territoryas a whole. The discussion did not stop there-
it \vent on; this was apage 278. At the next page, 279,there was a long
colloquy about defining this cx:ict area about ~vhicli cross-examining
counsel and the witness were speaking-nearly the whole of that page
nas devoted tothat-and emergjng from that,then, Dr. Rruwer said:
"1 understand tlie question, Mr. President, and 1would Say that
it is based on the area-cal1 it, tl-ien, in the southern scctor-
excliiding tlïose areas where other groups have got rights, and
excluding, to my opinion, also areas that are looked upon as being
Crotvn Land or State Land."
And then, Inter, at page 280, follo~vingup the11the particular question
being put about the non-Whites in that nrca, Dr. Urutver said:
"Mr. President. the position of the non-Whites, using that term,
is different£rom that of the \mites in that area as we have noour
defined it in the sense that the 'Whites' in that area have certain
rights and privileges IV-hicthc 'non-MJhites'have nût in that area."
So nothing could have been clearer by way of emphasis and by way of
repetition in the esperts' accoiint, that that is what they were talking
about, and that in that contest alone one could speak of IVhite verstbs
nonIn linc with thisrny learned friend, Mr.Gross, alleged in the verbatim
record, at page 361. stcpra,tliat Dr. Bruwcr had conceded-
"that the restriction precluding a Kative from becoming a mine
overseer, in European-ow~ied mines, for example, had 'nothing to do
with anp other factor' escept that of classification by law as a
'Native'. This isin the vei-batim record, ntX,page 284."
1 need to refer to only one question and answer to show how much out of
context this comment by the rlpplicants was. I refer to verbatim record
at X, page 284:
Question by Mr, Gross:
"And his rights to rise above a certain form labour in the mine,434 SOUTH WEST AFRICA
therefore, depend upon the-shall kvecal1it ethnic group-to which
he belongs? Is that correct?
Mr. BRUWER : hat is correct, but only then in the area of the
ather group, because [and then he is interrupted by cross-examining
Counsel, who saps to him :]
1 am talking, Sir, about the southern sector,1 am talking about
one particular area. Let us confine ourselves, ifyou 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 itinsthat
particular area a case of distinguisliing between CVhiteand non-Ilihite,
but not because of I'ollowinga racist approach or a racist perspective, but
because that is the area in which the interests of this particular group,
the White group, isprotected. The imite group happens to be the group.
which is protected in that area, and therefore al1other groups which :ire
not White groups corne into that area subject to such limitations as may
be necessary with a view to protecting the interests of the IVhite group,
just as in the caseciOvamboland, everybody who isnon-Ovambo has to
accept the limitations which are irnposed 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, jiist as little justification is there for saying that in the
White area the distinction irnposed between White and non-White is on
a racial basis.
And this is exactly what was explained by hlr. Cillie-verybriefiy and
concisely stated by him in the verbatim record at X, page 538.
A question was put to Mr. Cillie in the context with reference to the
southern sector, and the question read: "And the answer is 'yes'to the
question that there are ceilings placed upon non-Whites, solely because
they are non-Whites? Is that correct?" And the ançwer came: "No, I
would say no. If you put it like that, 1 would Say placed upon them
because they do not belong to the White group." -4nd that puts it
exactly in perspective. My learned friend, Mi. Gross, says now in his
comments at page 361, supra, that this was something which was "con-
ceded" by Mr. Cillie. Itwaç anything but a concession. Jlr. Cilliwas
restoring the corrt:ct 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-
Cihites, and the suggestion which is now still being presçed upon the
Caurt irrespective of the answers bvhichwere, in fact, received from the
expert witnesses.
Mr. President, thisprocess 1 can follow up alsoin regard to the Plppli-
cants' comment on the evidence of Professor Logan and with reference
to the actual evidence given by Professor Logan, and 1 could do it like-
\visewith reference to the evidence of Professor Krogh and the comments
of the Applicants jn that respect. 1do not find it necessary to do it in
detail, but 1 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 361, sîiprn,
and the relevant part ofhis evidence is tobe found at X, pages 400-405.
This evidence made two points clear. The witiiess said that in general
allotment of rights, duties and privileges took jnto account not only a
man's "classificationas a Bantu", which was a phrase used by cross- COMMENT BY MR. DE VILLIERS 435
examining Counsel, at page 401, but that it actuaily 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 asthere were with
regard to employment of non-White persons within the White sector of
the Police Zone operated as against ailthe 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
passagc at page 404.
We find the very sarne story in regard to Professor Krogh. The com- a
ment by rny learned friendstarted at page 361, mpra, and the Court ivjll
find Professor Krogh's relevant evidence at XI, pages 171-17 2.will
be seen that this evidence does not bear out the comment at al1 for
similar reasons to those in the caseof the other witnesses.
SO, Mr. President, this suggestion to the Court of demonstrating on
the bais of the testimony of the experts that the establishment of the
rights and dutics in the Territory was by reason of being iVhite and
non-\\%te, entirely fell tthe ground, as one could espect, because one
knew from the start that it was in conflict with al1 the basic facts, it
ignored al1the basic facts wvhii:lihad been admitted and established. In
fact, aswe have seen, it received no support wliatsoever from the wit-
neçscs.
Idet us take tlinext example, viz., the suggestion by the Applicants
that there is a rigid inflesibility with which the individual inhabitant is
categorized by race or colour tvithout reference to individual potential
or preference. The Applicants on this point sought to build something
from the evidenct:.I commented earlier this afternoon on this oldconcept
of rigidity in so far as it does apply. In so asit applies it is, of course,
necessary in a situation such as operates in South M'estAfrica. 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 wt:re no such rigidity the system as a whole
necessarily had to break down. Professor Possony's testirnony in this
respect is to be found at page 178,supra.
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 necessary incident, therefore, of al1these instancof State
practice testified toby Professor Possony. Rut when asked about this
aspect, Professor Possony said, at page 65, supra, in answer to the
qucstion of how a conflict between the rights of groups and those of
individuals were reconciled:
"The State practice, 1 would Say, is that the rights of the com-
munity predominate, and that this is done on the basis of gener-
alized la~vsand that as individual cases ariçcwhere on one or the
other ground a hardship has been created, there are usualIy, but not
always, ways by which h:irdship cases could be handled."
In other words, the ~Iassifications remain rigid, more or less, but some
method is sought to alleviate the hardships which are suffered by an436 SOUTH WEST AFRICA
individual, or which may be sufiered by an individual, where it is
cablc to have such alleviation of hardshi . And that, Mr. Presigrentti,- is
not only the practice of States as testifBetoby Professor Possony, it is
euactly the practice of the Respondent as appears from the undisputed
facts of record. \\le caii refer to several euamples. One of those veryhis
measure which the Applicants have played up so very heavily, the
mining regulations which reserve certain posts in European mines for
Europeans. 1here is provision in the regulationsin question for escrnp-
tions in suitable cases, and as we poinout 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 dealirig with Higher Education in
South Africa-Act 45 of 1959-which enablcs Native students in partic-
ular circumstsnces to enrol at European uriiversities in South Africa
with the permission of the Minister of Bantu Education. We deal with
that in the Counter-&IemoriaI,III,at page476, and Professor Rautenbach
dealt with it ai XI, pages 410, 415-416, 441 and 450. It emerged
that the permission is granted, for example, in the case of a Native
student who wishes to enrol for a course for which there is as yet no
provision in a Native univerçity, orin the case of a Native studcnt mho
attended a European university before the Act came into force and
wished to complete his studies at that university.
Theri,Alr.President, it appears from the facts ofrecord that various
esceptions and exemptions are also made under the pass laws to mcet
the needs of certain individuals. Section 6 of the General Pass Law
operatjng in Soutli LVest Africa, ivhich is Proclaniation rr of 1922,
specifically exempts, inter.alia, the following Natives frorn the require-
ment of obtaining and carrying passes: any Native missionary or teacher;
any Native to whoin a certificate of exemption has been granted; and as
emerges from the Counter-iilemorial, HI, at pages 31j-316, such certif-
icatcs are granted exactly on the basis of individual merit, capacity and
so forth. The number of exemptions granted, asappears there, during the
pars 1951-19 60as676 out of atotal of 918applicants. 'Thenin addition
to that, >Ir.President, there are what are termed blanket exemptions
granted by the liinister appiÿing generally to headrnen, to counsellors,
to members of Advisory Boards, to teacherç, to potice oficers, to clergy-
men and to messengers, and as the Countcr-Memorial discloses, there
were as at 1963 about r,ooo of such blanket exemptions, and this, of
course, is onlyin the Police Zone.
>Ir. President,I have given csamples of measures of exemption and
so forth whereby the position of the individual is most certainly taken
into account. 1 could givc more examples but 1 think 1 have quoted
sufficiently. The Applicants, onthe other hand, Say, by way of comment
on the evidence, and we find this at page 362, supra:
"ConceptualIy, the evidence uniformly followed a line that the '
individual and the group arc 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 COMMI<h'TBY MR. DE VILLIERS 437
evidence of certain witnesses. One was from that of I'rofessor Krogh.
The extract was quoted at page 363,supra, and it conveys the impression
that even today "the only 'product' the Natives 'couid contribute at this
stage to their eccinomic development 'was their 'labour ernpioyment' ".
But that is completely incorrect, MT. Pi-esident. Professor Iirogli uas
talking about coi~ditions at the inception of the Mandate: tliat is per-
fectly clear from what he said, at XI, page 77 :
"This [labour employrncnt] is the only by-the-may product that
they could contribute at this stage of their economic development
to the development of the Territory."
And it is not only clear froni the context that l-iewas speaking of 40 years
ago, but he ~veiiton at the sanle page, ai the heginning of his answer to
the following question, to indicate that this was the position "generally
speakingH-those were his woi-ds. 111other words, he did not cveri sug-
gest that 40 years ago it was applicable to every individual Iriative
person.
-41~0on this subject of suggested rigidity of classification, i.e., not
taking the individuals sufficiently into accoiint, the Applicants referred,
at pages 362 to 363. supra, to the evidence of witnesses such as the Rev-
erend Ah. Gerickc,Dr. Rautenbach and Professor Logan, to the effcctthat
even urbanized Natives or Bantu çtill retainecl tlieir contacts with their
tribes and their cultural attributes.
Mr. President, it is very difficult to sehow this evidence could assist
the Applicantç to establish this point which they seek to make-that the
Respondent does not sufficientlp take cognizance of the individual as
contrasted with iïgroup. The witnesses did not testjfy- that it mas by
some process of legal fiction tliat these individuals are stilregarded as
belonging to a tribal group. They testified that as afactthese individuals
retained their tribal identification and regarded themselves as mernbers
of their tribal orethnic groups; aiid they told the Court that the process
of urbanization did not rcsult in a cultural assimilation with the Euro-
pans, but that these persons rather retained a modified African or Bantu
culture, niaintairiing strong lines with the traditional. 1 could refer
particularly to Professor Rautenbach on this point, at XI, page 358,
under cross-examination, whcre lie quoted, in support of what he was
saying, from the writings of ari African intellectual.
So this comment, Jlr. President, rrrasalso totally out of perspective,
having started from a urarped premise.
The same applies to another point sought to be made by the Appli-
cants in their comments about a suggested false equivalcnce between
what they called "the limitations upon the frcedoms of non-imites in
White areas" and the deprivation of rights of Whites in other areas.
They spoke of this at page 375,sa~fira,and the following. And they spoke
of this suggested equivalence as being something offered by the Respon-
dent in justification or in exteiiuation of the system of apartheid. I majT
sa', in passing, that 1object to the word "cxtenuation". One estenuates
something which is wong, which is acknowledged or shown to be wrong.
There has been no attempt on Respondent's part to estenuate apartheid;
the Respondent's evidence hrts explained apartheid.
The attempt to show a faIse equivalencc, Mr. President, is warped
because the wliole basis from which it procecds is warped again. It isnot
a rnatter ofsaying that limitations are imposed here upon certain pcrsons438 SOUTH WEST AFRICA
and to compensate for that other limitations are imposed 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 ailrespect, 1 am afraid 1 find very great difficulty in
answering the question so worded. 1 do not think interms of 'limi-
tations' irnposedupon people because of their colour or raceI do not
think of it in tïiese terrns. 1think of the Mandatory as having to have
an over-al1 policy for trying to advance the weU-being of al1 the
peoples,and then 1 would go and see what are the implications of
this policy and what opportunities can be given, in what places and
to whom."
In other words, Mr. Yresident. the emphasis is placed on the positive,
on the creation of opportunities for development of peoples in certain
areas, and not upon the negative aspects which merely flow from these
as incidentals, but ifyou want to protect certain people in certain places
and in respect of certain opportunities, then that must necessarily
involve some limitations for others.
Professor Manning proceeded to Say,at page 642, when he was pressed
dong this line of einphasis upon limitations:
"1 should have thought that the regulations in any given area
were detennined by which community was seen asparamount as
regards its interests in that area. But 1would also have thought that
the over-al1scliemeofwhat was best for the country as awholemight
affect the question of what opportunities particular categories of the
population had in particular places."
That, therefore, is the approach, hlr. President, as ha a peared so
amply from the evidence and £rom the body of admitte Cf fact-the
approach of this pulicy which seeks to secure for each group its own, by
way of political development to self-determination; by way of economic
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 al1 this off as some Iunatic scheme, the
sole purpose of which is to impose restrictions purely for the sakeof im-
posing restrictions and then to balance them by imposing rnorc restric-
tions upon other pt:rsons elsewhere. That, of course. ian 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 comples one. That is sobecause 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-al1 those are so differ-
ent. Let us illuçtrate this by an example:an Ovambo is protected in his
possession of land inOvarnboland but he is prevented from occupying
certain positions in certain mines. Sow, how does one weigh up the rela-
ular Ovambo, who may or rnay not have particular wishes in this respect,
or does one look to his wholegroup, or does one look aaU theinhabitants
of the Territory, and if it appears thatparticular Ovambo would rather
be a mine overseer than a farrner, wvouldthat be a reason for abolishing
aii 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-al1 picture at all, but they seem to suggest that each
individual may legitimately be required to make a sacrifice only if he
has an exact or mathematicdy accurate compensation sometvhere else,
or if somebody else is required to make esactly the same sacrifice some-
where else. So, for instance, following this line of âpproacli-incidentdly
1do not know how it is to be linked up with their norrn and standard-but
just followingitup for the moment on its own merits, they point tothe fact
that there are oidy approximately 300 White persons in Ovarnboland,
whereas there are a substantial number of non-imite perçons in the
White area. They Say this is now an example of this false equivalence
and the suggestion is, ofcourse, 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 inOvarnboland. 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 come
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
farrner who would like to have a farm in Ovamboland, where he could
irrigate or coulddo something sirnilar in Ovamboland or in the Okavango,
but is deprived of that opportunity-he cannot go into Ovarnboland
or the Okavango at all-and cineweighs up the position of the Ot~arnbo
who may come and earn a living in the \Vhite area ifhe wishes, but
subject to limitations which make it irnpossibIe for him to over-rule
and aver-run the IVhite population in respect of their rights and inter-
ests and political future: ~vhoisin the worst position, and how does one
weigh the one against the othr:r?
It isnot a question which can be answered mathematically. or esactly,
and it is not n question which a Court, with respect, could attempt to
answer without a much more comprehensive and extensive enquiry
and on the bais of some legal norrn 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. 1
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 al1 groups would be affected by reciprocal re-
strictionson political and economic opportunities and other facili-
ties in the homelandç of other groups. Transitional steps, e.g.,
moving to a new home, would affect at least some members of al1
the groups. Specifically as regards the M'hite group, alleged by
AppIicants to be specially favoured, it will be noted, cg., that not
only would a large number of them have to give up farms o~vned
and developed by them, but the goup as a whole would, through
the public revenues, havti to make very substantial econornic con-
tributions to the accelerated and large-scale development of the
non-White homelands ancl the upliftment of the non-White peoples.
That some members of the non-Whitc 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 estent thereof is very minor as compared with the over-al1
benefits involved for their respective peoples, and indeed for al1
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 rernember
particularly the terln "marginal" used in that respect by Professor
Krogh in the economic sphere.
In passing, another point of comment, the Applicants, on page 384,
sufiru,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 citizenship in the Kepublic of South Africa oii the same
basis, terms and conditions as are the liJliite inhabitantsof the
Territory ?"
as if this were soniething which we would find clifficulty in a~lswering.
As a matter of fact, if we look back at the A,Iernoriakwe find that one
of the things the Applicants complained about \vas the fact that the
South African Government passed a law in rgqg which extended South
Africa~i citizenship to Natives of South West Africa. That is on page
190, 1, of the &Iemorials and on page 192, they said that "by officia1
usage. 'Native' inhabitants of the Territory arc considerecl Union cit-
izen~". WC acknowledged, in the Counter-hlemorial, III,pages 98-99, that
al1 this waç so. So it has been common cause for some ycars that the
inhabitants of South IYest Africa, \\'hite and non-White, have South
African citizenship.I do not know what is the ambiguity in our 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 did not
Say. Perhaps the cluestion was intended to mean, lvhether citizenship
of the Republic means in its practical effect the same for non-White
inhabitants of South IVest Africa as for White inhabitants of South
West Africa. Perhaps that is what they meant, but they never said so.
Well, if they mt:ant that, then the answer is perfectly simple. The
answer is that if one Iooks at identity of effects, then obviously the an-
surer is, noIfone Iooks at substantial equivalence of effects then the an-
swer is, yes. For eachcitizen of Soutli Africa, whether coming from South
West -4frica or from South Africa, there isprovided a future of self-
realization and self-determination within the nation or group of which
he forms a part, and that is so for White citizens and for non-White
citizens of South Africa alike.
Anothcr kind of test question thrown out was:when will the homelands
eventüally be established? In the record at pages 381-382 s,rfirathis
point was developed iiconnection with this "falsc equivalencc" point.
The suggestion was tliat al1 this is annever-never basis and of course
itis al! a question of unfair discrimination against the Natives. because
at present they have no political rights where the Whites have political
rights and the political rights envisaged for thern by way of self-govern-
ment and so forth are sofar in the future that they cannot be taken inio
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 C03.IhIEST BY MR. DE VILLIERS 44
basic facts ofthicsase. Any urrcertainty as tu nlhen and hoiv homdands
wiUcome to fruition and inwhat form they will come to self-government,
independencc 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 alone, and that is inability to forecast
exactly how fast these various peoples will avail themselves of the oppor-
tunities granted to them to develop to the necessary stage; and uncer-
tainty couplcd with that as to what their dccision is going to be, if and
when they reach that stage, because it is their decision that will decide
what exactly is going to happen with a particular territory.like Ovambo-
land-will it become entirely independent, standing on its own? \irill
it form sorne form of alliance?If so,what form? That is sometliing which
will have to be decided when the appropriate stage is arrived at.
So again, &Ir. President, there is nothing in this suggestion. Or must
we understand the Applicants to Say that because there is uncertainty
as to the ratc at tvhich particular peoples can devclop, and because there
may be samc individuals in advance of the rate of development of that
particular pcoplc, therefore tllosc jndividiials 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 msy be held back, becausc the
cream is being taken awaÿ al1the tirnc, or a situation is created in this
other group which is undesirable-a situation of tension and friction
which may deny self-determination for that group.
Ifthat isthe suggestion, >Ir. President, again 1 need onIy point to the
admitted facts and tothe clear evidence on record to show that that is
a suggestion without any substance when regard is had to the weii-bcing
of the peoples of South Niest Africa
Applicants, in the verbatim record at pages 383-384, su@ra, carnrnented
on the evidence of Mr. Dahlmann regnrding the present political situa-
tion amongst the non-White inhabitants of the Tcrritory. The Coiirt will
recall thatn very large field was corrcred by Rlr. Dahlmann's tcstimony,
but out of al1this the Applicants chosc only a part of one single sentence
an ivhich to deliver comment-they said this:
"Dr. Dahlmann infornled the Court about the present circum-
stances of political life in the Territory with respecto the Natives
andtheir political organizations ... [H]e indicated it to be his opin-
ion that-
'... the outçide ivorld takcs these organizations a little bit
too seriously.. . they have verjrlimited support and people-
as we 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
ir~ouldnot find t12iisrprising, evenjfjt werc true." (Supra,p. 384.) Why
the evidence should not be true, of course we rire not told, and that need
not detain us.
As to the suggestion of not finding this surprising, the Applicants go
on to say:
"iITliat else could be expected'when the normal and natural end
of political activity-which is participationof 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 Alr.
DahImann conceded, thcre are non-\hites in the Territory who442 SOUTH WEST AFKIC-4
would be capable and qualified to serve in govemmental 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 politicai parties and organizations "are inffuenced,
and even perhaps deeply affected, by the uncertainty concerning the
future of their placof residence and their status". To this Mr. Dahlmann
answered: "No, definitelynot. hlr. President,1 think the outside world
takes these organizations a little bit too seriously..." (XI, p.512). In
other words, this suggested uncertainty certainly did not esist-that
was not afactor affecting these political organizations. What was affect-
ing them was the fact that they just had no support to speak of, and
that was the effect of hlr. Uahhann's evidence, which was entireIy
ignored in this comment, although that factor of his evidence was nevcr
attacked and never brought into any serious question. The whole com-
ment runs counter to and, in fact, ignores the basic situation~vhichkas
appeared in regard to the facts of the matter, viz., the attachment of
the vast majority ofthe non-White populations to their own groups, as
testified toby the experts and as appeared from the admitted facts-
the support given by the large majority of the non-White population to
their traditional authoritiesand the fact that these traditional authori-
ties do, in fact, exercise meaningful powers of decision-making, as ure
point out in the Counter-Mernorial, III,at pages 114-131 a,d in regard
to the Rehoboth Basters in IV, pages 19-22,and again generally inthe
Rejoinder, VI, pages 11-19. These are al1 part of the admitted facts of
record.
The fact is ignored that the Odcndaal Commission's proposals 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 1-4, and, as 1pointed out in my argument a few
days ago, will increase the bargaining ower of these authorities ïvhen
speaking as equds or as developing equa s with the South African Covern-
ment on matters of common concern.
The comment ignores the fact of record, rvhich is undisputed and in-
disputable, that these proposais othe Odendaal Commission werc accept-
able to and desiredby the majority of the population,and that the major-
ity of these political partics agitating againsthe recornmendation were
brought into being by a few people only for ulterior purposes, with very
little support, that is, in order to providefew petitioners at the United
Nations with a front anda semblance of power. Those are the real facts
that have been established.
Those are the real facts that have been established, and the simple
answer 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 for the Governrnent'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 verÿ belated interest from the side of the Applicants.
In the hlernorials the Coloured popuIation did not form part of this
subject of cornplaint-the cornplaint of oppression of the Native popula- COMMENTBY MR. DE VILLIERS ' 443
tions-at ail. The complaint \vas confined to the Native population; not
a word was said about the Coloured population, as we pointed out in
Our Counter-Memonal, 11,at pages 382-383. We went on to state there,
Mr. President, that we would from time to tirne, in giving general 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 torefer to the Coloured group or the Basters,
or both-but we added:
"Inasmuch, however, as these goups do not in any way feature
in the cornplaints or charges, a systematic or complete surïrey in
regard to them would be out of place, and is consequently not
attempted. hny reference to them will be only for the purpose of
explanation or exarnple, rir to answer some specific point or allega-
tion raised iithe Memori:ils." (IIp. 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. V'e find at page 257, IV, and the foliowing, 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 108-rrr, and
there we pointed out and demonstrated, Mr. President, that we had not
been guifiy of any misrepresentation or strained construction at all,
but that the Applicants were now trying to broaden their case "appar-
ently to bring it into conformitywith their newly introduced legal norm
of non-discrimination or non-separation". It was only in this context
1 may point out, as we did in the Rejoinder, that the Coloured popula-
tion was apparently then sought to be brought jnto the picture. Again
there \vas no complaint of conduct relative to the Coioured 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 com-
plaint inthat context relative to the Coloured group or the Baster group.
When we came to my learned friend's catalogue of 17 May, we there
find special reference made toparagraphs in the Odendaal report, cited
by us in our Rejoinder, dealing wjth proposed local boards for Natives
in urban ares-that is, in that record o17 May, at IX, page 289. Again
in this catalogue the Applicants' whole concern was with the interests of
the Natives ;they also made specific reference to the policy reIating to
homelaiids for the Native groilps-that is at pagc 288 ofthat 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 al1 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, aswe pointed out, was not examined
at all; Dr. Bruwer, who was an early witneçs, had been a member of the
Odendaal Commission and a pnrty, therefore, to these recommend t';Lions
about the Colorired population, which were later referred to bymy learn-
ed friend; but not a word of cross-examination was directed toDr. Rruwer
about the question of the Coloured population, although, as the Court444 SOUTH WEST AFRICA
will recall, he was cross-esamined at length over some days. So it went
on with witness after witness. There followed a two-month break from
mid-July until zo September, and then on 13 October, when WC came
verp near to the end of the presentation of Our evidence, questions con-
cerning the Co1ouri:dgroup were suddenly put in cross-examination to
Mr. Dahlmann in the verbatirn record at XI, page 559. These questions
concerned, amongsr others, the paragraph in the Odendaal Commissian's
report conceriiing Coloured urban settlement, and the absence of a re-
cornmendation to establish a homeland for the Colourcd group. Mr. Dahl-
mann, incidentally, in that record, at the same page, agreed with my
learned frieiid,Bir.Gross, that the Coloured population did not fit into
the homelands plan, but he stated "that the Coloureds, or the rnajority
of the CoIoureds, are supporting this planin the Government policy".
The process was repeated in the case of Professor Manning, who tes-
tified after hlr. Dahlmann. He was also asked about the absence of a
recommendation for a Coloured homeland, and Professor Manning sajd,
as the Court will recall, that lie did not possess the necessary knowledge
to say why that was so; and he went on to Say:
"It rnap be that if1knew more about it, 1could give an adcquate
explanation for everything that has been donc. but it would be
quite wrorig 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 in the fulfilment of a policy which seems to mto be
the wise polic- in its basic philosophy." (XIp. 639.)
On the basis of this my learned friend, $Ir. Gross, says in the verbatim
record, at page 374, szq5va,that Professor Manning rnanifested uncon-
Cernabout the Coloured population. 1nced not labour the comment that
this suggestion was entirely unwarranted.
The same unwar-ranted stiggeçtion was made about the evidence of
Mr. Dahhann, and my Iearned friend went on to Say, now quite un-
fettered, that the Coloureds were treated separately on the basis of
colour alone. 011 the basis of what evidencc he said that, of course, we
stilldo not know. 3Ir.Dahlmann in his evidence ccrtainly did not lend
any support to thi statement. Mr. Dahlmann in hisstatement said that
the Coloured population regarcied themselves as a group, and that there
was the question of community development. We find that ût pages
373 and 374, supra, and again, at XI, page 560-this latter is the refer-
ence to Mr. Dahlmann, the former is thc reference to the comment.
Mr. President, oiir attitude can be stated very shortly. We have here
apparently a belated effort to introduce the question of the Coloured
population in order to affect in some undescribcd way the homeland
policy of the Respondent in regard to the Natives. Or perhaps the sug-
gestion is that the Coloured population isgoing to receive less beneficial
treatrnent than the Kative groups-1 do not know, we are not told
exactly what this suggestion is. lf'hat is clearisthat this whole effort
is an afterthought on the AppIicants' part.
We did not deal with the matter in our pleadings because we were not
required to do so, and1rnay explLinthat this is not a technical attitude;
there is,infact, a very large yolicy in operation in regard to the devclop-
ment of the Coloured population in al1 sphereç of their liveç in order to
bnng them to n fit and a proper stage of self-realization, although it
proceeds along sornewhat different lines of detail than in the casof the CO>InIEXT BI-MR. DE VILLIERS 445
Native population. '1.0set that out in detail could fil1a book-in al1 its
irarious aspectsofpolitical det~elopment, socialdeirelopmeiit, economic
development and so forth. ive couid have given those expositions if ïve
were called upon to give thern, but not being called upon to give them we
did not traverse a field which would have been cntirely irrdevarit. So
that is the situation where \ve stand, and we know on the evidence of
Mr. Dahlmann as given in cross-esamination that the Colaured people,
or the majority of them, are iii favour of the Govcrnment's policy. This
confirms what we liad stated earlier, in the Rejoinder,V, at pagt: zgo,
pasagraph 80, namely: "The Coloured group enthusiastically supported
the recommendations", meaiiing the recommendations of the Odeiidaal
Commission; wvesaid that a $repos of meetings which were held by the
hlinister of Coloured AffairiiiFebruary of 1964S .o what the ilpplicants'
purpose was with this late attempt to introducc new rnattcr we do not
know. Perhaps it was just a clrowning man grasping at a straïv. It cer-
tainly, in our submission, has not brought the Applicants anywhere.
Anothcr elemeiit of comment by the A plicants concerncd the subject
of social pexe We find that at page $8 sufva:
"iVitnesses espressed the view that a necessary prcrequisite for
the attainiiientof this vision [namely, the vision of separate horne-
lands] was wliat was frequently described as 'social peace'. 'Social
peace', it appeared from the testimony, is not adequately assured
by normai conditions of equality of oppartunity and equal protec-
tion of the laws."
And then nt page 3G7 the Applicants procceded to scoff at the suggestion
that briirging peuple together from different backgrounds may lcad to
confiict. In viem of the mas of evidencc to the contrary-admittecl facts
on the pleadings and the evidence of the experts-this is really surprising
indeed. 1 may refer to the Coilnter-Mernorial, II,pages 449-454, to the
liejoindcr.V, pages 185-241, again pagcs 400-408 and pagcs 430-461. In
these passages not only did we speak in theory about group relatio~is, we
spoke of policies inmany parts of the world lvhich recognized the basic
fact of thenecessiiy of having regard to differences which exist and which
are perceivcd as csisting betwcen groups, and to the confli~t whichmay
result and the tragedies \.hichmay result when this factor isnot properly
or sufficiently taken into account. FVc referred to immigration policies;
we referrecl to events iri other parts of Africa-other parts of the world;
and the Court wili recall the testimonygivenby Professors van den Haag,
Possony and Ma~iningupon these aspects of the matter.
This is again al1ignored, and the Applicants sirnplymock at the under-
lying principle. Then they proceed to refer (at 367, st~pra)"to the sac-
rifice exacted from individual non-White inkiabitruits on the altar of
social peace", and thcy go on to speak ofwhat they cal1job reservation
measures. On analysis we see they relate to measures in the railways
and in the mining industry, and the Court \vil1recall the uncontestcd
testimony that these are the only two sectors in the wholc economy of
the White portion of South West Africa, of tl~c ïvhole of South West
Africa, in which there are mcasures which operate in favour of White
workers-only those two, nont: else-but they are blown up time after
time as if they wcrc setting a ceiling-an econornic ceiling-over the
whole of the White sector as regards evcryportion of the White economy,
and as regards every potential Native worker in that economy. But be446 SOUTH WEST AFRICA
that asit may, whether or not these particular measures, which do esist,
and which, aç Mr. Cillie pointed out, are decided upon in regard to spe-
cific matters asthey arise from time to tirne, and are revised from time
to time as may be ilecessary, are necessary for the purpose of protecting
social peace isa question of fact, and we pointed out when we dealt with
the econornic 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.
Eut what is clear, and this is what 1want 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 peace can therefore nevcr be said
to be an ulterior motivation on the part of the hfandatory, 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 light of the real issue before the
Court,not important, but in vieïv of the efforts at creatisome impres-
sion about the hardships that would be suffered by individuals-efforts
made by my learned friends in their comment-I may just refer to the
fact that even on the incomplete record as it is we have shown that the
number of perçons who could be affected by these provisions 1 have
referred tois verysnlall,that hardship is largely avoided by exemptions,
that ample openings and economic opportunities exist for ail non-Euro-
peans of abilityand training in South West Africa inal1 sectors of the
economy, and that indeed there is a large unsatisfied demand for thern-
al1 those are facts which have been established as facts.
In the result, even if anybody should in fact find hirnseIf frustrated in
the mining industry-of course, there has been no evidence that this is
applied to any individual atal1in fact-there has been no such evidence
-but even if that shouldbe 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 ta make equivalent or better prog-
ress in another inilustry or occupation in which no simiIar 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 rnatter.
In regard to education, the only factor of comment ta which 1 need
refer is that regarding compulsory education. We have pointed out
before that the attitude now apparently taken by the Applicants in re-
gard to compulso~ education would appear to be entirely alien to their
norm or standards. If one were to apply the norm or standards, then any
distinctionmade on a basis of rnembership in a group, i.e., having com-
pulsory education for one and not for the other, would autornatically
transgress the norm, but now they Say "no". Be that as it may, we are
denling with the factud aspects, and the Applicants Say on that point,
at page 383, supra, "a question iairIy arises concerning the reasonU-
the reasonwhy 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 compelIing reasons were given in the pIead- COMMENT BY MR. Di3 VILLIERS 447
ings and in the oral evidence, including answers elicited by the Appli-
cants' re resentatives themselves in cross-examination from the various
experts. KTy learned friend, Dr. Rabie, dealt with this matterfuiiy a few
daps ago, st pages 281-286 srbpra.
1 need not go into that again, but there is that ivhole body of most
compelling reasons; there is not a word of reference to that in tiie
Applicants' comment but they go on to make their inference, as they
cal1 it, and their inference, at which they arrive eventually, is that
this difference "is obviously based upon racial considerations",and that
it is therefore "inherently incompatible wlth the obligation to prornote
the weil-being and the social progress of the inhabitants of the Territory".
Itwas not surprising, Mr. Psesident, that the Applicants were carefiil,
in making thiç commcnt, not to refer to the facts or the record at al].
And that brings me to the Applicants' comment, or lack or comment,
upon Our demonstration of the real basis upon ~hich proceedingç at
the United Nations were tobe seen, relative to a large group of resolutions
upon which the Applicants relied in support of their suggeçted 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 references where further quotations
were not offered. Do the Applicants meet our case and Ourdemonstration
in that respect? Mr. President, they simply say that the witnesses and
the Respondent-1 quote from the record at page 387, strpra-
". ..looked upon the United Nations as the ernbodiment of the
source of their fears. The Respondent's intemperate and baseless
assaults upon the Organization are to be evaluated in this light."
hIr. President, they did not advance anything st al1 to show that
any of the points made by us were incorrect. not even to speak of "intem-
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 tliese proceedings. \,ireheard not a word of denial
as regards the existence or the objectives of the political campaign
being waged against the Rcspondcnt. We hcard not a single word of
refutation of the proof which we adduced that the allegations of large-
scale op ression, made by the petitioners at the United Nations, have
been ind eensibly false.\irehave heard no denial that these falçe 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 theçe 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 norm as defined at page
493, IV, of the Reply. IlTeheard not a word, Mr, President, on any of
these basic, these relevant, these fundamental matters which we demon-
strated.
The Applicants' fnilurc 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 al1true andthey have been substantiated beyond
any doubt. So let us see what is the nature of the answer atternpted
to be given by the Applicants. Rre can forget noiv about the so-called
assaults being "intemperate and baseless"; we can go on to the next44S SOUTH WEST AFRICA
elernent, the suggestion that these assaults were levelledby us "against
the [United Bations] Organization". This, of course, is equaiiy baseless.
We did not attack the United Nations Organization. We attacked the
quality of the evidence accepted and echoed by certain delegations in
the deliberationsof the United Nations organs.We attacked the motiva-
tion and the attitudes displayed by some of those delegations, and we
attacked the Applicants' contention that the resolutions of the bodies
have given rise to, or reAect the existcnce of, a norm or standards as
defined at page 493, IV, of the Reply. Wc have atacked those things;
we have not attacked the Organization.
Thirdiy, Mr. President, the Applicants suggested that the target of
this so-called broadside waç obscure. That we find in the record, at
page 388, srifiraAI1 1 nced Say about that, Mr. President, is that we
are confident that it would not have bcen obscure to the Court.
Fourthly, the Applicants came with so-called "five undisputed facts"
-just stated without any attempt at substantiation from evidential
or other sources-stated ris being five undisputed facts.That is in the
record, at page 359, sz~pra.
1 am not going to read each one to the Court or to analyse each one
in detail, because their essencein each case is,Mr. President, that they
sirnply ignore the irery points which werc so clearly made by Our uncon-
troverted demonstration. 1 shall merely illustrate thivery briefly, with
reference tothese so-called five undisputed facts.
The first one says that the concIusions 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 aridregulations and the practices and methods
by which they are effectuated, the existence of which has never been
and is not now denied by Respondent". That we find in the record,
at the sarne page.
Now, llr. President, WC made thc very points which now stand
unanswered, that this so-called "evidence" which poured in over the
years emanated largely from a small group of biascd professional peti-
tioners actuated by ulterior motives. ive demonstrated that this evidence
was false, and thnt great weight urasgiven and issiil1given to this evidence,
that the evidence Ied to riwhoIly false perspective of the purposes or
effectsofRcspondt:ntls laws, regulations and policies.
And, Mr. President, we demonstrated that this situation is now
substantiated by the Applicantç' admission of al1 the real basic facts
which we have set out in Our pleadings, and which controvert cntirely
those facts upon ïvhich 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 variety involved in the member-
ship, and the nature, of the United Sations and the other bodies which
adopted the various. resolutions upon which they rely. This again,
Mr. President, in our submission, brings the Applicants nowhere. We
have alwayç conceded that standards exist al1 over the world, not only
amongst people waging a cèrtain campaign, but amongst al1 right-
thinking pcoples-standards which condemn oppression, whether it be
oppression of a group or whether it be oppression of individuals under
any circurnstances and whcther by a differential policp or by an inte- COMMENT BY MR. DE VILLIERS 449
grating policy those standards exist. And if, therefore, Mr. President,
represcntations are made to bodies that the Respondent is applying
poiiciesofoppression,and those representations are believed andaccepted,
this wide membership of which they are comprised?hose bodies with
But this takes the Applicants nowhere. Once it is established, asit
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 wt:ight can now be attached to these resolu-
tions andto theçe factors rnentioned 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 AppIicants exclusively rely.
This was also a crucial point which the Applicants 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 faund, 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 rernarks which I have just made about the second, the third and
the fifth points are sufficient also to dispose of these.
So, hlr. President, on the whole of this subject of what realiy happened
in the international bodies, we have found distortion and evasion of
our case, we have found no answer.
It rernains for me only to refer to two points which were made by
the Applicants in regard to their standards contention, asdistinct frorn
their norm contention; and both these points, in my submission, show
very clearly their own realization that the writingwas 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 19May,
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, therefore in this
litigation the Court was bound to apply thern 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 ~veight" only is to be given to these standards,
and that there is to be no "vbber-starnping", which isthe word we had
used previously in that regard.
But then, Mr. I'resident, if those resolutioeven if they should have
been productive of standards, which of course we do not concede, if
they should have produceclcertain standards and the Applicants concede
that those standards are not binding, why should this Court apply
them. in the face of al1 the rincontroverted demonstration of fact to
this Court that to apply thern, 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 thern
as king binding, especially in the lightof the demonstration to which
1 have just referred-in the light of the dernonstration that those resolu-
tions were not intended to lay down these standards at all, that inso
far as they condemned the Respondent's policies as being oppressive,
they were based upon falseinformation, and that therefore they can
be of no assistance to this Court at al1 when this Court has hatl a real
enquiry into the actual basic facts.
That is the one factor, Rlr. President. The other factor is this. The
Applicants suggeçti:d as follo\vsinthe record, at page 352, SU~Y":
"No evidence is relevant, in the Applicants' submission, con-
cerning the extent to which international standards ... are applied
in practice. If the Court should find that such standards exist and
that they are cornprised of the sources cited and properly reflect
them-the existence ofthese sources is undisputed and indisputa-
ble-then the extent to which such standards are perhaps violated
in practice is irrelevant ;juaçin thecase of standards of negligence,
or reaçonable care, or due process of iaw, failure to observe such
standards in practice makes them more, not less, neceçsary."
Mr. President, this iç a curious argument. It istrue, of course, that
~vhereabodqrindisputably havingtheauthority tolay down the law,has laid
down the Iaw,where thcreiçnodifficulty about interpretingwhat that body
bas 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 simpIy
has to be applied and tl~ere is nothiiig more to it. Then, of course, it
would be true to Say that if that law is being breached in practice by
this or that or the other person, that dws not affect the fact of the
existence of the law.
But here the very issueis whether these bodies, of which the Applicants
speak, had the power to bring about such binding standards, or rvhether
they thought they had the power to do it, or whether they thought
indeed that thep 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
aç 40 of the States \\rhicli took part in these deliberations, by their omn
practices in their own States, show that they have no contemplation
of the existence of such a binding standard. If they do not cornply
with such a suggested standard in their own practicc in their own
States, how can it yossibly be said,ina record which is for the Applicants
at best ambiguous, but which in our submission is really quite clear
against them, how could the Applicantç ever corne and suggest that
those States must have intended tobring into existence such standards
that are to be bincling generally?
1 submit, Rlr. President, that that again sho~vsthat 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 nie to the end of this comment. Again, Mr. President,
on behaIf of rny colleagues and myself, 1 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 throughoot theçe proceedings. COMMEKT BY MR. DE VILLIERS 45I
I should like, also on behalf of my colleagues and myself, to express
our appreciation to you, Sir,of the way in which you have prcsided
over these proceedings. The task has not almays been an easy one in
that respect and we have great appreciation of the way in which you
have acconiplished it, with respect from our side.
1 also wish to express our most sincere appreciation of the never-
failing courtesy, kindness anci efficiency which wc have experienced
from the Iiegistrar and his personne1 during al1this period wliich mrist
have becn a strained one for tliem attimes.
That really brings us to the end, Mr. President, eight rnonths after
we started here and at record number gg. IfTeshall leave number roo
at the disposa1 ofthe 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)